WAIRAU.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 6, 16 November 1844, Page 4

WAIRAU.

(Lord -Stanley's Despatch to Governor '/ Fitzroy.) Downing-Street, February 10, 1844. Sijt,~l have received from Mr. Shortland two Despatches on the conflict at Cloudy BJay between a party of Europeans under the command of the late Mr. Thompson, and a body of the Natives commanded by two of thejr chiefs. Both of those Despatches are dated' on the 13th July, 1843 I cannot approach the subject without expressing the regret with which I have received and laid before the Queen the intelligence communicated by Mr. Shortland, and the concern with which her Majesty received the information. We have to lament not only a great immediate calamity in the loss of many -valuable lives, but to apprehend that among the more remote consequences of this occurrence may be numbered- the interruption of the peaceful and prosperous progress of the British settlements in New Zealand. To avert that disasterous result, will call for the exercise, by yourself, and by all the authorities subordinate to you, of much forethought, resolution, and forbearance. It is no part of my present intention to prescribe, or even to suggest, the measures which jit may be your duty to adopt for averting the calamity to which the colonj has been exposed, or for preventing the recurrence of similar evils. Such is the distance 'whjch separates me from the sce»e of action, that no direction which' I could transmit could either overtake the exigency of the occasion, or be founded on a knowledge of the circum- I stances of the case sufficiently exact and comprehensive for- the guidance of any practical measures. Fortunately it is not necessary that I : should make the attempt. Long before 'this Despatch cair reach New Zealand, you wilt I—of1 — of course— have adopted your own iine of conduct. I doubt not that the Report of your measures, whenever it shall reach me, will justify my anticipation that they will be ■such es to merit and obtain her Majesty's gracious approbation. But ray inability'to control or guide your first- proceedings with regard to the conflict at Cloudy Bay, does not absolve me from the duty of expressing my opinion oh the occurrences repotted to me by' Mr.' s Shortland. On the contrary, it enhances the -necessity of an explicit statement of that opinion. My silence on that subject would leave you on any future exigency of the same kind, destitute of the means of knowing how to adjust your policy to the views of her Majesty's Government. ' First, then, I am to advert to the abstract questions of strict legal tight, to which in the course of the papers hefore me such frequent reference is made. I perceive that the vari- j ous parties to the discussion appear to concur in thinking that the law of England is the Rule by which the conduct" for the conteuding.tforces, whether Native or European, must be ' tried*. To this broad maxim I canript assent without qualification/ In our dealings wjlth the uncivilized chiefs and tribes of New Zealand .it is, indeed, necessary to adhere ax closely as possible to the general principles of English law ; but any close observance of the technical rules and forms, of that Code must, in a large proportion of cases, be either imjyracjic^bie, or unmeaning, or both. To apply our legal maxims, £od our manner of judicial prpcedure in our relations with savages, to our laws, our language; out religion <afld manner* are alike unknown, cannot be necessary : , first, because jt _^g .no£ pbisibTfc, and then because, eyep if possible, itwtoiiid not be just, Tjjej effect of this in enforcing our kwo i n I '~tfre native New 2ealanse,rs, Villj { adtoit^jbe to leave ibe European settler^ fi£a§jfcftr's&y wi'thput any'pc^iti,v,e rule fqir^he'i^ fe^du^l'fowrards^them.'^But tfrii ; dfie"o? tfie" motives, whicfi led,.tp . itye a^se^ion ofjhe £lueeri*s Sovereignty ovet , t tne, ,whoje &tmtf^, 2 ?4nd to i tKe"e&tablishment of a,]oc?l Begtsjatyfre th'e\e. To tha^/bgidy r^ns^ ipakforthfi'enactmeritjOf l^w^s adapted to so ringuljir a condition of socieiyy In the meanwhile,' the absence of such la,ws ; the tna^istr'aty cqust be gpverned. -^n thejr cpijduct idwifcte^the Aborigipes by't^ofe .cbpsidera-, tioris 'of -ef^tiity an^ prudence ( Jwhipt iejdom $& (^'afford. a itfe conduct in u jjuch iiifficuk

Secondly : whether I try the proceedings ot Mr* Thomson and his followers, as detailed in the evidence before me, by these general principles, or by the narrower rule of the law of England^ 1 am compelled to adopt the same conclusion. I adopt, and record it with that serious concern with which alone we can contemplate the errors of our fellow countrymen when expiated by the most lamentable sufferings, and -even — as unhappily in this case — by death. But ray regard for the memory of the deceased (among whom were several gallant and meritorious men, and eminent benefactors of the Colony) does not acquit me of the obligation of stating explicitly my judgment of their proceedings. It is a painful duty : for that judgment is, : that they needlessly violated the rules of the law of England, the maxims of prudence, and the principles of justice. To explain and verily this conclusion, it is necessary that I should briefly review the successive stages of the transactions which Mr. Shortland has brought under my notice. The native chiefs would appear to have been charged with the crime of Arson. Mr. Thomson issued a warrant for their arrest to appear before him as a magistrate to answer that accusation. I have no copy of the depositions on which he proceeded. If they corresponded with the evidence subsequently taken, the charge, even if tried by the text of the law of England, was unfounded. The result of that evidence is to show that one of the Surveyors of the" New Zealand Company erected a hut near Cook's Straits, with various signals, for the purposes of his survey — that the lands on which these erections were made was in the possession of the chiefs of their tribes, and had been so from time immemorial — that they claimed to be the proprietors as well as the occupants of the soil — that the hut was a mere wigwam, rndely put together of wood and rushes cut from the same land — that, regarding the hut and the signals not merely as an encroachment on their property, but as the unjustifiable assertion of a title derogatory from, and hostile to their own, the natives pulled down the signals and burnt the hut, having first removed from it all the goods they found there, that they might be safely preserved for the owners of them. Now, if an occurrence precisely similar to this, had taken place in England, I do not understand that the destruction of the hut would have been in any sense criminal. If a forcible entry be made on land in this country, and if the intruder establishes there as symbols of his asserted title, an edifice composed of materials taken from the land for that express purpose, I know of no law which forbids ihe destruction of such an edifice by the persons so dispossessed, or which renders the use of fire for that purpose illegal, if the conflagration be not attended with any danger' to the person, or to the property of any one else. I do not hazard any opinion whether the title of the Company, or that of the natives were the better title. It is needless to consider that question. That the natives were, andhad ever been, the actual occupants of the soil, is not disputed. Consequently the attempted dispossession of them by the methods already mentioned, without any process of law, was a lawless act, and the resistance -justifiable. Suppose,* however, that the letter of the law of England would have require] the postponement of the demolition of the hut until the order of the Magistrate could be obtained for that purpose ; yet, even so, it does not follow that the New Zealanders acted feloniously or illegally in taking the remedy into their own hands, without this sanction. There was no Magistrate within their reach to whom to apply. They could know nothing of the nature and extent of a Magistrate's j authority, and they had no common language in which to communicate with any such officer. Even on the low ground of mere technical law ; I am therefore, unable to vindicate the issuing of a warrant for the arrest of the chiefs. But on the grounds of equity and of. prudence, the measure was more clearly indefensible. " Justice required that respect should be^shownj' not teerely for the strict rights, bufceY*n for prejudices, arid the natural ufeelings of- these people, who were not only the ancient owners, but the original lords. and sover^igns-iof the landr Prudence forbade the .adoption of any measure by which their •aaimosity.: would be ; etasparated, 'their confidence destrbyed, anft'th'eir settee of personal dignity, ooutragted. Or, .if 'imperious necessity, that such a measure slrould be hazarded, it was- at least indispensable that the fofccto^bei employed Should be such as to prevent bloodshed,' by rendering a, successful resist^ucei .obviously hopeless., j , t , In fa<^however,,aU .such pruden|jaL co.ns&erationV'were forgotten. Ajt the head of jj^aVty °of~ about 'fifty ar,meH' men, Mr. Thompson proceeded to execute his own warrant. His followers were riot even sworn

in as special constables. Here again,- was an equal disregard of the principles of English law, aftd of the rules of sound discretion. Those principles Were opposed to the employment of a military arfay for such * purpose ; and those rnles were invaded by opposing so small a body of volunteers to twice the number of native New Zealanders, equally armed, and better trained to such warfare, and protected by the shelter of their own fastnesses. When the hostile parties were drawn up in the presence of each other, the same spirit of rashness seems, unhappily, to have prevailed. For, although the Chiefs urged with temper, and enforced with strong reasons, their objections to yield themselves as prisoners of war, they were met by the production of handcuffs, (in their eye an intolerable indignity) and by the use of language which must have been as unintelligible to them as it was in reality inaccurate and misplaced. Mr. Thompson described his warrant as "the Queen's book," and spoke of himself as " the Queen's Representative." — Provoking hostility by their numerical weakness, the party would appear most unhappily to have hazarded whatever else was most likely to urge the New Zealanders into a conflict. No sooner had the Chiefs refused to surrender, than Mr. Thompson commanded his men to fix bayonets. They were moved forward by the cry — "Englishmen advance!" and at the moment a shot was fired, It is not clear on which side this discharge took place ; but the great preponderance of evidence is that it proceeded from the Europeans. Then immediately succeeded the deadly combat, followed after a brief interval by the rout, and the surrender of Mr. Thompson and his followers. Most calamitously the commencement of the conflict was signalised by the death from a gun-shot wound, of a woman who was the wife of one of the Chiefs, and the daughter of the other. Her death was avenged by him and her father in the slaughter of ! the prisoners they had made. i So manifestly illegal, unjust, and unwise, were the martial array, and the command to I advance, that I fear the authors of that order must be held responsible for all that has followed in natural and immediate sequence ! upon it. I know not how to devolve that responsibility on the natives. They exercised the rights of self-defence and mutual protection against an imminent, overwhelming, | and deadly danger. ( Revolting to our feelings as Christians and to our opinions as members of a civilized state, as was the ultimate massacre, it is impossible to deny to our savage antagonists the benefit of the apology which is to be urged in their behalf. They who provoke an indefensible warfare with barbarous tribes are hardly intitled to complain of the barbarities inseparable from such contests. And, even in a state'of society far advanced above that of the New Zealanders, some indulgence must be made for the fierce working of the vindictive passions of our nature at the moment, and on the scene of battle, when kindled by such a provocation as the violent death of a wife and daughter. On Ihe technical and legal questions debated in these papers, as to the precise definition of the lets done by the contending parties, and as to their liability to prosecution in the legal tribunals, I purposely abstain from expressing any opinion. I should promote no useful purpose by engaging in any such discussion. It is sufficient for me to say, that I find in these documents nothing which requires, and nothing which would justify my interposing to direct any such prosecution. ***** I know of no theoretical or practical difficulty in the maintenance, under the same Sovereign, of various codes of law for the Government of different races of men. In British India, in Ceylon, at the Cape of Good Hope, and in Canada, the Aboriginal and the European inhabitants live together on these terms. Native laws and native customs, when not abhorent from the universal and permanent laws of God, are respected by English legislatures and by English Courts ; and although problems of much difficulty will occasionally arise out of this state of things, they' have never been such as to refuse all solution, or as to drive the local authorities on the far more embarrassing difficulty of extending the law of England to petsons wholly ignorant of our language, manners and religion. < In conclusion, 1 have qrily to express the earnest hope^ I entertain that, by a .conduct towards the natives distinguished -, alike by conciliation, by sinceri^, andfi^rpne|s r it*niay have been in your pow,er to re-es|kbiish that i c6nfid'ence £ 'iVriie justice, and that respect for ! th r e strength* the Itpcal 'Government iwhjch i i the transactions stt" Clouxly %a.jf ha^e c bften so^j much- calculated $b impair!' ,' \ i - , , . ■ i ' J • ■ ' j , I hajg, &c n •;.'.- (Signed) " ' J( '" Stanley. ' Governor Fitziroy, &c, &c, &c.

DuTjES.^By * recent;, Afct of the tegisative Council, ' the GUstoms :J»ave- teen abolished, and all Goods may I be hffpOtted to this Colony free of DatWs;' The** « likewise no duty on Exports. *' Vessels visiting the harbours of New Zealand can enter free of all charges. Pilots are stationed at the principal Ports, bat vessels are not required to pay for, or to take Pilots aboard, unless they choose. Supplies of all kinds may be had at reasonable rates. 5 per cent is the usual rate of Commission, exclusive of charges.