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.

(9) No claim shall be admitted in the said land Courts on behalf of the Aboriginal inhabitants of New Zealand to any lands situate within the said islands, unless it shall be established, to the satisfaction of such Court, that either by some Act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or those from whom they derived the title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, either as places of abode or tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereon.

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 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.

I have to state to Your Lordship that within the last few days I have received alarming accounts from various quarters of the island regarding the excitement created in portions of the country most densely inhabited by natives, upon the subject of the introduction of the new Constitution into this country, and the steps that may be taken regarding the registration of their lands. I am not yet in a position that would enable me to state whether actual insurrection, upon an extensive scale is to be immediately apprehended; but I cannot entertain any doubt that the country is in a very critical state. I will lose no time in taking such measures as are in my power to quiet the apprehensions which at present exist, and I will also delay for some time the introduction of the proposed Constitution, but I beg again earnestly to press upon your Lordship the advantages which would result from in so far modifying the proposed Constitution as to leave the Governor the power of being able certainly to promise the natives that he will enact any measures which they may request as essential to their interests, and which the Governor may also consider to be absolutely requisite to secure the tranquillity of the country.

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:

O Madam the Queen, hearken to our words, the words of all the chiefs of Waikato.

May God grant that you may hold fast our word, and we your word for ever. Madam listen, news are going about here that your Ministers are talking of taking away the land of the Native without cause, which makes our hearts dark. But we do not believe this news, because we heard from the first Governor that the disposal of the land was with ourselves. And from the second Governor we heard the same words, and from this Governor. They have all said the same. Therefore we write to you that you may be kind to us, to your friends that love you. Write your thoughts to us, that peace may prevail amongst the natives of these Islands.[186]

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 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."

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 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 would under the principles of public law, be automatically transferred to the Crown.

"In the view, therefore, of both the Missionaries and the natives," they said, "the sovereignty and the land were two entirely distinct things, and to preserve the latter intact, while they surrendered the former, was the great solicitude of the natives. From Captain Hobson the Missionaries received the most satisfactory explanation of the terms of the treaty. It dwelt explicitly on both the sovereignty and the land, and the interpretation which the Missionaries were authorised to give of it was that, while the _entire_ sovereignty should be transferred to the British Crown, the _entire_ land should be secured to the natives. Most certainly the Missionaries received the fullest assurance that, in surrendering the sovereignty, the natives would not by that act surrender their original claims upon any part of the soil. In this sense the chiefs themselves understood the treaty, as it was propounded to them. They clearly comprehended its two main features as explained in their own figurative style, that 'the shadow of the land,' by which they meant 'the sovereignty,' would pass to the Queen of England, but that the 'substance,' meaning the land itself, would remain with them."

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 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:

Respecting the cession of the sovereignty to the Crown by the aborigines without a reciprocal guarantee to them of the perfect enjoyment of their territorial rights, I do not hesitate to say, such a proposition would not for a moment have been entertained by the natives, who, during the whole proceedings of the Government at the first establishment of the colony, manifested a feeling of great anxiety and mistrust in regard to the security of their lands. Of this I could produce many instances did space permit, but will content myself with noticing that the Church and Wesleyan Missionaries possessing, as they deservedly did before the assumption of sovereignty by Her Majesty, the unlimited confidence of the natives, incurred by their aiding the local Government to effect the peaceable establishment of the colony, the suspicion of the aborigines, who frequently upbraided the Missionaries with having deceived them, saying, "Your Queen will serve us as she has done the black fellows of New South Wales; our lands will be taken from us, and we shall become slaves." How then could the colony have been founded with the free and intelligent consent of the native owners of the soil, on any other terms than those laid down by the Treaty of Waitangi, viewed in the light in which it has always been understood and acted on by the local Government.

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 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 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.

Formerly Lord Stanley.]

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 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.

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:

(1) Do the natives who signed the Treaty of Waitangi acknowledge themselves to be British subjects?

To which he replied:--The natives who signed the Treaty of Waitangi, having been solemnly assured by Her Majesty's representative, the late Captain Hobson, that they should in the fullest sense of the term be entitled to all the privileges of British subjects, consented to be considered as such, with a full understanding that their allegiance depended upon the British Government fulfilling their engagements in that treaty.

(2) How far, and to what extent, do the various tribes in New Zealand acknowledge the Queen's sovereignty?

To this Mr. Clarke's answer was:--The natives alone who signed the treaty acknowledge the Queen's sovereignty, and that only in a limited sense. The treaty guaranteeing their own customs to them, they acknowledge a right of interference only in grave cases, such as war and murder, and all disputes and offences between themselves and Europeans, and hitherto they have acted on this principle. The natives who have not signed the treaty consider that the British Government, in common with themselves, have a right to interfere in all cases of dispute between their tribes and Europeans, but limit British interference to European British subjects.

(3) In your communications with the natives, have you asserted that they are British subjects, and the right of the Government to interfere with them as such? and (4) On making that assertion how far has it been acquiesced in?:--In all my communications with the natives I have been instructed to assert, and have always asserted, that they are British subjects, and amenable to British authority, in which very few, even those who signed the treaty, would acquiesce, save in matters relating to disputes or depredations upon each other (viz. differences between Europeans and natives).

(5) If the Government were to admit that any tribe or tribes of New Zealanders were not British subjects, and were not amenable to the laws, what effect do you think that admission would have on the peace and future colonisation of the colony?:--The admission that the tribes of New Zealanders were not amenable to British law, would, I am apprehensive, be destructive to the interests of the natives and the prosperity of the colony. It would be made use of by designing men to embarrass the Government, to embroil the natives with each other and with the Government, which must be alike injurious to both. Her Majesty's Government having seen fit to colonise New Zealand, it is now an act of humanity to both natives and Europeans to consider the whole of the tribes of New Zealand as British subjects, and to use every honourable and humane means of getting the tribes universally to cede the sovereignty where it has not been ceded.

(6) Supposing that we should treat as British subjects, by force, those tribes, who have uniformly refused to cede the sovereignty to Great Britain, should we be keeping faith with the principles we professed when we originally negotiated for the cession of the sovereignty?:--In treating those tribes as British subjects by force who have refused to cede the sovereignty to Great Britain, would not only be considered by the natives as a breach of faith with the principles originally professed when negotiating for the sovereignty, but would, I am apprehensive, lead to a destructive war, and although the result would be destructive to the native race, it would be inglorious to the British Government, and at variance with the designs of Her Most Gracious Majesty in adding this interesting people and country to her Dominions.

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:

From the evidence given before the Council by the Protector of the Aborigines (Mr. Clarke), it appears that, as I have already stated, there are numerous tribes who have not ceded their sovereign rights to the Queen, and who do not yet acknowledge her sovereign authority. For the reasons already given, I think it would be consistent neither with justice nor with the principles we professed, viz. that we came here to treat for and not to assume sovereignty, to treat those tribes in all respects as British subjects, and to impose upon them our penal code; in this opinion, also, the Protector's opinion coincides. I am also of opinion that so numerous are these tribes, and many of them so distant, that were we disposed to do so we have not the power. At the same time, I am persuaded that the benefits of British protection, and the laws administered by British judges, would far more than compensate the natives for the sacrifice of their independence. These benefits, however, I am equally persuaded, can only be obtained on the voluntary surrender by them of their own sovereign rights, and on their "free and intelligent" submission to British authority. To subjugate them would require a large armed force; but by the employment of persuasion, the influence of example, and the general spread of civilisation among neighbouring tribes, there is ground to expect that they will gradually submit themselves to the operation of British laws. To constantly point out to them the benefits they will derive from doing so, and to impress upon them, to use the language of the Secretary of State, the impossibility of Her Majesty's extending to them an effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire land or habitations "is the course, I believe, to be most calculated to effect the object of establishing an absolute sovereignty over the whole country."

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 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 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 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.

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.

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 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 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 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?"

[156] "One cannot but laud the moderation of the English Puritans who first established themselves in New England. Although provided with a charter from their Sovereign, they purchased of the savages the land they required to occupy. This praiseworthy example was followed by William Penn, and the colony of Quakers which he conducted into Pennsylvania."--Vattel.

[157] The real discoverer of New Zealand was probably a Polynesian.

[158] Stowell in his _Maori-English Tutor_ thus defines _mana_:

I speak of potency, the right
To order things as I may deem;
I, nothing wanting, have the might
Which clothes authority supreme.

Surely as much power as is possessed by any crowned head, and more than is possessed by some.

[159] For some years after the treaty was signed the red blanket was considered amongst the Maoris the hall-mark of distinction, and no chief who had not received the "treaty blanket" was admitted to the select circle of their counsels.

[160] The Kohimarama Conference was summoned at Auckland in July 1860, by Governor Gore Browne, "to afford an opportunity of discussing with him various matters connected with the welfare and advancement of the two races dwelling in New Zealand." It was attended on the opening day by 112 chiefs from all parts of the country, and next to the meeting at Waitangi in 1840 is the most important native conference ever held.

[161] "When casuists afterwards strove to qualify the terms accorded to the Maoris, the words _tino rangatiratanga_ foiled them. _Tino_ is an intense expression of fulness, comprehension, and precision, and _rangatiratanga_ included all the rights of chieftainship."--Rusden.

[162] In 1841 a Mrs. Robertson, her two children, and a half-caste were murdered at the Bay of Islands by a native named Maketu. The case was heard at the first Criminal sitting of the Supreme Court in New Zealand, presided over by Chief-Justice Martin, and was watched with the keenest interest by the natives.

[163] Writing on this point to Lord Stanley in a letter dated Torquay, January 18, 1845, Lieutenant Shortland remarks: "I was present at the several meetings of the natives at Waitangi, Hokianga, and Kaitaia for the purpose of considering the treaty, and the impression on my mind at the time was, that the subject was fully understood by them, and they were quite aware of the nature of the transaction in which they were engaged. I was so impressed with this idea, and so struck with the shrewdness and intelligence of many of their remarks at the first meeting at Waitangi, that at the subsequent ones I noted down the speeches of the chiefs, which all serve to show that the natives not only understood the treaty, but that they were peculiarly sensitive with regard to every question affecting their lands."

[164] The question of the title to the lands claimed by the Nantes-Bordelaise Company was not dealt with by the New Zealand Land Claims Commissioners, and became the subject of protracted diplomatic negotiations with the French Government. Finally, in 1845, Lord Stanley directed the issue of a grant for 30,000 acres. This area was afterwards sold to the New Zealand Company, and on the surrender of its charter the unsold portion became the property of the Crown.

[165] These two vessels were crossing the line when Captain Hobson took possession of the North Island by virtue of the Treaty of Waitangi.

[166] _Vide_ his letter to Captain Lavaud, September 20, 1841.

[167] In his judgment in the case, Regina _v._ Symonds, delivered in 1847, the late Mr. Justice Chapman laid it down that the pre-emptive right to buy was not limited to the "first refusal," but consisted in the right to buy before all others: _i.e._ that the Crown enjoyed the exclusive right of extinguishing the native title.

[168] The Bill was passed on August 4. It enacted that all titles to land in New Zealand were to be absolutely null and void except such as were, or might be, allowed by the Queen. The Governor was to appoint commissioners to examine and report on all claims to grants of land which might be referred to them by him. They were to be guided by the real justice and good conscience of the case. Certain lands, those reserved for the site of a town or village, for purposes of defence, or any other public purpose, were not to be recommended by the Commissioners for grants, but compensation in the shape of other lands might be arranged. The claimant had to prove that he had made a purchase, and there was to be some relation between the quantity of land granted and the sum expended on its purchase, but as a general rule no claimant was to receive more than 2560 acres.

[169] Mr. Busby laid off a portion of his property on the bank of the Waitangi River as a township, which he dignified by the name of Victoria. Here he marked off streets, squares, and reserves for public buildings, the lots being sold to Sydney speculators and settlers at Kororareka at the rate of from £100 to £400 per acre. Over seventy years have elapsed since then, but the great city which was to be is still unsubstantial, rude boulders are its cathedrals, and the cabbage palms wave over its empty market-place.

[170] Despatch to Lord John Russell, August 16, 1840.

[171] Amongst these was Tu Hawaiki, the Otago chief, who afterwards signed the treaty at the request of Major Bunbury.

[172] "In consequence of the animadversions made by me in Council on this proceeding of Mr. Wentworth, and particularly of my having said that he had, in my opinion, exposed himself to a prosecution for a conspiracy, Mr. Wentworth has thought proper to resign his commission as a Magistrate, and (to use his own expression) to separate himself entirely from any official connection with my Government."--_Vide_ the above Despatch, August 16, 1840.

[173] "The more completely Lord Normanby admits the right of the chiefs to the sovereignty and soil of New Zealand the more fully must he rely on the third principle upon which I have said this Bill is founded, namely, that Englishmen cannot found colonies without the consent of the Crown, and can obtain no titles to lands in colonies but from the Crown."--Extract from Sir G. Gipps' speech.

[174] For a further exposition of this point the reader is referred to what has been called the "classic" judgment of the late Mr. Justice Chapman in Regina _v._ Symonds, 1847.

[175] In November 1840 Lord John Russell entered into an agreement with the Company, by which they were to become entitled to select out of the extensive domain claimed by them one acre for every 5s. they could prove they had expended upon colonisation in New Zealand. A Mr. Pennington, a London accountant, was appointed to discover what the Company's expenditure had been. He reported that they had expended, as far as could be ascertained, the sum of £200,000, which on the basis of the arrangement entered into would have entitled them to select, approximately, 1,000,000 acres. This the Company asserted to Lord Stanley was a final determination of their rights, and that they were _ipso facto_ entitled to the land. Lord Stanley, however, held that the Company still had to show that they had lawfully and equitably extinguished the native title over this area, and that for this purpose their land must come under investigation by the Commission. The correspondence is embodied in the Parliamentary papers of the period.

[176] Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.

[177] In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."

[178] _Vide_ his letter to Archdeacon Henry Williams, November 11, 1845.

[179] Governor Hobson died at 12.15 A.M. on September 10, 1842, at Auckland. Amongst a large section of the Northern Maoris the belief was current that he had been _makutaed_ (bewitched) by an old _tohunga_ (priest) at a banquet, the _tohunga_ being instigated by the section of natives who were opposed to the treaty.

[180] In the previous debate Sir Robert had said: "If ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker it was the engagements contracted under such circumstances with these native chiefs."

[181] _Vide_ his Ordinance of March 26, 1844. For an able justification of this measure the reader is referred to Mr. George Clarke's _Final Report_, 1846, the manuscript of which is in the Hocken Collection at Dunedin. The pre-emptive right was finally abrogated in the Native Land Act of 1862.

[182] _Vide_ his Despatch to Lord Stanley, December 10, 1845.

[183] In this he was further assisted by the fact that Mr. Hawes, who had been prominent with him in the interests of the New Zealand Company, became his Under-Secretary, and Mr. Buller became Lord-Advocate.

[184] For a critical analysis of Earl Grey's policy at this period, the reader is referred to L. A. Chamerovzow's work, _The New Zealand Question_, 1848.

[185] One writer declared that, "by Earl Grey's Constitution the humbug Treaty of Waitangi is very properly laid on the shelf." Another referred to it as "sweeping away all the Treaty of Waitangi nonsense."

[186] Te Wherowhero, who had refused to sign the Treaty of Waitangi, was greatly influenced by Governor Grey, and this petition is interesting as showing that the chief was beginning to recognise the sovereignty of the Queen as the accepted order of things.

[187] "As was anticipated, the chiefs would not enter into the treaty without the advice of their religious instructors. The Wesleyan chiefs said, in effect, to their Missionaries: 'We do not know the Queen of England, but we know you, and can trust you. If you say that the British Government speaks true about the land, we will believe you, for we know you will not deceive us.' The Society's Missionaries, understanding that the primary object of the British Government was to throw the shield of protection over the New Zealand people, and believing that the measure proposed was the best for preserving the natives from the evils by which they were threatened, could not hesitate to assure their people, that, when once the faith of the British Government was pledged, it would be maintained inviolate."--_Vide_ Wesleyan Mission Committee's Letter to Earl Grey, 1848.

[188] Correspondence between the Wesleyan Missionary Committee and the Right Hon. Earl Grey, 1848.

[189] In a letter received at the Mission House after the Committee's Memorial had been prepared, the Rev. Thomas Buddle, writing from Auckland, on July 3, 1847, remarked in reference to lands having no native claimants: "No such lands have yet been discovered in this Island. I question much whether there is an acre that has no owner." The testimony of other Missionaries in the same direction, was, the Committee asserted, "clear and express."

[190] It is instructive to observe that the treaty is no longer described as "what has been called the Treaty of Waitangi," as it was in Earl Grey's Despatch, but is now spoken of with respect by Mr. Merivale as "The Treaty of Waitangi."

[191] "I do not think it necessary or convenient to discuss with Mr. Swainson the justice or the policy of the course which the Queen has been advised to pursue. For the present purpose it is sufficient to say Her Majesty has pursued it. All the territories comprised within the Commissions for the Government of New Zealand, and all persons inhabiting those territories, are and must be considered as being to all intents and purposes within the dominions of the British Crown."--_Vide_ Lord Stanley's Despatch to Acting-Governor Shortland.

[192] William Thompson, son of Te Waharoa, known as the King-maker.

[193] A grand-nephew of the chief who led the war of 1845.

[194] The confiscation of Taranaki lands following upon the Waitara war might be held by some to be an exception to this rule, but that would depend upon the view taken of the justification for the war. The breaches of the treaty, real or alleged, which have occurred in connection with the Waitara war and since, have been vigorously stated by Mr. G. W. Rusden in his _Aureretanga_, published in 1888.