The New-Zealander. SATURDAY, NOVEMBER 14, 1846.

New Zealander, Volume 2, Issue 76, 14 November 1846, Page 2

The New-Zealander. SATURDAY, NOVEMBER 14, 1846.

Be just and fear not : Let all the ends thou aims't at, be thy Country's, Thy God's, and Truth's.

LAND CLAIMS.

"TROS, TYRIUSVE WrHI NULLO DtSCRIMINE AGETUR." In resuming the subject of the Land question, and commenting upon the remarks of His Excellency the Governor, and the Members of Council, upon the second reading of the Land Claimants' Relief Bill, we deem it necessary to state distinctly that we are irreconcileably opposed to the acquisition of large tracts of land by persons who either never intend, or who by reason of their limited resources, are not able to occupy, and improve the land they have obtained : and further, we are willing to admit that in some instances, the objects contemplated by Captain Fitzßoy's pre-emption proclamations, and the privileges they are intended to confer, may have been perverted and abused. But the abuses of a system are no argument against the system itself. They indicate t]be propriety of altering and improving, but by no means demonstrate the necessity of abolishing it altogether. The principle of the pre-emption system is just, wise, and beneficial ; the mode in which j it has been carried out is undeniably defective, j JBut does it therefore follow that the progress of reform is to be corrected, and the ancient system of monopoly reinstated, because the incipient efforts of reform were characterised I by imperfection? Most assuredly "not ! If j the interests of agriculture are to be studied, j if the dignity of the Government is to be main- I tamed, if the confidence and allegiance of the Native chieftains are to be secured, if the tranquillity of the country is to be preserved, the right of the Natives to dispose of their lands to the settlers, as well as to the Crown, must not be denied : it may be regulated and controled with safety and advantage, but it cannot be abrogated without manifest injustice, and considerable peril. We maintain this position from no sinister motive ; we have no private interest at stake, no party purpose to serve. Our convictions are the fruit of experience, gathered during a residence of many years in this country, embracing a period both antecedent and subsequent to the establishment of British authority — of an intimate acquaintance with the habits, feelings, and prejudices of the Native tribes, and we unhesitatingly assert our opinions, and are ready to support them whenever, or by whomsoever, they may be assailed. The opponents of our sentiments may be divided into two classes. Those who by preconceived notions— by impressions imbibed from the principles of the system under which they first engaged in the enterprize of coloni* zation, and which necessarily bind them by the ties of self-interest to the policy of upholding the monopoly of land— are naturally averse to any plan that might depreciate the value of their possessions by throwing more land into the market ; and those whose opposition is founded in comparative ignorance, whose residence, in the country has oeen too brief, or whose acquaintance with the character and disposition of its inhabitants is too slight

to enable them to form an adequate opinion upon the subject* Our fellow-colonists of the South are of the first class. They are naturally opposed to the pre-emption system because they fancy it opposed to their interests, though it might easily be shewn, that this creed is fallacious. At the head of the second class of opponents of the pre-emption system, we must place His Excellency the Governor, and some, if not all, of his Councillors. We are ready to pay great deference to the general talents and ability of Captain Grey, and we conceive that we are guilty of no disrespect in avowing our belief that neither his knowledge nor his experience qualify him to judge and condemn the preemption system in the manner he has done. His knowledge of the native character, and the peculiarities of their feelings with respect to ! their proprietary rights, cannot possibly be ; veiy profound ; and he is wholly without experience of the comparative effects, upon the interests of agriculture, of the £\. per acre and the pre-emption systems. He never witnessed the benumbing influence of the old system of doling out, indiscriminately, land of every diversity of quality, good, bad, and indifferent, at the uniform price of £1 per acre ; nor did he ever experience the difficulty, nay, in some instances, the impossibility of obtaining land horn the natives for this purpose. He never had the gratification of beholding the pleasing change which followed the waiving of the Crown's right of pre-emption— the sudden impetus given to agriculture-— the rapid occupation and improvement of land. If he had been possessed of such knowledge, and if he had gleaned such experience, he would hardly have committed himself as he did on Monday. When the bill in its original shape was brought before the Council, for the second ; reading, His Excellency attempted to support '> his views by various arguments. Our space j will not allow us to follow him through all the windings of his discourse, we must confine ! our remarks to two or three of the most prominent arguments he adduced. He asserted that the purchases effected under Captain Fitzßoy's proclamation, reducing the fee to one penny per acre, were illegal by the Treaty of Waitangi. We deny both the proposition and the conclusion. A repetition of the weak and threadbare argument by which His Excellency endeavoured to support this position, will perhaps best expose the sophism which the argument itself contains. He said that the Treaty of Waitangi conferred the right of pre-emption on the Crown, but not the power to waive it ! What is the import of the term pre-emption, is it not simply the right of purchasing before others ? and does not this imply that if the party enjoying the right, refuses to exercise it, or willingly foregoes it, the privilege becomes extinct ? With regard to the alleged illegality of these purchases, we maintain that the teim is wholly inapplicable to them. The Treaty of Waitangi was not an Act of Parliament: it was a simple agreement, a mutual compact between the Natives and the British Government, whereby the former ceded to the Crown the sovereignty of the Island, and the right of pre-emption, and received in return a guarantee that they should retain " the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they might collectively, and individually possess, so long as it was their wish and dcs re to retain the same in their possession." In course of time, the contract* ing parties were mutually convinced of the inexpediency of one of the provisions of the contract : the Government arriving at this conclusion by experience of the utter worthlessness of the privilege implied in the right of pre-emption,the Natives by feeling the adverse influence which the continuation of this monopoly exercised over their personal interests. The Government found it to be inconvenient at all times to exercise the right of purchase, when solicited by the Natives to do so, and the Natives found it incompatible with their rights and interests to be prevented from selling to others that which the Government could not, or would not, buy. The Natives represented the injustice of withholding from them the right of disposing of their land, and the Government explained to the Crown the difficulties which encumbered and rendered impolitic the continuation of the system. The consequence was, that the Representative of the Crown, justified by his knowledge of the sentiments of Her Majesty's advisers upon the subject, consented to waive the right of preemption. The mode in which the alteration of the original contract was at first carried into operation, was subsequently remodelled, but with the perfect acquiescence of each of the contiacting parties ; and the Crown, though deprecating the manner in which the original concession had been altered and extended, sanctioned and confirmed the engagements which had been entered into in pursuance of its provisions. Now, when two contracting parties are agreed, touching the inconvenience and inexpediency of their compact, and resolve to remedy the evil by altering one or more of its provisions, who shall pretend to condemn them for so doing ? And if others transact business with the contracting parties, in accordance with the principle of the alteration, who shall pretend to say that such conduct is illegal? Wherein does its illegality consist ?

Again, His Excellency asserted these purchases to be illegal because the terms of the proclamation had not been fulfilled. This is, at first sight, a more specious argument, andii proved, would go far to substantiate His Excellency's position. But when we come to examine the nature of the ground upon which this argument is based, it becomes not only futile, but discovers a disingenuousness, — a straining after objections, on the part ot His Excellency, which we did not expect; and which certainly stamp the cause which needs such evidence to support.it, with the indubitable marks of weakness. The Governor argues, that because the agreements of purchase have not been published in the Gazette, in both languages, in accordance with the terms of the proclamation, the purchases themselves are illegal. But who is to blame for this omission ? There was no time specified within which the deeds or agreements were to be forwarded to the Government, nor was any precise period fixed for their publication ; therefore, it is iidiculous to bring this forward as an evidence of the illegality of the purchases. The fact is, that His Excellency has decided, ex cathedra, against the validity of these claims ; not because he can prove them to be illegal by legitimate reasoning, but because he has determined to root out the principle of allowing the Natives to sell land. We shrewdly suspect that the "irresistible conclusion" to which he says he was led, "that the Home Government would disallow these claims/ is not so much the result of a careful examination ot the question, as of his confident expectation that the Home Government would probably adopt the recommendation, which we presume he has forwarded, to that effect ; and it may be, that having gained a little more experience, he now regrets the hasty deed, and has brought forward the present measure as a remedy against the consequences of his unfavorable report. The bill as it now stands, and as it will pro. bably pass into law, is certai.ily less objectionable than it was at first ; but still it is far from being satisfactory. The purchases were effected in virtue of a compact, between the purchasers, the Government, and the Natives ; and Lord Stanley has distinctly said, that they should be recognised. We therefore deprecate any attempt on the part of the Government to substitute compensation, exact additional payment, or in any way to evade the express conditions of the agreement. If it is proved that any parties have defrauded the Natives, or acted in defiance of the prescribed regulations, let them suffer for their misconduct; but let the honest, equitable claimant, | have the full benefit of his purchase. We regret that any measure affecting the Land-question has been brought forward at this juncture. The cause of the claimants would in all probability have been benefited by delay. His Excellency would have gained some experience, and most likely would have viewed this subject in a very different light. At all events, the important question could not have been mooted at a more unfavorable time, as far as the capabilities of the members of Council for discussing it are concerned. We allude especially to the non-official members. Mr. Domett cares nothing about it ; Mr. Donnelly does not understand it; and Mr. Kennedy seems to be afraid at times to utter all his thoughts concerning it ; he advances and retreats, retreats and advances again, like a tyro studying the art of self-defence. We cannot also help noticing the bad taste which some of the members of Council frequently display, in indulging, either directly or indirectly, in philippics against the " monstrous" policy of the preceding administration: and we think that His Excellency would not suffer in the estimation of all right minded men, if he were to discourage such ungenerous allusions. He surely can take no pleasure in them, and he should therefore set his face against them. Who can tell ? he himself may eventually make shipwreck of his fame, and sink into the insignificence of private life, by holding the reins of power with too tight a hand ; and then he would not like to witness his successor listening with silent attention to tirades against the policy he .pursued. Mr. Kennedy when arguing the point, that as the purchases originated with the Government, the claimants should be treated with the utmost consideration, said, that Captain Fitz Roy had not taken the oaths of office an hour, before he published his intention of conceding to the Natives the right of selling their Lands to the settlers ; and that in some instances, the people had been urged by him to purchase Land of the Natives Now, while we admit that Mr. Kennedy did not altogether depart from the truth, yet we must remind him that the truth may be so stated as to have all the evil effects of falsehood. In fine, Mr. Kennedy did not tell the whole truth : probably he was not able to do so, being but partially informed. This consideration induces us to record what he omitted ; and although we have already extended our remarks beyond the usual limits, yet we must draw upon the patience of our readers while we give a correct history of the rise and progress of the preemption system. When Mr. Shortland assumed the reins of Government, he was extremely desirous of inducing the natives to dispose of large conti-

nuous blocks of land to the Government, Applications of chiefs who wished to sell small patches, were invariably rejected. At length he succeeded in obtaining the promise of a large tract of country, in the neighbourhood of M^nukau, from a certain chief, but when the time of completing the payment had afrived, and the survey was to be commenced, it was found that other claimants must be satisfied, An attempt was made to do this, and though the acrimonious feelings of the disputants were allayed for a time, yet the breach which this negotiation had occasioned was never throroughly healed, even though Capt. Fitzßoy made several additional payments tor portions of the same land after he had assumed the Government. The jealousy and ill feeling that had been engendered, continued to rankle in the bosoms of the disputing chiefs ; subsequent misunderstanding added fuel to the flame, until, after a series of accumulating circumstances had tended to bring the matter to a serious issue, the quarrel originating in this Government purchase terminated in the late Waikatowar. Mr.Shortland did not witness the effusion of blood which attended the climax of this quarrel, but he saw quite enough of the working of the system of Government purchases, before he left, to convince him that it should be abandoned. Having tried to carry out his plans, and having failed, and moreover being forced to the conclusion that the Government had better relinquish the right of pre emption, he addressed Lord Stanley on the subject in a Despatch dated 30th October, 1 843. We quote the following paragraphs : " I am now about to approach a question which has repeatedly been forced upon my consideration since my first arrival in New Zealand. It is— the very different position which the land question assumes in this colony, from that under which it appears in the surrounding ones; and the consequent inapplicability of the law* and regulations relating to land, which were made and enacted to suit their wants and circumstances to the peculiar re. quircmtnts of a colony like this. ' "On the foundation of the colonies to which I allude, the whole of the land they contained became the demesne of the Crown ; whereas, here, Her Majeity claims only the right of pre-emption, and consequently the extent of land absolutely required for founding a colony, which there was immediately at the disposal of Government, cannot here be obtained except by purchase. Consequent upon this important point of dissimilarity, the following obstacles present themselves to the satisfactory operaration of the present system : — Firstly. The Government, by becoming si purchaser of land, is placed in a position which tends to weaken its influence and lower its dignity in the eyes of the natives generally; and the high situation of Her Majesty's representative it classed in their minds with that of any other buyer of land ; a most disadvan. tageous association, but one nevertheless which actually exists, as can be gathered from the remarks they 'frequently make on this subject. "The system, too, creates much discontent imongst thosetribes who desire to sell land which, being remote from the districts under settlement, is not immediately required by Government. •'Secondly. Experience has proved the utter impossibility of obtaining from the natives large continuous tracts of available land, while the expense of purchasing small portions at different periods, according to the caprice of the sellers, entirely absorbs the profit which should accuie ftom the transaction, it being frei quently necessary to include in 11 bargain such inferior land as they desire to dispose of, aud which, for a very long time at jeast, will in many instances prove useless. "Thirdly. To provide for the purchase of land from the natives, to be resold at the formation of any settlement, large advances in money are necessary. " A consideration of these facts has long led me to form an opinion which every day's experience in the affairs of the colony tends to strengthen, that the position of the local government will be most essentially improved, and the benefit of the colonists best consulted, by allowing purchases of country linds to be effected by individuals direct ftom the natives." We are ignorant of the nature of Lord Stanley's reply to this dispatch, but it appears that this subject did not escape the consideration of Capt. Fitzßoy prior to his leaving England to assume the Government of this Colony. In a letter dated Lowndes-street, 16th May, 1843, he submitted the following query to Lord Stanley : "May the Crown's right of pre-emption be waived in certain cases?" Lord Stanley's reply is dated Downing-street, 26th June, 1843, and is as follows : "In the absence of any report from the Colony itself, ttating the difficulties which you anticipate in the acquisition of land from the natives, to have actually arisen, I consider it premature to attempt to prescribe the mode in which it will be proper to attempt to meet and overcome them; and I should therefore prefer waiting for a report from you, after your arrival at your Government, accompanied by luch suggestions on the subject as, after inquiry on the spot, you shall deem it expedient to make. I should, however, wish, that in making such suggestions, you should particularly keep in view two objects—* the one to prevent land coming into the possession of Europeans at a cheaper rate, if bought from the natives, than if bought from Government— the other, the ensuring a contribution, on such purchases being made, from the purchaser to the Emigration Fund; objects which would be best accomplished by requiring a payment to the Government, concurrently with, that to the natives, and by devoting as much at least of the luma so received to emigration, as would be applicable to that purpose under the Imperial Act 5 & 6 Viet., c. 36." Now we do not propose, in the present instance, to examine into the principles involved in Lord Stanley's answer, though it might be shewn that the maintenance of the two points upon which he insists is perfectly compatible with the continuation of the pre-emption" sys- ' tern ; but the foregoing quotations will clearly .demonstrate the fact that the measure did not originate entirely in the announcement madV" by Captain Fitzßoy shortly after he had takert _ , the oaths of office. That announcement musfr^ be coupled with the following facts. Prior to his arrival, several of the most intelligent and influential chiefs in the neighbourhood of Auckland had petitioned the Government for - permission to dispose of their lands to the set- I tiers ; and at the first levee held by Governor ) Fitzßoy these chiefs presented for themselves, i and on behalf of their countrymen generally, ' addresses in which this petition was reiterated ; and it was in answer to these addresses that Governor Fitzßoy publicly stated his intention of taking steps to comply, under certain ' restrictions, with the wishes of the chiefs who presented them. With respect to Mr. Kennedy's allusion to the people having been urged by Capt. FitzRoy to purchase land from the Natives, the simple facts of the case to which he referred are these. The ownership of a piece of land was disputed by several chiefs. One of them, an old and well known friend of many of our readers, was extremfly anxious to sell

the portion he claimed ; bat in consequence Of the doubt whicb existed relative to the title of the vendor, no one would venture to buy. This the old man considered an unaccountable hardship. He thought his interests seriously affected by the cautious scruples of the settlers. He applied to Captain Fitzßoy for assistance. The reason of his land being unsaleable was explained, and he was advised to seek an accommodation with the other disputants, and promised assistance in effecting it. He followed this counsel, and an amicable division of the disputed land was concluded. Again he sallied forth to sell ths portion that had been allotted to him, but again he everywhere met with a repulse. The land having been in dispute, had acquired a bad name in the market, and as the settlement of the dispute was not known, the impress'on remained in full force. He returned to the Governor to relate his disappointment, and obtained a certificate to the effect, that he was the rightful owner of the Jands described, and that the right of pre--emption would be waived in favor of any individual who might choose to buy. In this manner, and in no other, rUd Captain Fitz Roy urge the people to buy land. We might fill a pamphlet with arguments to prove the impolicy of reviving the old system of Government monopoly, but must for the present forbear. Let not the upright claimants be discouraged by the measure now before the Council. Their cause is identified with the interests of the Colony, and sooner or later His Excellency will be convinced of the fact. But let them beware lest they injure themselves and their cause by countenancing any unconstitutional mode of expressing their disapprobation of the present bill. His Excellency, on Thursday, informed the Council that he had been thwarted and opposed by the Land Claimants in the most ungrateful manner,— that this opposition had in some particular instance (we know not to whom, or to what His Excellency referred) approached very nearly to downiight insult. Now, though we would by no means deter the Claimants from a bold and uncompromising opposition to every measure of Government which is not founded upon the strictest principles of justice and equity, and though we believe that the charge of ingratitude is not applicable to the bona fide Claimants, who as yet have received nothing that is calculated to elicit feelings of thankfulness, yet, we advise them to discard and denounce any evil disposed person who would affix a stigma upon their character as a body, by adding insult to opposition. If there are any thus inclined to prostitute the sacred privilege of free and unfettered auimadversion upon the public measures of public men, to the base and unworthy purposes of licentious abuse, we bid them beware how they come under the lash of our indignation,