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History of New Zealand

Chapter vi. — Spain's Court

page 292

Chapter vi.
Spain's Court.

When Spain arrived “he supposed he could hear claims in Auckland by the ordinary process of summoning before him claimants and witnesses from all parts of the colony. But this notion is already dissipated.”1 It was needful to inquire carefully upon the spot.

On the 22nd of April, 1842, Spain returned to Wellington accompanied by Mr. George Clarke, junior, son of the Protector of the Aborigines. Again the settlers grumbled at the son for “prowling about”among the Maoris as his father had done. “He resembled”(Mr. E. Jerningham Wakefield said) “a sulky Maori boy rather than even a white Government officer.”Mr. Spain's Court was opened on the 16th May, and he gave offence to Colonel Wakefield by requiring proof that the signers of his bargains for land “had a right”to convey the land claimed. Mr. E. J. Wakefield sneered at such a demand as ridiculous.

The Maoris showed more inclination than the company to respect the Queen's representative. Before Mr. Spain's arrival there might have been bloodshed but for their confidence in their cause and in the justice of the Commissioner. They were at peace with Englishmen everywhere. A solitary white man could then travel from tribe to tribe amidst hospitable welcomes. But they were suspicious about designs on their land. At Taupo the great chief Te Heu Heu told Mr. E. J. Wakefield, who was one of the travellers through Maori land, that he had not sold and would not part with his land or chieftainship

1 Despatch. Governor Hobson, No. 21; 26th March, 1842.

page 293 “We will welcome you as visitors, but we will not part with the land, sacred to the ashes of our fathers.”

This feeling Mr. E. J. Wakefield could flippantly make light of, not only in his published work, but in his recorded conversations with important chiefs. Early in 1843 (he declares that)1 he told Rauparaha that in time the Pakeha would cover the land, and jestingly asked why he did not stop ships in Cook's Straits with a canoe. When Rauparaha scornfully refused to go to Wellington to consult with Colonel Wakefield, Mr. Wakefield retorted, “The white men will creep on and get their right at last.”“I remember being struck with the hyena-like scream with which he said, ‘Then we will fight about it.’ I still laughed at his obstinacy.… He said, ‘It must be one for one, till either the Maori or the Pakeha is exhausted.’”

The tragedy afterwards enacted at Wairau might well scorch into Mr. Wakefield's remembrance his ill-timed raillery. But he was not the only offender. Various acts of intrusion irritated the Maori mind. The settlers were not so willing as the Maoris to wait for Mr. Spain's decision. The latter, finding that the Provisional Government of Wakefield had been set aside by Hobson without difficulty, were by no means inclined to obey Wakefield's behests. When they had first seen him with a cargo of gifts, they formed exaggerated notions of his importance, and were inclined to believe him. They soon resented his exorbitant claims based upon transactions which neither party had understood, and about which he did not tell the truth. Finding that he had a superior in New Zealand they resolved to resist—but without open warfare—what they called his unrighteous claims. They would respect, they said, the agreements they had understood. If a white man built a hut on land to which the title was disputed, the Maoris pulled down the hut, carefully abstaining from destroying the materials. They told Wakefield they would continue to do so. He must abandon his claims or complete his titles properly.

Rangihaeata had in April, 1841, proved how the company would be resisted if they presumed to enter upon disputed lands. He pulled down the surveyor's hut at Porirua. Every morning the surveyor found that his “station posts had been page 294 removed by the natives.”The surveyor told a Committee of the House of Commons that Rangihaeata only wanted “more payment;”but Murphy, the police magistrate, officially reported at the time that Rangihaeata denied any sale of the land; “he wished it for his children, and would maintain his right, but acknowledged himself a British subject.”The magistrate, having no official knowledge that the land belonged to the company, did not interfere. In April, 1842, the company again endeavoured to occupy the land, and Rangihaeata with fifty men pulled down the houses, declaring that he had never sold the land. A meeting was called in Wellington, which the police magistrate did not attend. The “willingness of the entire population to assist the sheriff”was declared, and the police magistrate was unsuccessfully applied to, by the agent for the land, for “a capias to arrest the chief.”

Mr. Halswell, Commissioner for management of the native reserves on the company's settlement, pacified the natives; but when building operations were resumed in June, Rangihaeata again removed, without appropriating, the materials. The magistrate wrote to Hobson: “Until Mr. Spain decides upon the claims, I would not interfere to prevent any natives keeping possession of lands which they state they have not sold,”and Hobson approved his determination. The chagrin of Colonel Wakefield at being thus checked by the lieutenant of the “old savage,”whose rights and reign he had hoped to extinguish with a high hand, was hardly concealed; and though the protectors of the aborigines were unanimous in bearing testimony to the treaty-respecting demeanour of the natives, collisions between the two races were dreaded.

Spain, writing to Hobson in 1842, declared that the aborigines at Wellington had “upon many occasions when deprived of their cultivations, shown the greatest forbearance, and I very much doubt whether their white brethren would follow their example if placed in precisely similar circumstances. The cause of quarrel is generally the disputed title to land, and I am not aware of any cases of outrage committed by the natives upon Europeans, or of even any misunderstanding between the two races upon any other point.”

Acting Governor Shortland wrote (Sept. 1842) that Spain page 295 reported that the “natives generally hailed his arrival with delight as a means of terminating their disputes, and expressed their belief that the Queen and the Government will do them justice.”

Clarke, one of the protectors, in the same year found the Cloudy Bay natives much excited “by the desecration of their burying-grounds, which were broken into by whaling parties and ransacked for the sake of the green-stone and other treasure.”The body of Rauparaha's brother was exhumed in this brutal manner, and Clarke promised to lay the matter before the Government. “I could not but be surprised,”he wrote to Hobson, “that the natives should so quietly refer the matter to the Government.”1 Their wrath was suppressed for a time, but it was in the Cloudy Bay district that it was soon to break out in an appalling manner.

The enemies of Rangihaeata were not satisfied with Mr. Murphy's refusal to seize him. Chief Justice Martin was at Wellington in October, 1842. He was applied to for a benchwarrant to arrest the chief. He reserved judgment, declining to issue a warrant, partly because the application was ex parte, and argument was requisite before judgment on so grave a matter, and partly on a technical ground connected with the Police Magistrate's Ordinance under which a magistrate's warrant had been refused. He gave his final judgment early in 1843, and refused the warrant, to the great dissatisfaction of those who longed to lodge Rangihaeata in prison and thus subject him to the taunt, so odious to a Maori, of having suffered as a slave.

Another event, in which it was impossible to prove their complicity, cast a darker shade on the Maoris. The death of the chief whom the Maoris thought to have been killed by a Pakeha at Wellington, just before Hobson's arrival in August, 1841, was mysteriously followed by the death of a settler who was found dead in January, 1842, with fractured skull, on the Petone road. Halswell thought the murder was in revenge for the supposed murder of the Maori.

Mr. Spain's proceedings were resisted at the threshold by the company in England and at the antipodes. Colonel Wakefield

1 Parliamentary Papers, 1844, vol. xiii. p. 124.

page 296 protested against any probing of the validity of his alleged purchases. Mr. Somes, the governor of the company, denounced as preposterous any inquiry as to the validity of titles derived from the “aboriginal inhabitants.”A highwayman, by such a process, might allege as irrefragable a recognition by a third person of his possession of property which the third person had no means at the time of knowing to have been stolen. How such assumptions would have fared when put before Lord John Russell may be questionable. Before the heroic mind of him who rendered the ‘Iliad’ into worthy English they fell without force. Before Mr. Spain they were loyally tested, by his instructions, by the treaty of Waitangi, and by the approval in England of Hobson's proceedings.

The guarantee to the company of the site of Wellington and the shores of Port Nicholson was, according to Mr. Spain, subject to proof of extinction of the Maori title,1and the reserve of the native pahs, cultivations, and burying-grounds. Confident in the strength of an association which had been backed by the authority of Lord Durham and the genius of Gibbon Wakefield, Colonel Wakefield did not at first protest against Spain's jurisdiction, but submitted six purchase-deeds of Port Nicholson, Nelson, Taranaki,2 Wanganui,2 Porirua, and Manawatu.

It was only when called upon to produce further evidence than that of the chief Te Puni that Colonel Wakefield demurred to inquiry which might reveal the existence of rights which he had not purchased.3 Petone, where the settlers first established themselves, was duly sold to them by Puni and his friends. At Wellington there were rights not within his control, and Wakefield well knew the fact. Spain told him plainly that to ask the “Government for a Crown grant of land, whether the native title was extinct or not, was calling upon them to do that which was totally out of their power, as the Crown could not grant what the Crown did not possess.”

1 Spain to Hobson, 22nd June, 1842. Parliamentary Papers, 1844. Appendix, p. 292–3.

2 These places were then called New Plymouth and Petre, but it is convenient to adhere to the names which have clung permanently to them.

3 Parliamentary Papers, 1844, p. 295.

page 297

Spain at once discovered that although chiefs were always consulted and their consent was necessary, nevertheless there was a tribal right conferring usufruct equivalent to individual ownership which could not be alienated without the acquiescence of the individual owner or occupier, as well as of the tribe. Contempt of this fact led Colonel Wakefield to commit the company to a settlement where such rights abounded. It was plain that if a final report on the Port Nicholson claims should be made in 1842, it would necessarily be unfavourable to the company, and that their settlers would be confined to a very limited area.

Spain felt the difficulty of the position in which so many hundreds of his countrymen were placed, and, after protracted sittings, during which Dr. Evans abandoned the conduct of the company's case, and Colonel Wakefield successively undertook and abandoned it also (while at the same time the repulsion of intruding settlers at Porirua and Taranaki caused anxiety), Colonel Wakefield proposed, and Mr. Spain agreed, to recommend to the Governor that the unsatisfied claims of natives should be held over for a final award by Mr. Spain himself, aided by Mr. Halswell, the Protector of the aborigines, after thorough investigation. Wakefield and Spain jointly consulted with the Government at Auckland in November, 1842.

The Acting Governor, Shortland, renewed the permission granted to the company by Hobson to satisfy by “further payments those natives who, not having been parties to Wakefield's purchases, might refuse to vacate their lands,”1 and was in 1843 personally assured by chiefs in Wellington that they were satisfied with his arrangement to meet such of their demands as Clarke, the Protector, might deem just. It was not until January, 1843, that it was decided that the arbitration contemplated by Wakefield and Spain should take place. Mr. George Clarke, junior (son of the Protector), and an agent of the company were to arbitrate, and Spain was to be umpire in case of disagreement.

Colonel Wakefield's own words convict him of assiduously striving to evade justice. On the 30th May, 1842, he made an urgent appeal to England against Spain's proceedings. He had

1 Shortland, 17th April, 1843, describing events of 1842.

page 298 imagined that Lord Russell's agreement had exempted his transactions from the rule proclaimed by Gipps and embodied in an Act. He was “not forgetful at the same time of the assumption in the agreement that the lands had been ‘purchased’ from the natives, and of some passages implying a proposed investigation into the titles. Still less could I put out of sight the mischievous treaty of Waitangi, made by Captain Hobson at the instance of the missionaries.1 I was not therefore surprised to learn from Mr. Spain… that he was here to investigate the titles derived from the natives. I supposed that the incompatibility was to be got over by the inquiry into the company's titles being little more than a matter of form… I certainly had no conception that any tedious proceedings were contemplated, or that a searching inquiry, managed with all the niceties of rules of law and evidence, was to take place.… The impolicy of these proceedings will be at once apparent.… The injustice to the company is not less striking.… I press these points the more from entertaining a conscientious conviction that the bargains I made with the natives were conducted in a spirit of justice and openness unexampled.… I shall not fail to urge upon Mr. Spain the mischievous consequences of a protracted examination of the natives.”

Any examination, which was not a mere matter of form, was sure to be disastrous to Wakefield's claims; but, in justice to Lord Russell, it is fair to state that in no letter either to the company, to Hobson, or to Gipps, did he imply that he would tolerate so vile a suggestion as that of Colonel Wakefield; or countenance a departure from Lord Normanby's original announcement that all titles whatsoever would be examined by a Commission.

Soon afterwards there sped over the sea a declaration that justice would be done. The company had taken up their agent's nefarious position. They told Lord Stanley that Spain

1 But the general nature of the treaty had been enforced by Lord Normanby's original instructions, and in the Proclamation prepared by Gipps, long before Hobson consulted the missionaries. The Queen had caused it to be declared in August, 1839, that she would not recognize as valid any titles not derived from or confirmed by herself. At that date Wakefield had made no pretended bargain.

page 299 misapprehended their titles in thinking that the agreement made by Lord John Russell had not set them at rest. Every needful consummation had been obtained by Pennington's award in London. “It was difficult,”wrote the prompted Somes, “to conceive how the Commissioner could have imagined that the title thus derived from an agreement with the Crown could, in any respect, be regarded as coming within the scope of an inquiry into the validity of titles derived from the aboriginal inhabitants.”He had the audacity to ask Lord Stanley to direct the Governor to issue a grant in compliance with Pennington's award, “without reference to those proceedings of Mr. Commissioner Spain, which have already been productive of so much gratuitous evil.”

Lord Stanley replied that he could give no decision with regard to Spain's proceedings without hearing Spain's statements. To the proposition that the Maori titles were to be considered extinguished without inquiry he could not accede. He could not admit that such an inference could be drawn from any arrangements between the Government and the company, and it was utterly repugnant to Lord Normanby's original instructions and to the rights “confirmed and guaranteed”by the treaty of Waitangi. As the subject was important he was willing to receive the Directors if they should “wish to explain their views more fully than could conveniently be done in writing,”

Mr. Somes replied that “within the four corners of the agreement the Directors find no simple phrase leading us in the remotest way to imagine that the fulfilment of the grant promised to us on the part of Her Majesty was to be dependent in any manner or degree upon the company's antecedent purchases from the natives.”The Government would have to settle with the natives; the company looked to the Government to fulfil the agreement, and did not “venture to interfere with the mode in which Her Majesty's Government may enable itself, with justice to third parties, to fulfil its equitable contract with the company.”In brief, it was asked that Colonel Wakefield's nefarious pretended purchases with fire-arms were, without inquiry, to be made good at the cost of the blood, treasure, and honour of England. The Maoris with whom he had dealt were brushed aside as third parties, with whom he had nothing to page 300 do. The Directors had an interview with Lord Stanley, and, by his desire, furnished a written statement of the grounds of their protest against Spain's proceedings. They averred little more than before. The agreement decided “everything but the amount of the grant.”Pennington's “sole and final decision”was all that could follow.

The company's claim was exempt from Spain's inquiries. Unless the natives were recognized as having interests “never yet recognized by any Christian nation as possessed by savages,”they were not entitled to consideration except as regarded the small patches of land in “actual occupation.”As to those, the Directors were persuaded that they were “capable of the easiest arrangement.”If the hereditary claims of the Maoris were to be viewed as “co-extensive with our own, an inquiry into these would put our title to our whole property again at issue, and the agreement and award would be mere nullities.”But the Directors were “happy to find”that no such aboriginal rights could be maintained. Lord Stanley received with “extreme astonishment”an intimation that because Lord Normanby's announcement of the Queen's commands in August, 1839, was not referred to in the agreement, those commands were not applicable to the company's dealings with Maoris.

Lord Normanby's letter was laid before Parliament in the session preceding the date of the agreement. Lord Stanley could “not allow the company to plead ignorance of such a document, or permit them to assume that in entering into the arrangement with them Her Majesty could contemplate deliberately violating the faith which she had publicly pledged to the natives, in conveying to the company rights which, on the part of the Crown, she had solemnly disclaimed.… Lord Stanley cannot now permit it to be maintained either that the natives had no proprietary rights, in the face of the company's declaration that they had purchased those very rights, or that it is the duty of the Crown either to extinguish those rights or to set them aside in favour of the company.”As to Mr. Pennington's award, it was merely that of an accountant instructed to ascertain the money expended by the company, and the proportion of land to which that expenditure entitled them. “That gentleman had in fact nothing to do with the title to any one acre of land.” page 301 To a proposition to compensate, by selections from native reserves, settlers disappointed in obtaining portions of lands sold by natives, Lord Stanley cogently answered that to seize the former to make good deficiences in the latter would be to make the Maoris pay for disappointment of which they were not the cause; “a course which would involve injustice to them and a breach of trust on the part of the Government.”The utmost Lord Stanley could do to remedy the acknowledged difficulties of the case was to sanction the grant of a primâ facie title, leaving inquiry to be made on the spot.

The company then cast away the scabbard, and on the 24th January sent a missive more like a pamphlet than a document addressed to a Secretary of State. They must have hoped that their friends in Parliament were powerful enough to overawe the Ministry. They declared that they asked no favour. They endeavoured to bind Lord Stanley to what they presumed must have been the intention of his predecessor, Lord John Russell, viz. to demand no investigation as to the validity of the purchases from the natives. If the justice exacted by Lord Stanley had been in Lord John Russell's mind it would have been a “deep and cold-blooded fraud”in the latter to mislead the company as they had been misled. But Lord John had no such secret purpose. Lord Stanley misinterpreted the agreement.

Mr. Somes sneered at Lord Normanby's instructions, at naked savages, and their rights. “We did not”(he had the effrontery to say) “believe that even the royal power of making treaties could establish in the eye of our Courts such a fiction as a native law of real property in New Zealand. We have always had very serious doubts whether the treaty of Waitangi, made with naked savages by a consul invested with no plenipotentiary powers, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment.”1 Lord Stanley “need not say so very positively”that he could not allow the company to plead ignorance of Lord Normanby's letter. It was “probably”not overlooked by them.… “We thought it most probable that, whenever possession of New Zealand should be actually obtained by Her Majesty, the

1 The discrdit of prompting this sentence has been claimed for Charles Buller, M.P., by his friends.

page 302 view hastily adopted by Lord Normanby would be found impracticable and abandoned without difficulty.… We candidly confess that we object to the inquiry because we feel no security for being able to establish the validity of our contracts with the natives, according to the views on which the Commissioner is apparently acting.… What we object to is that we should be required to prove that in every instance every native with whom our agent contracted understood the full force and meaning of the contract which he made, and that the tribe with which he dealt had a right to convey according to the New Zealand law of real property.… We still believe that, difficult as it is to enforce any process for inducing the Crown to fulfil its equitable engagements, the laws of our country will protect us against a direct violation of our agreement.”

To those laws the unjust stewards declared that at the proper time they would appeal. Well may man pray not to be led into temptation, when a company comprising English gentlemen could pollute an elaborate and able paper with such words. Well was it that Edward Geoffrey Stanley held the seals of the department to which they were addressed. The descendant of ancient Saxon and Norman chiefs—whose motto was “—Sans changer'—was neither to be cajoled nor coerced to perpetrate a wrong. He told the company (1 Feb. 1843), that the tone of their letter left him “no alternative but that of referring them to the extreme right on which they desire to stand, and of informing them that he willingly consents to their reference of the case to the judicial tribunal to which they express their readiness… to appeal.”

To prevent doubts he stated what seemed to be their contention: “That it is the duty of Her Majesty's Government to grant to the company between seven and eight hundred thousand acres of land to be selected by them out of a tract of twenty millions of acres in New Zealand. That Her Majesty's Government are bound to make this grant without any regard to the rights of the natives, or to the rights of Europeans claiming under purchases earlier than those of the company; and further, that it is the duty of the Government to guarantee and to secure to the company the possession of such lands, whatever opposite claims may be asserted by third persons, and page 303 whatever may be the basis on which such opposite claims may rest. In answer to these claims, Lord Stanley desires me to remind you that he has offered on the part of the Crown, as a matter not of right, but of grace and favour, to instruct the Governor to make to them (the company) a conditional grant, subject to prior titles to be established as by law provided, not only of such portion of the Wellington settlement as is in the occupation of settlers under them, but also of all parts not in the occupation or possession of others; the extent of such grant, of course, not to exceed that to which they are entitled under Mr. Pennington's award. Further than this, Lord Stanley cannot consent to go, consistently with the obligations by which the Crown, as he conceives, is bound.

“Lord Stanley is not prepared as Her Majesty's Secretary of State to join with the company in setting aside the treaty of Waitangi after having obtained the advantage guaranteed by it, even though it might be made with ‘naked savages,’ or though it might be treated by lawyers as a ‘paiseworthy device for amusing and pacifying savages for the moment.’

“Lord Stanley entertains a different view of the respect due to obligations contracted by the Crown of England; and his final answer to the demands of the company must be that, as long as he has the honour of serving the Crown, he will not admit that any person, or any Government, acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful and equitable rights.”1

A challenge so bold and of so certain a sound Mr. Somes did not venture to accept. He declared that the company never contemplated “so odious a suggestion”as to “set aside the treaty of Waitangi after obtaining the advantages guaranteed by it.”Though he continued to argue, his tone was humble, and instead of impeaching the Waitangi treaty he pleaded that it could not embrace the claims of the company in the Middle Island, although at Captain Bunbury's request the chiefs of that island agreed to it. It was clear that the authority of Lord

1 For such despatches Lord Stanley incurred the censure of Mr. Charles Hursthouse in a book published in 1857. He is there styled “a Colonial Minister, peculiarly under non-colonizing, aborigines-protecting, Exeter Hall and missionary influences.”Vol. i. p. 63.

page 304 Stanley would support the just decisions of the Land Commissioner. In May, 1843, Mr. Somes was fain to become a petitioner. Difficulties about titles had arrested not only sales of land, but emigration from England.1 He submitted proposals under which he hoped the company would be able to fulfil their functions to “Lord Stanley's satisfaction,”their own credit, and the public advantage. Lord Stanley sanctioned an arrangement by which the company were to receive 50,000 acres at Auckland, abandoning their claim to a like quantity elsewhere. To quiet their titles they were to receive a conditional grant of the lands selected by their agents. If prior titles to any land should be found the company were empowered to obtain a corresponding quantity elsewhere. The Government undertook as soon as practicable to establish some general rule for settling claims and titles, and to aid the company in making arrangements for giving equitable compensation to natives for lands on which the company or the settlers might without sufficient title have effected improvements.

Of this arrangement Hobson was not to hear. It will be seen that it did not differ essentially from the plan proposed in 1842, by Colonel Wakefield, recommended by Spain, and approved by Hobson. It contained the germs of disagreement. It was obvious that one sturdy owner unwilling to part with his land might render nugatory the assent of a majority desirous to sell. If force should be resorted to the treaty of Waitangi would be violated, and wrong would rankle in the Maori mind. The anomalous condition into which Lord John Russell had allowed the company's relations with the Maoris to drift had made the question of expediency assume almost the magnitude of a principle. The well-being of the large number of settlers congregating on both sides of Cook's Straits could not but claim earnest attention. Yet there was a danger that it might warp the authorities to abandon that which was just and right, and which had been accurately defined by Sir George Gipps and by Lord Stanley.

Mr. Spain reported officially that the conduct of the company showed a disregard of justice, and that “they wanted to make it appear that the executive of the commission was a mere useless

1 Somes to Lord Stanley. Parliamentary Papers.

page 305 form, to which they were obliged to submit, but that the result was immaterial to them, as they could call upon the Government under the agreement (with Lord John Russell) to give them a Crown1 grant, whether my report were favourable or not to the validity of the purchase.”
The company assiduously circulated rumours that the Colonial Office had succumbed to their grasping desires. Shortland wrote (21st October, 1843): “Until the idea be dispelled that is now current that your Lordship has instructed His Excellency (Captain Fitzroy, R.N. already appointed Governor) to enact an Ordinance whereby the natives will be obliged to dispose of their lands at a price to be therein fixed, there will be no chance of any good resulting from the re-opening of (Mr. Spain's) Court. I cannot draw any such inference from your Lordship's despatch, and I must candidly express my opinion that no such Ordinance could be carried out except at the point of the bayonet, and then only by more than one regiment aided by a naval force. But I feel certain that your Lordship's instructions have been misinterpreted, and that the solemn assurances, again and again reiterated by the local government to the aborigines, that their territorial rights shall not be invaded, nor their land taken without their free consent, will never be departed from.”2 The rumours thus circulated were

1 Spain's Report, 12th September, 1843.

2 If a surmise could be of value it might be deemed that the hand of the upright Swainson penned these words. But it must not be supposed that only such as he thought it needful to demand justice for the Maoris. A remarkable letter was written to England in May, 1842, by Mr. R. D. Hanson, the gentleman who, having immigrated as an officer of the New Zealand Company, was in the end of 1841 appointed Crown Prosecutor, by Governor Hobson, in the Port Nicholson district. A-lawyer; a contributor to the London press; a man selected by Lord Durham to act as his Secretary in Canada; an associate whose ability was prized by the promoters of the New Zealand Company; who finally rose to the position of Chief Justice in South Australia, may be considered capable of forming an opinion as to the claims of the company. He described them thus—”… it is right that some person should watch their proceedings on the part of the natives… The New Zealand Company have no title to the greater portion of the lands which they have professed to sell, and it may be stated with confidence that nothing short of an Act of Parliament could divest the native proprietor of his title, nor that without an adequate compensation… The natives of Te Aro (the site of Wellington) were never consulted as to the sale, and not one of them signed the deed. . (though they) had gardens on the space now occupied by the town”(there were other similar cases). What Mr. Hanson thus exposed Colonel Wakefield well knew; yet there are remnants of the company's servants and admirers who praise their proceedings.

page 306 worse than merely untrue. They were scattered abroad after the company had signally failed in their efforts to induce Lord Stanley1 to “define authoritatively”in England “the extent to which native rights to land might be admitted.”The company had neutralized the wise doings of Gipps by bending Lord J. Russell to their will, but they were as the viper before the file when they plied their arts against Lord Stanley.

Spain was called upon to defend himself from imputations made against his Court which Mr. Somes in England vied with Colonel Wakefield in decrying. Wishing to make a burlesque of a solemn treaty made in the name of the Queen, they taunted Spain with making the Court of Claims a burlesque in the eyes of spectators. In their own generation they were wise. Though Spain could not conclude his labours at Wellington until the decision of the Government might be known about granting conditional titles subject to further compensation of unsatisfied Maori owners, he strove to fulfil his functions elsewhere.

At the Hutt there was a settler who appealed for protection against Taringa Kuri. Mr. Halswell went thither in August, 1842, and called Mr. Spain to his help. They seemed to have succeeded in some measure,—Taringa Kuri promising to await Mr. Spain's award,—when an armed party sent by Rangihaeata and Rauparaha confounded the peacemakers. The settler and his men were not attacked, but trees were cut down on the plea that the Maoris wished to cultivate the ground in dispute. At Wanganui also,—where, by a deed signed at Queen Charlotte's Sound in November, 1839, Wakefield had obtained signatures of (Wiremu Kingi) Te Rangitake and others purporting to convey “all the late possessions”of the Ngatitoa (Rauparaha's) and the Ngatiawa (Rangitake's) tribes from Mokau to Cook's Straits, with coasts, islands, rivers, and mountains throughout whole degrees of latitude,—there was trouble.

1 Despatch No. 31; 13th August, 1844. Lord Stanley to Governor Fitzroy.

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In August, 1841, the chiefs stopped the surveying of land by the company. Mr. Dawson, the resident magistrate, prevailed upon the popular missionary Hadfield to intercede in September. At his intercession, and on his explanation that the survey would not weaken their title, which only the Governor or his deputy could decide, the Maoris allowed the work to be proceeded with, declaring that the land should not be taken without their lives. They had sold none on the east side of the river: on the west they admitted a sale of their rights over about 70,000 acres. The spirit in which the company acted was shown by the fact that after such remonstrances they proceeded to allot the land. Mr. Dawson warned the presiding surveyor (23rd September, 1841), that “the sectionists”must intrude on no disputed land, and that no Maori should be moved without his free consent. Early in 1841, Governor Hobson had warned all persons officially not to occupy or settle under the company's land orders at Taranaki or at Wanganui, unless such lands had been conveyed to the company by a Crown Grant.

In December there was another selection, and Mr. Dawson sent a similar warning to Colonel Wakefield, who was then in Wanganui. Wakefield promised to convey the warning, but said that he would state also to selectors that he held a letter from Captain Hobson authorizing him to remove natives “by any means in his power except compulsion.”He omitted Hob-son's stipulation that only any equitable arrangement should receive his sanction. With an assumption not uncommon in his correspondence he added: “Your instructions to protest publicly against the occupancy of the land by the company's settlers, are so utterly inconsistent with the spirit of this communication that I cannot but conclude, with regret, that the local government is now disposed to thwart the colonization of this part of the country by the company, as sanctioned by Her Majesty's Colonial Minister.”

Wakefield referred to Lord John Russell, but the answer to his own conduct was ere long to arrive in the words of Lord Stanley, concerning justice and the honour of the Queen of England. Mr. Dawson made a manly and effective reply on the spot. It would be wearisome to recapitulate the various stages of Mr. Spain's investigation. Enough has been quoted from the page 308 bulky blue books to show the spirit by which he was actuated, and the opposition he encountered.

When the proposition that the company might remedy defective purchases by giving further compensation was sanctioned, Colonel Wakefield and Mr. Clarke (the Protector of aborigines) conferred for some time without agreeing upon any point to submit to Spain as umpire. Dreading an adverse decision, Wakefield strove to postpone it. Spain, after vainly waiting at Wellington, proceeded to Porirua to examine some private claims. Wakefield followed him thither, and wished to proceed to Taranaki, promising that on his return he would meet Spain at Wanganui, to examine the company's titles there. Spain consented. Whatever was Wakefield's intention when he made the promise he broke his word. He did, however, tell the Wanganui natives that he would pay the compensation which might be awarded to them. This promise he also broke. Spain waited for three weeks. The natives were urgent for inquiry, and Spain (April, 1843), entered upon it, being careful (he reported, 12th September) to examine every native whose name appeared in the company's purchase-deed.

Wakefield returned by sea from Taranaki to Wellington, but Spain heard of him and invited him to keep tryst. Wakefield then exhibited, if not his true colours, such a signal as showed the value of his word. He had not thought that Spain would so speedily reach Wanganui. Important business had called him to Wellington. His nephew, Mr. E. J. Wakefield, would attend Mr. Spain's Court. “But,”he added, “I think it right to inform you that I have received intimation that (the Directors) have remonstrated with the Secretary of State against being made liable for any further expenditure than that for which Mr. Pennington has awarded land to the company and that until I receive further information on the subject I shall be under the necessity of postponing the arrangement contemplated with respect to further compensation.”In other words, Colonel Wakefield, to escape an adverse decision, had made a proposal and a promise to the Colonial Government. In consideration of the position of Englishmen induced by false pretences to emigrate to New Zealand to occupy lands to which the company had no title, the Governor had accepted Wake- page 309 field's word. Trusting to the influence of the company in England, and not estimating sufficiently the difference between the Lords Russell and Stanley, Wakefield intended, if not to break it, to postpone to the Greek Calends the fulfilment of his promise. The conversation in which Mr. E. J. Wakefield tauntingly asked Rauparaha why he did not stop ships with his canoe had just taken place, when Mr. E. J. Wakefield was deputed by his uncle to attend Mr. Spain's Court. He delayed so long that Mr. Spain felt compelled to open and close the proceedings without him. At Wakefield's request the Court was re-opened, and a native witness called by him was heard. He promised to produce further evidence, but day after day elapsed without his doing so. Spain grew weary of waiting, and moved southwards, telling Wakefield that if he would follow with his witnesses they would be examined on the way, or at Port Nicholson. The nephew, worthy of his uncle, went away northwards, and, in his book (subsequently published) imputed Spain's anxiety to depart to a desire to escape the privations of life at Wanganui. Spain in his formal report declared: “It appeared to me that Colonel Wakefield purposely avoided both the settlers and the natives, and that he was doing everything in his power to put off the settlement.…”The company's claims at Wanganui were found by Spain defective “to the extent of millions of acres. They only established a claim to land on one side of the river.”Again, a provisional decision coupled with further compensation to unsatisfied Maori owners seemed to Spain the only means of doing justice. Again, it had been found that, as between Colonel Wakefield and the Maoris, truth was on their side.

Spain went to Manawatu and there saw Rauparaha, fresh from the dialogue in which E. J. Wakefield spoke of the “hyena-like scream”with which the Maori said his countrymen would fight about their land. Rangihaeata was there, and was violent and intoxicated on one occasion. “I, however, treated them with firmness (Spain's Official Report), got them to submit to give evidence, and ultimately convinced them of the just intentions towards them of the British Government. I also obtained their confidence and their unqualified consent to abide page 310 by my decision.… Though Porirua is only eighteen miles from Wellington, and I remained there a fortnight, Colonel Wakefield never came near the place, or sent any agent to conduct the company's case. Rauparaha and Rangihaeata both repeatedly asked me why he did not come and face them in my Court, and hear what they had to say about the alleged sale to him?—that I made them attend, and why did I not make him do so also? These chiefs claim the Wairau on the Middle Island, and they pressed me to cross with them from Porirua and settle the question. I explained that I had advertised to hold another Court at Wellington,… after which I would come to the Wairau. This appeared to satisfy them, and they promised me they would not go near the Europeans at Wairau until I went there.”

In another passage Spain added: “Not long before, Rauparaha and Rangihaeata went to Nelson, where Captain Wakefield, the company's resident agent, wished to make them a payment for the Wairau, but they positively refused to sell it, and told him they would never consent to part from it.”Captain Wake-field, nevertheless, sent surveyors to Wairau while Spain was holding his Court at Wanganui in April, 1843. At Wellington, Spain vainly attempted to put into operation the arbitration for further compensation sanctioned at Wakefield's request. Wakefield on the 24th May pleaded for delay. He expected despatches from England, where the Directors were in correspondence with the Colonial Office.

Thus stood the company's affairs before the fatal encounter at the Wairau, which, like the bursting of a shell, was to startle not only Maori land but England and her colonies, and to show what dangerous materials the rashness and bad faith of the agents of the company had heaped against themselves by their contempt of the treaty of Waitangi, their disrespect for a Court held in the name of the Queen, and the scarcely-veiled rapacity with which they clutched at Rauparaha's lands in order, in Colonel Wakefield's own words, “to put an end to his reign.”

Before visiting the field of blood it is necessary to glance at the general condition of the islands in May, 1843, when Spain was holding his Court at Wellington. Lieutenant Willoughby Shortland, R.N., the Colonial Secretary, became administrator page 311 of the Government on the death of Hobson. Against him the accusation was made that as he had entered the navy when a boy, he could not be otherwise than ignorant. He had nevertheless been assailed for misleading Hobson. Another important personage stepped upon the scene in 1842. The busy brain of Gibbon Wakefield had seen that true happiness could not be attained in any community without consideration of its spiritual welfare. He stirred his allies.

A “Church Society of New Zealand,”numbering amongst its promoters the Earl of Devon, Lord Ashley, and many members of Parliament, had in 1840 applied to the New Zealand Company for aid in procuring the appointment of a bishop or bishops. The Bishop of London applied to the Archbishop of Canterbury for help.

The Secretary to the New Zealand Company, remarking that in the Colonization Bill, prepared by the company in 1837, they had embodied a similar proposal, guaranteed the effective assistance of the company, and an endowment of land for the new bishopric. Lord John Russell in July, 1840, refused to recognize a transaction which assumed that the company had territorial or other rights in New Zealand. He had not received Hobson's official report of the treaty of Waitangi. When a British colony might be founded he would discuss the subject with the Archbishop of Canterbury.

Gibbon Wakefield said (in his ‘Art of Colonization’): “Everybody laughed at us. We could hardly obtain any serious attention to our proposals. The Colonial Office, which hated our whole proceedings, sneered at the episcopal scheme… On account of our scheme of a bishopric the newspapers turned us into ridicule;… public men of mark refused their support generally,… at length, one of us, Dr. Hinds,1 the present Dean of Carlisle, converted the late Archbishop of Canterbury to our view. … In these labours it would be affectation to pretend that I have had any but the principal share.”

Others more influential on such a topic were busy. A Colonial Bishoprics Council was formed early in 1841, and the

1 Dr. Hinds was a member of the Committee of the New Zealand Association. In 1838, it published papers on New Zealand with “introductory observations”by him.

page 312 archbishops and bishops formally undertook the responsibility of applying funds. A bishop for New Zealand was at once seen to be necessary. George Augustus Selwyn, curate at Windsor, was chosen for the heroic work. He had won honours at Cambridge in the halls of learning as well as in athletic sports. Young as he was (thirty-four) none doubted his fitness.1 Earnest in mind, vigorous in body, indomitable in spirit, Christian to the core, he was to be received by the Maoris as a true leader of men, and to wield an influence over them for which the worldly-minded could not render a reason. He gathered funds for his diocese before he sailed in quest of it. Money was held in trust by Lord Devon, Archdeacon Hale, and Dr. Hinds. Lord Stanley sanctioned arrangements under which the company was to grant sums in the colony and to advance £5000 to the church on mortgage of the “native reserves in the company's settlements.”

The New Zealand Company, to whose proceedings at this period was appended a name, F. D. Bell, long to be known in the colony, and the Church Missionary Society, passed harmonious resolutions. The new bishop displayed business-like energy in England, and in May, 1842, was at Auckland. He had studied Maori on the voyage with the aid of a young Maori returning to New Zealand, and on the first Sunday after his arrival preached in the native language. He appointed the missionary William Williams archdeacon of the eastern district; he formed a school at Hobson's request upon the plan of King's College, London. He required every clergyman to learn Maori. He travelled with Chief Justice Martin amongst the settlements in the North Island. The greater part of the Maoris, he said, had publicly professed Christianity. He found the missionaries more than equal to his expectations. “As for the people, I love them from my heart, and my desire to serve them grows day by day.”

In October, 1842, he had made eight voyages, and had travelled by land from Wellington to Taranaki, in the company

1 He was selected for the office (before the Melbourne Ministry resigned) after his elder brother, William Selwyn, had declined it. When Sir Robert Peel formed his Ministry he made the appointment which his predecessor had contemplated.

page 313 of Maoris. His first visitation lasted six months, and nearly 800 miles were travelled on foot, and 250 in boats or canoes. Maoris admired and Englishmen respected him. In after years when a chief was told that a zebra was untameable, he said, “Ah! you never tried Bishop Selwyn with one.”His foresight as to the probable demands of his office was shown by his acquiring a knowledge of navigation on his first voyage, and putting it to use in navigating his missionary cruiser in the Pacific.

The Acting Governor was in a dubious position. The approval by Lord Stanley of Hobson's proceedings had not reached the colony when the Government devolved upon Shortland. The company's settlements were increasing. Forty-four vessels with emigrants had sailed, under charter or sanction of the company, to Port Nicholson, Nelson, and Taranaki, when Hobson died. The retainers of the company were nearly three times more numerous than the settlers at Auckland.

Shortland's first act was to apprise Colonel Wakefield (15 Sept. 1842), that he would fulfil Hobson's promises as to adjustment of land claims. He had an intricate question before him as to the status of Maoris. It arose during Hobson's lifetime.

Taraia, a chief in the Thames district, made a raid upon the natives at Tauranga, slew some, enslaved others, and indulged in the ferocious rite of cannibalism which Englishmen had deemed extinct. Hobson sent Clarke, the chief Protector of aborigines, to reason with Taraia. The chief said the English had nothing to do with intertribal quarrels or customs. If he had injured a Pakeha the Governor might meddle, but not with Maori matters. Clarke recommended (June, 1842) that force should be used in case of need to coerce Taraia, whose victims were Christians. He advised that the release of all prisoners and abandonment of land in dispute should be authoritatively enjoined. Hobson consulted his Executive Council. Clarke and Major Bunbury were summoned before it. Clarke said that any man attempting to summon Taraia would do it at peril of his life. Bunbury said he was ready to go with forty soldiers if required.

A letter from Taraia was subsequently produced: “I was page 314 angry about my land, and the bones of my fathers. Don't let the Pakehas presume with the Maoris. With the Governor is the settling of Pakeha affairs; it is with us to adjust Maori matters.”

Another chief wrote: “Friend, Governor, I care nothing about yours or the Pakeha's anger. I said nothing in the case of Maketu.1 It was correct in you to take ‘utu,’ payment, for the European killed (by Maketu). This is payment for my friends killed; also for my land taken. Yours was correct, as mine is correct.”

In July, Hobson sent Shortland to Taraia, who received him courteously. He had heard that soldiers would be sent to take him, so that he might “be hung like Maketu,”and coolly said, “If this be true, I shall take a few lives first myself.”Shortland protested that the Governor only wished to see the Maoris living in peace. Taraia retorted, “Why should the Governor love Wanaki (the slain chief) so much? What relation is he to him? I would not object to pay for the dead if all my relations are paid for too. Have they not eaten my mother? Has there not been war many years?”Shortland went to Tauranga, and found the injured tribes breathing fire and slaughter. He dissuaded them not altogether in vain. They finally asked for a Pakeha chief to assist in settling difficulties at Tauranga. Shortland urged Hobson to station in every district a magistrate who might by mild, just, and firm measures, assist in civilizing the “noble-minded and intelligent aboriginal race.”He thought more military force required, but that hasty interference in Maori quarrels might “draw down the resentment of a brave population.”In December, Shortland went to Tauranga as acting Governor to purchase land. The Maoris were in commotion. Tongeroa, a chief of the Arawa tribe at Maketu, had made a savage raid at Mayor Island (or Tuhua) upon the relatives of the men of Tauranga. Each tribe had seized boats belonging to Europeans. Shortland dissuaded Te Mutu, a Tauranga chief, from an avenging expedition, and sent two protectors, with his aide-de-camp, to demand restitution of a boat, and to express Shortland's displeasure at the outrages committed.

1 The murderer of Mrs. Roberton.

page 315

Tongeroa breathed resolution, if not defiance. Other chiefs were anxious to restore the boat, but almost all were determined to adhere to cannibalism. In Shortland's presence Te Mutu told the Protector, Clarke, that if he caught Taraia he would kill and eat him. “Pork,”said the men of Maketu, “is the food for the Pakeha, flesh for the Maori.”Shortland asked Major Bunbury for all the available force (a detachment of the 80th regiment) at Auckland, and wrote to Sydney entreating that more soldiers and a ship of war might be sent to “overawe the natives.”Major Bunbury at once went to his aid, received his thanks, and was entrusted with the preservation of the peace at Tauranga, but told to avoid collision with the natives. No attempt to seize the offenders was made.

Shortland's jurisdiction over Tongeroa was impugned by Swainson the Attorney-General. The Ngati-wakaue (or Arawa) tribe had always asserted their independence, as did the Hauraki with whom they were allied. Shortland doubted the legality of interference as well as his power to interfere effectually. He wrote to Sydney for reinforcements, and did not attempt to execute a warrant against the Maoris. Returning to Auckland he called his Council together, and laid before them Swainson's opinion—that the British Government had acknowledged the sovereignty and independence of the New Zealanders; that the title of England to a portion only of the islands had been acquired by treaty, and that only those natives “who have acknowledged the Queen's authority, either by becoming parties to the treaty or otherwise, can be considered British subjects and amenable to British law.”Great Britain had disclaimed seizure, had gained no title by conquest, and was bound by the treaty of Waitangi.

The Executive Council put grave questions to Clarke, the Protector. Did the natives who signed the treaty acknowledge their subjection?—They did. How far and to what extent did the various tribes acknowledge the Queen's supremacy?—Only those who signed the treaty, and they only in a limited sense, guaranteeing their own customs to them, and confining British interference to “grave cases such as war and murder, and all disputes between natives and Europeans.”The natives who had not signed held that they had a common right with page 316 the British to interfere in disputes between the tribes and Europeans, but limited “British interference to European British subjects.”In your communication with the natives, have you asserted that they are British subjects, and the right of the Government to interfere with them as such?—He had, but “very few even of those who signed the treaty”would acquiesce except as to disputes “between Europeans and natives.”What would be the effect of admitting that any tribe was not amenable to British law?—It would be destructive; and, as colonization had been begun, “every honourable and humane means should be used to get the tribes universally to cede the sovereignty where it has not been ceded.”“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?”—Such a course would be considered by the natives a breach of faith, would lead to war, and although the result might be ruinous to the natives, it would be inglorious to Britain.

Shortland then put questions to his Council. Are the islands of New Zealand British territory? Were all the natives British subjects and amenable to British law? Could Tongeroa be apprehended and tried for the murder at Tohua? Was Tohua British territory? Could Tongeroa be proceeded against for taking the boat? Should the boat be recovered? Would it be expedient to apprehend and try him for the murder? What course ought the Government to pursue, having regard to pledges made by the Protector under Hobson's authority and to the notices in the ‘Maori Gazette’? “Whether it would be advisable to interfere for the suppression of native wars and cannibalism?”

Shepherd the Treasurer, and Swainson the Attorney-General, differed on most points. The former considered the whole of New Zealand as British territory, and its natives amenable to British law. Tongeroa could be apprehended legally, and he would apprehend him if he could; but without more force he considered it would be inexpedient to attempt it. He would employ force when more military power enabled him to do so page 317 successfully. The latter replied categorically that the islands were not British territory; that from discovery, cession, assertion, and occupation, England's title was good against other nations, but that as to those tribes who had never ceded authority, and had refused to acknowledge the Queen's authority, she had not the right, nor could she, in good faith, impose on them her penal code. Tongeroa could only be apprehended if the sovereignty of Tohua had been ceded. Swainson thought it had not. He would use all means except force to recover the boat, but would not apprehend Tongeroa. If there were even a reasonable doubt of his being amenable to law, it would be unwise to try him, for if he demurred to the jurisdiction and the plea should be allowed, mischievous results must follow. He would trust to persuasion, example, and civilizing influences to suppress wars and cannibalism; resorting to force only when “all arts of persuasion and kindness had proved unavailing,”as Lord Normanby had enjoined Hobson to do.

Shortland did not argue with Swainson, but he thought as deeply as he could. He probably had not read Vattel, Puffendorf, or Grotius. If he had looked into Blackstone he would have been sorely puzzled at the definition of law which it was his supposed duty to enforce:—Honeste vivere, alterum non lœdere, suum cuique tribuere. Golden maxims—which from the days of imperial Rome had qualified the brutal tendencies in man: and which were never more required than in New Zealand. To live honestly was no doubt Shortland's desire. But how could he avoid hurting the natives, with a rapacious crowd of his countrymen flocking to divide the choicest morsels of the soil amongst themselves? How could he give the natives their due, when it was clear that, whether by design or ignorance, Colonel Wakefield, as agent for a powerful company, was unwarrantably claiming lands cherished as heritages or venerated as burial-grounds?

Shortland went by a short cut to what he thought his duty. He wrote to Lord Stanley that he had determined not to adopt Swainson's opinion, but “to continue to govern until further commands on the assumption that the whole of New Zealand is a British colony, and that all the New Zealanders are amenable to British laws.”But he did not venture to execute a warrant page 318 against Tongeroa, as “greater evil would arise from his being brought before the Supreme Court and dismissed than by allowing the natives for a time to continue their wars.”

Lord Stanley made short work with the matter. The Great Seal had been attached to commissions for government of New Zealand. No subject of the Queen could impugn their validity. The justice or policy of the course pursued he would not discuss. It was sufficient that Her Majesty had pursued it. New Zealand and its. inhabitants were within the British dominions, and neither Mr. Swainson nor any other person opposing this fundamental principle could be permitted to act any longer under the Queen's commission.

What was to be done if a judge should lay down the law differently, the imperious Secretary did not state. He saw objections indeed to his positive and sweeping theory. No Governor could act upon it. The tribes were too numerous and warlike to be controlled. Therefore Lord Stanley evaded Swainson's logical deduction, that if New Zealand was completely under British law the natives must be liable to its penalties and amenable to its tribunals. He could not perceive the necessity. Without quoting any writer on jurisprudence, without (it would seem) referring to a law officer, he laid down an axiom that there was “no apparent reason why the aborigines should not be exempted from any responsibility to English law or to English Courts of justice in all cases in which no person of European birth or origin had any concern or interest. Never was more glaring inconsistency displayed in the name of the Sovereign. The judges in Sydney had previously decided that the natives were amenable to the law for all offences inter se, and the missionary Threlkeld had vainly protested against the anomalous consequences of such a rule where native witnesses were rejected.

Judge Willis, at Port Phillip, in 1841, had held a different view, and when Governor Gipps referred the subject to England with a view to obtain the opinion of the law officers Lord Stanley, in 1842, declined to ask for their opinion. Yet in the following year he could see no reason why a course should not be followed in New Zealand diametrically opposed to the one he had enforced in Australia in defiance of the opinion of a judge page 319 who, though eccentric, was known to be able, and who in this instance, spoke as the friend of outraged humanity.1

Seldom indeed has the maxim that “he will take who has the power”been rejected by the strong. In the United States, where, if anywhere, the essence of the Constitution demanded a more philosophical result, the highest Court affirmed the principle (Johnson v. McIntosh) that the European discoverer had a right to grant the soil while yet in possession of the natives, subject to a native right of occupancy, which was like that of the lamb confronted by the wolf. Chief Justice Marshall broadly decided that England as well as Spain, France, and Holland had exercised this right on the American continent, and that the United States succeeded England in its enjoyment. It had never been doubted, he declared, that they had “exclusive power to extinguish”the native right of occupancy. “All our institutions recognize the absolute title of the Crown, subject only to the Indian title of occupancy, and recognize the absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians. The United States have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired.”Though this opinion in one sense comprehends the Maoris in a manner which might be deemed restrictive, in another it maintains their freedom from encroachment. It broadly holds

1 Addressing a native convicted of murder in Melbourne, Willis said: “For protection and for responsibility in his relation to the white man, the black is regarded as a British subject. In theory this sounds just and reasonable, but in practice how incongruous becomes its application!… As a British subject he is entitled to be tried by his peers. Who are the peers of the black man? Are those of whose laws, customs, language, and religion he is wholly ignorant—his peers? He is tried in his native land by a race new to him, and by laws of which he knows nothing. Had you, unhappy man! had the good fortune to be born a Frenchman, or been a native of any other country but your own, the law of England would have allowed you to demand a trial by half foreigners and half Englishmen… Without a jury of your own countrymen—without the power of making adequate defence by speech or witness—you are to stand the pressure of everything that can be alleged against you, and your only chance of escape is not the strength of your own, but the weakness of your adversary's case.”

page 320 that the Colonial Government can assert no title at variance with that of the imperial authority which descended to it; and there can be no question that the rights of the Crown in New Zealand were defined in the treaty of Waitangi.

It has been mentioned that Colonel Wakefield and Spain conferred with the Government at Auckland after Hobson's death. About the same time, the first mayor and aldermen of Wellington were elected, and Judge Martin held his first Court there. Colonel Wakefield was twenty-four days at sea between Wellington and Auckland, and was half that time at sea on his return voyage. He found no fault with Shortland, who promised to visit Wellington after calling at Tauranga to arrange a land-purchase from the natives. Tongeroa's proceedings had compelled him to return to Auckland to study problems as to the rights of nations, but he arrived at Wellington in January, 1843, and was received with more loyalty than had been accorded to Hobson, although he had been the agent sent by Hobson, in 1840, to sweep away the flag set up by the company and to rear the Union Jack in its stead. He visited Akaroa and returned to Wellington, sailing thence by way of Nelson and Taranaki to Auckland. A shadow of coming danger was cast across his path by Colonel Wakefield, who wrote that “unless some decisive measures were adopted to repress native aggressions, they would end in collision between the two races.”

Mr. Clarke, junior, had been appointed Protector of aborigines in the district, and the company's friends somewhat resented the elevation of so young a man to a post which seemed to place him over Mr. Halswell, the Commissioner for native reserves. Shortland referred to England Wakefield's remonstrance about native aggressions.

There was an agent for the company at Taranaki, named Wicksteed. In July, 1842, he reported violent proceedings, to repress which he had induced Mr. Cooke, a magistrate, to swear in special constables, and with an armed band of twenty-eight men had made a demonstration at the Waitara. He made presents of tobacco and blankets after exhibiting his forces. Flushed with this success, in December, 1842, he pulled down a fence erected by Maoris for cultivation purposes on a town section which he wished to hand over to a settler. Without page 321 any appeal to the civil power, Wicksteed pulled down, and with equal pertinacity the Maoris again built up, the fence. On the 24th December, with a stronger party, Wicksteed returned; and, not without a scuffle, removed the fence. A young chief brandished his tomahawk over Wicksteed's head, and was given into custody of constables whom the police magistrate, Mr. King, had ordered to be in readiness. By a burlesque of justice Wicksteed charged the native with assault. The Bench dismissed the case, and Mr. King reported: “We took the opportunity of pointing out to him the illegality of his conduct.”Wicksteed complained that King gave him “the least possible assistance.”

In February, 1843, Shortland called Colonel Wakefield's attention to the matter. He advised that the settlers should show forbearance until the land titles could be adjusted and defined. He did not prevail; but he was on such general terms with the company as prompted Colonel Wakefield to write (27th January, 1843): “The cordial manner in which His Excellency has proffered his assistance to enable the company to fulfil its engagements to the public, leads me to hope for his sanction to a speedy and satisfactory settlement”of the land claims. Shortland (April, 1843) recommended relaxations as to the time within which the company were bound to select their lands, the shape of the blocks, and the quantities and localities due to them under Mr. Pennington's award.

Lord Stanley's instructions on these points reached Short-land's successor in the following year. Another matter referred to England, in 1843, was the question whether the native reserves were to be deducted from the total grants to the company. Spain thought they should not be deducted, and Wakefield once thought the same; but his appetite had grown, and he abhorred any reduction in the slices carved out of Maori territory by his vague bargains. Lord Stanley had no doubt that the deduction was contemplated, and ought to be carried into effect.

It may be remembered that Colonel Wakefield himself proposed, and was grateful to Spain for recommending and to the Government for consenting, that his vicious bargains might be recognized on condition of further compensation being paid to page 322 the natives on award under arbitration. When Wakefield found that substantial payments would be needed to comply with his proposal, he strove to escape from it. The composite rights of Maori ownership were fitted to breed doubts, and Wakefield's shuffling was more multiform than they. Ever as a last resort he had in view an assault by his masters in England upon Lord Stanley. Meanwhile by false promises, broken faith, and procrastination, he withstood a just settlement in the colony.

Spain recorded the obstructions he encountered. He wrote to Shortland: “It is quite clear to me that Wakefield feared to meet both the settlers and the natives.… The untenable reason that he assigns for now refusing to carry out his agreement with you, is absurd, and is founded upon general instructions which he alleges to have received from London, not to make any further payment to the natives, such instructions having been received months before this specific agreement was entered into; Colonel Wakefield having entered into it at his own special request to be allowed to do so.… I therefore contend that the company is legally and morally bound by the act of their agent.… The natives who have been, through their Protector, parties to the negotiation, are naturally most indignant at Colonel Wakefield's refusal to pay them the compensation to which I may decide they are entitled.”Wakefield remonstrated against the “unexpected amount”of the award and the “exorbitance of the insatiable demands”of the natives.

Spain, writing (May, 1843) confidentially to Shortland, vigorously exposed the “wretched subterfuge”resorted to by Wakefield to avoid payment of awarded compensation. Though pledged to do so, Wakefield would not refer to Spain's decision any difference between himself and Clarke, the Protector, as to the amount to be paid.

“The most annoying part of the business is that after encountering all sorts of opposition and difficulties, and just as I had got all the natives to listen to reason, and ready to settle the question, Colonel Wakefield should draw back and refuse to fulfil his engagement. My Court will close here on the 19th June, after which I must proceed to Queen Charlotte's Sound, Nelson and Taranaki, for although Wakefield pretends page 323 to say he has called all his witnesses he wants examined, yet he has not called a single native witness in support of the deeds executed in Queen Charlotte's Sound and Taranaki, and therefore I cannot proceed to make a final report on those cases without proceeding to those places and examining the native witnesses whose names appear to those deeds.”

In the northern part of the island no such difficulties were encountered as had been brought about by Wakefield's proceedings. Many contracts with the natives had been entered into there by persons who knew the Maori language and people, and proofs were accessible to test other claims made with less tact or prudence. One thousand and thirty-seven claims were referred to the Commissioners, Godfrey and Richmond, who were able in May, 1843, to report the settlement of more than half of them. Sir George Gipps' Proclamation had dissipated a cloud of claims, but even amongst those put forward the alleged consideration proved the recklessness or cunning of claimants.

Two instances, taken from one place, Hokianga, may be compared. For a payment of £24, or value in kind, one man claimed to have bought 1500 acres. The Commissioners awarded 96 acres. Another claimed to have bought 200 acres for £233 10s., or equal value, and the Commissioners awarded all that he claimed. He was the Pakeha-Maori, F. E. Maning, the author of ‘Old New Zealand.’ In toiling through musty tomes it sends a pleasure to the heart to find that amongst those who did not strive to overreach the Maoris was the man who best knew, and could most easily have traded upon, their ignorance of the significance of the parchments they were induced to sign.

Individual claimants in the Auckland district could bring no parliamentary influence to bear to coerce the Government, as Colonel Wakefield hoped that Gibbon Wakefield's talents, aided by influential friends, would enable him to coerce it. Shortland was distracted with anxiety. It must have been feared, if not seen, that the concession already made as to occupation of disputed land and subsequent compensation would create distrust and feud. There was a more immediate danger. While resorting to what Spain denounced as “wretched subterfuges,” page 324 and declining to produce evidence, Colonel Wakefield connived at active and unlawful steps taken by his brother and others at Nelson. Surveyors were sent to mark out sections for settlers at the Wairau, Cloudy Bay, to which Rauparaha and Rangihaeata openly asserted a title, and whither Spain was pledged to proceed to inquire into the company's disputed claims. Only in one direction could Shortland look for support. Lord Stanley's reprobation of the fraudulent designs of the company had been sent, not only to Mr. Somes, but to the Colonial Government, and the subordinate could act confidently when he knew that his superior was actuated by principle and by courage. The details of Government with which the Colonial Office dealt may be surmised from the fact that while millions of Englishmen held their breath in suspense for the fate of their countrymen sent under Nott and Pollock to avenge the massacre at Cabul; while Sir Robert Peel was reconstituting the basis of taxation; while Mr. Duncombe was pressing Chartist petitions upon the House of Commons; while passages of arms were occurring in South Africa and China,—Lord Stanley had to direct the New Zealand Government how to prevent local disorder. Maoris, indignant at the desecration of a burial-ground, had committed an outrage at Kaipara. Lord Stanley considered it of the “greatest consequence to lead the natives to be satisfied with our mode of administering justice and to abandon their own.… I am not clear whether under any local enactment the violation of tapu would or would not be punishable; but it should be made so if it is not so now, and a punishment should be attached to the act which might seem disproportionate to the nature of the offence, or the natives will not be restrained from taking the law, or rather vengeance, into their own hands. In this case, however, European feeling as well as that of the New Zealanders is in favour of protecting the sanctity of the dead.”1

It may be well to summarize in this place the facts connected with the Manukau Company, which sprung into existence before Gibbon Wakefield launched the New Zealand Company, and grew out of his earlier efforts with Lord Durham to form the New Zealand Association in 1837.

One Mitchell had, in 1835, purchased land at Manukau from

1 Despatch, 5th October, 1842.

page 325 the Maoris. The company bought from him. The natives admitted that they had sold some land, but much less than the quantity claimed. When the ship ‘Brilliant’ arrived, in 1841, with sixteen men, eight women, and three children, as settlers of the Manukau Company, Hobson did not know where to put them. In an account, furnished by Major Campbell in 1842 to Lord Stanley, on behalf of the company, it was urged that the company purchased in 1837, after the independence of the New Zealanders had been officially declared; that in 1838 they bought further rights from the executors of a British subject (Mitchell); that in 1839 they sent out a respectable agent to inspect and take possession; that in 1840 they issued a prospectus; that they sold eighty-four sections, of 100 acres each (out of 220 advertised for sale), and that when they became aware of the rules to be applied to British subjects, they “desisted from selling, anxious not to embarrass the Government or mislead other individuals.”The original purchase-money for land had been less than £1000.1 Alleged expenses raised the claims of the Manukau Company (under the absurd arrangement made by Lord John Russell with the New Zealand Company) to £10,457 5s. 3d. The accountant reduced them to £4980 19s. 3d., which by Lord John Russell's arrangement still entitled the company to ask for 19,924 acres. Lord Stanley consented in December, 1842, to the accountant's award, with the limitation that the assignment would be made “from the actual lands to which the company may have been

1 The brief statement of the cost of colonization in this instance may be given:

Purchase from Mitchell's trustees£50000
Cost of conveyance3926
Captain Symonds' further purchases40000
Costs, &c230096226
Charges of emigrants, stores, &c., per ‘Brilliant’947171
Charges per ‘Osprey’ and ‘Louisa Campbell’71000
Sundry vessels67500
Liability for further expenditure in emigration1575003907171

Expenses in New Zealand and in London (with interest) made a total claim of £10,457 5s. 3d. On examination, Mr. Pennington (Lord John Russell's nominated actuary) cut down the expenditure allowed to £4980 19s. 3d. The names most prominent in the company were those of Major Campbell, Captain Symonds, and Mr. Roy.

page 326 able to prove a valid title.”Meanwhile, the company had received £9350 in London for land which the settlers on arrival could not find. It is almost needless to say that when the claim was examined on the spot, the valid title shrank to very small proportions, and would not have sufficed to furnish homes for one-fourth of the settlers from whom the company had taken money in England. Hobson had much trouble in the matter, and his successor, Captain Fitzroy, pronounced a decision against which the company appealed to Earl Grey, who refused (27th February, 1847), to reverse it in terms which are descriptive of many New Zealand claims.

The company had been compelled to abandon their attempt to define their boundaries, their deed was mutilated, there were palpable omissions; its purport was utterly denied by the natives. Other natives were believed to be owners of the greater part of the land; but (and here may be read the vice of Lord J. Russell's regulations as contrasted with the virtue of Sir G. Gipps') the Earl added—“While I must for these reasons decline to consent that the decision should be set aside or re-opened, I am of opinion that the Manukau Company are entitled in virtue of the precedents which have been established, and the principles which have been admitted in this and similar cases, to receive such a number of acres of land in New Zealand as may be equal to four times the number of pounds sterling which it has been ascertained that they had expended in emigration to that colony before the enactment of the Australian Land Sales Act.”

Delay thwarted even this solution of the company's troubles. In June, 1850, the Governor informed Earl Grey that he could not ascertain that they had any legally authorized agent in the colony; that “their operations have been for several years suspended, and the Government, finding that those of their settlers who had arrived in the colony had not obtained land from the company, gave them lands in exchange for their claims. I believe that there are no settlers on the lands of the Manukau Company.”The claims of the New Zealand Company were more vicious than those of its contemporary; but the Manukau Association had not the parliamentary support which in the hands of Gibbon Wakefield had sufficed to control Lord John Russell.