Chapter VI: The Treaty (1)

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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

HER MAJESTY'S SHIP "BRITOMART,"
_September 17, 1840_.

SIR--I have the honour to inform Your Excellency that I proceeded in Her Majesty's sloop under my command to the port of Akaroa, in Banks's Peninsula, where I arrived on August 10, after a very stormy passage, during which the stern-boat was washed away, and one of the quarter boats stove. The French frigate _L'Aube_ had not arrived when I anchored, nor had any French emigrants been landed. On August 11 I landed, accompanied by Messrs. Murphy and Robinson, Police Magistrates, and visited the only two parts of the Bay where there were houses. At both places the flag was hoisted, and a court, of which notice had been given the day before, was held by the Magistrates. Having received information that there were three whaling stations on the Southern side of the Peninsula the exposed positions of which afforded no anchorage for the _Britomart_, I sent Messrs. Murphy and Robinson to visit them in a whale boat. At each station the flag was hoisted and a court held. On August 15 the French frigate _L'Aube_ arrived, having been four days off the port. On the 16th the French whaler _Comte de Paris_, having on board 57 French emigrants, arrived.[165] With the exception of Mr. Bellegui, from the Jardin des Plantes, who is sent out to look after the emigrants, and who is a good botanist and mineralogist, the emigrants are all of the lower order, and include carpenters, gardeners, stone-masons, labourers, a baker, and a miner, in all 30 men, 11 women, and the rest children. Captain Lavaud, on the arrival of the French emigrants, assured me on his word of honour that he would maintain the most strict neutrality between the British residents and the emigrants, and that should any difference arise between them he would settle matters impartially. Captain Lavaud also informed me that as the _Comte de Paris_ had to proceed to sea, whaling, that he would cause the emigrants to be landed in some unoccupied part of the Bay, where he pledged himself he would do nothing that could be considered as hostile to our Government; that the emigrants would merely build themselves houses for shelter, and clear away what little land they might require for gardens. Upon visiting the _Comte de Paris_ I found that she had on board, besides agricultural tools for the settlers, six long 24-pounders, mounted on field carriages. I immediately called upon Captain Lavaud to protest against the guns being landed. Captain Lavaud assured me he had been much surprised at finding the guns had been sent out in the _Comte de Paris_, but that he had already given the most positive orders that they should not be landed. On August 19 the French emigrants having landed in a sheltered, well-chosen part of the Bay, where they could not interfere with any one, I handed over to Messrs. Murphy and Robinson the instructions entrusted to me by Your Excellency to meet such a contingency. Mr. Robinson, finding that he could engage three or four Englishmen as constables, and having been enabled through the kindness of Captain Lavaud to purchase a boat from a French whaler, decided upon remaining. Captain Lavaud expressed much satisfaction when I informed him that Mr. Robinson was to remain, and immediately offered him the use of his cabin and table as long as _L'Aube_ remained at Akaroa. Mr. Robinson accepted Captain Lavaud's offer until he could establish himself on shore. On August 27 I sailed from Akaroa for Pigeon Bay, when finding no inhabitants I merely remained long enough to survey the harbour, which, though narrow and exposed to the northward, is well sheltered from every other wind and is much frequented by whalers, who procure great numbers of pigeons. From Pigeon Bay I went to Port Cooper, where Mr. Murphy held a Court; several chiefs were present, and seemed to understand and appreciate Mr. Murphy's proceedings in one or two cases that came before him. Between Port Cooper and Cloudy Bay I could hear of no anchorage whatever from the whalers who frequent the coast. I arrived at Port Nicholson on September 2, embarked Messrs. Shortland and Stuart, and sailed for the Bay of Islands on September 16.

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 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:

You have been good enough to promise me that you will give orders to Mr. Robinson that nothing shall be changed in the already established position at Akaroa, upon which we were agreed at the Bay of Islands, until I should receive fresh instructions. I have received nothing since my arrival in New Zealand, but I learned when you arrived that the corvette _L'Allier_ was being fitted out at Brest in February last, to come to relieve me, and would consequently bring the instructions which I now await with so much impatience. This vessel must now soon arrive, and any day I ought to see it make its appearance. From the note of our _chargé d'affaires_ at London, which you were good enough to send to me, I have no doubt as to the recognition by the French Government of British sovereignty over these Islands, and that is all the more reason why I should appeal to Your Excellency to maintain the position we are in to-day, until the arrival of the vessel which will take the place of _L'Aube_ in the protection of the fisheries. My conduct at Akaroa should have sufficiently proved to the British Government that I have no idea of opposing the rights of Her Majesty the Queen of Great Britain to the sovereignty, or in any way impeding it, upon the land. There has been no act on my part, other than with the idea of maintaining order in this place, and preventing friction between the two races. It is not without some trouble and firmness that I have been able, up to the present, to maintain order and satisfy the colonists. I have told them that I have taken all the responsibility upon myself until I receive fresh instructions, and that then I would inform them definitely as to the position in which they would be placed with regard to the British Government. If so soon before the time when my promise should be fulfilled some aggressive action on the part of the British Government were to take place my honour would be seriously compromised. The authority which I exercise over my countrymen has, up to the present, been as advantageous to the interests of Great Britain as to the colonists, seeing that it has only been used for the maintenance of order. More than once I have been asked by the Magistrate appointed by Your Excellency to interfere in a quarrel between some Englishmen and the police who had been driven back and beaten by the first named. The corvette which I command, in giving its protection to the authorities, detained the law-breakers for a few days, and since it was proved that the war-ship was a protection for British authority, order has been maintained. Last October, however, this influence which has been exercised only for good by me, was on the point of being destroyed, when Mr. Robinson announced that he was going to hoist the British flag. Upon representations from me he consented to postpone these proceedings. The following were the grounds upon which I based my objection: The hoisting of the flag in the present state of affairs would add nothing to British rights, the flag having already been hoisted and saluted by the corvette _Herald_ before my arrival. The proclamations in the name of the Queen had quite another effect, as also had the acts and presence of the Magistrate to enforce the British sovereignty. Nothing on my part could have caused the English authorities to doubt in any way the purity and sincerity of my intentions, and of the arrangements between myself and Captain Stanley, to whom I promised that no arms or projectiles of war should be landed. If the British flag were to be hoisted at Akaroa so shortly before the day when I shall doubtless receive orders from my Government to recognise the British sovereignty, the authority which I exercise over my countrymen would come to an end. I should be unable to interfere in any manner whatever on land for the maintenance of peace and order. I should confine myself to my functions as captain of my ship, and should regard myself merely as the protector of my nation's subjects in case of trouble or judicial proceedings, as in the case of all foreign countries where there is no Consul. From such a state of affairs serious evils might result, and before long, so you may be assured from the experience of my fourteen months' sojourn here, consternation and disgust would take possession of the colonists; work would not be proceeded with; there would be widespread drunkenness, and most complete disorder. If on the other hand you may think fit to order Mr. Robinson to await the arrival of my instructions, which certainly cannot fail to be in agreement with the spirit of the note of our _chargé d'affaires_, in London, you will at the same time prevent the colony being placed in the undesirable position which I have shown you is possible, and you will give me the pleasure of according to your flag, the day it is hoisted, the honours which are due to it, without any disturbance taking place, as I shall inform the colonists that my Government, having recognised the Queen's sovereignty, they must, like myself, submit to the orders I have received.

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 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 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:

The first paragraph (of the original instructions) relates to the acquisition of the sovereign rights by the Queen over the Islands of New Zealand. Under this head I perceive that no distinction is made between the Northern and Southern Islands, although their relations with this country, and their respective advancement towards civilisation are essentially different. The Declaration of Independence of New Zealand was signed by the United chiefs of the Northern Island only (in fact only of the Northern part of that Island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatsoever to the Southern Islands. It may be of vast importance to keep this distinction in view, not as regards the natives, towards whom the same measure of justice must be dispensed, however their allegiance may have been obtained, but as it may apply to British settlers, who claim a title to property in New Zealand as in a free and independent State. I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognised as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity, for with the wild savages in Southern Islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded.