The New-Zealander. SATURDAY, MAY 8, 1847.

New Zealander, Volume 2, Issue 101, 8 May 1847, Page 2

The New-Zealander. SATURDAY, MAY 8, 1847.

McINTOSH Y. SYMONDS.

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

This case, a report of which is published in our present number, is, when taken in all its bearings, and considered in connexion with all the interests and consequences which it involves, by far the most important that has been yet submitted to the decision of the Supreme Court of New Zealand. All the settlers, ■who read the report of the case, •will at once see, that its decision must immediately affect purchases made under Capt. Fitzßoy's proclamation 1 of the 10th October, 1844, and that it may affect similar purchases made under his proclamation of the 26th March, 1844, as well as those of the New Zealand Company made under Captain Grey's proclamation of the 21st February, 1846. Those who are familiar with the history of the colony will see, that it in* volves questions and principles, in which the interests and rights of the people of the Udi'ted Kingdom, the Government of the Colony, and the interests and fortunes of the settlers and the native race are intimately concerned. During the last four months, we have cautiously abstained from entering upon the discussion of these topics, not only on account of our conviction that a final adjustment of them could not be accomplished without the interposition of a court of law, but also, because we were of opinion, that such discussions, while they could hardly serve any useful purpose, might encourage the land claimants to persevere in a method of pursuing their rights, which was obviously calculated to diminish their real weight, and which the moie temperate portion of themselves disapproved of. "While the Judgment of the Supreme Court is pending, we are still prohibited from engaging in the discussion of those points of law, upon the decision of which it may be founded. But, the argument on Tuesday last, and the long period during which the claimants have deported themselves in a manner truly becoming the dignity of the cause in which they are engaged, completely relieve us from the fear of doing mischief to those whose interests are more immediately concerned, by a free discussion of the whole question, with the exception of those parts of it to which we have already adverted. It is hardly necessary for us to inform our readers, that the general merits of the question, and even those rights of the claimants against the crown, which are founded upon abstract justice, cannot be made intelligible, without a brief notice of certain difficulties arising out of the terms in which the Tieaty of Waitangi is expressed. According to the English version, which has been uniformly acted upon by the imperial and local governments, the chiefs of New Zealand agree to acknowledge the Sove reignty of her Majesty, and to give to herself, her heirs, and successors, the exclusive right of pre-emption over their lands, in exchange for the rights, claims, and privileges of British subjects, and protection !n the 'possess* on of all lands held by them individually or collectively at the date of the contract. The construction of the phrase. "exclusive right of pre emption," by the government, is well known. It has, however, been long contended, that this construction is not justified by the words of the phrase, whether taken by them* selves, or even in connexion with what is known of the intentions of the contr.ac.ing parties. It is said, tljajt the plain import of the. words " right of pre-emption" is simply thisj that natives, desirous of alienating their lands.

are bound to offer them for sale to the government in the first instance, and that, upon their refusal to purchase them, they may sell them to whom they pleaie. If this be the real import of the words in question, it is farther contended, that the addition of the word 'exclusive 1 ' can not alter their meaning, or even increase their force. Again, though the intentions of Captain Hobson, who represented Her Majesty in this matter, can not be called into question for a moment, the natives would, nevertheless, not be bound by the treaty, unless these intentions Were known to them. Now, it is affirmed (with what correctness we know not),that, according to the Maori version of the treaty, the natives are merely bound to make the first offer of sale to Her Majesty In support of this assertion, it is also urged, that the native chiefs could not have been induced to sign the treaty, had they been aware that it .would be constru .d by the government in a manner, apparently, so unfriendly to their interests Upon the othei hand, in the construction of contracts, some certain meaning must be attached to every word, if it is possible to do so, without interfering with the general spirit of the contract, or the intentions of the parties as ascertained from it, Now, the word "exclusive," obviously intended to answer an important purpose in the treaty, would be totally useless, if the word •' pre-emption" were used in its ordinary signification. It has, therefore, been contended, and with every appearance of reason, that the woid "pre-emption" can not be used in the treaty in its ordinary signification! and this conclusion is abundantly confirmed by the fact, tint the word "pre-emption" was adopted into common use from our constitutional law, in which it has a peculiar meaning, upon which we ought not at present .dwell, farther than merely to observe, that its introduction, in its original and peculiar meaning, into the treaty of Waitangi, can by no means be considered to be either forced or unnatural. Sir George Gipps, a first-rate authority in these matters, in the principles upon which he framed his bill for the government of New Zealand, uses the phrase " right of pre-emp-tion," as synonymous with the right of extinguishing the native title. Our ignorance of the native language would at any time disable us from saying any thing concerning the Maori version of the treaty upon our own account. If we were convinced by the testimony of others, that that version supports the construction above mentioned, and no other, the published accounts of the proceedings of the parties- before the execution of the treaty would not enable us to decide^ whether the difference in the import of the two versions was occasioned by a misapprehension by each party of the real intentions of the other, or by the ignorance and mismanagement of the interpreters. Even if we were adepts in the Maori language, and also fully acquainted with all the details of the proceedings of the parties immediately before the execution of the treaty, the question, whether the natives are or are not bound by it, could not be discussed at the present moment without an obvious violation of public decorum. In what follows, then, we shall suppose, that the construction of the treaty by the government is the correct one, and of course that both races were bound by that construction. Not long after the execution of the treaty, difficulties began to present themselves. The treaty was nominally made between the confederated and independent chiefs of New Zealand upon the one hand, and Her Majesty upon the other. But, in reality, a vast body of chiefs neither signed the treaty, nor were in any manner represented by those who did. Were these men bound to obey the treaty ? The military interposition of Mr. Shortland, for the prevention of a war between some native tribes at Tauranga, elicited an opinion upon the subject from the Attorney-General of the colony, which was the immediate occasion of a despatch from Lord Stanley, in which the question was settled for ever in the affirmative. Again, supposing the existence in New Zealand of lands unappropriated by any particular tribe or tribes, what is to become of them ? The treaty guarantees to the chiefs and the tribes, the full and undistutbed possession of those lands and estates which they may collectively or individually possess, and grants to Her Majesty the exclusive right of pre-emption over such lands as the proprie tors may be disposed to alienate. But, notwithstanding the silence of the treaty upon the question which we are considering, Her Majesty's right of property in the unappropriated lands of New Zealand is plainly implied in it The right thus implied in the treaty of Waitangi, is openly asserted (with, at least, as much policy as justice, we believe), in the second clause of a local Ordinance, No 2, Sesa. 1 , in which it is declared, that all Unappropriated lands in New Zealand, subject to the rightful occupation and use thereof by the natives, are Crown or domain lands of Her Majesty, Her Heirs and Successors, and. as the phrase "Crown or domain lands of Her Majesty," seems to be synonymoui with the phrase ''waste lands of the Crown/ 1 there can be no doubt, that^ if any lands could be discovered in the Northern Island unappropriated by the natives, they would have been subjected to the operation | of tha Australian Land Salel Act, But what

is the real nature of Her Majesty's interest in the appropriated and wpurchased lands of the natives. The treaty itself, and the instructions and despatches upon the subject received by Captain Hobson from the Colonial Office, lead us at once to the conclusion, that the exclusive right of purchasing such lands is a trust - held by Her Majesty, for the benefit of the natives, the settlers, and all her subjects. But, whether Her Majesty can waive her exclusive right of purchasing such lands, or whether they come under the denomination of Crown lands, domain landi of the Crown, or waste lands of the Crown, are questions at present under the consideration of the Supreme Court. But, to return to the natives, they found themselves, soon after the execution of the treaty of Waitangi, placed in a most embarassing position. They were anxious to sell their lands, while the Government was unable to pu i chase them, and the settlers were prohibited from doing so. From the foundation of the colony, the old land claimants were, not without justice, extremely discontented with the usage which, they received at the hands of the local government. Even their remaining hopes, which were sufficiently high, combined' with the £\ per acre system, created a general desire amongst the settlers to be permitted to purchase land from the natives. This desire was artfully inflamed by the land claimants, partly from principle, and partly for the purpose of gaining allies against the local government. The doctrine of free-trade in land was preached in every direction, and advocated witff spirit and ability in a newspaper conducted by men of great weight in this part of the colony* Nor was the doctrine of free-trade, properly so called, pushed forward with less zeal and energy, through motives purely political. The fire, thus kindled amongst the settlers, was soon propagated to the natives, on account of tha constant and familiar intercourse between the races in this part of the colony.' The warlike chiefs about the Bay of Islands, whose luxuries were principally supplied by trade with the crews of whalers., became by degrees confirmed in the idea, that all their miseries were occasioned by the Customs' duties. The great bulk of the chiefs in this part of the island, unable to procure European goods, and perfectly familiar with the desire of the settlers to buy their lands, began to look upon the prohibition to sell as a badge of slavery, and bore the supposed outrage upon their independence with no slight degree of impatience. There are good reasons for supposing that this condition of things in the colony, arising out of discontent not without foundation, and the total inability of the local government to do anything in any direction, was well known to Capt. Fitzßoy before he left England. To a generous and sensitive mind like that of Capt. Fitzßoy, the doctrine of free- trade in land under the circumstances in which New Zealand was then placed, and that of free-trade properly so called, were by no means uninviting. But, however this may he, it has been long well known, that he commenced his administration of the affairs of this colony, under a conviction that he could carry it on with success, without any other means than the advocacy of the two popular doctrines, and his own personal inluence, which was at all times considerable. The old land claims were soon settled tothe satisfaction of the claimants, the Customs' duties abolished, and a property and iocome tax imposed upon the ruined settlers of a colony founded five years before, at the express desire and even instigation of their chosen and well-meaning champions. The old land claimants after their triumph turned round upon their former friends, and soon began to denounce free-trade in land as wholly unorthodox. Their motives, however, being duly appreciated, their efforts were not attended with any perceptible success, while the excitement of the natives was becoming daily more intense, not only on account of the continued existence of the causes which originally produced it, but also on account of their increasing familiarity with ! the weakness of the government. The proclamation of the 26* th March, 1844, was the first step taken by Capt. Fitzßoy for allaying this discontent. This measure, as might nave been foreseen, while it appeased the discontent of the native chiefs who resided near the towns, inflamed the discontent of those who, residing at greater distances, were unable to dispose of their lands under the proclamation, on account of the magnitude of the fee required by it. 'the irritation of these chiefs proceeded at length to such a pitch, that the Chief Protector considered it to be his duty to make a formal report of it to the Governor. In consequence of this report, Capt. Fitzßoy s proposed to the Executive Council, on the 1 10th October, 1844, the subject of altering the existing regulations respecting the purchase of land from lhenatnes,so as to meet the emergency reported upon by the Protector. The Colonial Treasurer was of opinion, that an immediate reduction in the amount of the fee was demanded by the crisis which bad occurred, The Attorney-General thought, that the trade in land should be perfectly free ; that it would, however, be desirable to ascertain the views of the Home Government i oreriouslv to the takinor rich a step, but that

n at the fame time the delay thus occasioned >f would materially increase the extent aud mii- tensity of the present dissatisfaction. The ;t Colonial Secretary thought, that the amount >• of the fee should merely be what was sufficient t, to defray the expense of issuing the Crown q Grant,and preserving the right of the Crown, •r and that every manner of outrage by the nae tives, and even civil war, might be the con* ir sequence of the delay that would be occa>f sioned by previously consulting the Home c Government upon the subject, however pru- - dent he would otherwise consider that step to >f be. The pen ny-an. acre proclamation was c issued on the same day. Such is the real history of the now famous proclamations. Though a just exposition of their origin must commence with the treaty of c Wnitangi, they are by no means essentially in> j] volved in that treaty. A judicious code of c regulations for selling, demising, or granting for occupation under license, lands the property of the Crown or of the natives, was a measure implied in the treaty, when taken in | connexion with the character and condition of' the natives, and the existence of the, old land claimants. Such a measure, combined with a government of ordinary power and influence, 1 would have effectually prevented that excite- ' ment of both races out of which the proclania- . q tions immediately arose. The Australian Land j Sales Act, however, must necessarily have had its period of trial, and this Act, by preventing ' the seasonable adoption of the regulations upon , which we are observing was sensibly concerned in the production of the proclamations. If the [ history of the proclamations which we have " given be correct, nothing can be more absurd than the account of their origin which has been in circulation since the arrival of Capr, ' Grey. It has been alleged by many persons ' who had their own reasons for doing so, that ' the proclamations were the fruits of intimidation and conspiracy practised upon Capf, , Fitzßoy, ' through the medium of the natives, [ by the purchasers of land under these docu* ments. The highly Indispreet conduct of a very small portion of them, and Capt. Fitzßoy't ' geueral declaratfou in one of bis despatches to [ lord Stanley, that the government was com* ' pelted by intimidation and conspiracy to issue the proclamations, gave a semblance of truth to the charge in the mind of Capt. Grey, "upon his arrival in the colony, and before he coulpt have known, any thing.. of the real history of the documents in question. But, in reality, the practical working of the treaty of Waitangt rendered the native mind open to receive any impressions from without, however inflammatory in their nature, provided bnly they fell in. with the ruling feeling of discontent. The combustible materials being thus set in order, the matches were toon prepared by the existence of the old land claimants, the Australian Land Sales Act, by the well-founded and universal discontent of the settlers, and the entire helplessness of the . government. Though some of the settlers were infinitely more con-, cerned than others in exciting the native population, yet the excitement itself had its origin and continuance, infinitely less in the settlers, than in things and causes over which they had no control, and in which they were not at all concerned. The undue weight which Capt. Fitzßoy attached to the conduct of some of the settlers in these transactions, cannot ap« pear wonderful to those who remember the faithful vigilance with which he endeavoured to guard the interests of Her Majesty, and hit consequent readiness to believe in the existence of conspiracies, which were either unreal, or mere open combinations of a fe*v settlers for the promotion of interests more or less petty* Supposing that Her Majesty can waive the right of pre-emption over the appropriated and unpurchased lands of the natives, whether a governor of the colony can, under any circumstances, exercise that privilege on her behalf without her consent, and, if he could do so upon certain emergencies, whether the particular occasions upon which the procla* mations were issued would come under the head of these emergencies, are questions upon which we would "not enter with any regard to propriety at th» present moment. In the meantime, it is perfectly certain, that the I documents in question were not issued hastily or rashly. The penny-an-acre proclamation, at least, was issued after deliberation conducted with theatrical solemnity. The governor was .. supported absolutely and unequivocally by the treasurer, and though a difficulty wa» at first raised by the other two members of the Executive Council,yet it was subsequently so qualified by themselves, as to become wholly unsubstantial and shadowy. And, what is most, remarkable, the very idea of illegality in any part of the proceedings does not appear to have entered the mind of the AttorneyGeneral. All the members of the Executive Council must therefore be looked upon'as fully -* and almost equally embarked in the penny an acre proclamation. The^riews of the imperial government upon these transactions may be collected from two despatches of Lord Stanley's, one of which, dated 30th November, 1844, is addressed to* Captain Fitzßoy, and the other to Capt. Grey, In the former, the ten shillings an acre pro r clamatioo, and an arrangement between Capf, Fitzßoy and the Company, by which H*r Majesty* right of pre-emption over a large district of land wa«>aived by Cityf, Fitzßoy, without her content, in favor of the Comoanv.

are confirmed. In this despatch, though the common interest which the crown, the settlers, the natives, and the British people, have in the land fund, is never lost sight of, the vast superiority of the natives over the aboriginal inhabitant of other colonies, their great progress in civilization, and the perfect justice of their discontent with the Treaty of Waitangi, are all acknowledged, and duly appreciated as apologies. Lord Stanley also expresses in this despatch his opinion (not, however, it would seem, after a consultation with the crown lawyers), that the appropriated and unpurchased lands of the native? were not waste lands of the crown, and, therefore, not subject to the provisions of the Land Sales act. In the despatch to Captain Grey, he specially instructs him to recognise the sales sanctioned by Captain Fitzßoy under the penny an acre proclamation,discountenancing, at the same time, future sales of the same kind, without Her Majesty*s sanction, and before the amount of unappropriated land was ascertained in the manner recommended by the Select Committee. But, Captain Grey, not looking upon the despatch as an out and out confirmation of the penny au acre proclamation, and having before his eyes the terror of the Company as well as the authority of the Select Committee, has not, up to this day, done justice to the claimants. He has, indeed, offered them certain terms, which som of them have accepted, and, though all persons concerned for the peace of the Colony would have been rejoiced at their being accepted by all the claimants, yet it must not be forgotten, that the terms were not equally beneficial to them all, and that men standing upon rights will not always submit to be treated as beggars or petitioners for favor. Even though the Judgment of the Supreme Court should be unfavorable to them, their claims upon the honor and justice of the British Government can not be disregarded, without a violation of every principle by which Great Britain has been hitherto guided in the government of her colonial possessions— without disclaiming the acts of a governor and his responsible advi B6n upon grave emergencies, and instructions and despatches sent by the Secretary of State for the Colonies to two different Governors For ourselves, we can safely say, that, though we have never in any way fallen in with the popular doctrine of free trade in 'land, and although we have always looked upon claims to land as the greatest scourge of the colony, we would be ashamed to deny, or even not to assert upon fitting occasions, the just claims and rights of the purchasers of land under Capt. Fitzßoj's proclamations.