ORIGINAL CORRESPONDENCE.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 211, 7 August 1847, Page 2

ORIGINAL CORRESPONDENCE.

To the Editor of the New Zealand Spectator. Wellington, August 2, 1847. Sir, — I abstained from noticing your comments on my letter, which appeared in your number of June 16, assuming that as they followed so closely on my letter, your readers would be able to compare them with it, and then decide for themselves whether any arguments of mine had been refuted. But as you have in your last number returned to the subject, and have, as I conceive, put an erroneous construction on my language, I am compelled to trouble you with some further observations, in the hope of making my meaning clear to those who will give their attention to what confessedly- i 3 a dry subject. I purpose to confine my remarks to that part of your article which refers to my letter. You say (alluding to an extract from Kent's Commentaries) — ''The quotation served to show that the word property, being used by our correspondent in a different and more absolute sense than the treaty of Waitangi, and the received law on the subject conveyed, was productive 'of fallacy -in hia re«9oningr_lEhe dis-_ titfction is important, because nritMfes' the difference between those who agree in the justice of Lord Grey's instructions, and those who are opposed to them." It is satisfactory that you have expressed yourself so plainly, because, if I can show that I have not used the word "property"m a different or more absolute sense than that in which the word possession is used in the treaty of Waitangi, and the words possession and occupancy in the law-books; — or that I have contended for no title to land on behalf of the aborigines but what the law, as interpreted by the Supreme Court, gives them, all difference upon this subject between yourself and those who, like myself, "dispute the justice, as well as legality, of Lord Grey's instructions, will be at an end. I must in the first place revert to those instructions. Lord Grey has drawn a distinction which does not really exist — a distinction between the titles of the aborigines to the lands which they cultivate,- which he ca'ls " pioprietary,"- and their title to wild lands, which he calls " possessory," — but which in fact he interprets to he no title at all : but this distinction with respect to the original title* of the aborigines is not recognized by British colonial law; it is merely assumed by Lord Grey. If I am wrong in making this asseition, and you will he so,good as to refer me to any legal authority for the distinction in order to prove that I am so, I shall feel much obliged to you ; for I must beg to be excused, for saying that all the authorities which you have hitherto adduced go to establish on behalf of the aborigiues one title only— that of "possession" or "occupancy" to the whole country over which they had previously possessed the sovereignty ; and for preferring to take the interpretation of these words given by the judges, to that {riven by you, who disclaim any pretension to being a lawyer. But Lora Grey finds himself immediately hampered by this very distinction which he has -made, and in order to extricate himself from his difficulty, allows that individual natives may sell to whomsoever they please that which he designates as their property; the tendency of which would be to produce that irregular mode of colonisation which you deprecate, and to which I called attention in the letter which* doubtless from want of perspicuity on my part, you seem to have so thoroughly misunderstood: my words were — " 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 evsry real friend of the natives, or advocate of regular and systematic colonisation, must consider highly piejudicial to the real interests of the former, as well as utterly subversive of the latter. But that Lord Grey is in error upon this point as well .as on the other— that heis at variance with the common law, or British colonial" law — that he is at variance with the Treaty which he himself avowedly sets aside, and styles " the so-called Treaty of Waitangi," has been made manifest by the late decision in the Supreme Court, in the case of the "Queen v. Symonds," and established beyond all possibility of doubt by the elaborate judgments of the Chief Justice and Mr. Justice Chapman, which I regret you have not yet found a place for in your Journal. I give a* passage from the judgment of the latter, which will be sufficient for my prtsent argument :—

" The practice of extinguishing native titles hy fair purchases is certainly more than two centuries old. It has long been adopted by the Government in our American colonies, and by that of the United States. It is now part of the law of the land ; and though the courts of the United States, in suits between their own subjects, will not allow a grant to be impeached, under pretext that the native title has not been extinguished, yet they would' certainly not hesitate to do so in a- suit by one of the native Indians. In the case of the Cherokee nation, r. the State of Georgia, the Supreme Court threw its protective decision over the plaintiff-nation, against a gross attempt at spoliation, calling to its aid, throughout every portion of its judgment, the principles of the common law as applied and adopted from the earliest times by the colonial laws (Kent's Com., vol. iii., lecture 51.) Whatever may be the opinion of jurists as to the strength or weakness of the native title, whatsoever may have been the past vague notions oi the natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannol he too solemnly asserted that it is entitled to respect; that it cannot be extinguished (at least in time of peace) otherwise than by the free consent of the native occupiers. But for theii protection, and for the sake of humanity, the Government it bound to maintain, and the courts to assert, the Queen's exclusive right te extinguish it. It follows from what has beer said, that in solemnly guaranteeing the native title, and in securing what is called the Queen': pre-emptive right, the Treaty of Waitangi, confirmed by the charter of the colony, does nol assert either in doctrine or in practice anything new and unsettled." It was against both these erroneous assertion: of Lord Grey, which are here so fully refuted, that I protested in my former letter; again si the first whep I said — "It is a> universally admitted principle of colonial law, that no uncivilized aboriginal people can confer a title to lane on the subjects of another nation ;" and again si the second, when I stated that "it is an indisputable principle of law— that the Crown has t paramount title to all lands." The positions ] contended for, and which have been so full} confirmed by the late judgments, were, on behalf of the Crown, a paramount or ultimate title to all lands ; — on behalf of the aborigines, ai actual and legal title to all lands, which car only be extinguished by the Crown with theii free consent. Now, Sir, I ask, whether you car show that I have contended in that letter foi any title to " property," on behalf of the abo rigines, of a more absolute kind than these — foi any title repugnant to what is clearly the law o the land? If not, you are bound by your own words to allow that there is no longer any difference between us on this subject, and that the positions which I have endeavoured to maintain in opposition to Lord Grey, are correct. You] assertion has drawn me into this tedious argument; otherwise I might have dispensed witt it. How is it, I might have asked, if the correct interpretation of the Treaty of Waitangi U in favour of those who maintain the views oi Lord Grey — how is it that it is so frequently spoken of by them in contemptuous terms,, designated !' the so-called Treaty of Waitangi^' represented as "a device to amuse naked savages," or not unfrequently as— 1 " that humbugging treaty," which ought never to have beer made? Or, how is it, if these views are not ai variance with law. that Lord Grey and his sup porters have so little to say about law, and are continually having recourse to the opinions o foreign jurists, sucli as Vattel, &c, which where laws exist, are .of no weight or authority whatever? Would not the conclusion have beer inevitable, that their opinions were at variance with both the Treaty and colonial law? Bui the concluding sentence of the passage which J have cited above, from the judgment of Mr, Justice Chapman, clearly states that the clause: in the Treaty of Waitangi relating to land, contain nothing " new or unsettled ;" so that were those clauses, by mutual consent, to be cancelled at once, the common law would be ampl) sufficient to maintain the rights of the natives guaranteed by them. It is satisfactory that we have laws, and English judges to assert those laws fearlessly, and thus preserve the country from those evils which might result from tke mere caprice of an arbitrary Secretary of State I proceed to consider some other observations. You say — "If it be conceded that the right of the aborigines, under the Treaty o: Waitangi, to property in the waste lands in New Zealand is as absolute and complete as the right of property which obtains in civilized nations, if their right were so absolute as to exclude all others, it would follow that they mighi equally dispose of this right to all others." Now you have here mixed together two propositions, and then attempted to deduce from both whai can only be deduced from one, and then merelj as a truism : when yon say — " if their right te property is as absolute and complete as the righl of property which obtains in civilized nations," "it would follow that they might equally dispose of this right to all others;" you merelj state an identical proposition — that if the right is the same the right is the same : but when you wish to deduce the same conclusion from the other proposition — " if their right were so absolute as to exclude all others," "it would follow that they might equally dispose of this right te all others;" I must take the liberty of denying that it is deducible from it, or that it has any connection whatever with it; and moreover ol asserting generally that innumerable instance; might be adduced where persons have the right of excluding others from invading their property or possessions, without having the right of disposing of these "to all others." You say also— "To prevent this mischief (that of land jobbing) Lord Grej reverts to the system which has uniformly obtained among colonizing nations in their dealings with the aboriginal and savage inhabitant! of the countries colonized, and which for upwards of two hundred yean has been recog nized and acted upon by Great Britain in hei colonies." Now it certainly appears strange, that you should have made this assertion, and actually fixed on the precise period of " two hundred years," in direct opposition to the statement of the judge as given in the passage already cited, where he say», — " The practice of extinguishing native titles by fair purchase; n certainly more than two centuries old."

I certainly thought that there would be no need of any further discussion, since the publication of the judgments, on this subject : and I cannot but think that they must have beep perused carelessly to have been misunderstood. What appears quite plain from them are the following points : — 1. The Crown has an ultimate or paramount title to all lands ; — which involves the right of pre-emption. 2. The Aborigines have a legal title to the soil, which cannot be extinguished by the Crown without their free consent. 3. The Treaty of Waitangi secures to the Crown, and guarantees to the Aborigines, nothing but what is recognized by the common law. I certainly have no hope of producing any effect on the minds of those who satisfy themselves on a subject of this kind by a cursory glance at a newspaper ; though on the other hand I entertain no doubt, that if any will give <hat attention to it which it deserves they will have any difficulty in coming to the conclusion that Lord Grey is in error. I shall not consider it any answer to what I have written to be told vaguely that my reasoning is " unsound," or thatmy'"views are erroneous, unless some flaw in my reasoning is particularly specified j nor shall I allow that the positions I defend are contrary to law, until some legal (not Colonial office)authofity is advanced to substantiate the assertion. The opinions of jurists I hold very cheap — they^ are merely opinions, and nothing more ; and in order to be maintained, must be brought to the test of reason ; by which test I shall be happy to try any that may be brought against me. I am informed that you have been found fault with for inserting my last letter in your journal. I certainly regret that an individual should have been found in Wellington so under the influence of antiquated prejudices, as to wish you to throw an impediment in the way of the free discussion of a purely public question, and hinder the merits of a despatch from the Secretary for the Colonies from being canvassed. It does appear primd facie like evidence against a cause that it shuns investigation, and shrinks from the test of argument. If however, you, Sir, should think it advisable to refuse insersion to this letter, I must request you to acknowledge its receipt in your notice to correspondents. I had thought that the most straightforward course that I could pursue was to give expression to my opinions on this subject in the colonial press; but if I am to be debarred from doing so, I shall be obliged to have recourse to some other means. On a former occasion when a settler of this place wrote a letter to England concerning the Native Reserves, it was generally thought that he ought to have published his letter in the colony, that a counter-state-ment might have gone with it to England, and that ten or twelve months should not have been allowed to elapse before this could be done. T am, Sir, &c, H.