TO THE NATIVE ASSESSORS.

Maori Messenger : Te Karere Maori, Volume 1, Issue 10, 10 May 1849, Page 2

TO THE NATIVE ASSESSORS.

My Friends,—His Excellency the Gover-nor-in-Chief has directed me to inform you, that it is his intention, without any further delay than may be rendered necessary by events, to establish, in all fit and proper places throughout these islands, Courts for the administration of Justice, in civil case 6, between nalivo and native. His Excellency has also directed me to acquaint you with the circumstances which have hitherto prevented, ;is well as the motives which now induce him to decide upon, the institution of these courts, and to give you such general information concerning your duties as assessors, as can be conveyed, in a convenient and intelligible form, through such a medium as the present communication. Upon such of a general,,nature, relating to your duties, as, from design or oversight, may not he adverted to in this letter, anil, upon all matters of form and detail, your European colleagues will be specially charged by his Excellency to give you all the information which you can require. Before his Excellency's arrival in New Zealand, many debts were due to native* by Europeans, and many agreements had been made between individuals of the two races, the payment cr performance of which, was either cunningly evaded, or openly refused, by the European parties. The legal means »f recovering debts, and damages for breach of contract and other civil injuries, which were then in use in this country, were not only tidiouo, complex, and expensive, bin. otherwise wholly unsni'.ed to the attainment of the cuds of justice in civil eases in which natives were concerned. E«erv such case, tlinn brought to a hearing, must have been decided by the pure principles and rules of tin- common law of England, while lite unlive party to the »uit, being wholly ignorant of that positive code, and palthularly of its inks of evidence, mu<t, when the circuinstanci-s, out of which the suit arc»<', happened, have been unable to provide for his lutiire interests, by the necessary attention •» the requirements of the luw'in each particular case, whether in matters of form or of sub-Unre. I:i thi* slate, of things, intending native litigants were, in almost every -institute, persine'd by tlnir European friends to await with pith nee, a modification of the law, rather tltiiii commit the fortunes of their suits to modes of decision, the loss of time and money attendant upon which wen- matters of inferior considers)i m, when compared with their inability to reach the re ••! merits o< the cases, Tho pro'ractul existence of this prac'ic;il grievance must, it is reasonable to suppose,

have been to you, and the natives generally. I a subject of just astonishment. It would ba impossible lor me, in the compass of this < letter, to satisfy your curiosity fully, as to the reasons of this npparent injustice. It will, 1 trust, he sufficient for nic to observe, generally, that changes in European systems of law can seldom be brought about speedily, that their accomplishment commonly requires, not only time, but thought, management, and a concnuetice of favourable circumstances, and that if the Kuropr.vi, instead of the native, population of these islands, had been concern'd 'ii ih'j particular change which lam considering, it is highly probable that it ■< onld not have been elicited so soon as it has been. , Not long after the commencement of Ins Excellency's government, he caused, as you are aware, an ordinance to be enacted, which, amongst other things, provided for the administration of cheap, prompt, and complete justice, in civil cases, between Natives and Europeans. Under this ordinance, some hun dred cases, which, when the enactment was made, had been outstanding, have been adjudicated upon, while all the cases of subsequent occurrence have been disposed of, as they urose, effectually and without delay. There is not a single native tribe in New Zealand which lias not already felt the benefits of the new law, the whole operation of which, as ivell as nil its effects and consequences, have, at the same time, given unmixed satisfaction to all the good and sensible Europeans who live mnongsl tliem. Tiles'; results have, naturally, been a source of just pride, and of a p.culiar kind, as well ns degree, of pleasure , to his Excellency, who, on account of the important native interests involved in, and dependant upon it, had all along watched the progress of the new law, with especial interest, , aiuf intense concern. Nor, for reasons which will readily occur to you, was his Excellency , less pleased with the accounts which reached him, from all quarters, of the intelligence and ( love of truth almost uniformly exhibited by the natives, whether as partie.. to the suits or , as witnesses, of the moderation of their demeanour and conduct upon success, and of their decent resignation under adverse judgments. In the new ordinance, provision was also made for the administration of justice, in civil rases, between native and native. Several graigj considerations, however, led his Exceli lency to the conclusion, that this part of the ordinance could not be safely brought into immediate operation. The disposal of the vast number of outstanding cases between natives and Europeans was a duty of immediate nnd pressing necessity. Again, the long-continued existence of so many civil wrongs, without any attempts made to redress them, had disturbed the good feeling which bad existed letween the two races, and weakened the confidence of the native population in the power of thy government to protect them from civil injuries strained at the hands of Europeans. The re-establishment of the good feeling between the two races, and the revival of naiive confidence in the power of the (,'overnment, were steps, in some degree, csseniially preliminary to the practical adoption of any measure in which natives only would be concerned. His Excellency was, also, strongly impressed with the conviction, that the habit of submitting their dispntes to judicial tribunals, which so many natives, from all parts of the islands, would acquire in the course of their litigation with Europeans, and the knowledge of legal f. rins and usages, which they would obtain in the same way, could not but niateiially facilitate the introduction and operation of courts of justice, established lor their own exclusive benefit. Finally, his Excellency was of opinion that, however convinced he himself might be, that nothing but good could follow liom the introduction of the now courts, it would, nevt rtheless, he a violation of the courtesy due to the native chiefs to introduce them, without previously ascertaining their opinions and wishes upon the subject—a step which, for its proper management and completion, would necessarily require time. The consent of the chief's having, as you know, been obtained, there remains no impediment, at present known to his Excellency in the way of the immediate establishment of courts for the administration of justice, in : civil cases, between naiive and native. The new courts will, thus, be introduced under circumstances, in every way, as auspicious and favourable as the most requiring friends of the natives could desire. Those natives who have already submit cd their civil disputes with Europeans to the decision of judicial tribunals, uhoby presided over by English magistrates, will, it is to be presumed, with at least eqanl readiness, submit their'civil dispute* with other natives to the decision of similar tribunals, in which their own chiefs form a majority of the judges, ar.d encourage all others to follow their example. The constant intercourse of those natives who hare acquired some, knowledge of the forms and usages of lO'tns of justice, with thosu who arc wholly ijSiioru-.il of them, will, after a little time, pre-

vent tlic latter from regarding the forms nnd practice of the new courts as unmeaning and arbitrary innovations. Any remaining scrupics relating to these courts, not removed in this way, will probably be dissipated by the nuiliority with which your own sanction and approbation will invest them. _ Lastly, the provision of the o/dinance, which prohibits the execution of a judgment until the two native assessors have agreed, in effect, declares, that no native can be injured through the medium of lite court, unless by the consent ol all the judges of his own race who sit in it a provision eminently calculated to recommend the «hole measure to the mass of the native population, and which it will, therefore, be youi duty to impress upon their minds, upon every fitting- occasion. Having explained to yon the circumstances which have hitherto retarded the establishment of courts for the administration of justier, i" c ' v 'l cases, between native and native, and the motives which now induce his Excellency to establish litem, I proceed to give you Mich general information concerning your leading duties as assessors, as my limits will permit. All laws are intended, by the legislatures which enact them, to be permanent, uniform, and universal rules, for the guidnnce of the civil conduct of those for whose benefit they are passed- But, when they are ndmiuislered under the influence of private interest, fear, prejudice, or passion, they cease to be fixed and invariable guides, and become precarious and oppressive. Laws, thus administered, gradually discourage, and finally extinguish, "all honest industry and enterprise. For, men, not knowing |n hat to expect from the law, will not knuw what to do, until nt length uncertainty, inactivity, and fear, pervade the whole community. Corrupt judges, by poisoning justice at its source, are able to frustrate the benevolent intentions of the legislature, and to convert institutions, intended and fitted to be blessings, into scourges of the direst form. The first, nnd most importnnt, duty of a judge is, therefore, to administer the law honestly, and without fear, favour, or malice, and hence the ordinance, under which you are appnin.ed, prescribes that the native chiefs, selecied to act as assessors, shall be those " of best repute in their respective tribes," ■, In every civilized community, there aroA always many persons who apply themselves exclusively to the pursuit of legal knowledge. In such communities it is easy to find persons, duly qualified by legal learning, to act as judges. In the case of the native population ol these islands, it is neither easy, nor even possible, to find such men. It will be absolutely necessary for you, in the performance of'your dulits, to acquire the legal qualifications of judges, and, in judging, to learn to judge. This circumstance, which, in the minds of superficial thinkers, would assume the appearance of a fat il objection to rhe estu. blUhment of the new courts, really presents little or no difficulty. If the introduction of these courts was deferred by his Excellency, until native chiefs could be found, duly qualified by legal learning to act as assessors, it is maniftst that a measure, above all others, eminently calculated to improve and civilize the native population, could never be brought into operation at all. Further, the difficulty, or anomaly, will plainly be of ettly letnpoiary duration, while the amount of inconvenience entailed by it upon the litigants will, it miy be fairly presumed, he reduced to perfect insignificance, by the n ti Hi re of the law to be administered, which is that of equity, conscience, or natural justice, and by the constant presence in each court of n European judge. I have now, therefore, to direct your attention to those qualifications of a legal nature, the acquisition of which will he indispensably necessary to an easy and honest discharge of your duties. , In order that you may not assume powers not granted to you by the legislature, or refuse justice to those who have n right to claim *it from you, it will be necessary for you to ' acquire an exact knowledge of the limits of your jurisdiction, which, by the oidinance, is : confined to " disputes and differences, of n civil nature, be.tween native and native." When the distinction between civil wrongs and crimes is palpable, you can already decide with accuracy, which is the civil wrong, and which the crime. But, as the graver civil ' injuries and the lighter criminal offences ap- ' preach one another, the boundary between ' them becomes more shadowy and indistinct. ' the present state of your knowledge, it > whjild he impossible for me to explain to you ' the nice points upon which the distinction between evil wrongs and ciiihes frequently de- t ponds, or the reasons of the diU'ercut ways in r which they aie treated, and of the very dif- I ferent lights in whcli they are ro.ardcd, by 1 the laws of civilized communities. In the I absence of an amount of illustration and ex- l planation which could not be introduced into n this letter, the most approved definitions of t civil injuries and crimes would confuse, rather J tl:-n instruct, you. Von will gradually ac- t quire - knowledge of the disti- ction between t

them, anil of the different kinds of each, l>y inquiry and reflection, which will, I trust, he stimulated by your curiosity and zeal. In the mean tints, your European colleagues trill he specially charged by his Excellency to see that the jurisdiction of the court is confined within its proper limits, and to give you all the information concerning the subjects to which I have heeu adverting, that volt can require. In the course of administering justice between litigating parties, there are two successive objects—to ascertain the subject for decision, and then to decide. In the superior courts of Kugland, the litigating parties are confined to a technical system of alternate statement, which, of itself, and independently of the court, dcvelopes the subject for decision, lint, a; such a system could not he introduced into your courts, il will bo the province of the judges to extract the subject for decision from the contending statements of the parties, when they are examined at the hearing of the cause; Two of your principal duties will, therefore, be, to familiarise yourselves with the method of ascertaining the subject for decision, nnd with the method of deciding that subject. At the hearing of the case, according to the practice of your courts, the party who prefers the claim, and his witnesses, will be examined by the court in the first instance, and then the party against whom the claim is preferred, and his witnesses, the answers to the questions of the judges being, as they are given, recorded by nn officer of the court, and the litigating parlies being examined, not merely ns witnesses in their own behalf, but wi-.b the special viuw of developing ihe subject for decision- When the cxnmiir Uion of the parties and their witnetnesses is completed, il will he the duty of the judges to analyse the recorded statements of the parties themselves, with the view of separating the undisputed and immaterial mutter from the rest. The milter remaining after this separation trill consist of some point or points, affirmed on the one band, and denied on the other, and will, if the cx-.unini.tam of the patties has been judiciously managed, be the subject for decision. Your vigorous observance of this method of arriving at the subject for decision will, for some time, be prudent, and perhaps even necessary. But when you have acquired experience in the performance of judical duties, you will, generally, be able to seize the subject* for decision during the hearing, without that subsequent analysis mid separation jn-l described. The acquisition of this power of delecting the matter at issue during the hearing, with precision and quickness, is an object of great importance to the judges ol such courts as yours, in us much as it enables them more cfiectually to examine the witnesses on each aMc, with immediate reference to the subject for decision. Volt must not, however, suppose that there is any essential dill'erencc between the two methods of arriving at the subject for decision, which 1 have jusi sketch; d. The former consists in a formal and deliberate analysis, after the hearing, of the recorded statements of Ihe parties, ai,(l a separation of the undisputed and immaterid muter. The latter consists in a rapid mental analysis, during the hearing, of the spoken statenicntsof the punier, ami nn equally rapid separation of the undisputed and immaterial matter. Analysis and separation constitute the very <ssence of both methods, and they differ merely as to the time and manner of p.rforniiug these processes. The former method is belter adapted to the purposes of persins learning to judge, and the latter to those of experienced judges, in such courts as

yoiiis. When the subject for decision is ascertained, your in xi object will be to decide it. It will ulnays either consist wholly of one or more matters of fact, or be of an entirely legal nature, or he partly a question of fact, and partly a question of law. When one or more matters of fact are to he decided, it will be the duty of the judges to consider the bearing of the whole mass of evidence exhibited to the court ujiou the fact or facts at issue, and to decide for the party who has maintained that side of the issue, in favour nf which the evidence preponderates. In the performance of thii process, the principal difli ulty consists in fixing the precise weight ol each individual's testimony. In fixing it, it will bo necessary for you, amongst other things, to consider particularly his credibility, bis consistency, and the degree of his acquaintance with ilie circumstances of the case, upon which he has given evidence. The decision of issues of fact will, at first, occupy your attention for some time alter the hearing, the length of which will depend upon the nature of the case. Hut when you have, ' by experience acquired a familiarity with (he i method of deciding these issues, you will, > generally, be in a condition to pronounce t judgment, immediately upon the close of the i hearing.—As fir as the subject for decision is * of.i na'ure, it is to he decided by the " principles of the law i f natural justice, con- n cerniug which I lnvc now to maku some gene- k ral remarks to you. " The law of natural justice is commonly de- t lined lo'b.-, that law wr.icli is uiitun u; on lh« k heart of every man by his Creator, for the k

guidance of his conduct and actions towards hi* fellow-creatures. This definition, when prop.rly uw!er;tood. is not only correct, but, ': _, •.... f ic.i.le manner in which it expresses the divine origin of the law, well calculated to enforce s\ reverent and faithful observance of its precepts. It is, nevertheless, peculiarly liable to be mi-apprehended. You must not undpi-tnnd it as dec'aring, cither that every man is born v. ih a knowledge of this lnw, or. that it exists in the minds of all adult men, in one nnd the sumc perfect sta'.e. The true meaning of the delinition seems to be, that men tire so fashioned by their Creator, that if, in their progress from birth to mature age, they conld he perfectly secured from the dominion of acquired habits, prejudices, and other unfriendly influences, their notions of their duties to one another, would be clear, well defined, and cqmlly perfect. Hut, in the actual .slate of things, this is far from being the case, the law of natural justice being, in the minds of different men, modified, ivith infinite diversity, by the disturbing influences to which I have just adverted. It is, however, iin universally acknowledged truth, that there is tio man, without such a knowledge of this

law as is sufficient for a tolerable guidance of bis conduct towards other men, while every one has the power of ci ntinunlly enlarging his acquaintance with its precepts, by inward contemplation of his own nature, combined with, and corrected by, well-regulated observation and experience. In order to a due discharge of your duties as assessors, it will be absolutely necessary f r you to acquire, in this way, a familiar knowledge of the principles of this law, and the pursuit ol that knowledge will, I trust, be further recommended to you, when I inform you that the (aw of natural justice is the foundation of all the legal systems of civilized communities. If, in the administration of this law by European judges, diliertnecs of opinion wo 'd, from lime to time, inevitably occur, it is to be expected that such differences, between you and your European colleague*, will be of more frequent occurrence, and more serious irr their nature. That calm ami temperate discussion of tluse differences, which is indispensable to a right discharge of your duty lo the litigants, will also promote your own instruction and improvement in the law which you administer, while the wise provision of the ordinance, that no judgment shall he executed, until the two native assessors have agreed, will prevent them from being followed by sudden and violent innovations upon your long-established usages and customs. Having concluded what I had to say to you concerning your duties as assessors, I have irow to impress upon your minds, the importance of yur attention to the instruction and advice which I have given to you. In performing rhis part of my duty, it is ntiihcr my wish, nor my intention, to treat you as children, by substituting requests and entreaties, for reasons and proofs. My object will be best attained, bv pointing out to you the possible consequences of your cooperation with his Excellency, in the furtherance of his benevolent desiurn towards the native population of these islands, and the incalculable benefits of which you may rob your descendants, by a guilty indifference to the snrcess of the measure, which is now about to be brought j'nto operation. Though the natives have made great advances in agricultural and pastoral pursuits, though they own anil navigate a largo number of sailing vessel?, and have required more than the elements of commercial knowledge and practice, yet, up to this day, the individuals of each tribe pt ssess their property, to a great extent, in common —mi institution, which is nlil.c incompatible, with the existence, or the introduction, of real civilization. The slightest reflection will easily convince you, that one inetit ible consequence of the operation of the new measure will be, the creation of a de-ire for the rosse sion of separate property. The new courts, by enabling individuals to recover debts, nnd damages for civil injuries, will partially secure ihem irr the enjoyment of the scanty possessions of which they are at present the sole proprietors, and secuiity of possession is acknowledged to be one of the most powerful stimulants to the acquisition of property. Tl-c actual experremv- of this security will cause the contrast, between their own mode of life, and that of the Europeans who live amongst them, which "ill be always before their eves, to be felt with much more keenness than it had been before. Thedi-siro of separate property, created by the operation of the row courts, will (litis be, not only fo'i merited,but snccesivcly directed toispecial and wcll-rhlined objects. The violent desire, constantly present to the mind, of obtaining things, which may he bulb obtained and securely en-j-»yeii, will be generally followed by the actual iiiiainmi nt of them* The number of owners cf separate property, ami the amounts possessed hy each will, "by these means, be continually increased, until a farther moasuic of senility shall he, successively, deemed necessr.ry, eicmnimcd, and obtained. Portions of ihe c'vil nnd criminal law of Engl mil will t'ien be introduced amongst the natives for their protection against one another, and their ii.liodticlion wi'l be .'ollnrvcd by coiuTqiieirce-J

111 similar lo those which I have just mentioned. 1 Thus, propcity and law will ench precede and .1 follow ihe other, and be each the cause ns well ijas the effect of Ihe other, until, by their mutual iliution, the nalive iuh.ibitants ofthese islands J arc brought under the complete dominion of , the whole code of British law, and placed in the enjoyment of all the decencies, comforts, and luxuries of civilized life. These speculations nny be converted into facts by your own efforts, which will be superintended with vigilance, and seconded with vigour, by ihe government. Already has provision been made by the legislature, for the appropriation of n twentieth p.'irt of the annual revenue of the colony to the purposes of education. The children of the natives will participate, on a very large scale, in the inestimable benefits of this admirable measure, and the systematic education of native youths will, as I hardly need inform you, exercise powerful influence, in realizing the events which I have ventured to predict, nnd in accelerating their progress. Your intelligence, industry, perseverance, nnd particularly the progress which you have already made in the elements of almost every spscies of civilization, have gained for you many powerful friends in. New Zealand, and in England. The principal authorities in the colony, the intelligent and influential settlers, and your friends in England, will watch, with interest and anxiety, your conduct and progress, as judges of the courts about to be established by bis iixvcllency for the administration of justice, in civil cases* between native and nzl've. Your friend, William Donnelly, Native Counsel.