The Project Gutenberg eBook of The Treaty Of Waitangi, or How New Zealand Became A British Colony by T. Lindsay Buick

TO WHOSE ENTERPRISE AND SELF-SACRIFICE
WE OWE THE RECOVERY
OF SO MUCH OF OUR FAST RECEDING HISTORY
I RESPECTFULLY DEDICATE THIS BOOK

PREFACE

The arrival in New Zealand waters of the battleship given to the Empire by this Dominion during a grave national crisis, marks a new epoch in the life of our country, and an event so pregnant with the spirit of Imperialism seems to the author to provide an appropriate point at which to pause and retrospectively review the causes which have made possible such an innovation in our naval policy—such a milestone in our national history. The story of New Zealand's progress since 1814 has been one of splendid emulation tempered by vicissitude. There have been dark days, days of doubt, of devastation by war, but never a period when our people lost heart or renounced their national faith. No attempt has been here made to tell the whole of that story. All that I have tried to do is to get back to the beginning of things, to the birth of law and order, to the genesis of the day when we were able to say to the Mother Land, "We will build you a Dreadnought, and yet another if needs must." The Treaty of Waitangi has been frequently derided and denounced, but it was in very truth the foundation of our nationhood. When we consider what Britain would have lost in material wealth, in loyalty, in strategetical advantage; when we reflect what it would have cost to have conquered the country by force of arms, then it is that we can see in clearer perspective the wisdom of Lord Normanby's policy, the breadth of his statesmanship, and we are the better able to appreciate the triumph in diplomacy which that treaty represents.

Unfortunately the lapse of seventy-three years has robbed us of all who were actively concerned in its consummation, and equally unfortunately they have left few records behind them. There are grey-headed men and aged women alive to-day who were children at the time, but so far as I know there is only one with us now who was actually present at the signing of the treaty. Old Rahira te Hua, the daughter of one of the great Hongi's slaves, who has seen ninety-three summers pass, still carries in her weakening memory some misty recollections of that day fraught with such far-reaching consequences to both races. The opportunity for obtaining personal testimony of what happened is thus irretrievably gone. I have, therefore, had to rely for my information almost entirely upon official documents, supplemented by such fugitive memoranda as may have been left by the few concerned, who happen to have placed their opinions or impressions on record. The gathering together of this widely-scattered material, the moulding of it into a connected narrative, has had its pleasurable as well as its anxious moments, for the subject has not been without its perplexities, ambiguities, and contradictions. All of these I have sought to sift with justice and treat with perfect impartiality. Where I have met with conflicting statements it has been my endeavour to so present the position that the reader will be able to form his own conclusions, and where I have expressed my personal opinions they have only been such opinions as appeared to me to be justified by the facts of the case. Whatever impression the reading of this narrative may leave with those who peruse it, I for one cannot lay down my pen from its writing without affirming that two things appear to me to be established—that Britain has no reason to be ashamed of the manner in which she obtained the sovereignty of New Zealand, and in the light of subsequent events she has no reason to regret it. I have not attempted to arraign or to defend the various, real or alleged, breaches of the treaty committed by our Governors or Governments. That phase of the subject is necessarily so controversial in character, that to do it justice would require a volume of its own, the need for which has to some extent been obviated by the publication in 1888 of his Aureretanga , by Mr. G. W. Rusden, in which that vigorous writer deals exhaustively with at least the Maori side of the case. The Treaty of Waitangi, the first diplomatic arrangement of the kind entered into between Britain and a savage race, was a wise, politic, and humane measure, the justice of which has been vindicated with the lapse of time. In the expressive language of a native address to Lord Ranfurly, "This treaty has been rained upon by the rain, it has been exposed to the blast of the storm, but the words are still clear, they cannot be obliterated."

Let us hope that no attempt will ever be made to violate either its letter or its spirit.

NOTE OF ACKNOWLEDGMENT

During the compilation of this work I have necessarily been placed under obligations to a number of gentlemen, whose services I now desire to acknowledge.

I am especially indebted to Mr. Charles Wilson, Librarian to the New Zealand Parliament, for the privilege of freely examining the rare official papers I desired to consult. In like manner the courtesy of Mr. A. Hamilton, Director of the Dominion Museum, must be acknowledged in placing at my disposal the New Zealand books in the Carter Collection, while the Hon. J. T. Paul, M.L.C., has been most helpful in consulting for me authorities contained in the Hocken Collection at Dunedin. To Mr. Robert M'Nab I am obliged for the extract from Captain Lavaud's Despatch to the French Minister of Marine, now made public for the first time, and to Te Heuheu Tukino, the present representative of that family, for the narrative of his illustrious grandfather's rejection of the treaty. Valuable assistance has also been lent by the Hon. Dr. Pomare, M.P., by Messrs. H. M. Stowell, L. M. Grace, and Elsdon Best, in solving Maori problems of a technical nature, and to the Rev. T. G. Hammond I am indebted for favours of a more general character. For permission to use the portrait of Tamati Waaka Nēne I have to thank Mr. H. E. Partridge, of Auckland, and especially Mr. A. M'Donald for his generous assistance in preparing the balance of the illustrations.

ILLUSTRATIONS

CHAPTER I
IN THE BEGINNING

" The Islands of New Zealand have long been resorted to by British Subjects on account of the valuable articles of commerce which they produce, and by reason of the peculiar advantages which they offer to whale-ships requiring repair. But the nearness of these Islands to the British settlements of New South Wales and Van Dieman's Land has also led to their being resorted to as an asylum for fugitive British convicts, and such persons having associated with men left in New Zealand by whale-ships and other vessels, have formed a Society which indispensably requires the check of some contending authority. Her Majesty's Government have therefore deemed it expedient to station at New Zealand an officer, with the character and powers of a British Consul, and I have the satisfaction to acquaint you that the Queen has been graciously pleased to select you for that appointment." So wrote Viscount Palmerston, Foreign Secretary in Lord Melbourne's Cabinet, on August 13, 1839, to Captain William Hobson, R.N., and this letter may be taken as the first satisfactory evidence we have that the British Government had at last decided to accept their long-evaded responsibility in connection with New Zealand. Ever since the day when Captain Cook took possession of the country in the name and for the use of King George III., these islands had been allowed by succeeding British Governments to remain a neglected geographical quantity, and this very neglect had now robbed the nation of the {2} title which Cook had by his splendid enterprise secured for it.

The Law of Nations has well defined the principle that before a country becomes entitled to claim sovereignty in any part of the globe "by right of discovery" it is not sufficient that the mariners of that country should sail forth and discover new lands; but there must be some effective act immediately following, such as systematic occupation, in order to bind other peoples to respect the discovering nation's claim.

During the latter part of the century which had elapsed between the time of Cook's proclamation to the world and the day when the Melbourne Cabinet decided that Britain must assume in earnest her responsibilities in the South Pacific there had not only been no systematic occupation of New Zealand by Britain, but rather a systematic renunciation of the nation's intention in that direction. The Duke of Wellington had petulantly declared that England had colonies enough, and Minister after Minister who had presided over the Colonial Office had in deeds, if not in words, endorsed this policy of anti-Imperialism. There were at this time none amongst the British statesmen blessed with that broader grasp, that wider vision of an Empire "extending over every sea, swaying many diverse races, and combining many diverse forms of religion," which afterwards animated the colonial policy of Lord John Russell. [1] The courage and capacity which that planter of Imperial outposts declared were necessary to build such an Empire—to effect such a wholesome blending of peoples—were wanting, and there was even an imminent danger that in this negatory attitude towards colonising other Powers would come to regard Britain not as an equal, nor with the fear that an equal can inspire, but as a timorous weakling, a nation destitute of enterprise, the product of a waning courage and of a pusillanimous hand.

{3} Thus it came about that when in 1839 the Ministry of Lord Melbourne found themselves coerced by circumstances into recognising the need for systematic colonisation, they discovered themselves destitute of what most people believed they possessed—a title to sovereignty in New Zealand "by right of discovery."

The spirit of the British nation had not, however, been as idle as the British statesman, and inherent enterprise, combined with an inherent love of adventure, had sown and matured the seed which continuous Ministries had persistently declined to nourish. The elements which had contributed to the irregular settlement of New Zealand were faithfully recorded in Lord Palmerston's letter to Captain Hobson, and a more unpropitious beginning for any colony could scarcely be imagined. The number of British subjects who, up to 1839, had resorted to New Zealand for the purposes of legitimate and respectable trade were comparatively few, but it is estimated that even earlier than this there were over five hundred escaped convicts living along the sea coast in and around the Bay of Islands, the point at which settlement had, up to that time, chiefly congregated. Of those directly and indirectly concerned in the whaling industry there must have been a considerable number, for it is officially recorded that in the year 1836 no less than one hundred and fifty-one vessels had visited the Bay of Islands alone, and the proportion was even larger in the first half of the succeeding year.

The combination of whaler and convict was not one calculated to strengthen the morality of the community, and so large a leaven of the lawless class, together with the insatiable desire of the natives to procure muskets, had the effect of creating a state of society which, in the words of the Foreign Secretary, "indispensably required the check of some contending authority." In the absence of any such authority the more respectable settlers at the Bay of Islands had organised themselves into a self-constituted Association, into whose hands was committed the administration of a rude justice, which recognised {4} a liberal application of tar and feathers as meet punishment for some of the offences against society. A steadying influence had also been supplied by the appointment at intervals since 1814 of gentlemen empowered to act as Justices of the Peace, their authority being derived from a Commission issued by the Governor of New South Wales, and, if illegal, was on more than one occasion acted upon with salutary effect. [2]

Although it has been a popular sport on the part of many writers to throw darts of sarcasm at the labours of the Missionaries, they, too, must be accounted a tremendous influence for good, not so much, perhaps, in checking the licentiousness of the Europeans, as in preventing the natives from becoming contaminated by it. Destructive internecine wars had been waging "with fiendish determination" for many years under the conquering leadership of Hongi, Te Wherowhero, Te Waharoa and Te Rauparaha, by which whole districts had been depopulated, and tribe after tribe practically annihilated. Still the Maori people were a numerous, virile and warlike race, capable of deeds of blackest barbarism, or equally adaptable to the softening influences of Christianity and civilisation.

So far as the darker side of their history is concerned, we have it on the irreproachable authority of the Rev. Samuel Marsden that the tragedies in which the natives made war upon the Europeans were in almost every instance merely acts of retaliation for earlier outrages. [3] The killing of Marian du Fresne and the massacre on {5} board the Boyd were unquestionably so; and the dread of the natives which for several years after these events almost suspended the sea trade with New Zealand was the natural fruit of that cruelty which trusting Maori seamen had suffered at the hands of unscrupulous captains, who had either inveigled them or forced them on board their whalers. Dark as the history of New Zealand was during these Alsatian days, there is no chapter quite so dark, or which redounds less to the credit of the white race, than the story of the sea-going natives who were taken away from these sunny shores, [4] and abandoned in foreign countries, or driven at the end of the lash to tasks far beyond their physical strength, resulting in the premature death of many, while the poison of undying hatred entered into the souls of the survivors.

The position on shore was scarcely less disgraceful, for the natives resident in the seaward pas were cruelly ill-treated by the crews of the European vessels who visited them; and it is stated in the records of the Church Missionary Society that within the first two or three years of the arrival of the Missionaries not less than one thousand Maoris had been murdered by Europeans, the natives unhappily not infrequently visiting upon the innocent who came within their reach revenge for crimes perpetrated by the guilty who had evaded their vengeance.

But apart from the commission of actual outrage there was debauchery of several kinds, and always of a pronounced type. "They lead a most reckless life, keeping grog shops, selling spirituous liquors to both Europeans and natives, living with the native females in a most discreditable way, so that the natives have told me to teach my own countrymen first before I taught them. They have called us a nation of drunkards from their seeing a majority of Europeans of that stamp in New Zealand." Such was the testimony of an erstwhile Missionary, Mr. John Flatt, when giving evidence before the House of Lords regarding the northern portion of the {6} colony; and not less unsatisfactory was the position in the South Island, where the whalers were the preponderating section of the white population.

At both Cloudy Bay and Queen Charlotte Sound there was, in 1837, a considerable white settlement, each man being a law unto himself, except in so far as he was under the dominion of the head man of the station. This at least was the opinion formed by Captain Hobson when visiting those parts in H.M.S. Rattlesnake . In describing the result of his enquiries to Governor Bourke, he dismissed the probability of these settlements being attacked by the natives, because they were so confederated by their employment; but he significantly added: "The only danger they have to apprehend is from themselves, and that is in a great measure neutralised by the contending influences of their own reckless and desperate character."

The Rev. Mr. Stack, then labouring in the north, in writing home to the parent Society, complained bitterly of the unprincipled white men who had escaped from the chain gangs at Sydney, and who had recently shown themselves so desperate that two were seized and taken to Sydney to be tried at the Assizes on a charge of attempted robbery and murder. [5] Mr. Stack pleaded for the intervention of the British Government, which he hoped would not leave the country at the mercy of the escaped convicts, or the natives to the influence of a commerce carried on with so many circumstances destructive to the moral health of the people, that if unchecked, would effectually do the work of depopulation. "We have no law or justice," wrote Mr. Stack, "no punishment for crime but private revenge."

In the beginning of the year 1840 Kororareka, the settlement at the Bay of Islands which had the greatest right to claim the dignity of a township, contained about three hundred inhabitants of all ages, exclusive of the numerous sailors, whose nightly revels constituted the {7} only interruption to the peace and harmony which generally prevailed. These gentry resorted in great numbers to the native village at the inner anchorage, where the principal chief carried on the lucrative business of grog-selling, besides another of a still more discreditable kind, for the convenience of his reckless customers—French, English, and American. "Here," according to Dr. Jameson, "might be seen the curious spectacle of a still savage chief enriching himself at the expense of individuals who, although belonging to the most civilised and powerful nations in the world, were reduced to a lower degree of barbarism by the influence of their unbridled licentiousness."

Contact with such social degenerates was not calculated to inspire the natives with a high ideal of European morality, nor with a conspicuous example of rectitude; but where the influences destructive of decency and order were less virulent the Missionaries had a more hopeful tale to tell. "The door is opening before us in every direction, and the people are pressing and entreating us to enter. Had we only more help, where we have now a hundred natives under our care, we would soon have a thousand." Such was the report of the Rev. Mr. Turner, one of the Wesleyan Missionaries [6] at Hokianga, in urging his Society to send more workers to this corner of the human vineyard. The attendance and attention of the natives at Divine worship were regular and fixed, while it is recorded that their responses to the reading of the Litany were particularly devout.

The sincerity of many of these early converts was one of the most remarkable features of the evangelising of the Maori; and the Rev. Dr. Beecham, in giving evidence before the Lords' Committee in 1838, quoted this eloquent passage from one of the letters of the Rev. Mr. Hobbs to illustrate the warmth of Maori piety. {8} "The beauty of the Liturgy, as translated by our brethren at the Bay of Islands into the Native tongue, is most exquisite, and to me hardly loses any of the force of original composition, and, I have no doubt, has been made a great blessing unto many by putting words of prayer into their mouths, and thus teaching them to pray. Many times has my heart gloried within me while repeating the 'Te Deum Laudamus,' and especially that part—

"I have been informed," continued Dr. Beecham, "by those who have witnessed the celebration of public worship in the principal church at Mangungu, that to hear 700 or 800 of the Christian natives correctly and promptly utter the responses, and then sing the praises of the True God, is highly affecting. Another feature of their character is their strict observance of daily social prayer. At dawn of day all the inhabitants of the villages assemble together in the chapel at the sound of the bell, or some piece of metal used as a substitute, to read the scriptures and to pray. The same order is observed in the evening. When the evening approaches the whole of the population moves to the house of God, and close the day with devotions. Their reverence for the Sabbath is remarkable. Those who come from a distance to attend Divine worship at Mangungu do not travel on the Sunday, but on the Saturday, and return on the Monday. They refrain from all work on the Lord's Day. So strict are their views on the sanctity of the Sabbath they do not even prepare their food on that day. The arrival of a vessel is always a matter of considerable excitement to the natives of New Zealand, but if a vessel arrives on the Sunday no stir is made."

{9} It would be difficult to find any description quite so touching concerning the religious observances of the Pakehas , whose irreverence more than once roused the righteous indignation of the Rev. Mr. Marsden.

Although the British authorities had as yet taken no decisive step towards acquiring sovereignty in New Zealand, it cannot be said that the state of society in the country had entirely escaped their notice. Especially were the successive Governors of New South Wales vigilant in keeping Ministers posted as to passing events. Many must have been their anxious moments, for they being the nearest representatives of the Crown were naturally most solicitous for the conduct and fate of their countrymen. As far back as 1814 Governor Macquarie had declared New Zealand to be a part of that colony, and it was thought that the jurisdiction of the Supreme Court had also been extended to this country. These proceedings were, however, almost a nullity, for had they been formal and constitutional—which they were not—the practical difficulties in the way of bringing offenders to justice were so great that the attempt was only made in a few isolated and extreme instances.

This state of official negation continued until the tidings of the part played by Captain Stewart and his brig Elizabeth in Te Rauparaha's Akaroa raid reached Sydney. Then Governor Darling and his successor, Sir Richard Bourke, realised that this game of glorified bluff could not go on indefinitely. The strongest possible representations were accordingly made to the Home authorities, and these representations were followed by a pathetic petition from the natives to King William IV., which was transmitted to Sir Richard Bourke through Mr. Yate, one of the principal members of the Church Missionary Society's staff then labouring in the colony.

The leading chiefs of the northern part of the Islands had long ere this realised the ineffectiveness of their tribal system to cope with the altered state of society. The Missionaries on their part watched with anxiety the unhappy trend of affairs, knowing that if some more {10} enlightened course was not given to events, a serious collision would in all probability arise between the two races, which could scarcely terminate otherwise than in the extermination or expulsion of the one or the other.

Being fully persuaded that to maintain the chiefs and their tribes as an independent people was the most effective safeguard against foreign aggression, they saw with deepest regret the intestine warfare which was going on amongst the natives, thinning their ranks, and rendering them every day less able to resist the pretensions of a foreign power. Stung by a sense of failure, and excited by a rumour that the French were at hand, the chiefs placed themselves under Missionary direction and addressed themselves to the King in the following diplomatic terms [7] :—

The accumulating reports of increasing disorder, the strenuous recommendations of Governor Bourke, added to the touching appeal of the chiefs, at length moved the Colonial Office to acquiesce in the contention that some one should be sent to New Zealand directly charged with the duty of representing the British Crown. In replying to the Native petition, Lord Goderich, [9] who was then at the Colonial Office, after expressing the gratification the petition had afforded the King, accordingly intimated that it had been decided to appoint as British Resident Mr. James Busby, whose duty it would be to investigate all complaints which might be made to him. "It will also be his endeavour," wrote his Lordship, "to prevent the arrival amongst you of men who have been guilty of crimes in their own country, and who may effect their escape from the place to which they have been banished, as likewise to apprehend such persons of this description who may be found at present at large. In return for the anxious desire which will be manifested by the British Resident to afford his protection to the inhabitants of New Zealand, against any acts of outrage which may be attempted against them by British subjects, it is confidently expected by His Majesty that on your part you will render to the British Resident that assistance and support which are calculated to promote the objects of his appointment, and to extend to your country all the benefits which it is capable of receiving from its friendship and alliance with Great Britain."

Mr. Busby, who had thus been chosen for the responsible task of guarding both British and Native interests, was the son of a successful civil engineer in {12} Australia, but it is doubtful whether he had passed through the administrative experience necessary to fit him in all respects for his arduous post. [10] His position was rendered still more difficult by reason of the fact that, much as Ministers might have wished to do so, it had been found impossible to sweep away the constitutional difficulties which faced them on every side. Indeed so hampered was the situation by the circumstance that Britain had not acquired, or claimed Sovereign rights in New Zealand, that when Governor Bourke came to direct Mr. Busby upon the scope of his office, he was compelled to lay greater stress upon the things he could not do, than upon the powers he was at liberty to exercise.

Mr. Busby was instructed to leave Sydney by H.M.S. Imogene , commanded by Captain Blackwood, and on arrival at the Bay of Islands he was to present to the chiefs the King's reply to their petition, "with as much formality as circumstances may permit." This instruction Mr. Busby used his best endeavours to obey, for after a stormy passage across the Tasman Sea he reached the Bay of Islands on Sunday, May 5, 1833. Here he at once made arrangements with the settlers and Missionaries to invest his landing with an importance which was its due; but continued storms made it impossible to perform any kind of open-air ceremony with comfort and dignity until the 17th. On that day, however, the weather had moderated, and at an early hour preparations were afoot for the inevitable feast, a proclivity to which both Maori and European appear equally addicted. At a later hour Mr. Busby, accompanied by the first lieutenant of the Imogene , landed under a salute of seven guns, and no sooner had he set foot on shore than he was claimed by the old chief, Tohitapu, as his Pakeha . A cordial greeting awaited the Resident by the Missionaries, to {13} whose village at Paihia, but a short distance off, the party at once adjourned. Here three hoary-headed chiefs delivered speeches of welcome, a haka was danced, and still more speeches were made in honour of a stranger whose coming was regarded as the event of first importance since the landing of Samuel Marsden seventeen years before. With these evidences of native hospitality at an end, the formal proceedings were commenced in front of the little mission chapel round which the people crowded in motley throng, shouting songs of welcome, and discharging fitful volleys of musketry. By dint of lively exertion order was at length restored, and standing at a table, with Captain Blackwood on his right and Mr. Henry Williams, who interpreted, on his left, Mr. Busby read the King's reply to the people's Petition for protection. The reading of this document was listened to with profound respect by the Europeans, who rose and uncovered their heads, while the natives hung upon the words of Mr. Williams as he explained the professions of the King's good-will, of the sincerity of which Mr. Busby was a living evidence. Then followed Mr. Busby's own address, which was listened to by the wondering crowd with no less rapt attention:

The Resident's address was received with an outburst of wild applause, and soon the smoke of discharging muskets again hung heavy on the morning air. But there was still other diversion for the natives, to whom the proceedings had proved a great novelty. The mental feast which was to provide them with food for discussion for many days was now supplanted by a more material repast, at which fifty settlers were entertained at Mr. Williams's house, while the Maoris were fed with a sumptuousness that made memorable to them the coming and the installation of the first British Resident.

As an adjunct to his slender authority, Mr. Busby had been informed by Governor Bourke that Sir John Gore, the Vice-Admiral commanding the Indian Squadron of the Navy, would be instructed to permit his ships to call in at New Zealand ports as frequently as possible, and offer him what support they could during these fitful visits. But upon neither naval nor civil power was Mr. Busby to rely overmuch. He was to depend for his authority rather upon his moral influence and his co-operation with the Missionaries, to whom he went specially accredited.

Mr. Busby has frequently been made the butt of the humorist, because his bark was necessarily worse than his bite. The Maori cynic of his day chuckled as he dubbed him " He manuwa pu kore " ("A man-of-war without guns"), and many a playful jest has since been made at his expense, all of which is both unfair and ungenerous to Mr. Busby. The difficulty in the way of investing him with legal power was thus tersely explained by Sir Richard Bourke during the course of his initial instructions to the Resident:

Shorn of everything which suggested practical power, except the name of British Resident, Mr. Busby soon found himself in no very enviable position. He was ignored by the whites and laughed at by the natives. To add still further to his difficulties he was slow to recognise that the Missionaries in the long years of their labour had naturally acquired more influence with the natives than he could possibly have, and he was reluctant to achieve {17} his object by appearing to play a subordinate part to them. He had been explicitly instructed to seek their hearty co-operation, and take every advantage of the high respect in which they were held by the natives. It was not long, however, before he began to develop ideas of his own and to formulate a policy which he could not enforce, because it was at variance with that of the Missions.

He had also been accredited to the thirteen chiefs who had signed the memorial to the King in the previous year, and had been advised to seek their assistance in arresting those offenders whom he had power to transmit to Sydney for trial. The number of such persons whom he might have apprehended now totalled, we are assured, to several hundreds; but the process was, as Sir Richard Bourke had suggested, so obviously "prolix and inconvenient," that Mr. Busby exercised to the full the measure of discretion given him by the Governor, and left them severely alone. [12]

According to Captain Fitzroy, who visited the Bay of Islands during the cruise of H.M.S. Beagle in 1835, he preferred to fold his hands and allow events to shape their own course. "He chose to tell every one who went to him that he had no authority; that he was not even allowed to act as a Magistrate, and that he could do nothing. The consequence was that whenever anything did occur, those who were aggrieved went to the Missionaries. Mr. Busby might have very considerable power, because the Missionaries have such influence over the whole body of natives they could support him. If Mr. Busby wanted a person taken up he had only to express his wish to the Missionaries, and the natives would have done it for them, but he was slow to act in that way. He was sent there in a high character, and was accredited to the Missionaries, and had he communicated with them freely and allowed them to be cognisant of, if not the agents in all that took place, while he remained as the {18} head, and the understanding had been that all that the Missionaries did was done in concert with Mr. Busby, and all that eventuated was from him as the head, his influence would have been far too great for any individuals in that part of the Islands to resist. By dividing the two influences Mr. Busby lost his power of preventing mischief. He remained on tolerably good terms with them, but separated himself in an unnecessary degree from them, and thought he might differ from them sometimes, even to taking a precisely opposite course of conduct to that which they recommended. The consequences were that while the natives retained their opinion of the Missionaries, they found that the Resident was a nonentity, and that he was there to look on and nothing more."

As illustrating the class of difference which sometimes arose between the Resident and the Missionaries, and which must have appreciably hampered the activities of both, Captain Fitzroy stated to the Committee of the House of Lords that when he was at the Bay of Islands in 1835 there was then a serious difference between the real and the nominal head of the community, with respect to the stopping or discouraging the sale of ardent spirits. The Missionaries wanted to carry into effect a regulation similar to one established in the Society Islands, namely, that no spirits should be imported into the country. Mr. Busby would not be a party to such a rule, contending that it was an unnecessary measure; while the Missionaries, on the other hand, were unanimous in declaring it was one of the most useful precautions they could take, but no amount of argument could induce Mr. Busby to co-operate with them. [13]

{19} Mr. Busby at all times expressed the most profound respect for the Missionaries and veneration for their labours. He also cheerfully acknowledged that if the British Government expected them to accord their influence to its Representative they must be given a specified share in the government of the country. But when it came to a point of difference, he plainly let it be known that he considered himself possessed of a sounder judgment than they. After detailing to Governor Bourke a discussion in which he claimed to have got the better of the Missionaries, he wrote: "I thought they would naturally conclude in future that it was possible for the conclusions of a single mind, when directed to one object, to be more correct than the collective opinions of many persons whose minds are altogether engrossed with the multitude of details which fill up the attention of men, occupied as they are, leaving neither leisure nor capacity for more enlarged and comprehensive views."

Mr. Busby might have said more in fewer words, but he could scarcely have depreciated the mental powers of the Missionaries in a more delightfully prolix sentence. Skilfully, however, as the sting was sheathed within a cloud of words, the barb came through, with the not unnatural result that he had to confess the Missionaries afterwards neither respected his opinions nor appeared anxious to co-operate with him in what he described as "the furtherance of matters connected with the King's service in this country."

Though severely handicapped by his inability to coordinate his ideas with those of the Missionaries, or to sink his individuality before theirs, it does not follow that Mr. Busby was entirely idle. He lent himself with considerable {20} industry to the task of placing the shipping of the country upon a basis more satisfactory than it had up to that time been. At the date of his arrival there were a number of New Zealand owned craft trading on our coasts, and several vessels were building on the Hokianga River. Sailing as these vessels were under no recognised register, and without the protection of the British ensign, which they were prohibited from hoisting, they were liable to seizure at any time by any enterprising pirate. [14] Equally impossible was it for these owners to register their craft in New Zealand, for there was as yet no acknowledged flag of the nation.

These facts were made the subject of representation by Mr. Busby to the Governor of New South Wales, who accorded a hearty approval to his suggestion that the commerce of the country warranted some protection of this nature. Flags of three separate designs were accordingly entrusted to Captain Lambert of H.M.S. Alligator , who brought them from Sydney and submitted them to the chiefs for approval.

This event took place at Waitangi, on March 20, 1834, the natives having been gathered from all the surrounding pas into a large marquee erected in front of the British Residency, and gaily decorated with flags from the Alligator . Wisely or unwisely the proceedings were not conducted upon the democratic basis of our present-day politics; for upon some principle which has not been made clear the tent was divided by a barrier into two areas, into one of which only the rangatiras were admitted, and to them the right of selection was confined. No debate was permitted, but Mr. Busby read to the chiefs a speech in which he dwelt upon the advantages to be anticipated from the adoption of a national flag, and then invited them to take a vote for the choice of design.

This mode of procedure created considerable dissatisfaction amongst the plutocracy of the tribes, who resented the doubtful privilege of being permitted to look {21} on without the consequential right to exercise their voice. The stifling of discussion also tended to breed distrust in the minds of some of the chiefs, to whom the settlement of so important a matter without a korero [15] was a suspicious innovation. Two of the head men declined to record their votes, believing that under a ceremony conducted in such a manner there must be concealed some sinister motive. Despite these protests, the British Resident and Captain Lambert had their way, and at the conclusion of Mr. Busby's address, the flags were displayed and the electors invited to vote. The great warrior chief Hongi, acting as poll-clerk, took down in writing the preference of each chief. Twelve votes were recorded for the most popular ensign, ten for the next in favour, and six only for the third. It was then found that the choice of the majority had fallen upon the flag with a white ground divided by St. George's Cross, the upper quarter of which was again divided by St. George's cross, a white star on a blue field appearing in each of the smaller squares. [16]

The election over, the rejected flags were close furled, and the selected ensign flung out to the breeze beside the Union Jack of Old England.

In the name of the chiefs Mr. Busby declared the ensign to be the national flag of New Zealand. As the symbol of the new-born nation was run up upon the halyards, it was received with a salute of twenty-one guns from the warship Alligator , and by cheers from her officers and the goodly crowd of sailors, settlers, and Missionaries who had assembled to participate in the ceremony.

As is usual with most such functions where Britons are {22} concerned, the event was celebrated by a feast. The Europeans were regaled at a cold luncheon at Mr. Busby's house, while the Maoris had pork, potatoes, and kororirori [17] served upon the lawn in front of the Residency, which delicacies they devoured sans knives sans forks.

These proceedings subsequently received on behalf of the British Government the entire approbation of Lord Aberdeen; [18] and the countenance thus lent to what at the time was regarded as no more than a protection to the commerce of the country was discovered to have a most important bearing upon the question of Britain's sovereignty over these islands.

Though Mr. Busby found himself destitute of legal power or military force to make good his authority, and equally lacking in the tact necessary to secure by policy what he could not achieve by any other means, he was sincerely and even enthusiastically loyal to the main principle underlying his office—the preservation of British interests. Thus when the tidings came that Baron de Thierry intended to set up his kingdom at Hokianga, he took immediate and, as far as lay in his power, effective steps to defeat what he regarded as a wanton piece of French aggression.

Baron de Thierry was not a Frenchman in the narrow sense of the term, and his foreign associations were more imaginary than real. He was the son of a French noble refugee who had fled his country and had resided in England for many years. The Baron had been educated at Cambridge, had acquired English sympathies, and had {23} been an officer in the 23rd Lancers, so that he was in sentiment if not by birth a subject of the King. When Hongi, the great Nga-Puhi chief, visited Cambridge in company with his compatriot Waikato and Mr. Kendall, to assist Professor Lee in the compilation of the Maori vocabulary, the Baron met the warrior chief, and became fired with the romance of the Pacific. There was much that was quixotic in his scheme of becoming a potentate amongst the savages of the South Seas, and it is possible it was not altogether devoid of benevolence. [19] There is at least reason to believe that Baron de Thierry had persuaded himself that he also had a mission for the uplifting of the benighted, and that when he arranged with Mr. Kendall to purchase him an area of land at Hokianga whereon he proposed to set up his "kingdom," he did so more in the spirit of philanthropy than of mercenary adventure. The area alleged to be purchased by Mr. Kendall on behalf of the Baron was the considerable one of 40,000 acres, and the price paid was the inconsiderable one of 36 axes. The transaction was accompanied by the usual misunderstanding as to the real nature of the deal, the Baron declaring that the axes were payment in full, the natives contending they were but a deposit, or at the best payment for a much smaller area.

The chiefs treated his "sovereign rights and powers" with undisguised derision. They disavowed his territorial claims because they were made regardless of the fundamental principle underlying the Maori law of property—that all the people who have an interest in the land must consent to its sale. Subsequently the matter was compromised by Tamati Waaka Nēne conceding him a small area, [20] to which he retired destitute of retainers, and surrounded only by the members of his own family.

The story of the Baron's landing in 1837, with much pomp and circumstance, under a salute of twenty-one guns, his dispute regarding Kendall's purchase, his final {24} disappearance into obscurity, are, however, of secondary importance to our purpose. What is of vital interest is that the announcement in 1835 of his approaching advent galvanised the British Resident and the native chiefs into a state of anxious activity. Living as they were on the confines of civilisation, their information concerning events outside their own little world was necessarily of the scantiest. Their fears were thus often greater than their knowledge of the facts, and so in this emergency they had no difficulty in persuading themselves that an invasion by the French was at hand.

As a counterblast, Mr. Busby counselled that the chiefs should immediately crystallise the position taken up by Britain—that New Zealand was not a British possession—by unequivocally declaring their own independence. His policy was approved, and for the purpose of giving effect to it, thirty-five chiefs assembled at Mr. Busby's house at Waitangi, where in the presence of the resident Missionaries and merchants they evolved the following declaration, [21] which brought into existence the much-questioned and questionable authority known as The Confederated Tribes of New Zealand.

It is not difficult to trace the Roman hand of the Resident throughout the document, especially as the Maori had no word in their language to express the idea of sovereignty; but it is only just to remark that in a subsequent despatch Mr. Busby drew the attention of Governor Bourke to the fact that the concluding paragraph, both in language and sentiment, originated with the chiefs:

A few days prior to this meeting at Waitangi and the proclamation of their independence by the chiefs, Mr. Busby issued (on October 10, 1835) a stirring appeal to his scattered countrymen, in which he announced that he had received from "a person who styles himself Charles Baron de Thierry, Sovereign chief of New Zealand, and King of Nukuheva, one of the Marquesas Islands, a formal declaration of his intention to establish in his own person an independent sovereignty in this country, which intention he states he has declared to their Majesties the Kings of Great Britain and France, and to the President of the United States, and that he is now waiting at Otaheite the arrival of an armed ship from Panama to enable him to proceed to the Bay of Islands with strength to maintain his assumed authority. His intention is founded on an alleged invitation given to him in England by Shunghee (Hongi) and other chiefs, none of whom as individuals had any right to the sovereignty of the country, and consequently {27} possessed no authority to convey a right of sovereignty to another; also upon an alleged purchase made for him in 1822 by a Mr. Kendall of three districts on the Hokianga River from three chiefs who had only a partial property in these districts, parts of which are now settled by British subjects by virtue of purchase from the rightful proprietors. The British Resident has also seen an elaborate exposition of his views which this person has addressed to the Missionaries of the C.M.S., in which he makes the most ample promises to all persons, whether whites or natives, who will accept his invitation to live under his Government, and in which he offers a stipulated salary to each individual in order to induce him to act as his Magistrate. It is also supposed he may have made similar communications to other persons or classes of His Majesty's subjects, who are hereby invited to make such communications, or any information on this subject they may possess, known to the British Resident or to Lieutenant MacDonnell. The British Resident has too much confidence in the loyalty and good sense of his countrymen to think it necessary to caution them against turning a favourable ear to such insidious promises. He firmly believes that the paternal protection of the British Government which has never failed any of His Majesty's subjects, however remote, will not be withheld from them, should it be necessary to prevent their lives, liberties, or property from being subjected to the caprice of any adventurer who may choose to make this country, in which British subjects have now by the most lawful means acquired so large a stake, the theatre of his ambitious projects; nor in the British Resident's opinion will His Majesty, after acknowledging the sovereignty of the New Zealand chiefs in their collective capacity, by the recognition of their flag, permit his humble and confiding allies to be deprived of their independence upon such pretensions. But although the British Resident is of opinion that such an attempt as is now announced must ultimately fail, he nevertheless conceives that if such a person were once allowed to obtain a footing in the country, he might {28} acquire such an influence over the simple-minded natives as would produce effects which could not be too much deprecated, or too anxiously provided against, and he has therefore considered it his duty to request the British settlers of all classes to use all the influence they possess with the natives of every rank in order to counteract the efforts of any emissaries who may have arrived or may arrive amongst them, and to inspire both chiefs and people with a spirit of the most determined resistance to the landing of a person on their shores who comes with the avowed intention of usurping a sovereignty over them. The British Resident will take immediate steps for calling together the native chiefs in order to inform them of this attempt upon their independence, and to advise them of what is due to themselves and to their country, and of the protection which British subjects are entitled to at their hands, and he has no doubt that such a manifestation will be exhibited of the characteristic spirit, courage, and independence of the New Zealanders, as will stop at the outset such an attempt upon their liberties, by demonstrating its utter hopelessness."

It is somewhat difficult to say, in the absence of contemporary newspapers, what impression was created in the public mind by the Resident's proclamation or by the native Declaration of Independence, but in due course the latter was, in accordance with the unanimous desire of the chiefs, "laid at the feet of His Majesty," and in the following year—so tardy was communication in those days—it was courteously, but guardedly acknowledged by Lord Glenelg, who wrote to Governor Bourke:

"With reference to the desire which the chiefs have expressed on this occasion, to maintain a good understanding with His Majesty's subjects, it will be proper that they be assured, in His Majesty's name, that he will not fail to avail himself of every opportunity of showing his goodwill, and of affording to those chiefs such support and protection as may be consistent with a due regard to others, and to the interests of His Majesty's subjects."

Left to its own devices, the native Confederation was {29} faced with a task that proved altogether too exacting for its resources, and it cannot be claimed for the new authority that it remodelled the Government or reclaimed the dissolute society by which it was surrounded. Had it been possible to restrict the intercourse of the natives to the Missionaries and the more respectable portion of the settlers, they might, combined with the counsels of the Resident, have been speedily induced to form an effective administration amongst themselves, and that important stage once reached, they, with their quick intelligence, might have easily acquired a working knowledge of the higher principles of self-government. But thrust as they were in the midst of a strangely confused community, any such limitation was obviously impossible.

Even if it had been practicable, the irreconcilable differences which had sprung up between the Resident and the Missionaries, of which the natives were perfectly cognisant, necessarily detracted from the beneficial influence which an official in Mr. Busby's position might, and ought to have wielded.

The absence of the physical force which Mr. Busby pined for was unmistakably against the due observance of the ordinary decencies of life, for the people whom Captain Fitzroy had described as "ragamuffins," and Captain Hobson had still more emphatically condemned as "abandoned ruffians," were scarcely likely to be amenable to anything more gentle than the grip of the handcuff or the probe of the bayonet. It was therefore to but little purpose that the Confederation should pass ordinances which, if not respected, could not be enforced.

The difficulties of the Confederation accumulated with the increase of trade and population, both of which were growing rapidly. In the year 1836 no fewer than 93 British, 54 American, and 3 French ships put in at the Bay of Islands. The irregular settlement of white people at various spots along the coast had increased in like manner, until in the early part of 1838 a body of no less than 2000 British subjects had taken up their permanent abode in New Zealand. The part these people {30} were playing in the scheme of civilisation was still small, if we are to accept as accurate the verdict of Dr. G. R. Jameson, who in his Travels in New Zealand has taken the responsibility of saying that from all he had seen and heard respecting the fixed traders, or the casual visitors for trade, it could be affirmed in the most positive terms that not one of them had ever attempted to teach a native to read or write, or to communicate to his mind one ray of Christian knowledge or of moral rectitude. With a few honourable exceptions they had been in their intercourse with the natives guided by one ruling impulse—the love of gain. Their predominant aim was ever and always to obtain the greatest possible quantity of pigs, potatoes, flax, maize, labour, or land in exchange for the smallest possible amount of tobacco, ammunition, and piece-goods. [23]

It was not alone, however, by the criminal taint of a large section of the population and this excessive hunger for trade that the seeds of continued anarchy were sown. A new evil was at hand which threatened to sap the independence of the Maori, and reduce them to a condition of speedy and abject poverty. This was the land hunger which about this time seized the white population of Australia. There the opinion had gripped the public mind that under the Declaration of Independence it would be possible to pursue in New Zealand the schemes of land aggregation which Sir George Gipps had checked in New South Wales. Under his new land regulations the price of land in that colony had been raised from 3s. to 12s. per acre, and hearing that large areas were to be obtained in New Zealand for less than the proverbial song, the speculators swarmed over to the Bay of Islands, and in the year 1837 the land fever in all its phases of "sharking," "jobbing," and legitimate purchase literally raged throughout the country. "What gold was to the Spaniard in Mexico the land at this period became to the {31} English in these islands, and as the warlike aborigines most coveted the acquisition of firearms, they divested themselves of their only possessions in order to obtain those deadly instruments, which, together with ardent spirits, were the most potent means for the destruction of their race. Almost every captain of a ship arriving in Sydney exhibited a piece of paper with a tattooed native head rudely drawn upon it, which he described as the title-deed of an estate bought for a few muskets, hatchets, or blankets."

Several years elapsed before it was possible to reduce these frenzied bargains to tabulated form, but during the debate on New Zealand affairs, which occupied the House of Commons for three days in 1845, the representative for Westminster, the Hon. Captain Rous, R.N., put forward the following startling figures as authentic. A Mr. Webster, an American, he said, claimed to have purchased forty miles of frontage on the west side of the river Piako; [24] a Mr. Painham claimed nearly the whole of the north coast of the Northern Island. Mr. Wentworth of New South Wales asserted his right to 20,100,000 acres in the Middle Island; Catlin & Co. to 7,000,000; Weller & Co. to 3,557,000; Jones & Co. to 1,930,000; Peacock & Co. to 1,450,000; Green & Co. to 1,377,000; Guard & Co. to 1,200,000, and the New Zealand Company to 20,000,000.

Yet another authority has stated that the whole of the South Island was claimed by a Company consisting of four gentlemen, in consideration of giving the chiefs a few hundred pounds in money and merchandise, and a life annuity of £100. [25] Another individual, representing a commercial firm in Sydney, claimed several hundred thousand acres, including the township of Auckland, for which he paid as compensation one keg of gunpowder. The island of Kapiti was claimed by five different parties, each declaring they had purchased it, but each naming {32} a different price. Some alleged they had paid £100, others goods to the value of £30, and so on, the only point of unanimity being that they were each able to produce something that resembled the signatures of Te Rauparaha or Te Rangihaeata.

In much the same way the district round Porirua was claimed by eight separate parties, each contending that Te Rauparaha had sold to them, and to them alone. Cooper, Holt & Rhodes of Sydney asserted they had paid merchandise to the value of £150 for a tract of country between the Otaki and Waikanae Rivers, running in an easterly direction forty miles from the mouth of the river, thirty miles in another direction, and ten miles along the coast. Mr. John Hughes, also of Sydney, claimed in part all the lands of Porirua for a distance of thirty miles, bounded by the sea on the one hand, and by the Tararua Range on the other.

In the general censure which followed upon the disclosure of these unseemly proceedings the Missionaries did not escape criticism, and are still, at times, subject to severest strictures on this question, as it affects public morals. Unjust as these strictures frequently are the purchase from Hongi, in 1819, of 13,000 acres at Kirikiri for forty-eight axes, by the Rev. Samuel Marsden, [26] was one amongst other transactions which on the face of it seems to leave room for the gravest enquiry as to its propriety. [27]

If the Confederation of chiefs had been helpless in the face of social disorder, it was still more impotent to cope {33} with the inroads of the speculator. The greed for land on the part of the Pakeha , and the hunger for muskets on that of the Maori, rendered futile all attempts to control the traffic by an already effete administration. The need for a wider application of authority and efficient Government at length found voice in a petition which was submitted to the King by the law-abiding settlers at Kororareka. The settlers, catechists, and Missionaries to the number of one hundred and ninety-two, headed by the Rev. Henry Williams, Chairman of the Church Mission, joined in the plea for protection.

During the course of their representations they made it clear that the attempt to evolve order out of chaos had utterly failed; that the Confederation of Chiefs was impotent in the face of existing evils; and, praying that His Majesty would graciously regard the peculiarity of their position, asked that he would afford them such relief as to him seemed most expedient.

CHAPTER II
SEEKING A WAY

The cry for better Government was thus becoming imperative, and the demand was not a new one. Both the House of Lords and the House of Commons had entered upon exhaustive enquiries into the subject. The former had reported that the responsibility of extending the colonial possessions of the Crown was one that rested solely with the Government, while the latter had declared in spirited terms that "however pressing the nation's need for a vigorous emigration policy, and whatever action the Government might take to meet that need by finding a soil to which its surplus population might retreat, the House would tolerate no scheme which implied violence or fraud in taking possession of such territory." The reference to "surplus population" in the House of Commons' report introduces a new factor into the problem. It indicates internal as well as external pressure; it tells of clamour from the teeming cities, and a rural population discontented with their lot. It suggests that the nation's mind had moved faster than the politicians, and that already many of England's artisans were seeking to escape to some new country where they might live under freer conditions. The popular theory of the political economists of those days was "over population," and the panacea for the existing national poverty was emigration. In spite of the fact that people are the most precious asset a country can ever have, both doctrines found much favour with the different sections of the community whose interest they seemed best to serve; the spirit of colonisation {37} had got into the air, and the question of finding new fields for the energies of the "surplus" people became a practical issue which no Government could afford to ignore. The necessity for doing something appeared impossible of evasion. Poverty at home and crime unchecked abroad clamoured for redress, but just what to do, or how to do it, was not easy of decision.

Sir Richard Bourke had told the Government in plainest terms that unless they were prepared to give the British Resident more power, and permanently station a ship of war on the coast to support him, it would be more in keeping with the dignity of the nation to withdraw him altogether. To give him more power was an impossibility, unless the Government was prepared to violate the express injunction of the House of Commons and all the precedents by which they had acknowledged the independence of the Maoris. It was therefore not practicable to supply the existing deficiency by extending the jurisdiction of Mr. Busby.

In their dilemma the Ministers turned for light and leading to the comparatively few people then in England who had previous experience of these far-away islands. Amongst these was Captain Hobson, who in 1837 had been sent over in H.M.S. Rattlesnake pell-mell to render what aid he could to British shipping and British interests generally, on news reaching Sydney of serious hostilities between two of the northern tribes. [28] Captain Hobson had on his return furnished the Governor with a report upon the condition of affairs as he found them at the settlements he had visited. He had also entered into the discussion of a scheme for the future government of the country, in which he favoured proceeding upon the plan of the Hudson Bay and East India Companies by establishing trading factories in different parts of the islands, {38} and so fulfilling what he urged had become a solemn duty to apply a remedy for a growing evil. "It has occurred to me," he wrote, "that if factories were established at the Bay of Islands, at Cloudy Bay, and Hokianga, and in other places as the occupation by British subjects proceeds, a sufficient restraint could be constitutionally imposed on the licentious whites, without exciting the jealousy of the New Zealanders or of any other power. I will not presume to enter too deeply into the details of such a measure, but beg simply to suggest that sections of land be purchased, enclosed, and placed within the influence of British jurisdiction as dependencies of this (New South Wales) colony. The heads of factories should be Magistrates, and the chief factor should, in addition, be accredited to the united chiefs of New Zealand as a political agent and consul. All communications with the British Government should take place through the chief factor, with whom alone the local factors should correspond. All British subjects should be required to register themselves and their landed property at the factories. Two or more respectable British residents nearest to each station should hold Commissions of the Peace to assist the factors. Prisons should be constructed within the factories and legally proclaimed in the colony. A treaty should be concluded with the New Zealand chiefs for the recognition of the factories and the protection of British subjects and property. To meet the expenses which the establishment of a system of factories upon the principle I have mentioned would necessarily entail, funds might be obtained from a variety of sources, such as a small fee on the registration of the purchase of land from the natives, on the entry and clearance of British shipping, and a small percentage on goods and produce imported and exported. The great security which would result from this system would, it is conceived, readily dispose the British subjects resident in New Zealand, to conform to such an impost."

After acknowledging the primary need for Imperial legislation to give effect to his suggested policy, he continues: {39} "The benefit which may be supposed to arise from the establishment of factories in New Zealand is not confined to the mere legal protection they are supposed to afford; but we may hope they will be the means of introducing amongst the natives a system of civil Government which may hereafter be adopted and enlarged upon. Nor is it to be overlooked that in times of intestine war they will afford a safe retreat to our fellow-countrymen, who will then become powerful by concentration."

In the estimation of Sir Richard Bourke, Captain Hobson's scheme contained "suggestions of great value," and in transmitting it to the Colonial Office he not only gave it his full endorsement, but justified it because it was in his opinion "neither possible nor desirable to put a stop to the growing intercourse between the English colonies in these seas and New Zealand." He also raised his voice against the neutral policy which was being pursued, for while admitting the failure of the British Residency, he protested that "it would be difficult for His Majesty's or this Government to act for any length of time upon the stern principle of non-interference if the lives and property of British subjects appeared to be in jeopardy. Any plan, therefore, by which the intercourse may be sufficiently regulated, and usurpation, real or apparent, avoided, is well worthy of serious consideration."

Simultaneously with Captain Hobson's scheme, was sent a letter from Mr. Busby, written while the Rattlesnake was in New Zealand waters. In this communication the Resident also endeavoured, for the guidance of Ministers, to reduce to a system a scheme of government based upon his several years' experience of the people and the country. Governor Bourke evidently looked upon it with a less favourable eye than he did upon the report of the naval officer, and commended it merely as advancing "suggestions that were not without value."

This letter must, however, be regarded by all historians as the more valuable of the two, for in it will be found the germ of the treaty which was afterwards adopted by both Pakeha and Maori as the basis upon which New {40} Zealand was taken into the British Empire; upon which her past progress has been built, and her future prosperity must depend.

In the previous year (1836) Mr. Busby had made a somewhat similar suggestion, founded upon the principle sanctioned by the Treaty of Paris in the case of Great Britain and the Ionian Isles, and also applied in various instances on Britain's Indian frontier. That principle recognised "a protecting state administering in chief the affairs of another State in trust for the inhabitants," and this condition he claimed could be, with but slight modification, applied to New Zealand both economically and efficiently. Mr. Busby was by no means of the opinion, afterwards so contemptuously expressed by Sir George Gipps, that the native Declaration of Independence was "a paper pellet fired off at Baron de Thierry." On the contrary, he attached considerable importance to it, proposing to make it the authority on which the chiefs were entitled to enter into diplomatic relations with Great Britain for the cession of their administrative rights.

"The chiefs who were parties to the articles of Confederation, and to the Declaration of Independence," he wrote, "together with those who subsequently adhered to it, include, with very few exceptions, the whole of the chiefs of influence in the northern parts of the Islands, and the adhesion of the remainder could at any time be procured. Whatever acts approaching to acts of sovereignty or government have been exercised in the country, have been exercised by these chiefs in their individual capacity, as relates to their own people, and in their collective capacity as relates to their negotiations with the British Government, the only Government with which the chiefs or people of New Zealand have had any relations of a diplomatic character. The articles of Confederation having centralised the powers of sovereignty both de jure and de facto by the several chiefs, and having established and declared the basis of a constitution of government founded upon the union of those powers, I cannot, I {41} think, greatly err in assuming that the congress of chiefs, the depositing of the powers of the State, as declared by its constitution, is competent to become a party to a treaty with a foreign power, and to avail itself of foreign assistance in reducing the country under its authority to order, and this principle being once admitted all difficulty appears to me to vanish."

It did not, however, enter into the proposal of Mr. Busby that the British Government should be both in theory and in fact the administrative authority. He still contemplated the retention of the federated chiefs as the nominal source of power, with himself as its presiding genius. "In theory and ostensibly the government would be that of the confederated chiefs, but in reality it must necessarily be that of the protecting power. The chiefs would meet annually, or oftener, and nominally enact the laws proposed to them, but in truth the present race of chiefs could not be entrusted with any discretion whatever in the adoption or rejection of any measure that might be submitted to them."

He proposed to constitute the chiefs guardians of the peace and public morals, and to pay them for their services. Schools were to be established, and the Missionaries and catechists were, as far as their duties would permit, to be appointed Justices of the Peace, whose decisions were, if needs must, to be supported by a military force. Even a periodical newspaper was provided for as a means of "instructing the natives in those relative duties of the people and their rulers, which are familiar to all ranks of the population under established Government, but of which the New Zealanders have scarcely yet formed an idea." Revenue was to be raised by an impost on shipping and a duty upon spirits and tobacco. Indeed, so modest was his contemplated civil establishment that he estimated an expenditure of not more than £1000 per annum would be sufficient to maintain it in adequate splendour. All existing land claims were to be settled by an independent commission, and after that all titles were to be void unless procured through the Government, {42} whose special duty it would be to see that ample reserves were retained for the natives.

Mr. Busby, in submitting these proposals, ventured to suggest that they might be presumed to give an effective degree of protection to the British subjects resident in New Zealand, without infringing on the rights of the New Zealanders as an independent people and at the same time "satisfy the reasonable scruples of a foreign Government." This latter condition was one that in maturing their plans the British Cabinet could not leave out of their consideration; for already both France and America were factors to be counted upon in the South Pacific, and might with almost equal justice claim a share in the sovereignty of the country.

The Government were still wrestling with the perplexities of the position when the New Zealand Association rose into being, and served to still further complicate the issues. There was an opinion in political circles, afterwards crystallised into a definite recommendation by the House of Lords, that the colonisation of New Zealand was the duty of the State, if it was Britain's duty at all, but private enterprise had never been wholly disassociated from the scheme. [29] As far back as 1825 a New Zealand Company, "acting with the sanction and encouragement of the Government," had been formed under Lord Durham, and had acquired an estate on the banks of the Hokianga {43} River. This settlement, under Captain Heard, had been of the most fugitive character; but the land still remained more or less an asset, and subsequently was acquired by the New Zealand Association, founded in 1837 by the Hon. Francis Baring, M.P. for Sheffield, in conjunction with other gentlemen prominent in English public life of that day. This Association grew out of an enquiry made at the instance of the House of Commons by a committee called the Committee on Colonial Lands, but the real subject of the enquiry was colonisation. One of the principal witnesses was Mr. Edward Gibbon Wakefield, who gave some account of the then existing state of New Zealand, and spoke of it as a country extremely eligible for the purpose of British colonisation, provided some regular system should be adopted in place of the lawless practices that were then rampant. In consequence of that statement, a member of the committee spoke to him upon the subject of colonising New Zealand. Subsequently other gentlemen were admitted to their discussions, and as a result of their joint deliberations they determined to form an Association for the purpose of obtaining from Parliament (for Parliamentary aid was considered essential) some regulation both for the colonisation and the government of the Islands, to take the place of the irregular practices that were then on foot.

There is little doubt that in its inception the Association had a large measure of philanthropy underlying its principles, for it was the outcome of the unsatisfactory social conditions existing in England at that period. The scheme attracted to its aid men of wealth and culture, and under the organising genius of Edward Gibbon Wakefield it acquired an influence, both social and political, which no government could safely regard with indifference. [30]

To secure New Zealand as a British possession; to find a profitable investment for British capital; and to provide employment and opportunity for England's idle {44} labour were the nominal objects for which the Association had been formed. To give these purposes practical effect the Association had, under the guiding hand of Wakefield, formulated definite theories upon the subject of colonisation; and to the end that their ideals might be achieved they sought the assistance of the Government and the sanction of Parliament.

On a day in June 1837 they secured an interview with the Prime Minister, Lord Melbourne, whom they found attended by Lord Howick, a member of the Government, though not of the Colonial Office, and who was present, so they were told, in the character of an adviser on the subject, he having paid considerable attention to colonial problems. The aims and purposes of the Association were laid before the Ministers by Mr. Baring, chairman of the society, and the result of the deputation was an assurance from the Premier that for himself he saw no objection to the scheme of the Association, and that he perceived in some of their purposes a laudable object, but that not being familiarly conversant with such subjects he did not care to do more than to express his general approbation, and to refer the deputation for the discussion of all matters of detail to Lord Howick, who was well informed on all such questions, and who possessed, in the office which he held, as much leisure as would enable him to attend to the subject. The committee was highly satisfied with their interview, and communicated in various ways with Lord Howick upon the details of their plan, amongst other things submitting to him a draft of the Bill which they proposed to introduce into the House of Commons. Lord Howick examined the Bill, and both in conversation and in writing suggested various modifications, which though not universally approved by the promoters, were adopted in their entirety rather than risk the loss of that influence which they considered essential to the success of their plan—the assistance of the Executive Government. The death of the King, William IV., at this juncture, put a sudden termination to their political proceedings; but the outlook for their negotiation appeared {45} so satisfactory that, pending the assembly of the new Parliament, they published an invitation to all persons so disposed to join the Association for the purpose of emigrating to New Zealand. The publication of this resolution drew to their ranks a large body of wealthy and influential people; and when Parliament met again in December of the same year a very considerable number of persons had expressed their intention of settling in the new colony. Accordingly the committee, on December 13, again waited on Lord Melbourne with a view to obtaining his final approval upon the measure which they proposed to submit to the Commons. As at the previous interview, the object of the Association in seeking this second conference was stated by Mr. Baring, when Lord Melbourne, who appeared to have forgotten what had passed on the former occasion, referred the deputation to Lord Glenelg, who was present as Colonial Minister.

This gentleman at once adopted an attitude of hostility to the whole proposal, his objections being primarily that the jealousy of foreign powers might be excited by the extension of British colonies; that England had colonies enough; that they were very expensive to govern and to manage; and that they were not of sufficient value to make it worth while to increase their number. [31] The rebuttal of these unexpected objections involved a discussion of over an hour, during which considerable feeling was displayed by some of the gentlemen present, who saw in the attitude of the Minister a grim prospect of their scheme being thwarted. Several of these had, during the interval since the previous interview, disposed of their property and quitted professions in which they were engaged, with a view to emigrating, and they now felt very strongly the position in which they were placed by the withdrawal of the Ministerial approval which they believed their enterprise was to receive. One of these was described to Lord Melbourne as having wound up his affairs with a view to emigrating, and as being likely {46} to suffer very seriously from now finding himself unable to carry his plan into effect. Lord Melbourne, not knowing that he was present, said that such an individual must be mad. The gentleman immediately rose and, facing the Premier, said that he was the madman. This created a distinctly dramatic situation, and the conference was on the point of breaking up in excitement and disorder when Lord Melbourne was reminded of his former sympathetic reception of the Association's proposals, whereupon he held a further brief consultation with the leaders of the deputation, and gave them to understand that the matter would be again considered by the Government, and that if they would wait upon Lord Glenelg in a week's time they would get an answer more to their satisfaction. Pursuant to that arrangement, the same body of persons waited on the Colonial Secretary on that day week (Wednesday, December 20), when Lord Glenelg informed them that the subject of the colonisation of New Zealand had been reconsidered by the Cabinet, and that circumstances which had occurred during the interval had induced Ministers to think that their former view was not the correct one. What had happened to so influence the Ministerial mind was the receipt of those important despatches from Mr. Busby, the British Resident, and from Captain Hobson, in which both these officers urged the need for a more vigorous policy on the part of the Colonial Office in its relations with New Zealand. The opinions of the Government, therefore, now approximated somewhat more closely to those of the Association, but there was still some hesitancy in proceeding by way of Act of Parliament. The Colonial Department, Lord Glenelg said, had fully considered the matter, and were satisfied that the measures desired might be carried into complete effect without applying to Parliament at all; and that they were consequently prepared, in the exercise of the power of the Crown vested in the Secretary of State for the Colonial Department, to give to the Association a Charter of Incorporation, being a Charter of government similar to those which were granted in the sixteenth and {47} seventeenth centuries to the companies which founded the thirteen great colonies in America. Nine days after this interview the Association received an official letter from Lord Glenelg, reiterating his offer of a Charter, and calling upon the committee to form their members into a Joint-Stock Company with a subscribed capital sufficient to qualify them for the Charter he proposed to issue. This proposition was wholly unacceptable to the Association for two vital reasons. They had from the beginning declared that they intended to take no private pecuniary interest in the undertaking, and yet in spite of their care in this direction they had been very untruly charged before the public with having no other object than that of private pecuniary gain for themselves. Again some of their most influential leaders were persons, such as distinguished clergymen of the Established Church, holding preferment, who were almost disqualified by that circumstance from becoming members of a Joint-Stock Company, and, therefore, it was unanimously resolved that the offer of the Colonial Secretary could not be accepted. But though this avenue of procedure was closed there was still another open to them, and it was determined to procure, if possible, the passage of a Bill through Parliament, based upon the plan which they had originally placed before the Government. Such a Bill was brought into the House of Commons by Mr. Baring, but owing to the opposition of the Ministers, including Lord Howick, [32] and the widespread impression that the Association was nothing better than a land-sharking Company, the measure was defeated by a large majority.

The discussion which was provoked by this Bill was responsible for concentrating public attention upon two points, namely, the objects which animated the Association, and, secondly, the diversity of opinion which existed on the subject of British sovereignty in New Zealand. One of the most ardent advocates of the Association was the Rev. Dr. Hinds, a clergyman of the Established {48} Church, who had been greatly impressed by the social stagnation in England, and who had joined the committee in the hope of providing some outlet for the country's allegedly "surplus" population. Dr. Hinds told the Committee of the House of Lords in 1838 [33] that he considered the colonisation of New Zealand expedient because of the number of persons of various classes in Great Britain who were anxious to settle themselves in a colony in New Zealand; persons who from their character, station, and other considerations, had a claim on the British Parliament to facilitate that object. The feeling, he assured their Lordships, in favour of such a colony was deep seated and sincere, supporting his contention by quoting letters he had received from Scotland, [34] where, he said, existing conditions were clamant for an immediate remedy. That remedy, he contended, the colonisation of New Zealand would supply. "There is," he said, "an abundance of capital and an abundance of labour in Great Britain, and the abundance of capital the capitalists can hardly employ so as to be sufficiently remunerative by any investment in this country. At the same time there is a great mass of the labouring population who can no longer obtain sufficient wages to keep up what have become the necessaries of life to them. The proposed colony would therefore be a measure of relief to both the capitalists and labourers."

Dr. Hinds concluded his instructive picture of social England at that date by urging the colonisation of New Zealand on the general ground that settlement was already {49} proceeding there along irregular lines, and without any "combining principle." This fundamental requirement to all well-ordered societies, he thought, was provided for in the plan of the Association, and he proceeded to explain in very explicit terms the two cardinal points of its constitution—its Government, and the principles which would control its land transactions.

The executive authority of the Association was, he said, to be placed in the hands of a Commission resident in England, which Commission was to be merely a provisional body to last so long as might be thought necessary to set the scheme on foot. It was proposed to delegate to these Commissioners the power to make laws, the Crown to determine the extent of the delegation, and many other important matters. A further power of delegation was to be given to a Council in New Zealand, but the responsibility for all that was done was to rest with the Commission at home. "Whatever the powers are, it is only required that they should be exercised for a period of twenty-one years, and the Association would not at all object if it should seem desirable to have the time shortened. At the end of that term the whole Government of the colony would revert to the Crown."

In its land dealings, the element of profit was to be eliminated by the fact that the whole of the money derived from the sale of land or other sources must be spent in the interests of the colony, and no member was to derive any advantage therefrom: "The money for which the land will be sold by the Commissioners will be a price made up of several sums. It will in the first place contain the sum paid for the land itself, which I conceive will be a very small proportion. It will contain then a sum which will be calculated as sufficient for bringing out labourers to cultivate the land purchased; that will be the largest amount. It is also proposed that there should be a further sum added for the purpose of making roads, bridges, and public works, and it is also proposed that one of the items should be a sum to be expended in making provision for the natives, such as {50} procuring them medical assistance and some instruction in the arts. The price the settlers will pay for the land will be only the price paid for it to the natives, and the additions to that sum will be in fact the purchase money paid for certain benefits which are considered essential to the prosperity of the colony, more especially for a due supply of labour."

The House of Lords' Committee reported against this scheme on the broadly Imperial grounds that the extension of the colonial possessions of the Crown was a question of public policy with which the Government only should deal. The element of private enterprise was, in their Lordships' opinion, eminently undesirable, holding with Captain Fitzroy, whose personal experience they valued, that "colonisation to be useful must be entirely under the control of the Executive Government of the Mother Country."

At this point a new and vigorous opponent directed its energies against the plans of the Association. The Church Missionary Society had been watching its proceedings with a jealous eye, and from the moment of the Association's inception had adopted an attitude of hostility towards it. Rightly or wrongly the Society had conceived the notion that the colonisation of the country must have a detrimental effect upon its Missions, and that therefore a sacred duty devolved upon the Committee to frustrate its consummation if it were at all possible so to do.

Immediately following the publication of the Association's prospectus the Society had communicated with its Missionaries in New Zealand, calling their attention to the scheme, and urging them to furnish the Committee with their views upon it, and so assist the parent body in reaching a conclusion as to its merits. Without waiting for these replies the Committee proceeded to deliberate upon the evidence then available, and on June 6, 1837, formulated the following resolutions, which they ever afterwards consistently made the basis of their attitude towards the Association.

The Society again made declaration of its views in the following year, embodying in its annual report (May 1, 1838) a plea for the humane consideration of New Zealand's claims, and for their own disinterested services to the country:

The Society having once determined upon its attitude towards the Association never turned back. Their Secretary, Mr. Dandeson Coates, became a militant force whom they found it difficult to shake off, and together with the enormous influence he was able to wield in religious circles, constituted a power that might have made the Government pause had they been predisposed to afford the Association the shelter of their wing.

Harassed by the Church Missionary Society and repulsed by Parliament the Association turned to the hope of resuming the negotiations with the Government at the point at which they had broken with Lord Glenelg. In the previous year the Colonial Secretary had, it will be remembered, reluctantly professed sympathy with the objects of the organisation up to the point that it fell short of being a Joint-Stock Company. He had then informed Lord Durham [35] that colonisation having gone on in New Zealand to some extent, the only question was between allowing it to proceed along desultory lines, without law, and fatal to the natives, or a colonisation organised and salutory. "Her Majesty's Government are therefore," he said, "disposed to entertain the proposal of establishing such a colony. They are willing to consent to a Corporation by a Royal Charter, of various persons to whom the settlement and government of the projected colony for some short term of years would be confided. The Charter would be framed with reference to the precedents of the colonies established in North America by Great Britain in the sixteenth and seventeenth centuries."

The basis on which these Atlantic colonies had been established was that of business concerns; for it was officially stated that the Association's scheme was objected to because of the absence of an actual subscribed capital, and the consequent want of protection to those proceeding {53} to the colony as emigrants. For the reasons already given, the stipulation that the Association should convert itself into a Joint-Stock Company was so contrary to the motives which had inspired it that it was at first, and still was, hotly resented and resisted by its principal and truly philanthropic promoters. Many of these now withdrew from the ranks of the Association; but others, rather than give up the hope of colonising the Islands, consented to comply with the demand of the Minister, after Parliament had rejected their Bill, as they wrongly assumed, for the insufficient reason of a non-existent capital. The Association then, in 1838, became a Company, shares were issued, capital subscribed, the reorganisation changing its whole character from a quasi-benevolent to a strictly commercial concern, whose business it was to buy land at a low price in New Zealand, and sell it at a high price in England. [36]

In the meantime a change had taken place at the Colonial Office. Lord Glenelg had fallen over his Canadian policy, and in the year following its reconstruction, the Company, on the ground that they had now complied with all that had been stipulated for, approached his successor, Lord Normanby, "with a view of obtaining, through his Lordship's intervention, a Royal Charter of Incorporation." Upon what took place at this interview the widest divergence of opinion appears to exist. The Company claimed that the Minister received them with the greatest affability and encouragement, and that in consequence they left the Colonial Office in high spirits at the very favourable reception they had met with, and were perfectly satisfied in their own minds that all opposition {54} to their scheme had not only ceased, but that they could proceed with the full concurrence of the Government.

Their feelings may, therefore, be easily imagined when, within forty-eight hours of their meeting with the Minister, they received an official letter from Lord Normanby, dated March 11, 1839, in which his Lordship warmly repudiated the suggestion that the Government was in any way bound to give effect to his predecessor's promise. He pointed out that Lord Glenelg's offer had been distinctly rejected by those to whom it was made; that they had since applied to Parliament for powers which they had failed to procure from the Crown; and that the personnel of the Company had so completely changed that by no process of reasoning could it be argued that the promise of Ministerial approval had been given to the same people as were now making the application. He therefore claimed that he stood unfettered by any pledge, and was free to discuss the question in the public interests, and for the public as though the rejected offer of 1837 had not been made.

In thus sternly refusing to countenance the proceedings of the Company, the Minister may have been induced to adopt the course he took by a reason altogether different from that which he gave, but one which he found more difficult to diplomatically express. For directing his attention to the change in the personnel of the promoters he was indebted to his Departmental Secretary, Mr. Stephen, who had kept the strictest watch upon the correspondence of the Company, and when the request, now under review, was preferred, he wrote a Memorandum to his Minister which may have profoundly influenced the mind of Lord Normanby.

How far the suggestion of Mr. Stephen weighed, or did not weigh, with his chief can now only be a matter of merest speculation, for unfortunately little in the way of record has been left to guide us. It is possible that under the sway of the religious feeling which existed in England at that time he did not altogether disregard it, but it is more probable that the circumstance which weighed with him most was the fact that since Lord Glenelg's day the Government had received more serviceable advice as to their powers under the Law of Nations, and that finding it was not within their right to issue a Charter affecting New Zealand, they were then considering the suggestions made by Mr. Busby and Captain Hobson, and were even at that moment contemplating the steps which they afterwards took. Lord Normanby would, under these circumstances, find it difficult and inexpedient to refer in definite language to these immature plans, and consequently the general terms in which he was compelled to speak may have misled the members of the Company who waited on him to sue for a Charter. In considering a petition from the Merchants, Bankers, and Shipowners of the City of London respecting the colonisation of New Zealand, an effort was made by a Committee of the House of Commons, in 1840, to discover exactly what was the attitude of the Ministerial mind at this juncture. Mr. Gibbon Wakefield complained that the Company had been scurvily treated by Lord Normanby, who had led them to suppose that they had his sympathy and approval, and had then, within a comparatively few hours, despatched the letter in which he refused to be bound by the promise of his predecessor to issue a Charter. In reply to this accusation, Mr. Labouchere, who was then Under-Secretary {56} at the Colonial Office, and might, therefore, be expected to have some inside knowledge, took the view that the Minister had been misunderstood, and asked whether the position was not this: That Lord Normanby had stated to the Company that he considered their objects very useful and laudable, and that he should have been disposed to give them his most favourable consideration, provided New Zealand were a British colony; that he intended to take steps that he believed would probably lead to the constitution of New Zealand, either wholly or in part as a British colony; but that till those steps had been taken it would be utterly inconsistent with his official duty, not only to give encouragement, as a Minister, to the proceedings of the Company, but even to recognise them in any way whatever?

To this Mr. Wakefield's answer was: "My impression has always been that when Lord Normanby received those gentlemen he sincerely felt what he said; that he was glad to see persons of so much influence, and of such station in society, engaged in such a work; but that after the interview he came into communication with the officers of his Department, and received information of what had passed before, for he was quite new in the office, [38] and that the letter written after the interview, which was so much at variance with it, was written rather by the office, I should say, than by Lord Normanby himself, for the purpose of maintaining the consistency of the course which the Government had pursued."

It was therefore clearly the opinion of Mr. Wakefield that Mr. Stephen was a force to be reckoned with, and that whether he influenced it from the religious or the secular point of view, the Departmental head of the office was a powerful factor in moulding the policy which the Minister afterwards followed. But be that as it may, it still remains that from this date the Company and its colonising scheme received no quarter from the Colonial Secretary nor from the Department while he was at its head. Nothing daunted by official discouragement, {57} the Company went steadily on with their arrangements; and within the year they had so far completed their plans that their pilot ship was ready to sail, all that was requisite being the extension of a helping hand to Colonel Wakefield, their pioneer representative, by Her Majesty's officers in Australia, in the event of things going badly with him. To this end, on April 29, Mr. William Hutt, who had now become chairman of the Company, Lord Petre and Mr. Somes waited upon Lord Normanby, preferring a request that letters might be given to the leader of their expedition, soliciting the good offices of the Governors of New South Wales and Van Dieman's land, should Colonel Wakefield require their aid. Their request was accompanied by a copy of the Company's instructions to Wakefield, all of which came as a violent surprise to the Colonial Secretary, who immediately pronounced with unmistakable emphasis, the Government's hostility to these unauthorised proceedings. He protested that this was the first he had heard of the Company's matured plans to proceed to New Zealand and there set up a system of Government independent of the authority of the British Crown, therefore it was impossible that he could do any act which might be construed into a direct, or even indirect, sanction of such a proceeding. He further made it plain that the Government could not recognise the authority of any agents whom the Company might send out to New Zealand, nor would they give future recognition to any proprietary titles to land within that country, which the Company might obtain by grant or purchase from the natives. Indeed, so far had matters, he said, now been pushed, that he had no option but to indicate that the time had arrived when Her Majesty must be advised by her Ministers to adopt one of the last of Lord Glenelg's recommendations, before he left the Colonial Office, [39] and take measures without delay to obtain cession in sovereignty to the British Crown of such parts of New Zealand as are, or might be, occupied by British subjects, and that officers selected by the Queen, {58} and not by the Company, would be appointed to administer the executive Government within such territory. "Under these circumstances," the Colonial Secretary concluded, "I must decline to furnish the Company with the introductory letters for which they apply."

This intimation was given to the Company in the dying days of April 1839, and by the 13th of June Lords Normanby and Palmerston had, after consultation with the Law Officers of the Crown, agreed not only that the moment was ripe for official action, but that the proper course to take was to send to New Zealand an officer with Consular powers, whose first duty would be to secure the cession in sovereignty from the chiefs. The territory so ceded was then to be annexed to New South Wales, the Consul to be raised to the rank of Lieut.-Governor, acting under the Governor of the Mother colony, but invested with sufficient authority to preserve law and order in the country. His salary of £500 per annum was at first to be a charge upon the revenues of New South Wales, to be refunded so soon as the necessary arrangements could be made for the collection of taxation in New Zealand.

On July 19 these proposals were confirmed by the Lords of the Treasury, whereupon Lord Palmerston penned the letter to Captain Hobson of which the opening paragraph of the previous chapter is a brief extract.

In the meantime a clipper brig of 400 tons, named the Tory had been quietly fitted out by the Company for a dash to New Zealand. She was armed with eight big guns, and as a precaution against a hostile reception, small arms were provided for all the members of the crew, a specially selected body of men. Under the command of Captain Chaffers, who had been round the world with Fitzroy in the Beagle , she left Plymouth Sound on May 12 (1839) and proving a smart sailer, crossed the equator twenty-six days out, the high land of the South Island being sighted in the vicinity of Cape Farewell on August 16. This pioneer ship of the Company's fleet carried in her cabin their official representative in the person of Colonel William Wakefield, and in her hold a full complement {59} of pots, pipes, and Jews' harps, which that gentleman proposed to exchange as full value for the land he hoped to acquire by barter from the natives.

The sailing of the Tory was the New Zealand Company's challenge to the Government, and in any estimate of its subsequent policy this precipitate event must be accounted an important factor in endowing the Colonial Office with a vital force which had hitherto been sadly lacking.

CHAPTER III
FINDING A WAY

The favour of Ministerial selection for the onerous task of bringing New Zealand within the realms of Britain fell upon Captain Hobson, because his record in the Navy had justified the opinion expressed of him by Sir Richard Bourke, that he was an experienced and judicious officer. Moreover, his visit to the country in the Rattlesnake had given him a local knowledge of which few men of eminence and character were at that time possessed. There is no reason to suppose that the appointment was in any way a party one, and except that the new Consul was the victim of indifferent health, it was probably the best that could have been made at the time, its greatest justification being the complete success which attended his mission up to the time of his early decease. [40] Captain Hobson left England in the H.M.S. Druid commanded by Lord John Churchill. He went out fortified for his task by a series of instructions which left little doubt that if Ministers had {61} been slow to move, they had at least endeavoured to take a statesman-like view of the position when circumstances compelled them to act, the breadth of which can be best understood from the instructions themselves. After adverting to the social conditions existing in New Zealand, with which Captain Hobson was perfectly cognisant and which Lord Normanby assured him the Government had watched with attention and solicitude, the Colonial Secretary proceeded to explain the attitude which the Government had adopted in regard to this branch of Imperial policy.

After briefly describing the rules to be observed by Captain Hobson in conducting his correspondence with his immediate superior, Governor Gipps, and the Colonial Office, Lord Normanby concluded his instructions as follows:

The publication of this document brought down upon the head of the Minister a storm of criticism from the {70} committee of the New Zealand Company, who attacked with especial bitterness that portion of the instructions wherein Lord Normanby made it especially clear that Britain claimed no right of sovereignty in or over New Zealand. In the previous year, when the Company was promoting its Bill in the House of Commons, and when the organisation was less mercenary in its nature, the promoters had taken a modified view of this question of sovereignty, and were prepared to concede something to the natives which, as a Company, they were now eager to deny.

This earlier attitude was admirably expressed by the Rev. Dr. Hinds, who in discussing the matter before the Committee of the House of Lords, boldly stated that he believed civilised people had a right—an inherent right—over countries that have not been subject to civilisation, whether those countries were uninhabited or partially inhabited by savages who were never likely themselves to cultivate the country. "Here," he said, "is a country considered to be populous for a savage country. According to an estimate made by a respectable Missionary of the C.M.S. the inhabitants of the Northern Island amount to about 105,000. This Northern Island is probably about the size of England, and this its population of 105,000 stated to be decreasing in number without the least chance of their becoming cultivators or sovereigns of the soil. I hold it not to be an infringement of any natural rights to claim the sovereignty of the Island, and this is a claim which until lately would never have been questioned. There has been often a question as to the mode in which sovereign rights over savage countries should be distributed among civilised people, but it has been a question between one civilised country and another. Formerly the Pope used to claim the disposal of sovereignty. Subsequently it has been more conveniently settled by allowing the priority of claim to the first discoverers—a course as convenient probably as can be advised. Within the last few years, however, the justice of this claim has been questioned, and it has been asserted that savage as {71} well as civilised men have sovereign rights. I do not, myself, think they have; but it has been the wish of the Association not to offend any scruples, and therefore they have carefully in this Bill waived the question, and allowed the claim to a sovereign right of some kind to exist in those savages. I say a sovereign right of some kind, because it is clear in the instance just mentioned, the giving the flag to the Bay of Islands, that the very assumption on the part of Great Britain of a right to give that flag supposes the New Zealanders not to be altogether a sovereign power. Many probably who may be willing to cede to them the right of sovereignty as far as concerns themselves would not go to such lengths as to say that Great Britain should not cede the sovereignty as regards any right which may be put in by other nations; and I do not know on what principle we should draw a distinction, and say how much or how little of this right of sovereignty we should claim. The French have been attracted by the flax: suppose they were to say 'If you relinquish your rights of sovereignty we will put in our claim, we stand next,' or the Dutch may say so. I do not know which visited the country first, but I cannot see on what principle we could interfere with the French or Dutch unless we contend that we had some disposal over the sovereignty of the Islands. The question, however, has been waived in the Bill; we suppose the New Zealanders and not Great Britain to be in possession of the right of sovereignty, and we propose accordingly that a purchase should be made of the sovereignty as well as the fee simple of the land. We have some precedents for this. I do not know whether it is of consequence to bring forward precedents, but even at a late period a purchase of this kind has been made; Sir Stafford Canning took possession in 1815 of Singapore; it was at that time in possession of the Malays, the subjects of the Sultan of Jahore. In 1825 he found, I think, some inconvenience arising from the Sultan's claims, and the English bought the Domain of the Sultan for a sum of money, and so clear was the understanding about it, that the Sultan made some reservations; some exceptional {72} laws, as they are called in this Bill, were made. There was a clause that the Sultan's slaves should not be emancipated, and certain lands were reserved and became entailed property and inalienable. When Penn purchased Pennsylvania he no doubt understood he purchased the sovereignty as well as the fee simple of the land, for I can conceive no one mad enough to found a colony in the midst of barbarians without securing the colonists against their interference as sovereigns. Vattel certainly speaks of Penn's treaty as if he understood him to have purchased the sovereign rights as well as the fee simple. These are precedents which may not be considered as carrying any great authority. The question has not been very much discussed; it has been taken for granted, and I think with reason, that the savage is in a state of pupilage, and must be treated as we treat children. The only principle which it is important to maintain is this: If you go into a country at all inhabited by savages and take possession of their land and become sovereigns of it, you infringe their rights if you do not consider their benefit as well as your own. If you were treating with a child you would not infringe the rights of that child simply by acting and deciding for him, but you would infringe his rights if you acted and decided for your benefit and not his. So with respect to savages; they are compared with civilised men, like children. They are of themselves incapable of acquiring the arts and habits of civilised life; unless some interference that amongst civilised men would be considered unjust, takes place, they never can, by themselves, rise to that higher condition. The injustice to be deprecated is that of seeking our own benefit solely and not theirs; and with respect to the New Zealanders our purchase of the sovereignty of their country ought not to be represented as being the same kind of bargain as if the French, for instance, were bargained with to cede the sovereignty over any portion of their territory. When the French ceded their sovereign rights over Martinique, Guadaloupe, and the Mauritius, they strictly ceded all their sovereign rights; but in the present instance what is meant by the {73} cession of sovereignty amounts to this—that we purchase the right to participate in the sovereignty with them; we do not wish to exclude them, but pay them a price to partake in the sovereignty with them. Of course, in the first instance, the civilised man will be the only sovereign, but that is because he only will be fit and capable of exercising sovereign rights. As the savage advances in civilisation he will come in for his share; and I see no reason, as soon as the New Zealander is capable of it, against his being Chief Justice, Governor, or Bishop, or holding any other office. It is not therefore that we take the sovereignty from him; we purchase the right of participating with him in the sovereignty, and by so doing we enable him to become Sovereign of the country, which he is not at present."

In the meantime the Government had unmistakably demonstrated their intention not to recognise the Company, and with all hope of political patronage gone the Company saw no reason why they should spare the Government. There was now in their opinion no possible room to doubt that the sovereignty over New Zealand rested in Great Britain, and that the Colonial Department was betraying a national trust in conceding any rights to the natives, thereby opening the door to foreign intervention. They first showered their protests against this supposed surrender of a national asset upon the Colonial Office, but when they discovered themselves ignored in this direction they turned with renewed complaint to the Foreign Minister. "We are assured," they wrote to him, on November 7, 1839, "that this question of the sovereignty of New Zealand engages the attention of various commercial bodies and a large portion of the public press in France; that the sovereignty in England is denied; that the French Government is urged either to join in that denial, by protesting against the colonisation of the Islands by England, or to claim an equal right with England to plant settlements there. We are not without fear that some such protest or claim should be admitted by your Lordship's Department, as it appears to have been admitted by the Colonial Department. It appears that the agitation of {74} this question in France has been produced by the publication of a Minute of the British Treasury made at the instance of the Colonial Department (July 19), and also of an extract of certain instructions recently given by that Department to Captain Hobson,—two documents by which the Crown of England seems to repudiate the sovereignty of New Zealand. The apparent repudiation consists of an acknowledgment of sovereignty in the native chiefs from whom Captain Hobson is instructed to procure, if possible, a cession to Her Majesty. It is this acknowledgment, according to all our information, which has given occasion to the pretensions now urged in France. [43] That which England, it is contended, instructs her officer to procure, if possible, she admits she does not possess, and she thereby admits the right of France either to obtain sovereign jurisdiction in New Zealand, by the means which Captain Hobson is instructed to employ, or if France should prefer that course, to sustain the independent sovereignty of the natives. The argument appears conclusive. It becomes very important, therefore, if it is of great importance to England, to prevent the establishment of a French power in the midst of the English colonies of Australasia that your Lordship should be made aware of the acts of the British Crown which lead to a conclusion directly at variance from that which may be drawn from the said minute and instructions."

The Company's nominal [44] advocate on this occasion was their Deputy-Governor, Mr. Somes, who apparently possessed a faculty for stating strongly a weak case; and in the course of this letter to Lord Palmerston he taxed his ability to show that the right of sovereignty in New Zealand had vested in Britain since the discovery of the Islands by Captain Cook; that it had been confirmed by numerous diplomatic acts in all the years since then, and could not now be abandoned on the mere whim of a Minister.

{75} During the course of his trenchant review of the position Mr. Somes declared that the sovereignty of England in New Zealand had been over and over again asserted and exercised. Whether it could be subsequently abandoned by such documents as the Treasury Minute and instructions was a question in constitutional and international law on which his Lordship was of course far more competent to judge than they could pretend to be. But that there was recently a British sovereignty either to maintain or to abandon the Company had no sort of doubt. He pointed out that in the year 1769, Captain Cook, acting under a commission from the Crown of England, took possession of the Islands of New Zealand, in the name of His Majesty, George III. This act was performed in the most formal manner, and was published to the world. "We are not aware," he wrote, "that it was ever questioned by any foreign power. It constituted sovereignty by possession. The Law of Nations, we believe, recognises no other mode of assuming dominion in a country, of which the inhabitants are so barbarous as to be ignorant of the meaning of the word sovereignty, and therefore incapable of ceding sovereign rights. This was the case with the New Zealanders, from whom it would have been impossible for Captain Cook to have obtained, except in mockery of truth, a British sovereignty by cession. Sovereignty by possession is that which the British Crown maintains in a large portion of its foreign dependencies. In this year, 1787, a Royal Commission was granted to Captain Philip appointing him in pursuance of the British sovereignty in possession, which had previously been established by Captain Cook, "Captain-General and Governor-in-Chief in and over the territory of New South Wales and its dependencies." This territory was described in the commission as "Extending from Cape York, latitude 11° 37´ south, to the South Cape, latitude 43° 30´ south, and inland to the westward as far as 135° east longitude, comprehending all the Islands adjacent in the Pacific Ocean, within the latitudes of the above-named capes." This is the Act by which the {76} Crown first assumed the Government of New South Wales and the other barbarous lands of which Captain Cook had taken possession in the name of the King. The Islands of New Zealand are as clearly within the prescribed limits as Norfolk Island, Van Dieman's Land, or even New South Wales itself. On November 9, 1814, the Governor and Captain-General of New South Wales and its dependencies, acting on the representation of the Crown, by public proclamation, declared New Zealand to be a Dependency of his Government, and by regular commission of dedimus potestatem appointed Justices of the Peace to act there. Some of the Magistrates so appointed were aboriginal natives of the country. It is plain that they were treated as British subjects. In 1819 again Governor Macquarrie appointed an English Magistrate in New Zealand. This Justice of the Peace exercised the authority so bestowed on him by apprehending offenders and sending them for trial to the seat of Government. In 1823 a British Act of Parliament (4 George IV. cap. 96) extended the jurisdiction of the Courts of New South Wales to New Zealand by name, and also to other places in the Southern Pacific not within the latitudes previously mentioned. Under this authority several persons, we understand, have been tried in New South Wales for offences committed in New Zealand, and we have been informed that property in New Zealand, as well real as personal, has been made the subject of the Bankruptcy law of New South Wales. The authority of the British Crown was frequently enforced by means of ships of war, and although it cannot be asserted that regular government was ever established in New Zealand, far more than was essential to creating British dependency seems to have been performed. The Islands thus continued in a state of dependency until the year 1831, when a series of proceedings commenced by which the sovereignty of Britain may perhaps have been forfeited. An officer was appointed to reside at the Bay of Islands. He presented to certain native chiefs, as from the Crown of England, what was termed "a national flag." This might have been considered a transfer to {77} these chiefs of the British sovereignty, if the Resident had not been 'accredited' to certain officers of the Church Missionary Society, then settled at the Bay of Islands. By the latter act the sovereignty of the Islands would almost seem to have been transferred to these Missionaries. But in October 1835 this diplomatic agent assembled certain native chiefs residing in the Northern part of the North Island, called them a "Confederation," and sanctioned a declaration of Native Independence, to which their names were appended. This last act appears, by all accounts, to have been a mere mockery of its ostensible purport. The tribes of New Zealand are so entirely distinct, so utterly destitute of nationality, as to have no name for the whole country which they inhabit. A national name was invented for this occasion—the words Na Terrene which express the native pronunciation of the English words "New Zealand." The only parties besides to the so-called Declaration of Independence were the chiefs of a few tribes then inhabiting a small part of one of the Islands. These even, inasmuch as their language contains no words to express nationality, sovereignty, or independence, must have been unconscious instruments of the Resident, or of the Missionaries, to whom that officer was accredited, as if they (the Missionaries) had been the sovereigns of New Zealand. If indeed the sovereignty was delegated to the Missionaries they could, being British subjects, have held it as trustees for the Crown. If the sovereignty of the natives was then acknowledged it extended only to a small part of one Island inhabited by the parties to the Declaration. And in either case this mockery of an independent sovereign nationality has been set at naught by the power in whose name it took place, inasmuch as the jurisdiction of British law, and the armed authority of British warships have been exercised since in the same way as before the Bay of Islands' Declaration of Independence.

"I beg leave," continued Mr. Somes, "to assure your Lordship in the name of my colleagues that we intrude on you with the greatest reluctance. But we have felt that {78} it was incumbent on us especially during the recess of Parliament to convey to your Lordship the information that we have received as to the state of feeling in France on this subject, so that if unhappily the British sovereignty of New Zealand were lost it should be through no fault of ours. We fear that the measures recently adopted by the Colonial Department may, unless promptly remedied, lead to very disastrous results. We are deeply concerned for the fate of a large and most respectable body of our countrymen, who have emigrated under our auspices. Connected as several of us are with the commercial and shipping interests of the country, and knowing therefore how much importance they attach to the British possession of New Zealand, as they have frequently stated in memorials to the Treasury and Board of Trade, we have felt that it was a duty to express to your Lordship the apprehensions which we entertain. We have been told that a French frigate recently sailed for the South Seas with sealed orders, and some of the French newspapers report, with expressions of satisfaction, that the Government of the United States of America has appointed a Consul in New Zealand, to be accredited to 'the Confederation of chiefs,' and has sent him to his destination in a man-of-war, which is to remain under his orders. These statements may be untrue, or only premature, but in either case Captain Hobson's instructions which attach two conditions, either or both of which may be unattainable, to the exercise of any authority by him in New Zealand, namely possession of the land by British subjects, and cession by the natives of the sovereignty over such land, are calculated to invite foreign pretensions which otherwise would never have been imagined."

This protest was taken most philosophically by Lord Palmerston, who merely passed it on to Lord John Russell, who had now succeeded Lord Normanby at the Colonial Office. Lord John treated it even more philosophically, for it was not for several months (March 11, 1840) that he deigned to reply, and then only after he had been reminded of the omission by the Foreign Office. In the {79} meantime all need of further argument had been obviated by the success of Captain Hobson's mission, and so the Colonial Secretary wasted no words in rhetoric, but forwarded to his colleague a memorandum couched in concise official terms, setting out in sequence the events which in the light of International law would be used as evidence against any claim to British sovereignty, and which contained all the information it appeared necessary to afford in answer to the communication from Mr. Somes.

It is easy to understand the indignation of the Company on learning of the Minister's repudiation of British sovereignty in New Zealand, because it sapped the very foundations of their scheme, seeing that it was illegal for British subjects to establish colonies outside the limits of the Empire without the sanction of the Crown. They had always presupposed the existence of a British sovereignty over New Zealand and upon that supposition all their calculations had been built. Now the basis of their building had gone, they adroitly pretended that what grieved them was not so much their loss as that the repudiation of British authority was a national calamity, and that what was the neglect of Britain became the opportunity of France.

The position taken up by the Government was, however, perfectly sound, and was the only logical one they could occupy. Whether previous Governments had acted wisely and well in declining to embrace the opportunity to colonise which Cook's discovery had opened to them, may be a debatable question, but the fact at this date was that the golden opportunity had passed, and that by subsequent diplomatic acts, deliberately taken, the independence of the Maori people had been clearly and emphatically acknowledged. "The answers," wrote Lord John Russell to Lord Palmerston, "which would be made by foreign nations to such a claim as that put forward by Mr. Somes are two. First that the British Statute Book has, in the present century, in three distinct enactments, declared that New Zealand is not a part of the British {80} Dominions, and secondly that King William IV. made the most public, solemn, and authentic declaration which it was possible to make that New Zealand was a substantive and independent state. The resolution by the King, Lords, and Commons of Great Britain of the fact that New Zealand is not a part of the British Dominions will be found in the Statutes 57 George III. cap. 53, 4 George IV. cap. 96, sec. 3, and 9 George IV. cap. 83, sec. 4."

The Act of 57 George III. cap. 53 is entitled "An Act for the more effectual punishment of murders and manslaughters committed in places not within His Majesty's dominions." It sets forth—"Whereas grievous murders and manslaughters have been committed at the settlement of the Bay of Honduras in South America, etc.," "and the like offences have also been committed in the South Pacific Ocean, as well on the high seas as on land, in the Islands of New Zealand and Otaheite, and in other Islands, countries, and places not within His Majesty's dominions, by the Masters and crews of British ships, and other persons who have for the most part deserted from or left their ships, and have continued to live and reside amongst the inhabitants of those Islands, etc.," and the Act then provides for the punishment of offences so committed "in the said Islands of New Zealand and Otaheite, or within any other Islands, countries, or places, not within His Majesty's dominions, nor subject to any other European State or power," etc.

The Statute 4 George IV. cap. 96, sec. 3 enacts that the Supreme Courts in the colonies of New South Wales and Van Dieman's Land may try offences "committed in the islands of New Zealand, Otaheite, or any other Island, country, or place, situate in the Indian or Pacific Oceans, and not subject to His Majesty or to any European State," if such offences were committed by British subjects.

The Statute 9 George IV. cap. 83, sec. 4 repeats that enactment in the same words, adding only that the punishment of the offence shall be the same as if the crime had been committed in England.

The recognition by King William IV. of New Zealand {81} as a substantive and independent state is shown in the following narrative:

"On November 16 a letter to King William IV. from thirteen of the chiefs of New Zealand was transmitted to Lord Goderich, praying the protection of the British Crown against the neighbouring tribes and against British subjects residing in the Islands. On June 14, 1832, Lord Ripon despatched Mr. Busby as British Resident, partly to protect British Commerce, and partly to repress the outrages of British subjects on the natives. His Lordship sent with Mr. Busby a letter to the chiefs, in which the King was made to address them as an independent people. Their support was requested for Mr. Busby, and they were reminded of the benefits which they would derive from 'the friendship and alliance with Great Britain.'

"In the month of June 1832 a Bill was brought into the House of Commons for the prevention of crimes committed by His Majesty's subjects 'in New Zealand, and in other Islands in the Pacific not being within His Majesty's dominions.' The Bill was rejected because Parliament could not lawfully legislate for a foreign country.

"On April 13, 1833, the Governor of New South Wales, in obedience to Lord Ripon's (formerly Lord Goderich) orders, addressed instructions to Mr. Busby, in which New Zealand was expressly mentioned as a foreign country, and Mr. Busby himself as being accredited to the chiefs. That document throughout assumes the independence of New Zealand.

"On April 29, 1834, General Bourke transmitted to Lord Stanley a proposal from Mr. Busby for establishing a national flag for the tribes of New Zealand, 'in their collective capacity,' and advised that ships built in the Island and registered by the chiefs should have their registers respected in their intercourse with British possessions. Sir R. Bourke reported that he had sent three patterns of flags, one of which had been selected by the chiefs; that the chiefs had accordingly assembled with the commanders of the British and three American ships, to {82} witness the inauguration of the flag, at which the officers of H.M.S. Alligator were also present. The flag had been declared to be 'the national flag' of New Zealand, and being hoisted, was saluted with twenty-one guns by the Alligator , a British ship-of-war.

"On November 21, 1834, a despatch was addressed to Sir Richard Bourke by Lord Aberdeen, approving of all these proceedings in the name of the King, and sending a copy of a letter from the Admiralty, stating that they had instructed their officers to give effect to the New Zealand Registers, and to acknowledge and respect the national flag of New Zealand.

"If these solemn Acts [45] of Parliament, and of the King of Great Britain, are not enough to show that the pretension made on behalf of Her Majesty by this Company is unfounded, it might still further be repelled by a minute narrative of all the relations between New Zealand and the adjacent British colonies. It is presumed, however, that after the preceding statement it would be superfluous to accumulate arguments of that nature and the rather because they could not be intelligibly stated without entering into long and tedious details."

While this discussion was proceeding in England, Captain Hobson was happily on his way to Sydney, with his instructions rendered still more explicit [46] by further explanation from Lord Normanby, thus eliminating, as far as human forethought could provide, the possibility of misunderstanding as to the extent of his authority, or to the sincerity of the broad humanitarian principles which were to govern his conduct towards the natives.

Reaching Sydney late in December 1839 [47] he immediately {83} himself to Sir George Gipps, who entered into the spirit of the enterprise with his characteristic enthusiasm for the service of the Empire. During their official negotiations the final arrangements were completed agreeably to the intentions of the Colonial Secretary. Captain Hobson was placed in the possession of the Proclamation under the Great Seal, by which the Government of New South Wales was extended to any territory which might be acquired as the result of Hobson's mission "in those Islands commonly called New Zealand." Simultaneously he was presented with his own Commission as Lieutenant-Governor of any such territory, and with the proclamations he was to issue in New Zealand, as circumstances rendered necessary or advisable. He was also placed in possession of further instructions from Sir George Gipps, who laid special stress upon the financial relations existing between the two colonies. "My responsibility for the due expenditure of the public money of this colony," he said, "is one of which I cannot divest myself, and where responsibility is there also must be control. The extent to which establishments are to be erected in New Zealand, the salaries to be paid to public officers, and the expenditure of public money on public works, must for the present be fixed by myself on estimates and reports or proposals to be forwarded by you." Close enquiry was also made into the legal question which Captain Hobson had raised with Lord Normanby when seeking fuller information regarding his powers of administration. Hobson desired the power to appoint and suspend Magistrates; to pardon offences and remit sentences, and to exercise original control, which the insular position of New Zealand seemed to demand, but which was seldom conferred upon those holding the subordinate office of Lieutenant-Governor. To this request Lord Normanby had replied that all the {84} powers necessary for the proper conduct of his office would be conferred upon him by acts of the Governor and Legislature of New South Wales. Hobson was unconvinced, but deferentially refrained from pitting his lay opinion against that which he naturally assumed was based upon the wider knowledge possessed by the Department. Sir George Gipps had no such reservations, and at once declared his inability to delegate to another powers which had only been delegated to him.

In communicating his final instructions to the Lieutenant-Governor, Gipps wrote: "With respect to certain powers or prerogations of the Crown, with which Governors of colonies are usually entrusted, it is necessary for me to point out to you that though I am myself authorised by Her Majesty to exercise them in her name, and on her behalf, I have no power to delegate the exercise of them to another. From this, which is an inherent maxim in law, it will, I believe follow:

"(1) That you will not have power to pardon offences, or to remit sentences pronounced on offenders in due course of law, though you may stay the execution of the law.

"(2) That you will not be authorised to suspend officers holding appointments direct from Her Majesty, though you may recommend to me the suspension of them. With respect to persons holding appointments from me you will have the power of suspension, and over such as hold appointments from yourself a power of dismissal unless they may have been previously recommended by you for confirmation in the service, in which case your power will extend only to suspension.

"(3) You will not have power of appointing Magistrates, though of course you will recommend to me such persons as you may think fit to be appointed.

"(4) In the event of the enrolment of a militia, the same will hold good respecting the appointment of officers."

A staff of officials for the due conduct of the civil business of the country was also appointed, [48] even to a {85} small force of policemen, and with an almost prophetic punctiliousness for detail, a Commission was prepared for his successor in the event of Hobson's death, so that there might be no break in the continuity of official control.

With these preliminaries settled, Governor Gipps, on January 14, issued three proclamations: (1) extending the boundaries of New South Wales to New Zealand; (2) proclaiming Captain Hobson Lieutenant-Governor of those Islands, and "calling upon all British subjects to the aiding and assisting of the said William Hobson in the exercise of his said duty"; (3) to put an end to the speculation in New Zealand lands then being openly carried on in Sydney.

The Herald , a frigate of twenty guns, commanded by Captain Nias, lay in Spring Cove, waiting to convey the Queen's representative and his party to New Zealand. [49] At six o'clock on the evening of Saturday the 18th the staff appointed to accompany the Consul joined the vessel, and at a somewhat later hour Captain Hobson himself went on board. Under the influence of a fine N.E. wind, a full moon shining down upon the harbour, the Herald left Port Jackson and headed for the Bay of Islands. Fine weather was experienced in the Tasman Sea and on Sunday the 26th, while a gentle breeze filled the sails and soft zephyrs whispered through the cordage, Captain Nias conducted Divine service on the gun deck, which was attended by the whole ship's company, and "a more beautiful and impressive scene I never witnessed," is the description of the ceremony given by Mr. Felton Mathew, who was coming with Hobson as the Surveyor-General to the new colony. At daylight on the following morning the Three Kings were sighted, and shortly after the mainland {86} came into view. Two days were spent in beating up the coast, and again at daylight on the 29th, the Herald entered the Bay of Islands, drifting with the tide, there being not a breath of wind. All the morning was spent in this tedious process, and it was not till eleven o'clock that the anchor was cast in front of the little town of Kororareka. [50] Across the Bay the Union Jack was flying in front of Mr. Busby's residence, but what most attracted the attention and excited the interest of those on board was the French tricolour floating from a staff upon the hill-side above the township. "What this may indicate," wrote Mr. Mathew in his diary, "we have yet to learn—whether it is merely a French Missionary establishment or whether a French frigate is at anchor in the Bay and has anticipated us, we shall soon discover."

CHAPTER IV
THE MAORI MAGNA CHARTA

So soon as the Herald was come to anchor she was boarded by Mr. Busby and three of the resident Missionaries, from whom Captain Hobson learned that his apprehensions regarding French occupancy were groundless, the tricolour on the hill indicating no more than the whereabouts of Bishop Pompallier's church. One of the visitors who had come thus early to pay his respects to the new Governor was Mr. Colenso, with whom Captain Hobson entered into an arrangement for the printing, at the press of the Church Missionary Society, of circular letters inviting the chiefs to meet him at Mr. Busby's residence at Waitangi on the following Wednesday, for the purpose of discussing the proposals of the British Government; and to all the British residents requesting their presence at the Mission church at Kororareka on the following day, there to hear Her Majesty's Commission under the Great Seal, extending the limits of the colony of New South Wales, and also Her Majesty's Commission under the Royal signet and Sign manual, appointing Captain Hobson as Lieutenant-Governor over such part of that colony as might be acquired in Sovereignty in New Zealand. These invitations were in circulation on the following morning, messengers being despatched to inform the chiefs, while the European residents perused the notice issued to them with marked interest and mixed feelings. During the afternoon Captain Hobson, accompanied by Captain Nias and his officers, landed on the Kororareka beach, and walking to the church there read his Letters Patent in the presence {88} of the assembled people, forty of whom so far signified their approval of the proceedings as to subscribe their names to the document. The proclamations framed by Sir George Gipps and his Executive were also read, the first announcing that Her Majesty's authority had been asserted over British subjects in New Zealand; the second, which was by no means so popular, acquainting the public of the fact that Her Majesty did not deem it expedient to acknowledge as valid any titles to land in New Zealand which were not derived from, or confirmed by, a grant from the Crown.

These ceremonies concluded, the intervening days were spent in completing arrangements for the fateful gathering on the 5th, not the least arduous duty being the drafting of the treaty, upon the acceptance or rejection of which everything would depend. The exigencies of the position demanded that the greatest care should be exercised in framing the terms of the document, [51] because while it was desired that the proposal of the Crown should be stated with the utmost frankness, the least looseness of expression might imperil the whole project by raising ungrounded alarm in the minds of the natives.

To guard against this it was necessary that those concerned in the preparation of the treaty should have not only a full knowledge of the Crown's intentions, but also an intimate acquaintance with the subtleties of the native character. This latter qualification neither Captain Hobson nor the members of his staff possessed even in a remote degree. To add to their difficulties, Captain Hobson began now to experience the first symptoms of that illness which in less than three years proved fatal to him. He became indisposed, and was unable to leave the Herald . In the seclusion of his cabin, however, he devoted himself to an effort to reduce to concrete terms the obligations in which the Crown was prepared to involve itself, {89} and the reciprocating advantages it would require from the natives. In this he achieved but meagre success, and conscious of failure he despatched his chief clerk, Mr. George Cooper, to Mr. Busby, giving him his rough notes together with a request that the erstwhile Resident might favour him with his opinion as to their suitability as the basis of the treaty.

Mr. Busby had no hesitation in saying that he regarded them as quite unsuitable, but offered to prepare the draft treaty for Captain Hobson's consideration, if such a service would be acceptable. To this Mr. Cooper replied that nothing would afford His Excellency greater pleasure, as he recognised that Mr. Busby's seven years of official training and native experience had furnished him with many qualifications for the task. The result was entirely satisfactory. The draft prepared by Mr. Busby was adopted by Captain Hobson without alteration beyond the transposition of certain paragraphs, which did not in any degree affect the spirit or the sense of what has long been regarded as the Maori Magna Charta.

A pleasant interlude was afforded by the presentation to Captain Hobson of an Address of Welcome by forty-five of the settlers, in which they expressed their gratification at his safe arrival, and at the early prospect of the establishment of British law and authority in the Islands, which had long been the desire nearest to their hearts. They expressed equal gratification at the appointment of a gentleman as Lieutenant-Governor so distinguished for courage, firmness, justice, and humanity as Captain Hobson, presaging as it did a bright era of prosperity for the colony. They expressed their readiness to await with patience the unfolding of a scheme of government in which the best interests of all were involved, and promised not only to continue the service of loyal subjects of the Queen, but to aid with their best exertions her representative in establishing order, law, and security for life and property in what they were pleased to designate "this improving and important colony."

As was becoming of him, Captain Hobson replied in {90} most gracious terms, which seemed to indicate the existence of a useful harmony between the new Governor and the more decently-disposed settlers.

Not so the speculative element, who were deeply chagrined at the unexpected turn affairs had taken. To these law-breakers the arrival of Hobson meant the complete suspension of their future operations, and what was equally distasteful, a revision of their past transactions. Their hope, therefore, lay in preventing the consummation of the official plan, and before the Lieutenant-Governor had been at the Bay twelve hours, the lawless and the land-grabber were busy poisoning the native mind against the Governor's proposal, telling them with many dark insinuations and bitter taunts, that now they were to be made taurekareka —the "slaves" of the Queen.

These mischievous suggestions naturally had a disquieting influence upon the minds of many of the chiefs, who had not as yet gathered the full purport of the impending change, and whose haughty spirit rebelled against the prospect of any loss in tribal dignity. Fortunately they were able to appeal with confidence to the Missionaries, and to the credit of that body it must be said that they were as loyal to their country as they had already proved themselves faithful to their church. Mr. Henry Williams, the head of the Church Missionary Society's group of Missionaries, than whom no man wielded greater influence with the natives at this period, was not at the Bay of Islands when the Herald arrived. He had just returned to the Waimate Mission station from the Manawatu, whither he had gone with Tamihana Te Rauparaha, and Matene te Whiwhi, to install the Rev. Octavius Hadfield in his West Coast charge. The hurried decision of the Home Government to forestall the New Zealand Company had been as unknown to him as it was to the other residents of New Zealand, and the first intimation he had that the change he so much desired was near fruition, was a letter from the Bishop of Australia informing him of Captain Hobson's arrival in Sydney, and the rumoured report of his mission. Bishop Broughton earnestly {91} advised the Missionary to assist Captain Hobson to the end that success might crown his efforts. [52]

Closely following upon this came a letter, dated January 30, 1840, from Captain Hobson, inviting Mr. Williams to meet him at his earliest convenience, and although it was late at night when the messenger arrived, he made immediate preparations to comply with the request. Leaving home early in the morning the energetic Missionary boarded the Herald that afternoon, and congratulated the newly-arrived Governor upon his coming, which indeed was a pleasant surprise. He assured him of the hearty support of the Missionaries in the purpose of establishing Her Majesty's authority in the Islands, and of his own personal aid to any extent that it might be of service to him.

Of this offer Captain Hobson availed himself a few days later, when at 4 P.M. on February 4 he brought to him the draft of the treaty which had been prepared for submission to the chiefs at Waitangi on the morrow, and asked that he might be good enough to translate it into the native language. In this Mr. Williams had the assistance of his son Edward, who was then regarded as the scholar par excellence in the Nga-Puhi dialect, the purest of all the dialects of the Maori tongue.

The task of translation was necessarily a difficult one, it being essential that there should be a complete avoidance of all expressions of the English for which there was no equivalent in Maori, and yet permitting no alterations which would destroy the original spirit and tenor of the treaty. Upon its completion the work was revised by Mr. Busby, who suggested the elimination of the word huihuinga used by the translators, and the substitution of whakaminenga to more adequately express the idea of the Maori Confederation of Chiefs. With this exception the {92} translation was adopted, and the excellence of its rendering may be judged from the fact that though it has been many times tried by the most accomplished of Maori scholars, the translation has never been shaken, and stands to-day a perfect native reflex of the European mind, conveying in all probability a clearer view to the Maori of what the treaty meant than the English version has done to the average Pakeha .

The scene chosen for the conference with the chiefs was the lawn in front of Mr. Busby's house, [53] which stands upon a gently sloping promontory directly opposite the old town of Kororareka. A large and commodious building, with its French casements, cedar doors, and old-fashioned fittings, it looks out across the Bay from the seclusion of its plantation of imported trees. Down between the house and the sea beach there runs a grassy slope, at the termination of which rises a grove of the beautiful Pohutukawa , which had just shed their blaze of Christmas bloom when Captain Hobson arrived.

To the right flow the tidal waters of the Waitangi River, whose falls four miles beyond its mouth have given their name to the district. [54] Upon the flat which fringes the river bank, the Maoris camped amongst the cabbage palms, and the smoke of their fires might have been seen curling upwards until it was lost in the mists of the morning air. Still farther to the right, and across the river, under the forest-clad hill, nestled the little Mission station of Paihia, where Mr. Colenso was industriously producing copies of the New Testament from his primitive printing-press. Away to the left, in Oihi Bay, stands the cross marking the spot where the first Christian sermon was preached to the Maoris by Samuel Marsden, on Christmas {93} Day of 1814, and between these two points where they had first received the spoken and the written Word, the natives were now asked to decide a question that very largely involved their political salvation.

The morning of the auspicious day (Wednesday, February 5) broke with nature's approving smile upon it. The sun shining brightly in the Heavens lit up the blue waters of the Bay, the slopes of the brown hills, the shadows of the sombre forest in which the birds sang even more blithely than was their wont. Many of the natives had arrived during the previous day, and the face of the harbour was still alive with canoes speeding from all directions to the place of meeting, their crews keeping time with their paddles to the chant of the excited Kai tuki [55] as he stood upon the centre thwart, urging by word, song, and gesture, a more vigorous bending of broad backs and straining of tawny arms in the hope of outstripping his opponents in the race to Waitangi.

On shore a large marquee had been erected upon the grassy lawn in front of Mr. Busby's residence, towards which the bunting of the Herald had been liberally applied, the Union Jack waving gaily over the whole scene until the official proceedings were begun, when it was lowered as an indication that sovereignty had not yet been ceded to the Queen. The ships in the harbour had likewise marked the occasion by displaying all their bright flags and in the brilliant sunlight the scene was one of picturesque animation, not the least interesting feature being the blue-shirted settlers—British and American [56] —promenading on the lawn. As a counterpoise to these there were the groups of natives squatting on the ground, each tribe discussing with ample gesticulation and volubility {94} the treaty from their own immediate point of view. "Beyond the grounds," writes Dr. Bright, "refreshment was vended to the Europeans and many a cork (adopting a poetic phrase) escaped its glassy confines, to let out, not a lake, but Dunbar's foaming stout, or Hodge's paler streams. Nor were more patrician fluids wanting; nor yet ardent cognac; nor the clear burning fluid of St. Giles' dames; nor the spirit of storms, rum, which sailors gulp, ingulphing a torrid zone within no temperate one—all waters of fire to the sober Maori, and which they might be taught are waters that the Devil navigates to reach the island of the soul. Nor was there wanting solid aliment—pork, salt and fresh, in various forms of hams, cold roast, pork pies, and baskets of bread and biscuit all to be transmuted into money. Troops of natives came from all directions to the korero with the rangatira nui , or great gentleman from England. You might inspect a group of brown skins and then a group of white skins, and with but little puzzling discern the same stage-stock of feelings common to both. The Europeans were very numerous but the natives were more so, many who came from a distance carrying guns. What, thought I, if these savages refuse to accede to the treaty, is to hinder them from driving us into the sea, or into their ovens? What greater proof of their sovereignty than their willingness to yield it up to us?"

At 9 o'clock the Lieutenant-Governor, accompanied by Captain Nias, landed at Waitangi, and they were shortly afterwards followed by the officers of the ship, Lieutenant Shortland and the members of the civil staff, and by the Missionaries who were resident in and about the Bay of Islands.

During this time Captain Hobson, Mr. Busby, and Mr. Henry Williams, were engaged in a final discussion upon the treaty and its translation. At 10.30 Bishop Pompallier, the newly-appointed Roman Catholic Bishop of Oceania, dressed in full canonicals [57] and accompanied by {95} one of his priests [58] arrived from Kororareka, and without displaying any hesitation, walked straight to Mr. Busby's house, and entered the room in which the Lieutenant-Governor and his associates were in close conference. The Bishop's manner was so full of confident assurance that the two constables [59] standing on guard at the door were so completely taken by surprise that they failed to challenge the cleric's right to enter. The incident was equally startling in its dramatic suddenness to all the astonished onlookers, and it made a considerable impression upon the natives. In their eyes the pomp and circumstance implied by the ecclesiastical dress meant much, while the air of superior authority with which the proceeding had been carried out conveyed the suggestion to them that this man must indeed be a rangatira . [60]

A buzz of comment arose, the natives whispering amongst themselves, " Ko ia anote tino rangatira! Ko Pikopo [61] anake te hoa mo te Kawana. " "This surely is the chief gentleman. The Bishop only is the companion for the Governor."

The importance of these comments were not lost upon the Church Missionaries, who were deferentially standing outside, and a hurried conference resulted in their deciding to be on equal terms with the Bishop. They accordingly moved towards the house, and had just reached the verandah when an announcement was made that the {96} Lieutenant-Governor intended to hold a levee in order that all who had not already been introduced to him, and desired to have that privilege, might do so by entering at one door and passing out at another. While the introductions were proceeding Bishop Pompallier remained in the room, and as the Missionaries were unable to take their position with him owing to the crush in the narrow passage, they made a virtue of necessity and coldly declined to participate in the ceremony.

The levee over, and it was not a lengthy proceeding, Captain Nias and Mr. Busby, preceded by the representatives of the police, came out of the house followed by the Lieutenant-Governor, and in this order the procession was moving towards the tent when the Bishop and his associate stepped briskly forward and took their positions immediately behind Captain Hobson, thus giving the Protestant Missionaries no option but to follow in his wake. "Brethren," said Mr. Colenso, "this won't do. We must never consent to this position."

"No," replied the Rev. Richard Taylor, "I will never consent to follow Rome," and so saying he and his brethren quietly withdrew from the procession and made their way unofficially towards the marquee.

A raised platform had been erected at the end of the marquee, and on this the Lieutenant-Governor and Captain Nias took their seats. Bishop Pompallier and his priest were shown to chairs on the left, and Mr. Henry Williams was directed to a chair on the Governor's right. The other missionaries, Messrs. King, Kemp, Baker, Clarke, and Colenso [62] were modestly standing behind this group when Lieutenant Shortland, who was acting as Secretary to the Governor and as Master of Ceremonies, plucked Mr. Colenso by the sleeve of his coat and said, "Go over to that end and support your cloth," an intimation which, according to Mr. Colenso, they lost no time in attending to, ranging themselves as best they could behind Mr. Williams.

{97} Meanwhile the crowd had been accumulating, and were rapidly finding positions of vantage within the tent. "The scene," says an eye-witness, [63] "was very interesting and impressive. In the centre of the narrow raised platform were the Governor and Captain of the man-of-war in full uniform, on the Governor's left were Mr. Busby and the Roman Catholic Bishop in canonicals, his massive gold chain and crucifix glistening on his dark purple-coloured habit. On the right of His Excellency were the members of the Church of England Mission, in plain black dresses. The different officers of the Herald together with His Excellency's suite stationed themselves as best they could—some here and there on the platform, and some immediately before it. In front of the platform, in the foreground, were the principal native chiefs of several tribes, some clothed with dog-skin mats made of alternate longitudinal stripes of black and white hair. Others were habited in splendid-looking new woollen cloaks [64] of crimson, blue, brown, and plaid, and indeed of every shade of striking colour such as I had never before seen in New Zealand, while some were dressed in plain European, and some in common native dresses. Near by, in the midst, stood Hakitara, a tall native of the Rarawa tribe, dressed in a very large and handsome silky white Kaitaka mat—a garment of the finest and best kind, and only worn by superior chiefs—fringed with a deep and dark coloured {98} woven border of a lozenge and zigzag pattern, the whole of native and national design and manufacture. The sunlight streaming down from an aperture in the top of the tent on this beautiful white dress, admired by natives and Europeans alike, threw the figure of this chief into very prominent and conspicuous relief, forming a fine contrast to the deep and dark shades of colour around; whilst here and there a hani or taiaha [65] was seen erected adorned with the long flowing white hair of the tails of the New Zealand dog, and crimson cloth and red feathers. In the distance the raven black and glossy locks of the natives, gracefully ornamented with the snow-white and drooping feathers of sea-birds, and of the white crane, forming a striking contrast, added much to the tout ensemble . Around the sides of the tent were the whites, residents, and settlers, by far the greater part being very respectably dressed; and outside of them, against the walls of the tent were flags of different nations, which from the brightness of their colours, gave a charming air of liveliness to the whole, the table being covered by the vivid colours of the Union Jack."

As Captain Hobson rose from his seat the hum of human voices which filled the tent suddenly ceased. Animated conversation gave way to an air of silent expectancy as the Queen's representative began to speak in slow and measured tones. His speech had been carefully prepared, and for the purposes of greater accuracy he relied upon extensive notes.

"Her Majesty Victoria, Queen of Great Britain and Ireland," he said, "wishing to do good to the chiefs and people of New Zealand, and for the welfare of her subjects living amongst you, has sent me to this place as Governor. But as the law of England gives no civil powers to Her Majesty out of her dominions, her efforts to do you good will be futile unless you consent. Her Majesty has commanded me to explain these matters to you, that you may understand them. The people of Great Britain are, thank God! free, and so long as they do not transgress {99} the laws, they can go where they please, and their sovereign has no power to restrain them. You have sold them lands here and encouraged them to come here. Her Majesty, always ready to protect her subjects is also always ready to restrain them. Her Majesty the Queen asks you to sign this treaty, and to give her that power which shall enable her to restrain them. I ask you for this publicly: I do not go from one chief to another. I will give you time to consider the proposal I shall now offer you. What I wish you to do is expressly for your own good, as you will soon see by the treaty. You yourselves have often asked the King of England to extend his protection unto you. Her Majesty now offers you that protection in this treaty. I think it is not necessary to say any more about it. I will therefore read the treaty." [66]

In a clear voice His Excellency then read the treaty in English for the benefit of the European settlers, the terms of the document being as follows:

When he had concluded, he turned to Mr. Henry Williams, and invited him to read to the natives the translation which had been prepared in the Maori language.

"In the midst of profound silence," Mr. Williams wrote in subsequent years, "I read the treaty to all {101} assembled. I told all to listen with care; explaining clause by clause to the chiefs, giving them caution not to be in a hurry, but telling them that we, the Missionaries, fully approved of the treaty, that it was an act of love towards them, on the part of the Queen, who desired to secure to them their property, rights, and privileges. That this treaty was a fortress to them against any foreign power which might desire to take possession of their country, as the French had taken possession of Otiaiti."

MAORI TRANSLATION OF THE TREATY OF WAITANGI
AS PRINTED AT THE PRESS OF THE CHURCH MISSIONARY SOCIETY, PAIHIA

The whole subject was now before the meeting for discussion, and the chiefs were invited to express their views upon it, or to make any enquiries upon points that were still obscure. There being some little hesitancy displayed Mr. Busby rose and, addressing the natives, assured them that the Governor had not come to deprive them of their lands, but rather to secure them in possession of what they had not already sold. He reminded them that he had frequently given them his word that land not properly acquired from them would not be recognised as the property of the person claiming it, but would be returned to the natives, to whom it rightly belonged. He was proceeding to say that this promise the Governor would of a certainty be prepared to carry out, when suddenly he was interrupted by Te Kemara, a chief of the Ngatikawa tribe, who, springing from his place in front of the platform exclaimed:

"Health to thee, O Governor. This is mine to thee, O Governor. I am not pleased towards thee. I will not consent to thy remaining here in this country. If thou stayest as Governor then perhaps Te Kemara will be judged and condemned. Yes, indeed, and more than that—even hung by the neck. No, no, no, I shall never say 'Yes' to your staying. Were all to be on an equality, then perhaps Te Kemara would say, 'Yes.' But for the {104} Governor to be up and Te Kemara down—Governor high up, up up, and Te Kemara down low, small, a worm, a crawler. No, no, no. O Governor! this is mine to thee, O Governor! my land is gone, gone, all gone. The inheritances of my ancestors, fathers, relatives, all gone, stolen, gone with the Missionaries. Yes, they have it all, all, all. That man there, the Busby, and that man there, the Williams, they have my land. The land on which we are now standing this day is mine. This land, even this under my feet, return this to me. O Governor! return me my lands. Say to Williams 'Return to Te Kemara his land.'" With outstretched finger he ran and pointed to the Missionary, "Thou, thou, thou, thou bald-headed man, thou hast got my lands. O Governor! I do not wish thee to stay. You English are not kind to us like other foreigners. You do not give us good things. I say go back, go back, Governor, we do not want thee here in this country. And Te Kemara says to thee, go back, leave to Busby and to Williams to arrange and to settle matters for us natives as heretofore."

Te Kemara was a master in the art of Maori oratory, and he delivered this speech with much simulated anger. Gesture and grimace were alike extravagant even for a native; his eyes rolled in violent oscillations and flashed with demoniacal fire, while his whole body trembled as though convulsed by pent-up rage. He made a brave show of injured innocence, especially when pleading for the return of his lands. And yet it was not serious: it was mere theatrical display; for not long afterwards he gave evidence before the Land Claims Commissioners, and testified to the fair sale of his land. For the present, however, Maori vanity was satisfied—Te Kemara had made a great speech.

The serious impression made by the hostile deliverance of the Ngatikawa chief was somewhat dispelled by the diversion created when Rewa, of Ngaitawake rose, and, addressing His Excellency in the best English he could command said, "How d'ye do, Mr. Governor?" The sally was so unexpected that it immediately created a roar of {105} laughter, in which all present joined. But Rewa soon became more earnest. He had evidently no intention of being frivolous—"This is mine to thee, O Governor!" he impressively said. "Go back. Let the Governor return to his own country. Let my lands be returned to me which have been taken by the Missionaries—by Davis and by Clarke and by who and who besides. I have no lands now—only a name, [67] only a name. Foreigners come, they know Mr. Rewa, but this is all I have left—a name! What do native men want of a Governor? We are not whites or foreigners. This country is ours, but the land is gone. Nevertheless we are the Governor—we the chiefs of this our Fathers' land. I will not say 'Yes' to the Governor's remaining. No, no, no, return. What! this land to become like Port Jackson and all other lands seen by the English. No, no, return. I, Rewa, say to thee, O Governor, go back. Send the man away. Do not sign the paper. If you do you will be reduced to the condition of slaves, and be compelled to break stones on the roads. Your land will be taken from you and your dignity as chiefs will be destroyed."

The next speaker was Moka, a chief of the Patukeha tribe, from Rawhiti, the burden of whose speech was also against the acceptance of the treaty. "Let the Governor return to his own country. Let us remain where we are. Let my lands be returned to me—all of them—those that are gone with Baker. Do not say, 'The lands will be returned to you.' Who will listen to thee, O Governor? Who will obey thee? Where is Clendon? Where is Mair? [68] Gone to buy, buy our land, notwithstanding the 'book' [69] of the Governor."

{106} On this statement being interpreted to him Captain Hobson immediately stopped the speaker, and in the most earnest manner assured the gathering that lands unjustly held would be returned, and that after the date of the Proclamation all land, however purchased, would be the subject of enquiry, and no purchases would be lawful until sanctioned by the Crown.

This scarcely sufficed to satisfy the sceptical Moka, who replied, as he advanced close up to the platform, "That is good, O Governor! that is straight. But stay, let me see. Yes, yes, indeed! Where is Baker? Where is the fellow? Ah, there he is—there standing. Come, return to me my lands?"

Here the orator paused, awaiting a reply. His injunction was addressed to Mr. Baker in the most direct and personal way, so that it could not be evaded. Moka stood leaning against the edge of the platform, looking directly at the Missionary, upon whom all eyes were immediately turned. There was profound silence and the suspense was acute. Mr. Baker did not flinch but quietly replied, " E hoki, koia "; in other words, "We shall see whether they will return."

This retort was comfortless to Moka, who exclaimed, "There, there, that is as I said. No, no, no, all false, all false, alike. The lands will not return to me."

He was in the midst of this lamentation when he was again interrupted. A European came forward, and addressing His Excellency said that the speeches of the natives were not being faithfully interpreted by Mr. Williams, nor were His Excellency's remarks being fully reported to the natives. He said the natives complained of being robbed, and by a gesture indicated that Mr. Williams was the robber. This he followed up by venturing to suggest that a Mr. Johnson, who was present, could do the work with greater satisfaction to both parties. This was the first open declaration of the general discontent which pervaded the settlers, who were angry because of the Proclamation which had so summarily put an end to their speculations, and which they felt was playing them unfair. They had {107} heard that a Charter had been granted to a rich Company in England, while many of them who had worked long in the land were being, as they thought, overreached by the Government. But the honest settler was not more angry than the land-jobbers, the gamblers of the south, who stood on the outskirts of the crowd, "looking like smugglers foiled in a run, or a pack of hounds lashed off their dying prey," and appeared as if they were taking a vengeful pleasure in thwarting the wishes of authority. Many viewed the proceedings with malignant eyes and smouldering mischief in their hearts, remaining silent themselves, yet prompting others to interrupt; hence these accusations of false interpretation, these irrelevant observations about the Missionaries and Mr. Busby taking advantage of their privileged positions to unfairly acquire land.

Captain Hobson, always willing to be affable, and desirous that nothing should give rise to misunderstanding, begged Mr. Johnson, who was a dealer in spirits at Kororareka, to come forward and do him the favour of making everything clear to natives and Europeans alike.

Johnson, however, was not so confident of his attainments as a Maori linguist as his friend was, and in qreply to His Excellency's question whether he fully understood the native language he replied, "Why, I can't say I do, but I know how to speak to them, and know also what they say when they speak to me, and——"

"Then pray tell me, Mr. Johnson, what has not been interpreted?" said Captain Hobson.

To which the modest Johnson replied, "No, Sir, I beg to be excused. The gentlemen of the Mission ought to be able to do it, and can do it very well; only let Mr. Williams speak out loud so that we may hear—that is, those of us in the back part of the tent, and let all that the natives say be interpreted to the Governor. They say a great deal about land and Missionaries which Mr. Williams does not translate to you." [70]

{108} This reflection both upon his capacity as a linguist and his integrity as a man rather nettled the Missionary, who, having obtained the permission of the Governor to vindicate himself, addressed the white people in English, and with his customary directness came at once to the point. He said there had been much talk about the Missionaries owning land and farming and such like; but the Commissioners who were about to sit would examine into the lands held by the Missionaries, and their titles thereto, as strictly as into any other. It was his special wish that this should be done, and he had so far given an earnest of his desire in that direction that he had already applied to His Excellency to have the Missionary lands made the first subject of investigation. "People," he said, "should recollect that were it not for the Missionaries they would not be here this day, nor be in possession of a foot of land in New Zealand. If any one person has a prior claim to land in this country that person must be the Missionary, who has laboured for so many years in this land when others were afraid to show their noses. I have a large family—a family of eleven children—more probably than any one present, and what are they to do when I am taken from them if they are not to have some land? Much has been said about my land, but I believe that when it is seen and known, and shared up between my children, no one will say that I have been over the mark, but on the contrary under. All I shall say at present is, I hope that all who hold land, obtained from the natives, will be able to show as good and honest titles to the same as the Missionaries can do to theirs." [71]

{109} Mr. Busby, who owned the whole of the Peninsula between the Waitangi and Kerikeri Rivers, felt that he, too, was being drawn into the vortex of the speculators by these accusations of native spoliation. He accordingly deemed it due to himself that something should be said in defence of his purchases, and so having obtained the permission of Captain Hobson he rose, and, speaking in English, said with some emphasis, "I deny that the term 'robbed' has been used by the chiefs Te Kemara and Rewa with reference to my purchase of land, as indicated by the white man who spoke, and coupled by him with Mr. Williams, by gestures, though not plainly by words. I never bought any land but what the natives pressed me to buy, for which I always paid them liberally. Allusion has been made to my possessing large tracts of land. I am happy to say I do hold some land; but I did not make any extensive purchases until I was out of office, and then, on my finding that, after having served the Government for fifteen years, not any provision was made, nor was likely to be made for myself and family, I purchased land. I only regret I had not done so at an earlier period, and that to a larger extent. In all my purchases, also, I have reconveyed to the natives both habitations and cultivations, by an inalienable gift, according to the number of persons thereon."

Mr. Busby having delivered his protest against what he considered to be the unwarranted aspersions of the white settler, whose name does not appear to have been recorded, Tamati Pukututu, a chief of the Te Uri-o-te-hawato tribe broke in upon the monotony of the opposition with a speech in favour of the treaty.

"This is mine to thee, O Governor! Sit, Governor, sit, a Governor for us—for me, for all, that our lands may remain with us; that these ' piritoka ' and ' piriawaawa ,' these homeless wanderers who sneak about, sticking to rocks, and to the side of the brooks and gullies may not have it all. Sit, Governor, sit for me, for us. Remain here a father for us. These chiefs say, 'Don't sit,' because they have sold all their possessions and they are filled with {110} foreign property, and they have also no more to sell. But I say, what of that? Sit, Governor, sit. You two stay here, you and Busby—you two, and they also, the Missionaries."

In his advocacy of the Governor's cause Tamati was seconded by Matiu, a chief of the Uri-o-ngongo tribe. "O Governor! sit, stay, remain, you as one with the Missionaries, a Governor for us. Do not go back, but sit here, a Governor, a father for us, that good may increase, may become large to us. This is my word to thee. Do thou sit here, a father for us."

"No, no, go back, go back," cried Kawiti, a turbulent Ngatihine. "What dost thou want here? We native men do not wish thee to stay. We do not want to be tied up and trodden down. We are free. Let the Missionaries remain, but as for thee, return to thine own country. I will not say 'Yes' to thy sitting here. What! to be fired at in our boats and canoes by night! What! to be fired at when quickly paddling our canoes by night! I, even I, Kawiti, must not paddle this way nor paddle that way because the Governor said 'No,' because of the Governor, his soldiers, and his guns. No, no, no, go back, go back, there is no place here for a Governor."

A chief of the Ngatiamake tribe named Wai, now rose and addressed some pertinent enquiries to His Excellency.

"To thee, O Governor! this. Will you remedy the selling, the exchanging, the cheating, the lying, the stealing of the whites? O Governor! yesterday I was cursed by a white man. Is that straight? The white man gives us natives a pound for a pig, but he gives a Pakeha four pounds for such a pig. Is that straight? The white man gives us a shilling for a basket of potatoes, but to a Pakeha he gives four shillings for a basket like that one of ours. Is that straight? No, no, they will not listen to thee, so go back, go back. If they would listen and obey, ah yes, good that, but have they ever listened to Busby? And will they listen to thee, a stranger, a man of yesterday? Sit indeed! what for? Wilt thou make dealing straight?"

{111} At this point there was again some general dissatisfaction amongst the Europeans who apparently were only able to hear imperfectly. A hawker, a pedlar named Jones, from Kororareka, called out to His Excellency that the whites could not follow the interpreter. A young man on the opposite side of the tent confirmed his complaint, and the European who had previously objected to Mr. Williams's methods once more became prominent in support of his confrères. These dissatisfied individuals maintained a running comment across the tent for some moments, which resulted in the Governor again requisitioning the services of Mr. Johnson, who came forward and interpreted the speech of Wai, but not to the complete satisfaction of that dusky orator, who described the Johnsonian effort as "great lies."

This resulted in the restoration of Mr. Williams, whose next subject was Pumuka, a man of influence in the Roroa tribe who was favourable to the treaty: "Stay, remain, Governor; remain for me" was his message. "Hear all of you. I will have this man a foster-father for me. Stay, sit, Governor. Listen to my words, O Governor! Do not go away; remain. Sit, Governor, sit. I wish to have two fathers—thou and Busby and the Missionaries."

"Yes, what else? Stay, sit if not what? Sit, if not how?" were the opening queries of Warerahi, a chief of Ngaitawake, who was popularly known as George King. "Is it not good to be at peace?" he asked. "We will have this man as our Governor. What! turn him away! Say to this man of the Queen, 'Go back?' No, no." [72]

The next speaker was to be Hakiro, who wanted room to deliver himself as became a great chief, and whilst the reclining natives were being moved back to make a clear space in which he could run from one end of the platform to the other a chief from the Waikare, whose name has not been recorded, rose and complained of the unjust dealings of the white people, who had no sense of justice. For a {112} very little thing—a shilling—they wanted a pig as big as himself. What he wanted to know was could the Governor make the Pakeha give a payment as large as the article he bought, but the speech was little noticed in the hustle caused by the clearing of a passage for Hakiro.

Hakiro belonged to the Ngatirehia tribes, being the son of Tareha, but on this occasion he essayed to speak for Titore, [73] though it is highly questionable whether he reflected the sentiments to which that chief would have given utterance had he been still with the living. Titore was justly regarded as one of the noblest of the Nga-Puhi chieftains, and his early death was generally mourned, not only as a personal loss, but as a misfortune to the cause of national unity. Be that as it may, his illustrious representative on this auspicious occasion, swayed by other influences, elected to throw the weight of his great name into the opposite scale to which he would almost certainly have thrown it himself.

"To thee, O Governor! this. Who says sit? Who? Hear me, O Governor! I say, no, no."

As he shouted these questions and answers he ran swiftly backwards and forwards brandishing a taiaha as he ran.

"Sit indeed! Who says sit? Go back, go back. Do not thou sit here. What wilt thou sit here for? We are not thy people. We are free. We will not have a Governor. Return, return, leave us. The Missionaries and Busby are our fathers. We do not want thee, so go back, return, depart."

Tareha, who followed, was easily one of the largest natives in the North, and had been one of the most ferocious of cannibals. [74] He seldom burdened himself with much {113} clothing, and on this occasion, as if to show how independent he was of such European luxuries, he appeared with nothing more than a dirty piece of old matting fastened round his waist. In the one hand he carried a canoe paddle, and in the other a small bunch of fern-root, tied by a piece of string, for the purpose of further demonstrating that he and his people still had the food of their fathers to rely upon. Tareha never became a Christian—dying as he lived, a heathen—but under the influence of Hongi he had always shown considerable solicitude for the Missionaries, whose interests he had invariably protected, both with his personal and tribal power. His particular protégé at this time was Bishop Pompallier, to whom, in common with Rewa, Moka, and Hakiro, he lived near at Kororareka. Whether this association in any way affected the views of Tareha and his associates is probably a matter best left to individual opinion, but it has been observed as an interesting coincidence that the natives who were in closest contact with the Bishop were the most aggressively hostile to the treaty.

This fact had already been so much in evidence that when Tareha rose, and in his deep sepulchral voice shouted, "No Governor for me—for us native men," no one who was taking a keen interest in the proceedings was very much surprised. With much of the gesticulation peculiar to Maori oratory and a clever application of the arts involved in native elocution, Tareha began to develop his pronouncement against the Governor. "We, we only are the chiefs—the rulers. We will not be ruled over. What! thou, a foreigner, up and I down! Thou high, and I, Tareha, the great chief of the Nga-Puhi tribes low! No, no, never, never. I am jealous of thee; I am, and shall be until thou and thy ship go away. Go back, go back, thou {114} shalt not stay here. No, no, I will never say 'Yes.' Stay! Alas! what for? Why? What is there here for thee? Our lands are already all gone. Yes, it is so, but our names remain. Never mind, what of that—the lands of our fathers alienated! Dost thou think we are poor, indigent, poverty-stricken—that we really need thy foreign garments, thy food? Look at this!"

Here he dangled his bunch of fern-root in the air as proof that his argument was not without foundation.

"See, this is my food, the food of my ancestors, the food of the native people. Pshaw! Governor, to think of tempting men—us natives—with baits of clothing and food! Yes, I say we are the chiefs. If all were to be alike, all equal in rank with thee; but thou the Governor up high—up, up, as this tall paddle [75] and I down, under, beneath! No, no, no. I will never say 'Yes, stay.' Go back, return, make haste away. Let me see you (all) go; thee and thy ship. Go, go, return, return."

The speech of Tareha with its forceful opinions and dramatic delivery had a marked and visible effect upon the native section of the audience, so much so that Captain Hobson began to regard the result with considerable trepidation. He expressed these fears to Mr. Williams, who, knowing the delicacy of the situation, advised him not to betray his anxiety, but at the close of the meeting to recommend the treaty to their deliberate consideration, and to say that he would give them three days in which to finally make up their minds upon it.

For this advice Captain Hobson thanked the Missionary, and then a more favourable turn was given to the debate by a humorous sally from Rawiri, a chief of Ngatitautahi, who, anxious to display his smattering of newly acquired English, opened his speech with the salutation, "Good morning, Mr. Governor, very good you." This was as far as his linguistic accomplishments could carry him, and for the remainder of his oration he relapsed into his native tongue, in which he made an earnest appeal for established {115} authority and a law that would maintain them in peace. "Our Governor, our Father! stay here, O Governor! Sit that we may be in peace. A good thing this for us, my friends, native men. Stay, sit. Do thou remain, O Governor! to be a Governor for us."

Up to this point the weight of influence and oratory had been heavily against the Governor, the opposition evidently considering it good tactics to get in early and reap the fruits of a first impression. But the friends of the treaty now put up a powerful foil to Tareha in the person of Hone Heke, the nephew and son-in-law of Hongi, and admittedly one of the most influential men, both by lineage and achievement, in all the North. Heke at this time was actively espousing the Christian cause, and had not developed the mischievous spirit which afterwards gave him even greater prominence in European annals than he had as yet acquired in Maori fame. He began in that mystical manner so much beloved by Maori orators, the skilful use of which was regarded as a test of their accomplishment.

"To raise up, or to bring down? To raise up, or to bring down? Which? Who knows? Sit, Governor, sit. If thou shouldst return, we natives are gone, utterly gone, nothinged, extinct. What then shall we do? Who are we? Remain, Governor, a father for us. If thou goest away, what then? We do not know."

Then turning and addressing himself to those immediately about him, he said, "This, my friends, is a good thing. It is even as the word of God. [76] Thou to go away! No, no, no! For then the French people or the rum-sellers will have us natives. Remain, remain, sit, sit here; you with the Missionaries all as one. But we natives are children. Yes, it is not for us, but for you, our fathers—you Missionaries—it is for you to say, to decide what it shall be. It is for you to choose, for we are only natives. Who and what are we? Children, yes, children solely. {116} We do not know. Do you then choose for us. You our fathers—you Missionaries. Sit, I say, Governor, sit. A father, a Governor for us."

The emphasis with which these concluding sentences were pronounced, and the gestures by which they were accompanied, came as a convincing climax to what had been a mighty speech. The mana of Heke was great, for was he not descended from Rahiri, who came down in a direct line from a Viking Admiral of the Hawaiki fleet; was he not the representative of the Ariki family of Nga-Puhi; had he not by virtue of his great name levied toll upon all who crossed his estate at Puketona; was he not the brave who had distinguished himself at the 1830 fight at Kororareka when Hengi was killed, and had he not fought valiantly at Tauranga when Titore attacked the pa at Otumoetai? Heke had thus become great in all that told most in the estimation of the Maori, and when he had spoken it was indiscreet for any dog to bark. [77]

{117} No sooner had he resumed his seat upon the ground than the hum of approving comment could be heard in all quarters of the tent. Here was a speech indeed, Europeans and natives alike joining in eulogiums of both its manner and its matter. While the buzz of conversation filled the air, Hakitara, a chief of the Rarawa tribe, rose and commenced a speech in favour of the treaty. He was, however, unfortunate in having to follow Heke, who had for the moment captured public attention, and Hakitara, being unable to raise his voice above the din, soon subsided and made way for a greater even than Heke.

While the latter was speaking the gathering had received an important augmentation by the arrival of Tamati Waaka Nēne, his elder brother Patuone, and the Nga-Puhi chiefs of Hokianga. They had mingled with the crowd, and immediately the Rarawa chief had concluded, Nēne came forward and spoke "with a degree of natural eloquence that surprised all the Europeans and eventually turned aside the temporary feeling of hostility that had been created." [78]

Dr. Bright, one of the few Englishmen who have left us an account of this historic gathering, describes Nēne at this moment as a "mild-looking, middle-aged man with a deportment as if he felt he was a gentleman." As he listened to Heke he rested upon his taiaha , and smiled upon those about him. His face bore evidence that he was glad to see the white man and the brown in conference.

To this chief with his great mental powers, his keen perception, his capacity to read the signs of the times, it had been long apparent that the advent of the Pakeha was inevitable, and that the Maori system was incapable of developing the principles of a stable Government. To now enter upon a campaign of hostility to the whites would, he believed, certainly result in the destruction of his own race. It was too late. Yet to govern themselves was manifestly impossible. He therefore found himself in the same dilemma as had presented itself to a large {118} section of the ancient Jews in the beleaguered city of Jerusalem, who honestly enough believed that their country had arrived at that stage in its history when its only salvation lay in its seizure and government by a foreign power strong enough to establish justice and security, even though it might be at the sacrifice of liberty. What the Romans were to Palestine the British were in Nēne's eyes to New Zealand, and that was what he meant when he begged the Governor to remain and be to the Maori a friend, a father, and a Governor.

As he stepped into the arena of debate the storms were laid still, and a general calm suppressed the rising excitement, for he was esteemed by the white men and known to his own race as one who dared to fight as well as to talk of peace. His voice was low at first, nor needed he to raise it high—no sound intruded on it.

"I will first speak to us, to ourselves, the natives," said Nēne. "What do you say? The Governor to return? What then shall we do? Say here to me, O ye chiefs of the tribes of the northern part of New Zealand, how are we henceforward to act? Friends, whose potatoes do we eat? Whose were our blankets? These spears (holding up his taiaha ) are laid aside. What has the Nga-Puhi now? The Pakeha's gun, his shot, his powder. Many months has he been in our whares ; many of his children are our children. Is not the land already gone? Is it not covered, all covered with men, with strangers, foreigners—even as the grass and herbage—over whom we have no power? We the chiefs, and natives of this land, are down low; they are up high, exalted, yet they make no slaves. What do you say? The Governor to go back? I am sick, I am dead, killed by you. Had you spoken thus in the olden time, when the traders and grog-sellers came—had you turned them away, then you could well say to the Governor, 'Go back,' and it would have been correct, straight, and I would also have said with you, 'Go back'—yes, we together as one man, with one voice. But now as things are, no, no, no. What did we do before the Pakeha came? We fought, {119} we fought continually. But now we can plant our grounds and the Pakeha will bring plenty of trade to our shores. Then let us keep him here. Let us all be friends together. I'll sign the puka puka . [79] I am walking beside the Pakeha ."

This portion of the speech had been spoken with all the fiery declamation of which Waaka Nēne was capable when needs demanded it, but having delivered his message to his own people, he turned and, with pleading and pathos in his voice, said: "O Governor, sit. I, Tamati Waaka, say to thee, sit. Do not thou go away from us; remain for us a father, a judge, a peacemaker. You must not allow us to become slaves. You must preserve our customs, and never permit our land to be wrested from us. Yes, it is good, it is straight. Sit thou here, dwell in our midst. Remain, do not go away. Do not thou listen to what the chiefs of Nga-Puhi say. Stay, then, our friend, our father, our Governor." [80]

As it has always been frankly conceded that Nēne's speech was the turning-point in the debate, it may be well to present here a sketch of the chief whose stirring history and admirable characteristics were well and personally known to a writer who lived through all these eventful days in New Zealand. According to this authority, Nēne "had a singularly open, honest, and benevolent expression of face, and though, if needs were, he could be stern enough, there was little of cruelty or vindictiveness in his composition as there could possibly have been in one whose youth was spent in such surroundings. He was the bravest among the brave; a splendid Maori general, averse to fighting until every way of conciliation was exhausted; and although he never heard of Polonius, with him too it was a maxim, 'Beware of entrance to a quarrel, but, being in, bear't that the opposed may beware of thee.' He was impressed with the abiding feeling that the only chance for his race was to keep peace with the Pakeha , to accept loyally the supremacy of the Queen, and to bear {120} themselves patiently through the slow and difficult transition from Maori custom to British law. His bare word was trusted all through the country as the most binding writing would be trusted amongst ourselves, and he had the power of attracting followers to his person with a devotion which made them ready to stand by him in life or in death.

"He had for many years been a convert of the Wesleyan Mission, and had received at his baptism the prefix Thomas Walker to his old Maori name of Nēne. From beginning to end he never swerved in his pledge of loyalty to the Queen. When he died he was buried in the little churchyard of Kororareka, having solemnly adjured his friends not to allow the Maori custom of disposing of his bones, but to let him lie in peace in a Christian grave; and over his grave the Government raised a stone monument, with an inscription in both languages expressive of their gratitude, and purporting that that was the resting-place of one who was alike steadfast in his friendship for the British and in his labours to secure the best interests of his countrymen—a chief of men, one wise in counsel as he was brave in war.

"For once in a way there was an epitaph of severe and simple truth, and there was not a word of flattery in its praise of the dead. He had been one of Hongi's lieutenants, and had traversed with his war parties the whole of the Northern Island to the neighbourhood of Cook Strait. But it was for his wisdom as a counsellor and his influence as a peacemaker that he was specially famous. No one could set down his conciliation to weakness or fear. In his ordinary bearing he was gentle as a child. In conversation his voice was soft as a woman's, but in the shout of battle it was said to be terrible, and it could be heard above all the clash of arms and the din of the conflict. He was hardly ever defeated, and it was his way before he fought to look beyond the victory, and to determine the move by which it should be followed. He was half a life older than Heke, and indeed he regarded the action of that chief very much as the escapade of a petulant {121} boy. In their case the struggle had none of the bitterness of personal resentment, and when Heke made his somewhat sulky submission, Nēne advised the Government to treat him with kindness and consideration, and the war being ended, not to add to his disappointment anything that would hurt his sense of personal dignity. We owe Nēne's memory, more than to any other of the Maori race, a real debt of gratitude and respect, for at many a crisis he threw himself into the breach, and averted dangers that might have been fatal in those early days. As a father he was a man of tender feeling. He had but one son, eighteen years old, whom my mother nursed in his illness, and after the boy's death, when Nēne came to our house, he could not speak of his loss without tears, or thank her too much for the kindness that seemed to him to have been all in vain."

Nēne was followed in the debate by his elder brother, Patuone, well known as one of the fathers of Nga-Puhi. Though he has not held the picturesque position in Maori history occupied by his younger relation, his life was at least eventful enough to have become the subject of an interesting biography, [81] as he was at this time as highly esteemed by his own people as he was by the Pakeha in later years; when in his old age he was living well down into the European era.

Patuone spoke briefly, but definitely. He favoured the coming of the Governor as the solution of all their troubles.

"What shall I say on this great occasion, in the presence of all these great chiefs of both countries? Here then this is my word to thee, O Governor! Sit, stay—thou and the Missionaries, and the word of God. Remain here with us, to be a father to us, that the French have us not, that Pikopo, [82] that bad man, have us not. Remain, Governor, sit, stay, our friend."

The turn which affairs had now taken proved too much {122} for the excitable Te Kemara, who had been the first speaker. He had patiently heard out Heke, Nēne, and Patuone, but unable to longer restrain himself he at this point jumped up and in his lively, breezy manner proceeded to counter the flow of pro-British oratory: "No, no," he shouted. "Who says stay? Go away, return to thine own land. I want my lands returned to me. If thou wilt say, 'Return to that man, Te Kemara, his land,' then it will be good. Let us be all alike. Then, O Governor, remain. But the Governor up, Te Kemara down, low, flat! No, no, no. Besides, where art thou to stay, to dwell? There is no place left for thee."

This exclamation of Te Kemara's drew from Mr. Busby the remark that his house would be occupied by the Governor until a suitable residence could be procured for him, which piece of information served to produce a marked change in the chief's demeanour.

Crossing his hands as though they were locked in handcuffs, he ran up to the Governor, and with eyes flashing with anger, he exclaimed: "Shall I be thus? Say to me, Governor; speak. Like this—eh, like this? Come, come; speak, Governor, Like this—eh?"

Here his manner became distinctly offensive to His Excellency, and one of the chiefs sitting near-by reproached him for his insolence, whereupon he turned one of those violent mental somersaults which all extremists are at times apt to do. Leaping forward, he seized hold of Captain Hobson's hands and shook them heartily, grinning gleefully, while he shouted in the best English he could command, "How d'ye do—eh, Governor? How d'ye do—eh, Mister Governor?" This enquiry he repeated over and over again, the Governor evidently enjoying the joke as much as any one. "This," says Captain Hobson, "occasioned amongst the natives a general expression of applause, and a loud cheer from the Europeans in which the natives joined."

Thus the business of the meeting closed in the most amiable spirit, the further consideration of the momentous question being by general consent adjourned until the {123} following Friday (the 7th), in order that the natives might have one clear day during which to reflect upon the Governor's proposal. [83]

When Captain Hobson and his escort left the meeting they descended the rude pathway cut in the side of the hill, and as they walked towards the beach where their boat lay, the Governor was discussing with Mr. Colenso the printing of the treaty and other kindred matters. They had just reached the boat and were preparing to enter, when their attention was directed to a commotion not far off. They had not discovered the cause of the excitement before a chief, very much out of breath, burst in upon the viceregal party, and, standing directly before the Lieutenant-Governor, gazed intently at him for a few minutes. Then in a loud shrill voice he cried out in wailing tones, " Au e he koroheke! E kore e roa kua mate ," and at once fell back into the crowd.

The incident was so sudden in its happening, and was so evidently of personal moment to himself, that Captain Hobson was naturally curious to know its full import. He appealed to Mr. Colenso to kindly interpret the old man's message, but the Missionary, unwilling to enlighten the Governor as to the sinister suggestion conveyed by the grey-headed seer, endeavoured to evade the point by telling him what was perfectly true—that this was an old chief who had just arrived from the interior and was anxious to see the Queen's representative. The explanation, though plausible enough, did not satisfy the Governor, who had a predilection that there was more behind the chief's wild lament than this, and his importunities to know the truth being supported by those of Captain Nias, Mr. Colenso at length had to admit that there was more of prophecy than curiosity in the chief's mournful exclamation: "Alas! an old man. He will soon be dead."

The incident, which had something of comedy in its {124} early features, thus terminated with a tragic note, and the Governor, who had been highly elated at the success of the meeting, pulled off to his ship in a gloomy and meditative mood.

During the remainder of the day [84] a strong effort was made by the beach-combers and whisky-sellers of Kororareka to spread dissension amongst the chiefs, and to prejudice the idea of the Queen's protection; but the Missionaries were whole-hearted in their support, and vigilant to counteract the opposition of these ill-disposed individuals. [85] The good impression created by Heke and Nēne therefore stood, and before the evening had closed there was a preponderating number anxious to sign the treaty.

The Missionaries were equally anxious to take advantage of this favourable feeling, and were now keenly apprehensive that the delay until Friday would be detrimental to the treaty party. They therefore consulted together with a view to expediting the taking of the chiefs' signatures, and concluded that it would be better to do so on the morrow.

There was also another, and undeniably a powerful, factor operating in favour of a speedy termination of the business. This was the fact that the natives, having {125} been called hurriedly together, were insufficiently supplied with food, nor were provisions for so large a number procurable within easy distance. The natives were thus faced with the alternative of remaining hungry at Waitangi or returning home to be fed. This was an option about which no Maori ever had two opinions, and it was perfectly obvious that if the proceedings were further delayed until Friday there would be a stampede from the scene of negotiations and the golden opportunity would be in all probability irretrievably lost.

Influenced by these considerations, the Missionaries agreed that Captain Hobson should be made aware of the altered position of affairs, but apparently no proper steps were taken to have the information conveyed to him. Consequently when they arrived next morning from their station at Paihia, about one and a half miles distant from Waitangi, the Governor had not yet come on shore. There was also a perceptible diminution in the number of the natives present, several companies, chagrined at their treatment in the scramble for the tobacco on the previous day, having folded their blankets and returned home. Still there were from 300 to 400 squatting in groups here and there, all earnestly discussing the treaty with more or less clarity of comprehension. An hour flew by and yet no sign of the Governor, nor could any movement be detected on board the Herald indicative of his coming.

Noon had arrived but still no Governor, impatience being manifest on every face, when a boat containing two officers was seen to leave the ship. They rowed leisurely across the Bay, and when they reached the landing-place and were told that both natives and Europeans were awaiting the Governor, they were considerably surprised, and explained that "His Excellency certainly knew nothing of a meeting to be held here this day."

Now that it was clear there had been an unfortunate misunderstanding it was not long before communication was held with the ship, and Captain Hobson, accompanied by the officers of his Government, came ashore; but his {126} departure had been so hurried that he came in civilian clothes, having no time to don more of his uniform than his cocked hat. He hurriedly assured those about him that he had not entertained the least notion that a meeting was to be held; that as matters stood he was quite prepared to take the signatures of all the chiefs willing to sign, but that he must still hold the public meeting on the following day as already announced by him.

A move was then made towards the tents by the whole party, closely followed by the natives, who crowded under the canvas with no small excitement and hustle. Some preliminary details—such as the arrangement of tables at which the chiefs could sign—having been completed, the Governor and party then ascended the platform, and Captain Hobson announced that this not being a regularly convened public meeting he could not permit of any discussion on the merits of the treaty. The business, therefore, would be confined to accepting the signatures of those chiefs who were willing and ready to sign.

At this juncture a message came to His Excellency from Bishop Pompallier, stating that he and his priest were at that moment resting in Mr. Busby's house, and were anxious to be present at the meeting. Lieutenant Shortland was immediately despatched to bring the Bishop in, and on his entering he was welcomed and invited to occupy the seat he had filled on the previous day.

The business was resumed by Captain Hobson proposing that Mr. Henry Williams should read the treaty from the parchment on which it had been engrossed, as that which had been submitted to them on the preceding day had been merely the original draft. This office was performed by Mr. Williams, whereupon Bishop Pompallier leaned over to the Governor and asked that the natives might be informed that all who should join the Catholic Church should have the protection of the British Government.

Captain Hobson, with much blandness of gesture and expression, [86] replied, "Most certainly," and proceeded to {127} express his regret that the Bishop had not made known his wishes earlier, as in that event the provision "would have been embodied in the treaty."

Turning then to Mr. Williams, he said: "The Bishop wishes it to be publicly stated to the natives that his religion will not be interfered with, and that free toleration will be allowed in matters of faith. I should therefore thank you to say to them that the Bishop will be protected and supported in his religion—that I shall protect all creeds alike."

"I presume the same protection will be offered to all?" remarked Mr. Williams; to which the Governor replied, "Certainly."

"What need, then," asked Mr. Williams, "is there to burden the proceedings with such an announcement if all are to have protection alike?"

To this the Governor replied that as the Bishop was anxious that the announcement should be made, he would feel obliged if Mr. Williams would deliver it to the meeting.

Mr. Williams then proceeded to address the natives: " Na, e mea ana te Kawana "—"Attend, the Governor says." Here, however, he felt the matter was one of such magnitude that he could not afford to treat it in a casual way, and he expressed this opinion to his fellow Missionary, Mr. Clarke, who was standing near him.

"Pray, sir, write it down first, as it is an important sentence," suggested Mr. Colenso.

Mr. Williams, taking pencil and paper, then wrote as follows: "The Governor wishes you to understand that all the Maoris who shall join the Church of England, who shall join the Wesleyans, who shall join the Pikopo, or Church of Rome, and those who retain their Maori practices shall have the protection of the British Government."

This he handed to the Governor, who passed it on to the Bishop, who, having read it, said in English, "Oh yes, that will do very well."

The statement was read to the meeting, and if Mr. {128} Williams is to be accepted as an authority, it was received in silence, the natives not knowing what it meant. [87] Bishop Pompallier then rose and, bowing to the Governor, left the meeting.

These preliminaries having been satisfactorily disposed of, the chiefs were as a body invited to come forward and append their signatures to the treaty. To this invitation no one responded for a time, none caring to be the first to take what might prove to be a precipitate step. For several minutes the Maori mind hung in this state of doubt and indecision until Mr. Busby hit upon the expedient of calling upon the chiefs by name. He had prepared a list for his own information of those eligible to sign, and by a fortunate circumstance the name of Hone Heke stood first upon that list. Heke, who had proved himself such a redoubtable advocate of the treaty, came forward frankly enough when thus directly appealed to, and was about to sign, when Mr. Colenso interposed by asking the permission of the Governor to clear up one point upon which grave doubts had been raised in his mind as the result of his mingling with the natives since the earlier meeting. This permission was readily granted, whereupon Mr. Colenso said, "May I ask Your Excellency whether it is your opinion that these natives understand the articles of the treaty which they are now called upon to sign?"

He was proceeding to say that he had that morning arrived at a different conclusion, when Captain Hobson interrupted him with the remark: "If the native chiefs do not know the contents of this treaty it is no fault of mine. I wish them to fully understand it. I have done all that I could to make them understand the same, and I really don't know how I shall be enabled to get them to do so. They have heard the treaty read by Mr. Williams."

"True, Your Excellency," rejoined Mr. Colenso, "but the natives are quite children in their ideas. It is no easy matter to get them to understand—fully to comprehend {129} a document of this kind; still I think they ought to know somewhat of it to constitute its legality. I speak under correction, Your Excellency. I have spoken to some of the chiefs concerning it, who had no idea whatever as to the purport of the treaty."

Here Mr. Busby joined in the discussion by reminding Mr. Colenso that the best answer that could be given to his observation would be found in the speech made yesterday by the very chief about to sign, Hone Heke, who said "the native mind could not comprehend these things; they must trust to the advice of their Missionaries."

"Yes, that is the very thing to which I was going to allude," replied Mr. Colenso. "The Missionaries should do so, but at the same time the Missionaries should explain the thing in all its bearings to the natives, so that it should be their very own act and deed. Then in case of a reaction taking place, the natives could not turn round on the Missionary and say, "You advised me to sign that paper, but never told me what were the contents thereof." [88]

Captain Hobson, who had evidently not contemplated this contingency, expressed the hope that no such reaction would take place. "I think," he said, "that the people under your care will be peaceable enough: I am sure you will endeavour to make them so. And as to those that are without, why, we must endeavour to do our best with them."

This attitude on the part of the Governor sufficed to satisfy Mr. Colenso, who had no desire to be contumacious, but having conscientious doubts upon the native grasp of a subject necessarily foreign to their tribal policy, he felt it his duty to give full expression to those doubts, and he thanked His Excellency for having given him the opportunity to do so.

Hone Heke then put his name upon the parchment, [89] {130} and as if to answer the objection raised by Mr. Colenso, he told the people in a brief speech that he fully approved of the proceeding, as they all needed protection from every foreign power, and they well knew the fostering care of the Queen of England towards them.

With so propitious a lead there was no further hesitancy on the part of the remaining chiefs, and the process of recording their signatures went merrily on. While it was proceeding, Marupo, a chief of the Whanaurara tribe, and Ruhe, a chief of the Ngatihineira tribe, were busy making violent speeches against the treaty. Both warriors delivered themselves in the style characteristic of their people when they have serious business on hand, running sharply up and down a beaten avenue, gesticulating energetically, stamping their feet, and pouring out their denunciations with a volubility that was difficult to follow. Marupo, who had discarded all his clothing except a piupiu made of reeds which hung round his waist, was especially determined in his opposition, continuing his harangue until voice and body failed from sheer physical exhaustion.

Then realising that his oratory had not turned the tide of public opinion, and that the adoption of the treaty was inevitable, he and his compatriots, appreciating the advantage of being on the popular side, joined the ranks of the signatories and drew their moko [90] upon the parchment.

Marupo signalised his conversion by shaking hands heartily—even violently—with the Governor, and desired to confirm the new-formed friendship by seizing the Governor's hat, which was lying on the table, and putting it upon his head.

The next of the insurgents to surrender was the versatile but volatile Te Kemara, who, when he had succumbed to the pressure of the popular will, volunteered the statement that he had been influenced in his opposition by the French {131} Bishop, who had told him "not to write on the paper, for if he did he would be made a slave."

The only chief of high standing who was present and had not now signed the treaty was Rewa, but his obduracy was at length overcome, he yielding to the persuasions of his tribal friends, supported by the advice of the Church Missionaries, and when at length he drew his curious hieroglyphics upon the parchment, he too admitted that his opposition had been wholly inspired by the Bishop, who had earnestly interceded with him not to become a party to the treaty.

Captain Hobson, who had apparently recovered from his recent indisposition, appeared to be in the cheeriest of spirits, and as each chief signed the treaty he took him by the hand, and repeating in Maori " He iwi tahi tatou "—"We are now one people"—paid a little compliment to the native race that was hugely appreciated by the recipients. [91]

During the course of the morning small contingents of natives had been arriving from distant parts, who had not been present at the previous day's proceedings owing to the unavoidable delay in receiving their summoning circulars, but after brief explanations by their friends, they, without exception, subscribed to the Queen's proposal to give their country a stable Government. Altogether forty-five chiefs signed the treaty on this eventful February 6, but they were for the most part men of only moderate influence, and with the exception of Waaka Nēne, and his brother Eruera Patuone, who hailed from Hokianga, and Kauwhata, Wharau, and Ngere, from Wangaruru, all were resident within the immediate vicinity of the Bay of Islands. Twenty-six of these, however, had signed the much-despised Declaration of Independence five years before, and Captain Hobson so far concluded that their acquiescence in his present mission "must be deemed a full and clear recognition of the {132} sovereign rights of Her Majesty over the northern parts of this Island," that he immediately arranged with Captain Nias to announce the cession on the morrow with a salute of twenty-one guns from the deck of the Herald . [92]

Having now concluded the official portion of the business, Captain Hobson, who had conducted the whole of the proceedings with conspicuous patience and ability, left the meeting under a volley of cheers from the natives, which resounded through the hills and across the sunny waters of the Bay.

"In the course of these proceedings," wrote Captain Hobson to Sir George Gipps, "I have courted the utmost publicity, and I have forborne to adopt even the customary measure of propitiating the consent of the chiefs by promises of presents, and not until the treaty was signed did I give them anything. To have sent them home without some acknowledgment would have been a violation of their customs, and would have given offence. I therefore distributed a few articles of trifling value before they separated."

This distribution was entrusted to Mr. Colenso, each chief who had signed the treaty receiving two blankets and a quantity of tobacco, and "by dint of close and constant attention," reports that gentleman, "the said distribution went off well without any mishap or hitch."

Next morning broke with a grey sky and rain so incessant as to dissipate all hope of holding the contemplated meeting. Neither was it deemed advisable under such depressing circumstances to proclaim the event by a Royal salute, so that by a strange perversion of fate, Friday the 7th, which was to have been the day of days, passed off cold, bleak, and uneventful. It was not, therefore, until Saturday the 8th that the proceedings, so far as they had gone, were fully consummated. This was accomplished amidst the floating of bunting and the booming of guns, for upon this bright and sunny day it {133} may be said that New Zealand became a British colony, and what some of us are vain enough to regard as the brightest jewel in Britain's Crown. [93]

CHAPTER V
IN SEARCH OF SIGNATURES

Although Captain Hobson had every reason to be gratified with the result of his mission at Waitangi, it was perfectly obvious that the signatures obtained there were only sufficient to give him jurisdiction over a very circumscribed area of country. It was equally evident that if the full intentions of the British Government were to be given effect to, it would be necessary to put into practice the Mahomedan principle and go to the mountain, since the mountain had failed to come to him. He accordingly arranged a campaign by which the districts north of the Bay of Islands would be visited, either by himself personally, or by his duly accredited officers. Pursuant to this arrangement on the morning of the 10th, the Lieutenant-Governor (accompanied by Captain Nias) and his suite left the Bay of Islands and rode over to the Mission station at Waimate, where on the 12th they held a meeting and obtained the signatures of all the chiefs present. With two of the Church Missionaries, Messrs. Taylor and Clarke, added to his company, Captain Hobson left Waimate next day and continued his journey to Hokianga, where it was anticipated a great meeting would be held. On arriving at Waihou, a settlement on the banks of the river about seven miles above the Wesleyan Mission station,—for he was now within the Wesleyan sphere of influence,—the Governor was met by the members of the Mission and all the principal European settlers in the neighbourhood. Here he received, probably in the form {136} of an address, the warmest assurances of the settlers' fidelity to the Queen, and the most hearty congratulations to himself upon his selection as her representative.

From this point the journey was continued by boats supplied by the settlers, and the progress down the river was marked by frequent evidences of cordiality and even enthusiasm. On passing the settlement at Hauraki a salute of thirteen guns was fired from a miniature fort of European construction, and on arrival at the Mission station the Governor was again the recipient of congratulations from the settlers and the Missionaries.

In response to these graceful felicitations Captain Hobson delivered a brief address, in which he expressed the high sense he entertained of this earnest of their loyal zeal in forwarding the views of Her Majesty's Government, and of the honour they had conferred upon him personally by their flattering attention. At the same time Captain Hobson took occasion to announce that in accordance with notices already published, he proposed to hold a meeting of the chiefs there next day, to which a cordial invitation was extended to the European population of every class and nation.

The novelty of the occasion was not without its influence upon the natives, and upon a careful estimate it is computed that there were not less than 3000 at the station next morning, of whom between 400 and 500 were chiefs of varying rank and importance. Thus everything promised well. But at the hour appointed for the assembly it was observed that there was a great disinclination on the part of the chiefs to associate themselves with the movement. Some were reticent, others morose, more were openly hostile, and that to such an extent it was manifest they were not approaching the subject with unprejudiced minds, and it required no keen observer to detect that an unfavourable spirit prevailed amongst them. By the exercise of a little judicious manœuvring, however, they were at length induced to admit that there could be nothing derogatory in at least hearing what message the Governor had to deliver, and after some delay they were {137} induced to form into procession and march to the place of meeting.

The business of the day commenced in much the same manner as it had done at Waitangi and Waimate, the Rev. Mr. Hobbs, of the Wesleyan Mission, acting as interpreter. After a short address to the Europeans, Captain Hobson entered into a full explanation to the chiefs of the views and motives of Her Majesty in proposing to extend to New Zealand her powerful protection. He then, as on previous occasions, read the treaty, expounded its provisions, offered to elucidate all doubtful points, and invited the freest discussion. "This undisguised manner of proceeding," wrote Captain Hobson to Sir George Gipps, "defeated much of the opposition, but did not, to the extent of my wish or expectation, remove the predetermination to oppose me that had already been manifested. The New Zealanders are passionately fond of declamation, and they possess considerable ingenuity in exciting the passions of the people. On this occasion all the best orators were against me, [94] and every argument they could devise was used to defeat my object."

The debate was opened by Aperahama Taonui, who rose and said: "We are glad to see the Governor. Let him come to be a Governor to the Pakehas . As for us we want no Governor; we will be our own Governor. How do the Pakehas behave to the black fellows at Port Jackson? They treat them like dogs! See a Pakeha kills a pig; the black fellow comes to the door and eats the refuse."

"What is the Governor come for?" exclaimed Papahia. "He, indeed! He to be high, very high, like Maungataniwha (a high hill near Hokianga) and we low on the ground; nothing but little hills. No, no, no! Let us be equal; why should one hill be high and another low? This is bad."

{138} Moses (Mohi Tawhai)—"How do you do, Mr. Governor? All we think is that you come to deceive us. The Pakehas tell us so, and we believe what they say; what else?"

Taonui —"We are not good (or willing) to give up our land. It is from the earth we obtain all things. The land is our Father; the land is our chieftainship; we will not give it up."

"No, no," cried Kaitoke; "no, Mr. Governor, you will not square out our land and sell it. See there, you came to our country, looked at us, stopped, came up the river, and what did we do? We gave you potatoes, you gave us a fish-hook; that is all. We gave you land, you gave us a pipe, that is all. We have been cheated, the Pakehas are thieves. They tear a blanket, make two pieces of it, and sell it for two blankets. They buy a pig for one pound in gold, and sell it for three. They get a basket of potatoes for sixpence, sell it for two shillings. This is all they do; steal from us, this is all."

Here the voluble Taonui again broke in upon the proceedings with some observations which were so clearly not of native origin as to convince Captain Hobson that he had not only the natural Maori ignorance and suspicion to contend with, but powerful counter-influences originating with the Europeans.

"Ha, ha, ha, this is the way you do," cried Taonui. "First your Queen sends Missionaries to New Zealand to put things in order, gives them £200 a year. Then she sends Mr. Busby to put up a flag, and gives him £500 a year, and £200 to give to us natives. Now she sends a Governor." [95]

"Speak your own sentiments, not what bad men have told you," retorted Captain Hobson.

"I do," replied Taonui. "I have not been to Port Jackson, but I know Governors have salaries."

The Governor again felt compelled to interpose, and {139} accused the speaker of being prompted by designing Europeans.

This fact Taonui frankly admitted, and, turning to the assembly, called for his Pakeha adviser to come forward and sustain his allegations. "This call was reiterated by me," says Captain Hobson, "when a person named Manning [96] presented himself. I asked him his motive for endeavouring to defeat the benevolent object of Her Majesty, whose desire it is to secure to these people their just rights, and to the European settlers peace and civil Government."

Manning's reply was that he conscientiously believed that the natives would be degraded under British rule and influence, and that therefore he had advised them to resist the persuasions of the Governor and the Missionaries in favour of the treaty, admitting at the same time that the laws of England were requisite to restrain and protect British subjects, but to British subjects alone should they be applicable.

"But are you not aware that English laws can only be exercised on English soil?" asked Captain Hobson.

The Lieutenant-Governor then proceeded to tell the chiefs that their Pakeha friend had given them advice in utter ignorance of the most important principle that British laws could not be enforced on a foreign soil, and that their only hope of protection against unscrupulous Europeans was to become a party to the treaty.

"If you listen to such counsel," he continued, "and oppose me, you will be stripped of all your lands by a worthless class of British subject, who will consult no interest but their own, and who care not how much they will trample upon your rights. I am sent here to control such people, and to ask from you the authority to do so."

{140} This spirited little speech was responded to by what Captain Hobson has called "a song of applause." Several chiefs who had been silently sympathetic with the Governor now sprang up actively in his support, and by their championship changed the whole spirit of the debate.

"Welcome, welcome, welcome, Governor!" cried Ngaro. "Here are the Missionaries; they come to the land, they bought and paid for it, else I would not have them. Come, Come! I will have the Governor. No one else perhaps will say 'Yes,' but I, Ngaro, I will have him. That is all I say."

Moses (Mohi Tawhai)—"Where does the Governor get his authority? Is it from the Queen? Let him come; what power has he? Well, let him come, let him stop all the lands from falling into the hands of the Pakehas . Hear, all ye Pakehas ! Perhaps you are rum-drinkers, perhaps not; hear what is said by us. I want all to hear. It is quite right for us to say what we think; it is right for us to speak. Let the tongue of every one be free to speak; but what of it? What will be the end? Our sayings will sink to the bottom like a stone, but your sayings will float light, like the wood of the Whau-tree, and always remain to be seen. Am I telling lies?"

Kaitoke, who had previously delivered a hostile speech, again openly maintained his opposition by interjecting, "Let us choose our own Governor."

These sentences, democratic though they were to the last degree, found no sympathy with Rangatira Moetara, who followed with a brief speech.

"Welcome, Mr. Governor! How do you do? Who sold our land to the Pakehas ? It was we ourselves by our own free will; we let it go, and it is gone, and what now? What good is there in throwing away our words? Let the Governor sit for us."

Moses (Mohi Tawhai)—"Suppose the land has been stolen from us, will the Governor enquire about it? Perhaps he will, perhaps he will not. If they have acquired the land by fair purchase, let them have it."

Taonui, upon whom the refutation of Manning by the {141} Governor had evidently had a marked effect, again rose and said:

"Lo, now for the first time my heart has come near to your thoughts. I approach you with my whole heart. You must watch over my children; let them sit under your protection. There is my land too; you must take care of it, but I do not wish to sell it. What of the land that is sold? Can my children sit down on it? Can they—eh?"

Here the chiefs Waaka Nēne, his brother Patuone, Rangatira, and Taonui stepped forward and chanted a song of welcome to the Governor, after which Nēne made the following speech:

"Listen to me, Governor; all of you listen to me. This is my speech. If the Baron de Thierry wishes to claim my land, why is he not here to-day? No, no; it was never sold to him. Does he think he will have it? No, no; he shall not have any of it. This is all I have to say."

A chief, Hone Kingi Raumati, whose baptismal name was John King, next delivered a sympathetic address: "My speech is to the Governor. This is what I have to say. It was my father, it was Muriwai, told me to behave well to the Pakehas . Listen, this is mine; you came, you found us poor and destitute. We on this side say, 'Stay and sit here.' We say, 'Welcome, welcome'; let those on the other side say what they like. This is ours to you. Stay in peace. Great has been your trade with our land. What else do you come for but to trade? Here am I. I who brought you on my shoulders. [97] I say come; you must direct us, and keep us in order; that is all mine to you. If any one steal anything now there will be payment for it. I have done my speech."

A chief whose name does not seem to have been preserved by the chronicler of the meeting, but who had support for the Governor in his words, said: "How do you do? Here am I, a poor man; and what is this {142} place? A poor place, but this is why you have come to speak to us to-day. Let the Pakehas come and I have not anything to say against it. There is my place, it is good land; come and make it your sitting-place—you must stay with me. That is all."

The last speech was that of Daniel Kahika: "What indeed!" he said in indignant tones. "Do you think I will consent to other people selling my land? No, truly. If my land is to be sold I will sell it myself. But no, I will not sell my land. I do not like the Pakehas to tease me to sell my land. It is bad. I am quite sick with it. This is my speech."

So closed the debate at Hokianga. Apologies were freely offered by the opposing chiefs, the most prominent of whom at once came forward and signed the treaty.

On the day that Captain Hobson had first met the Rev. Henry Williams on board the Herald one of the many subjects they had discussed was the purchasing of a site for the colonial Capital. In this respect the Missionary's geographical knowledge of the north was invaluable, and when asked for his opinion he immediately pronounced solidly against the Bay of Islands where the land was too confined for a potential city. He was, however, enthusiastic about the isthmus at the Waitemata, as being unoccupied by natives, and possessing topographical {144} advantages far in excess of any other known site. It was, therefore, for the dual purpose of inspecting this promising locality, and of meeting the natives at Waitemata, that the Governor and Mr. Williams left the Bay of Islands on February 21 in the Herald . A considerable number of signatures were obtained at various points along the coast of the Hauraki Gulf, and on reaching the mouth of the Waitemata River in the Firth of Thames, [99] Mr. Williams was despatched to Maraetai to communicate with and collect the natives in that district. As he was returning to the ship four days later he met Captain Nias coming to meet him in his boat. The Captain conveyed to him the disquieting intelligence that on the previous Sunday (March 1) Captain Hobson had been attacked by a violent illness—due to the harassing nature of his duties and to long exposure to wet, resulting in a paralytic seizure [100] —so severe as to disable him, and to cause him to seriously contemplate his resignation and return to Sydney.

When the Missionary saw the invalid in his cabin he took a more optimistic view of the situation, and strongly urged Captain Hobson not to determine so hurriedly to relinquish his office as Governor. He further offered to find him comfortable quarters at the Mission station where he could rest and have every care it was possible to provide under the circumstances. These persuasions induced the Governor to fall in with the Missionary's views; the Herald returned to the Bay of Islands, and the patient was conveyed to the house of Mr. Richard Davis at {145} Waimate, where he was attended by the ship's surgeon, Dr. Alexander Lane, and was for several months nursed with the utmost solicitude by the Missionary's family.

During this period of forced inactivity Captain Hobson displayed the greatest anxiety that the interests of his mission should not suffer because of his misfortune, and so far as his energies would permit he daily laid his plans for the carrying on of the campaign which had thus been suddenly interrupted so far as he was personally concerned.

Fortunately he was surrounded by a band of men who were loyal, and enthusiastic in the cause he had come to espouse, and he had no difficulty in enlisting the services of those who were prepared to continue the work where he had been compelled to lay it down. In this respect the Missionaries, confidently relying on the traditional justice of the British Government, [101] were particularly zealous, and to them more than to any one else does the ultimate success belong. Had they so much as whispered hostility, the treaty and all its professions would have been rejected and despised. So far from this, they not only lent it the influence of their word, but at this critical stage, when the Governor was lying a stricken man, they became the harbingers of its promises and the apostles of its principles. [102]

To the north went the Rev. Mr. Taylor with Mr. Shortland; to the east the Rev. William Williams, each bearing an authenticated copy of the treaty, and authorised to treat with the principal native chiefs, at properly constituted gatherings, for their signatures and their adherence to the provisions of the national compact.

The meeting in the north, which must rank next in importance to the gatherings at Waitangi and Hokianga, was that conducted by Lieutenant Shortland at Kaitaia. Indeed it is questionable whether in some respects it has not achieved a greater celebrity, for it was here that the {146} eloquent chief Nopera (Noble) coined the phrase which has been more often quoted than any other in connection with the history of the treaty: "The shadow of the land goes to the Queen, but the substance remains with us."

On April 27 Mr. Shortland, who had now become Colonial Secretary, accompanied by the Rev. Mr. Taylor, Dr. Johnston, and Lieutenant Smart of the mounted police embarked on board the little schooner New Zealander , and steering for the far north, touched first at Mangonui, where they obtained the services of a native pilot, and on the following Saturday anchored in the Awanui River, fully sixteen miles from their destination. Mr. Taylor and the Doctor at once left the vessel, and pushed on to the Mission station, there to arrange the preliminaries with Mr. Puckey, the resident Missionary. The Colonial Secretary remained on board the schooner until the Monday, and then with Lieutenant Smart and the members of his force proceeded up the river to Kaitaia, where they were received with volleys of musketry, and the fearsome evolutions of the war dance. From an early hour on the following morning the chiefs and people were astir, busy with the preparations for the meeting, their demeanour being marked by a cordiality which had been so conspicuous by its absence at Waitangi and Hokianga.

At 10 o'clock the people—a motley and vivacious crowd—assembled on a large grass plot in front of Mr. Matthew's house, where they were addressed by the Colonial Secretary, with a solemnity befitting the occasion and a pomposity [103] which he deemed becoming his station. The illness of the Governor was touchingly referred to as a reason for the speaker's presence; the text of the treaty was read; the purpose of the compact explained; the machinations of the Queen's opponents were denounced, and a promise given that His Excellency would strictly {147} perform all the solemn engagements which the treaty imposed upon him in the name of Her Majesty.

With this important difference, that there was but little opposition, there were few features to distinguish the debate from its predecessors. Several of the speakers boldly stated they had been told that the treaty was nothing but a cunning device to enslave them. There were also dark references to a Nga-Puhi plot to drive the Pakehas into the sea, but to which they unhesitatingly declared they were not prepared to give their countenance, [104] the speeches as a whole breathing deeply the influence of the Missionaries.

The first speaker was a chief who had accepted the baptismal name of Taylor, [105] who appeared to scent trouble, but subsequently signed the treaty under the name of Reihana Teira.

"This is my speech. We have always been gentlemen; we do not want a shepherd. We will not be hindered getting wood; we formerly cleared any spot of land we liked, burnt the wood; then some once came and built a house on it, and then we quarrelled."

"The Pakehas say the Governor comes to take the land," exclaimed a chief whose name has not been recorded. "This is the first time I ever heard the pukapuka (the treaty). The Pakehas explained it differently. Some people say plenty of Pakehas are coming to buy our land, but not for our good. They say the soldiers are come to shoot us, and that the Governor will not be a shepherd for us. [106] They say Mr. Puckey and Mr. Matthew know {148} what is to become of us, but will not tell us. These are my sayings."

William (Wiremu Wirihana)—"They tell us you are come to murder all the Maoris, but if your works are good you will come to preserve us. If you are like the Missionaries that will be good. We fear the soldiers."

In clear and emphatic tones Te Rewiti, to whom has been given the English name of Davis, exclaimed, "I say 'Yes,' I say 'Yes' for the Queen. Although some men say 'No,' for the Governor, I say, 'Yes.' If the Governor come to be our shepherd that is good; but if he come to take our land I will not have him. If you say who makes me say, 'Yes,' I say my own heart. Much land has been bought by the Pakehas . Let it not be said it has been taken by the Governor. It has been taken before. I have nothing more to say. If you have anything to say, say it now, but do not go home and grumble."

"Let all our sayings be one, let none say 'No,'" was the counsel of Forde. "The Governor has not taken our land, it was taken before. My heart and my thoughts are with the Governor. I say, Yes, yes."

Marsden —"We shall not be slaves. Had we gone to other lands we might have been slaves; they have come to protect us. Let not our hearts be dark; let us not listen to words from afar; let us see first. Is it not sin to murder and commit adultery; to tell lies. If what we hear from our teachers is true then what we hear from the Governor is not a lie."

"I have no land to give the Governor," said Toketau (Tokitahi). "We were gentlemen before, we will be greater now. Now we have more blankets, shirts, and trousers. Our houses were once made of rushes; they are better now. I have made my speech."

Busby (Puhipi)—"Before the Pakehas came we loved our own people. We sometimes quarrelled and then made war; then we made peace again and rubbed noses, then we had another battle. I am glad you are come; let our hearts be one. If quarrels happen who will settle {149} them? You are so far off. Murder and theft may be suppressed, but what shall be done with adultery? It is carried on privately; do not let it be said that I hide anything."

"Will a man be taken up if he walk in the night?" was the pertinent question put by Matiu Tauhara (Mathew). "That is all I am afraid of. If a man steal it is right to punish him. This is all I have to say: Let all the Governors and Pakehas be like the Missionaries, that we be good. We have not been hurt by them."

"If your thoughts are as our thoughts in Christ, let us be one. We believe your hearts to be good. The Pakehas bought all our land, and we have no more," were the words of Matiu Huhu.

"There is only one great man," he said, "who cannot be killed, that is the tongue; it often stirs up great wars. My father, Nopera, was sitting in his house reading his Bible when they said he was gone to the north to kill the people. I say send away Pikopo (Bishop Pompallier). Send him back; he is the cause of strife amongst us."

Nopera Panakareao, the most powerful chief in the district, who had accepted the not inappropriate baptismal name of Noble, [107] then rose and delivered the great speech of the meeting—a speech if not the most influential in guiding the native mind at a critical moment it is at least so rich in worldly wisdom, so happy in poetic simile, so full of fervent loyalty, that it has become one of the Maori {150} classics, and deserves to be preserved amongst the finest examples extant of old-time native oratory:

"Here all of you Pakehas and Maoris. This is my speech. My desire is that we should be all of one heart. Speak your words openly; speak as you mean to act; do not say one thing and mean another. I am at your head. I wish you all to have the Governor. We are saved by this. Let every one say 'Yes,' as I do. We have now some one to look up to. Some say it will be the Pakehas who will offend, I say no; it will be the Maoris. My grandfather brought the Pakehas to this very spot, and the chiefs agreed with what my grandfather did. He went on board the ship and got trade. He spread it through the land. Let us act right as my ancestors did. The Pakehas went to the Bay of Islands and were murdered. Let us do them no harm. What has the Governor done wrong? The shadow of the land goes to the Queen, but the substance remains with us. We will go to the Governor and get payment for our land as before. If the Nga-Puhi commit evil they will suffer. We have always been friendly with the Pakehas . We never went in ships to England or Port Jackson to buy arms to kill our countrymen. If you want to be cut off, go and fight the Governor. Do not, like the chiefs at Hokianga, wish to kill the Governor. Live peaceably with the Pakehas . We have now a helmsman, one said, 'Let me steer,' and another said, 'Let me steer,' and we never went straight. Be jealous: look well into your own hearts and commit no evil. The natives did wrong at the Bay and suffered. What man of sense would believe that the Governor would take our goods, and only give us half of it? If you have anything else to say, say it; but if not, finish, and all of you say, 'Yes'—say 'Yes.'"

This oration swept away all vestige of possible opposition as chaff before the wind. No one was bold enough to contend with the redoubtable Nopera, to agree with him were superfluous. The debate therefore abruptly closed with a general exclamation of " Ae, Ae " ("Yes, yes") and the assent and signatures of sixty of the principal {151} chiefs were speedily obtained, [108] so that a few days later Captain Hobson was able to write from his sick-room to the Chief Secretary for the Colonies: "I am happy to report to your lordship that Mr. Shortland succeeded to the fullest extent."

The Ambassador to the west was Captain Symonds, [109] an officer of the British Army, who immediately on receipt of his instructions proceeded to Manakau and there, aided by Mr. Hamlin, a Catechist of the Church Missionary Society, summoned at short notice a meeting of the chiefs. The Missionary explained to the assembled warriors the views of the British Government, and solicited their adherence to the treaty, but the opponents of the measure had been in advance of its advocates, and prejudice was already in the air. Amongst the most active in his hostility was the vacillating Rewa, who having reluctantly signed the document at Waitangi, had speedily recanted. [110] He now sought to make up for his apparent desertion from the ranks of the opponents by the violence of his attacks upon the Government, and Captain Symonds found the chief had been so successful in his misrepresentations that he was not able to do more at the first meeting than to dispel some of the doubts which the ingeniousness of Rewa had created in the minds of all. A few days later the chiefs were again in council, when new forces were gathered from the Waikato, Taranaki, and Taupo. With these Rewa had less influence, with the result that some signatures, and several promises were obtained from amongst the most influential men.

{152} But now a new species of opposition was developed. The haughty Te Wherowhero, the potential king of the Waikato, felt that he had been slighted in not being bidden to consult with the Pakeha Governor ere this. Why had he been left to this late hour, and who were these who had been placed before him? His dignity was severely wounded; his aristocratic soul rebelled against such scurvy treatment, and in a fit of pique he wrapped his blanket about him and refused to sign.

Feeling that he must be satisfied for the present with whatever measure of success he had achieved, Captain Symonds left Manukau on April 3, and hauling his boats across the portage which divides the Manakau from the waters of the Waikato, he proceeded down the Awaroa river to the Church Mission station at the Waikato Heads. Here he was received with the utmost cordiality by the Rev. Mr. Maunsell [111] who was waiting his coming with no small anxiety. Matters had almost reached a crisis with the Missionary, who in the previous month had taken advantage of a large gathering of natives for religious purposes to introduce the subject of the treaty, a copy of which had already been forwarded to him by the Lieutenant-Governor. The project had been received by the natives in the most friendly spirit, and signatures had been obtained with the utmost alacrity. One important feature, unobserved at the time, had, however, been omitted. No presents had been sent to the Missionary to distribute amongst the signatories. Exception had not been taken to this apparent lack of hospitality at the moment, but word had come into the settlement from the north that all who had signed the treaty at the Bay of {153} Islands, and at Hokianga had been paid with the Governor's blanket. The insidious nature of this treatment had just dawned upon them when Captain Symonds arrived. The whole settlement was in a state of wildest excitement. Their Missionary had deceived them; payment had been withheld; their signatures had been wrongly obtained. To put matters right they loudly demanded the return of the offending paper that they might tear it to bits and scatter it to the winds. Symonds was, however, able to quieten the tumult with timely explanations, and, what was more to the purpose, distributed a number of blankets amongst the chiefs, promising a similar gift to all others who would subscribe to the terms of the treaty.

The expedition displayed by Mr. Maunsell, but which had come so perilously near wrecking his own influence, proved an unexpected boon to Captain Symonds, who on examination of the signatures thus obtained discovered that with few exceptions all the influential chiefs as far south as Mokau, had acknowledged the sovereignty of the Queen. These few were resident in the districts of Aotea and Kawhia, and were within the sphere wherein was labouring the Rev. John Whiteley, [112] of the Wesleyan Mission. To him accordingly Captain Symonds wrote, "being well assured of the disposition on the part of the Wesleyan Mission to support the Government by every exertion in its power," and confided to him the execution of that portion of his instructions which he deemed could be more expeditiously carried out by the Missionary than by himself.

On April 18 Captain Symonds returned to Manakau, and there obtained seven more signatures. Te Wherowhero [113] was still obdurate, though manifesting no ill-will {154} towards the Government. His native pride had been hurt, and time had not yet healed his injured spirit.

In these latter negotiations Captain Symonds laboured under the considerable disadvantage that he was unable to procure the services of a competent interpreter, Mr. Hamlin [114] being absent on duties incidental to his station. The lack of all public ceremonial was also to his disadvantage, the pageant of which ever appeals with persuasive force to the impressionable mind of the savage; while the surroundings were not altogether without the suggestion that the crozier was still secretly opposing the Crown.

For the purpose of preserving the consecutive nature of our narrative it will be convenient at this point to digress for a moment, and in that time discuss a debatable point which must ere now have occurred to the reader, viz. what was Bishop Pompallier's attitude towards the treaty? To aid our judgment in this connection two classes of evidence are available,—that of the Protestant Missionaries and the official despatches of those engaged in the promotion of the treaty, on the one side, and the personal statement of his position by the Bishop on the other. Bishop Pompallier had landed at Hokianga in 1838 for the purpose of establishing a branch of the Roman Catholic Oceanic Mission, of which he had been appointed Vicar Apostolic. We have his assurance, which may be accepted without reservation, that he hoped to labour in a part of the country where he would not come into conflict with other Missions, and it came to him as a surprise, and probably as a deep disappointment, when he discovered that the existing Missions had so far covered the country that no such isolation was possible at Hokianga, upon which he had determined as the centre of his operations. But having come he decided to remain; and his advent {155} was a bitter trial to the representatives of the Protestant Missions, who foresaw in it a serious interruption of their work by the introduction to the Maori of doubts and controversies which, while disturbing, were not essential either to their civilisation or to their soul's salvation. [115] Exactly what they anticipated would occur, did occur, with the result that the animosities of religious rivalry were kindled in a way that had never been known between the Anglican and Wesleyan Missions; and the absurdity was not infrequently witnessed of Maoris confidently discussing matters of dogma which for centuries have baffled solution at the hands of trained theologians. The effect of this was to sow the seeds of bitterness in the hearts of the Protestant Missionaries, and there is sometimes noticeable a dearth of charity in their references to the Bishop which unfortunately is not singular in Church history.

We may, therefore, discount on the grounds of prejudice their accusations against the "Catholic Bishop" as much as we please, but we have still to account for the awkward fact, to which Mr. Colenso has drawn pointed attention, that the most violent opposition to the treaty at Waitangi came from the chiefs living under the religious guidance of Bishop Pompallier. The same circumstance was noted by Captain Hobson at Hokianga, by Captain {156} Symonds at Manakau, and by Major Bunbury at Tauranga. Was, then, this widespread disaffection amongst the Catholic converts merely a coincidence? or was it the fruit of suggestion?

It has to be admitted that whatever feelings animated the Protestant Missionaries, at least Captain Hobson was not the victim of religious prejudice. From the first he adopted an attitude of most respectful deference towards the Bishop, a partiality which the Frenchman was not slow to observe and comment upon. When, therefore, the Lieutenant-Governor, took the responsibility of stating in his despatch to Sir George Gipps (February 17, 1840), "The influence against me was easily traceable to the foreign Bishop of the Roman Catholic persuasion," he is at least entitled to the credit—considering the character of the man—of our believing that he would not have made so bold an assertion had he not been fortified by the conviction that there was evidence to support it. The same measure of confidence must be accorded to Captain Symonds, a military officer of, so far as we can judge, the highest integrity. In reporting the result of his mission at Manakau he records the fact that "Rewa the principal follower of the Roman Catholic Bishop, exerted all his influence against me," and that on his return to this settlement from the Waikato Heads a few days later, he was still unable to secure the signatures of certain chiefs, a failure which he attributed "partly to the Bishop's influence." Again bluff Major Bunbury tells us that when at the Otumoetai Pa, near Tauranga, "Another chief expressed some indignation because the Christian chiefs had not, as he said, met them. I presume he meant those from the other pa where Mr. Stack's influence was supposed to extend more than his own, and where a Roman Catholic Residency and the Catholic Bishop were supposed to have more influence."

Whether this failure on the part of the Christian natives to co-operate with the residents of Otumoetai in the consideration of the treaty meant their active hostility, or merely a negative indifference to the proposals {157} of the Crown, is not clear, nor is it certain to what extent the influence of the Missionary Bishop and his assistant contributed to either of these conditions, if either existed. Certain it is, however, that neither exerted themselves to aid the consummation of the treaty. Of this fact Bishop Pompallier has made no secret so far as he himself was concerned, and it is unlikely that his clergy would adopt an attitude different to his own. Neutrality he makes the buttress of his position, professing a total disregard for politics; his whole concern being the spreading of the Church's influence and the refutation of heresy. Of this, a perusal of the Bishop's own statement is the least devious road to proof:

The Bishop's publicly expressed views receive valuable confirmation from Captain Lavaud, of the French frigate L'Aube which reached the Bay of Islands in July 1840. After paying his respects to the Lieutenant-Governor, the Captain proceeded to the Bishop's house and there had an interview with the prelate, the substance of which he subsequently reported in the following terms to the French Minister of Marine:

Here then are the facts—conflicting it is true—from which no doubt conclusions equally conflicting will be drawn. Having regard to the high character of the Bishop it is inconceivable that he would desire to do anything but that which was right. It is, however, equally possible that he experienced a difficulty in completely suppressing his national feelings, and that he had unconsciously created for himself the paradoxical position of being neutral as an ecclesiastic, and yet hostile as a Frenchman.

Along the populous shores of the Bay of Plenty, and in the interior behind Tauranga, Hobson had as his allies the Revs. Brown and Stack, while William Williams [119] {163} carried the treaty from hapu to hapu through the rugged country on the eastern coast between East Cape and Ahuriri. [120] In a like manner upon Missionaries Chapman and Morgan devolved the onerous task of bringing the turbulent Arawas at Rotorua into line. The manner in which these minor envoys laboured, and the extent to which they succeeded is modestly told in their letters to the Lieutenant-Governor; but this much must in justice be said, that though their proceedings were necessarily less picturesque in their setting, and less sensational in their climax, they were equally sincere with those who garnered in the wider fields, and who in consequence have loomed more prominently in the historical perspective.

A mission upon a more extensive scale and one fraught with more important issues was entrusted to the Rev. Henry Williams. To this virile Missionary was allotted the task of bearding the lion in his den, for the Lieutenant-Governor had every reason to believe that the officers of the New Zealand Company would use whatever influence they possessed to prevent the consummation of a policy which in its ultimate effects they surmised would be so prejudicial to their own. For this assumption events proved there was only too much justification. The Government had, however, put its hand to the plough; and in Mr. Williams, Colonel Wakefield found a match both in determination and diplomacy.

A small schooner, the Ariel , owned and sailed by Captain Clayton, was chartered for the journey, and late in March they set off, calling at Tauranga and Poverty Bay en route , leaving copies of the treaty for local circulation as they went. The Ariel reached Port Nicholson late in April, her coming being by no means a welcome circumstance to the principal agent of the Company. The first meeting between Colonel Wakefield and the Missionary took place on the Saturday after arrival, at the house of Mr. Hunter, and was more animated than friendly. The former had either not yet received—or chose to {164} ignore—the private instructions of his superiors in England, to afford Captain Hobson all the aid and assistance in his power towards the attainment of British sovereignty. [121]

For ten days the Colonel doggedly held on his course of opposition, during which time there was a frequent clash of wordy weapons, the soldier seeking to vindicate the independence of his settlement on the ground that they had acquired their rights from the chiefs prior to the intervention of the Crown; the missionary maintaining that no such rights could be acquired by British subjects without the consent of the Sovereign.

Whether or not the constitutional nature of this argument appealed to the Colonel, it is impossible to say. In all probability it did not, but there are ample reasons for concluding that the governing influence in his conduct was a desire to obtain possession of a block of forty acres of land in what was then the most valuable portion of the infant settlement of Wellington, and to which Mr. Williams had acquired an undoubted title. Wakefield's subsequent actions at least indicate that his surrender did not carry with it his conversion to the treaty, which he still strove to persuade himself could not affect the purchases of the Company. But whatever the considerations that influenced him, just as the Missionary was preparing to depart in disgust, he at length [122] consented to withdraw his {165} objections to the chiefs considering the treaty, and retracting what Mr. Williams has been pleased to designate as his "insolent" remarks.

The character of the terms in which the Colonel was likely to address the Missionary may be judged from a paragraph in a letter indicted by him to his directors on May 25, 1840, in which he declares: "I cannot express to you the feelings of repugnance entertained by the respectable colonists who came into contact with Mr. Williams, towards him, on account of his selfish views, his hypocrisy, and unblushing rapaciousness. He frequently said that finding I had been before him in the purchase of land in the Strait without consulting him, he had endeavoured to do the best for himself, and had disparaged the Company and its settlers to the natives. On the whole, it was only by a great effort, and in the hope of benefiting the colony that I could bring myself to hold any terms with this worst of land-sharks." [123]

The hostility of the Company's principal agent once removed, thirty-two of the chiefs signed the treaty readily enough on the 29th of the month, the impression made on Mr. Williams's mind being "that they were much gratified that protection was now afforded to them in common with Her Majesty's subjects."

In his marked antipathy to Mr. Williams and all that he did Colonel Wakefield has endeavoured to deprecate the value of these proceedings in his report to his superiors, wherein he takes the responsibility of saying, "The natives executed some paper, the purport of which they were totally ignorant," and insinuates that the whole transaction took place in an underhand way {166} and had neither the countenance nor the assistance of the colonists.

The Ariel then crossed over to Queen Charlotte Sound, "where," says Mr. Williams in his Memoir, "we saw all who were to be seen there. We crossed over to Kapiti, Waikanae, and Otaki the stations of the Rev. O. Hadfield. The treaty was explained at all these places and signed. [124] On this visit I saw in the Bank at Wellington a map of New Zealand about six feet in length, and was told by the authorities of the New Zealand Company that the coloured portion was the property of the Company from the 38° to the 42° parallel of latitude. At this time there was no one in connection with their Company who knew anything of the language. A man named Barret could speak a few words in the most ordinary form. This man alone was the medium of communication between the Maoris and the Company in all their affairs, and the deeds of purchase were drawn up in English, not one word of which was understood by the Maoris."

It had been Mr. Williams's intention, after completing the collection of the signatures in the vicinity of Cook Strait, to proceed to the far South, soliciting the assent of the Ngai-Tahu tribe to the terms of the treaty. To this end he had already entered into an arrangement with Captain Clayton, who like the loyal sailor he was, readily agreed to forgo his more lucrative coastal trade in order that his vessel might remain at the disposal of the Government. Before this section of the voyage could be undertaken, however, it was ascertained that the Governor, deeming the mission worthy of some more ostentatious display of power than could be effected by a schooner, had commissioned Major Bunbury of the 80th Regiment to sail with Captain Nias in Her Majesty's frigate Herald , [125] {167} for the purpose of visiting the more important Southern settlements.

On hearing of this, Mr. Williams returned with all expedition to his duties at Waimate, which place he reached on June 10, bringing with him the famous Ngati-Awa chief, Wiremu Kingi, whose anxiety to see the Governor had induced him to travel all the roadless miles which lay between Waikanae and the Bay of Islands.

On the submission of his report to the Governor, Mr. Williams was the recipient of the most hearty congratulations from Captain Hobson, who recognised in the service of the Missionary an arduous task well and faithfully performed in the interests of the Crown.

On the morning of April 28 the Herald left her anchorage in the outer harbour of the Bay of Islands, carrying with her Major Bunbury, [126] commissioned to accept the signatures of the Southern chiefs; Mr. Edward Marsh Williams engaged to act as interpreter, and a small company of marines whose presence it was thought would add somewhat to the impressiveness of the occasion. Captain Nias was authorised "to display the force of his ship along the coast," and Major Bunbury was furnished with complete instructions for the governance of his conduct in all his negotiations with the native people, which needless to say, were to be continued along the strictly honourable lines which had hitherto been observed by the Lieutenant-Governor. Pursuant to these instructions the Herald entered the Coromandel harbour next {168} day (30th), and Major Bunbury, accompanied by Mr. Williams, landed at the house of Mr. Webster, an American whose claims to land in New Zealand have since been the subject of searching enquiry by his own country. The purpose of this visit was to arrange a time and place at which the chiefs might be invited to a korero . Monday May 4, and Mr. Webster's establishment were selected to fill these essentials, and messengers were accordingly despatched to the various surrounding pas to bid the chiefs to the conference. Hearing that the Scottish exile, Captain Stewart, the discoverer of the southern Island which bears his name, was at Mercury Bay, a special messenger was hurried off to him requesting that he would pilot the Herald in these waters, and likewise use his influence with the chiefs of Mercury Bay in the direction of securing their presence at the meeting, to both of which the sealer Captain gave a ready response.

"On the day appointed," so writes the Major, "Captain Nias, with several officers of the ship, together with Mr. Williams and myself, went on shore at 11 o'clock, but no native chiefs had at that hour assembled. A considerable number of Europeans appeared, however, to have been attracted by the report of the expected meeting. Subsequently a number of natives did assemble with six chiefs of different tribes. Mr. Williams explained the treaty; its object in consequence of the increasing influx of strangers; and that the claim for pre-emption on the part of the Crown was intended to check their imprudently selling their lands without sufficiently benefiting themselves or obtaining a fair equivalent. After a variety of objections on the part of the chiefs we succeeded in obtaining the signatures of four, one of these being the principal chief of the district the celebrated Horeta, [127] of Bannin's Island notoriety. The principal orator, an old chief named Piko, and another of inferior note, refused to sign, alleging as a reason that they wanted more time to assemble the different tribes of the Thames district, {169} and to consult with them, when they would also sign; but that he could, for himself, see no necessity for placing himself under the dominion of any prince or queen, as he was desirous of governing his own tribe."

This policy of procrastination was obviously induced by the intelligence which had reached them of the arrest at the Bay of Islands of a native, Kiti, for the murder of Mr. Williams's shepherd, Patrick Macdonald, and of his trial and subsequent condemnation. They did not complain of the injustice of the punishment, but the whole proceeding was so novel in its character, and so dubious in its ultimate result that they felt prudence warranted a deeper reflection than the subject had yet received. They therefore hesitated before committing themselves to a policy, the end whereof they could not see.

There was also a passing difficulty with those chiefs who signed the treaty, for these gentlemen elected to entertain so exalted an idea of the Queen's munificence that they deemed the homely blanket offered to them as being altogether unworthy of so great a Sovereign's generosity, and expressed a decided preference for forage caps and scarlet cloaks. There was greater unanimity displayed over the feast of pork and potatoes which Major Bunbury had thoughtfully provided for their entertainment before he left.

After completing arrangements for securing the signatures of a few eligible chiefs who were living near the Mission station of the Rev. Mr. Preece, Major Bunbury, late in the evening of Friday the 8th, took his departure from Coromandel in the schooner Trent , chartered from Captain Bateman, and coasted round to Tauranga, a district where, in consequence of a war with the Rotorua people, the claims of the Crown had not been enthusiastically received. On Sunday, at nightfall, the vessel arrived at the entrance of the harbour, but prudent seamanship dictated the wisdom of remaining in the offing till the morning, when the treaty party landed at the Mission station and were welcomed by Mr. Stack.

"I was agreeably surprised," wrote Major Bunbury {170} to Captain Hobson, "to learn that most of the native chiefs in this neighbourhood had already signed the treaty, the exception being the principal chief, and one or two of his friends at the Omimoetoi (Otumoetai) pa . This pa we visited the same evening, accompanied by Mr. Stack. It was a very extensive fortification, and appears to contain about one thousand men. The chief who had declined signing is a very young man, and his manner was timidly reserved and less prepossessing than most of those I had before seen. On our taking leave he made the usual remark, that he wanted to consult the other chiefs, and that he would meet us with them at the Mission station on the morrow. On the following day he did not speak until the close of the conference, and then only in private to Mr. Williams—after Mr. Stack and I had left them—to enquire how much he was to get for his signature. [128] Another chief expressed some indignation because the Christian chiefs had not—as he said—met them. I presume he meant those from the other pa where Mr. Stack's influence was supposed to extend more than to his own, and where a Roman Catholic European residentiary and the Catholic Bishop are supposed to have more influence."

A third chief, evidently of an enquiring mind, created some amusement by his quaint method of arriving at a complete analysis of the position. The debate had to all appearances closed—his own speech being no small contribution to the oratory of the day—and he was approached with a view to securing his signature, he firmly deprecated everything in the nature of hurry, and calmly taihoa-ed [129] the whole proceeding.

"Now first let us talk a little," he said. "Who was the first stranger who visited our shores?"

On being told it was Captain Cook, he continued, "And who was Cook's king, was he not Georgi?"

{171} To this a reply was returned in the affirmative. "And who then," he asked, "is this Queen?"

Major Bunbury took some trouble to explain to him that the King George to whom he referred had been dead for some years, as also his two sons George IV. and William IV., who had succeeded him on the throne, and that the present Queen now reigned because she was the next in line to these dead monarchs.

This modest little dissertation on the Royal genealogy appeared to satisfy him on that point, for he immediately adverted to the native wars, and more particularly to their own hostilities with the Rotorua tribes. Major Bunbury assured him that one of the principal objects of his mission was to persuade all the tribes at present at war to accept the mediation of the Governor, and to induce them to abide by his decision.

"If then your nation is so fond of peace, why have you introduced into this country firearms and gunpowder?" was his pertinent rejoinder.

To this Major Bunbury replied that the effects of this traffic had been much deplored by Her Majesty's Government, who were most anxious to mitigate its consequences by substituting justice and a regular form of government in their country for the anarchy which had prevailed, but this could only be done by the surrender of the sovereign rights to the Queen as asked for in the treaty.

"Not all," replied Major Bunbury, "but she is the Queen of the most powerful white nation." The Major then went on to explain that Britain had acknowledged the Maoris as an independent nation, but that arrangement had proved abortive in consequence of the native wars and their want of cohesion. To themselves alone therefore were to be attributed the evils from which they suffered. As a corrective for these political troubles the Government had not leagued themselves with other white nations to force an unwelcome authority upon them, but they had come direct to the Maoris themselves, and asked {172} them as a spontaneous gift to vest in Britain the power to avert the evils which were assuredly accumulating round them; evils due to the increasing influx of the Pakeha , and who must otherwise remain subject to no law and amenable to no control.

"On being told," continues Major Bunbury's report, "that I was a chief of a body of soldiers, and that I had served under the monarchs already named, he enquired should his tribe, agreeable to my request, abstain from making war upon the natives at Rotorua, would the Governor send a portion of my force to protect them? I told them Your Excellency desired rather to mediate between them, and only in cases of extreme emergency would you be prevailed upon to act in any other manner. If, however, your arbitration was applied for I had no doubt the custom of their country would be complied with, by your insisting on a compensation being made to the party injured, by the party offending."

Major Bunbury then dwelt upon the sale of native lands, and the right of pre-emption claimed for the Queen, explaining that this restriction was intended equally for their benefit, and to encourage industrious white men to settle amongst them to teach them arts, and how to manufacture those articles which were so much sought after and admired by them. This course, he pointed out, was preferable to leaving the sale of large tracts of country to themselves, when they would almost surely pass into the hands of men who would never come amongst them, but would by their speculations hamper the industrious. The Government being aware of the intentions of these men—many of whom had no doubt counselled them against signing the treaty—would nevertheless unceasingly exert themselves to mitigate the evils following in the train of the speculators, by purchasing the land directly from the natives at a more just valuation.

To this the Nestor of the tribe replied that there was but cold comfort in that for them, as their lands had already gone to the white men, but the land had been fairly sold and fairly bought.

{173} Feeling that he had now said all that he could say of a nature likely to influence the chiefs, and knowing the constitutional abhorrence on the part of the Maori to hurry in such matters, Major Bunbury intimated that he had still another pa to visit, and departed, leaving Mr. Williams to answer any new points which might be evolved in the fertile brain of the men who spoke for the tribe. Their further deliberations, however, took a pecuniary rather than a legal turn. Presents were demanded, and when Mr. Williams indicated that Major Bunbury would doubtless arrange that Mr. Stack should distribute his gifts to those entitled to receive them the sceptical diplomat, who believed in having his bird in the hand, was candid enough to remark that he was not enamoured of prospects so remote.

Before leaving the district Major Bunbury visited the chiefs of the Maungatapu pa , a stronghold of great strength, peopled by a tribe of considerable importance. These men being well disposed towards the Government had, with two exceptions, previously signed the treaty, and their reception of the Governor's representative was most cordial. The hospitality of his table was offered by Nuka, the principal chief, whose engaging manners and admirable bearing so impressed the visitor that he estimated his good-will as worth securing at the cost of "some mark of distinction" if ever it came within the policy of the Government to so honour the more discerning of the chiefs.

"I have deemed it expedient to enter more fully into the detail of this conference," wrote the Major to the Lieutenant-Governor in rebuke of the disloyal speculators, "as one which not only shows fully the general character of the natives, but also the nature of the obstacles I may hereafter expect to meet when principles alien to the Government have been instilled by interested Europeans into their minds, as exemplified also at Coromandel Harbour. Neither will I disguise from Your Excellency my regrets that men professing Christianity should, in a country emerging from barbarity, whose inhabitants are scarcely able to comprehend the simplest doctrines of the {174} Christian religion, endeavour to create distrust of its Ministers—of whatever persuasion—Christianity in any shape, with these people being better than the deplorable condition of many of them at present. It is not the specious professions of a religion which asserts itself unconnected with civil Government which should blind us to the political disunion it creates, but rather its sincerity should be tested by its acts and their effects whether it seeks to open a new field of labour before uncultivated, or to paralyse the efforts of those who have laboured to improve the soil by establishing themselves upon it. The latter I conceive is incompatible with such professions, while this country contains so vast a field untried, but still it is to be hoped reclaimable."

At the conclusion of the Tauranga conference Major Bunbury resumed his journey towards the south, the Missionaries being commissioned by him to continue their negotiations for signatures as opportunity offered. With the Arawa people at Rotorua, they had but poor success, for the reason that the members of that tribe were not altogether free to exercise their own will. Worsted in recent wars by Hongi and other victorious chiefs, the Arawas had in self-defence sought an alliance with the great Te Heuheu, of Taupo, whose protecting mana was at this time thrown over them, and fearful lest they might forfeit his good-will should they adopt a course to which they had every reason to believe their ally was hostile, they refused to subscribe to the treaty until the voice of Te Heuheu had been heard. This leads us to a point where it will be convenient to consider the attitude adopted towards the treaty by this remarkable man.

Te Heuheu Tukino was the second chief of that name, and was a leader endowed with exceptional power, being large of body and of brain. His home was on the shores of Lake Taupo, and by claiming certain geographical features as portions of his own body, he had thereby rendered his domain sacred, and so limited the right to dispose of it to himself. He was not amongst the chiefs present at Waitangi, for under the limited notice given by {175} Captain Hobson, that was not possible. It is even within the bounds of probability that had the messengers of the Lieutenant-Governor reached him he would have dismissed them as they came, for of this he was firmly convinced—that he was "a law unto himself," asserting his own rangatiratanga as sufficiently strong to rule his own people, for which he neither needed nor desired foreign assistance. His first introduction to the treaty came to him through his younger brother Iwikau, who, together with another chief of Taupo, Te Korohiko, were at the then small settlement which has now grown into the city of Auckland, when they were met by Captain Hobson's messengers, and invited to Waitangi. Iwikau and his companion was in charge of a company of Taupo natives who had gone to the shores of Waitemata harbour for the purpose of acquiring European goods. They had packed bundles of flax fibre on the backs of their slaves, who had carried this medium of trade over trackless miles to the coast in order that it might be exchanged for guns and powder. While trafficking with the Pakehas news came of the projected meeting at Waitangi, and some of the Nga-Puhi chiefs—so we are told—thus addressed Iwikau: "Go you to Waitangi, for you are the fish of the stomach of the island. [130] The mana of Queen Victoria is about to be drawn as a cover over the island. All we chiefs of the native people will pass under her and her mana , that we may not be assailed by the other great nations of the world."

To this Iwikau answered: "I will not be able to attend that meeting if such is its object, namely consenting to the mana of Queen Victoria being placed over us. The right man to consent to or reject such a course is my elder brother, Te Heuheu, at Taupo; and any action on my part might be condemned by him."

This objection was combated by the messengers from Nga-Puhi, who replied: "By all means go, that you may acquire red blankets to take back to your elder brother at Taupo."

{176} Iwikau was still obdurate, feeling that he had no authority to compromise his tribe in the absence of his superior chief, but the vision of the red blankets was more than Te Korohiko could resist, and he joined to those of the Nga-Puhi chiefs his own solicitations: "Oh, let us go that we may acquire the red blankets."

This appeal finally broke down the resistance of Iwikau. They attended the conference at Waitangi, and amongst others of influential rank were invited to sign the treaty. Before signing, Iwikau remarked to Captain Hobson, "I have heard the payment for the chiefs' consent to the Queen's rule consists of blankets." To which the Queen's officer, always anxious that his presents should not be misunderstood, replied, "No, not exactly. The blankets are not payment, but a friendly gift to you folks who have come from afar, and as a means of keeping you warm on your home journey."

The point of distinction was evidently neither so wide nor so fine as to cause Iwikau any alarm, and he signed the document with a portion of his moko , his clan being Ngati-Turumakina. Te Korohiko also signed, and when the gathering had broken up they returned to Taupo to report their proceedings. They met Te Heuheu at Rangiahua, his pa at Te Rapa, where he stood in the midst of the assembled people, a giant amongst men. When the self-constituted ambassadors had concluded their explanations, and produced their blankets the storm which Iwikau had secretly feared burst upon them.

"What amazing conduct is this of yours? Were you two, indeed, sent to perform such acts? O say! O say! is it for you to place the mana of Te Heuheu beneath the feet of a woman. I will not agree to the mana of a strange people being placed over this land. Though every chief in the island consent to it, yet I will not. I will consent to neither your acts nor your goods. As for these blankets, burn them."

Thus did Te Heuheu assert his prerogative, and scorn the interference of the stranger, but he was soon soothed into a more reasonable frame of mind, by Iwikau, who {177} urged his angry brother to await future developments when he would himself see the treaty. "Be not so severe and you can state your thoughts to the Queen's official yourself, for he is travelling the islands of Ao-tea-roa and Wai-pounamu, seeking you, the surviving chieftains, that you may agree to that marking." [131]

Te Heuheu consented to wait, and the blankets were for the moment preserved. At length news arrived that Parore, a Nga-Puhi chief, and the Queen's official were on their way to Rotorua to bear the treaty to the Arawa chiefs. Then Te Heuheu thus instructed his people: "When the officer reaches the Arawa at Rotorua I shall attend. Let the tribe accompany me, armed, as trouble may arise over my declining to accept the Queen's rule."

There was much burnishing of rusty arms and snapping of fire-locks at Taupo for the next few days, in anticipation of possible contingencies, for these inland tribes had not yet fully realised the peaceful nature of Britain's mission. Living as they did in the centre of the Island, they were less corrupted by the influence of the degenerate whites, and had neither seen nor felt the need for the interposition of a correcting hand in the same way that the imperative necessity for a change had appealed to the residents of the coastal districts.

Neither were the tribesmen of Te Heuheu being influenced by the same considerations that were driving Nga-Puhi to accept the gospel from the Missionaries and the treaty from the Government. For many years the northerners had enjoyed almost a monopoly in the business of procuring guns, and this superiority in weapons had enabled them to levy a bloody toll upon their southern neighbours. With the increase of traders and the enlarged enterprise of the tribes less favourably situated, this advantage was rapidly receding. Others were securing guns as well as they, and the leaders of Nga-Puhi saw that the day was not far distant when their victims would retaliate, and they would perhaps receive as good as they had given. They therefore welcomed the gospel as a {178} shield, and the intervention of British authority as a bulwark that would stand between them and their enemies whenever they should think fit to seek satisfaction for former injuries on something like equal terms. Not so the Taupo tribes, who were less controlled by such motives. Their position of greater isolation gave them the confidence begotten of a sense of greater security; they felt that they breathed the refreshing atmosphere of a wider independence, and were less subjected to the force of external considerations.

Moreover, the ceding of authority by treaty was an innovation dangerous in its novelty to a people who had known no method of acquiring or foregoing rights so effectual as conquest, and, confident in their own strength to maintain their position by the older method, they were less disposed to dabble in the subtleties of negotiation. With war and its consequences they were perfectly familiar. Diplomacy they did not understand so well; and when to the uncertainty of the procedure was added the supposed indignity of being asked to treat with a Queen, the haughty spirit of Te Heuheu rebelled against such a demeaning suggestion. To submit himself to the superior authority of a chief of his own aristocratic lineage would have been indignity enough, but to come under the dominion of a woman was beyond the limits of toleration.

In due course a messenger reached the pa with the intelligence that the Missionaries at Rotorua had received a copy of the treaty, whereupon Te Heuheu set off with five hundred picked men, prepared to resist to the uttermost should an attempt be made to compel his submission to the Queen. On reaching the Papai-o-Uru pa at Ohinemutu, the discussion began, after the ceremonial of welcoming the strangers had been concluded. The copy of the treaty which the Arawas were being invited to sign, had been entrusted to Messrs. Morgan and Chapman, the Church Missionaries, and to them Te Amohau and Te Haupapa addressed themselves on behalf of their tribe: "The Arawa people have nothing to say in regard to your {179} object. The Arawa will await the word of Te Heuheu Tukino, and will abide by what he says to you."

Te Heuheu arose with stately grace, and repeated an ancient chant, revered amongst the sacred karakia of the Maori, and known as Hiremai . He repeated it to the end, all ears being strained to detect an error, the commitment of which would have boded evil, but he went on faultless to the finish. Leaping to their feet his warriors then indulged in mock passages-at-arms, and when this form of revelry had ended the great chief delivered his judgment upon the treaty: " Hau wahine e hoki i te hau o Tawhaki . I will never consent to the mana of a woman resting upon these islands. I myself will be a chief of these isles; therefore, begone! Heed this, O ye Arawa. Here is your line of action, the line for the Arawa canoe. Do not consent, or we will become slaves for this woman, Queen Victoria."

Te Pukuatua then rose and gave the final answer for his tribe: "Listen, O Parore, you and your Pakeha companions. The Arawa have nothing to add to the words of Te Heuheu. His words denying the mana of the Queen are also our words. As he is not willing to write his name upon your treaty, neither will the chiefs of the Arawa come forward to sign."

Then turning to Te Heuheu he added: "Hear me, O Heu. The Arawas have nothing to say, for you are the person of the Arawa canoe."

The blankets given to Iwikau, at Waitangi, were returned to the Missionaries by Te Heuheu, with the remark: "I am not willing that your blankets should be received as payment for my head and these Islands," and with this embargo put upon their operations, the agents of the Lieutenant-Governor were unable to secure a single Arawa signature to the treaty.

The fiat of Te Heuheu went even far beyond the steaming waters of Rotorua, for at Tauranga upon the coast there lived Tupaea, a chief of the Ngai-te-Rangi, whom because of his influence the Missionaries were particularly anxious to enlist as a subject of the Queen. {180} He too hung upon the words of Te Heuheu, and when he was approached he made answer thus: "What did Te Heuheu say to you at Rotorua?"

"Then," said Tupaea, "I will not agree to the chiefs of Ngai-te-Rangi signing the treaty of Waitangi," a decision from which neither he nor his people could ever be induced to depart. [132]

In the meantime the Herald had left the Auckland waters, and made her way to the south, arriving off Banks's Peninsula during the night of the 24th. Calms and storms alternately intercepted her progress, and it was not until the 28th that Major Bunbury was able to disembark at Akaroa, accompanied by Mr. Edward Williams and Captain Stewart, whose personal acquaintance with the Southern chiefs and their altered dialect [133] was destined to be of great service in promoting a common understanding.

At Akaroa they found a native pa in which lived a remnant of the Ngai-Tahu people, broken by the last raid of Te Rauparaha, a whaling station, and a cattle run, [134] established by a Captain Lethart, who had arrived from Sydney as recently as the previous November. The visitors were more favourably impressed with the condition {181} of Lethart's cattle than with the appearance of the natives, who were so dejected by their misfortunes as to consider themselves almost destitute of rights and without a name. The signature of Iwikau, a brother of Tamiaharanui, the chief who was conveyed captive by Te Rauparaha in the blood-stained Elizabeth , was obtained, as well as that of John Love, another native less highly born, but more richly endowed with intelligence. These two signatures Major Bunbury conceived to be of considerable consequence to his purpose, although from the diminished number of the tribe the men themselves scarcely laid claim to the rank of chief.

Southward the frigate again sailed, and on June 4 cast anchor in Zephyr Bay, a beautiful inlet at Southern Port, Stewart's Island. Accompanied by Captain Stewart, who was now in latitudes peculiarly his own, Major Bunbury landed next morning, and set out to visit a station in the harbour, distant four or five miles, where for some time Stewart had employed a number of boat-builders, and who, it was hoped, might still be there. Vestiges of their former residence were found but that was all. Their camp was deserted, their industry abandoned, and no sound broke the stillness of the primeval forest save the flick of a bird's wing, or the screech of the brightly plumaged parrakeet.

Several excursions were made to other parts of the island, but no natives were met with, either upon the shores of the sheltered coves, or within the generous shade of the bush, and Major Bunbury returned to the ship for the first time without having added a signature as a trophy in the cause of the Queen's sovereignty.

Aided by his own experience, and fortified by the local knowledge of Captain Stewart, Major Bunbury concluded that the prospect of meeting with any chief in the apparently deserted island was so slight as not to warrant the delay involved in the search. He therefore consulted with Captain Nias, and together they agreed that it would be advisable to proclaim without protraction the Queen's authority over a territory that had impressed them both {182} as being singularly beautiful. [135] For this purpose, during the afternoon of the day after arrival, the marines were landed with a party of officers from the ship which had now been moved into Sylvan Bay. Here upon the apex of a small island which becomes a peninsula at low water, the ceremonial forms usual to such occasions were duly observed. The Union Jack was hoisted by Captain Nias and saluted by the marines. A salute was also fired from the guns of the Herald , and after the following declaration had been read by Major Bunbury to the assembled sailors, Stewart's Island became an outpost of the Empire.

On the island eminence, where the sovereignty of the Queen had been declared, the original of this document was {183} buried, enclosed in a bottle—a silent witness to be produced in the contingency of international complications, which were then believed to be by no means remote.

For three days the Herald lay weather-bound, but on Tuesday the 9th the wind shifted to a more favourable quarter, enabling her to leave her anchorage in Sylvan Bay and move over to Ruapuke Island, the home of the greatest of all the Ngati-Tahu chiefs, Tu Hawaiki, more widely known as "Bloody Jack." [136] On nearing the land a boat manned by some natives and Europeans came off, and a Mr. Hesketh boarded the Herald and explained that they had been expecting her arrival for some time. He represented himself as the resident agent of Jones & Co., of Sydney, and being on intimate business relations with Tu Hawaiki volunteered to go ashore and bring him off that evening, leaving an English seaman, formerly in the employ of Captain Stewart, to pilot the frigate to an anchorage. Here she lay in proximity to a French and a Portuguese whaler, neither of which had enjoyed a successful season:

Such is Major Bunbury's own account of his historic meeting with this singular native, whom he left upon his lonely island in the midst of a windy strait struggling between his native barbarism and an inarticulate craving for civilisation. On the 13th the Herald reached the Otago Heads, but so late in the evening that there was only time to obtain the signatures of two chiefs who resided near the entrance of the harbour. [140] Taiaroa was absent at Moeraki, and his son was so far inaccessible that the limits of daylight would not permit of his being reached. The boat, therefore, returned to the ship, and on June 16 she dropped anchor in Cloudy Bay, then the most important centre of European activity in the South Island.

Seven whalers were lying at anchor when the Herald arrived, and the strange admixture of humanity—the {186} venturesome, quarrelsome, quasi-criminal collection—which went to make up a whaling community was forcibly impressed upon Major Bunbury when he landed at Guard's Cove in the evening. The only chief of importance whom he met was old Nohorua, the elder brother of Te Rauparaha, who had with him three younger men, his nephews. Their reception of the Major was cordial enough, but when the subject of the treaty was broached to them they resolutely declined to attach their signatures to it, or to countenance it in any way. This attitude was adopted under the distinct impression that if they signed the document their lands would be taken from them, and considering that their only experience of deeds had been with the Sydney land sharks [141] the reservation was, to put it mildly, a natural one.

Not having been successful in securing the immediate concurrence of Nohorua, Major Bunbury left him in the hope that he would fulfil his reluctant promise to visit the ship on the following day, by which time he would have had the opportunity—dear to every Maori—of holding a korero upon the novel suggestion. Early next morning the Major, Mr. Williams, and Captain Stewart set off for one of the neighbouring coves, and here they met with greater success, the chiefs signing without any hesitation when the principles of the treaty had been explained to them. Amongst the various natives whom they encountered was a young chief whom Major Bunbury has called Maui Pu, who, having visited Hobart Town in the warship Conway , had sufficient command of English to converse freely with the Europeans. His sympathies were at once enlisted in support of the treaty, and when the difficulties met with at Guard's Cove were mentioned he expressed no surprise, as the natives had no conception of a deed that did not mean the sacrifice of their land. He, however, offered to go with them and assist at the {187} second interview with Nohorua, and so adroitly did he explain the purport of the second Article that the old chief's objections were at length so far overcome that he agreed to sign provided his signature was witnessed by his European son-in-law, Joseph Toms, [142] a whaler who had interests both here and at Porirua.

Though there is no definite information on the point, it is probable that Toms had added his persuasion to those of Maui Pu, as Nohorua's reason for insisting upon the above stipulation discloses the justice of his mind and his desire to fix the responsibility beyond any chance of evasion: "If my grandchildren lose their land, their father must share the blame." The three younger men having no son-in-law on whom to shift the responsibility still postponed the important step until they were aboard the ship.

On returning to the Herald there was a considerable gathering of chiefs awaiting the treaty party, and with the exception of Nohorua's nephews all expressed their willingness to subscribe to the terms of the compact. Not so these young gentlemen, who still held aloof. For their reservation, however, the wife of one of them was anxious to compensate, by demanding the privilege of signing the treaty. She claimed to be the daughter of the great Te Pehi, who was caught in his own trap at Kaiapoi in 1829, and when Major Bunbury politely but firmly declined to permit her the honour, she gave way to a fit of anger, and in a torrent of invective expressed her opinions concerning the Pakeha in general, and Major Bunbury in particular, with a freedom that would have been painful had all her observations been clearly understood.

As an evidence of the persistency with which these people had been harassed about their lands, and the jealousy with which they sought to preserve this class of property, it was noted that they all firmly declined to receive the presents [143] which it had now become customary {188} to offer, lest by some quibble it might be construed into a payment for its surrender, and in this attitude they persisted until they had been repeatedly assured to the contrary.

The Rev. Henry Williams having visited Queen Charlotte Sound during the course of his Southern Mission and secured the signatures of the chiefs there, Cloudy Bay thus became the last port in the Middle Island at which the Herald could profitably call. Under these circumstances Major Bunbury consulted with Captain Nias, and they were agreed that it would be advisable to at once proclaim the Queen's authority over the Island as the most effectual means of preventing further dissensions amongst the natives and Europeans.

This resolution was not hurriedly arrived at, for although many important signatures had now been obtained the whole position was so hedged about with intricately interwoven interests that Major Bunbury felt it was something akin to cutting the Gordian knot to take the contemplated step without further consulting the Lieutenant-Governor. Yet view the matter as he would, there appeared no simpler way, for there was every reason to believe that delay would only breed new difficulties, by suspending the establishment of political authority, and by affording other powers time to develop their embryonic claims. The presence, too, of so many vessels at anchor in the harbour seemed to lend opportunity to the occasion, for with their co-operation it was possible to render the declaration of Her Majesty's sovereignty more solemn and imposing, and where it was desired to impress the native mind Major Bunbury realised the advantage of pressing to his service the assistance of this additional theatrical touch.

The decision come to by the Major and Captain Nias was conveyed to the natives while they were still on board, and whether or not they were seized of all that the ceremony {189} involved, they entered with considerable enthusiasm into the spirit of the occasion.

In order to invest the intended declaration with becoming dignity the marines were landed on the little island on which was situated the Horahora-Kakahu pa . There a temporary flagstaff was erected and standing at the foot of it at 2 P.M. Major Bunbury read to the assembled people the following Declaration of Sovereignty.

The reading of the Proclamation done, the Union Jack was run up by Captain Nias, and the guns of the Herald began to boom forth the Royal Salute. The yards of the frigate were manned, and the cheers of those grouped round {190} the flagstaff were answered by those on board the man-of-war, the echoes from the surrounding hills being reinforced by the approving shouts of the natives.

The all-important step having now been taken and received with local approbation, the Herald weighed anchor and sailed for Kapiti [144] . Two days later (June 19), she arrived under the shadow of Te Rauparaha's home. By a fortunate circumstance the great chief, whom Major Bunbury had special instructions to see, was at that moment entering his canoe, preparatory to making an excursion to the Island of Mana. As the Herald's boat was proceeding to the shore the Queen's Commissioner and the chief met mid way, the meeting being of the most cordial nature. Te Rauparaha left his own canoe "in lordly decoration the lordliest far," and returned on board with Major Bunbury in the ship's boat. Here the proceedings of the Rev. Henry Williams were related by the chiefs—how he had explained the treaty, obtained Te Rauparaha's signature, and presented him with the much-prized blanket.

On enquiry being made by Major Bunbury for Te Rangihaeata and Te Hiko, he was informed that both these warriors were at Mana. As this Island lay directly in the route to Port Nicholson, the Herald was put about and her course shaped towards the south. Under a fresh wind the vessel was soon abreast of Mana. The chief and Mr. Williams accompanied Major Bunbury on shore, where they found Te Rangihaeata but Te Hiko was absent on an expedition to the mainland.

No record appears to have been preserved of the negotiations which followed between the representative of the Crown and the two leaders of the Ngati-Toa tribe. Major Bunbury contents himself with informing us that "the chief Rangihaeata, after some time, returned with {191} us on board, accompanied by Rauparaha, when both signed the treaty."

The importance of their discussion is, however, somewhat diminished by the fact that the elder chief had already signed the treaty under the persuasions of the Rev. Henry Williams, but their questions, which were certain to have been shrewd and searching, would have been interesting as revealing their mental attitude towards the proposed innovation. There is a widespread impression, founded upon equally widespread prejudice, that both men were thoroughly insincere [145] when they subscribed to the terms of the treaty, and this view is encouraged by the fact that at this time they stood less in need of British protection than any other chiefs of the native race. They were indeed masters of all the territory they claimed. Their immediate enemies had been defeated and crushed, their powerful foes were far distant. There was a gun in the hand of their every warrior, and solidarity in the ranks of their every hapu . So situated they had less to gain by ceding their sovereign rights than others had. Neither is it to be supposed that the advantages of their position were not apparent to themselves, for with their gifts of military command, they combined a state-craft that was of quite an exceptional order. If political considerations entered into the transaction at all, it is more than likely that a presentiment of impending trouble with the New Zealand Company was the governing influence in securing their adherence to the policy of the Crown, and in the light of subsequent events their fears were not unfounded—their foresight was almost prophetic.

While on shore at Mana, the protection of Major {192} Bunbury was solicited by a section of the whaling population against the alleged encroachments of the Maori chiefs in general and Te Rangihaeata in particular. Though clamorous for justice, they were unable to formulate any specific charges against the chief; and after such investigation as was possible under the circumstances, the Major came to the conclusion that the accusers were a set of "drunken, lawless vagabonds," and that so far from their having any just grounds of complaint against Te Rangihaeata, the chief in all probability would have more reason to feel aggrieved towards them.

The Herald's course was now directed to Port Nicholson, and arriving there next day (20th) she anchored inside the Heads, the wind and tide having failed her at a critical moment. Major Bunbury at once left the ship and pulled towards the Thorndon beach, where much to his surprise on landing, he met Mr. Shortland. The presence of Lieutenant Shortland at Port Nicholson at this juncture requires some explanation. Shortly after the departure of Major Bunbury from the Bay of Islands, copies of the New Zealand Gazette , a paper published by the colonists at Port Nicholson, reached the Lieutenant-Governor, and from the columns of this journal, as well as from other well-authenticated sources, he learned that the settlers had set up a system of Local Government consisting of a Council, over which Colonel Wakefield presided, and a bench of Magistrates, who were attempting to levy taxes, and to enforce punishments for breaches of laws enacted by their self-constituted authority. [146]

{193} To this latter tribunal on April 14 came a Mr. Wade, pleading for protection against the violence of Captain Pearson of the brig Integrity , his allegation being that this rude seaman had not only assaulted him, but threatened to throw him overboard. The law, such as it was, was immediately set in motion, the Captain was arrested and haled before Major Baker, who held the post of District Magistrate. To his other supposed offences, Pearson now added the more heinous one of refusing to recognise the jurisdiction of the Court. He defied the complainant to proceed with his charge, and dared the Magistrate to convict him. For this exhibition of independence he was immediately committed by the irate Magistrate, who could brook no such contempt for his brief authority.

On hearing of the fate of their Captain, the crew of the Integrity flew to arms and pulled to the rescue, but the settlers were loyal to the law and repulsed them. In view of this belligerent attitude on the part of his shipmates, it was deemed safer to incarcerate the recalcitrant Captain on board one of the other ships lying in the harbour, whither he was conveyed, but it is said, "owing to the culpable negligence of the constable in charge," he was permitted to escape.

While the authorities were foolishly dreaming that their victim was safely under lock and key, the Integrity sailed for the Bay of Islands, where Captain Pearson reported, no doubt with advantages, to the Lieutenant-Governor that the settlers at Port Nicholson were "a turbulent set of rebels who were seeking to establish a republic."

The story of the indignant Captain took Governor Hobson completely by storm, and after satisfying himself by reading the latest copies of the New Zealand Gazette [147] that it had some foundation in fact he developed a state of anxiety {194} not far removed from panic. It did not take him long, however, to determine how he should act in the emergency.

In the absence of any legal authority to advise him he rather absurdly interpreted the proceedings of the New Zealand Company as acts of high treason, and within an hour had ordered the officer commanding the troops to detach thirty men of the 80th Regiment for duty at Port Nicholson. He also, two days later, dictated a Proclamation in which he denounced the attempt to supersede the authority of the Queen, and called upon all loyal subjects to resume their allegiance to their lawful sovereign.

The exigencies of the circumstances were such as seemed to warrant the taking of even a more decisive step than the despatching of troops to Wellington, and without waiting for a report from Major Bunbury as to the success or failure of his mission, two other proclamations were hastily formulated and published, the one taking {195} possession of the North Island by virtue of its cession by the native chiefs; the other declaring the South Island to be part of the Queen's Dominions by right of discovery. [148]

In order to give effect to the views which he had formed Captain Hobson commissioned Lieutenant Shortland, in whose discretion he placed implicit confidence, to proceed to Port Nicholson, there to personally read the proclamations, and to take such steps as he might deem necessary to secure the due recognition of the Crown at the Southern settlement. Accompanied by the small detachment of troops, and a still smaller force of mounted police, under the command of Lieutenants Smart and Best, the Colonial Secretary reached Port Nicholson in the barque Integrity on the evening of Tuesday, June 2. A Mr. Cole [149] one of the civil staff, was immediately sent on shore with copies of the proclamations, and a letter to Colonel Wakefield, telling him it was Mr. Shortland's intention to land next day and read the proclamations, requesting at the same time that he would make all the necessary arrangements.

These dispositions were interfered with by a heavy gale which sprang up during the night, making it impossible to carry out the intended ceremony. In the meantime the Colonial Secretary was waited upon on board the Integrity by Dr. Evans, and Messrs. Chaffers and Tod, who came for the purpose of expressing the gratification it gave the settlers to learn of his arrival. They then proceeded to assure Mr. Shortland that their actions and intentions had been greatly misrepresented. Dr. Evans volunteering the information that their Council had been formed for no other purpose than to preserve the peace, and for mutual {196} protection until either the Lieutenant-Governor or some duly accredited representative of the Crown should arrive in their midst.

These assurances Mr. Shortland indicated he was prepared to accept, conditionally upon their being followed by some practical evidence of their sincerity. He told them plainly that the Council must disappear, that the flags flown as the insignia of its authority must come down, and that any proposal from any body of persons assuming any power or rights would be regarded by him as an act of hostility. To these conditions the deputation agreed and withdrew, after again protesting the loyalty of the colonists.

The storm having abated, Lieutenant Shortland landed on the beach at Thorndon at 2 o'clock on the afternoon of Thursday June 4, accompanied by Lieutenants Smart and Best and the four members of the police force. They were received on the beach by Colonel Wakefield, Dr. Evans, Captain Smith, R.A., and all the principal settlers, who conducted them to the appointed place of ceremony. Here the Colonial Secretary read the proclamations, which he assures us "were responded to by three hearty cheers; a royal salute from the Europeans, and with a war dance and general discharge of musketry by the natives who had assembled in great numbers."

As the last sounds of the rejoicing died away the leaders of the Settlement again pressed upon the Colonial Secretary their protestations of loyalty, and reiterated their assurances that in appearing to assume authority over the community they had been actuated by no other motive than a desire to preserve the peace and to protect their property. Under these circumstances the Colonial Secretary was able to write to Captain Hobson on June 20, "I have great pleasure in informing your Excellency that Her Majesty's Government is now fully established, and that both European and native populations are in a very satisfactory state."

Matters were in this position when Major Bunbury landed at Port Nicholson. He confirmed the harmonious nature of the relations between Pakeha and Maori in an interview he held with some native chiefs, and subsequently with Captain Smith, R.A., Surveyor-General to the Company. This gentleman expressed himself as being much annoyed at the exaggerated accounts which had been spread regarding the condition of the settlement, [152] and the disloyalty of the settlers, whom he averred had received the Colonial Secretary [153] with the most spontaneous cordiality, the feminine section of the community being equally enthusiastic in acclaiming the substitution of the British flag for that of the Company. These protestations must be received and accepted for whatever weight they may bear. It is a fact too well known to again require substantiation, that the intervention of the British Government {199} at this juncture was a grievous blow to the promoters of the New Zealand Company, and that whatever the feelings of the populace may have been, the leaders were never in a mood to express jubilation at the authority of the Crown thus unceremoniously overriding their own.

It is at least significant that the New Zealand Gazette , the organ of the Company, in its issue of June 6, is content with making the most meagre mention of the fact that Lieutenant Shortland had landed at Thorndon and read the Governor's proclamations. There is no enthusiasm, no shouts of acclamation described there, while the editorial is sullen in temper, and ill conceals the barb of disappointment, or the touch of sarcasm in its congratulations:

That these sentiments faithfully reflected the views of the leaders at Port Nicholson is scarcely open to question, for the writer was in daily communication with them, and the most cursory perusal of them is all that is needed to establish how much of elation there is in their tone. The fact is the despatch of Captain Hobson to New Zealand, and his subsequent success, brought the keenest mortification to Colonel Wakefield and his colleagues, and after resistance and ridicule had failed to prevent the consummation of the treaty, they adopted an attitude of silent but angry acquiescence in a line of policy which in their hearts they regarded with the utmost malignity.

One thing, and one thing only, made the new position tolerable to them, and that was the prospect of securing to their own settlement the seat of Government. To this end they adopted an address of welcome to Captain Hobson, and despatched Colonel Wakefield to the Bay of Islands to present it. The bait was offered of a hearty welcome and the most valuable sites in the town for the convenience of the public offices. Captain Hobson's failure to accept the bribe only added fuel to the smouldering fires of discontent and served to enhance the difficulties of his already intricate administration—perhaps to shorten his life.

The Herald left Port Nicholson just before dusk on Sunday the 21st, beating out of the Heads in the dark against a fresh south-east breeze, with her boats holding lights on the extremities of the outlying reefs for the guidance of the helmsman. Her journey along the coast was uneventful, and on the night of the 23rd she anchored in Hawke's Bay.

{201} On the following morning Major Bunbury landed in search of the chief Te Hapuku, the most influential representative of the Ngati-Kahungunu tribe living on this stretch of coast. By common report this chief had acquired an unenviable reputation for rapacity and extortion towards the Europeans settled at Ahuriri (Napier). For this reason Major Bunbury anticipated some little difficulty in finding him "at home":

Major Bunbury having now visited all the places of importance from the point of view of native population on the East Coast, the Herald once more set her course for the Bay of Islands, reaching port on July 4. Captain {203} Hobson had so far recovered in health, as to resume the active administration of affairs, and was at the moment of the Major's arrival "absent on a tour of duty." The propaganda of the treaty had prospered to the fullest expectation. Five hundred and twelve [154] signatures had been obtained, embracing almost every man of influence throughout the Islands with the exception of Te Wherowhero of Waikato, Te Heuheu, of Taupo, Te Waharoa, chief of Ngatihaua and Taiaroa, of Otago.

In recognition of this achievement Lord John Russell wrote to Captain Hobson then rapidly approaching his end: "As far as it has been possible to form a judgment, your proceedings appear to have entitled you to the entire approbation of Her Majesty's Government."

In these circumstances we have now reached that stage in our history where we may in words of the chiefs themselves, write: "Now, we, the chiefs of the Assembly of the hapus of New Zealand, assembled at Waitangi. We, also, the chiefs of New Zealand, see the meaning of these words. They are taken and consented to altogether by us. Therefore are affixed our names and our marks."

SIGNATURES TO THE TREATY OF WAITANGI

FOOTNOTES

[94] Although the Hokianga chiefs as a body were the most determined in their opposition to the treaty, it is worthy of note that they were afterwards the most faithful in their adherence to the Government, and fought gallantly under Waaka Nēne, Aperahama Taonui, and Mohi Tawhai against Heke and Kawiti, during the Northern war of 1845.

[95] These speeches are reported from notes made at the time by Lieutenant Shortland. In Captain Hobson's despatch he makes it appear that it was Papa Haiga (Papahia) who made this statement, but from Mr. Shortland's notes it would appear to have been Taonui.

[96] Afterwards Judge Manning of the Native Land Court, and author of that classic Old New Zealand .

[97] Meaning one who has been favourable to the introduction of Europeans.

[98] Altogether 120 signatures were obtained in the Hokianga district.

[99] Captain Nias conducted the meeting at the Waitemata, and secured eight or ten signatures.

[100] It is more than likely that at this date Captain Nias did not know the real nature of Captain Hobson's illness. Some correspondence which took place later in the month seems to suggest that there was a little friction between Dr. Lane, the ship's surgeon, and himself on the subject. On the arrival of the Herald in Sydney, towards the end of March, Dr. Lane was sent for by Sir George Gipps, who requested that he be furnished with a written report on the state of Captain Hobson's health. Dr. Lane replied, ascribing the illness to an attack of paralysis hemiplegica. In forwarding this report to the Governor, Captain Nias stated that "it is in total contradiction of everything he has stated before to me on the subject."

[101] The attitude of the Missionaries toward the treaty was well expressed by the Rev. Mr. Maunsell in a letter to the Colonial Secretary, Mr. Shortland, dated April 14, 1840.

[102] These services were acknowledged in the most generous terms by Captain Hobson.

[103] "The appointment of Police Magistrates was one of the first acts under the new order of things. Mr. Robert (?) Shortland, the first Police Magistrate, after the illness of Governor Hobson, styled himself Acting-Governor, and a more ridiculously pompous functionary could scarcely be imagined."—Commander Wilkes.

[104] "A report prevails and not without foundation that a conspiracy against the Government and Military exists amongst many of the chiefs of this neighbourhood. I know the persons implicated and I will have them closely watched. If there really is any truth in the matter it may be ascribed to the mischievous stories that have been circulated by low, abandoned Europeans who try to persuade the natives that we only wait until we are strong enough, to take possession of the land, and sell it, irrespective of Native claims."— Vide Captain Hobson's Letter to Sir G. Gipps, May 5, 1840.

[105] In many cases Mr. Shortland has used the baptismal name of the men who spoke, and in some instances, such as Forde and Marsden, it is now impossible to identify the men from their signatures on the treaty.

[106] A reference to the misrepresentations of the Europeans.

[107] "Our chief Noble has become quite a European in his habits. He has a neat little weather-boarded cottage, which is furnished with table and chairs like our own, and his food is much the same. He has purchased tea, sugar, and rice from the European settlers, and is as cleanly with his wife as any white person, and in all respects as comfortable. He assembles his servants and people about him, morning and evening for prayer, and all his concerns are conducted with the utmost order. His Excellency Governor Hobson has just visited this place. He, with his suite, supped at Noble's, and was vastly pleased with him."—Report of Mr. Puckey in Missionary Register , 1841.

[108] The meeting concluded with a war dance, and general discharge of musketry, and a feast provided entirely at Nopera's expense. Not only did he refuse to accept any payment, but he added to his generosity by sending to the Governor a present of pigs and potatoes.

[109] Captain William Cornwallis Symonds was the son of Sir William Symonds, Surveyor of the Navy, and was Deputy Surveyor of New Zealand. He accompanied Dr. Dieffenbach on some of his exploring expeditions, and made maps of his observations. He was also an enthusiastic student of the native language, and collected a vocabulary of 3000 Maori words. He lost his life in 1841 through his canoe capsizing while crossing the Manakau Harbour.

[110] Rewa had said at Waitangi that his opposition there had been inspired by the Bishop.

[111] The Rev. Robert Maunsell (afterwards Archdeacon Maunsell) arrived in New Zealand in 1835. He was a "ripe and trained scholar," and after he had mastered the native language became, next to Mr. Henry Williams, the leader of the Missionary movement. He rendered an invaluable service to the cause of Christianity by his translations of the scriptures and prayer-book into the Maori tongue. In July 1843 his house was destroyed by fire, and with it were lost the MSS. of his dictionary, and his revisions of the translated Psalms and Old Testament. He however courageously set to work again almost before the burns upon his hands had healed. A fund of £200 subscribed in England provided him again with a library.

[112] Afterwards massacred at the White Cliffs.

[113] Neither Te Wherowhero nor his brother, Kati, appear to have signed the treaty.

In the appendix to Kerry Nicholls' King Country appears the following as a portion of the late King Tawhiao's autobiographical narrative: "I remember a European coming to ask Te Wherowhero (Tawhiao's father) to sign the treaty of Waitangi. That European was Mr. Maunsell. The Maori he had with him was Tipene Tahatika. Te Wherowhero said he would not sign. Mr. Maunsell remarked to Tipene, 'This ignorant old man, if he had signed, I would have given him a blanket.' Te Wherowhero was then at Awhitu. Te Wherowhero's name was afterwards put to the treaty, but it was written by Te Kahawai, and not by himself."

[114] Mr. Hamlin, though laying no great pretensions to scholarship, was considered by the Maoris to be the most perfect speaker of their language in New Zealand.

[115] "Here I may remark that it is impossible to view with unconcern the injurious tendency of religious dissensions among a people just emerging from paganism. Between the disciples of the Bishop and those who have embraced the doctrines of Protestantism there already exists a feeling which borders on hostility, and it is not unusual to hear the former taunted by their adversaries as worshippers of wood and stone, misguided unbelievers, devils, etc. To express sentiments of severe censure against the Roman Catholic Church and its followers is not the most efficient means of advancing the interests of the Protestant Church, and in reply to the illiberal language which is dealt forth so unsparingly on this subject, we may cite among innumerable other facts, the life and actions of Fénélon, the most blameless and virtuous of men, in proof that a Roman Catholic clergyman is not of necessity either a Jesuit or a hypocrite. But holding in view the admitted tendency of religious dissensions to unsettle and weaken the impression of Christianity in the minds of the natives of New Zealand, and at the same time to foster dissension and angry feeling it is certainly to be regretted that an attempt has been made to introduce the doctrines of Rome into a field already preoccupied by the active and zealous emissaries of the reformed Church."—Jameson.

[116] "During my residence at the Bay of Islands, on this occasion, I derived much pleasure from the acquaintance and conversation of M. de Pompallier, the chief of the French Catholic Mission to the South Seas, and Bishop of Oceania, who was held in high esteem by every individual in the settlement, not only on account of his polished and courteous demeanour, but from his more important merits of learning, professional zeal, and practical benevolence. Whatever may be said of his persuasion, it is at least evident that no motives of a worldly or ambitious nature could have thus induced a man of rank and wealth to devote himself to the arduous and hazardous duties of a missionary in the Pacific."—Jameson.

[117] Captain Lavaud mentions that during this interview he had always addressed the Lieutenant-Governor as "Captain," and not as His "Excellency." He explains, however, that he did so "more by instinct than with any intention of being discourteous."

[118] The treaty is here transcribed in the Captain's Despatch.

[119] The Rev. William Williams does not appear to have obtained the signatures of Te Kani-a-Takirau or Houkamau amongst the chiefs of Waiapu. It is unlikely that men of importance such as these were overlooked, and we may therefore conclude that they objected to sign. Mr. Williams reported that he would require sixty more blankets to complete the gifts to the chiefs in his district. Mr. Williams was afterwards first Bishop of Waiapu.

[120] The district now surrounding Napier.

[121] "I desire to impress upon you the anxious wish of the Directors that you, and all the servants of the Company, should do whatever may be in your power to promote the success of Captain Hobson's mission, and to accelerate as much as possible the time when it is to be hoped that he, as Her Majesty's representative may establish a British authority and the regular application of English law, not only in the Company's settlements, but throughout the Islands of New Zealand."—Extract from a letter written by Mr. John Ward, Secretary to the Company, to Colonel Wakefield, after the Company had been advised that its proceedings were illegal.

[122] "On the Wednesday following, while preparing to take my departure—not being able to obtain the signatures required owing to the opposition of Colonel Wakefield and others, to the treaty between the chiefs and Her Majesty—Colonel Wakefield came to me, making a most ample apology, and expressed his regret that he should have given way to his hasty feelings on the previous Saturday, and hoped that I should not leave the port with unfavourable feelings, and that he was ready, if I wished, to make a public apology. The fact was that Colonel Wakefield wanted the land, and was willing to make any sacrifice confined to words."—Carleton's Life of Henry Williams .

[123] This letter, written subsequent to the Colonel's apology, was first made public through the columns of the London Times, and it was not for months afterwards that Mr. Williams heard of it. The history of the land transaction referred to, which excited the indignation (righteous or otherwise) of Colonel Wakefield, is fully told in that interesting book, Hugh Carleton's Life of Henry Williams , vol. i. pp. 237-243, and should be read by all impartial students of the question.

[124] Amongst others, by Te Rauparaha and his niece Topeora, the poetess, on May 14.

[125] Immediately after his seizure, Captain Hobson had dispensed with the services of the Herald , on account of his personal differences with her Captain. She then returned to Sydney, but Sir George Gipps sent her back again, telling Captain Nias that "naval co-operation was essential to the enterprise at New Zealand, as the Queen's sovereignty was established over only a small portion of the Northern Island."

[126] Major Bunbury, K.T.S., and a portion of his regiment (the 80th) were sent to New Zealand by Sir George Gipps in H.M.S. Buffalo , as the result of a request from Captain Hobson for some military support. They left Sydney just as the news of Captain Hobson's illness reached the seat of Government, and Major Bunbury was given a commission to act as Lieutenant-Governor in the event of Hobson's death or resignation.

In his Reminiscences the Major states that Captain Hobson begged him to undertake this Southern mission in order to relieve him (Hobson) from the necessity of again sailing with Captain Nias, with whom he had several violent quarrels about the salutes he was to receive and other similar details. "It was," says the Major, "a grievous sacrifice to make, the troops not having yet landed or arrangements been made for their accommodation, but I could not prevail upon myself to refuse him."

[127] Horeta te Taniwha, the celebrated chief known as "Hook-nose," who remembered Cook's visit to New Zealand.

[128] This was what the natives called "making their hearts good." "Pay us first and we will write afterwards." "Put money in my left hand and I will write with my right hand," was how they often expressed it.

[129] Taihoa = delay, postpone, put off, reserve for further consideration.

[130] Meaning that he was the representative of the central district.

[131] The writing of the treaty.

[132] Major Bunbury left eight blankets with Mr. Stack for distribution amongst future signatories, but the Missionary mentions in a subsequent letter: "Several more may be wanting if Tupaea and his friends sign." Tupaea would not sign, either when approached by Mr. Stack, or later when he paid a visit to Manakau. The above discussion explains why.

[133] The dialect spoken by the natives of the South Island of New Zealand differs in some important respects from that spoken in the North Island.

[134] Major Bunbury was so impressed with the fertile appearance of Banks's Peninsula that he recommended it be surveyed as soon as possible and thrown open for settlement in allotments of convenient size, in order to put a stop to the "preposterous claims" which were being urged by the Sydney land speculators. Most of these claims of "doubtful origin" originated in sales contracted with Taiaroa, the Otago chief, who had an equally "doubtful" right to sell. Taiaroa went to Sydney in the Dublin Packet in 1839.

[135] "In some excursions I made I was much pleased with the fertile appearance of this beautiful island, and although the winter was so far advanced it was not so cold as I had anticipated from its being so far south. Indeed the number of parrakeets seen flying about give it rather the appearance of a tropical island.... The soil appears in general good, with plenty of timber. There are several varieties of pine. All the trees, however, appear to be evergreens."—Major Bunbury's Despatch .

[136] Major Bunbury mentions that by this time he had become ashamed of this sobriquet, which was given to him by the whalers, and disowned it, preferring to be called by his native name.

[137] Tu Hawaiki had only returned in the previous month of March from Sydney, where he had been presented with these uniforms by Sir George Gipps. Shortly after this chief's repulse of Te Rauparaha at Lake Grassmere, on the coast of Marlborough, he boarded a British man-of-war, and on being asked who he was, proudly replied: "Me all the same the Duke of Wellington, Te Rauparaha all the same Napoleon."

[138] Another chief named Taiaroa is also credited with signing. It is difficult to determine which chief this was, as the great Taiaroa was at Moeraki at the time. Possibly it was one of his sons.

[139] These were Kaikoura and Taiaroa. The identity of this Taiaroa is not clear.

[140] There were two American and two French whalers at the anchorage here at the time.

[141] Major Bunbury mentions that some of these speculators had already sent a number of cattle over, but the natives resisted the occupation of their alleged purchases, and the persons who were placed in charge of the cattle "find themselves in rather an awkward predicament."

[142] Popularly known amongst the whalers as "Jordy Bolts."

[143] Major Bunbury mentions the eagerness manifested by the natives of Cloudy Bay for spelling-books and Testaments. On the table in his cabin was lying a Testament printed in the native language which had been given to him by Bishop Broughton. This was seen by some of the Maoris visiting the ship, who importuned him for it, with the result, he feared, that his refusal gave serious offence.

[144] As the Herald left Cloudy Bay, the Kaikouras, clad in their winter snow, loomed up in the distance, and Major Bunbury was deeply impressed with what he calls their "bleak and savage appearance." The Major took his departure from the Middle Island fully convinced that it had been greatly underrated by the authorities both in regard to the fertility of its soil and the intelligence of its natives.

[145] Te Rauparaha may have laid himself open to this charge of insincerity by afterwards making light of the fact that he had signed the treaty, and offering to sign again if they gave him another blanket. With Te Rangihaeata it was different. Savage that he was, he had the keenest sense of honour, and he would not have signed the treaty had he not approved it so far as he understood it. His subsequent rebellion was not a protest against the establishment of civil authority so much as it was active resistance towards what he believed to be the unfair if not the dishonest methods of land dealing adopted by the New Zealand Company, in whom he lost all confidence after their attempt to seize the Wairau Valley.

[146] Before the first batch of the Company's emigrants sailed from the Thames, they were induced by the Directors to sign an agreement binding themselves to "submit in all things needful to peace and order until the establishment of a regular Government." This meant that if any of them committed a breach of the law of England, he should be punished according to the law of England. This agreement was brought under the notice of Lord John Russell who challenged the right of the Company to enforce such a provision. The Company took the opinion of Serjeant Wilde upon the point, and his advice, given on November 14, 1839, was that (1) the parties will not be justified by law in acting under the agreement, (2) that those acting under it were liable to prosecution for so doing, and (3) the agreement should be abandoned.

[147] "Captain Pearson of the brig Integrity was arrested to-day (April 14) under a warrant issued for illegal conduct towards his charterer, Mr. Wade, of Hobart Town, and brought before the District Magistrate, Major Baker. The prisoner refused to recognise the Court, and was accordingly committed. The ensuing day Captain Pearson made his escape, and an escape Warrant has accordingly been issued against him."—Extract from New Zealand Gazette (the first newspaper published in the Colony), April 18, 1840.

[148] The proclamation itself does not make it clear on what grounds Hobson took possession of the "Island." Indeed it is so ambiguously worded that he seems to imply that he claimed it by right of cession. In his despatch to the Secretary for State, however, he made it clear that he intended to claim it "by right of discovery," a course which he had recommended to Lord Normanby before he left England.

[149] "Captain" Cole as he was sometimes called, because he had been sailing in an East Indiaman, had been one of the early Wellington settlers, having come out in the Aurora . On the arrival of Captain Hobson he removed to the Bay of Islands, and had succeeded in getting himself appointed chief constable at Port Nicholson, in which capacity he now appeared in the Southern settlement.

[150] As sovereignty over only a small portion of the Colony had at this time been ceded to the Queen, Hobson was claiming a wider jurisdiction than he was entitled to in describing himself as "Lieutenant-Governor of New Zealand." He was only Lieutenant-Governor in New Zealand.

[151] This also was a mistake. It should have been South, not North. On this error Sir George Grey once based the argument that New Zealand included New Guinea, and was entitled to claim control over it. The error was corrected and the boundaries so amended as to include the Chatham Islands.—Vide Letters Patent issued to Captain Hobson, April 4, 1842.

[152] It had been reported that the settlers were starving, which was quite untrue.

[153] While H.M.S. Britomart (Captain Stanley) was returning from her historic visit to Bank's Peninsula she put in to Port Nicholson and took Mr. Shortland on board, leaving Mr. Murphy to supply his place as the representative of the Government at the Southern settlement.

[154] This number was subsequently increased to 546.

[155] Mr. Fredarb, who was trading master of the schooner Mercury , added the following note to his copy of the treaty: "The chiefs at Opotiki expressed a wish to have it signified who were Pikopos ( i.e. Roman Catholics) and who were not, the which I did by placing a crucifix † preceding the names of those who are, as above, and at which they seemed perfectly satisfied."

CHAPTER VI
THE TREATY

Captain Hobson having now by his own efforts and the agency of those who were associated with him completed his negotiations with the native chiefs, it remains for us to examine briefly the nature of the compact into which the Maori and Pakeha had thus solemnly entered. The Treaty of Waitangi is a document of few clauses and precise terms. Yet under the conflicting interests which it was designed to harmonise few documents have been more generally misunderstood or more persistently misinterpreted. More than once in high places its utility has been denied, its simple contracts have been repudiated, and its existence has been ignored. Lawyers have repeatedly questioned its legality, courts have discussed its constitutional force, parliaments have debated its wisdom, but still it stands to-day—unaltered in text or spirit—the great charter of Maori rights. Its most virulent enemies have ever been the land speculators, and there are not wanting signs in these times of unsatisfied land hunger—of never-ceasing speculation—that the treaty has either been forgotten by those whose duty it is to remember it, or that its obligations have ceased to have their old-time moral value. Lest we forget that the treaty is still in force, and that native lands are not common plunder for the avaricious Pakeha , let us briefly review the circumstances which made the compact between the two nations a political virtue, if not a political necessity.

It is a principle recognised by the civilised nations of the Earth that the discovery of a waste and uninhabited {215} land by a pioneering country confers on that country a right, as against all other civilised countries, to colonise its new discovery. In such a case the discovering nation may in fact go further, by immediately taking possession of the new-found territory, and assuming sovereignty over it. In this way Norfolk Island being found devoid of inhabitants by Captain Cook, his discovery of the sea-girt isle not only entitled Britain to colonise it, but automatically added it to the possessions of the Empire. This principle has thus been concisely stated by Vattel: "All men have an equal right to the things which have not yet fallen into the possession of any one; and these things appertain to the first occupant. Wherefore, when a nation finds a country uninhabited and without a master, it may lawfully seize upon the same, and after it has adequately denoted its will in this respect another cannot thereof despoil it. Thus navigators going on their voyages of discovery, provided with a commission from their sovereign, and falling in with desert islands, or other desert lands, have taken possession of them in the name of their nation, and commonly this title has been respected, provided that thereupon a real possession has closely followed."

It is equally an acknowledged maxim of the Law of Nations that should the newly discovered land not prove to be "waste and without a master," but that it should be inhabited and under government of any kind, then the mere fact of its discovery by a civilised nation confers upon the discoverer no title to the soil, but only the prior right to colonise as against other colonising nations. This is but the natural reward which belongs to the enterprise displayed in fitting out ships and expeditions destined to navigate unknown seas or to travel in unknown lands. Such prior right to colonise is, however, strictly limited by the important consideration that colonisation can only take place with the free will and consent of the savage or semi-civilised inhabitants of the newly discovered country. In no sense does the act of discovery confer the right of property in the land, or the right of sovereignty {216} over its people. That is to say, in the abstract, no nation whatever can under any pretext violate the rights of any other independent nation. This was clearly the principle which guided those British Governments to whose lot fell the establishment of the first colonies in America. In all these cases was the property of the Indian tribes respected, and no land was acquired save by purchase, or by some other equitable arrangement made with the aboriginal owners. [156] Hence in the celebrated case of the Cherokee tribe against the State of Georgia, tried in 1832, before the late Chief-Justice Marshall, that eminent judge was able to declare that as the United States had only inherited its rights from Great Britain after the War of Independence, the individual States could not assume rights greater than Britain had claimed to possess prior to that event. No right in Cherokee lands therefore vested in the State until the Indian title had been honourably extinguished.

This equitable principle has not always been observed between so-called civilised nations and semi-barbarous peoples, but that it has long held a place amongst the ideals of men is suggested to us by the Phoenician legend, that when the merchant princes of Tyre and Sidon resolved to establish a trading factory on the site upon which subsequently rose the city of Carthage, they fairly bought the land from the natives of Northern Africa, the area being determined by the length of the thongs cut from a bullock's hide. Such a story, coming down to us as it does through the hoary mists of time, may or may not appeal to our practical present-day minds, but the fact that it was commonly told and commonly accepted amongst the ancients is at least an indication that the principles which govern the conduct of modern nations towards their less fortunate brethren are founded upon and have the sanction of great antiquity.

{217} When we come to apply these principles to New Zealand it is of course necessary to remember that the first European discoverer [157] of this Dominion was not Cook, but Abel Tasman. The Dutchman's association with the country was, however, so cursory, and his nation's subsequent interest in it so nominal, that to the sailor it appeared only as "a great land uplifted high," while to his countrymen it was known only as a vague scrawl upon the chart. That Tasman's discovery of 1642 gave the Dutch a right to colonise in New Zealand had they been so disposed is undoubted; but whatever rights they had thus acquired, such were clearly exhausted by Holland's failure to assert them during the long period of 135 years that elapsed before Cook came to make a reality of what to Tasman had only been a shadow.

With his characteristic thoroughness Cook left no weak link in the claim which he made on behalf of his nation. He landed on our shores, held intercourse with the natives, he surveyed our coasts, he took formal possession of both Islands "in the name, and for the use of His Majesty King George III."

"A philosopher perhaps might enquire on what ground Lieutenant Cook could take formal possession of this part of New Zealand in the name and for the use of the King of Great Britain, when the country was already inhabited, and of course belonged to those by whom it was inhabited, and whose ancestors might have resided in it for many preceding ages. To this the best answer seems to be that the Lieutenant in the ceremony performed by him had no reference to the original inhabitants, or any intention to deprive them of their national rights, but only to preclude the claims of further European navigators, who under the auspices and for the benefit of their respective States, or Kingdoms, might form pretensions to which they were not entitled by prior discovery."

So wrote one of the great explorer's most friendly biographers, and in his dispassionate review of the facts we have a correct summation of the rights which Cook's {218} discoveries did and did not confer upon our nation. Clearly New Zealand was not a country in which, or over which, Britain could, by Cook's act, acquire a bona fide possession, for it was inhabited by a strong and virile people, living under a system of government adequate in all respects for their social and military purposes.

In conferring upon New Zealand her charter of severance from New South Wales in 1840 Lord John Russell thus conveyed to Captain Hobson his view of the governmental state to which the Maori had risen: "They are not mere wanderers over an extended surface in search of a precarious existence; nor tribes of hunters, or of herdsmen, but a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil; who are not without some measure of agricultural skill, and a certain subordination of ranks, with usages having the character and authority of law." New Zealand then being an inhabited country and a country under a system of government at least so efficient as to subsequently induce the British authorities to recognise the Maori nation as an independent State, it becomes obvious that this could not be designated a land which could be lawfully seized upon by circumnavigators.

But such rights as Cook's discoveries did confer upon the nation, the Government of that day sought to conserve. Following upon his return to England with the accounts of his travels in strange waters, his contact with strange peoples, his finding of new lands, proclamations were issued which were not contested by other Powers. The Dutch title to these islands was thereby lawfully extinguished, and New Zealand, Van Dieman's Land, and Australia became for geographical and colonising purposes portions of the British Empire.

A laudable effort was made to render the claims of Britain even more explicit when in 1787 Captain Philip was appointed by Royal Commission Captain-General and Governor-in-Chief in and over the colony of New South Wales and its dependencies, which were claimed to {219} include all the discoveries of Cook in the Southern Pacific. The territory over which the new Governor was authorised to exercise jurisdiction was described in his Commission as extending "from Cape York, the extremity of the coast to the northward in the latitude of 11° 37´ south, to the South Cape, the southern extremity of the coast in the latitude of 43° 30´ south, and inland to the westward as far as 135° of east longitude, comprehending all the islands adjacent in the Pacific Ocean within the latitudes of the above-mentioned capes."

Unfortunately, owing doubtless to imperfect geographical knowledge on the part of those responsible, these boundaries were but loosely defined, for if they had been strictly adhered to, then Britain was setting up a claim not only to Cook's valuable discoveries, but to all the islands eastward of Australia, as far as the western coast of South America, embracing many Spanish discoveries; while on the other hand they excluded not only Stewart's Island, but all that part of the Southern Island of New Zealand south of Bank's Peninsula. Governor Philip's Commission was therefore faulty, because it asserted excessive rights in the one direction and made insufficient claims on the other.

It is true that in later years these boundaries were abandoned and the position made even more anomalous. During the Governorship of Sir Thomas Brisbane it was deemed expedient to separate Van Dieman's Land from New South Wales, and more circumscribed limits were assigned to the Mother State. In this readjustment, whether by accident or design it is impossible now to say, not only Van Dieman's Land but New Zealand were excluded from amongst the dependencies of New South Wales. Then it became an arguable point whether the word "adjacent" had ever covered Islands so far distant from the parent colony, and much legal acumen was expended in the effort to justify the contention that New Zealand had always been beyond the pale of the dependencies.

Up to this point, however, the official mind had never {220} been troubled by doubts as to the extent of its jurisdiction. Governor Philip not only believed that his authority extended to New Zealand, but far beyond it, and under this belief he actually colonised Norfolk Island as a part of the territory he had been commissioned to govern. In like manner the British Government believed it had a right to all that it claimed in Philip's Commission; and at the Congress of Vienna at the close of the Napoleonic wars in 1814, when the map of Europe was recast, it had its claims allowed, New Zealand being acknowledged by the Great Powers to be a portion of our then infant Empire. Even earlier in the century Ministers had seriously discussed a representation made by Lieutenant-Colonel Foveaux, of the New South Wales Corps, to appoint a Lieutenant-Governor in New Zealand, which under his scheme was to become a penal settlement subordinate to New South Wales. Fortunately for New Zealand that baneful suggestion was not entertained; but Governor Macquarie appointed Justices of the Peace and exercised the functions of Government within the Islands, as did his successor, Sir Thomas Brisbane, down to the time of his proclamation which excluded New Zealand from amongst the dependencies of New South Wales.

Thus far Britain would seem prima facie to have kept alive her right to colonise in these Islands as against any other nation, except, perhaps, in the important particular that she had not systematically occupied the land. It is not sufficient that discovery should take place, or that the free will and consent of the native inhabitants should be obtained to the introduction of colonisation. It is an essential factor in the acquisition of new territory that the sanction thus secured should be followed up by speedy emigration and effective settlement, for obviously no nation could be permitted to hold idle for an indefinite period vast tracts of waste country to the exclusion of another nation to whom the inhabitants might also be willing to concede the right to colonise. The principle upon which this view is based has thus been stated: "The Law of Nations, then, will recognise the proprietary {221} rights, and the sovereignty of a nation over only uninhabited countries which it shall have occupied really and in fact, in which it shall have formed a settlement, or from which it shall be deriving an actual use."

In the case of inhabited countries the condition of occupation is no less exacting. It is, however, hedged about by the additional restriction that before occupation can take place the right to settle must be ceded by the inhabitants. Had the point ever become one of national importance as between ourselves and France, Britain might have pleaded that her occupation was at least as far advanced as that of her rival. She might have pointed to her Missionaries, her traders, and her whalers as evidences of an irregular settlement by no means inconsiderable. But whatever importance British jurists may have attached to such a form of occupation in the settlement of an international dispute, it cannot be denied that it loses much of its value from the fact that the settlement was irregular, and that British Ministers would have been put in the anomalous position of calling to their aid a condition of society which had arisen, not with the sanction of the Crown, but in spite of the Crown.

If these views be founded on the principles of justice, it will be seen that it is a popular fallacy to suppose that Britain acquired any rights of sovereignty in, or over New Zealand by virtue of Cook's discovery. Her position in 1770 was much less absolute than that, and whatever rights she had then acquired she subsequently proceeded to abrogate. In 1817 commenced a period of renunciation during which successive British Governments appeared only too anxious to absolve themselves from all further colonial responsibilities. Not only by neglect, but by direct Act and Ordinance did they repudiate the claim to New Zealand which their predecessors had been laboriously building up through all these years. These Acts of repudiation were specifically enumerated by Lord John Russell in the memorandum which he prepared for Lord Palmerston in reply to the protest of the New Zealand Company against the views on sovereignty adopted by Lord {222} Normanby in his instructions to Captain Hobson, and it was the known abrogation in these statutes of whatever claim Britain may have had to New Zealand that led to the Declaration of Maori Independence in 1835.

It cannot be said that this Declaration of Independence was a serious bar to Britain's colonising scheme, for under the Confederation of Chiefs which grew out of it, no Government was founded stable enough to merit recognition by other established administrations. Indeed its own members were the first to acknowledge its failure in the face of the difficulties by which it was confronted. As useless and as harmless as the "paper pellet" to which it has been compared by the sarcastic Gipps, it was neither government for the Maori nor a controlling influence for the Europeans. It was therefore not that which the Maori had done which created difficulty for the Melbourne Cabinet when they had seriously to face the question of assuming responsibility in New Zealand—the obstacles to be overcome had, curiously enough, been raised by the acts of the British Parliament itself. This was why, at the critical hour, Britain stood in no better position towards New Zealand than did any of the other nations; why she had to run the gauntlet of their competition for sovereignty, and why more astute statesmanship on the part of France or the United States might have robbed her of "the fairest flower in all the field."

In bidding for the sovereignty of the country two courses were open to the British Government—force of arms, or honourable negotiation with the chiefs. It is not to be doubted that had Britain chosen to invade the country, she might, by pouring her battalions into it, in course of time have overcome the tribes by the slaughter of the sword. But who can estimate at what a cost the country would thus have been won?—while the crime of it would have been even more awful to contemplate than the sacrifice of blood and treasure. Happily it can never be suggested that Lord Melbourne's Ministers had ever contemplated such a mode of securing sovereignty. Their personal view was that it must be ceded if it was to be {223} acquired at all, while the House of Commons had made it abundantly clear that it would accept it on no other terms.

Here then we have the genesis of the treaty. Discovery gave us no right of sovereignty. Force of arms was incompatible with the spirit of the times; possibly beyond the resources of the nation. Negotiation on the other hand had been made easy by the labours of the Missionaries, and the repeated expressions of good-will which had passed between the British Sovereigns and the chiefs. It was the line of least resistance; a mode agreeable to the national conscience, and approved by the laws of civilisation. For these all-sufficient reasons then Captain Hobson was despatched to New Zealand, charged with the mission of securing for the British Crown the sovereignty of the country by the "free and intelligent consent of the natives, according to their established usages."

In proceeding to an analysis of the treaty itself it will not be necessary to refer to the preamble, which is but an abridged recital of all that has appeared in the previous chapters of this work. It asserts no principle, and is remarkable only for the fact that it reflects in dignified terms the spirit of justice and equity in which its promoters desired to approach the Maori people.

In the first clause the chiefs both within and without the Confederation were invited to "cede to Her Majesty Queen Victoria absolutely and without reservation all the rights and powers of sovereignty which the said Confederation or individual chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective territories as the sole sovereigns thereof."

It has been said that this was a condition which the natives never did, and could not possibly understand, seeing that they had neither sovereignty amongst themselves, nor any word in their language to express the idea of sovereignty. Their tribal system, it is true, was fatal to the principle of sovereignty in its broadest sense, and until the formation of the Confederation of Chiefs there was no force amongst them capable of exercising absolute {224} authority over any great number of the people, the sovereignty of each chief being limited to his own tribe. No real sovereignty, however, vested even in the Confederation. From the first it was impotent as a national Government, because it lacked the requisite cohesion. Mutual tribal jealousies still prevailed, making it a Confederation only in name; and so far as is known it did not pretend to exercise any sort of dominion over the people after the excitement consequent upon the advent of Baron de Thierry had subsided. The native mind had therefore learned nothing of what was meant by sovereignty as we understand it, from the union of their chiefs. All that they knew of a paramount authority which it was their duty habitually to obey was the mana [158] of their personal chiefs. That they understood perfectly, and that conveyed to them all that they required to understand. Each chief was a sovereign over his own people, and the people were not so lacking in intelligence as not to perceive that the treaty meant the passing of this mana from the chief to the Queen. It would, of course, be radically unsound to pretend that every native who signed the treaty had perfectly grasped its provisions, and knew with even moderate certainty what he was retaining and what he was conceding. In many instances, particularly where the land had already been sold, it might not be incorrect to say that some of the chiefs did not even attempt to comprehend it. The red blanket [159] or the juicy plug of tobacco was an irresistible bait to many who felt they had no longer a "name," and so far as they were concerned, sovereignty and all else might fly {225} to the four winds so long as their personal wants and their love of colour were gratified. The predicament in which those natives found themselves who afterwards alleged they had signed the treaty without a full appreciation of its terms and its obligations was poignantly put by Paora (Paul) Tuahaere, who, speaking at the Kohimarama Conference [160] in 1860, said the treaty had come "in a time of ignorance," and upbraided the elder chiefs for being caught thus unwarily. "Blankets were brought by Mr. Williams. These I call the bait. The fish did not know there was a hook within. He took the bait and was caught. When he came to a chief Mr. Williams presented his hook and drew out a subject for the Queen."

In less figurative, but not less pointed speech, Paora was supported by Heme Parae, who declared that the only law he heard of in 1840 was the law of God. "As to what is called the Treaty of Waitangi, I have heard nothing about it. It is true I received one blanket from Mr. Williams, but I did not understand what was meant by it. It was given to me without explanation by Mr. Williams and Reihana."

Twenty-three years after the event, when discussing the mental attitude of the Maori towards the treaty, the Rev. John Warren, one of the Wesleyan Missionaries, wrote: "I was present at the great meeting at Waitangi when the celebrated treaty was signed, and also at a meeting which took place subsequently on the same subject at Hokianga. There was a great deal of talk by the natives, principally on the subject of securing their proprietary right in the land, and their personal liberty. Everything else they were only too happy to yield to the Queen, as they said repeatedly, because they knew they could only be saved from the rule of other nations by sitting under the shadow of the Queen of England. In my hearing they frequently {226} remarked, "Let us be one people. We had the Gospel from England, let us have the law from England." My impression at the time was that the natives perfectly understood that by signing the treaty they became British subjects, and though I lived among them more than fifteen years after that event, and often conversed with them on the subject, I never saw the slightest reason to change my opinion. The natives were at that time in mortal fear of the French, and justly thought they had done a pretty good stroke of business when they had placed the British lion between themselves and the French eagle. We have heard indignation expressed at the way in which the natives were, in the treaty, overreached by the Government, especially in the matter of securing to the Queen the right of pre-emption in the purchase of their lands. There is a native proverb which says, with reference to a man of great keenness and sagacity, 'He was born with his teeth,' and in the matter of making bargains the New Zealanders may be said to be a people who were born with their teeth. I believe it is a very long time since it was possible to overreach the natives much in a bargain. I know that their particular clause of the treaty was there by their own urgent request, and that it met with the universal and unqualified approbation of the chiefs."

In adopting this view Mr. Warren is not singular, for we find that his impression is confirmed by many equally competent authorities. It would therefore be an undeserved reflection upon the well-established intelligence of the Maori race to suppose that these indifferents constituted any large section of the people, there being amongst them a wide comprehension of the two great principles embodied in the treaty—that they were surrendering the magisterial control of the country to the Queen, and retaining the possession of the land to themselves. [161] The speeches of its opponents were eloquent of this fact. This {227} was what Te Kemara meant when he exclaimed, "If thou stayest as Governor then perhaps Te Kemara will be judged and condemned. Yes, indeed and more than that—even hung by the neck." This surely was what the great Te Heuheu of Taupo meant when, addressing some natives who had signed the treaty, he said: "You are all slaves now. Your dignity and power are gone, but mine is not. Just as there is one man in Europe, King George, so do I stand alone in New Zealand; the chief over all others; the only free man left. Look at me, for I do not hide when I say I am Te Heuheu. I rule over you all just as my ancestor Tonga-Riro, the mountain of snow, stands over all this land."

The forms by which our sovereignty was exercised were doubtless new and strange to them, as witness their amazement at the pains the Crown took to prove a crime against a prisoner who had already confessed his guilt. [162] In some instances the degree of authority parted with may also have exceeded their anticipations, for we are told that it came as a shock to some of the chiefs when they discovered that they were not free to kill their slaves under the new regime as they had been under the old. Failure to comprehend such details is understandable in the peculiarity of the circumstances. Indeed complete clarity of mental vision could not have been expected, and would not have been attained in all particulars had civilised men instead of savages been concerned. The natives, however, understood clearly enough that for the advantages they hoped to reap from the treaty they were yielding much of their existing power to the Pakeha Governor, and whether it was much or little they were the more willing to surrender it because they realised that the advent of the European had so altered their social conditions that rule by the old method was no longer possible.

To these convictions must be added the indispensable {228} persuasions of the Missionaries, in whose word and advice the Maoris placed implicit trust; but the thing which proved the determining influence in the negotiations—more than the inducements offered by the Crown, or the persuasions of the Missionaries—was that the chiefs had acquired a clear grip of the primal fact that whatever it took from them, the treaty left them in secure possession of their lands.

The sovereignty was the shadow, the land was the substance; and since the shadow was already passing from them by force of circumstances over which they were powerless to exercise control, they consented to its surrender with all the less regret. Once having determined upon this course, and given effect to their determination, there was no wavering, even though in its early stages the rule of the Pakeha must have clashed harshly with their ideas of individual authority. The Maori people were a people capable of delegating their sovereign rights, and they did so delegate them. The Treaty of Waitangi therefore became what it professed to be, a yielding of the supreme political power in the country to the British Crown, [163] and when the last signature had been put to it, Britain's right to colonise and govern in New Zealand was incontestable before all the world.

That is why it has always appeared to the writer that there was at the time, and has been for many years since, much beating of the air by the importance given to the so-called race to Akaroa, between the British sloop Britomart and the French frigate L'Aube , when, soon after the consummation of the treaty, the sovereignty of the {229} South Island was supposed to be in danger. As this incident is the leading historical event which seems to challenge the value of the clause now under review it will be convenient to discuss it here.

Major Bunbury had returned from his southern mission on July 4, and at midnight of the 10th the French corvette, L'Aube , cast anchor in the Bay of Islands. From the pilot who went out to bring her in, Captain Lavaud heard that British sovereignty had been proclaimed over the country by Captain Hobson, and that the Union Jack was flying over his residence as an evidence of the fact.

This was serious intelligence for the Frenchman, who saw in it a circumstance that would render discreet a material modification of the instructions under which he had sailed from France. He had been commissioned to hoist the French flag at Akaroa, where a colony of his countrymen was to be established under his protection. These instructions had been given to him by the French Ministry in ignorance of the British Government's intentions, and Captain Lavaud now saw that to carry them out in their strict and literal sense must inevitably plunge the two countries into a distressful and useless war. The French Commander thus found himself in a position of great delicacy, but fortunately he was an officer blessed with a healthy frankness of spirit, and he lost no time in communicating to Captain Hobson the real nature of his mission. So soon as he had satisfied himself by an examination of the treaty and the proclamations that British sovereignty had been procured in a manner such as could be approved by other nations, and was effectual in its operation, he readily agreed to respect the rights thus acquired without committing himself so far as to formally acknowledge them until he should hear further from his own Government. At the same time he undertook, upon the first opportunity, to communicate with his Minister, and he entertained little doubt that on his representation of the altered conditions he would be instructed to recognise British sovereignty, and honour the British flag. It is at least certain that at the conferences between the two {230} officers, an amicable arrangement was arrived at by which the French commander was able to preserve the honour of his own flag, while avoiding the tragedy of a conflict between their respective countries. There is even colour for the suggestion that the subsequent despatch of H.M.S. Britomart , followed by L'Aube , was only a part of a preconcerted plan, and that the much-paraded race to Akaroa between the French corvette and the British sloop was not a serious contest for sovereignty, but merely a little piece of theatrical play, promoted for the purpose of saving the Frenchman's face. Certain it is that before he left the Bay of Islands, Captain Lavaud had realised that it would be impossible to carry out his instruction at Akaroa without rupturing the national peace, and he was equally determined that he would not accept the responsibility of firing the first shot until he had been further advised from Paris. When this is understood it is all that is necessary to explain the conciliatory manner in which he met the British demands at Akaroa, and participated with our officers in the preservation of order at the southern settlement.

During their stay at the Bay of Islands the officers of L'Aube were entertained with the utmost cordiality by Captain Hobson, who in conversation with their Commander learned something of the proceedings of the Nantes-Bordelaise Company, a colonising corporation organised in France for the purpose of establishing a settlement of their own countrymen at Banks's Peninsula, and whose vessel, the Comte de Paris , was now within a few days' sail of the coast. In 1838 a Captain L'Anglois, as master of a French whaler, had visited Banks's Peninsula, and there, for some articles of European manufacture valued at £6, together with some agreeable promises, had secured the signatures of several chiefs to a deed conveying to him an estate of 30,000 acres of the Peninsula's finest land. [164] This document, composed in French, provided {231} the basis of a negotiation which L'Anglois arranged between two mercantile firms in Nantes, two in Bordeaux, and three Parisian gentlemen, by which they agreed to promote the Nantes-Bordelaise Company whose purpose was to promote a French colony in New Zealand. Their project received the sanction and support of Louis Philippe, who undertook to sustain their enterprise by the presence of one or two ships of war in the South Pacific. Meanwhile the French King had repeatedly assured the British Foreign Office that he had no designs towards territorial aggrandisement in New Zealand. This, in a qualified sense, may have been perfectly true, because while it had been agreed that the Nantes-Bordelaise Company was to cede certain lands to the French Crown in consideration of the protection afforded them, there is every reason to suppose that the French colonising design did not extend beyond Banks's Peninsula, and that there never was any serious intention to annex the South Island. This position was made clear to Captain Hobson by Captain Lavaud, and if it was not secretly agreed upon as a means of strengthening the latter's hands in making his representations to his Government, the sending of the Britomart south with two Magistrates can only have been a precautionary measure on the part of Hobson, who hoped by this means to make the assurance of his former act doubly sure. It has long been a cherished conviction in our history that by his strategetical move Captain Hobson cleverly outwitted the French. It is more probable that he was acting in concert with them, and that what has hitherto passed as a popular historical fact must now be relegated to the realm of historical fiction. Be that as it may, it is a fact that on the night of July 30, while L'Aube lay at her anchors, the old and weather-worn Britomart sailed for Akaroa, carrying with her Messrs. Robinson and Murphy, who were instructed to open courts at all the {232} settlements on the Peninsula, where the British flag was also to be displayed by Captain Stanley. The manner in which that officer, and those associated with him, executed their mission, is told in the Commander's Despatch, written while the Britomart was returning to the Bay of Islands.

Much has been said and written concerning this incident, and in the discussion it has been invested with an importance which it does not deserve. In no sense can it rightly be elevated into the crisis of a great international dispute, for the simple and sufficient reason that no dispute existed. Whatever Captain Hobson may have understood as the result of his conversation with Captain Lavaud, the amiable manner in which that officer complied with every request made by Captain Stanley, together with his conciliatory despatch to his own immediate Minister in France, indicate that he at least had no views in the direction of taking forcible possession of any territory in New Zealand, since British sovereignty over it had {234} been officially declared. The pleasure he expressed when he learned that the British Magistrate had determined to remain amongst the settlers; the ready hospitality he extended to him; his refusal to allow the master of the Comte de Paris to land the artillery brought in that vessel; and his promise to do even-handed justice to both English and French should disputes arise, were not the acts of a man who felt that he had been forestalled and worsted in a race involving the sacrifice of new territory and the loss of national prestige.

That Captains Hobson and Lavaud understood each other perfectly is abundantly clear from the letter which the latter wrote to the former over twelve months (September 17, 1841) after the events just narrated. In the month of October 1840 Mr. Robinson, the Magistrate stationed at Akaroa, had intimated his intention of hoisting the British flag, against which Captain Lavaud had successfully protested, as being, in the peculiar circumstances, calculated to inflame the prejudices of the colonists, and to destroy his influence as a keeper of the peace between his own people and the whalers. When Governor Hobson paid his first official visit to Akaroa in September 1841, Captain Lavaud interviewed him and subsequently wrote to him, explaining the incident, and asked that his action might be sustained. During the course of his communication he said:

This letter Captain Hobson acknowledged with becoming courtesy, and promised that as, under existing circumstances, no question could arise respecting the sovereign rights of Her British Majesty over every part of the colony of New Zealand, he would willingly forego the exhibition of any authority that could have a tendency to weaken Captain Lavaud's influence over the minds of his countrymen. He would therefore not display the British flag or publish any proclamation at Akaroa, unless some pressing and unforeseen event should render such measures necessary. [166]

Fortunately no such exceptional circumstances did arise before the formal acknowledgment was made by France, and in the following November Hobson, when penning his despatch to the Home authorities, was able to assure them that Captain Lavaud's attitude had been consistent throughout; that he had frankly disclaimed any national intentions on the part of his Government, but had vigilantly supported the claims of the French emigrants as private individuals. As a matter of fact, since he had satisfied himself as to the validity of Britain's pretensions, Captain Lavaud had taken up the position {237} that he was in these waters for no other purpose than to see his countrymen peaceably settled on the estate of 30,000 acres to which the Nantes-Bordelaise Company believed they had secured a title by one of those loose transactions so common in the history of New Zealand. He was determined to preserve the peace until he should be instructed to make war.

But had his intentions been other than peaceable, Captain Hobson's precautions in sending Magistrates to Akaroa could not have made the British title more secure than it already was. The Treaty of Waitangi was a compact such as no civilised nation could, or would ignore, and when Major Bunbury, by virtue of that treaty, hoisted the British flag at the Cloudy Bay pa on June 17, 1840, he put the sovereignty in the South Island beyond all question of doubt until it could be wrested from Britain by force of arms.

The most that can be said for the sudden despatch of the Britomart to Akaroa, and the proceedings of her Captain and his associates there, is that the presence of British authority on the Peninsula may have prevented the growth of any false ideas concerning national interests in the minds of the emigrants, and so obviated possible friction at a later date. In no sense did it give anew to Britain a right that had already been ceded to her by the only people who were capable of ceding it—the natives. That the official mind of France had no delusions on this point was demonstrated during the discussion which engaged the Chamber of Deputies after the receipt of Captain Lavaud's despatch, when M. Guizot, as Foreign Minister, maintained in the face of the sharpest opposition that the British proclamation read at Cloudy Bay determined by the highest principles known to nations in whom the right of sovereignty lay.

It is both interesting and instructive to observe that during this debate M. Guizot declined to seriously discuss the proclamation issued by Captain Hobson on May 21, declaring the Queen's sovereignty over the South Island, "by right of discovery," although the point was warmly {238} pressed by MM. Billault and Berryer. Captain Hobson had always favoured this mode of dealing with the South Island, he being under a grave misapprehension both as to the number and character of the natives residing there. Before he left England he felt that his instructions were meagre in this regard, and in seeking more explicit direction from the Chief Secretary of State he drew the attention of Lord Normanby to what he regarded as a material distinction between Britain's position in the two Islands. In August (1839) he wrote to his Lordship:

To this Lord Normanby replied that Captain Hobson had correctly interpreted his instructions when he limited his Lordship's remarks concerning the independence of the New Zealanders to the tribes inhabiting the Northern Island. His knowledge respecting the Southern Island {239} was too imperfect to allow of his laying down any definite course of action to be pursued there. If it were really as Captain Hobson supposed, uninhabited, or peopled only by a small number of tribesmen in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, then the ceremonial of entering into any such engagements with them would be a mere illusion and pretence which ought to be avoided, and discovery might be made the basis of the Crown's claim. Still he had a marked predilection in favour of a treaty as the only means of affording an effective protection to the natives; "but," he continued, "in my inevitable ignorance of the real state of the case I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."

The frankness with which Lord Normanby admitted his "inevitable ignorance" of native conditions in the South Island is in striking contrast to Hobson's confident assurance that they were "wild savages with whom it was scarcely possible to observe even the form of a treaty," for at this time his intercourse with the southern tribes was as limited as that of the Chief Secretary's. Nor was his knowledge of them any more complete when he issued his proclamation on May 21. He was then clearly under the impression that the southern tribes were a people physically, intellectually, and socially much inferior to those whom he had met in the North; in fact, so much inferior that he did not believe them capable of understanding the spirit or the letter of a treaty. Such an opinion could only have been founded upon information conveyed to him at the Bay of Islands, and that by chiefs who, glorying in the pride of conquest, were no doubt wont to look upon their southern enemies as the siftings of the race; as "the remnant of their meal." It is therefore open to doubt whether Hobson ever anticipated any great measure of success when he despatched Major Bunbury to the South, and it is conceivable that the results achieved by that ambassador were as pleasing to {240} the Lieutenant-Governor as the information was surprising that the Southern Island and the southern people had been much misunderstood. The falsity of the impression under which Captain Hobson acted, together with all that had gone before, completely undermines the value of his proclamation of May 21, and M. Guizot was only stating the fact when in answer to his critics he declared in the Chamber of Deputies that "this method of taking possession (by right of discovery) has never had any serious consequences. It could not be regarded as having constituted rights, and that is so true that the English Government has been the first to proclaim it."

The second clause of the treaty proved to be the storm centre of the compact. By those natives who took the trouble to reason out the purpose and effect of the negotiation it was unanimously approved; by the land-jobbers it was as unanimously condemned. Guaranteeing as it did to the tribes the full and complete possession of their lands, fisheries, and forests, it complied with the one condition that made the treaty tolerable to them; yet by reserving to the Crown the right, by pre-emption, [167] to become the medium of purchase between the natives and the settlers, it provided the contentious point upon which all who were interested in the acquisition of land concentrated their attacks. Nor was this opposition shown merely because by a broad sweep of the pen the speculator's sphere of operations had been materially limited for the future, but the hostility became the more vehement because by an equally bold assertion of a great principle of law, the treaty called under review all that they had done in the past. The acknowledgment by the British Crown of the native title to all the land in New Zealand, whether waste or cultivated, was in the opinion of many a blunder grievous enough; but that the Crown should claim the right to scrutinise all titles which had been {241} acquired before sovereignty was declared, was an excess of zeal which they regarded as nothing short of preposterous.

This feeling of indignation was rampant amongst those who were deeply implicated in land speculations when the proclamations were issued at Sydney and the Bay of Islands, declaring null and void all titles which were not derived from the Crown; and their ideas of British enterprise were even further outraged when on May 28, 1840, Sir George Gipps introduced to his Legislative Council, "A Bill [168] to empower the Governor of New South Wales to appoint Commissioners to examine and report on claims to grants of land in New Zealand."

In addition to the gigantic pretensions put forward by the New Zealand Company there were 1200 claimants whose demands upon the soil of the country varied from a single rood to over 20,000,000 acres. Three of these exceeded 1,000,000 acres each; three others were claiming 1,500,000 acres between them; three others comprised more than 25,000 acres each, while upwards of thirty persons expected to be placed in possession of more than 20,000 acres each, the aggregation of alleged purchases amounting to 45,976,000 acres. "Some of these claimants," says one writer, "had nothing more to show for their purchases than an ornamental scrawl on a deed which was so phrased as to be unintelligible to the chiefs who signed it." To reduce these wholesale purchases to some principle regulated by justice was the purpose of the Government; to let the dead past bury its dead was the fervent wish of all {242} those who had entrenched themselves behind Maori signatures.

By the following June 25 the provisions of the Bill had been widely circulated, on which date a spirited protest against its enactment was received from a number of gentlemen claiming to be landowners in the new colony. This document, which was presented to the Legislative Council by Mr. H. H. Macarthur, set out that the petitioners having perused certain proclamations in the New South Wales Government Gazette of January 22, as well as the Bill introduced by the Governor, they submitted that their rights and privileges as subjects of the Queen and as landowners in New Zealand would be unwarrantably and unconstitutionally invaded by the provisions of the said measure. They therefore prayed that they might be heard by the Council in protest against such unjust legislation.

So reasonable a request was readily acceded to by the members of the Legislature, and on June 30 Mr. Busby, the former British Resident, Mr. William Charles Wentworth, Mr. A'Beckett, and Mr. Darvall, barristers-at-law, were introduced to the Council, and on that and several subsequent days addressed the members in opposition to the Bill.

The burden of Mr. Busby's contention in defence of his claim to 50,000 acres, including the site of a township, was that the Bill sought to legalise confiscation, and that therefore the principles which it was designed to enact were at variance with and in excess of all that was sanctioned by the British constitution. [169] No doubt, he said, there were many claims to land in New Zealand which would not bear investigation; but contrariwise there were many respectable settlers on the banks of the rivers and shores of the harbours who would be deeply injured were {243} the proposed Bill to become law. This injury would be all the more ruthless because no attempt had been made by the Government, now become so paternal, to prevent British subjects acquiring property in New Zealand, as had been done in the case of those settlers who had come over from Van Dieman's land to originate the settlement at Port Philip. No sooner did it become known that these speculators had purchased extensive tracts of country from the aborigines than a proclamation was issued declaring the illegality of their proceedings. No such prohibition had, however, been put upon the acquisition of property in New Zealand, where the settlers, relying upon certain acts of repudiation by the British Government, had purchased from the natives in the belief that they were negotiating with an independent people. Mr. Busby proceeded to review the various stages of New Zealand's history in order to emphasise the events by which the independence of the chiefs and people had been repeatedly acknowledged, and concluded by asking why the chiefs had been induced under the Treaty of Waitangi to surrender the pre-emptive right of purchase to the Queen if they had never had the right as an independent people to dispose of their lands as they pleased?

Mr. Busby was followed by Mr. Wentworth, one of the local Magistrates, who was claiming 100,000 acres in the North Island, and practically the whole of the South Island except some 3,000,000 acres which he magnanimously conceded had been already sold to other purchasers. The history of Mr. Wentworth's claim, which to say the least, was one of the most scandalous in the long list of extraordinary transactions with the natives, is thus told by Sir George Gipps in his despatch to the Chief Secretary for the Colonies, [170] in which he intimated that in consequence of the part Mr. Wentworth had played in this flagrant attempt to flout the Government, he desired to withdraw a recommendation he had previously made in favour of this gentleman's appointment to the Legislative Council.

{245} The magnitude of the property at stake naturally excited Mr. Wentworth to his most eloquent effort, and in an address of considerable length and subtlety he argued that before the proclamations issued by Sir George Gipps and Captain Hobson, nullifying all titles to land not derived from the Queen, could be binding upon British subjects, they must be founded upon some law previously existing; and if they were so founded then it was the duty of those who had issued them to satisfy the Council what that law was. The principle contained in the preamble of the Bill—that no chiefs, or other individuals of tribes of uncivilised savages had any right to dispose of the lands occupied by them—was, he contended, at variance with British law and with the Law of Nations. Numerous authorities were marshalled in support of this view, and also to prove that it mattered nothing whether the New Zealanders were an independent nation or only a few errant tribes scattered over the country; they still possessed the demesne of the soil to do with as they pleased. This being so, those who purchased land from them were only acting in accordance with the natural rights of the natives and in compliance with the Law of Nations. According to Vattel—one of the world's most eminent authorities upon the relation of one nation to another—individuals landing in an uninhabited country might not only establish colonies, but also erect a government and an empire, and he argued that if such a proceeding was permissible in an uninhabited country, it resulted a fortiori , that it might be done in a country that was peopled, provided the natives of that country gave their consent thereto. The story of the first New England Settlement under Davenport and others, in 1620, was urged as conclusive proof that British subjects, unsupported by a Royal Charter, might form colonies and erect governments, as had been done in Connecticut, where the government so established had lasted for over two centuries. He denied that there was any merit in the official assumption that the Crown had derived sovereignty over the Islands of New Zealand by right of discovery. Discovery gave no right of occupation {246} in an inhabited country, nor would the Law of Nations acknowledge the property and sovereignty of any nation unless its possession were real, unless its settlements were actual, or it had in some way made practical use of the soil. The Bill rested upon the principle that the native was incompetent to sell his own land, and the British subject was incompetent to buy—a principle which he thought he had clearly disproved. Confiscation was the key-note of the measure. It was a Bill designed to take away property, annul grants, and to forfeit all landed possessions acquired by British subjects in New Zealand. He condemned the Bill absolutely, because he claimed to have established on incontestable grounds, and by the aid of indisputable authorities, the right of British subjects to buy land from the New Zealanders, a right which could not be taken away until the Council passed an Act to restrain it. Under these circumstances it was highly illegal to proceed to divest parties of their possessions without adequate compensation, such as was given in England when land was required for public purposes. The compensation to be given in such cases must always be awarded by a jury; therefore the proposed Bill was clearly repugnant to the laws of England. Only a few days previously the Council had passed an Ordinance, making all the laws of England and of the colony of New South Wales applicable to New Zealand. Amongst these was the right of trial by jury of which the proposed Bill was completely subversive; it took away the right of trial by jury; and therefore, declared Mr. Wentworth, the Council could not pass it, or if they did, the Judges could not certify to it.

These arguments were reiterated and amplified by the two barristers, Messrs. A'Beckett and Darvell, and on July 9 their official refutation was placed before the Council by Sir George Gipps, who on that day delivered in reply a speech remarkable for its broad grasp of constitutional history, as well as for its fearless declaration of the attitude adopted by the Crown. It was during the development of this smashing rebuttal that the objectors {247} were enlightened as to the three great principles of law upon which the second clause of the treaty was founded; "principles, which, until I heard them here controverted," said Sir George, "I thought were fully admitted, and indeed received as political maxims." Briefly these were:

It is not necessary to closely analyse the first of these declarations, as whatever may be said of it as a principle of law it was not in any sense applicable to New Zealand. Logicians may amuse themselves discussing why a people who are capable of granting titles to individuals of their own tribes are yet incapable of granting similar rights or concessions to individuals of other nations; or how the Government of another nation can acquire from those natives a title to land which it has already declared the natives do not possess and have no power to give. In other words, it may form sport to the mental speculator to discover how a Government can extinguish a native title which that Government has affirmed does not exist, for that is what this declaration of principle means if it is to be invested with any meaning at all.

Such reasoning is at this juncture foreign to our {248} purpose, because, however true it may be that the native lands of New Zealand being held in common, it was not competent for individual natives to grant titles to Europeans, seeing that no individual interests had been ascertained, the right of the tribes of New Zealand to dispose of their lands as they pleased was incontestable. As has already been pointed out, they were by no means in such an uncivilised state as to be devoid of a form of government adequate in all respects for their primitive purposes. Especially was their occupancy and ownership of land highly systematised. It may be true that they had not "subjudicated the ground to their own uses by the cultivation of it," as the term cultivation is freely understood by us, but the waste spaces were just as valuable, just as necessary to them as the garden patches. Their forests, their open plains, their wild mountain sides were as much the sources of their food-supply as were their kumara fields, the streams, or the open sea, and so definitely was this understood amongst them that every hill and valley was known, named, and owned under one of their various tenures. There was, in fact, no side of his tribal life about which the Maori held such clear conceptions, or was so fixed and determined as the occupancy and ownership of the soil, for which in olden days, as in Pakeha days, he was ever ready to fight and, if necessary, to die.

If then Sir George Gipps desired to convey to his Council the impression that the New Zealanders were incompetent to deal with their own lands, he was setting up an entirely false hypothesis, an error into which he was no doubt led through not being clearly seized of all that Maori land tenure implied, the full meaning of which was afterwards to be debated on many a hard-fought field.

That the right of extinguishing the native title rested solely with the Crown was a sounder contention, based upon principles deep set in constitutional law, and supported by the practice of all colonising nations. It was the endeavour of Mr. Wentworth, and those associated with him, to depreciate the principle of pre-emption by {249} casting at it the cheap sneer that it was "American law," and so it was. But it was British law before it was American law, and has only been heard of in American courts more frequently than in English tribunals, because questions incidental to the settlement of the New World have called it more frequently into prominence there. Broadly put the principle rests upon the assumption, dating from feudal times, that the King was the original proprietor of all the land in the kingdom, and the true and only source of title. Therefore all valid individual titles must be derived from the Crown. With the development of constitutional government the personality of the King has disappeared, but still no nation will suffer either its own subjects or the subjects of another nation to set up a title superior to its own. It has thus become a right exclusively belonging to the Government in its sovereign capacity, to extinguish the native title to a country which it may be colonising, "to perfect its own domain over the soil, and to dispose of it at its own good pleasure."

Once admitting that the natives of New Zealand had a valid title to the soil of the country, and were competent to deal with that title, the prerogative of the Crown in exercising the pre-emptive right to extinguish it under the terms of an equitable treaty was not difficult to maintain. But the buttress [173] behind the attitude which the Government adopted towards the New Zealand land purchasers was to be found in the third declaration of principle enunciated by Sir George Gipps. Here it was laid down "that neither individuals nor bodies of men belonging to any nation can form colonies, except with the consent, and under the direction and control of their own Government."

The fundamental reason which induces nations to {250} hedge its subjects about with this restriction, was thus concisely stated by the Select Committee of the House of Commons in 1844. Although this Committee roundly condemned the Treaty of Waitangi as "a part of a series of injudicious proceedings," it was yet as hostile to the New Zealand Company in seeking to set up a settlement independent of Imperial authority, thereby imperilling their own position and prejudicing that of the Crown.

On this ground and on this ground alone the British Government was justified in calling a halt in the irregular settlement of New Zealand, and if a mistake was made it was not in that the Government now interposed their authority, [174] but in that they had not asserted their rights at a much earlier period. In support of this portion of his argument Sir George Gipps quoted the opinions of four of the most eminent lawyers in England of that day, Mr. William Burgh, Mr. Thomas Pemberton, Sir William Follett, and Dr. Lushington. He was even uncharitable enough to use against the New Zealand Company the opinion of their own legal adviser, Sergeant Wilde, the crushing nature of these authorities completely breaking down the pretensions of his opponents.

"I leave the Honourable Members of this Council," declared Sir George, "to say whether they will take the {251} law from the authorities which I have produced or from the learned gentlemen who have been heard at their table; remembering, moreover, that the former were giving their opinions against their clients, the latter arguing, as they were bound to do, in favour of them."

Sir George also claimed for the British Government the right to intervene in New Zealand affairs, so far as land titles were concerned, on the ground of its immediate contiguity to the colony of New South Wales, in support of which claim he quoted an opinion expressed by a Committee of the House of Commons in 1837, and in further appeal he might have advanced the fact that in the previous fifty years Great Britain had expended no less a sum than £8,000,000 upon colonisation in the South Pacific, a fact which was surely substantial enough to create the peculiar rights which are inseparably associated with those intimate relations which grow out of neighbourhood. Finally, he thus summarised the powers which were sought for in his measure and those which it did not seek:

This forceful presentation of the case for the Crown left the Council but one course open to it, and on the following August 4 the Bill had passed through all its {254} stages and became a colonial statute. Under its provisions Commissioners in the persons of Messrs. Francis Fisher, William Lee Godfrey, and Matthew Richmond were appointed and commenced their investigation of land claims at the Bay of Islands. The separation of New Zealand from the colony of New South Wales in April 1841, however, put an end to the functions of the Commissioners under the measure, and it became necessary to revive their powers under a New Zealand statute. In his instructions covering the granting of a new Charter to New Zealand as an independent colony, Lord John Russell, the new Chief Secretary, had sustained the attitude adopted by his predecessor, Lord Normanby, on the land question. Accordingly, on June 9, 1841, under advice from Lord John, an ordinance was passed by the Legislative Council assembled at Auckland, repealing the previous Act of New South Wales and furnishing Captain Hobson, the now Governor of New Zealand, with the requisite power to appoint their successors. Intelligence had also been received in the meantime that Mr. Spain, an English lawyer, had been appointed Chief Commissioner of land claims; and under the New Zealand statute only two of the original Commissioners were reappointed, Mr. Fisher having accepted the office of Attorney-General to the colony.

With the deliberations and adjustments of this Commission we are not particularly concerned. What is of importance is that its proceedings led to a voluminous, and at times acrimonious correspondence between the New Zealand Company and Lord Stanley, who, in 1841, succeeded Lord John Russell as Secretary of State for the Colonies in Sir Robert Peel's cabinet. During the course of this correspondence the Company boldly maintained that, under an arrangement made with his predecessor, [175] {255} they were so situated as to be beyond the pale of the Commission's enquiries which they said would shake every title in their settlements. They declared that the circumstances in which they had acquired the land they were now claiming were such as could not be affected by the Treaty of Waitangi, they even repudiated the validity of the treaty itself. On January 24, 1843, Mr. Joseph Somes, as Governor of the Company, despatched that celebrated letter to Lord Stanley in which occurred this significant passage: "We have always had very serious doubts whether the Treaty of Waitangi, made with naked savages by a Consul invested with no plenipotentiary powers, without ratification by the Crown, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment."

On the 15th of the following month a further letter was received from Mr. Somes, in which he specifically denied the application of the treaty to the particular possessions of the Company; and in order to give a verisimilitude of truth to his argument deliberately made light of the historical facts connected with the signing of the treaty:

This attempt to mislead the Minister by a flagrant disregard for the proceedings of Major Bunbury and all that those proceedings implied, was unfortunately but too characteristic of the methods pursued by the Company at this time, whose officers had now developed a dexterity in conjuring with facts against the subtlety of which the Minister could not too jealously guard the public interests.

To the equivocal attitude adopted by the Company Lord Stanley replied through his Under-Secretary, Mr. Hope, in one of the noblest passages ever penned by a British Minister,—a passage in which he sternly refused to sacrifice official integrity to mere commercialism or national honour to ambitious personal ends:

Foiled in their efforts to induce the Colonial Minister to award them the full measure of their enormous claim without question or enquiry, the Company then preferred {257} a claim for compensation against the State on the grounds that the policy of the Colonial Office and the proceedings of the Government in New Zealand had brought them to the verge of financial ruin. Still powerful in the House of Commons they were able to exert considerable influence there, and in April 1844 a Select Committee was set up, with Lord Howick, now one of the Company's warmest friends, as Chairman, and an order of reference which authorised them "to enquire into the State of the Colony of New Zealand, and into the proceedings of the New Zealand Company."

The Committee sat until July, taking voluminous evidence from many persons who had some previous knowledge of the country, and when they met to formulate their report it was found that they were sharply divided on material points. A section of the Committee, led by Messrs. Cardwell and Hope, Lord Stanley's Under-Secretary, endeavoured to so frame the report as to make amongst others the following acknowledgments:

These recommendations of Mr. Cardwell, which also largely reflected the opinions of the Government, were energetically opposed by Lord Howick and his friends, who put forward a counter series of suggestions, which just as strongly reflected the views and aspirations of the New Zealand Company, particularly upon the crucial point that no acknowledgment should be made of any proprietary rights on the part of the natives in the unoccupied {259} lands of New Zealand. They affirmed amongst other things:

When the Committee was asked to determine which of these two rival reports it would adopt, it was found that opinion was evenly divided, but on a division being taken Lord Howick succeeded in defeating his opponents by the narrow majority of one vote, the voting being as follows upon the question proposed by Mr. Roebuck: "That the Committee now proceed to the consideration of the resolutions proposed by the chairman as the basis of the report."

In vain did Mr. Hope endeavour by moving amendments to induce the Committee to adopt a view of the Treaty of Waitangi more favourable to the natives, but through the divisions of several days the Company held its majority, and on July 23 the Committee agreed to the draft report proposed by Lord Howick, and which was based on the resolutions previously approved. When {260} this report was laid before the House of Commons it was found that the Committee had traversed the policy adhered to by the Melbourne and the Peel Governments in its interpretation of the Treaty of Waitangi, and that they had taken the responsibility of declaring that:

The findings of the Committee were thus so radically opposed to the established views of Lord Stanley upon the construction to be placed upon the treaty, that the Minister refused to countenance them in any way, or to ask the House of Commons to become a party to a policy which, had it been enforced, would inevitably have led Britain into one of her little wars, as inglorious as it would have been unjust. [177]

In transmitting a copy of the Committee's report to Governor Fitzroy, the Chief Secretary stressed in his Despatch of August 13 (1844) the narrow margin of votes by which the report had been adopted, and emphasised the high moral principle that it was still the duty of both the Governor and himself to administer the affairs of the colony "with a due regard to a state of things which we find, but did not create, and to the expectations founded, not upon what might have been a right theory of colonisation, but upon declarations and concessions made in the name of the Sovereign of England." The power of Parliament was, therefore, not invoked to aid the Company in evading its just obligations to the natives. Their land claims were still to be the subject of searching enquiry by the Chief Commissioner, Mr. Spain, and for the moment the Treaty of Waitangi was vindicated by the steadfastness of the Colonial Minister. But the battle was not {262} over, the scene of the conflict only was changed. On June 17, 1845, Mr. Charles Buller, then representing Liskeard, and whose long association with Lord Durham and Mr. Gibbon Wakefield had more than once brought him into prominence in New Zealand affairs, sought to induce the Commons again to discuss both the policy and administration of the colony on the floor of the House. Then ensued the historic debate, during which New Zealand achieved the distinction of claiming the exclusive attention of Parliament for three consecutive nights.

It would be superfluous to recapitulate here the speeches delivered during this memorable discussion, embodied as they are in the records of the nation; it is, however, worthy of passing remark that for the sake of some party advantage several prominent members, notably Lord John Russell, chose to reverse all their previous professions on the subject of the Treaty of Waitangi, and threw the weight of their influence into the scale against the just recognition of the rights of the New Zealand natives. Well might Rusden exclaim: "On what plea could the Whigs abandon the construction put upon the treaty by their own leaders who made it?"

A division being taken, Mr. Buller's motion was defeated, and on receipt of this intelligence Governor Fitzroy [178] wrote with perfectly natural elation to Henry Williams: "Let me congratulate you on the result of the three nights' sharp debate in the House of Commons on New Zealand. The Company were beaten by fifty-one votes, the integrity of the Treaty of Waitangi being thus secured against all their infamous endeavours, for that was the point at issue."

While the events thus far narrated in this chapter had been evolving from the lap of time, Governor Hobson had died, [179] and had been buried at Auckland. Lieutenant {263} Shortland's brief term of administration had been darkened by the Wairau Massacre, the first fruit of the contempt shown by the Wakefields for the landed rights of the natives. His successor, Governor Fitzroy, had long since been driven to distraction by the machinations of the Company and the failure of the Home authorities to give him needful support in either men or money. The crowning disaster of his administration was the attack upon the town of Kororareka at daylight on March 11, 1845, by Heke and Kawiti. The House of Commons had been ignorant of this happening when it had debated Mr. Buller's motion in the previous June, but when the ominous tidings reached England in July, that wary gentleman sprang once more alertly to the attack by moving: "That this House regards with regret and apprehension the state of affairs in New Zealand; and that those feelings are greatly aggravated by the want of any sufficient evidence of a change in the policy which has led to such disastrous results."

This debate was not less acrimonious than its predecessor, for not only was Lord Stanley attacked, but Mr. Stephen, the permanent head of the Colonial Department, was assailed with equal virulence. Stanley had ere this removed to the House of Lords, and Stephen was precluded by virtue of his position from defending himself. But for these two men, as well as for the honour of the nation, Sir Robert Peel stood in stalwart defence. He told the House that he was not enamoured of the policy which had resulted in the consummation of the Treaty of Waitangi. For his part he candidly admitted that in his opinion it was a mistake, but since the treaty was an indisputable political fact, its obligations must not be violated. Lord Melbourne's Government, he said, had with a full sense of their responsibility, entered into the compact and England was unquestionably bound by it. [180]

In vindication of Lord Stanley he declared that the {264} real purpose behind Mr. Buller's motion was an insidious desire to unjustly censure his Minister for avowing his determination to carry honourably into effect the treaty made by his predecessor. Then reverting to the land question he continued: "After all the volumes of controversy which have appeared, the question really resolves itself into this: Shall the Government undertake to guarantee in this country, within certain limits in New Zealand, a certain amount of land without reference to the rights to that land vesting in the natives? This I tell you distinctly we will not do, and if the House entertains a different opinion, it is but right that it should give expression to it. We will not undertake, in the absence of surveys and local information as to the claims of the natives, to assign to you a million, or any other number of acres, and dispossess the natives by the sword."

In concluding he again entered upon a vigorous defence of his Colonial Minister, declaring his continued confidence in Lord Stanley in the following resolute words: "I will not do that which the New Zealand Company seem to think I might do—undertake to supersede a Minister who I believe has discharged his official duties with almost unexampled ability, and with a sincere desire to promote the interests of every colony over which he now presides."

Influenced by the Premier's strenuous advocacy, the House again rejected Mr. Buller's motion on July 23, but the friends of the Company derived some comfort from the knowledge that a despatch had been sent recalling Governor Fitzroy, who, in his anxiety to restore the bankrupt finances of the country, had disregarded the Royal instructions, and instituted a local currency as well as having taken the more serious responsibility of varying the inflexible policy of the Government by waiving the pre-emptive right of the Crown [181] to purchase land from {265} the natives, in the hope of removing the growing discontent and of enhancing the revenue from increasing sales.

Defeated in Parliament, the Company's next proceeding was almost humorous in its hysteria. They procured an opinion from Mr. William Burge, in which that gentleman averred, on his reputation as a lawyer, that the British occupation of New Zealand was from the beginning unlawful, and based upon no sound constitutional foundation. This remarkable document they transmitted to Lord Stanley on July 7, in the hope that he would be so awed by it as to cause him to considerably modify the instructions which they were convinced he would, in his normal frame of mind, most certainly tender to Captain Grey, whom he had selected to succeed Governor Fitzroy. Lord Stanley was made of different stuff. He suffered no particular trepidation from Mr. Burge's startling discovery, but merely sent his opinion on to Fitzroy Kelly, Attorney-General, Sir Frederick Thesiger, Solicitor-General, and to Sir Thomas Wilde, who had been the Attorney-General in Lord Melbourne's Cabinet when Captain Hobson was sent out to negotiate the Treaty of Waitangi. These gentlemen averred with equal confidence that neither the reasons advanced by Mr. Burge, nor any other considerations which had occurred to them, furnished them with any well-founded doubt upon the question of Britain's sovereignty in New Zealand.

Reinforced by the opinion of this eminent trio, Lord Stanley sent a copy to the new Governor, telling him to be guided by it in his conduct, at the same time instructing him that if the Company attempted to make capital in the colony out of Mr. Burge's pronouncement, he was to counter the move by giving equal publicity to the joint opinion of the three legal advisers of the Crown.

When Captain Grey reached New Zealand on November 14, he found the country seething with discontent. The European population now numbered approximately 12,000, scattered over widely separated settlements, the natives probably numbered not less than 110,000, many of {266} whom were in open revolt under Heke and Kawiti; many more were holding their allegiance in the balance.

The mischievous resolutions passed by the Select Committee of the House of Commons in the previous year had ere this percolated to the colony, and fired the doubts of the natives as to the sincerity of the Crown. Governor Fitzroy had used his best endeavours to reassure them, and in offering terms of peace to Heke he made it the first stipulation that the covenants of the Treaty of Waitangi should be binding upon both parties. To these advances Heke had sullenly refused to reply. With the rebels unyielding, obviously Grey's first duty was to ascertain where he stood with the friendlies and the neutrals. For this purpose he summoned a meeting at the Bay of Islands, and amidst the ruins of the wrecked town of Kororareka he delivered to the assembled chiefs one of his characteristic addresses, in which, after warning the people against treacherously assisting the rebels, he said:

The professions of the Government's good-will to the natives were renewed, they were told of the Queen's solicitation for their material, moral, and religious welfare, and once more assurances were given that equal justice would be meted out to both Maori and European, to which Tamati Waaka Nēne replied: "It is just."

As the result of this conference Grey felt that he could rely upon the loyalty of the friendly natives, and that this adhesion to the Crown grew out of the fact that they {267} were, as the Governor expressed it in his Despatch, "Unanimous in desiring protection and support from the Government; that they were quite aware of the advantages conferred upon them by the annexation of New Zealand to the British Empire, and that the large mass of the inhabitants sincerely desired to see peace and tranquillity restored, so that the Government might be invested with that weight and authority which is essentially necessary to enable it properly to perform its functions." [182]

With the position of parties both in England and in the colony thus firmly determined, it appeared that the Treaty of Waitangi would now be accepted as the basis of a settlement of the colony's affairs; but these sanguine expectations were speedily doomed to disappointment. By one of those inexplicable revolutions which not infrequently occur in the wheel of political fortune, Sir Robert Peel's Ministry was ousted from office in the latter part of June. Lord John Russell came back to power, and Lord Howick, who in the meantime had succeeded his father as Earl Grey, became Chief Secretary for the Colonies in the new administration.

As Lord John Russell had so recently modified his views upon the subject of the Treaty of Waitangi as to admit of his saying that Maori rights in land narrowed down to territory "in actual occupation by them," the way had been cleared by which his Secretary for the Colonies might put into operation his pet theories for the nullification of the Treaty of Waitangi. [183] This opportunity came to him when it fell to his lot to prepare a new Constitution for the youngest of Britain's possessions.

New Zealand had now been a colony independent of New South Wales for the better part of five years, during which time, under the advantages of a more or less settled government, she had made phenomenal progress. So rapid had been her development, so steadily had her {268} population increased, that in the opinion of many of her most influential Colonists the time had arrived when they should be invested with all the privileges of responsible government. With this democratic movement the Governor was in entire sympathy and aided the aspirations of the people by the weight of his influence. The implicit confidence which the Home authorities at this period placed in Grey's discretion doubtless led them to more readily acquiesce in the liberalisation of the Charter granted in 1840, and in conveying to the Governor the determination of Parliament, the Colonial Secretary explained that the necessity of a fundamental change from the position created when Captain Hobson was appointed had been insisted on by all parties to the discussion, there being an almost equally unanimous concurrence among them that the change should be in the direction of calling the settlers to participate much more largely in the business of legislation and local self-government. He accordingly enclosed on December 23 (1846) the Imperial Act, and the Royal Instructions which were to give effect to this determination.

The functions of a governor in a Crown Colony are many and various, and Grey's receipt of this Despatch was perhaps as picturesque as any event in his romantic life. There was insurrection at Whanganui—a reflex of Heke's rebellion in the north—whither Grey had gone to aid in its quelling, and he was watching from a hill-side a skirmish between the troops and the insurgents when the Chief Secretary's communication was handed to him. He sat down upon the grassy bank, and with the crack of rifles and the hiss of bullets ringing in his ears he calmly read the fateful document. What the Governor's feelings were when he perused the Charter we need not stay to enquire. Fortunately he had been given a discretionary power as to when it should take effect, and he did not wait long before he determined that its indefinite suspension was inevitable. Grey's brief experience in New Zealand, as well as his innate love of justice, had taught him to regard the Treaty of Waitangi as the sheet-anchor of the colony's settlement, upon the faithful observance {269} of which it was alone possible to maintain peace with the Maori.

In two vital particulars the new Charter fatally traversed the treaty, and one can only marvel, in the face of the obvious meaning which attaches to the plain words of the compact, how any British Minister could satisfy himself with the sophistry indulged in by the Colonial Secretary. A cardinal omission was detected by the Governor in the fact that no provision was made for the representation of the Maori race in the contemplated Parliament, to which, as British subjects, they were entitled; but worse than all, Earl Grey had again promulgated his strangely perverted opinions upon the subject of native ownership of lands. The Charter was covered by a lengthy Despatch in which the Chief Secretary elaborated his views, and in order that those views may not suffer by condensation they are here quoted at length. After adverting to the manner in which the various heads of his instructions had been classified, he proceeds:

Chapter XIII. of the Royal Instructions was devoted to placing into legal phraseology the Minister's policy for "the Settlement of the waste lands of the Crown" and Clause 9 of that Chapter more particularly dealt with the method by which the native titles were to be ascertained and recognised.

The newspapers in England which supported the New Zealand Company published with undisguised exultation Earl Grey's Despatch, and hailed him as a Daniel come to judgment. [185] The Maoris regarded the matter in quite a different light. Here they were being asked to submit for ratification, by an extraneous authority, their lands which they and their forefathers had fought for, and which they had ever guarded with a jealous care that only death itself could terminate; lands which they had been told by Captain Hobson and the Missionaries were to be theirs to loose or to hold as they pleased; lands of which the Treaty of Waitangi had solemnly recognised them as already the indisputable owners. Was this then the much vaunted honour of the Queen? was this to be the unhappy {275} end of all her high-sounding promises? The fire of indignation ran through the Maori veins as they contemplated the deception; the rumble of discontent grew as the tidings spread; the breath of battle was in the air.

The position of the Governor was delicate in the extreme, and probably only two things stood at this critical juncture between the colony and war—the Maori confidence in Grey, and Grey's confidence in himself. "What was I to do indeed?" he afterwards said. "My instruction was not alone that of the Colonial Office; but the Constitution had been sanctioned by Parliament. A man's responsibility in the larger sense is, after adequate deliberation, to proceed as he determines to be just and wise. If he has to decide, not for himself only but for others, unto future generations, there lies his course all the more. There was one clear line for me, simply to hang up the Constitution, and intimate to the Home authorities my ideas about it." In accordance with this decision he wrote on August 20 (1847) to his chief, describing with that directness of which his pen was capable the ferment into which this impossible statesmanship had thrown the country.

{276} A portion of the Governor's measures to "quiet the apprehensions" of the Maoris was to despatch Captain Sotheby, then in command of H.M.S. Racehorse , to visit the northern chiefs, and aided by the ever loyal Waaka Nene he assured them, "on the authority of His Excellency the Governor, that there was no truth in the report that the Government claimed all land not under tillage." Subsequently this officer invited Earl Grey to reflect upon the rapidity with which this report had spread through the North Island, and the dissatisfaction which it had excited, "even in the minds of those chiefs who had hitherto been friendly to the British and who had fought on our side."

From old Te Wherowhero, of the Waikato, came the following characteristic protest to the Queen, whose honour he would not impugn, whose word he would accept:

In this dignified appeal the chief was joined by Bishop Selwyn, Archdeacon Maunsell, and Chief Justice Martin in the colony, and by the Wesleyan Mission Committee in England, who employed the searching pen of Dr. Beecham to voice their protest.

How the Bishop regarded the proposals of the Chief Secretary may be judged from the following passage in {277} a letter which he subsequently wrote to his friend, the Rev. E. Coleridge, in England: "If Lord Grey's principles had been avowed by the Governor as the rule of his policy, the safety of the English settlements could not have been guaranteed for a single day."

Archdeacon Maunsell, who in 1840 had informed Captain Hobson that the Missionaries had committed themselves to the promotion of the Treaty of Waitangi only because of their unshaken faith in the integrity of the British Government, [187] was at least entitled to point out that ever since the treaty was signed the conduct of the Maori towards the British had been marked by a spirit of chivalry, of friendship, and of good faith. "Why, then," he asked, "does the statesman of a mighty nation seek to confiscate the guaranteed possessions of our friends and allies?" If such should ever happen, his letter concluded, there could be no alternative but for the Missionaries in sorrow to leave the country, broken and discredited men.

Nor was the kindly, conscientious Martin less emphatic. In a pamphlet, "England and the New Zealanders," he discusses the danger of thus shattering the native confidence in Britain's honour. "In particular," he states, "those who have received Christianity are disposed to look up to us for guidance and government. But let the plan of confiscation or seizure be once acted on, and all this will be at an end. The worst surmises of the natives will have become realities. To them we will appear to be a nation of liars."

{278} The Wesleyan Mission Society embodied their views in a memorial, which they subsequently deemed worthy of publication, [188] wherein they justified their right to question the propriety of Earl Grey's policy, not only because of the prestige and influence of their Mission, but because that prestige and influence had been solicited in the interests of the Treaty of Waitangi by Captain Hobson, at a time when his success without it was impossible. They explained that their solicitude upon the subject had been greatly increased, if not wholly produced by the flood of letters they had received from their Missionaries in New Zealand, expressing the state of alarm into which they had been thrown by the publication of his Lordship's Despatch and Instructions, and which in their opinion affixed a meaning to the Treaty of Waitangi very different from that in which it was understood by the parties principally concerned in its execution. Being apprehensive that any attempt to carry what they regarded as a new interpretation of the treaty into effect, would result in the most disastrous consequences, they were constrained to make such representations upon the subject as they had reason to hope would avert the evils which they feared. They then proceeded to set out that at the commencement of the proceedings adopted by Her Majesty's Government for founding a colony in New Zealand, they distinctly understood that the previous recognition of the independence of New Zealand by the British Government having taken the country out of the category of barbarous tribes and people without a national character or national rights, the ordinary course pursued in colonisation would not be adopted in its case, but that New Zealand would be negotiated with as an Independent State, and that the British Crown would not take anything from the Aboriginal proprietors which was not ceded on their part by fair and honourable treaty. In support of this view, they quoted at length from Lord Normanby's instructions to Captain Hobson, in 1839 and from the subsequent correspondence {279} with him, when that officer sought a greater amplification of important points. On the authority, then, of the noble gentleman formerly at the head of the Colonial Department, they claimed that they were not deceived when they understood that the cession of sovereignty in New Zealand was not to involve the surrender of territory, either in whole or in part; that the cession to the Crown of such waste lands as might be progressively required for the use of the settlers should be subsequently obtained by fair and equal contracts with the natives, and that no lands were to be claimed for the Crown in New Zealand, except such as might be obtained by purchase from the natives, or by their own free consent. They detailed the overtures which Captain Hobson made to their Missionaries in 1840, when, "in accordance with instructions he had received from the highest authority in the realm," he requested their assistance in effecting the negotiation with which he had been entrusted. The Missionaries at this time, the Committee pointed out, had not read Captain Hobson's instructions, for they had not then been published, but they fully understood the claims of the natives upon the soil of New Zealand, and the point upon which they had to satisfy themselves was whether the proposed treaty was designed to admit and confirm those claims in the full and unqualified sense in which they were made. The Missionaries knew that the Maoris claimed the entire soil of New Zealand. [189] They knew that the entire country was divided amongst the several tribes, that the boundaries of every property were accurately defined, and the proprietorship so vested in each tribe that all the members of the tribe had a beneficial interest therein. They therefore knew that at the time the Treaty of Waitangi was signed there was no land in New Zealand without an owner, and which {280} would under the principles of public law, be automatically transferred to the Crown.

But the Missionaries were not alone the source from which the Committee proved the correct interpretation of the treaty. The witnesses who had given evidence before Earl Grey's own Committee in 1844 were marshalled to their support, the official Despatches were quoted to the same end, even those of Lord John Russell being referred to as "warranting the conclusion that his Lordship designed the treaty should be faithfully observed, in the sense in which it was understood by the natives and Missionaries of both the Church and Wesleyan Societies." To these was added the invaluable testimony of Lieutenant Shortland, who had been in closest association with Captain Hobson during the treaty negotiations, who had been privileged to administer the affairs of the colony under it, and who from his close official connection with it was peculiarly the man able to say what it meant and what it did not mean. Shortly before his return to England, the Select Committee of the House of Commons had issued their report upon "the State of New Zealand and the proceedings of the New Zealand Company," and so completely {281} did that report misrepresent, in Mr. Shortland's opinion, the true position of affairs, so harmful did he deem the resolutions which accompanied that report, that he felt in duty bound to protest to Lord Stanley against the needless perversion of the facts. During a lengthy and dispassionate statement of the circumstances surrounding the procuration of the treaty—than whom no one knew them better—Mr. Shortland, writing from his quiet retreat at Torquay, dealt with especial emphasis upon the relation of the sovereignty to the land:

With these and many similar pieces of unimpeachable evidence did the Committee press upon the Colonial Secretary the conviction that their reading and understanding of the treaty was the only one which its "large words," as Lord Stanley had termed them, would bear. Earl Grey relied upon the astute pen of Mr. Herman Merivale, his new Under-Secretary to release him from the horns of the dilemma upon which the cold reasoning of the Committee had impaled him. This he did by referring the memorialists back to an obscure phrase in the Royal {282} Instructions, which provided that no native claim to land would be recognised unless the title had previously been acknowledged and ascertained, "by some act of the Executive Government of New Zealand as then constituted or by the adjudication of some court of competent jurisdiction." The Treaty of Waitangi was now admitted, and even asserted by the Under-Secretary to be "unquestionably an act of the Executive Government," and therefore it followed that nothing that was guaranteed by the treaty was imperilled by the Instructions. With a wealth of argument upon phases of the issue which were not directly raised by the Memorial, [190] Mr. Merivale was at least able to assure the Committee that the Government intended and always had intended to recognise the treaty, as they believed, in the same sense in which the Committee recognised it. "They recognise it in both its essential stipulations, the one securing to those native tribes, of which the chiefs have signed the treaty, a title to those lands which they possess according to native usage (whether cultivated or not) at the time of the treaty, the other securing to the Crown the exclusive right of extinguishing such title by purchase." Considerable unction was claimed for his chief by the Under-Secretary, in that he had directed Governor Grey to proceed with all circumspection in giving effect to the instructions of the Department, but he failed to observe that even in his widened interpretation of the treaty, he still limited the rights in native lands to those tribes whose chiefs had signed the treaty. Those who like Te Heuheu, and Te Wherowhero had maintained their independence might still have been subject to spoliation had this view become the accepted interpretation of the Department, and those who were keenly interested in the fate of the colony were not slow to place this construction upon it. The immediate necessity for anxiety upon this point was, however, obviated by the prompt suspension of the Charter by Governor Grey, and {283} upon the submission by him to Downing Street of a more liberal and flexible Constitution, drafted upon the slopes and amidst the snows of Ruapehu.

Ere the brewing storm in New Zealand had burst, the crisis had come in the life of Lord John Russell's Ministry, who were defeated on their Militia Bill. They were succeeded by the Stanley of old, who in the person of Lord Derby, became Premier, with Sir John Pakington as his Colonial Secretary. To him fell the duty of giving legislative effect to the more workable and equitable Constitution drafted by Governor Grey, and when the Wesleyan Committee again approached the Colonial Office with the regretful assurance that the reply vouchsafed to them by the noble gentleman who had just vacated the Chief Secretaryship "was less satisfactory to the people of New Zealand than it had appeared to themselves," Sir John was able to convey to them through the Earl of Desart the gratifying intelligence that in the Bill then before the House there was every provision for the full and complete recognition of the principles for which they had so resolutely contended.

Concerning the Third Clause of the treaty, little need be said. By this covenant the Queen undertook, in consideration of the cession of sovereignty and the granting of the pre-emptive right of purchase of land, to extend to the Maori race her Royal protection, and impart to them all the rights and privileges of British subjects. Of the manner in which this undertaking has been fulfilled, the Maoris have never complained, and they have never had just grounds for complaint. There is no colour line drawn against the New Zealander in New Zealand. Our courts are as open to him as to anyone, and whether he be plaintiff or defendant, the same even-handed justice is meted out to him. He travels upon our railways, he rides upon our cars, he sits in our theatres on equal terms with his Pakeha friend. His children are educated in our schools and his sons are absorbed into our Civil Service, his chiefs sit at the Governor's table, and his elected representatives sit in Parliament, where their voice is respected and their {284} vote is valued. The professions are open to him, and there is no position in Church or State which he may not fill. No more is demanded of a Maori than of a European. His passport to society is his good behaviour, his participation of civil rights is governed by his disposition to become a law-abiding citizen.

Only one question now remains to be discussed. In what relation did those chiefs stand to the Treaty of Waitangi who refused to sign it? It has never been contended that all the chiefs were invited to meet Captain Hobson at Waitangi, nor that all were solicited by his agents to sign the treaty, nor that all who were so solicited agreed to affix their signatures to the document. There was a residuum, which included some of the most powerful chiefs in the land, who either had no opportunity of subscribing their allegiance to the Crown, or who for reasons of their own held aloof. How were these non-participants affected by the compact?

This question was first raised in its practical application by Taraia, a Tauranga chief, who in December 1842 committed what is believed to have been the last act of cannibalism perpetrated in New Zealand. Taraia was not a signatory to the treaty, and the Government were sorely exercised as to whether they were justified in claiming jurisdiction over him. An effort had been made by the Aborigines' Protection Society in London to define the status of these independent chiefs, by submitting the question to Mr. Joseph Phillimore, an eminent English lawyer, and Mr. Phillimore had given them a qualified opinion that if there were any chiefs who had preserved their independence by refusing to become parties to the treaty, then such chiefs may not be bound by its obligations, and may be entitled to distinct and separate consideration. But clearly, in an abstract sense, there could be no such qualification to the unaltered status of these men. They were still chiefs of an Independent State so far as they were concerned, retaining inviolate their mana , and refusing to be compromised by the concessions made by their fellow chiefs.

{285} The Government, then controlled by Captain Hobson, did not share even the qualified view entertained by Mr. Phillimore and those who thought with him. They presumed all natives of New Zealand now to be British subjects and determined that Taraia must be punished. This valiant determination was not, however, given final effect, not because the authorities were dubious of its justice, but because they had become uncertain as to its practicability; so much so that they subsequently deemed it prudent to limit their interference to a warning to that chief, that he might expect to incur the anger of the Governor upon a repetition of his offence. In Taraia's case this reprimand was sufficient to quiet him, but only a few months later Tongoroa, another Tauranga chief, made war upon his neighbours, and the sore which looked as though it had healed was suddenly reopened. Lieutenant Shortland, who had now assumed the post of Acting-Governor, proceeded to Tauranga to arrest the disturber of the peace, but before the apprehension could be effected his accumulating difficulties were further increased by an unexpected communication from Mr. Clarke, the chief Protector of the Aborigines, and Mr. Swainson, the Attorney-General. Both these gentlemen had previously endorsed the contemplated arrest of Taraia, but to the amazement of the Acting-Governor they informed him that more mature reflection had caused them to reverse their opinion, and that they now considered the arrest of Tongoroa would be illegal.

Hurrying back to Auckland, Shortland called a meeting of his Council, and there sought some enlightenment as to this new view-point of the Maori status under the treaty. Amongst those consulted was necessarily Mr. Clarke, the erstwhile Missionary, and now Chief Protector of the Aborigines, whose close and constant intercourse with all the tribes gave him the most favourable facilities for gauging the strength and direction of the native aspirations. In the course of his examination Mr. Clarke was asked:

From the Protector of the Aborigines who only pretended to interpret Maori opinion as he gleaned it in his progress through their pas and settlements, the Executive turned to their Attorney-General, Mr. Swainson, for his more recent interpretation of the position as it appealed to the trained mind of a jurist, and Mr. Swainson only put into less direct language the pronouncement of Wiremu Tamihana, the King Maker, who during the hey-day of the King movement scorned the authority of the Queen over his land: "I am chief of Ngati-Haua, which is an independent tribe. My father, Te Waharoa, was chief before me. Neither he, I, or any of my people signed the treaty, therefore we are not bound by it." Mr. Swainson's opinion was as follows:

Though doubtless giving to these expressions of opinion the respectful consideration which was their due, the Acting-Governor decided to assume the responsibility of setting them aside, and following the dictates of his own judgment. To him it seemed that it would be fatally weak to admit in the practical administration of the country the nice line of distinction drawn by the Attorney-General or subscribe to the opinion expressed by Mr. Clarke, "that every honourable and humane means should be used to prevail on tribes to cede the sovereignty where it has not been ceded," as in his judgment this would have been an over-ready admission that they were beyond the pale of the British Crown, and no more effectual means could have been adopted of disseminating the harmful acknowledgment. The troops were accordingly sent to Tauranga, but no arrests were made. Here prudence again prevailed and the officer in charge was instructed only to employ the soldiers "in the general preservation of peace." When these proceedings were reported in due course to Lord Stanley, he warmly endorsed the view adopted by Lieutenant Shortland [191] and as warmly censured Swainson, who {289} was told in the plainest terms that he could not be permitted to entertain the views to which he had given expression, and hold a public office at the same time.

As a matter of abstract reasoning, Lord Stanley was probably wrong, as a matter of practical administration he was probably right, but the correctness of his attitude depended for its success upon the tactfulness of its application. Fortunately New Zealand has, in the main, been blessed with administrators of wide sympathies, and a paternal parliament has generally, though not always given the native race the most indulgent exposition of the treaty. Mistakes may have been made, misapprehensions may have occurred, even technical breaches of the treaty may have been committed, but since the administration of native affairs was handed over to the Colonial Government in 1863 there have been but few instances of flagrant violation of native rights. Prior to this date the care and control of the Maori still vested in the Imperial authorities, even after representative institutions had been granted to the country; and while that condition lasted there was, unhappily, an all too frequent clashing of the two races. With one or two exceptions these conflicts had a common origin in an over-anxious desire on the part of the Europeans to become possessed of native land, as opposed to the deep-founded pertinacity with which the chiefs clung to their ancestral domains. The first of these exceptions was the insurrection of Hone Heke in 1845, which was not in its inception a dispute regarding land, but an undisguised protest against the exercise of the Queen's sovereignty. Land did ultimately play its complicating part in the disruption, but in its initial stages it was the revolt of a volatile man who felt the treaty had carried him further than he intended it should lead him; it was the protest of an ambitious chief who loved notoriety as much as he loved his independence. Heke fell upon what now appears to have been the weak point in Hobson's negotiations; that while he may have, and doubtless did, convey to the natives a clear enough idea of what was meant by the sovereignty of the Queen, he does not appear {290} to have taken sufficient care to explain with any detail what its possible effects might be. Assuredly he was not endowed with such a mental vision as to foresee all that was to happen, nor to conjure up within his mind all the changes that were inevitable in evolving a State from a condition of barbarism to one of civilisation. One thing, however, must have been obvious both to him and to those who were associated with him, that no government could be organised and carried on in a new country without a revenue adequate for all its varied purposes. Under Lord Normanby's instructions funds were to be temporarily provided from New South Wales, but the permanent revenue was to be raised within New Zealand itself, of which a large part, it was hoped, would be derived from the sale of land. Other sources of income in the way of customs duties and taxation in varied forms must also have been in contemplation, but we have no evidence that Captain Hobson ever took occasion to explain to the people that sovereignty would cost them something; that revenue which had been falling into the hands of the chiefs would be diverted into the coffers of the State, and that with the surrender of their independence they must also surrender the levies which they had been making upon the whalers.

It is conceivable that had this surrender of a means to opulence been clearly contemplated by the chiefs as a part of the colonising scheme those at the Bay of Islands would have been the more easily reconciled to it by the natural expectation that even larger sums would be flowing in to them from the sales of land. If these anticipations ever existed they were doomed to disappointment, for instead of entering upon an active campaign of land-buying the Governor suspended the purchases he should have made, and wasted his money on a site for a town, while the rigid enforcement of the pre-emptive right acquired by the Crown closed the market against the buyers of open country lands. This restriction was felt to be not without its element of injustice; for upon a more critical examination of the terms of the treaty it was found that though the Crown claimed the exclusive right to extinguish the {291} native title, nothing had been determined as to the price to be paid or as to the time within which the purchase should be made. Thus, chiefs like Heke, who had been in receipt of substantial sums by way of anchorage money from the shipping found their perquisites appropriated by the State, while they derived no compensating benefit from the sale of land.

The first flush of disappointment which surged within the breast of Heke as he contemplated the unexpected effects of the new power was fed by the angry adventurers and thwarted speculators, who, in their chagrin at the interception of their schemes, had no compunction in inciting him to a course which ultimately led to a declaration of hostility against the Queen and to open war against the Crown.

Not so the Waitara war of 1860, which found its origin not so much in a desire to violate the treaty, as in a blundering endeavour to observe its most important provision. The taking up of arms by Wiremu Kingi was not in its spirit rebellion against the Queen's sovereignty, but a reply to the Governor's attempt to divest him of his rights by insisting upon purchasing land from one whom Wiremu contended could not by any application of native law be constituted the owner. There was on the part of the natives the greatest reluctance to resort to arms, their desire being to test the disputed point of ownership before a properly constituted Commission; but when these overtures were rejected and the Governor held on his headstrong way, they felt there was no course compatible with their high-strung sense of dignity, but to refer the momentous issue to the final arbitrament of war. The story of the Waitara campaign is too well known to need recapitulation here, but in the opinion of many of those skilled in the intricacies of Maori land tenure it was a blunder of the first magnitude, for which Governor Gore-Browne, and not the Colonial Parliament was wholly responsible. If, then, the war was unjust, the confiscation of native land which followed upon the suppression of what was called rebellion was branded with the same injustice.

{292} And just as one wrong perpetuates itself in the form of others, this confiscation has ever since burned deep into the hearts of the Taranaki natives, and led in the early eighties to what is known as the Te Whiti movement. Like his predecessor, Wiremu Kingi, Te Whiti was a much-misunderstood man. For this state of misconception he may have himself been largely accountable, for as a concession to the Maori love of the mysterious he so combined religion with his politics, and dealt so freely in the mystic, that it was frequently difficult to separate intangible prophecy from the things that really mattered in his material policy. But shorn of all its grotesqueness the movement which centred round the Parihaka prophet and his uncle Tohu was not a repudiation of the Treaty of Waitangi, nor was it a revolt against the authority of the Queen. At its base lay the grievance, or the fancied grievance, which was before them every day in the shape of the confiscated lands. There upon the wide Waimate Plains they saw European homesteads whose occupancy was in their eyes a crime against Maori rights. Te Whiti felt he had two things to do. He had to assert his right to those lands, and he had to agitate for justice. He accordingly sent his faithfuls to plough up the fields of the farmers and the lawns of the settlers, in the mistaken hope that he would be able to force the issue before a competent tribunal and there determine who had broken the treaty—the Maori or the Pakeha .

The Government of that day saw things differently. They had no desire to exhume the remains of past mistakes with a possibility of being called upon to repair them at a cost of much treasure and more dignity. They preferred to stand upon the settled policy of their predecessors, and instead of sending a Commission to discover what was at the back of the prophet's mind, they sent troops and took him prisoner. Te Whiti may have been a dreamer, he may have been a babbler of vain things, but he was never a rebel, nor the maker of rebels; but for saying "I love my land" he was legislated into rebellion, and made to appear as a criminal.

{293} In the same way the King movement of 1857 only became rebellion when the Crown made it so. Two primary causes operated to call into existence this political power, the creation of Wiremu Tamihana's [192] genius, which for over fifty years was a potent influence in the Maori life of the Waikato. For upwards of fifteen years the colony had been following with more or less exactitude the terms of the treaty, and during this time the State had exercised its power of pre-emption in a manner which the more enlightened Maoris now began to regard with disfavour. When Lord Normanby despatched Captain Hobson to found the colony he anticipated no opposition to the practice of buying land from the natives at a low price and selling it again to the colonists at a large advance on what the Crown had paid. For a time these anticipations were confirmed by results, but now the fathers of the race, jealous of the rapid increase of the Europeans, and alarmed at the equally rapid diminution of their lands, began to adopt a different view. Rather than part for a few shillings with property which they knew would be sold for as many pounds, they determined to exercise their right under the treaty, and refuse any longer to sanction the large transactions in which they had been engaged with the Crown.

Their eyes, too, had been opened by the Waitara war. Here a single individual had embroiled the whole of the Ngati-Awa tribe in a sanguinary conflict with the Government, by insisting upon selling land to which his title was contested. These unauthorised sales, said the chiefs, must cease, and no individual should, by his avarice, have the power to involve the people in war. To crystallise this determination into a practical act of statesmanship Wiremu Tamihana conceived the idea of a Maori King, who was to be, not antagonistic to, nor a substitute for the Queen, but the arbiter and judge in all internal disputes, as well as the mouthpiece as to land which the tribes as a whole were or were not prepared to sell. "I {294} do not desire to cast the Queen from this Island, but from my piece of land. I am the person to overlook my piece" was how Wiremu Tamihana once publicly stated his attitude towards the Crown. The King movement was thus a Land League and not a rebellion, and as the Maoris had the right to withhold their land from sale if they so pleased, their adherence to this restrictive policy was no more illegal than the establishment of a Trades Union or a Political Association. The movement did not become militant until after the invasion of the Waitara by the British troops, when many of the Waikato natives rose in sympathy with Wiremu Kingi, and the battle followed them back to their gates. Then the authorities began to realise what a compelling truth there was in the maxim of Bishop Selwyn: "Nothing is easier than legally and peacefully to extinguish a native title; nothing is harder than to extinguish a native war."

Worsted, though not disgraced, in the field, the dissatisfied Maoris have since sought to secure the full measure of political justice to which they believe themselves entitled by more constitutional methods. Amongst their dreams has been a native Parliament sitting in the Treaty House, at Waitangi, to approve measures for the betterment of the race, which measures would be afterwards adopted by the Government and given the effect of law. This, however, has been nothing more than a dream. Little better was the Kotahitanga , or union, in 1892, of all the tribes in the north, exclusive of the Kingites who still remained loyal to their monarchal authority. The policy upon which this new union was founded was that of inducing the Government to cease purchasing native lands, and to set aside as a reserve for the benefit of the present and all future Maori generations the considerable areas of native land still unsold. Nor was this all. Legislation had been passed, not specially directed against, but not excepting the native race, placing restrictive conditions upon the oyster fisheries of the country, and this the leaders of the movement held to be a breach of the second clause of the treaty, which guaranteed to them not only {295} the free use and control of their lands and their forests, but of their fisheries also. The deprivation of their right to freely gather food from the sea and the sea-shore was, together with other grievances, sufficient to galvanise them into political activity, and the Kotahitanga was formed with the meteoric Hone Heke [193] at its head. The Native Rights Bill was introduced by him and rejected by Parliament, but the movement was not without its fruits, for in 1900 part of their purpose was achieved in the concessions made by the Government in the Native Land Administration Act and the Maori Councils Act.

With the accomplishment of these aims, and the early death of Heke, the Kotahitanga has failed to preserve its former vitality; but brief as was its career, it must be recorded of it that in its inception and activities it was, as most Maori movements have been, not an organisation designed to aid in the evasion of the treaty, but rather to insist upon the due observance of its contracts.

Few Legislatures in the world have had a more difficult task than has fallen to the lot of that of New Zealand in legislating for the Maori so as to preserve his nationality, his rights, his liberties, and yet not bar the progress of the European state. That it has been embarrassed times without number by the treaty is undoubted, and therefore it is the more to its credit that the diplomatic bargain which has now held good for the better part of a century should have been so little violated. The treaty has been the broad foundation upon which the intricate structure of native legislation has been reared through all these years; and if there has ever been as there must have been under changing conditions trespass upon the strict letter of the compact, it is safe to assert that this variation has only occurred when Parliament has been honestly satisfied that the wider interests of the State as a whole demanded the departure. At no time has the Legislature been callously unmindful of the true spirit of the treaty, or careless of the great trust imposed upon it as the guardian {296} of native rights. [194] This commendable endeavour to observe that "justice which is the paramount interest of all men and all Commonwealths" has finally led to a universal acceptance of the treaty by the native race as the basis of their civil and political privileges. So far is this the fact, that to-day the Maori is more insistent upon a due observance of its covenants than is the European. The present generation of natives accept it unquestioningly; and long before the "Old Guard" of objectors had passed away they, too, were beginning to realise that the sacrifice of their independence was more than compensated for by the protection of the British flag. They felt the irresistible sweep of the white tide that had surged upon their shores, and much as they might regret the passing of their ancient mana , they were compelled to acknowledge the force of truth in the figurative statement of their diminishing power once propounded to them by Mr. Busby: "How can the little pebble dam the stream? how can the single tree stand against the storm?"

APPENDIX

The following petitions to the late Queen are interesting as being the more recent protests of the Maoris against what they regard as breaches of the Treaty of Waitangi. The Memorandum and correspondence which follow may be taken as the official answers to the grievances as alleged in the petitions.

The subjoined judgment of the Chief Justice, and the extracts from the other judgments delivered in the Court of Appeal in the case of Tamihana Korokai, October 1912, are of value as affording us the most recent judicial interpretation of the Treaty of Waitangi.

PETITION FROM MAORIS TO THE QUEEN

The Earl of Kimberley to His Excellency Sir A. H. Gordon, G.C.M.G.

Downing Street , August 8, 1882 .

Sir —I have the honour to transmit to you, to be laid before your Government, a copy of a memorial to the Queen, which was handed to me by certain Maori chiefs, complaining of alleged breaches by the New Zealand Government of the Treaty of Waitangi, with a printed translation of the same, which I received in a letter from the Rev. P. Walsh of Parnell, Auckland. I also enclose a newspaper extract, which gives a brief but fairly accurate account of an interview which I held with these chiefs and several members of Parliament, and others who accompanied them on the occasion.

I request that you will lay these papers before your Government. You will invite them to favour me with any observations they may wish to make in regard to the memorial.—I have, etc.,

Kimberley. The Hon. Sir A. H. Gordon.

{298} To Her Majesty Victoria , the Good Queen of England, and the Empress of India, Greeting.

Go forth, O our messenger, on the soft airs of affection to remote lands, across the ocean that was trodden by Tawhaki, [195] to Victoria, the Queen of England, whose fame for graciousness has extended to all the kingdoms of the world, including New Zealand. O Mother, the receiver of the sentiments of the great peoples and the small peoples under the shade of your authority, Salutations! May the Almighty preserve you on your Throne, and may men applaud you for your goodness to your peoples living in these Islands, who are continually directing their eyes toward you, the mother who is venerated by them.

O Mother, the Queen! on account of the desire to protect these Islands, your father sent hither, in 1840, Captain Hobson. At that time the enlightened administration of England was discovered by us, and the Maori chiefs came to the conclusion that England, in preference to other countries, should be the protector of New Zealand—to protect and cherish the Maori tribes of New Zealand. The conclusion brought about the treaty of Waitangi, and the appointment of the first Governor, Captain Hobson.

In consequence of the ignorance of some tribes, including Hone Heke, the flagstaff was cut down at Maiki, Bay of Islands, for the tribes in question imagined that the flag was the symbol of land confiscation. Nevertheless, there was no blood in the flagstaff which had been cut down, making it needful to raise armies to fight the Maoris. If the Native chiefs had been summoned to a conference at that time, and matters had been explained to them, there would have been no war; but the Europeans flew as birds to make war against Heke, which brought about the blood-shedding of both Europeans and Maoris.

In the year 1860 another evil was brought upon the Maori tribes by the Governor himself, who, without any grounds, drove Wiremu Kingi from his own lands at Waitara, and this war about land renewed the shedding of both European and Maori blood. On this occasion, O Mother, the Queen! the grievous lamentation of this Island was raised, and you recalled, in consequence, Governor Gore-Browne, whose administration closed here. It was said by the Europeans that {299} William King did wrong in opposing the Governor; that if William King and party had appealed to the Supreme Court, the Government act in that case would have been condemned. Hence the knowledge of the Taranaki tribes taking up that opinion, and retaining it up to the capture of Te Whiti and others, who did not oppose in fight the Government when it went with an army to Parihaka, to enkindle Maori strife, thereby endeavouring to find a basis to make the Maoris do wrong, and then confiscate their lands.

In the year 1862, you, O Queen, sent hither Governor Grey to calm down the rain and the wind, [196] so that the sea of both races should be still. Governor Grey possessed much wisdom: he understands the Maori language, also the Maori customs. Notwithstanding, when he came the second time as Governor of these Islands, he rushed hastily away to Taranaki, and gave instructions for road-making on Maori territory, thereby bringing about a war and the slaying of many of both races. In the year 1863 the war was carried into Waikato, and the Maoris throughout the Island were unaware as to the reason why war had been made on the Waikato. Now, O Queen, the Waikatos had formed a land league, in accordance with the Treaty of Waitangi, to preserve their native authority over the land, which principle is embodied in the treaty.

O, the Queen! you do not consider that act of retaining their land to be unjust; but the Government of New Zealand held it to be wrong, inasmuch as war was declared against the Waikatos, and the confiscation of their land followed, although the Waikatos had no desire to fight—the desire came from the Governor and his council. When the Waikatos were overpowered, armies of soldiers went forth to engender strife against the Maoris at Tauranga, at Te Awa-o-te Atua at Whakatana, at Ohiwa, at Opotiki, at Turanganui, at Ahuriri, at Whanganui, at Waimate, and various other places. The motive impelling the projectors of these deeds to execute this work was a desire to confiscate the Maori lands, and to trample under the soles of their feet the Treaty of Waitangi. While these proceedings were being carried out, the weeping people wept, the lamenting people lamented, the agonised people were in agony, the saddened people were in sadness, while they held the Treaty of Waitangi as a basis on which the voice of the Maoris could be made known to you, O Queen.

But the people of New Zealand declared that the fighting and the confiscation of land which brought calamity, and {300} made your Maori children orphans, were sanctioned by you, O Queen. We did not believe the utterances of the Europeans as to the wrongs we suffered, that they were brought upon us by your queenly authority; but our decision was that such acts were not sanctioned by you, O Queen, whose benevolence towards the Maori people is well known. The disorderly work referred to has been carried into practice, so that a path might be opened up to Europeans to seize Maori lands.

In the year 1881, a new plan was devised by the Government to enkindle strife in respect to the Maoris. Armies were sent to Parihaka to capture innocent men that they might be lodged in prison; to seize their property and their money, to destroy their growing crops, to break down their houses, and commit other deeds of injustice. We pored over the Treaty of Waitangi to find the grounds on which these evil proceedings of the Government of New Zealand rested, but we could find none. Some of the European inhabitants of this Island disapproved of these injurious doings to Maori men; and it was vaguely rumoured that Sir Arthur Gordon, the Governor, refused to approve of these acts. Many other evils have been discovered by our hearts, therefore have we considered right, O Mother, the Queen, to pray that you will not permit increased evils to come upon your Maori children in New Zealand, but to graciously sanction the appointment of a Royal English Commission to abrogate the evil laws affecting the Maori people, and to establish a Maori Parliament, which shall hold in check the European authorities who are endeavouring to set aside the Treaty of Waitangi; to put a bridle also in the mouth of Ministers for Native Affairs who may act as Ministers have done at Parihaka, so that all may be brought back to obey your laws; and to prevent the continued wrongs of land matters which are troubling the Maori people through days and years; and to restore to the Maoris those lands which have been wrongfully confiscated according to the provisions of the Treaty of Waitangi; and to draw forth from beneath the many unauthorized acts of the New Zealand Parliament the concealed treaty, that it may now assert its own dignity.

In this year, 1881, we, O the Queen, built a House of Assembly at the Bay of Islands, and the great symbol therein is a stone memorial, on which has been engraved the articles of the Treaty of Waitangi, so that eyes may look thereon from year to year. Two invitations were sent to the Governor, requesting him to unveil the stone Treaty Memorial. He did not accede to the request. Perhaps his disinclination arose {301} from the fact that the Europeans had disregarded the principles embodied in the treaty, because in you, O Queen, is vested the sole authority affecting the Waitangi Treaty. Should you authorize, O Mother, the Queen, the appointment in England of a Royal English Commission, under your queenly seal, to investigate the wrongdoings of both races, then will you rightly be informed, O Mother, as to what is just and what is false.

It is believed by us, O Queen, that you have no knowledge as to the deeds of wrong that gave us so much pain, and which create lamentation among the tribes; but if, in your graciousness, a Maori Parliament is set up, you will, O Queen, be enabled clearly to determine what is right and what is wrong, what is evil and what is good, in the administrations of the two races in these Islands.

O Mother, the Queen, there are no expressions of disaffection towards you by the Maori tribes, including the tribes of the King; but they revere, only revere your Majesty; and the search after you, O Queen, has induced us to send this petition to England by the hands of the persons appointed by our Committee, who will see your very countenance and hear your words.

O Mother, the Queen, do not suppose that the sufferings under which we labour are light. Many wrongs are felt by various tribes, but the following are some which have come under our own notice:—(1) The fighting between the Maoris and the New Zealand Company in the year 1841-42 was brought about by land disputes, and Mr. Wakefield fell in the strife. (2) The war against Te Rangihaeata in the year 1842-1843: a land dispute also was the origin; and some of Rangihaeata's people were wrongly executed, their deaths being opposed to the English law, and contrary to the principles of the Treaty of Waitangi. (3) The war against Heke and Kawiti in 1844-45, caused by land sales and the withholding of the anchorage money at Bay of Islands, was contrary to the second article of the Treaty of Waitangi. (4) The fighting between the chiefs Te Hapuku and Te Moananui in 1848-1849 brought about by land purchasing on behalf of the Government. (5) The war against Wiremu Kingi on account of the block of land named Waitara, at Taranaki. (6) The war against the Waikatos in 1863, extending to the year 1870. (7) The fight among the Ngatitautahi tribe in 1879, four Natives killed, the strife being occasioned by the land purchases of Government, a portion of £700,000 having been scattered over our lands by Government Agents in 1875. {302} (8) The capture of two hundred innocent men of Te Whiti in 1879-81. (9) The incarceration of Te Whiti and his people in 1881-82, who were guiltless of any crime.

The following, O Queen, are references to New Zealand Ordinances put forth and said to be against the principles contained in the Treaty of Waitangi: (1) The making of unauthorized laws relating to Maori lands—namely, the Land Acts of 1862, 1865, 1873, 1880—which Acts were not assented to by the Native chiefs in all parts of the Island. Nor is there any basis in the Treaty of Waitangi for these laws, which continuously bring upon our lands and upon our persons great wrongs. (2) The Immigration and Public Works Act, and the borrowing of £700,000 expended here and there to confuse the Maoris and their titles to land.

O Mother, the Queen, these other things, and many of the laws that are being carried into effect are, according to Maori ideas, very unjust, creating disorder amongst us, giving us heart-pangs and sadness of spirit to your Maori children, who are ever looking towards you, most gracious Queen; and it is averred by men of wisdom that these matters which weigh so heavily upon us are in opposition to the great and excellent principles of the Treaty of Waitangi.

May you be in health, O Mother, the Queen! May the Almighty bring down upon you, upon your family, and upon the whole of your people the exalted goodness of Heaven, even up to the termination of your sojourn in this world, and in your inheritance in the home of sacred rest!

May you live, is the prayer of your children in the Island of New Zealand.

Parore te Awha ,
Hare Hongi Hika ,
Maihi Paraone Kawiti ,
Kingi Hori Kira ,
Mangonui Rewa ,
Hirini Taiwhanga ,
Wiremu Puhi te Hihi ,
Hakena Parore.
- For the Native people of New Zealand.

MAORI CHIEFS IN LONDON

Yesterday afternoon, a deputation of Maori chiefs, accompanied by numerous friends of the Aborigines' Protection Society, waited upon the Earl of Kimberley (Secretary of State for the Colonies) at the Colonial Office, for the purpose of seeking redress of grievances under which Native tribes, it is alleged, suffer in New Zealand. The Maori chiefs, three in number, were attired in English dress. They appeared {303} intelligent men, one of them having his face much tattooed. Their names were Wiremu Puhi te Hihi, Hirini Taiwhanga, and Hakena Parore. There were present Sir T. Fowell Buxton; Mr. W. H. James, M.P.; Mr. T. Fry, M.P.; Sir Wilfred Lawson, M.P.; Sir D. Wedderburn, M.P.; Mr. W. Rathbone, M.P.; Mr. A. M'Arthur, M.P.; Mr. Alderman Fowler, M.P.; Mr. Brogden, M.P.; Mr. Cropper, M.P.; Mr. Thomasson, M.P.; the Bishop of Nelson, the Rev. T. Grace (late of New Zealand), Mr. Froome Talfourd, Mr. C. Hancock, Mr. W. Wilson, Mr. G. W. Rusden, Mr. Da Costa, Mr. F. W. Chesson (Secretary of the Aborigines' Protection Society).

Mr. F. W. Chesson read a letter from Bishop Abraham (the late Bishop of Wellington) in which he stated that in 1852, Sir John Packington, being the Colonial Minister, framed a Constitution for New Zealand absolutely ignoring the 60,000 Natives, who then outnumbered the English, and who were by the Treaty of Waitangi proclaimed to be as much subjects of the Queen as the English. No Native could vote unless he chanced to have a Crown grant, which only a very few had, and this was a direct violation of the treaty. It was not till about the year 1865 that four or five Natives were admitted into the Houses of Parliament.

The Bishop of Nelson then explained the objects the deputation had in view. He said the three Maori chiefs present had brought with them a petition to the Queen, signed by Native chiefs, asking for the investigation and redress of grievances under which they laboured, and they were desirous of presenting it to Her Majesty, at the same time requesting the acceptance of some presents, according to the Maori custom. They complained of the incarceration of Te Whiti and his people, who, it was alleged, were guiltless of any crime, and also that the reserve of land promised had not been properly secured to them. The treatment of Te Whiti was the more extraordinary considering how much had been condoned in the case of disloyal Natives, while throughout the whole of the disturbances he had never been in arms against the Government, but had prevented war, in the full confidence that his legal position and claim would be gone into.

The petition addressed to "The Good Queen of England and the Empress of India," and which saluted Her Majesty, "whose fame for graciousness had extended to all the nations of the world," as Mother of the Maori tribes, was then handed to Lord Kimberley.

Lord Kimberley asked whether the petition had been {304} presented to the Governor or the Government of New Zealand.

The Bishop of Nelson—"I think it has not been so presented."

Lord Kimberley pointed out that the memorial ought to have been presented to the Governor and the Government of New Zealand in the first instance, in order to enable him to have their views on the question; and he remarked that under the present circumstances he could give no definite answer to the petition.

The three Maori chiefs then spoke in their own language, their statements being interpreted by the Rev. Mr. Grace. One of the chiefs (Hirini Taiwhanga) apparently understood a little English, although declining to converse in that tongue. Firstly, they complained that the Treaty of Waitangi had not been upheld, and urged that it should be maintained, and the English and Native races governed according to it; secondly, they desired that steps should be taken to unite more closely the English and the Native race, instead of the latter being treated by the former as a horse treated his enemy—kicking him away; and, thirdly, they were much concerned at the treatment to which their fellow-countryman, Te Whiti, was subjected, and they wished him to be set at liberty.

In reply to a question put by Lord Kimberley as to the reason why the petition had not been presented to the New Zealand Government—

Wiremu Puhi te Hihi said the omission was due to the haste the chiefs made to present the Petition to the Queen, as they had heard reports that her life had been attempted by assassins. He added that he was perfectly aware that Her Majesty had given the New Zealand Government power to deal with its domestic affairs, but he thought the Government at New Zealand had not acted as the Queen would have done under similar circumstances. He further stated that the Native grievances extended throughout the Island.

Lord Kimberley requested the interpreter to tell the chiefs that to pass over the Colonial Government, and to endeavour to induce the Imperial Government to act independently, would not tend to the union of the English and Native races.

One of the chiefs (Hakena Parore) said the chiefs had no wish to ignore the New Zealand Government, and they were doing their utmost to diminish drunkenness among the Native tribes by means of total abstinence societies.

Mr. Wilfrid Wilson (of New Zealand) said there was reason {305} to believe that some of the Native chiefs who signed the Treaty of Waitangi were not the owners of land, and there was a large number of chiefs who owned land that did not sign the treaty.

Sir T. Fowell Buxton, having observed that a good deal might turn on the question whether the treaty was obsolete or not—

Lord Kimberley said the treaty was very simple, and provided that the possession of land was to be respected. It was not the duty of the Colonial Office to advise the Queen in reference to local matters like the present. The management of the land of New Zealand was absolutely handed over to the New Zealand Government, and the Queen was advised by the Ministers of the colony with regard to these matters, and not by himself, as there could not be two governments for one country. It had been decided, as more likely to conduce to the peace of the country, that the affairs of New Zealand should be managed at the colony rather than in Downing Street. He had a strong conviction that the course was right. The question now raised by the deputation appeared to be connected with confiscations arising out of wars, and the treaty would not be concerned in such confiscations, but the point was whether they were just. Having received the petition, he should transmit it to the Colonial Government, and ask them to state their views with regard to it. It might be thought desirable to issue another Royal Commission, but that step rested with the Colonial Government.

At the request of His Lordship, the Interpreter told the chiefs that the Queen took a great interest in the welfare of the Native population of New Zealand, and it was a matter of great satisfaction to Her Majesty that of late years there had been no wars or bloodshed between the two races, which was a happy omen for the future.

The deputation then retired.

The Premier to His Excellency the Administrator

Ministers have had under consideration the despatch from the Secretary of State, dated the 8th August last, enclosing copy of a memorial to the Queen from certain Maori chiefs of New Zealand, and inviting this Government to favour him with any observations they may wish to make thereupon.

The memorial professes to be signed "For the Native people of New Zealand." After full enquiry, Ministers have {306} ascertained that but few Maoris were aware that such a memorial was to be presented; and that several of those who knew what was intended have no sympathy with the proceedings of Hirini Taiwhanga, from whom the memorial emanated.

Taiwhanga belongs to Nga-Puhi, the principal tribe in the northern part of the North Island. He is not a man of any rank; and he has no importance beyond what he has gained in consequence of his abilities and education. As an intelligent boy, he was educated under the direction of the late Bishop Selwyn; and, subsequently it being desired to push forward Native youths of promise, he was after due instruction appointed by the Government a licensed surveyor. The appointment was not a success; and in June 1872, his license was revoked, in consequence of malpractices, reported by the Inspector of Surveys and two Judges of the Native Land Court.

The Government had for several years been making efforts to establish schools in Native districts for the education of Maori children, and in 1877 Taiwhanga was appointed master of such a school at his native settlement Kaikohe. His remuneration was a capitation allowance; but his conduct in this position was so bad that the school had to be broken up. He neglected his work, absented himself from the school and from the settlement, and, by rendering grossly false returns of the number of children attending the school, he obtained money not due to him for capitation. Taiwhanga's conduct in other transactions has been equally open to condemnation.

The other two members of the deputation also belong to Nga-Puhi. One is a grandson and the other a nephew of Parore, a Nga-Puhi chief of high family and of great respectability. He is upwards of ninety years of age, and was induced by Taiwhanga to provide the money to take his relatives as a deputation to England to see the Queen. The men themselves are respectable, but have not taken a leading position in their tribe.

The only object in giving these particulars is to enable the Secretary of State to form an opinion as to the weight that should attach to the statements and proceedings of the deputation.

With regard to the "wrongs" detailed in the memorial, Ministers desire to point out that the first six have reference to transactions during the time Native affairs in New Zealand were under the control and management of the Imperial Government, through their officer, the Governor of the {307} colony. A full history of these transactions will no doubt be found in the Parliamentary papers, Imperial and Colonial, in the Colonial Office; and on reference to such papers, it will be seen how little reason the Maoris have to complain.

The "wrong" standing as No. 7 in the memorial, has relation to a dispute between two tribes in reference to land, with which the Government of the colony had no connection, and for which they were not in any way responsible.

Nos. 8 and 9 refer to recent transactions, for which the Colonial Government were entirely responsible. A full account, and the justification of the Government's conduct, will be found in the documents from time to time transmitted through the Governor to the Secretary of State.

The special legislation referred to in the memorial as "unauthorised laws relating to Maori lands ... not assented to by the Native chiefs in all parts of the Island," and as having no "basis in the Treaty of Waitangi," is not restrictive but enabling. The object of the Native Land Acts enumerated was to provide a special tribunal for the determination of Native title; to relieve the Maori owners from the monopoly held by the Government; and to enable them to sell their lands to whomsoever they pleased. In no way are the provisions of the Acts compulsory. The Maoris were and are at liberty to avail themselves of the powers conferred, or to abstain from doing so, at their pleasure.

It may be stated that, with the exception of lands confiscated for rebellion, no land whatever has been taken from the Maoris by the Government. With the exception stated, all lands acquired from Natives by Government have been acquired from willing sellers, and fully paid for. The £700,000 referred to has been paid to them, besides other large sums, for what was to them unprofitable waste.

The general legislation of the colony as to the Maoris has been more than just—it has been exceptionally favourable to them. When laws have been made applicable to the people of the colony, the object has in many instances been to except the Maoris from their stringency; and there is no instance in which they have been placed in a less favourable position than the European population. Of the many laws on the statute-book of the colony which bear out this statement, one illustration may be mentioned: the Maoris are specially exempted from all direct taxes on both real and personal property.

It may, indeed, with confidence be asserted generally that there is not, and has not been, anything on the statute-book {308} of the colony, or in the conduct of the Colonial Legislature, as regards the Maoris, to which reasonable exception can be taken.

Fred Whitaker. Wellington , December 12, 1882.

His Excellency the Administrator to the Secretary of State for the Colonies

Government House, Wellington , December 16, 1882 .

My Lord —With reference to Your Lordship's despatch, No. 33, of 8th August 1882, transmitting a copy of a memorial to the Queen from certain Maori chiefs of New Zealand, and enclosing a newspaper extract giving an account of an interview held by Your Lordship with those chiefs, and several Members of Parliament and others, I have the honour to enclose a memorial from the Prime Minister, Mr. Whitaker, which he has forwarded to me in consequence of the invitation to him to make observations on the memorial, which invitation was conveyed to him by Your Lordship's directions, as already stated in my despatch, No. 88, of November 5, 1882.—I have, etc.

James Prendergast. The Right Hon. the Secretary of State for the Colonies.

The Secretary of State for the Colonies to His Excellency the Governor

Colonial Office, Downing Street , February 17, 1883 .S

Sir —I have the honour to acknowledge the receipt of your despatch, No. 102, of the 16th December last, transmitting a memorandum from the Prime Minister, Mr. Whitaker, on the subject of a memorial placed in the hands of my predecessor, by certain Maori chiefs of New Zealand for presentation to the Queen, complaining of alleged breaches by the New Zealand Government of the Treaty of Waitangi, and praying for the appointment of a Royal Commission in connection with the laws of the colony affecting the Maoris, and for the establishment of a Maori Parliament.

Having given these papers my attentive consideration, I request that you will cause the petitioners to be informed that their petition, which has now been reported on by the Colonial Government, has been laid before the Queen, who was {309} pleased to receive it very graciously; but that I have been unable to advise Her Majesty to give any directions for a compliance with the prayer of the memorialists.—I have, etc.

Derby. The Officer administering the Government of New Zealand.

The Native Office to Parore te Awha and others
(Translation)

Native Office, Wellington , April 17, 1883 .

Friends —In reference to the petition which you and certain other Natives have addressed to Her Majesty the Queen, complaining of alleged breaches by the New Zealand Government of the Treaty of Waitangi, and praying for the appointment of a Royal Commission in connection with the laws of the colony affecting the Maoris, and for the establishment of a Maori Parliament, I am instructed to acquaint you that His Excellency the Governor has received a despatch, bearing date 17th February from the Secretary of State for the Colonies, upon the subject of your petition.

In his despatch, Lord Derby requests that you should be informed that the petition, which has been reported on by the Colonial Government, has been laid before the Queen, who was pleased to receive it very graciously. He further says that he has been unable to advise Her Majesty to give any directions for a compliance with the prayer of the memorialists.

From your friend,

W. J. Morpeth (In the absence of Mr. Lewis). To Parore te Awha and Hirini Taiwhanga, Kaihu, Kaipara.

Parore te Awha to the Native Office
(Translation)

Houhanga, Dargaville , April 25, 1883 .

To Mr. Morpeth —Friend, greeting! I have received your letter acquainting me with the result of the petition taken by Wiremu Reweti te Puhi, Hihi Parore, Hirini Rawiri Taiwhanga, and Hakena te Parore to England. I myself sent those persons to England to lay our grievances before the Queen—that is, before all her governing power—because all {310} the grievances that we, the Maoris, suffer from arise from the colony of New Zealand; hence our petition for the establishment of a Native Parliament in New Zealand. It was not done with the object of trampling on the authority of the Government of New Zealand. No! but we think that the Queen's authority should be exercised directly over us. We, the Maori people, are entirely subject to the authority of our most gracious Queen Victoria. The leading people in England say that it is the Europeans of New Zealand who oppress the Maori people. Well then, friend, do you write to me on the receipt of this letter. May God protect us both.—From your sincere Friend,

Parore te Awha .

MEMORIAL OF TAWHIAO AND OTHERS TO THE QUEEN

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street , August 9, 1884 .

Sir —I have the honour to transmit to you a copy of the memorial which has been presented to me by the Maori chiefs now in this country.

I understand that it is contended, in support of the action taken by the Maori chiefs in making this appeal to the Imperial Government, that the powers granted to the Queen by section 71 of the New Zealand Constitution Act, 15 and 16 Vict. cap. 72, are still in full force, and that Her Majesty may properly be invited to provide by letters patent that the laws enacted by the Legislature of the colony should not extend to the Native territory; and that the Native laws, customs, and usages, modified as might be thought desirable, should prevail therein, to the exclusion of all other laws.

I shall be glad to receive the observations of your Government on this point, and also any statements which they may desire to make respecting the matters referred to in the memorial.—I have, etc.

Derby. Governor Sir W. Jervois, G.C.M.G., C.B., etc.

ENCLOSURE
(Confidential)

Salutations!—May the Queen and her family long live! May her Government and the people of England live! May God protect you!

{311} This is an address from the Maori chiefs to the people of England. Strangers landed on a strange land:

We, the Maori chiefs of New Zealand, have come to this distant land into your presence, on account of the great disaster which has overtaken your Maori race, which is beloved by the Queen and the people of England. Accordingly we have now swum the Ocean of Kiwa, which lies between us, and have reached England in safety, the source and fountain of authority, to the place where the Queen lives, that she may redress the ills of the Maori race inflicted on them by the Government of New Zealand, who have not directed their attention to right those wrongs up to the present time, and those wrongs are still being committed; nor is it because the Maoris are adhering to evil practices, and so causing trouble between the two races; and therefore, owing to this continued inattention of the Government, this is presented as an appeal to the highest authority. And because there was a tender regard displayed by the Queen to her Maori race, as shown in the Treaty of Waitangi, therefore it is well that those contracts and these ills should be brought before you for your consideration.

Firstly, the words of the Queen were, that Victoria, Queen of England, in her kind regard to the chiefs and the tribes of New Zealand, secured that their rights of chieftainship and their lands should be established to them, and that peace should be made with them.

Secondly, that the Queen of England shall order and consent that the chiefs and tribes of New Zealand preserve their chieftainships, their lands, their villages, their forests, and their fisheries.

Thirdly, that the Government of the Queen shall consent and order that the Queen shall protect the Maoris of New Zealand, and shall give them her laws in like manner as they are given to the people of England.

But these contracts have been trampled upon by the Government without exception. The first case of the Government purchasing land was in the year 1855. They paid a deposit for lands to some tribes without knowing whether the lands belonged to them, and much land in the Waikato, Hawke's Bay, and other places was bought in this manner; and in consequence the Maoris drew a boundary at the Mangatawhiri River, to separate the ground still held by the Maoris, and set up a head, namely, Potatau [197] —of the Maori people, who should prevent disputes between the Natives who sold {312} and those who retained their lands, always acknowledging the supremacy of the Queen; and this provision was made over all lands throughout Taranaki, Taupo, and other parts.

In the year 1858 the Government purchased Waitara from Te Teira, Wiremu Kingi, the paramount chief of that tribe, prohibiting the sale; but the Government sanctioned the purchase from Te Teira. Wiremu Kingi drove off the surveyors, and the Government waged war throughout Taranaki and confiscated the land.

In the year 1863 a proclamation was issued by the Government that all the Natives adhering to the resolve not to part with their lands should retire across the boundary-line at Mangatawhiri; they went and the Government followed them across the boundary and fought them. Another Proclamation from the Government declared that the Waikato chiefs adhering to the Queen should aid General Cameron, and that the Government would protect their persons, their lands, and their property. Te Wheoro and his tribe aided General Cameron up to the very last, but their lands (amounting to about 200,000 acres) and property were confiscated, and a very little portion of the land was returned; the bulk was sold by the Government to the English, and up to the present day no compensation has been made. For the property destroyed the Court ordered compensation to be made; but the Government refused to comply.

The question of the lands thus seized was laid before the Committee of Maori Affairs of the House of Parliament in the year 1879, and again in the years 1880 and 1881, and the unanimous reply was made that the Government should specially appoint a Commission to investigate that seizure; but the Government refused to accede to this proposal.

On the seizure of the lands at Taranaki in the year 1863, a law was made that seven years were to be allowed for the Government to place settlers on the land, but failing to do so within that time, that the land should revert to the Maoris. The year 1870 arrived, and the Government had failed to settle the land, and the land was returned by the Native Minister, Donald M'Lean, who said that the Government should purchase the land at 5s. or 7s. per acre; but the Government did not purchase it.

In the year 1879 the Government began to seize the land without any pretext, arrested Te Whiti and party in their homes, destroyed their houses, rooted up their crops, and removed their goods, surveyed the land, put it into the market, and it was bought by the English, and very small portions {313} were returned to the Natives. For twelve months Te Whiti and party were imprisoned and were never tried; they were then released, but are still under some restraining law of the Government.

When the lands in the South Island were bought by a Commission from the Queen the Commission stipulated that, on the Maoris consenting to the conditions, the villages, the fisheries, and one acre in every ten should be reserved to the Maoris, and to this the Maoris agreed; but on the completion of the sale the conditions were and have been disallowed down to the present time. A Commission was instituted in the year 1879; but the Government was not pleased to give effect to its awards.

Respecting the land at Kawhia. Before the establishment of the Government some Europeans resided at Kawhia; the Maoris allowed their residence for the purpose of trade, and rent was paid to the Natives by these Europeans; the Maoris in ignorance signed their names, and, as they paid for the goods received, were unaware that their names were obtained for a purpose. On arrival of fresh Europeans the lands were sold to the new arrivals, and these demanded a Crown grant from the Government, which was granted, though the Maoris were kept in ignorance of the transaction: and thus the Government dealt with the ground and ultimately bought it for themselves, and not until it was being surveyed were the Maoris aware that their land was alienated. Nor did the Government enquire of the Maoris whether the claims of the Europeans were just, and the Maoris condemned the transaction.

The Government submitted a Bill to Parliament to authorise them to put the land into the market, and the Bill was passed by the Parliament, the Maori members dissenting, and submitting a letter to the Governor, asking him to withhold his consent to the Bill, and the letter was forwarded to the Queen. In the year 1883 the land was thrown into the market by the Government, and the Kawhia River was buoyed; the Maoris then gathered together to prevent this, and Tawhiao [198] said to the Government, through the Native Minister, Mr. Bryce, "Let the staking of the river be done by him." But Mr. Bryce refused, and all the land was surveyed by the Government, and soldiers were placed on the land of the King, and works were pushed forward on the King's land, and the Government said that they, acting with Rewi and {314} party, should decide the boundary of the King's land, to which Rewi and party agreed. When that was settled the Government commenced operations, not confining themselves to what was agreed upon, at which Rewi severed himself from any further connection with the operations of the Government, when he saw that the King party suffered loss; and this is an example of the conduct of the Government in all their transactions in Maori matters.

The Native Land Court was instituted in the year 1866 by the Government, and that measure for dealing with Maori lands was adopted in order to destroy the rights of the Maoris over their own land, rights secured to them by the Queen in the Treaty of Waitangi.

A fresh rule was thus established, by which the Court had full powers, its authority was entirely in European hands, and the Maoris were denied all authority. It was established that ten persons were to be allowed claims over any section of ground, the majority were to rest satisfied with no land to live on, and the lands were ultimately alienated by purchase. Another rule was set up by the Court, that if the claimants failed to present themselves to the Court the land should be handed over to others, and thus the lands were sold, including the lands, the homesteads, and the plantations, and the real owners of the land were left destitute. When the Maori race asked that they might be allowed to deal with their own lands by means of their own committees, the Government declined. In cases where Europeans purchased land from Maoris who received money for lands not theirs, the purchase thus made was established to the purchasers. Assessors were, indeed, appointed for the Court, but they had no power to say anything with regard to the lands dealt with by the Court. Te Wheoro was the first Assessor thus summoned in the year 1866; but when he saw these faults he left it in the year 1872.

The rights of the chiefs over their own lands were disallowed by the Government, and the positions of the chiefs, in accordance with their Maori customs, was swept away; for the chiefs had the power to secure the land for themselves and their tribes, lest the land and the persons should be lost (by other tribes seizing it) and their rights were reduced to an equality with ordinary persons, and their words were allowed no weight in retaining their land or in directing the affairs of their own tribes: but the Government gave the rights of ruling to all kinds of persons, and the ruling of these persons, possessing no tribal rights in the eyes of the race itself, was authorised, the Government merely regarding their own appointments in {315} respect to these lands; and thus the Government were able to set aside and ignore the chiefs.

Maori Assessors were appointed by the Government to rule their own Maori race; only they had no powers. All powers of establishing and directing were retained by the Government, and even this is now being set aside.

Maori representatives were established by the Government, but a prohibitive rule was made by which the number of members were limited to four, and, though the Maoris demanded a representation proportionate to their numbers, this has been refused by the Government up to the present time; and these members have only nominal power and are unable to redress the Maori wrongs, and yet the Europeans have only an equal status with the Maoris. The commission charged by the Government on the monies paid for Maori lands, whether sold or leased, exceeds 25 per cent.

The payments arising from gold-bearing lands— i.e. 10s. per miner's right, and duties on goods—are taken by the Government, and none are returned to the Maori race, nor are the Maoris allowed any voice in directing these taxes; all are taken by the Government for the benefit of the Europeans, and the Maoris are left out of all consideration; and the result of all this is that the Government have taken the lands, the persons, and the rights of the Maori; the Maoris still lay claim to their rights, and this has been a cause of trouble, and troubles have also come on other Europeans, as happened at Marunui and other places throughout the whole Island, all from these acts of the Government. A Commission sat to investigate these wrongs at Napier. Te Wheoro, another Maori, and two Europeans sat, but the Europeans and the Maoris failed to agree, no decision was arrived at, and the lands were lost, and the Maoris, frightened at such dealings, retired to a remnant of the land of their ancestors in the King Country, and yet they are being even now pursued.

Te Wheoro rose in the Parliament of 1880, and, addressing the Government, asked them to give to the Maoris the office of Minister of Maori Affairs, then filled by Mr. Bryce, inasmuch as it was a post for the Maoris, and yet Europeans alone filled the office, though Maori names were mentioned for the office; and this is a wrong done to the Maoris, inasmuch as the Queen had given them rights. Mr. Bryce replied that the office should never belong to the Maoris.

Therefore we and our race have determined, and to us, the representatives of the tribes of New Zealand, has been assigned the work of crossing the ocean and of bringing our wrongs to {316} the Queen and people of England, in whose hands lay the words of life and death, that they should send and give to the Maori race laws whereby they may live, like as our friends the Europeans who sent and asked to have a Parliament of their own, and which was agreed to by the Queen; the Maoris remaining in ignorance that their friends (the Europeans) had asked for a Parliament subsequent to the Treaty of Waitangi.

Therefore we pray for our Maori race that our Queen may cherish us, that she may accede to this our prayer, and grant to us, her Maori race, these humble requests. And firstly, that you will resolutely consent to grant a Government to your Maori subjects, to those who are living on their own lands or those of their ancestors, and within the limits of Maori territory, that they may have power to make laws regarding their own lands and race, lest they perish by the ills which have come upon them; that they may be empowered so to direct themselves and their own lands lest they be altogether destroyed by the practices of the Government, unknown and not evident to the Maoris; and that also the Maoris possessing lands contiguous to the Europeans should have those lands brought under the direction of the said Maori Government, for there are many tribes who thus own land, and which they will not long hold unless thus brought under Maori Government; and these Maoris are those who are suffering most at the present time, and they will be unable to save themselves unless some such means are taken for their preservation.

Secondly, that the Queen and her Government consent to the appointment of a Maori Commissioner, appointed by the Queen, one of the Maori race, one adhering to the Queen, an upright man, who shall act as mediator between the Maori and European races in matters touching the leasing and selling of the lands of your Maori subjects, who shall investigate the laws made by the Maori Government, make them feasible, and to write his opinion to your Governor and to you also for your confirmation, lest the Maori legislation be at variance with that of the Government, and lest the Maori should fail to carry out the laws of the Government respecting them.

Thirdly, that the greater portion of the taxes levied on your Maori subjects be returned to them, to enable them to carry on their Government, granted by you to your Maori subjects, in those parts which are Maori territory.

Fourthly, that the European Judges in the Native Land Court be superseded, and that your Maori race be then permitted to direct their own affairs in that Court; that they {317} may be empowered to appoint their own Judges over their own lands, lest they be all lost by the present doings of the Court; that they may be able to deal with these lands in accordance with their own customs, apportioning to each tribe their share, and, having made all ready for leasing or selling, to submit all rulings to the Commissioner appointed by you, that he may look into the whole affair and see that no injurious effects come upon the Maori, and then he is to submit all to your Governor for confirmation.

Fifthly, that the lands wrongly obtained by the Government be returned to us. That all may be in accordance with the concessions made in the Waitangi Treaty and all other contracts made with your Maori subjects. That the Queen and her Government also appoint some person from England—a person independent of the Government of New Zealand—who shall carefully investigate those wrongs, and if he finds them in accordance with what we have now presented before you, that then he should decide whether the lands of your wronged subjects be returned or a compensation be made for part of it.

We, your Maori race, confidently rely on the Treaty of Waitangi, on its provisions and force, and we will be led by those provisions in these matters for which we have now swum the ocean of Kiwa, and we pray in the presence of the Queen that she will confirm her words given in that treaty, that it may not be trampled upon by the Government of New Zealand in anything they may do to annul that treaty.

Let the Queen live! Here we conclude. May God preserve you!

Tawhiao ,
Wiremu te Wheoro ,
Patara te Tuhi ,
Topia Turoa ,
Hori Ropihana .

I hereby certify that the above is a true translation of the petition, made by me this 15th day of July 1884.

Fred H. Spencer , Clerk in Holy Orders.

Sir W. F. D. Jervois to the Right Hon. the Earl of Derby

Government House, Wellington , March 28, 1885 .

My Lord —With reference to Your Lordship's Despatch, No. 46, dated the 9th August last, concerning a memorial from Maori chiefs, I have the honour to transmit herewith a {318} copy of a memorandum from my Ministers. I also enclose copies of the Acts of the Colonial Parliament referred to therein.

I regret that I have been unable to send Your Lordship an earlier reply. The delay, however, has been caused by the fact that the Native Minister desired to visit the Maori districts before my Government furnished me with a memorandum on the subject. Full reports of the several meetings held by him with the Natives will be forwarded by the next mail.

I beg to refer Your Lordship to my Despatch, No. 9, dated the 1st March 1884, in which I have stated my own views with regard to the position of the Native race in this colony.—I have, etc.

Wm. F. Drummond Jervois. The Right Hon. the Earl of Derby.

MEMORANDUM FOR HIS EXCELLENCY

Ministers present their respectful compliments to the Governor, and beg to inform His Excellency that they have considered the memorial from Maori chiefs referred to in the despatch from Lord Derby, No. 46, of 9th August 1884.

Ministers are of opinion that they would least embarrass Her Majesty's Government by referring only to the period since 1865, when Her Majesty's troops were removed, when for the first time the colony was left to manage the Natives without interference by the representatives of Her Majesty in the colony. It is quite certain that since that period there has been no infraction of the Treaty of Waitangi. As it is clear that if there was an infraction previously Her Majesty's Government and Imperial funds would be liable for the same, Ministers deem it more respectful not to express an opinion on the subject, but to leave Her Majesty's Advisers in Great Britain to arrive at their own conclusions.

As to the provisions of section 71 of the Constitution Act (15 and 16 Vict. cap. 72), Ministers would remark that it appears from the very terms of the section that the Imperial Parliament contemplated that that section should only be used for a short time and under the then special circumstances of the colony. The words used in the section are, "It may be expedient," "Should for the present be maintained." So far as allowing the laws, customs, and usages of the Natives in all their relations to and dealings with each other to be maintained, Ministers would point out that this has been the policy of all the Native Land Acts. The Courts that have to deal with {319} Native land—and it is the land that to the Natives seems the most important—decide according to Native customs or usages ( vide "Native Land Courts Act, 1880," section 24; see also sections 5 and 6 of "The Native Lands Frauds Prevention Act, 1881," and section 6 of "The Native Land Laws Amendment Act, 1883").

Regarding the proclamation of Native districts the County of Waipa is practically a Native district, and if the Natives desired such a form of local government as the Counties Act affords, there would be no difficulty in granting their request by the Colonial Parliament. What, however, the petitioners desire is really the setting-up of a Parliament in certain parts of the North Island which would not be under the control of the General Assembly of New Zealand. Seeing that in the Legislative Council and the House of Representatives the Natives are represented by able chiefs, and that they have practically no local affairs to look after that cannot be done by their Committees—local bodies recognised by the Government—Ministers do not deem it necessary to point out the unreasonableness and absurdity of such a request.

Ministers have not deemed it necessary to go seriatim through the allegations of the petition and show their unsubstantiality. A former Premier, Sir Frederick Whitaker, specially dealt with a petition very similar to the one now under consideration (see memorandum, 12th December 1882, addressed to His Excellency the Governor, in Appendix to the Journals of the House of Representatives, A-6, page 5); and a former Native Minister, Mr. Bryce, wrote a memorandum referring to the alleged ill-treatment of the Maoris (see memorandum for His Excellency, 11th January 1884, A-1, page 11, in Appendix, vol. i., 1884). The despatch of Your Excellency, No. 9, of the 1st March 1884, forwarding the memorandum of Mr. Bryce, also combated the statements of the Maori chiefs who had petitioned.

Ministers do not consider that there is any allegation in this petition that has not been before the Imperial Government, replied to by the colony, and dealt with before.

Robert Stout. Wellington , March 12, 1885 .

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street , June 23, 1885 .

Sir —I have the honour to acknowledge the receipt of your Despatch, No. 39, of the 28th of March, transmitting {320} a memorandum from your Ministers in reference to the memorial of the Maori chiefs, which was presented on the occasion of the interview which took place at this office on the 23rd July 1884.

I request that you will inform Tawhiao and the other chiefs who signed the memorial that, as stated in the letter to them of the 13th August last, the attention of the Government of New Zealand was called to the representations which it contains, and that the reply of your Advisers—a copy of which I request you to transmit to them at the same time—has been received and considered by Her Majesty's Government.

The questions to which the memorial relates have also been discussed in the House of Commons with many expressions of sympathy for the Maori race, and of belief that their interests and their customs would be guarded and respected by the Government of New Zealand. The feeling, at the same time, appeared to be general that while the Government of the Queen in this country has no longer its former power and responsibility in regard to the internal affairs of New Zealand, it should use its good offices with the Colonial Government with the view of obtaining for the Natives all the consideration which can be given to them.

I trust that all who sympathise with and wish well to the Maoris will agree that it is most important for them to understand clearly that under the present Constitution of New Zealand the government of all Her Majesty's subjects in the islands is controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and that it is no longer possible to advise the Queen to interfere actively in the administration of Native affairs any more than in connection with other questions of internal government. I observe, however, with satisfaction that it is in contemplation to increase the number of the Native representatives.

Although, therefore, Her Majesty's Government cannot undertake to give you specific instructions as to the applicability at the present time of any particular stipulations of a treaty which it no longer rests with them to carry into effect, they are confident—as I request that you will intimate to your Ministers—that the Government of New Zealand will not fail to protect and to promote the welfare of the Natives by a just administration of the law, and by a generous consideration of all their reasonable representations. I cannot doubt that means will be found of maintaining to a sufficient extent the rights and institutions of the Maoris without injury {321} to those other great interests which have grown up in the land, and of securing to them a fair share of that prosperity which has of necessity affected in many ways the conditions of their existence.—I have, etc.,

Derby. Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

Sir W. F. D. Jervois to Tawhiao

Government House, Wellington , August 27, 1885 .

To Tawhiao.

The Petition which was signed by you, Major Te Wheoro, Patara te Tuhi, Topia Turoa, and Hori Ropihana, and presented to the Secretary of State when you were in England was forwarded by him to me, accompanied by a letter asking for any statements which the Government of New Zealand might desire to make respecting the matter. I wrote back to the Secretary of State, and enclosed a memorandum from the Government of New Zealand. The Secretary of State has again written to me, and requested me to send to you copies of these letters. I therefore enclose translations.

You will see from the last letter of the Secretary of State that he says that the Government of all Her Majesty's subjects in New Zealand, Maori as well as European, is controlled by Ministers responsible to the Parliament at Wellington, in which there are Maori representatives, and that the Government in London cannot interfere in the internal affairs of the colony.—From your Friend,

Wm. F. Drummond Jervois.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street , September 11, 1884 .

Sir —I have the honour to submit to you a copy of a letter addressed to me by Tawhiao, the Maori King, on his departure for New Zealand after his recent visit to this country.

You will be so good as to inform Tawhiao that I duly received and that I appreciate his friendly farewell salutations.—I have, etc.,

Derby . Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

{322} Tawhiao to the Right Hon. the Earl of Derby

Steamer "Potosi," August 20, 1884 .

Friend —Salutations! Abide there with your friends, your fellow-nobles, your race, your land: I am returning to my people under the blessing of God.—From

Tawhiao . Lord Derby.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street , February 3, 1885 .

Sir —I have the honour to inform you that I have received from the chief Hori Ropiha a letter dated the 3rd December, expressing the satisfaction of his tribe—the Ngatikahungunu—at the principles laid down on the occasion of the interview between the chiefs and myself at this office, more especially in regard to uniformity of legislation.

I request that you will cause Hori Ropiha to be informed that his statements have given pleasure, and that I do not doubt that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government to which Her Majesty has given over the whole question.—I have, etc.,

Derby . Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

The Under-Secretary, Native Department, to Hori Ropiha

Wellington , April 27, 1885 .

To Hori Ropiha.

Greeting! —Lord Derby has written a despatch to the Governor of New Zealand acknowledging the receipt of your letter expressing the satisfaction of Ngatikahungunu at the principles laid down by you and Lord Derby in England. Lord Derby also says in his despatch that your statements have given pleasure, and he feels that the Government of New Zealand will deal fairly with the most important matters affecting the Maoris which Her Majesty has given to this Government to administer. Sufficient.—From

T. W. Lewis

{323} Hori Ropiha to the Under-Secretary, Native Department

Waipawa , July 8, 1885 .

Friend —Greeting! Greeting to you, and all the honourable members of the Parliament of the colony!

You have written to inform me of the receipt by the Government of New Zealand of a despatch from Lord Derby, in which he acknowledges the receipt of the letter expressing the satisfaction of the Ngatikahungunu at the principles laid down by us and Lord Derby in England.

Friend, I did send such a letter to Lord Derby, and the information contained in Lord Derby's despatch to you is correct—namely, that he does not doubt that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government of New Zealand, to which Her Majesty has given over the whole question.

Friend, I am greatly pleased at the receipt of your letter. I was absent at Mohaka, the Wairoa, and the Mahia, where I went to make known the principles laid down by us and Lord Derby, in order that my Maori tribes might hear my report of my visit to England. On my return from England I addressed the Maoris, and the people of my district were greatly pleased with what I told them. It is true that they have joined the Blue Ribbon Army, [199] and keep it faithfully.

Friend, continue to carry out a policy that will benefit the Maoris in accordance with what Lord Derby said—namely, that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government of New Zealand—and justify Her Majesty's action in giving over the whole question to be dealt fairly with by the Government.

I know what course of policy would be beneficial to the Maori people and establish friendly relations. Sufficient.—From your loving Friend,

Hori Ropiha . To Mr. Lewis.

Tawhiao to Sir W. F. D. Jervois
(Translation)

Whatiwhatihoe , September 21, 1885 .

Friend —Greeting. I have received your letter of the 27th of August, with the copies of communications from yourself, {324} your Ministers, and Her Majesty's Government relative to the subject-matter of the petition from the Maori people that I and my fellow Native chiefs took to lay before Her Majesty's Government and the people of England. In your letter you inform us of one only of the words of Her Majesty's Government—namely, that the government of all Her Majesty's subjects in New Zealand is controlled by Ministers responsible to the Parliament. Your so informing us is well. But you did not also inform us of another important word of the Government of England with reference to the Maori people—namely, that you should intimate to your Government that they should protect and promote the welfare of the Natives by a generous consideration of all their reasonable representations. Well, we see that these directions from the Government of England are no mere random words, but have a bearing upon the petition, which petition your Ministers said had no significance, and that England would not interfere. Your communications and those of the Government of England have been circulated among the Maori people of this Island.

However, with reference to the statement made by your Ministers that they do not consider that there is any allegation in this petition that they have not answered before, I and my fellow Native chiefs would say, Where are the replies taking exception to those petitions? And why are they not quoted in connection with this petition for the consideration of the Native people? And who is it that can say that the complaints raised in those petitions are similar to those made in this?

And, further, with reference to the statement that since 1865 England ceased to interfere in the management of affairs in New Zealand, and left them to be managed by the Government of New Zealand, it may be so. But the Maori people are not aware of the reasons that led their Pakeha friends to apply to have the sole management of affairs in New Zealand; and the assent thereto of the Queen's Government was given without considering the Maori people, or making any inquiries of them. Because the right of governing and the occupation of the Island by Europeans dates from the Treaty of Waitangi; and it was left to the chiefs, the hapus of the Native people, and Her Majesty to carry out the provisions of the Treaty of Waitangi, which became a covenant on the descendants.

And, further, with reference to the statement made by your Ministers that "there has been no infraction of the Treaty of Waitangi," we would ask what portion of the Treaty of Waitangi, what hapus , or what chiefs placed the authority over the Native lands under the Native Land Court, or gave {325} the Europeans the sole power to deal with Maori lands in that Court, as stated in the paragraph respecting the Native Land Court in that petition.

And, further, with reference to the statement respecting the presence of Native members in the Legislature, the status of those members was pointed out in the petition: Taking the basis of population, one Native member is returned for more than twenty thousand persons, whereas one European member is returned for every five thousand. When, indeed, have the applications of those members for increased representation been acceded to by that Parliament? When, indeed, have the applications of those members to have the grievances of the Native people redressed been acceded to by that Parliament? When, indeed, have the applications of those members asking that the Natives should have the power of administering their own lands been acceded to by that Parliament? Well, it is seen that the reason why the Government admitted Natives there (into Parliament) as members was merely in order that it could be said that Natives dealt with the wrongs now practised on the Maori people, and in order, too, that such wrongs should not be looked into, and finally to abolish those members.

And, further, with reference to the statement made by the Minister that Kawhia is a Native district: Well, if the Government really considered it to be such, why, then, did they assume to themselves the right to do certain acts in that district, such as establishing a military post on Native lands, which was a menace to the Maori people?

When, indeed, have the Government paid any heed to the application of Tawhiao and the people of that district desiring that Tawhiao should have the management of matters in that district?

Do you forward a copy of this letter to Her Majesty's Government. Sufficient.

King Tawhiao. His Excellency the Governor.

Sir W. F. D. Jervois to the Right Hon. Colonel Stanley

Christchurch , December 16, 1885 .

Sir —I have the honour to state that I duly forwarded to Tawhiao, a copy of your Despatch No. 39, of the 23rd June last, concerning the Maori chiefs' memorial, presented by them to Her Majesty's Government whilst in England.

{326} I have received from him in reply a letter, a translation of which, in accordance with the request contained in the last paragraph, I transmit herewith. I have, on the advice of my Ministers, informed him that there is nothing to add to the communications that have already been made.

It is the desire and practice of the Government of this colony to treat the Native population with the most perfect justice, and, as far as possible, in the same manner as the other subjects of Her Majesty in New Zealand. I submit that no good end can be served by prolonging this correspondence.—I have, etc.,

Wm. F. Drummond Jervois . The Right Hon. Colonel Stanley, M.P.

Sir W. F. D. Jervois to Tawhiao

Christchurch , December 16, 1885 .

Sir —I have the honour to acknowledge the receipt of your letter of the 21st September last with reference to your petition to Her Majesty. I do not think there is anything to add to the communications that have already been made. I have, as you requested, forwarded a copy of your letter to Her Majesty's Government.—I have, etc.,

Wm. F. Drummond Jervois . To Tawhiao, etc.

Tawhiao to Sir W. F. D. Jervois

Whatiwhatihoe , December 22, 1885 .

To the Governor of New Zealand.

Greeting! —I am not quite certain about the copies of the letters from your Government and Her Majesty's Government that you forwarded to me on the 27th day of August 1885, in Maori only. I am very desirous that you should send me copies of the same in English, which would be right. Sufficient.—From your friend,

King Tawhiao . The Governor, Wellington.

The Under-Secretary, Native Department, to Tawhiao

Wellington , January 29, 1886 .

Friend Tawhiao —Greeting. His Excellency the Governor has forwarded to Mr. Ballance the letter you wrote {327} to him on the 22nd December, in which you asked that copies in English of the despatches from Lord Derby, the Governor, and the Government of the colony might be supplied to you, and by direction of Mr. Ballance, I forward copies of those despatches by the mail.—From your friend,

T. W. Lewis . Tawhiao, Whatiwhatihoe, via Alexandra, Waikato.

The Right Hon. Colonel Stanley to Sir W. F. D. Jervois

Downing Street , February 2, 1886 .

Sir —I have the honour to acknowledge the receipt of your Despatch No. 127, of the 16th December, forwarding a translation of a letter which you had received from Tawhiao in reply to one founded on my predecessor's Despatch No. 39, of the 23rd June, in connection with the memorial of the Maori chiefs. I request that your Government will cause Tawhiao to be informed that I have read his letter in accordance with his desire.—I have, etc.,

Fred Stanley . Governor Sir W. F. D. Jervois, G.C.M.G., G.C.B., etc.

The Hon. the Native Minister to Tawhiao
(Translation)

Wellington , May 6, 1886 .

Friend Tawhiao —I have been requested by His Excellency the Governor to transmit for your information copy of a despatch he has received from the Right Hon. the Secretary of State for the Colonies in reference to a letter from yourself. Enough.—From your loving friend,

John Ballance . Enclosure.—Despatch No. 7, of the 2nd February 1886.

Copy of Resolutions

The Resolutions herein written were confirmed by the chiefs and hapus assembled at Whatiwhatihoe on this 4th day of April, in the year 1886.

1. That the Treaty of Waitangi shall continue in force, by which the authority ( mana ) of the chiefs of the Maori people was assured to them, and which also confirms and {328} guarantees Maori people the full, exclusive, and undisturbed possession and control of their lands, and declares that the Maori people shall be maintained in their rights.

2. That the powers conferred by the Act of the year 1852 should be maintained—viz. that a council or councils should be set up, and invested with power and full authority, and that it shall be lawful for Her Majesty to authorise such councils.

3. That the Maori people of Ao-tea-roa (New Zealand) shall act together under the law above mentioned.

4. That the Maori committees, authorised by the laws above referred to, shall be zealous in the performance of their duties.

5. That no wrong proceedings or operations of the Government towards the Maori people shall be sanctioned.

6. That the Native Land Courts Act should be repealed, and that it be left to the Maoris themselves to adjudicate on their own lands.

7. That this runanga (council) shall persist in its efforts to have the directions given by the Government of the Queen to the Government of New Zealand carried out—viz. that the rights and interests of the Maori people shall be guarded and respected. (This resolution was unanimously carried by the runanga : "Although the Government of England has nothing to do with the affairs of New Zealand, still the Government of the Queen will instruct the Government of New Zealand to devise some measures whereby justice may be done to the Maori people and their interests promoted, and that the Governor should be questioned concerning these instructions from England.")

8. That the chiefs attending this meeting be deputed to put the question to the Governor.

9. That each tribe should subscribe money for the purchase of a press to print for circulation reports of what are done and said by the Maori people.

10. That power be given to each committee to deal with lands in its own district.

These are the Resolutions that were carried.

King Tawhiao's reply in reference to the Resolutions was: "I thank you for an assent to the resolutions. I thank you, every one of you, for your discussions upon those resolutions which have been formed by you in accordance with your own wishes. I have carefully watched your discussions. There was but one tendency of all your discussions, which corresponds exactly with the object I had in view in inviting you to this {329} meeting. Be zealous in lifting up and in sustaining (measures for the benefit) of both these islands. Hearken ye! The views held by the English people in England are precisely the same as those held by the Maori people in New Zealand."

The Hon. the Native Minister to Tawhiao
(Translation)

Auckland , April 17, 1886 .

Friend —I have the honour to enclose you the reply of the Governor to the resolutions presented by the deputation (sent by you) to His Excellency on the 9th instant. There is one point in the resolutions on which I desire to offer an explanation. In the translation of Lord Derby's despatch made in the Native Department in Wellington some of the terms are incorrectly rendered. A correct translation has been made and handed to Major Te Wheoro. The despatch itself is in your possession, and there can be no doubt of its meaning, which is fully explained in the memorandum of His Excellency.—From your friend,

J. Ballance . To Tawhiao.

Memorandum from Sir W. F. D. Jervois to the Hon. the Minister for Native Affairs

The enclosed replies to certain questions submitted to me in a memorandum from several Maori chiefs who waited upon me on the 9th instant with a view of laying before me resolutions passed at a Native meeting previously held at Whatiwhatihoe are transmitted to the Minister for Native Affairs for communication to the chiefs concerned.

In forwarding the paper to the chiefs, I request that you will inform them that I was greatly pleased at the loyal sentiments expressed by them at their interview with me towards Her Most Gracious Majesty the Queen, as well as the confidence they exhibited towards myself as her representative. I also beg that you will convey to Tawhiao, and all the chiefs concerned, how much I rejoice at the cordial feeling they exhibit towards the Government of New Zealand.

W. F. Drummond Jervois. Government House, Auckland , April 14, 1886 .

{330} Memorandum relating to Resolutions passed at a Native Meeting held at Whatiwhatihoe on the 4th April 1886.

Referring to the Resolutions in the order submitted in a paper laid before His Excellency the Governor by a deputation of Maori chiefs on the 9th April: 1. The Treaty of Waitangi vested the mana in Her Majesty the Queen, and secures to the Natives their land. That treaty, in its essential elements, has been faithfully kept by the colony. A modification was made in it by which the Natives obtained the right of selling their lands to persons outside the Government, whereas under the treaty the Government had the sole right of purchasing Native lands. This modification, the only one made in the treaty, was, however, introduced at the request of the Maoris themselves. The rights of the Maori people have been carefully preserved.

2. This appears to refer to section 71 of the Constitution Act, where reference is made to Native councils. It must be observed, however, that the section is not mandatory, as will be seen from the clause itself, and from such terms as, "it may be expedient," and "should for the present be maintained." Local self-government has been extended to the Native people in the form of Committees under the Act of 1883. These Committees have power to ascertain titles to Native lands, and to hear and decide civil cases by agreement, and, in fact, may be said to be Courts of Arbitration. Their usefulness is being proved, and a large majority of the Native people appreciate them and are using them. It has been found by experience, however, with regard to titles to land, that there is often great jealousy of the committees, and that the Natives prefer to have the land adjudicated on by the Land Courts. (This remark applies also to Resolution 6.) If any other form of Maori council than that which now exists is desired under the clause of the Constitution Act referred to, it can only be obtained by Act of Parliament of New Zealand.

No observations are necessary to Resolutions 3, 4, 5, 8, and 9.

7. This Resolution apparently refers to Lord Derby's despatch of the 23rd June 1885, but does not convey a correct impression of the terms of that document. No directions are contained in the despatch. Lord Derby expressly says that "under the present Constitution of New Zealand the government of all Her Majesty's subjects in the islands is {331} controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and that it is no longer possible to advise the Queen to interfere actively in the administration of Native affairs, any more than in connection with other questions of internal government." The resolution states that there is an "instruction" contained in the despatch; but there is none. On the contrary, Lord Derby expressly recognises the right of the New Zealand Government to deal with the internal affairs of the colony without interference. The words of Lord Derby, where he refers to the Native people, are as follows: "It (the Imperial Government) should use its good offices with the Colonial Government with the view of obtaining for the Natives all the consideration which can be given to them." The particular request that Lord Derby makes, and it is only in the nature of a request, is "that the Government of New Zealand will not fail to protect and to promote the welfare of the Natives by a just administration of the law, and by a generous consideration of all their reasonable representations." He adds, "I cannot doubt that means will be found of maintaining to a sufficient extent the rights and institutions of the Maoris without injury to those other great interests which have grown up in the land, and of securing to them a fair share of that prosperity which has of necessity affected in many ways the conditions of their existence." The policy advocated by Lord Derby has been and is being carried out. A proof of this is to be found in the fact that an overwhelming majority of the Natives are satisfied with the administration of their affairs by the Government of New Zealand.

John Jervois , Private Secretary.

Signed by order of His Excellency the Governor. Government House, Auckland, 14th April 1886.

{332} In the Court of Appeal of New Zealand.

Tamihana Korokai and others v. The Solicitor-General

1912.
July 23, 24, 25.
Oct. 7.
C.A.
Coram.
Stout, C.-J.
Williams, J.
Edwards, J.
Cooper, J.
Chapman, J.
Skerrett, K.C., Morison and Fell for the plaintiffs.
Solicitor-General (Salmond) and Ostler for the defendant.

STOUT, C.-J.—This is a special case stated pursuant to Rule 245 of our Code of Civil Procedure. Neither party, however, asks that all the questions framed in the case should be answered. Indeed both ask that some of the questions should not be answered. The point in dispute between the parties is a narrow one. The plaintiff contends that he has a statutory right to go to the Native Land Court claiming under the Native Land Act a freehold title. The Solicitor-General contends that if he, as Solicitor-General, says the land, that is the bed of Lake Rotorua, is Crown land that concludes the matter, and the Native Land Court cannot proceed to make any inquiries as to whether the land is native customary land. That is the matter in contention, and it appears to me that it is the only question that this Court has at present to decide.

It may be necessary to refer very shortly as to how the question has arisen. In 1835 there were many English people settled in the most northerly part of New Zealand. English Church Missionaries had been there for some years, they landed first in 1814; and there were traders and whalers and others that had made New Zealand their home. One called Charles Baron de Thierry, in Marquesas, claimed that he was sovereign chief of New Zealand. He so informed Mr. James Busby, who had been appointed British Resident in New Zealand, and Mr. Busby thereupon took steps to deny any such sovereignty. He and other English residents saw the Native chiefs and they formed what was called a Confederation. The thirty-five head chiefs or heads of tribes in the most northern parts of New Zealand, that is all the country lying north of the Firth of Thames, joined in a declaration that {333} New Zealand was an independent state under the name of the "United Tribes of New Zealand." Mr. Busby sent a copy of this declaration to the Under-Secretary of State in London, and Lord Glenelg, the Secretary of State for the Colonies, wrote to the Governor of New South Wales regarding the declaration. The Governor was directed to inform the chiefs "With reference to the desire which the chiefs have expressed on this occasion to maintain a good understanding with His Majesty's subjects, it will be proper that they should be assured in His Majesty's name that he will not fail to avail himself of every opportunity of showing his goodwill and of affording to those chiefs such support and protection as may be consistent with a due regard to the just rights of others, and to the interests of His Majesty's subjects."

Meantime the eligibility of New Zealand as a colony was being discussed both in New South Wales and in England, and ultimately in 1840 Captain Hobson, R.N., was despatched to New Zealand with two commissions, one as British Consul, and the other as Lieutenant-Governor. He reached the Bay of Islands on the 29th of January 1840, and on the 5th and 6th of February the Treaty of Waitangi was signed by many chiefs, then assembled at Waitangi in the Bay of Islands. The treaty states, inter alia : "Her Majesty, therefore, being desirous to establish a settled form of civil government with a view to avert the evil consequences which must result from the absence of the necessary laws and institutions alike to the native population and to her subjects, has been graciously pleased to empower and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul and Lieutenant-Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent chiefs of New Zealand to concur in the following articles and conditions."

Then follow three articles. The first article deals with the cession. It is as follows: "The chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said confederation or individual chiefs respectively exercise or possess or may be supposed to exercise or possess over their respective territories as the sole sovereigns thereof."

The second and the third articles are as follows: "Her Majesty the Queen of England confirms and guarantees to the {334} chiefs and tribes of New Zealand and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession: but the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed 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." The third is as follows: "(3) In consideration thereof, Her Majesty the Queen of England extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."

Copies of the treaty were taken to various parts of both islands, and the chiefs throughout New Zealand signed it, and to the present day the treaty is regarded as their Magna Charta. The Lieutenant-Governor on the 21st May 1840 issued a proclamation, proclaiming and declaring that after the date of the treaty the full sovereignty of the North Island of New Zealand vested in Her Majesty, Queen Victoria, her heirs and successors for ever.

A further proclamation was issued on the same day proclaiming and declaring that all the Islands of New Zealand vested in Her Majesty, that is, including all country between 34° 30´ north to 47° 10´ south latitude and between 166° 5´ to 179° east longitude. A mistake was made in this proclamation in that it proclaimed from 34° 30´ north instead of as was intended 34° 30´ south. The ground of the proclamation over the South Island was that of discovery. Since then it has been recognised that the lands in the islands not sold by the natives belonged to the natives. All the old authorities are agreed that for every part of land there was a native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three points then seem to be clear on this subject: (1) That there was originally a distinct owner for every habitable spot in the Northern Island: (2) That these claims have been complicated by the obvious causes of inheritance and marriage without forms of conveyance or bequest: (3) That the rights of ownership whether in one or many joint proprietors were not alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far as yet appears the whole surface {335} of the islands, or as much of it as is of any value to man, has been appropriated by the natives, and, with the exception of the part they have sold, is held by them as property. Nowhere was any piece of land discovered or heard of (by the commissioners) which was not owned by some person or set of persons.... There might be several conflicting claimants of the same land: but however the natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants. In this Northern Island at least it may now be regarded as absolutely certain that, with the exception of lands already purchased from the Natives, there is not an acre of land available for purposes of colonisation, but has an owner amongst the Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this position, and numerous ordinances and acts of Parliament have been passed to enable the Maoris to transmute their customary title into freehold. The position all along assumed has been that the lands are vested in the Crown, and until the Crown issues a freehold title the customary titles cannot be recognised; but that the Crown will give to all who prove that the land was theirs a freehold title. The Crown has not assumed that land could be taken or kept by the Crown from the Natives, unless the natives ceded their rights to the Crown. Thousands of purchases in both islands have been made by the Crown, and thousands of deeds of cession are in existence. The reason why the Crown did not recognise any title in the land till a grant from the Crown had issued is dealt with in the classic judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of Reg. v. Symonds, and in the judgment of the then Chief-Justice Sir William Martin, who agreed with the judgment of Mr. Justice Chapman. After their judgments, the Imperial Parliament in the New Zealand Constitution Act (15 and 16 Vict. c. 72, sec. 73) recognised the native title. Section 73 of that Act is as follows: "It shall not be lawful for any person other than Her Majesty, her heirs and successors, to purchase or in any wise acquire or accept from the aboriginal Natives land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid: and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or {336} conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it shall be lawful for Her Majesty, her heirs and successors, by instructions under the signet and royal sign manual, or signified through one of Her Majesty's Principal Secretaries of State to delegate her powers of accepting such conveyances or agreements, releases, or relinquishments, to the Governor of New Zealand, or the superintendent of any province within the limits of such colony, and to prescribe or regulate the terms of such conveyances or agreements, releases or extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the Native land—that is, the land over which the Natives had not given up their rights of cession—as Crown in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of the ownership of Native lands, and for granting certificates of title therein, and for regulating the disposal of Native lands was passed. The preamble is as follows: "Whereas by the Treaty of Waitangi entered into by and between Her Majesty and the chiefs of New Zealand, it was among other things declared that Her Majesty confirmed and guaranteed to the chiefs and tribes of New Zealand and the respective families and individuals thereof the full, exclusive, and undisturbed possession of their lands and estates, which they collectively or individually held so long as it should be their desire to retain the same: And it was further declared that the chiefs yielded to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate: And whereas it would greatly promote the peaceful settlement of the colony and the advancement and the civilisation of the Natives if their rights to land were ascertained, defined, and declared, and if the ownership of such lands when so ascertained, defined, and declared were assimilated as nearly as possible to the ownership of land according to British law: And whereas with a view to the foregoing objects, Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands, and to establish Courts and to make other provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of the Act: And it is {337} expedient that the General Assembly of New Zealand should facilitate the said objects by enacting such provisions as are hereinafter contained."

(2) When the natives committed rebellion or were guilty of insurrection, a special Act was passed allowing the Governor in Council to take their lands. See inter alia the New Zealand Settlements Act, 1863. A few of the sections may be cited: "2. Whenever the Governor in Council shall be satisfied that any Native tribe or section of a tribe or any considerable number thereof has since the first day of January 1863 been engaged in rebellion against Her Majesty's authority, it shall be lawful for the Governor in Council to declare that the district within which any land being the property or being in the possession of such tribe or section or considerable number thereof shall be situate, shall be a district within the provisions of this Act, and the boundaries of such district in like manner to define and vary as he shall think fit."

"3. It shall be lawful for the Governor in Council from time to time to set apart within any such district eligible sites for settlements for colonisation, and the boundaries of such settlements to define and vary."

"4. For the purposes of such settlements the Governor in Council may from time to time reserve or take any land within such district, and such land shall be deemed to be Crown land, freed and discharged from all title interest, or claim of any person whomsoever as soon as the Governor in Council shall have declared that such land is required for the purposes of this Act, and is subject to the provisions thereof."

Section 5 provided for compensation to persons whose land has been taken, provided that they had not been in rebellion.

(3) Before Native land was treated as Crown land, open for sale and settlement, proclamations were generally made so declaring the land open. See, for example, section 6 of the Immigration and Public Works Act, 1873, and section 247 of the Land Act, 1885.

It is not necessary to point out that if the Crown in New Zealand had not conserved the Native rights and carried out the treaty a gross wrong would have been perpetrated. Since the recognition of the Native rights so often made, there may have been interference by legislation with Native land, both before and after the ascertainment of title. If, however, there were such interferences, they have been based on the theory of eminent domain. There have been statutes passed providing how Native lands may be leased, but a similar kind of interference has been witnessed in the United Kingdom in the {338} case of the Irish Land Acts and the Scottish Crofters' Statutes. Such interferences did not destroy the title of Natives. Native lands and freehold lands belonging to persons of the white race have also been taken under such a theory when it appeared it was for the interest of the State to do so. In such cases compensation has been awarded. To interfere with Native lands, merely because they are Native lands, and without compensation, would of course be such an act of spoliation and tyranny that this Court ought not to assume it to be possible in any civilised community.

The decision of Wi Parata v. Bishop of Wellington , 3 J.R., N.S., S.C. 72, does not derogate from that position. It only emphasised the decision in Reg. v. Symonds , that the Supreme Court could take no cognisance of treaty rights not embodied in a statute, and that Native Customary Title was a kind of tenure that the Court could not deal with. In the case of Tamaki v. Baker (1901), A.C. 561, the Judicial Committee of the Privy Council recognised, however, that the Natives had rights under our statute law to their customary lands.

The Native Land Act, 1909, has various sections dealing with the customary land of the Maoris (sections 84, 85, 86, and 87). What was the need of such sections if a declaration by a law officer of the Crown was all that was necessary to say that the land claimed as Customary Native Land was Crown Land? Section 88 is significant in this connection. It states "(1) for the purpose of recovering possession of customary land from any person in wrongful occupation thereof, and for the purpose of preventing any trespass or other injury thereto, or of recovering damages for any such trespass or injury, all such land shall be deemed to be Crown Lands within the meaning of the Land Act, 1908. (2) No action or other proceeding, other than a proceeding by or on behalf of the Crown under the last preceding subsection, shall be brought in any Court by any person for the recovery of the possession of customary land, or for damages or an injunction in respect of any trespass, or injury to such land." Sections 90 and 91 show that the customary titles are recognised: section 90 reads: "The Native Land Court shall have exclusive jurisdiction to investigate the title to customary land, and to determine the relative interests of the owners thereof." Section 91 is as follows: "Every title to and interest in customary land shall be determined according to the ancient custom and usage of the Maori people, so far as the same can be ascertained." Section 92 shows the jurisdiction of the Native Land Court. Formerly there was something more required than an order {339} of a Native Land Court to make an effective title. At one time His Excellency the Governor had to sign a Crown grant and at another time a certificate of title.

I am of opinion that the Native Land Act recognises that the Natives have a right to their customary titles. There are in my opinion only three things that can prevent the Native Land Court entering on an enquiry as to such customary title.

(1) A proclamation of the Governor under a statute, such as has been provided in many Acts, and is so provided in section 85 of the Native Land Act, 1909.

(2) A prohibition by the Governor under section 100 of the Native Land Act, 1909.

(3) Proof that the land has been ceded by the true owners or that a Crown grant has been issued.

I know of no statutory authority that the Attorney-General as Attorney-General or the Solicitor-General as Solicitor-General has to declare that the land is Crown land. The Attorney-General and the Solicitor-General are both high officers of State. They are legal officers, and they can appear as solicitors or counsel for the Crown, but there their functions and powers end. Their statement as to what is Crown property unless made in accordance with some statutory power, is of no avail. If in an action they put in a plea to that effect, it would have to be proved like any other pleading of a party to the action. The Solicitor-General has failed to cite any authority that the mere statement of the legal adviser of the Crown, or the Crown's Attorney or Solicitor-General, was to be taken as a true averment without proof.

What the customary title to the bed of Lake Rotorua may be must be considered and determined by the only Court in New Zealand that has jurisdiction to deal with Native titles—the Native Land Court. At common law there may be an ownership of the bed of navigable rivers or lakes that are non-tidal. See Kent's Commentaries , vol. iii. p. 427, note ( d ). The case of Mueller v. Taupiri Coal Mines, Ltd. , 20 N.Z.L.R. 89, turned on the effect of a grant under the Land Acts.

I am of opinion that it is not necessary specifically to answer the questions put, but only to say that the plaintiff and his people have a right to go to the Native Land Court to have their title investigated, and that the Native Land Court can only be prevented from performing its statutory duty, first, under the Native Land Act, secondly, on proof in that Court that the lands are Crown Lands freed from the customary title of the Natives, or, thirdly that there is a Crown title to the bed of the lake.

{340} WILLIAMS, J.—The contention of the Solicitor-General is that in all cases where land is claimed by natives to be held by them under their customs and usages, and they seek to have their titles ascertained by the Native Land Court, and a title in fee simple granted to them, the Solicitor-General, by virtue of the prerogative right of the Crown, and apart from any statutory authority, could at any time step in and prevent proceedings being taken or continued. The arguments in support of this contention are that when New Zealand was annexed to Great Britain all the land in New Zealand became vested in the Crown, by virtue of its prerogative; that the Treaty of Waitangi is binding only upon the honour of the Crown, and can be disregarded at the discretion of the Crown; and that, although there may be a statutory recognition of the Native title, there is no such statutory recognition as would operate as against the Crown. Even if these arguments were sound it by no means follows that the contention of the Solicitor-General can be supported.... There is nothing in the Governor's commission or in the Royal instructions which expressly authorises him to interfere on behalf of the Crown to prevent the exercise of rights given to natives by the statute law of the Dominion. Has he then, by virtue of his commission, an implied power so to interfere?... There is a special reason why the power now claimed should not be implied. The power now claimed is by an act of state to disregard rights given by statutes which have been passed to carry out treaty obligations binding upon the honour of the Crown. If the Crown has this power, it is exercised on the advice of the responsible Minister of the Crown. Whether it should be so exercised or not is a matter affecting the honour of the Crown, not merely as the Sovereign of this Dominion, but as the Sovereign of the British Empire. It was with the Sovereign of the British Empire that the Treaty of Waitangi was entered into. Whether Imperial obligations should or should not be observed is a matter of Imperial concern for the responsible advisers of the Crown in Great Britain to decide upon and not for the advisers of the Governor here, unless the power of deciding has been expressly delegated to the Governor. Even if the power had been so delegated the Court would properly require some evidence beyond the mere statement of the Attorney- or Solicitor-General that the authority of the Crown was being exercised.... I agree with the conclusion arrived at by His Honour, that rights given to natives by statute to have their customary titles determined can only be divested in the manner prescribed by {341} statute. The rights given to natives by sections 90 to 93 inclusive of "The Native Land Act, 1909," to have a legal estate in fee simple in possession vested in the persons found to be entitled are rights expressly given against the Crown. If these sections do not bind the Crown they are meaningless and inoperative. The Crown is a party to the statute. It is difficult to see how, when rights which expressly affect pre-existing rights of the Crown are created by statute, the Crown upon the passing of the statute can disregard the rights so created, and exercise its pre-existing rights as if the statute had not been passed.

EDWARDS, J.—In support of his contention that the bed of the lake cannot be the subject of a Native title under Maori customs and usages, the Solicitor-General relies upon the inherent improbability that there was any intention, either by the Treaty of Waitangi or by the statutes relating to native lands, to recognise any such right. To hold that there is such a right would be, the Solicitor-General contends, to destroy the right of navigation in all non-tidal waters to the great detriment of the public. Such considerations might well have induced those responsible for the Treaty of Waitangi to have so framed that document as to preclude any claim by natives to the exclusive possession of land covered by navigable non-tidal waters. It may even be suggested that the words of the treaty, which guarantee to the Maoris "the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties," were intended to reserve to the natives merely the right to fish in non-tidal waters, without recognising in them any property in the land covered by such waters. It is quite possible—indeed not improbable—that there never was any Maori custom or usage which recognised any greater right in land covered by navigable non-tidal waters than this. That is a question which neither the Supreme Court nor this Court can determine. If there never was any such custom or usage prior to the Treaty of Waitangi, then the Crown will get the advantage of that when that question has been determined by the Native Land Court, or in the last resort by the Judicial Committee of the Privy Council. But if there was such a custom or usage, the treaty, so far as it is effective, is sufficient to preserve it. The treaty, like every other instrument, must be construed in accordance with the plain legal significance of the words used, and the Courts cannot speculate as to whether or not those words were used in another sense not apparent upon the face of the {342} instrument, or necessarily to be inferred from the subject with reference to which they are used. A lake, in contemplation of the English law, is merely land covered by water, and will pass by the description of land. Bristow v. Cormican (3 A.C. 641); Johnston v. O'Neill (1911, A.C. 552). Whatever rights were conserved to the Maoris by the Treaty of Waitangi were fully recognised by "The Native Lands Act, 1862," which recited the treaty, and was enacted with the declared object of giving effect to it.... In my opinion it is clear that if the Crown desires to set up its title, as a bar to the investigation by the Native Land Court in its ordinary jurisdiction of claims by natives, it must either be prepared to prove its title, or it must be able to rely upon a proclamation in accordance with the terms of the 85th section of "The Native Land Act, 1909."

COOPER, J.—I have had the advantage of reading and considering the judgment of His Honour, the Chief Justice, and, upon substantially the same grounds as are expressed by His Honour in that judgment, I have arrived at the same conclusion.

I have very little to add.

"The Land Act, 1908," contains the statutory provisions regulating the administration of Crown lands in New Zealand. In respect of Native lands, section 2 brings within the category of Crown lands only those "Native lands which have been ceded to His Majesty by the Natives on behalf of His Majesty, or otherwise acquired in freehold from the Natives on behalf of His Majesty, or have become vested in His Majesty by right of his prerogative."

Customary lands owned by natives, which have not been ceded to His Majesty or acquired from the native owners on behalf of His Majesty, cannot in my opinion be said to be land vested in His Majesty by right of his prerogative. It is true that, technically, the legal estate is in His Majesty, but this legal estate is held subject to the right of the natives, recognised by the Crown to the possession and ownership of the customary lands, which they have not ceded to the King, and which His Majesty has not acquired from them.

Section 338 of the Act draws a clear distinction between Native lands and Crown lands. Under subsection (1) of that section, where the Governor is satisfied that Native lands have been acquired by the Crown, he shall by proclamation declare such lands to be Crown lands, and under subsection (2), when such lands have been so acquired, he may give effect to any {343} stipulation in the instrument of sale or transfer to His Majesty for the reservation to the natives of any part of such lands, and may reserve or grant such portions in manner required by the natives.

Section 88 of "The Native Land Act, 1909," which has been referred to by His Honour also, recognises that these lands are not "Crown lands." They are only deemed to be Crown lands for the one purpose, namely, that if any person is in possession of or trespassing upon, or injuring the lands against the interest of the Native owners, then, for the purpose of protecting the Native owners the Crown may under the Land Act take proceedings against such wrongdoers. Even this provision is a guarded one, for subsection (3) of that section expressly provides that nothing in it contained shall take away or affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J.—I agree with the judgments which have been read. It has been argued that the Treaty of Waitangi was an international treaty entered into with chiefs having the sovereignty. The contrary opinion was pronounced by the Supreme Court in Wi Parata v. The Bishop of Wellington (3 N.Z. Jur. N.S. 72). The terms employed and the mode of execution of the treaty leave it at least an open question whether it was so regarded at the time. It professes to be made with certain federated chiefs and certain chiefs who are not federated, but it does not state over what territories they exercised authority, though the text of the treaty seems to suggest that it was contemplated that it should be made with several chiefs who might possibly be regarded, and were provisionally and hypothetically treated as sovereigns of their respective territories. Later it became a matter of general knowledge, derived, I presume, from maps prepared pursuant to section 21 of "The Native Land Act, 1873," that there are eighteen or twenty tribes in New Zealand. If that be so the numerous signatories of the Treaty of Waitangi can hardly be described as sovereign chiefs. I agree that if they had been explicitly so declared by Her Majesty's government, or had been so treated in a course of political transactions that would have been sufficient to make them so, and that their numbers and their individual unimportance would not have rendered this impossible, provided that in each case there was a sovereign to a territory. Hemchand Devchand v. Azam Sakaral Chhotamlal (1906, A.C. 212). The whole current of authorities shows, however, that the question of the origin of the {344} sovereignty is immaterial in connection with the rights of private persons professing to claim under the provisions of the treaty of cession. Cook v. Sprigg (1899, A.C. 572). Such a treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority. That has not been done. The sense in which the treaty has received legislative recognition I will refer to later.... From the earliest period of our history, the rights of the natives have been conserved by numerous legislative enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to make further provision for the Government of the New Zealand Islands (Imperial, 1846), recognises the laws, customs, and usages of the natives which necessarily include their customs respecting the holding of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to promote colonisation in New Zealand and to authorise a loan to the New Zealand Company (Imperial, 1847), recognises the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions "land over which the Native title has not been extinguished" and "land over which the Native title has been extinguished" (familiar expressions in colonial legislation), are both pregnant with the same declaration. In the judgment of the Privy Council in Nireaha Tamaki v. Baker (1901, A.C. 561), importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the constitution is summarised. This summary includes the principal colonial Acts. Referring to section 5 of "The Native Rights Act, 1865," their Lordships say: "The Legislation, both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction of 'The Native Rights Act,' and one is rather at a loss to know what is meant by such expressions as 'Native title,' 'Native lands,' 'owners,' and 'proprietors,' or the careful provision against sale of Crown lands until the Native title has been extinguished, if there be no such title cognizable by the law, and no title therefore to be extinguished." I might refer further to less precise but equally important expressions, such as "tribal lands," in "The Native Land Act, 1873," section 21. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of native rights.

FOOTNOTES

[195] Tawhaki, the God-man, whose name frequently occurs in all the ancient mythology of the Maori race.

[196] Rain and wind—figurative expressions denoting wars and tumults.

[197] Te Wherowhero Potatau, the first Maori king.

[198] Tawhiao, the second Maori king.

[199] A Total Abstinence organisation.

This relic of the treaty came into the AUTHOR'S possession after the volume was printed and is now inserted as a supplement.

No te 30 o nga ra o Hanuere, 1840

E taku hoa aroha,

Tenei ano taku ki a koe; na, tenei ano tetahi kaipuke manawa kua u mai nei, me tetahi Rangatira ano kei runga, no te Kuini o Ingarani ia, hei Kawana hoki mo tatou. Na, e mea ana ia, kia huihuia katoatia mai nga Rangatira o te Wakaminenga o Nu Tireni, a te Wenerei i tenei wiki tapu e haere ake nei, kia kitekite ratou i a ia. Koia ahau ka mea atu nei ki a koe, e hoa, kia haere mai koe ki konei ki Waitangi, ki taku kainga ano, ki tenei huihuinga. He Rangatira hoki koe no taua Wakaminenga tahi. Heoi ano, ka mutu taku.

Naku, Na tou hoa aroha, Na te PUHIPI. KI A TAMATI WAKA NENE.

Text of the invitation sent to Tamati Waka Nene to attend the meeting of chiefs at Waitangi, 5th February, 1840.

( Original in the Auckland Museum ).

TRANSLATION
(By H. M. STOWELL).

Of the 3Oth day of January, 1840.

O my dear friend.

Herewith something special from me to you. A Man-o-war vessel has called here particularly, with a certain Chief on board. He is sent by the Queen of England, as a Governor for us.

Now, he desires that as many representative New Zealand chiefs as possible be gathered together by Wednesday of next week to see him.

I now therefore say unto you, O friend, make your arrangements to come along here to Waitangi, to my home here, to this gathering and meeting. For you yourself are a typical representative chief and will be welcomed to the meeting as such.

That is all, mine ends here, From your sincere friend, From Te PUHIPI (Mr. Busby) To Tamati Waka Nene.

BIBLIOGRAPHY

The following authorities have been consulted during the compilation of this work, and will serve as a useful bibliography of the treaty:—

Warerahi ,	chief of	Paroa.
Rewa ,	"	Waimate.
Patuone ,	"	Hokianga.
Nēne ,	"	Hokianga.
Kekeao ,	"	Ahuahu.
Titore ,	"	Kororareka.
Tamaranga ,	"	Taiamai.
Ripe ,	"	Mapere.
Hara ,	"	Ohaeawai.
Atuahaere ,	"	Kaikohe.
Moetara ,	"	Pakanae.
Matangi ,	"	Waima.
Taunui ,	"	Utakura.

Henry Williams ,	Missionary	C.M.S.
George Clarke ,	"	"
James C. Clendon ,	Merchant.
Gilbert Mair ,	"