LAW IN NEW ZEALAND: A CASE FOR GOVERNOR FITZROY.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 20, 22 February 1845, Page 4

LAW IN NEW ZEALAND: A CASE FOR GOVERNOR FITZROY.

Governor Fitzroy having taken upon him the functions of jmlge as v.eil as of Governor, jt is not easy to say what may at present be considered law in New Zealand. When Jack Cade takes upon him to declare " ihnt all the laws shall come out of his mouth," or where " Midas is judge and jury," it is no discredit to a lawyers learning to hesitate before he gives an opinion. It will be inferred from this preface that we are about to ask not to give an opinion :—: — 1. An enactment of the time of Governor Hobson declares that the laws of England, as modified to suit the circumstances of New SeaiH WaYs, are ."dented i" >"»w Zej>U«nd. 2. In 1830 a Captain Stewart entered into a charter-party with Rauparaha, in implement of which that chief and his followers were conveyed in Stewart's vessel to Otago, where he massacred a number of the natives, and took a prisoner, or prisoners, who were conveyed along with their captors to Entry Island and there killed. 3. It appers from the evidence of J. B. Montifiore, before the select committee of the House of Lords in 1888, that on Stewart's return to Sydnpy he was tiled for murder, ar.d only escaped tor want of evidence. Mr. Montefiore's evidence 13 corroborated by the reports of the missionaries. 4. Last year a Mr. Toms, who, like Capt. Stewart, is owner and master of a vessel, engaged to convey, and did convey Raupataha and his followers to Cloudy Bay, where they killed twenty- two British subjects. There are affidavits by some of the crew, to the effect that Toms was aware that the object of Rauparaha was to fight the English hi the Wairau, and that they were of opinion that Rauparaha paid Toms for his passige. 5. Toms did for Rauparaha in 1843 what Stewart did for Rauparaha in 1830; Stewart was tried for his part in the massacre at Otago, at Sydney ; the laws of Sydney are the laws of New Zealand ; ergo Toms ought to be tried in New Zealand for his part in tiie massacre at the Wairau. But for the cauje of ..uncertainty aforesaid, ihis inference appears unassailable. We request from Governor Fitzroy, to whom we have taken the liberty of forwarding this number of our paper, to inform us whether our legal deduction is sound? Or if not, what is the difference between the cases of Toms and Stewart ? Rauparaha was not tried in Stewart's case, so that need be no hindrance. Probably the distinction lies h*re: that the panic's killed at Otago were natives, whereas those killed at the Wairau were only' Englishman. — C olonial Gazette. The "Times"' on the Present State of Tenure of Land in New Zea^anp.-^ There is something very plausible in 'the. assumption that the few tribes of savages we find scat ted over a vast territory are its owners, and that consequently any one may acquire portions of it by purchase front them, while no man may acquire it without that , process. Justice seems to demand the assumption, because we naturally view things by the light of our owu sphere, and forget we ' bave %9 deal with rude minds and an' almost unoccupied soil. Humanity seems to demand it, because taking possession oi land not

regularly devised or conveyed is, in our own experience, a violent act, generally accompanied with outrage to the peison a» well as to the abstract principle. " * ; The above assumption, however, is not just, because there is no right of property which is not founded on occupation. If a mm or ship's crew find themselves on a desert island, they do not by that accident acquire a transferable right to the whole, but only to what they really occupy. Land till occupied is as common as air and water. As to the various kinds and degrees of occupation, they give rise to further questions of property, but do not affect the general rule. Nor is the assumption humane. It cannot be humane to create the imagination of a right wlm h does not exist, and that in the minds of weak and ignorant men, utterly unable to understand the imagined right and to protect it from force or fraud, or to use it except to their own serious hurt. It is not humane to treat children and lunatics as it they were reasonable men. To the principles, therefore, expressed in the following extract, we entirely subscribe: — " When it was first proposed to establish New Zealand as n British colony dependent upon New South Wales, Sir George Gipus, the Governor of the latter, in a very, aide address, laid down the followiug principles as those on which he had framed the bill which it was his duty to submic to his Legislative Council for the regulation of the infant colony of New Zealand: — ' The bill is founded, 1 he said, 'upon two or three general piiuciples, which, until I heard them here conti overtoil, I thought were fully adin tted, an.l in lee 1 received as political axioms. The first is, that the uncivilized inhabitants of any country have but a qualified dominion over it, or a right of occupancy only ; and that uti'il they establish among themselves a settled foim ot Government, and subjugate the ground to thnir own uses by the cultivation of it, they cannot grant to individuals not of their-owu tribe any portion i>f it, for the simple reason, that they hive not themselves any individual propei ty in it. Secondly, that if a hettlement be made in any such country by a civilized Power, the right of pre-emption of the soil, or, in other words, the right of extinguishing the native title, is exclusively in the Government of that Power, and cannot be enjojed by individuals, except with the cons>nt ot their Government. The third principle is, that neither individuals nor boilies ef men bc''niging to aiiy najtion can form colonies, except with the consent, and under i\x<i direction and control, of their own Government ; and that from any settlement which they may form without the consent of their Government they may be ousted. This is simply to ! say, as far as Englishmen are concerned, that colonies cannot be formed without the consent of the Crown." _ The adoption of these printiples is tantamount to the recognition of an immense responsibility. In declaring our righ"?, we admit our dut es. When a. civilize.! Government proclaims itself lord of a soil m' the partial occupation of savages, it thereby to some extent deposes their chiefs, abrogate^ their Lws, and takes them under us own special protection. But sucli is ifs responsibility to begin with. Th*» wild man is sure to lare ill in co itact with the civilize 1. He cannot h*lp himself. The civilized state; must interfere to help him, and treat with him a* under disability. Who would put edged tools into the hands of a chi d or a ma'lman ? Wi'y then give unintelligible rights to a savage! Piotect him, watch over his real interests and comforts continually, respect what he already ieels to be property, help him to enlarge his tastes and his store, step by btep raise him to an equality wi'h the stranger as 'ar as can be done ; treat him as the helpless client of a powerful patron -. and, abovß.aH, §tand betweeu him ami the unpriucipled s-peculatQrs always found to in' si an infant colony. This is the only justice the case admits of—the justice due, not from equal to equal, but from a superior to an inferior. This is the only humanity. But to declare him, as the lord of the soil, above your head, while he has not cne circumstance in his condition, ot one idea in his mind, suited to that title and necessary to its maintenance, is but a mockery of justice, and only hastens his fall. We all know how tragic the catastrophe which in Uo or three genera-, tions concluded Perm's pompous farce. The bribes which, under the abused na&oe of purchase money, the Western States have even recently g'nen their. lodiaa neighbours, are only so m_uch. poison foe the deluded wretches. . But the case of the Indian has more preteqqe3 of right than that of the New Zealander. The former is a hunter, and so does really occupy an extensive territory; the $e» Zealander has, nabbing la lmot, and occupies only his field and his garden.' The late Governor fully admitted (Us. principles laid, dpwn by> Six George Qipps, >et fcfough * ierw.3. of misfortunes aa4 delays.

were ultimately committed to a most unfortunate dereliction of them. Both the Crown and the Parliament hud formerly disclaimed the sovereignty of these Islands. When, however, many British settlers, and eventually a whole colony, had left those shores, then at last Government discovered its error, and found it necessary to claim both the colony and the Island. " But a different policy having been at that time pursued (viz , 1832 and 1825) it was considered in the year 1839, when Capt. Hobson was sent out, th it the difficulties which had thus been created could only be got rid of by obtaining from the natives their assent to the extension of the authority of the British Crown over New Zealand. Acting under the instructions he had received, Capt. Hohson, therefore, immediately on his arrival at New Zealand, at the beginning of the year 1840, concluded with a large number of the chiefs of the Northern Island a treaty, known as the treaty of Waitangi, by whk-h, in ietur» for their acknowledgement of British sovereignty, they were promised protection, and guaranteed in the possession of all land held by them individually and collectively." The wording of this treaty is strangly ambiguous. What is meant by a collective holding ? Both Sir George Gipp* and Lord John Russell appear to have un.lerstood the tieaty in some sense compatible with the principles above quoted from the former; and there is no doubt that, not merely the expressions, hut the whole transaction was at the time an absolute mystery to the natives. It might then have remained a dead letter, ami certainly would if the only paities concerned had been the two contracting powers, —if powers —if contracting they might both be called. But unfortunately the greedy race of speculators, strangly overlooked by the Government, came ai.d set to work foraging for estates aud titles amongst these rude barbarians. It was enough for them to induce some chief or other to take what to him was boundless wealth, and to procure a conveyance good enough fo* the market. A strange confusion shoitly arose. Sales were diSDwned. The venders, wiser thau our civilized rulers, pleaded their own ignorance and incapacity. Or they could not prove their own titles —of course having none. Or other chiefs rose up, and finding what valuetrie strangers attached to a few words, a mere play of the fancy, thought they might as well try the same ptoatabiij tiick over again upon the same space of ground. Or a whole body of chiefs rose up and asserted a common right, or a religious obstacle, or the impossibility ot sale of land. Others, however, were more facile. The price of land rose, and chiefs were bribed high. Meanwhile our Crown had asserted its sovereignty, and claim to authenticate these private transfers. This was a new e'ement of confusion. They who had occupied the land, and planted, and built, a it! become as good as indigenious chiefs, weie no better off than the possessors of the ne«est and most imaginary titles. Who owned the land ? The collective chiefs, the ii.d.vidual chiefs, the collective Crown of. England, the individual colonists? Was tin re ever such a mess ? Of course agriculture and trade came to a stand-still, and the colony went to the dogs. Such was the state of things which eventuated in the mas acre of Wairau. which appears at last to have called all parties to their senses. —New Zealand Journal.

Government Debentures. —It appears horn lecein arrivals, that Captain Fitzroy has issi c 1 debentures:, bearing the nominal value of one pound fur the first year of their circulation, and one guinea for the second year; —to the amount of £15,000. These debentures appear to be issued on the strength of the anticipated customs revenue. In other words, he' has pawned the revenue for the next two years of ihe most important department; aud by his own egregious folly has deprived himself of the only other source of revenue, viz., the Government sales of laud. The Auckland papers are delighted with this state of things, for the simple reason —that they forsee the ultimate breaking vu t > of the Government in consequence. They are partly right. It it be not broken it will lead to a better state of things. When demands of heavy sums are annually made from the Imperial Parliament, for the Government of New Zealand, they wiH speedily devise some means of getting rid of the burden. Nothing tells with John Bull, like touching his pocket. The worthy old gentleman will look on with the most praiseworthy philanthropy at the oppression of his children on his distant estates: he will even see them murdered without winking but only so long as he has nothing to pay for it. Touch his pocket, and he begins to think something is amiss. So that even out of Captain Fitzroy's debentures, good must arise. New Zealand, wiih all its absurd machinery of government officers, has now no revenue !—! — nothing wherewith to pay for their distinguished services.—-ifo'e?.