The Treaty of Waitangi Part 25

[123] This letter, written subsequent to the Colonel's apology, was first made public through the columns of the London Times, and it was not for months afterwards that Mr. Williams heard of it. The history of the land transaction referred to, which excited the indignation (righteous or otherwise) of Colonel Wakefield, is fully told in that interesting book, Hugh Carleton's _Life of Henry Williams_, vol. i.

pp. 237-243, and should be read by all impartial students of the question.

[124] Amongst others, by Te Rauparaha and his niece Topeora, the poetess, on May 14.

[125] Immediately after his seizure, Captain Hobson had dispensed with the services of the _Herald_, on account of his personal differences with her Captain. She then returned to Sydney, but Sir George Gipps sent her back again, telling Captain Nias that "naval co-operation was essential to the enterprise at New Zealand, as the Queen's sovereignty was established over only a small portion of the Northern Island."

[126] Major Bunbury, K.T.S., and a portion of his regiment (the 80th) were sent to New Zealand by Sir George Gipps in H.M.S. _Buffalo_, as the result of a request from Captain Hobson for some military support. They left Sydney just as the news of Captain Hobson's illness reached the seat of Government, and Major Bunbury was given a commission to act as Lieutenant-Governor in the event of Hobson's death or resignation.

In his _Reminiscences_ the Major states that Captain Hobson begged him to undertake this Southern mission in order to relieve him (Hobson) from the necessity of again sailing with Captain Nias, with whom he had several violent quarrels about the salutes he was to receive and other similar details. "It was," says the Major, "a grievous sacrifice to make, the troops not having yet landed or arrangements been made for their accommodation, but I could not prevail upon myself to refuse him."

[127] h.o.r.eta te Taniwha, the celebrated chief known as "Hook-nose,"

who remembered Cook's visit to New Zealand.

[128] This was what the natives called "making their hearts good."

"Pay us first and we will write afterwards." "Put money in my left hand and I will write with my right hand," was how they often expressed it.

[129] _Taihoa_ = delay, postpone, put off, reserve for further consideration.

[130] Meaning that he was the representative of the central district.

[131] The writing of the treaty.

[132] Major Bunbury left eight blankets with Mr. Stack for distribution amongst future signatories, but the Missionary mentions in a subsequent letter: "Several more may be wanting if Tupaea and his friends sign." Tupaea would not sign, either when approached by Mr.

Stack, or later when he paid a visit to Manakau. The above discussion explains why.

[133] The dialect spoken by the natives of the South Island of New Zealand differs in some important respects from that spoken in the North Island.

[134] Major Bunbury was so impressed with the fertile appearance of Banks's Peninsula that he recommended it be surveyed as soon as possible and thrown open for settlement in allotments of convenient size, in order to put a stop to the "preposterous claims" which were being urged by the Sydney land speculators. Most of these claims of "doubtful origin" originated in sales contracted with Taiaroa, the Otago chief, who had an equally "doubtful" right to sell. Taiaroa went to Sydney in the _Dublin Packet_ in 1839.

[135] "In some excursions I made I was much pleased with the fertile appearance of this beautiful island, and although the winter was so far advanced it was not so cold as I had antic.i.p.ated from its being so far south. Indeed the number of parrakeets seen flying about give it rather the appearance of a tropical island.... The soil appears in general good, with plenty of timber. There are several varieties of pine. All the trees, however, appear to be evergreens."--Major Bunbury's _Despatch_.

[136] Major Bunbury mentions that by this time he had become ashamed of this sobriquet, which was given to him by the whalers, and disowned it, preferring to be called by his native name.

[137] Tu Hawaiki had only returned in the previous month of March from Sydney, where he had been presented with these uniforms by Sir George Gipps. Shortly after this chief's repulse of Te Rauparaha at Lake Gra.s.smere, on the coast of Marlborough, he boarded a British man-of-war, and on being asked who he was, proudly replied: "Me all the same the Duke of Wellington, Te Rauparaha all the same Napoleon."

[138] Another chief named Taiaroa is also credited with signing. It is difficult to determine which chief this was, as the great Taiaroa was at Moeraki at the time. Possibly it was one of his sons.

[139] These were Kaikoura and Taiaroa. The ident.i.ty of this Taiaroa is not clear.

[140] There were two American and two French whalers at the anchorage here at the time.

[141] Major Bunbury mentions that some of these speculators had already sent a number of cattle over, but the natives resisted the occupation of their alleged purchases, and the persons who were placed in charge of the cattle "find themselves in rather an awkward predicament."

[142] Popularly known amongst the whalers as "Jordy Bolts."

[143] Major Bunbury mentions the eagerness manifested by the natives of Cloudy Bay for spelling-books and Testaments. On the table in his cabin was lying a Testament printed in the native language which had been given to him by Bishop Broughton. This was seen by some of the Maoris visiting the s.h.i.+p, who importuned him for it, with the result, he feared, that his refusal gave serious offence.

[144] As the _Herald_ left Cloudy Bay, the Kaikouras, clad in their winter snow, loomed up in the distance, and Major Bunbury was deeply impressed with what he calls their "bleak and savage appearance." The Major took his departure from the Middle Island fully convinced that it had been greatly underrated by the authorities both in regard to the fertility of its soil and the intelligence of its natives.

[145] Te Rauparaha may have laid himself open to this charge of insincerity by afterwards making light of the fact that he had signed the treaty, and offering to sign again if they gave him another blanket. With Te Rangihaeata it was different. Savage that he was, he had the keenest sense of honour, and he would not have signed the treaty had he not approved it so far as he understood it. His subsequent rebellion was not a protest against the establishment of civil authority so much as it was active resistance towards what he believed to be the unfair if not the dishonest methods of land dealing adopted by the New Zealand Company, in whom he lost all confidence after their attempt to seize the Wairau Valley.

[146] Before the first batch of the Company's emigrants sailed from the Thames, they were induced by the Directors to sign an agreement binding themselves to "submit in all things needful to peace and order until the establishment of a regular Government." This meant that if any of them committed a breach of the law of England, he should be punished according to the law of England. This agreement was brought under the notice of Lord John Russell who challenged the right of the Company to enforce such a provision. The Company took the opinion of Serjeant Wilde upon the point, and his advice, given on November 14, 1839, was that (1) the parties will not be justified by law in acting under the agreement, (2) that those acting under it were liable to prosecution for so doing, and (3) the agreement should be abandoned.

[147] "Captain Pearson of the brig _Integrity_ was arrested to-day (April 14) under a warrant issued for illegal conduct towards his charterer, Mr. Wade, of Hobart Town, and brought before the District Magistrate, Major Baker. The prisoner refused to recognise the Court, and was accordingly committed. The ensuing day Captain Pearson made his escape, and an escape Warrant has accordingly been issued against him."--Extract from _New Zealand Gazette_ (the first newspaper published in the Colony), April 18, 1840.

[148] The proclamation itself does not make it clear on what grounds Hobson took possession of the "Island." Indeed it is so ambiguously worded that he seems to imply that he claimed it by right of cession.

In his despatch to the Secretary for State, however, he made it clear that he intended to claim it "by right of discovery," a course which he had recommended to Lord Normanby before he left England.

[149] "Captain" Cole as he was sometimes called, because he had been sailing in an East Indiaman, had been one of the early Wellington settlers, having come out in the _Aurora_. On the arrival of Captain Hobson he removed to the Bay of Islands, and had succeeded in getting himself appointed chief constable at Port Nicholson, in which capacity he now appeared in the Southern settlement.

[150] As sovereignty over only a small portion of the Colony had at this time been ceded to the Queen, Hobson was claiming a wider jurisdiction than he was ent.i.tled to in describing himself as "Lieutenant-Governor _of_ New Zealand." He was only Lieutenant-Governor _in_ New Zealand.

[151] This also was a mistake. It should have been South, not North.

On this error Sir George Grey once based the argument that New Zealand included New Guinea, and was ent.i.tled to claim control over it. The error was corrected and the boundaries so amended as to include the Chatham Islands.--Vide Letters Patent issued to Captain Hobson, April 4, 1842.

[152] It had been reported that the settlers were starving, which was quite untrue.

[153] While H.M.S. _Britomart_ (Captain Stanley) was returning from her historic visit to Bank's Peninsula she put in to Port Nicholson and took Mr. Shortland on board, leaving Mr. Murphy to supply his place as the representative of the Government at the Southern settlement.

[154] This number was subsequently increased to 546.

[155] Mr. Fredarb, who was trading master of the schooner _Mercury_, added the following note to his copy of the treaty: "The chiefs at Opotiki expressed a wish to have it signified who were Pikopos (_i.e._ Roman Catholics) and who were not, the which I did by placing a crucifix preceding the names of those who are, as above, and at which they seemed perfectly satisfied."

CHAPTER VI

THE TREATY

Captain Hobson having now by his own efforts and the agency of those who were a.s.sociated with him completed his negotiations with the native chiefs, it remains for us to examine briefly the nature of the compact into which the Maori and _Pakeha_ had thus solemnly entered. The Treaty of Waitangi is a doc.u.ment of few clauses and precise terms. Yet under the conflicting interests which it was designed to harmonise few doc.u.ments have been more generally misunderstood or more persistently misinterpreted. More than once in high places its utility has been denied, its simple contracts have been repudiated, and its existence has been ignored. Lawyers have repeatedly questioned its legality, courts have discussed its const.i.tutional force, parliaments have debated its wisdom, but still it stands to-day--unaltered in text or spirit--the great charter of Maori rights. Its most virulent enemies have ever been the land speculators, and there are not wanting signs in these times of unsatisfied land hunger--of never-ceasing speculation--that the treaty has either been forgotten by those whose duty it is to remember it, or that its obligations have ceased to have their old-time moral value.

Lest we forget that the treaty is still in force, and that native lands are not common plunder for the avaricious _Pakeha_, let us briefly review the circ.u.mstances which made the compact between the two nations a political virtue, if not a political necessity.

It is a principle recognised by the civilised nations of the Earth that the discovery of a waste and uninhabited land by a pioneering country confers on that country a right, as against all other civilised countries, to colonise its new discovery. In such a case the discovering nation may in fact go further, by immediately taking possession of the new-found territory, and a.s.suming sovereignty over it. In this way Norfolk Island being found devoid of inhabitants by Captain Cook, his discovery of the sea-girt isle not only ent.i.tled Britain to colonise it, but automatically added it to the possessions of the Empire. This principle has thus been concisely stated by Vattel: "All men have an equal right to the things which have not yet fallen into the possession of any one; and these things appertain to the first occupant. Wherefore, when a nation finds a country uninhabited and without a master, it may lawfully seize upon the same, and after it has adequately denoted its will in this respect another cannot thereof despoil it. Thus navigators going on their voyages of discovery, provided with a commission from their sovereign, and falling in with desert islands, or other desert lands, have taken possession of them in the name of their nation, and commonly this t.i.tle has been respected, provided that thereupon a real possession has closely followed."

It is equally an acknowledged maxim of the Law of Nations that should the newly discovered land not prove to be "waste and without a master," but that it should be inhabited and under government of any kind, then the mere fact of its discovery by a civilised nation confers upon the discoverer no t.i.tle to the soil, but only the prior right to colonise as against other colonising nations. This is but the natural reward which belongs to the enterprise displayed in fitting out s.h.i.+ps and expeditions destined to navigate unknown seas or to travel in unknown lands. Such prior right to colonise is, however, strictly limited by the important consideration that colonisation can only take place with the free will and consent of the savage or semi-civilised inhabitants of the newly discovered country. In no sense does the act of discovery confer the right of property in the land, or the right of sovereignty over its people. That is to say, in the abstract, no nation whatever can under any pretext violate the rights of any other independent nation. This was clearly the principle which guided those British Governments to whose lot fell the establishment of the first colonies in America. In all these cases was the property of the Indian tribes respected, and no land was acquired save by purchase, or by some other equitable arrangement made with the aboriginal owners.[156] Hence in the celebrated case of the Cherokee tribe against the State of Georgia, tried in 1832, before the late Chief-Justice Marshall, that eminent judge was able to declare that as the United States had only inherited its rights from Great Britain after the War of Independence, the individual States could not a.s.sume rights greater than Britain had claimed to possess prior to that event. No right in Cherokee lands therefore vested in the State until the Indian t.i.tle had been honourably extinguished.

This equitable principle has not always been observed between so-called civilised nations and semi-barbarous peoples, but that it has long held a place amongst the ideals of men is suggested to us by the Phoenician legend, that when the merchant princes of Tyre and Sidon resolved to establish a trading factory on the site upon which subsequently rose the city of Carthage, they fairly bought the land from the natives of Northern Africa, the area being determined by the length of the thongs cut from a bullock's hide. Such a story, coming down to us as it does through the h.o.a.ry mists of time, may or may not appeal to our practical present-day minds, but the fact that it was commonly told and commonly accepted amongst the ancients is at least an indication that the principles which govern the conduct of modern nations towards their less fortunate brethren are founded upon and have the sanction of great antiquity.

When we come to apply these principles to New Zealand it is of course necessary to remember that the first European discoverer[157] of this Dominion was not Cook, but Abel Tasman. The Dutchman's a.s.sociation with the country was, however, so cursory, and his nation's subsequent interest in it so nominal, that to the sailor it appeared only as "a great land uplifted high," while to his countrymen it was known only as a vague scrawl upon the chart. That Tasman's discovery of 1642 gave the Dutch a right to colonise in New Zealand had they been so disposed is undoubted; but whatever rights they had thus acquired, such were clearly exhausted by Holland's failure to a.s.sert them during the long period of 135 years that elapsed before Cook came to make a reality of what to Tasman had only been a shadow.

With his characteristic thoroughness Cook left no weak link in the claim which he made on behalf of his nation. He landed on our sh.o.r.es, held intercourse with the natives, he surveyed our coasts, he took formal possession of both Islands "in the name, and for the use of His Majesty King George III."

"A philosopher perhaps might enquire on what ground Lieutenant Cook could take formal possession of this part of New Zealand in the name and for the use of the King of Great Britain, when the country was already inhabited, and of course belonged to those by whom it was inhabited, and whose ancestors might have resided in it for many preceding ages. To this the best answer seems to be that the Lieutenant in the ceremony performed by him had no reference to the original inhabitants, or any intention to deprive them of their national rights, but only to preclude the claims of further European navigators, who under the auspices and for the benefit of their respective States, or Kingdoms, might form pretensions to which they were not ent.i.tled by prior discovery."

So wrote one of the great explorer's most friendly biographers, and in his dispa.s.sionate review of the facts we have a correct summation of the rights which Cook's discoveries did and did not confer upon our nation. Clearly New Zealand was not a country in which, or over which, Britain could, by Cook's act, acquire a _bona fide_ possession, for it was inhabited by a strong and virile people, living under a system of government adequate in all respects for their social and military purposes.

In conferring upon New Zealand her charter of severance from New South Wales in 1840 Lord John Russell thus conveyed to Captain Hobson his view of the governmental state to which the Maori had risen: "They are not mere wanderers over an extended surface in search of a precarious existence; nor tribes of hunters, or of herdsmen, but a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil; who are not without some measure of agricultural skill, and a certain subordination of ranks, with usages having the character and authority of law." New Zealand then being an inhabited country and a country under a system of government at least so efficient as to subsequently induce the British authorities to recognise the Maori nation as an independent State, it becomes obvious that this could not be designated a land which could be lawfully seized upon by circ.u.mnavigators.