ORIGINAL CORRESPONDENCE.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 196, 16 June 1847, Page 2

ORIGINAL CORRESPONDENCE.

To the Editor of the New Zealand Spectator. -• Wellington, June 14, 1847. Sir, — Without venturing to conjecture what view you may be disposed to take of that part of Lord Grey's despatch to the Governor of New Zealand, which refers to the Crown's title to land, or how far your readers generally may take an interest in the question, I must request you to allow me a small space in your columns, that I may express my opinion on the subject, believing as I do that the principle laid down by Lord Grey is both erroneous, and likely to prove prejudicial to the interests of New Zealand. But lest I should incur the charge of presumption for venturing thus early to give my opinion, I shall justify myielf from the poiribU

charge by prefacing the observations which I am about to make by an extract from Coleridge — " Every man's opinion has a right to pass into the common auditory, if his reason for the opinion is paid down at the same time, for arguments are the_ sole current coin of intellect. The degree of influence to which the opinion is entitled should be proportioned to the weight and value of the reasons for it." To which I might add, that having been called upon to witness the signature of the Treaty, I have a right to speak. Lord Grey begins his argument by stating that of his imaginary opponents, but instead of making them advance what Vas actually been caid by his real opponents in defence of the rights of the New Zealanders to their lands, he makes them argue on behalf of the claims of " nomadic tribes depasturing cattle, or hunters living by the chase, or fishermen frequenting the sea-coast or banks of rivers;" — people totally distinct in their habits and mode of life from the New Zealanders ; and then proceeds to demolish the phantom ofhis own creation. For this 'purpose he quotes a passage from Dr. Arnold's writings. A higher authority, had he cited the opinion of this eminent clergyman on any question concerning which he proposed to give a deliberate one, he could not nave found. Bui the passage in question is contained in a hastily written controversial article in a newspaper, (dated June 11, 1831) ; and is introduced casually -while writing on another subject. This teems scarcely an authority on which one of her Majesty's Secretaries of State should have ventured to rest an argument in defence of a principle of such paramount importance as that contained in his official despatch. But without laying any great stress on this objection, had Lord Grey even read the whole of the article, 'instead of— as must be conjectured — indolently taking the extract from some clerk in the Colonial Office, he would have perceived that Dr. Arnold's argument was directed against those who wished to take possession of land owned by others, whom he compares to " pickpockets and thieves;" and that while he allows the right to take possession of lands "which have been hunted over," expressly charges with robbery those who take possession of countries which are " cultivated," as New Zealand has been for ages; adding "we have done with beast's nature, and are living according to Law and Right, not according to Brutality and Might." A quotation more unfortunate, and less to his purpose, could hardly have been made by Lord Grey. But so well satisfied is he with his authority, that he thinks any further argument unnecessary, and supposes that "the justness of this reasoning must be generally admitted," and "considered fatal to right which has been claimed for fhe aboriginal inhabitants of New Zealand." He, however, seems to have his doubts as to whether others will be so easily satisfied with the applicability of the reasoning ; and remembers that "it is true the New Zealanders were not a people of hunters, that they lived in a great measure at least on the produce of the soil," &c. But how was it that he did not perceive that this very difference — that the -NW^Zealanders^were not a people of hunters, but had always lived by cultivating the soil, not in a rude way as he assumes, but with great care and attention, — utterly nullified the force of the passage cited from Dr. Arnold's newspaper article, even allowing it to have contained his de liberate opinion on the subject, and left him where he was when he began — without a single argument in support of his hypothesis? -He returns, therefore, to th 6 old ground, and -proceeds to atgue, that as the New Zealanders have more land than they can occupy, or can ever be supposed to require, civilised men have a right to step in and take possession of it. But as he really advances nothing in support of his assertion, it can have no weight whatever attached to it; for, although he charges his opponents with assuming the truth of their positions without advocating them, it must be confessed that this is a mere assumption on his part; and although he" accuses them of being ignorant of the grounds on which the right of property rests, his own position clearly opens the door to such Jacobinical notions of right to property as would apply with equal force, and somewhat inconveniently, to the property possessed by himself and many other noblemen in both England and Ireland ; who'cannot be said to require the immense extent of property which they possess any more than the New Zealanders require theirs ; but who nevertheless findT the means of turning their property to good account. But when Lord Grey ventures to charge his opponents with '* mistaking the grounds on which the right to property rests," he should advance some argument in support of his own opinion, — he should inform them what the real grounds are ; but this he abstains from doing. He ought to know that right to property is not founded upon any abstract notion, — that it cannot be deduced from any such notion by abstract reasoning, — that it would be impossible to deduce fiom any abstract reasoning any but an abstract conclusion. The language here used by Lord Grey has really no meaning whatever ; its only object can be to mislead those who have never accustomed themselves to think seriously concerning the foundation of all rights, but have imagined that there must be something in language of this kind when used by men holding the position which Lord Grey does. And even Dr. Arnold's hasty expres won, — that the right of property in land is derived from labour bestowed upon it, that is from its having been subdued, is clearly untenable ; for if so, on what rested the prior right — the right of subduing, the right of bestowing labour? The right to bestow labour must have preceded any right derived from the labour bestowed. The only tenable right is that of possession by prescription ; modified in each particular community by the laws, whether written or unwritten, of that particular community. To talk of arguing the question, as Lord Grey does, on " the grounds either of religion or morality or expediency," is merely to argue beside the question : it is a question of law which cannot be disposed of in that manner. And here it may be remarked, by the way, that the British Crown on obtaining the sovereignty of New Zealand had no right to question the title of theactual possessor of property among the aborigines ; whether his title were derived by inheritance, or by conquest, or by any other

means acknowledged by Maori custom, which was the law of the land up to that period ; it was bey< nd the power of any ex post facto law to affect it. But as to those claims which have been set up by individuals to large tracts of land, which they profess to have obtained by purchase from natives, Lord Grey need not have enteiecrinto any argument to disprove the right of the natives to their lands, in order thereby to invalidate these claims ; as he ought to have known, that it is a universally admitted principle of colonial law, that no uncivilised aboriginal people can confer a title to land on the subjects of anothej nation. But when Lord Grey, in a subsequent part of his despatch, admits in a most unqualified manner the right of individual natives to dispose of their own property as they may think proper, without any respect to the Crown's right of pre-emption, he certainly does, what every real friend of the natives, or advocate of regular and systematic colonisation, must consider highly prejudicial to the real interests of the former, as well as utterly subversive of the latter : so little does Lord Grey understaud the real merits of a question concerning which he writes with the greatest dogmatism. But Lord Grey grows weary of argument, and asserts boldly, that "from the moment British dominion was established in New Zealand all lands not occupied by the natives should have been considered as the property of the Crown :"— that is, that immediately after the most positive and solemn assurance had been given by the representative of the Crown, that no land whatever in New Zealand would be claimed on behalf of the Crown; and a j Treaty embodying an article guaranteeing that I assurance, as an indispensable condition,* had been signed in reliance on the good faith of the British Government ; — that immediately, I say, after this solemn assurance was given, and the Treaty was signed, the Governor should have proceeded as though nothing of the sort had taken place ! And this is the sentiment of a British minister ! O Machiavelli! alas! Thou hast not written in vain ! Let it only be told to the natives — let it only be told to those who have repudiated sales which they had made : the worst of them would then find in it, not only a justification of their acts, but a motive to future i dishonesty and-treachery; and those hitherto I loyal and peaceable, a motive to open, avowed, determined, and reckless rebellion. British honour is deeply concerned in this question. The heathen historian, Polybius, could attribute the strength and grandeur of the Roman Republic, to the reverence shewn for the inviolable nature of a treaty, and its invariable observance and fulfilment. Truly has it been laid that a shortsighted utilitarian policy is the " Road downwards." But at length Lord Grey comes to what might be considered a valid avgument, were it not that he is in error concerning two facts connected with it. He says that the unoccupied lands, to which, on behalf of the Crown, he asserts a title, are not possessed by the natives as individuals but as tribes, and consequently that the title of the tribe to these lands being merely dependent on the attribate of Sovereignty, now ! ceded to the British Crown, the title to these lands must have been ceded likewise. In opposition to this I assert distinctly — and writing in New Zealand I can easily be refuted if I am wrong — that various individuals in each tribe have acknowledged rights to these lands, which they use for their own private purposes and advantage; and consequently that Lord Grey's assumption, and the inference attempted to be deduced from it are erroneous. Moreover I must repeat that even snpposing Lord Grey's j assumption to be correct, the Treaty of Wai- I tangi is so explicit on this head that it precludes the possibility of any difference of interpretation, unless by wilful perversion of language : the words of the Treaty are these: — " Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their poi session." I have now shewn, that Lord Grey's opinion obtains no support from the passage extracted from Dr. Arnold's writings, inasmuch as Dr. Arnold only asserts the right of taking possession of lands which have merely been hunted over, but denies the right in reference to countries that are cultivated by their inhabitants .—. — that his argument derived from the extent of country of which the New Zealanderscan make no use, applies with equal force to the rights of property in England and Ireland: — and that that portion of his argument which rests on the assumption, that the natives do not possess their lauds but as tribes, is erroneous, and if it were not, would not affect the subject, the lands even of tribes having been secured to them by the Treaty. But there are some other expressions used by Lord Grey upon which I must make some observations : they are these, " An exclusive right of property has been asserted on behalf of the natives," &c , and — " Which tribes have been taught to regard as their own:" again — "A right which has been claimed for the aboriginal inhabitants." Can anything expose Lord Grey's ignorance of New Zealand more than these expressions ? Does he not know that the property, of which he thus speaks, has been defined by accurate boundaries for many generations; and that the owners, to a man, have always been, and still are, ready to shed their blood in defence of it? But Lord Grey is not the k only perlbn in England who has, either ignorant ly or purposely, endeavoured to represent the Suestion as though a few sentimental philanlropists were contending, on behalf of the aborigines, for an abstract right to large tracts of waste land concerning which they themselves had previously no interest ; whereas the truth is that

• Lord Grey leemi to "mistake the ground*" on which the title of the British Crown to dominion in New Zealand rests- In a pamphlet published last year in London by Mr. Bannister, formerly Attorney-General in New South Wales — a person not likely to venture his reputation by a crude assertion, I find his opinion ; it is this : " Sir R. Peel even, assumed against all authority, as good colonial law, that the discovery of a savage country by British subjects entitles the Crown to the sovereignty of that country, without tht content of, the native*"

for many generations their notions of property in land have been as clear and their laws of inheritance as well defined, as those of any civilized people who have been guided in these matters by an unwritten or common law ; — a fact which he might have ascertained by attending to the official despatches on the subject, Nor is the subject of so little importance, or to be disposed of in so summary a way, as he seems to imagine. It is not merely a question of abstract right — not merely a question as to whether the British Government could justify itself in an act of spoliation, which might be quietly effected without the possibility of any remonstrance or exposure of its injustice, on the part of the natives ; but whether a war is to be undertaken — a war which must last for years, in which hundreds, nay, thousands of British soldiers and settlers must fall, and only to be terminated, if persevered in, at some remote period by the extermination of the aborigines. And if we may conjecture the future by the actual experience of warfare hitherto pursued in New Zealand, the Government has no great reason to indulge any very sanguine anticipations; for allowing that about a hundred aborigines have been killed, at least a hundred whites have fallen in the contest : and I venture to suppose that I shall not materially overrate the additional expenditure incurred by the British Government on this head, beginning with Captain Fitzroy's issue of debentures on this account, if I estimate it at about £100,000; or for every native killed at about £1000. But after all, Lord Grey seems to admit that the application of his principle is impracticable ; for he allows that no object could be gained from breaking faith with those who have received an assurance that their lauds would not be claimed by the Crown. But if so, why avow the principle? when he knows that all who signed the treaty have received this assurance, and consequently that no practical object is gained by it : whereas, on the other hand, that the mere avowal is likely to involve the Government in a series of almost interminable hostilities with the natives; for which Lord Grey will be responsible. He seems after all the high-sounding pretensions which he advances, to come to the practical conclusion that the Crown's right can only be asserted to the residue, after all rights ot all individuals in New Zealand have been ascertained and registered : — a conclusion which he need not have been at the pains of attempting to prove, as r»o opponent — at least none worth reasoning with — would have ventured toquestion it asitis an indisputable principle of law — that the Crown has a permanent title to all lands; and consequently, that lands which do not belong to any individual, belong to the Crown. Having already exceeded the limita within which I had wished to contain my remarks, I cannot allude to the preposterous absurdity of another part of the despatch, — that which is designed to render lawlessness legal in the aboriginal districts. — I am, &c, H.