New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Saturday, June 19, 1847.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 197, 19 June 1847, Page 2

New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Saturday, June 19, 1847.

Bt far the most important part. of Lord Grey's instructions is that portion which treats of the right of the Aborigines to the land, and the principles by which the future disposal of the lands of this colony shall be governed, as on a strict adherence to the general principles he has laid down depends in a great measure the successful progress of systematic colonization In considering this part of the subject we shall endeavour to show the justness of the views entertained by his Lordship, and the unsoundness of the objections raised to them by our correspondent H.

His Lordship commences by stating the true principle on which the property to land is founded, as laid down in the passage quoted by him from the works- of Dr. Arnold, in which labour is asserted to be the origin of property in land, " as with the labour bestowed upon it came the right of property in it," and that " 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." This solution of the origin of property in land — of the manner in which land from heing common became individual property, and " so appropriated to the first owner as to give him a better right to it than others, and what is more, aright to exclude all others from it," * — was also given by the celebrated Philosopher Locke, who asserted Labour to be the foundation of property, and it is admitted by Paley in his Moral Philosophy, to be "a fair reason where the value of the labour bears a considerable proportion to the value of the thing ; or where the thing derives its chief use and value from the labour." It will be necessary however in discussing this question, carefully to bear in mind the difference between the absolute right of property conferred by subduing the earth from its natural state to the uses of man by cultivation, and the qualified right, " the right of occupancy" which the aborigines possess to the country they inhabit, for on this distinction lies the difference between the positions maintained in the Instructions, and the objections urged against them. In applying this principle to the case of New Zealand, Lord Grey allows the clear and undoubted claim of the Aborigines to that portion of the land which they had subdued to their own use, and admits it would have been in the highest degree unjust "to have attempted to deprive them of their patches of potatoe ground," or " 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." But while these rights were respected, and sufficient provision made for their present and future wants, his Lordship regards it as a " vain and unfounded scruple which would have acknowledged their right of property in land which still remained unsubdued to the uses of man," and asserts the principle laid down in the resolutions of the Select Committee, that these lands ought to be considered as the property of the Crown in its capacity of trustee for the whole community. The' assertion of this principle is objected to by our correspondent, who appears to think, because the New Zealanders were not a people of hunters, but had always lived by cultivating the soil, that the force of the passage cited from Dr. Arnold is utterly nullified, and seems to infer that the right of property of the natives to these waste lands is as absolute as the right of property possessed by noblemen in England and Ireland. To us it appears that the force of the passage, and of the argument founded upon it, consists, not in the difference of the condition of the New Zealanders from the case supposed, but in the circumstance, that labour being the origin of property in land, no absolute right of property, no right which can exclude all others, can be claimed by the New Zealanders in " lands on which man had hitherto bestowed no labour ;" — and this is the condition of those primeval forests, of those extensive districts covered with fern or grass, which, interspersed with a few native clearings and cultivations, form the greatest portion of the available land of these islands. We must entirely dissent from the doctrine which maintains that the right of property of the Aborigines to the uncultivated and unsubdued lands of these islands is the same as the right of property which obtains in civilized communities. The right of the Natives may be briefly stated in the following propositions, being in

• Paley — Moral Philosophy.

substance those advanced by Sir George Gipps in his speech in the Council in New South Wales on the second reading of the New Zealand bill, and are supported by the highest authorities in colonial law. — They are as follow : That the Crown has the sole right of extinguishing the native title, and that no British subject can obtain a valid title to land in the colonies except through the Crown. That the uncivilized inhabitants of any country having but a qualified dominion over it, or a right of occupancy only, cannot confer a title*to lands on the subjects of any other nation. Great stress is laid by our correspondent upon the Treaty of Waitangi, as confirming to the natives the absolute right of property to the land. Yet it will be found that the passage referred to, in -reality only confirms v to the natives the right of occupancy, " the full, exclusive, and undisturbed possession of their lands," &c, " which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession." And these expressions exactly agree with the law as laid down by Kent in his commentaries, where it is stated that "The natives were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil at their own Vill, except to the Government claiming the right of pre-emption." The establishment then of a civilized Government in these islands does not alter or disturb the relations of the natives with each other, or their rights of property as they exist among themselves, it only undertakes to prescribe and regulate the relations and rights respecting property which shall obtain between the two races. The right of pre-emption, or of extinguishing the native title is justly considered by his Lordsip of such importance " that it ought almost at all hazards to be enforced," as "to suffer it to be set aside would be to acquiese in the ruin of the colony, since it would be fatal to the progressive and systematic settlement of the country." To the carrying out this policy in the Southern District no great difficulty may be apprehended, as no private purchases have been made from the natives; but in the North, the alterations made by Captain Fitzroy's penny an acre Proclamations, and the extensive system of land-sharking which has been carried on there have created serious obstacles to its successful operation. Nevertheless we hope the policy will be persevered in, in spite of opposing difficulties because it is the only system by which a value in land can be maintained, and by which we can hope for any effectual provision for immigration and those other public works necessary for the progress and wellbeing of the colony. Regarding the right of pre- emption as the only means of escape from the numerous evils and embarrassments connected with this question, we regret to find that permission is given to the natives, as individuals, to dispose of their property in land. The sentence may admit of two interpretations. If it is intended that they are as free to acquire property in land, and by the same means, as the other inhabitants of New Zealand, and having so acquired, to dispose of it, no objection can be urged to this permission. But if they are to be allowed to dispose of the land reserved for their use, — to do that as individuals which they are not permitted to do as tribes and communities, — the right of pre-emption would become inoperative and useless. The safest course appeal's to be consider the natives to be in a state of dependence, and unable to dispose of their lands either as tribes or individuals except to the Government, their reserves and cultivations being held in trust for their benefit, and incapable of alienation.

The following extracts were quoted by Sir George Gipps in his speech on the New Zealand bill in July 1840, as authorities to prove the right of extinguishing the native title or the right of pre-emption exclusively existed in the Government of the Nation forming a settlement in a country occupied

by uncivilized tribes. Kent and Storey are considered the most eminent writers on American law. Storey was (in 1840) a judge of the Supreme Court of the United States, and Kent was Chancellor of the State of New York. The publication of these extracts may be useful at the present time as showing what has always been regarded as the law on the subject. The following are extracts from Judge Storey's work :—: — " Chap. 1, sect. 6 — The principle, then, that discovery gave title to the government, by whose subjects, or by whose authority it was made, against all other European governments, being once established, it followed almost as a matter of course, that every government, within the limits of its discoveries, excluded all other persons from any right to acquire the soil by any grant whatsoever from the natives. No nation would suffer either its own subjects or those of any other nation, to set up or to vindicate any such title. It was deemed a right exclusively belonging to the government in its sovereign capacity to extinguish the Indian title, and to perfect its own dominion over the soil, and dispose of it according to it 6 own good pleasure. " Sect. 7. — It may be asked, what was the effect of this principle of discovery in respect to the rights of the natives themselves ? In the view of the Europeans, it cieated a peculiar relation between themselves and the aboriginal inhabitants. The latter weie admitted to possess a present right of occupancy, or use in the soil, which was subordinate to the dominion of the discoverer. They were admitted to be the rightful occupants of the soil, with a legal, as well as just claim to retain possession of it ; and to use it according to their own discretion. In a certain sense, they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign who discovered it; but they were denied the authority to dispose of it to any other person ; and, until such a sale or transfer, they were generally permitted to oc- ! cupy it as sovereigns de facto. But notwithstanding this occupanry, the European discoverers claimed and exercised the right to grant the soil, while yet in possession of the natives, subject, however, to their right of occupancy ; and the title so granted was universally admitted to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in treaties of public law, it was a transfer of plenum tt utile dominium." The following extracts are from Kent's Commentaries :—: — " Sect. 1. — It is a fundamental principle in the English law, derived from the maxims of the feudal tenures, that the king was the original proprietor of all the land in the kingdom, and the true and only source of title. In this country we have adopted the same principle, and applied it to our republican governments ; and it is a settled and fundamental doctrine with us, that all valid individual title to hnd within the United States, is derived from the grant of our own local governments, or from that of the United States, or from the Crown, or loyal chartered governments established here prior to the revolution*. "Sect. 2. — The' European nations, which respectively established colonies in America, assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The natives were admitted to be the rightful occupan s ol the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose oi thi soil at their own will, except to the government claiming the right of pre-emption. " Sect. 3. — The peculiar character and habits of the Indian nations, rendered them incapable of sustaining any other relation with the whites than that of dependence and pupilage. There was no other way of dealing with them than that of keeping them separate, subordinate and dependent, with a guardian care thrown around them for their protection. The rule that the Indian title was subordinate to the absolute ultimate title of the government of the European colonists, and that the Indians were to be considered as occupants, and entitled to piotection in peace in that character only, and incapable of transferring their right to others, was the best one that could be adopted with safety. The weak and helpless condition in which we found the Indians, and the 1 Immeasurable superiority of their civilized neighbours, would not adrait-of the application of any more liberal or equal doctrine to th c

* In the elaborately-discussed case of De Annas v. Mayor, &c. of New Orleans, 5 Miller's Louis Rep. 132, it was admitted to have been uniformly the practice of all the European nations having colonial establishments and do* minion in America,, to consider the unappropriated lands occupied by savage tribes, i>nd obtained by them by conquest or purchase, to be Crown lands, and capable of a valid alienation, by sale or gift, by the sov§reign 3 and by him only. No valid title could be acquired without letters patent from, the king.

case of Indian lands and contracts. It was founded on the pretension of converting the discovery of the country into a conquest, and it is now too late to draw into discussion the validity of that pretension, or the restrictions which it imposes. It is established by numerous compacts, treaties, laws, and ordinances, and founded on immemorial usage. The country has been colonized and settled, and is now held by that title. It is the law of the land, and no court of justice can permit the right to be disturhed by speculative reasonings on abstract rights. The original Indian nations were regarded and dealt with as proprietors of the soil which they claimed and occupied, but without the power of alienation, except to the governments which protected them, and had thrown over them, and beyond them, their assumed patented domains. Those governments asserted and enforced the exclusive right to extinguish Indian titles to lands enclosed .within the exterior Ifpes of their jurisdictions, by fair purchase, under the sanction of treaties ; and they held all individual purchases from the Indians, whether made with them individually or collectively as tribes, to be absolutely null and void. The only power that could lawfully acquire the Indian title was the state, and a government grant was the only lawful source of title admitted in tie courts of justice. The colonial and state governments, and the government of the United States, uniformly dealt upon these principles with the Indian nations dwelling within their territorial limits. The Indian tribes placed themselves under "the protection of the whites, and they were cherished as dependent allies, but subject to such restraints and qualified control in their national capacity as was considered by the whites to be indispensable to their own safety, and requisite to the discharge of the duty of that protection."

On Tuesday afternoon as his Excellency and Mrs. Grey were riding in the Hutt district, when -within a short distance from Mr. Swainson's house, the horse fell on which Mrs. Grey rode, and she was thrown with considerable violence to the ground. Mrs. Grey was immediately taken to Mr. Swainson's, and was sufficiently recovered to return the same evening with his Excellency to Wellington. We are happy to state that though Mrs. Grey received several severe bruises, she has recovered from the effects of her fall.

Intelligence has been received from Wanganui by the Governor Grey that according to the report of the natives, thirty rebels were wounded (three of them mortally) in the skirmish of the 10th instant. The official report will be found in this day's Spectator.

It is reported that his Excellency has determined on the immediate liberation of Rauparaha and the other prisoners on board the Calliope. Kanae and Charley will be allowed to go to Porirua, and Rauparaha will go to Auckland in the Inflexible with Te Whero Whero and Tamate Waka, who have offered to become security for his good behaviour. Though it must be admitted that the question of disposing of Rauparaha is surrounded with difficulties, we fear that doubts may be reasonably entertained as to whether the present course is the most judicious that could be adopted. Rauparaha' s treachery and duplicity are proverbial, and if he did not scruple to exercise treachery towards the Government when he was received and trusted as an ally, it may be doubted if after his long confinement he is likely to be more favourably disposed ; and whether the irritation caused by the stigma and loss of caste consequent on becoming a prisoner will not rankle in his mind and produce consequences fatal to the future tranquillity of this district. As for Kanae and Charley, not the slightest dependence can be placed on their future good conduct. A few months, however, will suffice to show whether these fears are well founded. Rauparaha has been nearly eleven months in confinement, having been taken prisoner with Kanae, Charley, and four other natives on the 23rd July, 1846.