SCHEDULE. No. 1.-Copy of a Despatch from Lord Stanley to Governor Fitz Roy, dated 13 August 1844 - p. 3 No. 2.-Copy of a Despatch from Lord Stanley to Governor FitzRoy, dated 17 August [3] PAPERS RELATIVE TO THE AFFAIRS OF NEW ZEALAND. (No. 31.) -No. 1. Copy of a DESPATCH from Lord Stanley to Governor FitzRoy. Sir, Downing-street, 13 August 1844. In my despatch, No. 27, of 30th ultimo, I enclosed to you the report and proceedings of the Committee of the House of Commons, appointed to inquire into the state of New Zealand, and into the proceedings of the New Zealand Company. On reference to the proceedings, you will perceive that the Committee were far from unanimous in their opinions, and that some of the most important of their decisions, including one upon the selection between two sets of Resolutions, as the basis of their Report, were sustained by very narrow majo rities. Nevertheless, I cannot but apprehend that this Report, carrying with it, as it must be admitted to do, the authority of a Committee of the House of Commons, may add to the difficulties of your position, less indeed by the practical measures which it recommends than by the principles which it lays down, and on which it proceeds, principles which I know to be opposed to your own views, and which, if you were to attempt to carry them into practice, would, I fear, lead to most unhappy consequences. Lord Stanley to Governor FitzRoy, 13 August 1844. The Report, you will observe, proceeds upon the assumption that "the un- See p. 6. civilized inhabitants of any country have but a qualified dominion over it, or a right of occupancy only, and that until they establish amongst themselves a settled form of Governinent, and subjugate the ground to their own uses by the cultivation of it, they cannot grant to individuals, not of their own tribe, any portion of it, for the simple reason that they have not themselves any individual property in it: " and the Committee add, "that if the view which they have thus See p. 9. taken of the right of the Crown to the whole of the unoccupied soil of New Zealand, and of the nullity of all private purchases of land from the natives, be a correct one, and if this were also the view of the then Secretary of State at the time that the arrangement with the New Zealand Company was concluded, it follows, as a matter of course, that by that arrangement it must have been intended to give to the Company a claim, binding in good faith upon the estate of the Crown to the number of acres awarded to them by Mr. Pennington, and that this claim could not in any way be affected by the character of those supposed purchases from the natives, which it was the very object of the whole arrangement to set aside as altogether null and invalid." I am not sure that were the question one of mere theory, I should be prepared to subscribe unhesitatingly, and without reserve, to the fundamental assumption of the Committee; and I am sure that it would require considerable qualification, as applicable to the aborigines of New Zealand. There are many gradations of "uncivilized inhabitants," and practically, according to their state of civilization, must be the extent of rights which they can be allowed to claim, whenever the territory on which they reside is occupied by civilized communities And it cannot be denied that, among " uncivilized nations," the New Zealanders hold a very high place, certainly far above the inhabitants of the other Australian Colonies. The aborigines of New Holland generally are broken into feeble and perfectly savage migratory tribes, roaming over boundless extents of country, subsisting from day to day on the precarious produce of the chase, wholly ignorant of or averse to the cultivation of the soil, with no principles of civil government, or recognition of private property, and little, if any, knowledge of the simplest forms of religion, or even of the existence of a Supreme Being. It is impossible to admit, on the part of a population thus situated, any rights in the soil which should be permitted to interfere with the subjugation by Europeans of the vast wilderness over which they are scattered; and all that can be required by justice, sanctioned by policy, or recommended by humanity, is to endeavour, as civilization and cultivation extend, to embrace the aborigineswithin their pale, to diffuse religious knowledge among them, to induce them, if possible, to adopt more settled modes of providing for their subsistence, and to afford them the means Lord Stanley to See Parl. Papers of 1840, p. 37. See Parl. Papers of 1840, p. 37. See Parl. Papers of 1840, p. 38. See Parl. Papers of 1841, p. 9. of doing so, if so disposed, by an adequate reservation of lands within the limits of cultivation. But the position of the New Zealanders of the Northern Island, at the time of its occupation by Great Britain, was the reverse of all this. Comparatively speaking, their territory was not of vast extent, though unquestionably far more than sufficient, under any circumstances, for the actual popu'lation. Their main, though not their sole subsistence, was derived from agriculture, rude, indeed, but continuous: rights of property, as between tribe and tribe, and of individuals of each tribe inter se, were recognized and well understood; they had been for many years in intercourse with English traders and with Christian missionaries; many of them had adopted Christianity; many were acquainted with the English language and with letters, and at this moment a Maori Gazette is published in New Zealand, and widely circulated among them. I cannot think that it would be either just or practicable to apply the same rule, with regard to the occupation of land, to classes of aborigines so widely differing from each other. But whatever may be the right theory, it is indisputable that in practice a distinction has been drawn by the Acts of the British Government. Up to 1839 this country recognized the chiefs of New Zealand as the heads of an independent community; and when in that year the unauthorized settlement of the country had rendered necessary the interposition of some higher authority, the Marquis of Normanby, then Secretary of State, expressed his concurrence in the view taken by a Committee of the House of Commons in 1836, "that the increase of 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 the 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, was indisputable, and had solemnly been recognized by the British Government." He repeated, on the part of the Government, the acknowledgment of New Zealand, "as a sovereign and independent state, so far, at least, as it was possible to make that acknowledgment in favour of a people composed of numerous dispersed and petty tribes, who possessed few political relations to each other, and were incompetent to act, or even to deliberate in concert; but that the admission of their rights, thus qualified, was binding on the faith of the British Crown ;" and he also "disclaimed on the part of the Queen, for herself and for her subjects, every pretension to seize on the islands, or to govern them as a part of the dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, should be first obtained ;" and, acting on this view, the British Government directed their agent to accept from the chiefs the grant of sovereignty on conditions which were subsequently embodied in an instrument bearing date the 6th February 1840. By the second article of this instrument, which was officially promulgated and laid before Parliament, "Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession. But the chiefs of the united tribes, and the individual chiefs, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf." Personally, neither you nor I are interested in now considering whether this policy were wise or unwise. Before the present Government assumed any responsibility for the affairs of New Zealand, not only had these steps been taken and obtained the sanction of Parliament, but an officer had been appointed to administer the Government; laws had been passed by a local legislature for regulating titles to land; Commissioners had been sent out for the settlement of those titles, subject to enactments previously passed, and guided by instructions issued by my predecessor. Nor does it seem to me that such an inquiry is useful for any practical purpose, in reference to the future. What you and I have to do is to administer the affairs of the colony in reference to a state of things which we find, but did not create, and to feelings and expectations founded, not Lord Stanley to upon what might have been a right theory of colonization, but upon declarations Governor Fitzand concessions made in the name of the Sovereign of England. Roy, 13 August You will observe, indeed, that the Committee admit that "erroneous as they Page 9, Report. 1844. believe the policy hitherto pursued to have been, they are sensible of the great difficulty which may now be experienced in changing it; and bearing in mind the great distance of these islands, and the consequent impossibility of knowing what may be the state of affairs there, when any instructions that may be sent out shall reach the Governor, they are not prepared to recommend that he should be peremptorily ordered to assert the rights of the Crown as they believe them to exist; all they advise is, that he should have clearly explained to him what those rights are, and the principles on which they rest, and should be directed to adopt such measures as he may consider best calculated to meet the difficulties of the case, and to establish the title of the Crown to all unoccupied land as soon as this can be safely accomplished.' The Committee state elsewhere, "We have observed that the terms of the Page 5. treaty are ambiguous, and, in the sense in which they have been understood, have been highly inconvenient; in this we refer principally to the stipulations it contains with respect to the right of property in land: the information which has been laid before us shows that these stipulations, and the subsequent proceedings of the Governor founded upon them, have firmly established in the minds of the natives notions which they had then but very recently been taught to entertain of their having a proprietary title of great value to land not actually occupied." I cannot overlook the fact, that your measures must be framed in reference to the existence of such notions founded on interpretations of law and treaty hitherto admitted by the authorities at home and on the spot, and entertained by a high-spirited, warlike and well-armed race of people, confident in British justice, and whom it is most important, by a conciliatory course, to bring into more close connexion with, and more complete subjection to British authority. The extent to which native rights to land might be admitted was, as you may remember, matter of frequent and anxious discussion between us previous to your departure from England; and you are aware that, feeling the information necessary for the purpose not to be within my reach in this country, I constantly refused to the New Zealand Company to define authoritatively here so difficult and important a question. On the one hand, to restrict those rights to lands actually occupied for cultivation appeared to me wholly irreconcilable with the large words of the treaty of Waitangi : "lands and estates, forests, fisheries and other properties which they may collectively or individually possess," and of which," the full exclusive and undisturbed possession" is thereby "confirmed and guaranteed to them." The claim of the Crown to all " unoccupied " land, to the exclusion of the natives, appeared to me not less at variance with the directions of the Marquis of Normanby to Captain Hobson, " to obtain by fair and equal contract with the natives the cession to the Crown of such waste lands as may be progressively required for the occupation of settlers," and to apply the proceeds of the "re-sales of the first purchases" to the provision of funds necessary for future similar acquisitions. It must be remembered, that these directions had not only been promulgated, but acted upon in the colony at an early period after the sovereignty had been assumed. Lastly; it appeared to me inconsistent with the practice of these tribes, who, after cultivating, and of course exhausting, a given spot for a series of years, desert it for another within the limits of the recognized property of the tribe. On the other hand, I had no doubt that on your arrival in New Zealand, you would find that there were considerable tracts of country to which no tribe could establish a bona fide title; and still more extensive districts, to which, by personal communication with the chiefs, you would obtain a title on easy terms and by amicable arrangements. I had thus in some measure anticipated the wish of the Committee, but I cannot go with them in directing you" forthwith to establish the title of the Crown to all unoccupied land," except, indeed, under the extensive qualification of the following words of the Report, "as soon as this can be safely accomplished." On this fundamental point depends the whole of the arrangement with the New Zealand Company, to which I must now advert; and in reference to which, I do not think that the Report of the Committee renders it necessary |