LETTER to his EXCELLENCY the OFFICER administering the GOVERNMENT.

Nelson Examiner and New Zealand Chronicle, Volume II, Issue 81, 23 September 1843, Page 323

LETTER to his EXCELLENCY the OFFICER administering the GOVERNMENT.

Auckland, Augußt 16, 1843. Sir — In the interview with which your Excellency favoured us on our arrival, you did us the honour to offer to forward with the memorial to the Home Government from our fellow, colonists at Nelson any observations we, as publicly deputed to make known their sentiments, might think it advisable to make upon the various subjects therein adverted to. The principal object of the memorial was to represent simply the unprotected state of the settlers, as regards the various dangers which must arise, generally, from the inefficiency of the Executive to enforce the laws against the aborigines of these islands, and particularly from the possibility of the perpetrators of the late massacre at the Wairoo being allowed to escape with impunity. - . - And this representation they endeavoured to make in such a manner as to avoid the appearance of being actuated by any feelings of hostility towards the Colonial Government (none of which in fact do they entertain), or by any inclination to make the late awful catastrophe an occasion for the declaration of opinions or discussion of matters of less vital and absorbing interest both to themselves and the colony at large. It appeared, however, to your Excellency that one or two almost unavoidable allusions required some explanation. We will, therefore, revert at once to these points, and state as clearly as we are- able the sentiments of our fellow colonists thereupon. And first with respect to the question of Land Claims. Now, that it was the duty of the Government — almost a necessity under which it lay — on taking possession of these islands, to assert its right of preemption and step between the natives and all purchasers of land, we are quite ready to allow t and the New Zealand Company were to be put upon the same footingas all other purchasers. We may confidently leave to them the assertion of their rights; their interests they will not fail to look after. But, with respect to ourselves as purchasers from them; we must express our opinion that it cannot by any means be rationally maintained that, in case of their failure or inability to fulfil their obligations to us, we have n» claims upon the Government for redress. Whether or not the case may ever arise, we do not pretend to foretell ; but the mere possibility of its occurrence may make it' worth while to state our opinion. We decidedly hold that it would be a duty imperative on the Government, under the circumstances of the case, either to force the Company to do justice to those to whom they have sold land, or, were that impossible, to take upon itself the performance of their contracts : for the Government cannot be considered an indifferent party, not implicated or concerned in the transaction^ The national importance of such an undertaking as the systematic colonisation of distant lands — the publicity of all transactions entered into in carrying out such a system, and the length of time they require — above all, the numbers of the individuals of all ranks interested in it, and whose welfare in so high a degree depends Upon it — all this renders incumbent on any Government worthy' the name/*, more than ordinary vigilance over all the. details of such operations, the possibility of its' ignorance of which cannot exist, and makes it liable to a more than ordinary responsibility for the consequences they lead to : and all this applies with greater force where a Coritpanyhas been especially authorized and chartered by Government to' sell land for colonization — a Company constantly expressing in public documents its desire to be considered as the Government's principal colonizing agent, the <§Rr«rnment meanwhile appearing to accept with approbation these expressions and offers. Surely, then, there arises in the mind of the public a feeling that the faith of the Government is pledged to secure performance of such a Company's obligations — to see that a numerous \ body of its subjects gets something in return j for immense sums of money intrusted to that Company, chiefly because acting almost under Government's authority, certainly with Government's concurrence and sanction. And as it would undoubtedly have been the duty of Government to have put a Btop to the 1 Company's proceedings had they been unjust, rash, or over-speculative, so, by suffering them to continue, Government becomes bound to exert all its authority, to do all in its power to prevent injustice, loss, or injury resulting from those proceedings to such of its subjects as are affected by them. Such a case as we allude to we hope may never arise; and yet it is far from impossible that it may. The very principle of obtaining land simply by purchase is one the wisdom of which is questionable, when required to be carried out with natives so extremely tenacious of every opportunity of acquiring property of any kind as the New" Zealanders undoubtedly have shown themselves to be. But if this system is to be maintained, surely all that the strictest justice inculcates is that an, equivalent be given for the land estimated at its previous value to the natives themselves, not at its value to the European purchasers, arising wholly from the capabilities it affords for the employment of their capital and skill. To the natives* the greater part of the country is in fact worth nothing, and had no chance in their hands of ever becoming otherwise. Its worth to them is the only standard by which the v strict justice and good conscience' 1 of the case require that it be estimated. The wisest men have agreed that the rights of aborigines to land, of the capabilities of which thty cannot avail themselves, are not to be considered of any great value or entitled to much respect, And if common sense

and justice declare, these lands to be worthless to the natives, surely, when we reflect upon all the advantages they themselves must eventually derive from colonization, carried on with a due regard for their real interests — and one principle of which in the present, case is the reserve of more lands for the natives than they can possibly cultivate, and to which a high and artificial value is given by the neighbourhood of civilization — the least that can be expected of a Government carrying out the principle of. acquisition by purchase alone, is that it would facilitate by all the means, in its power the transfer of. the lands to the white settlers. But, certainly, it is little iess than madness — little less than an absolute dereliction of its duties to its own natural -subjects — in dealing with grasping and avaricious natives, everywhere to exhibit a morbid and ostentatious sensitiveness to native rights ; a sentimental scrupulousness about depriving them of possessions the value of which to them is a fanciful chimera, -and has .been instilled into them perhaps principally by this very exhibition. But this we chink the Government has shown, and is showing, in its mode of dealing with the land claims at present in New Zealand. In this, as in other matters, we think that the pernicious influence of men of an exaggerated and mistaken philanthropy, which overlooks entirely the nearest and natural objects of its exercise, nay, even the ultimate and highest benefit of those on whom it lavishes its strained and uncalled-for sympathy, is very clearly apparent. The ill coneequonces of this parade of excessive regard for the nativesj as well as of the slowness and delay incident to legal .tribunals before which opposing claims are brought for decision, have already shown themselves. Already, according to your own avowal, your Excellency has felt, even in the Government settlement at Auckland, the difficulty of making purchases from the natives, owing to their exaggerated ideas of the value, of their lands, their acknowledged cupidity, and their consequently exorbitant demands And) if this system be allowed to continue, the result must be either the impossibility of purchasing land sufficiently extensive for colonizing operations at all, or the abstaining from such purchases until the difficulty of selling them shall have taught the natives moderation in their demands ; and a considerable time must elapse ere this be effected. Either, then, those operations must be "totally abandoned or ruinously retarded. With respect to the Nelson Land Claims, we may observe that afur fellow colonists were perfectly willing to give the Government all reasonable time to effect their settlement, and that, the motives which caused them to be alluded to in the memorial were the very furthest from any desire unnecessarily to carp at or criticize its acts — in any way to impede its progress to a satisfactory arrangement of the matters in question. Your Excellency well knows that no spirit of jealousy, no desire of systematic and tiaptious opposition, exists among the settlers of Nelson, either as respect's the Colonial Government or its settlement at Auckland. But, in accounting for the length of time these land claims have Remained unsettled* your Excellency was , pleased, in defending the Home Government from an implied censure in the memorial, to lay the blame entirely on Colonel Wakefield's refusal to fulfil his engagement to complete the Company's purchases, entered into (according to your Excellency) near two years ago- And this power accorded him of completing the purchases was insisted on by your Excellency as a great favour conferred on the Company, and withheld from other purchasers. Now we can scarcely agree with your Excellency in regarding in the light' of any' very extraordinary favour, a permission to buy over again lands which the Company, had previously imagined paid for, and their own; for which sums of money had certainly been given ; the value of which had, in the mean time, been infinitely increased by the enormous outlay of the Company's capital in founding the settlement at Port Nicholson; and the repurchase of which had undoubtedly become more costly and difficult, owing to the peculiar feelings exhibited and tone adopted about native rights, animadverted on above. And even with the additional value given to thesfr lands by the outlay of their own capital, the* sum for which your Excellency affirmed- that the purchases could be completed appears enormous, when the reserved tenths are taken into account, as well as .the quantity of useless lands obliged to be taken by the Company to bring each of their blocks into the shape of a parallelogram.. With this question, however, we do not. wish to concern ourselves at present further than to express our opinion that a different mode of estimating the value of native lands and of dealing with native rights might have procured the earlier settlement of the Wellington claims, on which that of our own immediately depends. ' Next as to the conduct of the magistrates in undertaking thelate fatal expedition. So much has been said tipoft the subject that, unwilling as our fellow colonists at Nelson were, to weaken their assertion of their clear right, as British subjects, to that protection .which is implied by the general enforcement of the law in a British colony, by mixing up with it the question of the propriety or impropriety of the late attempt to enforce it, we cannot refrain from stating what we know to be their sentiments upon the matter in question. The charge of. rashness which has Tbeen made against the magistrates we cannot allow the justice of. Your Excellency; we were glad to perceive, avowed your opinion' that the natives are British subjects, and amenable to British laws. This wie conceive to be the only rational opinion on' the point. Was, then, the law to be put in force upon the late occasion ? We think it decidedly wf». . As magistrates, it was their duty to enforce it, pefhap's irrespective of the policy pi so doing. Yet, that good policy required it, we are clear

to maintain, and will endearour presently to show. As for the charge of rashness — the characters of moat of them, the long and anxious deliberation given to the. question by all of them, are sufficient to rebut it; Mr. Thompson (the police magistrate) had expressed his opinion long before on the impolicy of overlooking a similar outrage at Wellington; the occurrence of the present outrage was one of the results of the former having been overlooked, and a strong confirmation of the correctness of his opinion. Captain Wakefield's character is too well known to require defence against such a charge ; a man of prudence and caution, which would have amounted almost, to a fault had it not been combined in a rare degree with energy and vigour when the time for action arrived. And the mild and unexcitable character of Captain England, another of the magistrates, was equally notorious. But as there was no rashness in their determination to enforce the law, so was there none in their mode of attempting it. The men they took with them were sufficient in numbers, and ought to have ensured success. That they were not tried and disciplined men (which was the fatal and only, but unavoidable error), who but the Government that left the executive without a regular force to back them is to blame ? They were the best men that could be procured. And, in all human affairs, if anything is to be attained, some risk must be run. This was precisely a caie in which at, least success would have been universally allowed to have justified the attempt, and what possible means did they neglect to insure it ? _ Moreover, as the collision depended immediately upon accident — the magistrates having given no order to fire at any time-r-so the very order to advance was rather a defensive than offensive step on their part. They were in the act of retreating across the creek to their men when, as Mr.Tuckett says (whose evidence— as well from his station in society as his known feelings as a member of the Society of Friends, towards the aborigines — is particularly to be relied on), Captain Wakefield, " observing, as he (Mn Tuckett) supposed* some offensive movement on the part of the natives, suddenly and otherwise unaccountably changing his purpose, ordered the men to advance;" And this in the confusion of the affair is the only evidence on that point to be had. And in taking this defensive step a gun was accidentally discharged, and followed immediately by a volley from the natives.

But we leave this question to come to the much more important one of the measures to be taken by Government with respect to the natives concerned in the subsequent massacre* That, they were guilty, even according to the written letter of the law, we are perfectly certain. Their forcible expulsion of the white man from disputed land— their actual resistance of a warrant (rightly or wrongly issued matters not) in numbers and with armsi after a determination to that effect previously, and deliberately made and' openly avowed — above all, their cool .massacre of disarmed and unresisting men when they had got them into their power — these are things no ingenuity, no sophistry should be allowed to wrest out of the sphere of the law's cognizance and condemnation. Nor let us be accused of prejudging the case. Prejudging is hurtful and reprehensible where doubt exists. Where a crime is certain, committed in open day, in the presence of many witnesses — where its perpetrators, as a body, ate notorious—prejudging, if so it can be called, is not only harmless, but inevitable— the necessary result of the circumstanoes of the case. But if it be answered that we have no right to pronounce an action a crime at all, till it has been weighed and sifted by the slow, machinery of judicial procedure — till it has been pronounced upon by legal authority — we are free to declare that we cannot admit of any such objection. Knowing the uncertainty of the law, and its accommodating suppleness where so many motives may combine to impel even conscientious men to influence its action, we cannot pledge ourselves implicitly to abide by its decision : for there is yet a truer standard and a more unerring tribunal to resort to: we appeal to the human heart itself — to, the statutes of' a higher Legislator, written, thereon in clearer characters; to the quick perception of right and wrong implanted by Heaven in every bosom;- andy tried by these laws and before this tribunal, we declare the action in question to be a savage and revolting murder. . And we confidently appeal to the common feelings of all civilized mankind — to the wide voice of human nature itself wherever not sunk into, the lowest barbarismr— to confirm our verdict, and pronounce that punishment should be inflicted on the guilty. It is lamentable indeed that such appeals should ever have to be made, such standards require to be resorted, to, from die possible decisions of British law in tile present age. But we know full well that no system of laws, expressed, as all must.be, in general terms, can be so accurately worded, so nicely adaptive to every particular occurrence, as not to leave for those who administer them. loopholes enough of escape from the infliction of dangerous punishments or the performance of expensive and onerous duties. And in applying the British law to all the minutest, details of. a transaction between British subjects and natives in so anomalous a position as the New Zealanders, in a case like the .present, we know a thousand such opportunities may present themselves, in discrepancies between .actual and required facts, forms, and relations. The conduct of the magistrates .and constables may be rigorously criticised; «ome flaw, discovered or formality found wanting, which may be made to take all the subsequent proceedings out of the hands of (he law. This form or that; this, ox the other conventional item in the ceremonious process of legally teBorting to force* may hare been overlooked or

omitted. All'thaf Wafr rieedfnl may hhto beflil donie to explain to; thfc natives thfe nature of the attthority; to be aeberted^atid the criaiiaality and aerionsvtiss of fesfetiilgiit; but some; formula or other,' which would have* been to Aem utterly uninteiligibte aad mere* mummery,* may tiot lave been obewved. * And' then the murdered men are to be held guilty-^-the murderers excusable ! Is if ihcredible such shifts should be resorted to, toevade; the diffidliltyof enforcing the law and punish w>g the murderers? Indeed We cannot think ed, when \fd reflect how the notions of a perhaps welf-ttfeaning' and con j scientioue, but certainly ill-jwdging and mistaken philanthropy may coincide with arid beat hand to justify *he natural inclination of a Government towards the 7 most convenient and snpUiest policy. -At all eVettts, it is tmdeniable that the fear of sbme^ssrch mode of escaping' the difficulty of enforcing/tbe Jaw berng adopted id widely abroad; and, a* being bdu"i#l to express here the opinions of the> majority' Of the Nelson 1 settlers upon all thisi affair, we4ho«ld he very imperfectly doing s^o were' we '-to: take -no notice of th&existenc«of such a euspiciowr 1 And 1 it is one object Of th^ nwaiofiai to' declare in the strongest terms and' deprecate Wiih the utmdst' earnestneßs any such line of prehe'edlrig on the pare of the Gdvernirient. For the consequences of such a speeiottß ayoidanCft of the 'assertion of the law would be asdisastrouß as ah Open abandonment of it altogether. Judged imay indeed shelter theftselves behind ingenious subtleties and stiff unVielditigtecmiicalities; andtninietets may hug themselves at the satisfactory accordance of their policy with prescribed formulas, constitutional nnaxims, and factitious duties ; neverthelese; it is still sober truth and an absolute certainty, that the consequences of an outrage against the truer law of nature unpunished and unatoned for — or of the neglect of duties imposed by common sense and common reason on those who govern for the common jpfodd— will not be averted or avoided because thfe drittte may have been palliated or' explained away by legal subterfuges, the neglect justified by considerations: of state convenience. The tinpunished massacre of Englishmen by savages^ itt the present case, will be followed on their part by an increased disregard for' Engudh lawe and a greater contempt for the English ehafactei\ Impunity giving themboldneSß, they will proceed to further outrages;/ ' Nor can it be supposed that retaliations will not follow on the part of the white men ; that they will alway* be, as at present they are, too weak or too patient to take into their own hands the defence of ' their lives and properties, the vindication; oi their rights and ' averigement of 'their wroags. . ; The first bodies of emigrants ttx a knd : where aborigines exists having been brought upto the exerci*ti of the tetsof peace and wholly unaccustomed to those of war, are generally unjable to cope with natioas^of warlike savages. But if insecurity exist for any length oi time among such settlers, the necessary consequence is that the succeeding generation is from infancy inured to danger and accustomed to arms ; and, as history has often shown, in such case the most warlike and energetic race of ■ savage's ■ will fall before the progeesSof the white man. . * Weaidertifearless of contradiction, that such will' inevitably be the casein NswZealandj unless the vigorous assertion of the law, interpreted- by common sense and common justice alone, t«stor^ the: feeling of security among the white* and something of the goodwill that previously obtamed'ibetween the two races. And the' certainty of the.cpnsei quences alluded to, proves' that 'such an en^ fotfeement of the law as will ensure ks l being te* speeted» is a* surely the wisest policy as it is the truest philanthropy. Wfe desirithe civiliaation of the natives as afdentlya^abyi bnt wemaintaiii that this is the only way to bring.it about. It is idle to object the strength of the natives. Time and impunityi ty Will only add tQ that streagth . If British law is ever to prevail >in this British colony, it will; havelto be asserted by force in tome case or other, -sooner or Ittser: and the earlier' the enforcement be attempted, who' can <Jonbtibat the chance of success is the greater ? White man or <New Zealanddr, British: law or Maori custom, savagery or civilization, one must master the other : and that the triumph of the laws of civilization can be attained without tome •employment of Arc©, we catrabt ibeh'evfe to be foesible. ■' Whatever • the absolute excellence or relative, superiority of any system of lawe^-afc the yeryfirst requisite df thb existence of all law is restraint, and as the-mOre perfect- and enlightened the law, the greater the teftraint it imjk»e* on individualj wilt and indtridual pas- , -•iotts,' iso it it certain that the laws Of the most eiviKzed must be precisely the most intolerable to: ti savage race. - When tbemasses of the most enlightened nation* iwill Submit to the best laws bfctheir, wisest Governments, Unless backed by physical fbrbe, in addition to what is a'|iroduct.efjcivUkzatioq aldne-^public opinion, can 1 we rationalfy expect soch «übmi»Bion where neither of these. taotivei thereto exist,- in the savage-and wntanaeid ;New Zealanders? And their very superiority, to many)>o«ker salvagfe races, showing ■ itself in a greater Tdwire for the possession of at leait Ac physical 65njoymeBts tund ladyaatagep civiHzatibn iia» cohferred upon -the white on«», m&- :OBiy make' -^exemptation to Infraction . of dbe laws, more- Utesistible. Therefora we hold the idtai of? the general yet, altogether peaceful estaUathntetft of Brkfeh law ia then .islands as utt&ly)vam and vkkkiafjt.i We Tbefinre ihe only poasnylt waybf seddrin^, its estafifishmentat an is %f making it reacted M* aoon,a)s.po««ble : arid, -withcrot fear Af sti 'We -iookj far iDoctlispect fop it ftoru a «av«ige tffaaett. ! Tnxe^policjrand true pUOanthropy t>otnt Out tbfe ' «nn pat4i to b»pßr»liea\ ' Every danger feared 4vbe encountered* and every Ul consequence dewed; to be ayertid, the most tiniia and tampamxaa policy, the most fender aad plausi--ble nhUantbropy, will only be exaggerated and rendered more imminent by neglecting to

do in' -the instance : wlmt rflust be done itfler 1 alll c\/ m. 7 .v r ru;. . y:iu, . , I 'Tli^^^-«gv^'ei^eai^td«d, decidedly yet dißpassioTiafcryi''«d' ) exprb«i : to your Excellency, to be laid IJome Goverßmeritj the sentiments df our ffefloW-colonists rft ; Nelsort on the subjeeta alluded to in tße meraforial, afad the reasons on Which their opinions ate founded. And, as your 1 Exdeiletityaptieifredto; agree with us en the ; necessity of establisbitif^ihe British law' on a-finn. footihg^in thede isltodsj we' may be allowed to'express a hope that vburExcelleticy #Uiuse eVery eridea\*6u* to obtain .that boOn from the Home Gbverturient, and'toforward the wishes of theNelsbn settlers on' this the most important object prayed for in their memorial. ' ' "' lii •■'-'' '- xi " : 'vTfrhaVettiehtiii6«i« && •> • ' • ' D. MoNro. -'•' -(T ', ' ■ ALfttED DbMßf*.