NATIVE EXEMPTION BILL.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 2, 19 October 1844, Page 8

NATIVE EXEMPTION BILL.

[From the Nelson Examiner.~] It being notorious to every one that the laws of England have been, since British sovereignty was nominally established in these islands, far too rigorously enforced against such natives as have infringed them, the Governor and Council have passed a bill to prevent their penalties pressing so heavily upon them in future. The continual imprisonments to which the natives who have so often molested the settlers of the Hutt, Taranaki, or Motuaka have been subjected — Ihe excessive punishments which the rioters at Russell have undergone — above all, the promptitude, vigour, and severity with which the penalties of the law were inflicted upon ' the cold-blooded murderers of our countrymen at the Wairau, and which have struck such awe into the hearts of the whole native population, justify beyond all question this first attempt to alleviate the pressure of a code so cruel upon a people who doubtless only offend because not intelligent enough to comprehend its enactments, and not sufficiently enlightened to be saved from infringing them by the dictates of natural morality. As far as we can learn from notices of this bill in the northern papers, its object is to regulate the procedure in cases of crime committed amongst the natives themselves as well as amongst Europeans. In the first case, warrants are to be issued on the information of the chiefs, and directed in blank to the two principal chiefs of the tribe by the Protector of Aborigines, who is to fill the blank. The chiefs, in the other case, are also to execute the warrant, and receive as wages for so doing the sum of £2 for any distance within fifty miles, and one shilling for every mile beyond fifty. No native is to be imprisoned for theft, or charge of theft, but is to be allowed to go at large on depositing a sum equal to four times the value of the property stolen, or, apparently, on procuring two or ftnore chiefs to bmd themselves in a sum not exceeding £20 to secure his appearance to take his trial. If tried and convicted, he is to pay four times the value of the stolen property. No native to be imprisoned for debt. The Governor, in moving the first reading of this bill, takes occasion to reprehend the notion of imposing upon the natives the whole of our penal code, and wastes much " excellent indignation" upon certain writers who are supposed to have advocated such imposition. Whoever the hapless writers who have

so unwittingly nettled his Excellency may be, we cannot believe that any one ever seriously desired or intended to recommend the adoption of any such course as that so denounced. To expect that a complex system of criminal law, which has gradually grown up in, and as it were moulded itself upon a highly civilized and artificial state of society, could all at once and in every particular be successfully applied to a society in a totally different condition — almost in a state of nature as it is called — is manifestly absurd. But to avoid this extreme, it surely is not necessary to run into the other; and, wherever the enforcement of the law may appear difficult, either to suffer it to lie dormant altogether, or pass new laws to remove the cases in question from the operation of the old. The Governor fortifies his opinion, that " mild and persuasive " measures alone ought to be adopted, by a reference to the despatches of the Marquis of Normanby and Lord John Russell. Lord Normanby in directing Capt. Hobson to put down at all risks, and by force if necessary, canibalism, human sacrifice, and infauticide, certainly prescribes the previous essayal of "all the arts of persuasion and kindness." Lord John Russell, in speaking of native customs, also orders that no toleration be given to the above mentioned crimes, and proceeds thus : — " On the other hand, there are customs which, however pernicious in themselves, should rather be gradually overcome by the benignant influence of example, instruction, and encouragement, than by legal penalties." And further, there are other customs which, " being rather absurd and impolitic f han directly injurious, are to be borne with.*' Now these, from all that we can learn, are the only classes of crimes according to the English law which Lord John Russell appears to anticipate it will be proper to exempt from its ordinary operation. Certainly, it cannot be maintained that he included theft among the customs to be so leniently dealt with, " however pernicious in themselves," nor among those which he calls " rather absurd and impolitic than directly injurious." But one thing is clear, from various incidental allusions in that admirable despatch of Lord John Russell, so replete with sound sense and practical experience, that his lordship takes it for granted, as a general principle, that the law of England is to be established over the entire native population, however modified and specially adapted to their condition, He says in the paragraph containing the above extract, "It is important to advert distinctly to this topic, because without some positive declaratory law, authorising the Executive to break such customs, the law of England wovld prevail over them and subject the natives to much distress." But this, the natural result of declaring these islands subject to British sovereignty, Lord Stanley seems to have abandoned the idea of attaining. Governor Fitzroy read despatches " authorising the exemption of natives from the operation of British law, and directing him to employ British authority in mediation only." And this after the Treaty of Waitangi, about which so much noise has been made, by which the chiefs distinctly bind themselves to " relinquish all the rights and powers of sovereignty which the said confederative or individual chiefs respectively exercise or possess." But if the Government be only mediators, the powers and rights are virtually and literally restored. And of course as the condition upon which the possession of their lands was secured to the natives is broken, the Government is no longer bound to maintain their right to these lands. But the Governor allows that this bill goes even furthur than this — implying, we suppose, that British authority out here is not sufficient for purposes even of mediation. Let us not be accused of exaggeration. Captain Fitzroy himself allows that the " powerful chief who told him he was Governor of the whites and the chief himself of the natives," was right, and that such would be the case for years to come. The declaration of sovereignty and the Treaty of Waitangi were all a mockery then, It will be seen that we have assumed above that the Council, by the bill they have passed, have included theft among those customs directed to be tolerated by Lord John Russell, that is, not to be visited with legal penalties. We have done so, - because we cannot but conclude from the whole debate, that the bill is only an excuse for getting rid of the necessity of enforcing the law at all in such cases. For the Attorney-General declares in so many words, that in case of the natives refusing to pay the amount of their forfeited recognizances, the prisoner not being produced, the recognizance " must remain a dead letter." And of course, supposing the culprit produced and convicted, and refusing to pay the penalty, the law inflicting it must equally remain, a dead letter ; for one could be exacted as well as the other. And the Governor confesses that imprisonment is to

be abolished to avoid the possibility of a rescue, such as had been effected in the case of Te Mania. Is it not clear then that the consciousness of inability to enforce the law is the cause of the measure? But the Attorney-General, whose extreme candour so often extorts our admiration and heartfelt thanks, informs us, in his straightforward manner, that "the intention of the. bill was not to enforce the law if it could be avoided." Really this is the most original reason for making a law we ever heard! We are spending all our valuable time, exhausting all our statesmanlike ingenuity to frame a statute so that it may not be enforced ! In other countries crimes have to dodge the law to escape them ; but here the laws are to dodge the crimes — to get out of their way with all the address they can! We have heard of acts of Parliament through which you might drive a broadwheeled waggon ; but this, we venture to say, is the first statute ever made expressly to accommodate such waggoners. It reminds one of the humane country-gentleman, who insisted upon his spring-guns being warranted not to go off. With such laws, how pleasing would be the statistics of crime in this colony! What quarterly gratulations should we not have from our judges on the lightness of the calendar ! What a show would a convicted felon be — what a lucrative rarity ! The gaol would be a crowded exhibition ; a lock-up a cabinet for curiosities.

Remarks on the Purchase of the Wairau. — Every succeeding day brings to light facts which prove more incontestibly than ever the criminality of the Maories at the Wairau, the injustice done to the Europeans by their being suffered to escape unpunished. Mr. Spain the other day stated distinctly, and in open court, that he considered the natives had long ago been amply paid for the land claimed by the Company here, — at a larger price per acre than any other land that had been purchased in New Zealand. The sum of JSBOO then about to be given them, the Commissioner declared they must receive not as part payment, or as a matter of right, but solely as an act of grace and good-will on the part of the Europeans. Now, these lands so fairly bought, so amply paid for, were purchased by two deeds, dated respectively the 25th October and the Bth November, 1839. They first purchased the rights of E' Hiko, and -others of the Kawia tribe — Rauparaha and Jiangs hiaiata both signed it ; the second, those of E' Hawe and the Ngatiawas. Both not only mention boundaries of tracts including the Wairau, but also expressly particularize " the river and district of Wairau," as well as other places in Cloudy Bay. Nothing could be more clear or explicit. And in both, Kapiti and Mana, and the small islands adjacent, are expressly excepted. Now, had there been unwillingness on the part of the natives to part with the place in question, or any difficulty about it, would not it have been excepted as Kapiti, &c, at least not expressly mentioned as sold? But there is collateral proof of Rauparaha's having knowingly parted with this district ; for Colonel Wakefield's journal, published long ago, happens, singularly enough, to allude particularly to the signing for Cloudy Bay. ' ' Rauparaha and C harley signed it by proxy for some relations at Cloudy Bay who are not of consequence in the disposal of the land, but who will receive a part of the payment by their names being recorded." Can anything be more conclnsive ? Blind Bay and Cloudy Bay bought at the same time — by the same deeds — with the same goods. Blind Bay acknowledged by the Commissioner rimself to have been better bought than almost any other land in New Zealand, must not Cloudy Bay have been so .too ? Why should the Company's agent then have made any difference f Cloudy Bay must have bren thought then even more valuable than Blind Bay. Can we doubt for a moment that the Commissioner will declare the Wairau to have been bought as fairly and fully as the other places? — Nelson Examiner.