INSTRUCTIONS TO GOVERNOR GREY.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 195, 12 June 1847, Page 3

INSTRUCTIONS TO GOVERNOR GREY.

Instructions from the Secretary of State to the Governor of New Zealand, accompanying the new Charter of Government for that colony. {Concluded from our last.) Provision being thus made for establishing the municipal, the legislative, and the executive institutions of New Zealand, there is a virtual accomplishment of all that is necessary for its future government. From these institutions will flow all subordinate powers, judicial, fiscal, magisterial, or of whatever other

nature they may be. The respective legislatures will progressively mould those derivative organs of government iuto such forms as the exigencies of society shall require. To a great extent it will be competent to those legislatures so to mould even the institutions which the charter itself creates, by regulating the elective franchise and the whole system of elections, municipal and legislative, care being taken that no such enactments be either repugnant to the text or at variance with the spirit of the act or of the charter. To prescribe fundamental rules, and to create an authority for the better adaptation of them to the real wants of the colony, is the only function which the Queen or Parliament have assumed to themselves, or could have assumed. At first sight it may appear that something more than this has been aimed at in the accompanying Royal Instructions. They are unavoidably copious and minute ; but they will be found rather to impart powers than to lay down inflexible rules ; and so wide is the field over which the subject ranges, that even to accomplish this design has unavoidably led into many elaborate and protracted details. To render those details as clear and as useful as may be, they are drawn up, not in the usual form, but in a series of chapters, each of which is subdivided into sections, the whole being introduced by one comprehensive reference to the powers under which the instructions are issued, and by one equally comprehensive declaration of the Royal pleasure that they shall be observed. Much tautology and useless repetition is thus avoided. Believing that the instructions, as thus prepared, will he found to convey their meaning perspicuously and completely, I abstain from any attempt to recapitulate or explain their provisions. I turn to other topics, on which it seems indispensable that on the present occasion I should couvey to you explanations for which of course, no appropriate place could be found in the legal instruments already mentioned. I advert especially to what relates to the aborigines of New Zealand, and the settlement of the public lands of those islands. I cannot approach this topic without remarking the protracted correspondence to which it has given rise, the public debates and resolutions which have sprung from it, and the enactments and measures of your predecessors in the Government, have all contributed to throw into almost inextiicable confusion \he respective rights and claims of various classes and individuals amongst the inhabitants of New Zealand, to render very embarrassing the enquiry into which you must doubtless be engaged resecting the live of conduct which her Majesty's Government expect you to pursue, and at the same time to make it almost impossible lor us to determine, with any confidence, what that conduct ought to be, and how far, iti a state of affairs so complicated, it is possible now to act upon the principles to which, in the absence of these difficulties, I should have prescribed your adherence. I will not attempt any retrospect of those documents and proceedings : I should but be adding to the perplexity which I acknowledge and regret. It shall be my attempt rather to explain, as briefly as the nature of the subject admits, what is the policy which if we were unembarrassed by past transactions, it would be right to follow, and which (so far as any freedom of choice remains to us) ought still to be adopted, regarding the right of property in land, which should be acknowledged or created more especially as effecting the aborigines of New Zealand. I enter upon this topic by observing that the accompanying statute, 9 and 10 Victoria, chap. 104, sec. 11, repeals the Australian Land Sales Act, as far as relates to lands situate in New Zealand. Thus there is a complete absence of any statutory regulations on this subject. The accompanying charter accordingly authorises the Governor to alienate such lands. The accompanying instructions direct how that power is to be used. I proceed to explain the motives by which those instructions have been dictated. The opinion assumed, rather than advocated, by a large class of writers on this and kindred subjects is, that the aboriginal inhabitants of any country are the proptietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title. This claim is represented as sacred, however ignorant such natives may be of the arts or of the habits of civilised life, however unsettled their abodes, and however imperfect or occasional the uses they make of the land. Whether they are nomadic tribes depasturing cattle, or hunters living by the chase, or fishermen frequenting the sea coasts or banks of rivers, the proprietary title in question is alike ascribed to them all. From this doctrine, whether it be maintained on the grounds of religion, or morality, lor of expediency, I entirely dissent. What I hold to be the true principle with regard to property in land is that which I find laid down I in the following passage from the works of Dr. Arnold, which I think may safely be accepted

as an authority on this subject, not only on account of his high character, but also because it was written, not with reference to passing events, or to any controversy" which was at that time going on, but as. stating a principle which he conceived to be of general application :—: — " Men were to subdue, the earth ; that is, to make it by their labour what it would not have been by itself ; and with the labour so bestowed upon it came the right of property in it. Thus every land, which is inhabited at all belongs to somebody ; that is, there is either some one person, or family, or tribe, or nation, who have a greater right to it than any one else has ; it does not and cannot belong to everybody. But, so much does the right of property go along with labour, that civilized nations have never scrupled to take possession of countries inhabited only by tribes of savages, countries which have been hunted over, but never subdued or cultivated. It is true, they have often gone further, and settled themselves in countries which were cultivated, and then it becomes a robbery; but when our fathers went to America and took possession of the mere hunting grounds of the Indians — of lands on which man had hitherto bestowed no labour — they only exercised a right which God has inseparably united with industry and knowledge." The justness of this reasoning must, I think, be generally admitted, and if so, it can hardly be denied that it is applicable to the case of New Zealand, and is fatal to the right which has been claimed for the aboriginal inhabitants of those islands to the exclusive possession of the vast extent of fertile but unoccupied lands which they contain. It is true the New Zealanders, when European settlements commenced among them, were not a people of hunters ; they lived in great measure at least upon the produce of the soil (chiefly perhaps its spontaneous produce,) and practised to a certain extent a rude sort of agriculture. But the extent of land so occupied by them was absolutely insignificant when compared with that of the country they inhabited ; the?«£iost trustworthy accounts agree in representing the cultivated grounds as forming far less than onehundredth part of the available land, and in stating that ten millions of acres were to be found where the naturally fertile soil was covered by primeval forests or wastes of fern, in the midst of which a few patches planted with potatoes were the only signs of human habitation and industry. The islands of New Zealand are not much less extensive than the British Isles, and capable probably of supporting as large a population, while that which they actually supported has been variously estimated, but I believe never so high as 200,000 souls. To contend that under such circumstances civilized men had not a right to step in and take possession of the vacant territory, but were bound to respect the supposed proprietary title of the savage tribes who dwelt in, but were utterly unable to occupy the land, is to mistake the grounds upon which the right of property is founded. To that portion of the soil, whatever it might be, which they really occupied, the aboriginal inhabitants, barbarous as they were, had a clear and undoubted claim ; to have attempted to deprive them of their patches of potatoe ground, even so to have occupied the territory as not to leave them ample space for shifting, as was their habit, their cultivation from one spot to another, would have been in the highest degree unjust ; but so long as this injustice was avoided, I must regard' it a vain and unfounded scruple winch would have acknowledged their right of property in land which remained unsubdued to the uses of man. But, if the savage inhabitants of New Zealand had themselves no right of property in land which they did not occupy, it is obvious that= they could not convey to others what they did not themselves possess, and that claims to vast tracts of waste land, founded on pretended sales from them, are altogether untenable. From the moment that British dominion was proclaimed in New Zealand, all lands hot actually occupied in the sense in which alone occupation can give a right of possession, ought to have been considered as the property of the Crown, in its capacity of trustee for the whole community, and it should thenceforward have been regarded as the right, and at the same time the dutyof those duly authorised by the Crown, to determine in, what manner and according to what rules the land hitherto waste should be assigned and appropriated to particular individuals. There is another consideration which leads to the same conclusion. It has never been pretended* that the wide extent of unoccupied land, to which an exclusive right of property has been asserted on behalf of the native inhabitants of New Zealand, belonged to them as individuals ; ie was only as tribes that they were supposed to possess it ; and granting their titles as such to have been good and valid, it was obviously a right which the tribes enjoyed as independent communities — an attribute of sovereignty, which, with the eignty, naturally and necessarily was transferred to the British Cfown. Had the New Zealau*

ders been a civilized people, this would have been the case — if these islands, being inhabited by a civilized people, had been added either by conquest or .by voluntary cession to the dominion of the Queen, it is clear, that according to the well known principles of public law , whi l e the property of individuals would have been respected, all public property, all rights of every description which had appertained to the previous sovereigns, would have devolved, as a matter of course, to the new sovereign who succeeded them. It can hardly be contended that these tribes, as such, possessed rights which civilized communities could not lave claimed. Such are the principles upon which, if the colonization of New Zealand were only now to begin, it would be my duty to instruct you to act ; and though lam well aware that in point of fact you are not in a position to do so, and that from past transactions a state of things has arisen in which a strict application of these principles is impracticable, I have thought that they should be thus explicitly stated in this despatch (as they are in the Royal instructions to which it refers), in order that you may clearly understand that although in many respects you may be compelled to depart from them, still you are to look to them as the foundation of the policy which, so far as it is in your power, you are to pursue. The imperfect information which alone at this distance I can hope to obtain as to the actual state of affairs in New Zealand, renders it impossible for me to venture to prescribe to you how far you are to go in attempting practically (o act upon the principles I have laid down. I should infer from your own despatches, as well as from those of your predecessors, that the rights of the Crown could not now be asserted to large tracts of waste land which particular tribes have been taught to regard as their own. It appears that you have found it expedient to admit these pretensions to a considerable extent ; and having done so, no apparent advantage could be suffered to weigh against the evil of acting in a manner either really or even apparently inconsistent with good faith. While, however, you scrupulously fulfil whatever engagements you have contracted, and maintain those rights on the part of the native tribes to land which you have already recognised, you will avoid as much as possible any further surrender of ihe property of the Crown. 1 trust also that the evil which would otherwise arise from the concessions already made may to a great degree be neutralised by your st.ictly maintaining the exclusive right of the Crown to purchase land from th.c native tribes to which it has been assumed that it belongs. This tight, resting as it does, not only upon what has been called the Treaty of Waitangi, but also upon the general and long-recognised principle of national law, is one so important, that it ought almost at all hazards to be strict- I ly enforced. To suffer it to be set aside would be to acquiesce in the ruin of the colony, since it would be fatal to the progressive and systematic settlement cf the country. It is by the sale of land at more than a nominal price that its appropriation to individuals in allotments proportioned to their power of making use of it can alone be secured. It is the mode by which, with least inconvenience and difficulty, funds can be raised for emigration, and for executing those public works which are necessary for the profitable occupation of the soil ; hi short, it is the very foundation upon which systematic colonisation must be based. But if the native tribes are permitted to sell large tracts of land to individuals for a mere nominal consideration, it is obvious that so much land will be thrown upon the market as entirely to defeat the attempt to sell such lands as the Crown may still retain, at a price sufficient to answer the object of the policy, I have described. It has indeed been asserted that' the natives of New Zealand will never consent, unless compelled by force of arms, to the adoption of a system by which land bought from them at a nominal, or at all events at a low price, by the servants of the Crown, is to be resold at a much higher rate to actual settlers. I fear it may be more difficult than it would have been formerly to reconcile them to this practice, nevertheless, the attempt must be made ; and I still hope that it may not be impossible to convince them that the Crown receives the money so paid for land only as trustees for the public, and that it is applied for their benefit as'forming part of the community ; that the price obtained for land which is sold to settlers affords the mea s of Constructing roads and bridges, of building churches and schools, and of introducing an additional European population ; thus really conducing far more to their advantage than the paltry supply of goods which, if they sold the land for themselves, they would obtain for it. These remarks apply to lands held by the aboriginal inhabitants as tribes, and by a title not resting upon actual occupation and improvement ; as individuals, they should be as

free as any of the other inhabitants of New Zealand to acquire and to dispose of property in land. The first and most important step which you will have to take with the view of introducing a regular system with respect to the disposal of land will be to ascertain distinctly the ownership of all the land in the colony. The extent and limits of all which is to be considered as che property either of individuals, of Lodies politic or corporate, or of the native tribes, must, in the first instance, be determined, and the whole of the remainder of the territory will then be declared to be the Royal demesne. The results of this inquiry must be registered, and a regular record henceforth preserved, showing to whom all the lands of New Zealand belong. This measure has been repeatedly and earnestly inculcated on your predecessors, and I cannot too strongly repeat the same injunction. It has been with the single object of ensuring in the management of the waste lands of New Zealand the adoption of a system calculated, as the confidential servants of her Majesty believe, to promote the true interests of all her subjects, that the instructions which accompany this despatch have been framed. I do not pause to recapitulate these details ; but the principles of them are, that the power of the Crown over those lands should never be employed for any purpose of patronage, influence, or favouritism ; that the Crown shall not be at liberty to make gratuitous alienation of any extent of land, however small, except with a view to public works, in which the whole society may have a more or less immediate interest ; that the alienation of such lands to any private persons, or for any private purposes, shall always be preceded by a carelul survey of the land, and followed by an immediate registration of the grant ; that no such alienation shall be made without a previous public auction ; that at all such auctions all lands shall be offered for sale at a certain upset price ; that the selection of the lands so to be put up to auction shall be made exclusively by the Government ; that the upset price of each lot shall depend on the class in which it is placed, the three classes being town, suburban, and rural allotments, the last class being again subdivided into lands which are, and into lands which are not, believed to contain valuable minerals ; that lands once offered for sale by auction, without finding a purchaser, i may afterwards be purchased without auction j at the upset price ; that the first application of land revenue must be towards defraying (he expenses incideut-to the administration of the Crown land department in all its branches ; and that the surplus or net land revenue should be applied towards the introduction of manual labourers from this country, unless when the exigencies of the public service may render the application of it to other local purposes indispensable. Such baing my general views regarding the settlement of the public lands in New Zealand, I return to the kindred topic of the state of the aborigines there. On the general principles by which our relations to them should be governed, I have nothing to add to Lord John Russell's instructions to Captain Hobson, of the 9th of December, 1840, No. 1 ; but I have to call your attention to the tenth clause of the 9th and lOib of Victoria, c. 103, in which Parliament has adopted and given their sanction to the principles laid down by bis Lords Lip in that despatch, that the laws and customs of the native New Zealanders, even though repugnant to our own laws, ought, if not at variance with the general principles of humanity, to be for the present maintained for their government in all their relatious to, and dealings with, each other ; and that particular districts should be set apart within which those customs should be so observed. It will be your own duty to give effect to the general principles which would separate, by well defined lines of demarcation, those parts of New Zealand in which the native customs are to be maintained, from those in which they are to be superseded. For fhe sake of distinctness, the one may be called the aboriginal, and the other the provincial districts. The last, or provincial districts, will be entirely divided into the various municipalities already mentioned. With an increasing British population, and with the advance of the natives in the arts of civilized life, the provincial districts will progressively extend into the aboriginal, until at length the distinction shall have entirely disappeared. In the mean time the provincial districts, and they alone, will be the seats of courts and magistracies, and of other institutions requisite for the government of civilized men. The aboriginal districts will be governed by such methods as are in use among the native New Zealanders. The chiefs, or others, according to their usages, should be allowed to interpret and administer their own laws. Even beyond those precincts the same practice should be followed in all cases, whether civil or criminal, in which the natives alone

have any direct and immediate interest. Difficulties will of course arise in the execution of such rules, but not, I think, any which may not be easily surmounted ; for the administration of different laws to different races of men inhabiting the same country under one common Sovereign, is a practice which has prevailed so extensively, that scarcely any civilised nation can be mentioned in which some examples of it have not occurred. With the increase of Christian knowledge, of civilization, of the use of the English tongue, and of mutual confidence between the two races, these distinctions of law, and of legal customs will, I trust, become unnecessary and obsolete. In the mean time we must await that consummation with every reasonable indulgence for the innocent habits and for the venial prejudices of the aboriginal race with which we have thus been brought into contact. I pass over in this despatch, as in the accompanying instruments her Majesty has passed over, in silence, many topics of the greatest impoitance to the future good government of New Zealand. Such as the administration of justice, the management of the revenue, the education of youth, and the provision to be made for public Christian worship. On these and similar questions I think it better to await than to anticipate the deliberations of the legislative bodies about to be convened in New Zealand. They will properly form the subject of a separate and future correspondence. The Act of Parliament which I now transmit to you, and the instruments which have been issued in pursuance of it, are framed in the spirit of an unreserved confidence, both in the capacity and in the willingness of the British settlers in New Zealand to regulate their own internal affairs in such a manner as may best conduce to the welfare of the colony and of the empire ofwhichitformsapart. Ton.entowhom so high a trust has been commited, it is fining that the minister of the Crown charged with the communication to them of her Majesty's gracious intentions should address himself in the language of frankness and of candour. I therefore do not sciuple to observe, that the experience of our widely extended empire has ascertained that the otherwise inestimable advantages of colonial self-government are attended with at least one serious danger. It is the danger that the powers conferred by this great franchise on the representatives of the people, may be perverted into an instrument for the oppression of the less civilized and less powerful races of men inhabiting the same colony. This abuse has arisen in our colonies, not because the wealthier and better educated classes of society there are in any respect inferior in character to the corresponding classes of society elsewhere, but because they are exposed to a temptation from which the greater .number of imperial and independent Legislatures are exempt. They Jive in a vicinity to which nothing parallel exists in the ancient states of Europe. Such a vicinity exists, and consequently such a temptation will arise in New Zealand. I therefore acquit myself of a duty involving no failure of respect to the future Assemblies of that colony, in thus unreservedly pointing out to you, and through you commending attention, the sacred duty which will be incumbent on them, of watching over the interests, protecting the persons, and, as far as may be, cultivating the minds of the aboriginal race among whom they and their constituents have settled. They can render no service more acceptable to the Queen, to Parliament, and to the people of this country at large. Although her Majesty has confided to your discretion the time from which the new charter is to be promulgated and to take effect, > and although in the exercise of that discretion I you will of course weigh every material circumstance, including many which it would be impossible for me to foresee or to estimate aright, yet you will understand it to be her Majesty's pleasure that no delay should intervene which those circumstances may not justify and require. „ I have, &c, Grey.