Читать книгу The Treaty of Waitangi; or, how New Zealand became a British Colony - Buick Thomas Lindsay - Страница 6

The favour of Ministerial selection for the onerous task of bringing New Zealand within the realms of Britain fell upon Captain Hobson, because his record in the Navy had justified the opinion expressed of him by Sir Richard Bourke, that he was an experienced and judicious officer. Moreover, his visit to the country in the Rattlesnake had given him a local knowledge of which few men of eminence and character were at that time possessed. There is no reason to suppose that the appointment was in any way a party one, and except that the new Consul was the victim of indifferent health, it was probably the best that could have been made at the time, its greatest justification being the complete success which attended his mission up to the time of his early decease.40 Captain Hobson left England in the H.M.S. Druid commanded by Lord John Churchill. He went out fortified for his task by a series of instructions which left little doubt that if Ministers had been slow to move, they had at least endeavoured to take a statesman-like view of the position when circumstances compelled them to act, the breadth of which can be best understood from the instructions themselves. After adverting to the social conditions existing in New Zealand, with which Captain Hobson was perfectly cognisant and which Lord Normanby assured him the Government had watched with attention and solicitude, the Colonial Secretary proceeded to explain the attitude which the Government had adopted in regard to this branch of Imperial policy.

We have not been insensible to the importance of New Zealand to the interests of Great Britain in Australia, nor unaware of the great natural resources by which that country is distinguished, or that its geographical position must in seasons, either of peace or war, enable it in the hands of civilised men to exercise a paramount influence in that quarter of the globe. There is probably no part of the earth in which colonisation could be effected with a greater or surer prospect of national advantage.

On the other hand, the Ministers of the Crown have been restrained by still higher motives from engaging in such an enterprise. They have deferred to the advice of the Committee of the House of Commons in the year 1836 to enquire into the state of the Aborigines residing in the vicinity of our colonial settlements, and have concurred with that Committee in thinking that the increase in national wealth and power, promised by the acquisition of New Zealand, would be a most inadequate compensation for the injury which must be inflicted on this kingdom itself by embarking in a measure essentially unjust, and but too certainly fraught with calamity to a numerous and inoffensive people whose title to the soil and to the sovereignty of New Zealand is undisputable and has been solemnly recognised by the British Government. We retain these opinions in unimpaired force, and though circumstances entirely beyond our control have at length compelled us to alter our course, I do not scruple to avow that we depart from it with extreme reluctance.

The necessity for the interposition of the Government has, however, become too evident to admit of any further inaction. The reports which have reached this office within the last few months establish the facts that about the commencement of 1838 a body of not less than two thousand British subjects had become permanent inhabitants of New Zealand, that amongst them were many persons of bad and doubtful character, – convicts who had fled from our penal settlements, or seamen who had deserted their ships, – and that these people, unrestrained by any law and amenable to no tribunals, were alternately the authors and victims of every species of crime and outrage. It further appears that extensive cessions of land have been obtained from the natives, and that several hundred persons have recently sailed from this country to occupy and cultivate these lands. The spirit of adventure having been effectually roused it can be no longer doubted that an extensive settlement of British subjects will be rapidly established in New Zealand, and that unless protected and restrained by necessary loans and institutions they will repeat unchecked in that quarter of the Globe the same process of war and spoliation under which uncivilised tribes have almost invariably disappeared, as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate, and if possible to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing amongst them a settled form of Government. To accomplish this design is the principal object of your mission.

I have already stated that we acknowledge New Zealand as a sovereign and independent state so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act or even deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's predecessor, disclaims for herself and her subjects every pretension to seize on the Islands of New Zealand, or to govern them as a part of the Dominions of Great Britain unless the free intelligent consent of the natives, expressed according to their established usages, shall be first obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefits of British protection and of laws administered by British judges would far more than compensate for the sacrifice by the natives of a national independence which they are no longer able to maintain, Her Majesty's Government have resolved to authorise you to treat with the aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any part of those Islands which they may be willing to place under Her Majesty's dominion. I am not unaware of the difficulties by which such a treaty may be encountered. The motives by which it is recommended are, of course, open to suspicion. The natives may probably regard with distrust a proposal which may carry on the face of it the appearance of humiliation on their side, and of a formidable encroachment on ours: and their ignorance even of the technical terms in which that proposal must be conveyed, may enhance their aversion to an arrangement of which they may be unable to comprehend the exact meaning, or the probable results. These are, however, impediments to be gradually overcome by the exercise on your part of mildness, justice, and perfect sincerity in your intercourse with them. You will, I trust, find powerful auxiliaries amongst the Missionaries who have won and deserved their confidence; and amongst the older British residents who have studied their character and acquired their language. It is almost superfluous to say that, in selecting you for the discharge of this duty, I have been guided by a firm reliance on your uprightness and plain dealing. You will therefore frankly and unreservedly explain to the natives or their chiefs the reasons which should urge them to acquiesce in the proposals you will make to them. Especially you will point out to them the dangers to which they may be exposed by the residence amongst them of settlers amenable to no laws or tribunals of their own and the impossibility of Her Majesty extending to them any effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire lands or habitations. If it should be necessary to propitiate their consent by presents, or other pecuniary arrangements, you will be authorised to advance at once to a certain extent in meeting such demands, and beyond those limits you will refer them for the decision of Her Majesty's Government.

It is not, however, to the mere recognition of the sovereign authority of the Queen that your endeavours are to be confined, or your negotiations directed. It is further necessary that the chiefs should be induced, if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain. Contemplating the future growth and extension of a British colony in New Zealand, it is an object of the first importance that the alienation of the unsettled lands within its limits should be conducted from its commencement upon that system of sale of which experience has proved the wisdom, and the disregard of which has been so fatal to the prosperity of other British Settlements. With a view to those interests it is obviously the same thing whether large tracts of land be acquired by the mere gift of the Government or by purchases effected on nominal considerations from the aborigines. On either supposition the land revenue must be wasted, the introduction of emigrants delayed or prevented, and the country parcelled out amongst large land-owners whose possession must long remain an unprofitable, or rather a pernicious waste. Indeed, in a comparison of the two methods of acquiring land gratuitously, that of grants from the Crown, mischievous as it is, would be the less inconvenient, as such grants must be made with at least some kind of system, with some degree of responsibility, subject to some conditions, and recorded for general information. But in the case of purchases from the natives even these securities against abuse must be omitted, and none could be substituted for them. You will, therefore, immediately on your arrival announce, by a proclamation41 addressed to all the Queen's subjects in New Zealand that Her Majesty will not acknowledge as valid any title to land which either has been, or shall hereafter be acquired in that country which is either not derived from or confirmed by a grant to be made in Her Majesty's name and on her behalf. You will, however, at the same time take care to dispel any apprehensions which may be created in the minds of the settlers that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community. Extensive acquisitions of such lands have undoubtedly been already obtained, and it is probable before your arrival a great addition will have been made to them. The embarrassments occasioned by such claims will demand your earliest and most careful attention.

I shall in the sequel explain the relation in which the proposed colony will stand to the Government of New South Wales. From that relation I propose to derive the resources necessary for encountering the difficulty I have mentioned. The Governor of that country will, with the advice of the Legislative Council, be instructed to appoint a Legislative Commission to investigate and ascertain what are the lands held by British subjects under grants from the natives; how far such grants were lawfully acquired and ought to be respected; and what may have been the price or other valuable consideration given for them. The Commissioners will make their report to the Governor, and it will then be decided by him how far the claimants, or any of them, may be entitled to confirmatory grants from the Crown, and on what conditions such confirmations ought to be made.

The propriety of immediately subjecting to a small annual tax all uncleared lands within the British settlements in New Zealand will also engage the attention of the Governor and Council of New South Wales. The forfeiture of all lands in respect of which the tax shall remain for a certain period in arrear would probably before long restore to the demesne of the Crown so much of the waste land as may be held unprofitably to themselves, and the public, by the actual claimants. Having by these measures obviated the dangers of the acquisition of large tracts of country by mere land-jobbers, it will be your duty to obtain by fair and equal contracts with the natives the cession to the Crown of such waste lands as may be progressively required for the occupation of settlers resorting to New Zealand. All such contracts should be made by yourself, through the intervention of an officer expressly appointed to watch over the interests of the aborigines as their protector. The resales of the first purchases that may be made will provide the funds necessary for future acquisitions; and beyond the original investment of a comparatively small sum of money no other resource would be necessary for this purpose. I thus assume that the price to be paid to the natives by the local Government will bear an exceedingly small proportion to the price for which the same lands will be resold by the Government to the settlers, nor is there any real injustice in this inequality. To the natives or their chiefs much of the land in the country is of no actual use, and in their hands it possesses scarcely any exchangeable value. Much of it must long remain useless, even in the hands of the British Government also, but its value in exchange will be first created, and then progressively increased by the introduction of capital and of settlers from this country. In the benefits from that increase the natives themselves will gradually participate.

All dealings with the natives for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of Her Majesty's sovereignty in the Islands. Nor is this all: they must not be permitted to enter into any contracts in which they might be ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves. To secure the observance of this rule will be one of the first duties of their Official Protector.

There are yet other duties owing to the aborigines of New Zealand which may be all comprised in the comprehensive expression of promoting their civilisation, understanding by that term whatever relates to the religious, intellectual, and social advancement of mankind. For their religious instruction liberal provision has already been made by the zeal of the Missionaries, and of the Missionary Societies in this Kingdom, and it will be at once the most important and the most grateful of your duties to this ignorant race of men to afford the utmost encouragement, support, and protection to their Christian teachers. I acknowledge also the obligation of rendering to the Missions such pecuniary aid as the local Government may be able to afford, and as their increased labours may reasonably entitle them to expect. The establishment of schools for the education of the aborigines in the elements of literature will be another object of your solicitude, and until they can be brought within the pale of civilised life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity and morals. But the savage practices of human sacrifice and cannibalism must be promptly and decisively interdicted; such atrocities, under whatever plea of religion they may take place, are not to be tolerated in any part of the dominions of the British Crown.

It remains to be considered in what manner provision is to be made for carrying these instructions into effect as for the establishment and exercise of your authority over Her Majesty's subjects who may settle in New Zealand, or who are already there. Numerous projects for the establishment of a constitution for the proposed colony have at different times been suggested to myself and to my immediate predecessor in office, and during the last session of Parliament, a Bill for the same purpose was introduced into the House of Commons at the instance of some persons immediately connected with the emigrations then contemplated. The same object was carefully examined by a Committee of the House of Lords. But the common result of all enquiries, both in this office and in either House of Parliament, was to show the impracticability of the schemes proposed for adoption, and the extreme difficulty of establishing at New Zealand any institutions, legislative, judicial, or fiscal without some more effective control than could be found amongst the settlers themselves in the infancy of their settlement. It has therefore been resolved to place whatever territories may be acquired in the sovereignty by the Queen in New Zealand in the relation of a dependency to the Government of New South Wales. I am of course fully aware of the objections which may be reasonably urged against this measure; but after the most ample investigation I am convinced that for the present there is no other practicable course which would not be opposed by difficulties still more considerable, although I trust that the time is not distant when it may be proper to establish in New Zealand itself a local legislative authority.

In New South Wales there is a Colonial Government possessing comparatively long experience, sustained by a large revenue, and constituted in such a manner as is best adapted to enable the legislative and executive authorities to act with promptitude and decision. It presents the opportunity of bringing the internal economy of the proposed new colony under the constant revision of a power sufficiently near to obtain early and accurate intelligence, and sufficiently remote to be removed from the influence of the passions and prejudices by which the first colonists must in the commencement of their enterprise be agitated. It is impossible to confide to an indiscriminate body of persons who have voluntarily settled themselves in the immediate vicinity of the numerous population of New Zealand those large and irresponsible powers which belong to the representative system of Colonial Government. Nor is that system adapted to a colony struggling with the first difficulties of their new situation. Whatever may be the ultimate form of government to which the British settlers in New Zealand are to be subject, it is essential to their own welfare, not less than that of the aborigines, that they should at first be placed under a rule which is at once effective and to a considerable degree external. The proposed connection with New South Wales will not, however, involve the extension to New Zealand of the character of a penal settlement. Every motive concurs in forbidding this, and it is to be understood as a fundamental principle of the new colony that no convict is ever to be sent thither to undergo his punishment.

The accompanying correspondence with the Law Officers will explain to you the grounds of law on which it is to be concluded that by the annexation of New Zealand to New South Wales the powers vested by Parliament in the Governor and Legislative Council of the older settlement might be exercised over the inhabitants of the new colony. The accompanying Commission under the Great Seal will give effect to this arrangement, and the warrant which I enclose under Her Majesty's sign manual will constitute you Lieut. – Governor of that part of the New South Wales colony which has thus been extended over the New Zealand Islands. These instructions you will deliver to Sir George Gipps, who on your proceeding to New Zealand will place them in your hands to be published there. You will then return it to him to be deposited amongst the archives of the New South Wales Government.

In the event of your death or absence the officer administering the Government of New South Wales will, provisionally, and until Her Majesty's pleasure can be known, appoint a Lieut. – Governor in your place, by an instrument under the public seal of his Government.

It is not for the present proposed to appoint any subordinate officers for your assistance. That such appointments will be indispensable is not, indeed, to be doubted. But I am unwilling at first to advance beyond the strict limits of the necessity which alone induces the Ministers of the Crown to interfere at all on this subject. You will confer with Sir George Gipps as to the number and nature of the official appointments which would be made at the commencement of the undertaking and as to the proper rate of their emoluments. These must be fixed with the most anxious regard for frugality in the expenditure of public resources. The selection of the individuals by whom such offices are to be borne must be made by yourself from the colonists either of New South Wales or New Zealand, but upon the full and distinct understanding that their tenure of office, and even the existence of the offices which they are to hold must be provisional and dependent upon the future pleasure of the Crown. Amongst the offices thus to be created, the most evidently indispensable are those of a Judge, a Public Prosecutor, a Protector of the Aborigines, a Colonial Secretary, a Surveyor-General of Lands, and a Superintendent of Police. Of these, the Judge alone will require the enactment of a law to create and define his functions. The Act now pending in Parliament, for the revival, with amendments, of the New South Wales Act will, if passed into law, enable the Governor and Legislative Council to make all necessary provision for the establishment in New Zealand of a Court of Justice and a judicial system separate from and independent of the existing Supreme Court. The other functionaries I have mentioned can be appointed by the Governor in the unaided exercise of the delegated prerogative of the Crown. Whatever laws may be required for the Government of the new colony will be enacted by the Governor and Legislative Council. It will be his duty to bring under their notice such recommendations as you may see cause to convey to him on subjects of this nature. The absolute necessity of the revenue being raised to defray the expenses of the Government of the proposed settlement in New Zealand has not, of course, escaped my careful attention. Having consulted the Lords of the Treasury on this subject I have arranged with their Lordships that until the sources of such revenue shall have been set in action, you should be authorised to draw on the Government of New South Wales for your unavoidable expenditure. Separate accounts, however, will be kept of the public revenue of New Zealand and of the application of it and whatever debt may be contracted to New South Wales, must be replaced by the earliest possible opportunity. Duties of impost on tobacco, spirits, wine, and sugar will probably supersede the necessity of any other taxation, and such duties except on spirits will probably be of a very moderate amount.

The system at present established in New South Wales regarding land will be applied to all the waste lands which may be kept by the Crown in New Zealand.

Separate accounts must be kept of the Land revenue, subject to the necessary reductions for the expense of surveys and management, and for the improvement by roads and otherwise the unsold territory, and subject to any deductions which may be required to meet the indispensable exigencies of the local Government. The surplus of this revenue will be applicable, as in New South Wales, to the charge of removing emigrants from this kingdom to the new colony.

The system established in New South Wales to provide for the religious instruction of the inhabitants has so fully justified the policy by which it was dictated that I could suggest no better means of providing for this all-important object in New Zealand. It is, however, gratifying to know that the spiritual wants of the settlers will, in the commencement of the undertaking, be readily and amply provided for by the Missionaries of the Established Church of England and of other Christian communions, who have been so long settled in those Islands. It will not be difficult to secure for the European inhabitants some portion of that time and attention which the Missionaries have hitherto devoted exclusively to the aborigines.

I enclose, for your information and guidance, copies of a correspondence between this department and the Treasury, referring you to Sir George Gipps for additional instructions as may enable you to give full effect to the view of Her Majesty's Government on the subject of finance. You will observe that the general principle is that of maintaining in the proposed colony a system of revenue, expenditure, and account entirely separate from that of New South Wales, though corresponding with it as far as that correspondence can be maintained.

After briefly describing the rules to be observed by Captain Hobson in conducting his correspondence with his immediate superior, Governor Gipps, and the Colonial Office, Lord Normanby concluded his instructions as follows:

I have thus attempted to touch on all the topics on which it seems to me necessary to address you on your departure from this country. Many questions have been unavoidably passed over in silence, and others have been adverted to in a brief and cursory manner, because I am fully impressed with the conviction that in such an undertaking as that in which you are about to engage much must be left to your own discretion, and many questions must occur which no foresight could anticipate or properly resolve beforehand. Reposing the utmost confidence in your judgment, experience, and zeal for Her Majesty's service, and aware how powerful a coadjutor and how able a guide you will have in Sir George Gipps, I willingly leave for consultation between you many subjects on which I feel my own incompetency, at this distance from the scene of action, to form an opinion.42

The publication of this document brought down upon the head of the Minister a storm of criticism from the committee of the New Zealand Company, who attacked with especial bitterness that portion of the instructions wherein Lord Normanby made it especially clear that Britain claimed no right of sovereignty in or over New Zealand. In the previous year, when the Company was promoting its Bill in the House of Commons, and when the organisation was less mercenary in its nature, the promoters had taken a modified view of this question of sovereignty, and were prepared to concede something to the natives which, as a Company, they were now eager to deny.

This earlier attitude was admirably expressed by the Rev. Dr. Hinds, who in discussing the matter before the Committee of the House of Lords, boldly stated that he believed civilised people had a right – an inherent right – over countries that have not been subject to civilisation, whether those countries were uninhabited or partially inhabited by savages who were never likely themselves to cultivate the country. "Here," he said, "is a country considered to be populous for a savage country. According to an estimate made by a respectable Missionary of the C.M.S. the inhabitants of the Northern Island amount to about 105,000. This Northern Island is probably about the size of England, and this its population of 105,000 stated to be decreasing in number without the least chance of their becoming cultivators or sovereigns of the soil. I hold it not to be an infringement of any natural rights to claim the sovereignty of the Island, and this is a claim which until lately would never have been questioned. There has been often a question as to the mode in which sovereign rights over savage countries should be distributed among civilised people, but it has been a question between one civilised country and another. Formerly the Pope used to claim the disposal of sovereignty. Subsequently it has been more conveniently settled by allowing the priority of claim to the first discoverers – a course as convenient probably as can be advised. Within the last few years, however, the justice of this claim has been questioned, and it has been asserted that savage as well as civilised men have sovereign rights. I do not, myself, think they have; but it has been the wish of the Association not to offend any scruples, and therefore they have carefully in this Bill waived the question, and allowed the claim to a sovereign right of some kind to exist in those savages. I say a sovereign right of some kind, because it is clear in the instance just mentioned, the giving the flag to the Bay of Islands, that the very assumption on the part of Great Britain of a right to give that flag supposes the New Zealanders not to be altogether a sovereign power. Many probably who may be willing to cede to them the right of sovereignty as far as concerns themselves would not go to such lengths as to say that Great Britain should not cede the sovereignty as regards any right which may be put in by other nations; and I do not know on what principle we should draw a distinction, and say how much or how little of this right of sovereignty we should claim. The French have been attracted by the flax: suppose they were to say 'If you relinquish your rights of sovereignty we will put in our claim, we stand next,' or the Dutch may say so. I do not know which visited the country first, but I cannot see on what principle we could interfere with the French or Dutch unless we contend that we had some disposal over the sovereignty of the Islands. The question, however, has been waived in the Bill; we suppose the New Zealanders and not Great Britain to be in possession of the right of sovereignty, and we propose accordingly that a purchase should be made of the sovereignty as well as the fee simple of the land. We have some precedents for this. I do not know whether it is of consequence to bring forward precedents, but even at a late period a purchase of this kind has been made; Sir Stafford Canning took possession in 1815 of Singapore; it was at that time in possession of the Malays, the subjects of the Sultan of Jahore. In 1825 he found, I think, some inconvenience arising from the Sultan's claims, and the English bought the Domain of the Sultan for a sum of money, and so clear was the understanding about it, that the Sultan made some reservations; some exceptional laws, as they are called in this Bill, were made. There was a clause that the Sultan's slaves should not be emancipated, and certain lands were reserved and became entailed property and inalienable. When Penn purchased Pennsylvania he no doubt understood he purchased the sovereignty as well as the fee simple of the land, for I can conceive no one mad enough to found a colony in the midst of barbarians without securing the colonists against their interference as sovereigns. Vattel certainly speaks of Penn's treaty as if he understood him to have purchased the sovereign rights as well as the fee simple. These are precedents which may not be considered as carrying any great authority. The question has not been very much discussed; it has been taken for granted, and I think with reason, that the savage is in a state of pupilage, and must be treated as we treat children. The only principle which it is important to maintain is this: If you go into a country at all inhabited by savages and take possession of their land and become sovereigns of it, you infringe their rights if you do not consider their benefit as well as your own. If you were treating with a child you would not infringe the rights of that child simply by acting and deciding for him, but you would infringe his rights if you acted and decided for your benefit and not his. So with respect to savages; they are compared with civilised men, like children. They are of themselves incapable of acquiring the arts and habits of civilised life; unless some interference that amongst civilised men would be considered unjust, takes place, they never can, by themselves, rise to that higher condition. The injustice to be deprecated is that of seeking our own benefit solely and not theirs; and with respect to the New Zealanders our purchase of the sovereignty of their country ought not to be represented as being the same kind of bargain as if the French, for instance, were bargained with to cede the sovereignty over any portion of their territory. When the French ceded their sovereign rights over Martinique, Guadaloupe, and the Mauritius, they strictly ceded all their sovereign rights; but in the present instance what is meant by the cession of sovereignty amounts to this – that we purchase the right to participate in the sovereignty with them; we do not wish to exclude them, but pay them a price to partake in the sovereignty with them. Of course, in the first instance, the civilised man will be the only sovereign, but that is because he only will be fit and capable of exercising sovereign rights. As the savage advances in civilisation he will come in for his share; and I see no reason, as soon as the New Zealander is capable of it, against his being Chief Justice, Governor, or Bishop, or holding any other office. It is not therefore that we take the sovereignty from him; we purchase the right of participating with him in the sovereignty, and by so doing we enable him to become Sovereign of the country, which he is not at present."

In the meantime the Government had unmistakably demonstrated their intention not to recognise the Company, and with all hope of political patronage gone the Company saw no reason why they should spare the Government. There was now in their opinion no possible room to doubt that the sovereignty over New Zealand rested in Great Britain, and that the Colonial Department was betraying a national trust in conceding any rights to the natives, thereby opening the door to foreign intervention. They first showered their protests against this supposed surrender of a national asset upon the Colonial Office, but when they discovered themselves ignored in this direction they turned with renewed complaint to the Foreign Minister. "We are assured," they wrote to him, on November 7, 1839, "that this question of the sovereignty of New Zealand engages the attention of various commercial bodies and a large portion of the public press in France; that the sovereignty in England is denied; that the French Government is urged either to join in that denial, by protesting against the colonisation of the Islands by England, or to claim an equal right with England to plant settlements there. We are not without fear that some such protest or claim should be admitted by your Lordship's Department, as it appears to have been admitted by the Colonial Department. It appears that the agitation of this question in France has been produced by the publication of a Minute of the British Treasury made at the instance of the Colonial Department (July 19), and also of an extract of certain instructions recently given by that Department to Captain Hobson, – two documents by which the Crown of England seems to repudiate the sovereignty of New Zealand. The apparent repudiation consists of an acknowledgment of sovereignty in the native chiefs from whom Captain Hobson is instructed to procure, if possible, a cession to Her Majesty. It is this acknowledgment, according to all our information, which has given occasion to the pretensions now urged in France.43 That which England, it is contended, instructs her officer to procure, if possible, she admits she does not possess, and she thereby admits the right of France either to obtain sovereign jurisdiction in New Zealand, by the means which Captain Hobson is instructed to employ, or if France should prefer that course, to sustain the independent sovereignty of the natives. The argument appears conclusive. It becomes very important, therefore, if it is of great importance to England, to prevent the establishment of a French power in the midst of the English colonies of Australasia that your Lordship should be made aware of the acts of the British Crown which lead to a conclusion directly at variance from that which may be drawn from the said minute and instructions."

The Company's nominal44 advocate on this occasion was their Deputy-Governor, Mr. Somes, who apparently possessed a faculty for stating strongly a weak case; and in the course of this letter to Lord Palmerston he taxed his ability to show that the right of sovereignty in New Zealand had vested in Britain since the discovery of the Islands by Captain Cook; that it had been confirmed by numerous diplomatic acts in all the years since then, and could not now be abandoned on the mere whim of a Minister.

During the course of his trenchant review of the position Mr. Somes declared that the sovereignty of England in New Zealand had been over and over again asserted and exercised. Whether it could be subsequently abandoned by such documents as the Treasury Minute and instructions was a question in constitutional and international law on which his Lordship was of course far more competent to judge than they could pretend to be. But that there was recently a British sovereignty either to maintain or to abandon the Company had no sort of doubt. He pointed out that in the year 1769, Captain Cook, acting under a commission from the Crown of England, took possession of the Islands of New Zealand, in the name of His Majesty, George III. This act was performed in the most formal manner, and was published to the world. "We are not aware," he wrote, "that it was ever questioned by any foreign power. It constituted sovereignty by possession. The Law of Nations, we believe, recognises no other mode of assuming dominion in a country, of which the inhabitants are so barbarous as to be ignorant of the meaning of the word sovereignty, and therefore incapable of ceding sovereign rights. This was the case with the New Zealanders, from whom it would have been impossible for Captain Cook to have obtained, except in mockery of truth, a British sovereignty by cession. Sovereignty by possession is that which the British Crown maintains in a large portion of its foreign dependencies. In this year, 1787, a Royal Commission was granted to Captain Philip appointing him in pursuance of the British sovereignty in possession, which had previously been established by Captain Cook, "Captain-General and Governor-in-Chief in and over the territory of New South Wales and its dependencies." This territory was described in the commission as "Extending from Cape York, latitude 11° 37´ south, to the South Cape, latitude 43° 30´ south, and inland to the westward as far as 135° east longitude, comprehending all the Islands adjacent in the Pacific Ocean, within the latitudes of the above-named capes." This is the Act by which the Crown first assumed the Government of New South Wales and the other barbarous lands of which Captain Cook had taken possession in the name of the King. The Islands of New Zealand are as clearly within the prescribed limits as Norfolk Island, Van Dieman's Land, or even New South Wales itself. On November 9, 1814, the Governor and Captain-General of New South Wales and its dependencies, acting on the representation of the Crown, by public proclamation, declared New Zealand to be a Dependency of his Government, and by regular commission of dedimus potestatem appointed Justices of the Peace to act there. Some of the Magistrates so appointed were aboriginal natives of the country. It is plain that they were treated as British subjects. In 1819 again Governor Macquarrie appointed an English Magistrate in New Zealand. This Justice of the Peace exercised the authority so bestowed on him by apprehending offenders and sending them for trial to the seat of Government. In 1823 a British Act of Parliament (4 George IV. cap. 96) extended the jurisdiction of the Courts of New South Wales to New Zealand by name, and also to other places in the Southern Pacific not within the latitudes previously mentioned. Under this authority several persons, we understand, have been tried in New South Wales for offences committed in New Zealand, and we have been informed that property in New Zealand, as well real as personal, has been made the subject of the Bankruptcy law of New South Wales. The authority of the British Crown was frequently enforced by means of ships of war, and although it cannot be asserted that regular government was ever established in New Zealand, far more than was essential to creating British dependency seems to have been performed. The Islands thus continued in a state of dependency until the year 1831, when a series of proceedings commenced by which the sovereignty of Britain may perhaps have been forfeited. An officer was appointed to reside at the Bay of Islands. He presented to certain native chiefs, as from the Crown of England, what was termed "a national flag." This might have been considered a transfer to these chiefs of the British sovereignty, if the Resident had not been 'accredited' to certain officers of the Church Missionary Society, then settled at the Bay of Islands. By the latter act the sovereignty of the Islands would almost seem to have been transferred to these Missionaries. But in October 1835 this diplomatic agent assembled certain native chiefs residing in the Northern part of the North Island, called them a "Confederation," and sanctioned a declaration of Native Independence, to which their names were appended. This last act appears, by all accounts, to have been a mere mockery of its ostensible purport. The tribes of New Zealand are so entirely distinct, so utterly destitute of nationality, as to have no name for the whole country which they inhabit. A national name was invented for this occasion – the words Na Terrene which express the native pronunciation of the English words "New Zealand." The only parties besides to the so-called Declaration of Independence were the chiefs of a few tribes then inhabiting a small part of one of the Islands. These even, inasmuch as their language contains no words to express nationality, sovereignty, or independence, must have been unconscious instruments of the Resident, or of the Missionaries, to whom that officer was accredited, as if they (the Missionaries) had been the sovereigns of New Zealand. If indeed the sovereignty was delegated to the Missionaries they could, being British subjects, have held it as trustees for the Crown. If the sovereignty of the natives was then acknowledged it extended only to a small part of one Island inhabited by the parties to the Declaration. And in either case this mockery of an independent sovereign nationality has been set at naught by the power in whose name it took place, inasmuch as the jurisdiction of British law, and the armed authority of British warships have been exercised since in the same way as before the Bay of Islands' Declaration of Independence.

"I beg leave," continued Mr. Somes, "to assure your Lordship in the name of my colleagues that we intrude on you with the greatest reluctance. But we have felt that it was incumbent on us especially during the recess of Parliament to convey to your Lordship the information that we have received as to the state of feeling in France on this subject, so that if unhappily the British sovereignty of New Zealand were lost it should be through no fault of ours. We fear that the measures recently adopted by the Colonial Department may, unless promptly remedied, lead to very disastrous results. We are deeply concerned for the fate of a large and most respectable body of our countrymen, who have emigrated under our auspices. Connected as several of us are with the commercial and shipping interests of the country, and knowing therefore how much importance they attach to the British possession of New Zealand, as they have frequently stated in memorials to the Treasury and Board of Trade, we have felt that it was a duty to express to your Lordship the apprehensions which we entertain. We have been told that a French frigate recently sailed for the South Seas with sealed orders, and some of the French newspapers report, with expressions of satisfaction, that the Government of the United States of America has appointed a Consul in New Zealand, to be accredited to 'the Confederation of chiefs,' and has sent him to his destination in a man-of-war, which is to remain under his orders. These statements may be untrue, or only premature, but in either case Captain Hobson's instructions which attach two conditions, either or both of which may be unattainable, to the exercise of any authority by him in New Zealand, namely possession of the land by British subjects, and cession by the natives of the sovereignty over such land, are calculated to invite foreign pretensions which otherwise would never have been imagined."

This protest was taken most philosophically by Lord Palmerston, who merely passed it on to Lord John Russell, who had now succeeded Lord Normanby at the Colonial Office. Lord John treated it even more philosophically, for it was not for several months (March 11, 1840) that he deigned to reply, and then only after he had been reminded of the omission by the Foreign Office. In the meantime all need of further argument had been obviated by the success of Captain Hobson's mission, and so the Colonial Secretary wasted no words in rhetoric, but forwarded to his colleague a memorandum couched in concise official terms, setting out in sequence the events which in the light of International law would be used as evidence against any claim to British sovereignty, and which contained all the information it appeared necessary to afford in answer to the communication from Mr. Somes.

It is easy to understand the indignation of the Company on learning of the Minister's repudiation of British sovereignty in New Zealand, because it sapped the very foundations of their scheme, seeing that it was illegal for British subjects to establish colonies outside the limits of the Empire without the sanction of the Crown. They had always presupposed the existence of a British sovereignty over New Zealand and upon that supposition all their calculations had been built. Now the basis of their building had gone, they adroitly pretended that what grieved them was not so much their loss as that the repudiation of British authority was a national calamity, and that what was the neglect of Britain became the opportunity of France.

The position taken up by the Government was, however, perfectly sound, and was the only logical one they could occupy. Whether previous Governments had acted wisely and well in declining to embrace the opportunity to colonise which Cook's discovery had opened to them, may be a debatable question, but the fact at this date was that the golden opportunity had passed, and that by subsequent diplomatic acts, deliberately taken, the independence of the Maori people had been clearly and emphatically acknowledged. "The answers," wrote Lord John Russell to Lord Palmerston, "which would be made by foreign nations to such a claim as that put forward by Mr. Somes are two. First that the British Statute Book has, in the present century, in three distinct enactments, declared that New Zealand is not a part of the British Dominions, and secondly that King William IV. made the most public, solemn, and authentic declaration which it was possible to make that New Zealand was a substantive and independent state. The resolution by the King, Lords, and Commons of Great Britain of the fact that New Zealand is not a part of the British Dominions will be found in the Statutes 57 George III. cap. 53, 4 George IV. cap. 96, sec. 3, and 9 George IV. cap. 83, sec. 4."

The Act of 57 George III. cap. 53 is entitled "An Act for the more effectual punishment of murders and manslaughters committed in places not within His Majesty's dominions." It sets forth – "Whereas grievous murders and manslaughters have been committed at the settlement of the Bay of Honduras in South America, etc.," "and the like offences have also been committed in the South Pacific Ocean, as well on the high seas as on land, in the Islands of New Zealand and Otaheite, and in other Islands, countries, and places not within His Majesty's dominions, by the Masters and crews of British ships, and other persons who have for the most part deserted from or left their ships, and have continued to live and reside amongst the inhabitants of those Islands, etc.," and the Act then provides for the punishment of offences so committed "in the said Islands of New Zealand and Otaheite, or within any other Islands, countries, or places, not within His Majesty's dominions, nor subject to any other European State or power," etc.

The Statute 4 George IV. cap. 96, sec. 3 enacts that the Supreme Courts in the colonies of New South Wales and Van Dieman's Land may try offences "committed in the islands of New Zealand, Otaheite, or any other Island, country, or place, situate in the Indian or Pacific Oceans, and not subject to His Majesty or to any European State," if such offences were committed by British subjects.

The Statute 9 George IV. cap. 83, sec. 4 repeats that enactment in the same words, adding only that the punishment of the offence shall be the same as if the crime had been committed in England.

The recognition by King William IV. of New Zealand as a substantive and independent state is shown in the following narrative:

"On November 16 a letter to King William IV. from thirteen of the chiefs of New Zealand was transmitted to Lord Goderich, praying the protection of the British Crown against the neighbouring tribes and against British subjects residing in the Islands. On June 14, 1832, Lord Ripon despatched Mr. Busby as British Resident, partly to protect British Commerce, and partly to repress the outrages of British subjects on the natives. His Lordship sent with Mr. Busby a letter to the chiefs, in which the King was made to address them as an independent people. Their support was requested for Mr. Busby, and they were reminded of the benefits which they would derive from 'the friendship and alliance with Great Britain.'

"In the month of June 1832 a Bill was brought into the House of Commons for the prevention of crimes committed by His Majesty's subjects 'in New Zealand, and in other Islands in the Pacific not being within His Majesty's dominions.' The Bill was rejected because Parliament could not lawfully legislate for a foreign country.

"On April 13, 1833, the Governor of New South Wales, in obedience to Lord Ripon's (formerly Lord Goderich) orders, addressed instructions to Mr. Busby, in which New Zealand was expressly mentioned as a foreign country, and Mr. Busby himself as being accredited to the chiefs. That document throughout assumes the independence of New Zealand.

"On April 29, 1834, General Bourke transmitted to Lord Stanley a proposal from Mr. Busby for establishing a national flag for the tribes of New Zealand, 'in their collective capacity,' and advised that ships built in the Island and registered by the chiefs should have their registers respected in their intercourse with British possessions. Sir R. Bourke reported that he had sent three patterns of flags, one of which had been selected by the chiefs; that the chiefs had accordingly assembled with the commanders of the British and three American ships, to witness the inauguration of the flag, at which the officers of H.M.S. Alligator were also present. The flag had been declared to be 'the national flag' of New Zealand, and being hoisted, was saluted with twenty-one guns by the Alligator, a British ship-of-war.

"On November 21, 1834, a despatch was addressed to Sir Richard Bourke by Lord Aberdeen, approving of all these proceedings in the name of the King, and sending a copy of a letter from the Admiralty, stating that they had instructed their officers to give effect to the New Zealand Registers, and to acknowledge and respect the national flag of New Zealand.

"If these solemn Acts45 of Parliament, and of the King of Great Britain, are not enough to show that the pretension made on behalf of Her Majesty by this Company is unfounded, it might still further be repelled by a minute narrative of all the relations between New Zealand and the adjacent British colonies. It is presumed, however, that after the preceding statement it would be superfluous to accumulate arguments of that nature and the rather because they could not be intelligibly stated without entering into long and tedious details."

While this discussion was proceeding in England, Captain Hobson was happily on his way to Sydney, with his instructions rendered still more explicit46 by further explanation from Lord Normanby, thus eliminating, as far as human forethought could provide, the possibility of misunderstanding as to the extent of his authority, or to the sincerity of the broad humanitarian principles which were to govern his conduct towards the natives.

Reaching Sydney late in December 183947 he immediately himself to Sir George Gipps, who entered into the spirit of the enterprise with his characteristic enthusiasm for the service of the Empire. During their official negotiations the final arrangements were completed agreeably to the intentions of the Colonial Secretary. Captain Hobson was placed in the possession of the Proclamation under the Great Seal, by which the Government of New South Wales was extended to any territory which might be acquired as the result of Hobson's mission "in those Islands commonly called New Zealand." Simultaneously he was presented with his own Commission as Lieutenant-Governor of any such territory, and with the proclamations he was to issue in New Zealand, as circumstances rendered necessary or advisable. He was also placed in possession of further instructions from Sir George Gipps, who laid special stress upon the financial relations existing between the two colonies. "My responsibility for the due expenditure of the public money of this colony," he said, "is one of which I cannot divest myself, and where responsibility is there also must be control. The extent to which establishments are to be erected in New Zealand, the salaries to be paid to public officers, and the expenditure of public money on public works, must for the present be fixed by myself on estimates and reports or proposals to be forwarded by you." Close enquiry was also made into the legal question which Captain Hobson had raised with Lord Normanby when seeking fuller information regarding his powers of administration. Hobson desired the power to appoint and suspend Magistrates; to pardon offences and remit sentences, and to exercise original control, which the insular position of New Zealand seemed to demand, but which was seldom conferred upon those holding the subordinate office of Lieutenant-Governor. To this request Lord Normanby had replied that all the powers necessary for the proper conduct of his office would be conferred upon him by acts of the Governor and Legislature of New South Wales. Hobson was unconvinced, but deferentially refrained from pitting his lay opinion against that which he naturally assumed was based upon the wider knowledge possessed by the Department. Sir George Gipps had no such reservations, and at once declared his inability to delegate to another powers which had only been delegated to him.

In communicating his final instructions to the Lieutenant-Governor, Gipps wrote: "With respect to certain powers or prerogations of the Crown, with which Governors of colonies are usually entrusted, it is necessary for me to point out to you that though I am myself authorised by Her Majesty to exercise them in her name, and on her behalf, I have no power to delegate the exercise of them to another. From this, which is an inherent maxim in law, it will, I believe follow:

"(1) That you will not have power to pardon offences, or to remit sentences pronounced on offenders in due course of law, though you may stay the execution of the law.

"(2) That you will not be authorised to suspend officers holding appointments direct from Her Majesty, though you may recommend to me the suspension of them. With respect to persons holding appointments from me you will have the power of suspension, and over such as hold appointments from yourself a power of dismissal unless they may have been previously recommended by you for confirmation in the service, in which case your power will extend only to suspension.

"(3) You will not have power of appointing Magistrates, though of course you will recommend to me such persons as you may think fit to be appointed.

"(4) In the event of the enrolment of a militia, the same will hold good respecting the appointment of officers."

A staff of officials for the due conduct of the civil business of the country was also appointed,48 even to a small force of policemen, and with an almost prophetic punctiliousness for detail, a Commission was prepared for his successor in the event of Hobson's death, so that there might be no break in the continuity of official control.

With these preliminaries settled, Governor Gipps, on January 14, issued three proclamations: (1) extending the boundaries of New South Wales to New Zealand; (2) proclaiming Captain Hobson Lieutenant-Governor of those Islands, and "calling upon all British subjects to the aiding and assisting of the said William Hobson in the exercise of his said duty"; (3) to put an end to the speculation in New Zealand lands then being openly carried on in Sydney.

The Herald, a frigate of twenty guns, commanded by Captain Nias, lay in Spring Cove, waiting to convey the Queen's representative and his party to New Zealand.49 At six o'clock on the evening of Saturday the 18th the staff appointed to accompany the Consul joined the vessel, and at a somewhat later hour Captain Hobson himself went on board. Under the influence of a fine N.E. wind, a full moon shining down upon the harbour, the Herald left Port Jackson and headed for the Bay of Islands. Fine weather was experienced in the Tasman Sea and on Sunday the 26th, while a gentle breeze filled the sails and soft zephyrs whispered through the cordage, Captain Nias conducted Divine service on the gun deck, which was attended by the whole ship's company, and "a more beautiful and impressive scene I never witnessed," is the description of the ceremony given by Mr. Felton Mathew, who was coming with Hobson as the Surveyor-General to the new colony. At daylight on the following morning the Three Kings were sighted, and shortly after the mainland came into view. Two days were spent in beating up the coast, and again at daylight on the 29th, the Herald entered the Bay of Islands, drifting with the tide, there being not a breath of wind. All the morning was spent in this tedious process, and it was not till eleven o'clock that the anchor was cast in front of the little town of Kororareka.50 Across the Bay the Union Jack was flying in front of Mr. Busby's residence, but what most attracted the attention and excited the interest of those on board was the French tricolour floating from a staff upon the hill-side above the township. "What this may indicate," wrote Mr. Mathew in his diary, "we have yet to learn – whether it is merely a French Missionary establishment or whether a French frigate is at anchor in the Bay and has anticipated us, we shall soon discover."