V. The Resort to Force.

1. On Wednesday, the 25th of January 1860, a Meeting of the Executive Council, was held at Auckland. The following is an extract from the Minutes of the Meeting.

PRESENT.

• His Excellency the Governor.

• The Honorable the Officer commanding the Troops.

• The Honorable the Colonial Secretary.

• The Honorable the Attorney General.

• The Honorable the Colonial Treasurer.

• The Honorable Mr Tancred.

“The Governor submits to the Council the question of the completion of the purchase from the Native Chief Te Teira of a certain block of land, situated in the Province of Taranaki, at the mouth of the Waitara, on its South and left bank; as a preliminary to which, a survey of the land is necessary.

“The Council, after a full consideration of the circumstances of the case, advise:

“1st. That Mr Parris be instructed to have the said land surveyed in the ordinary manner, page 64 and to take care that the Native Chief, William King, be indirectly, but not officially, made aware of the day on which the survey will be commenced.

“2nd. Should William King or any other Native endeavour to prevent the survey, or in any way interfere with the prosecution of the work, in that case that the surveying party be protected during the whole performance of their work by an adequate Military force under the command of the Senior Military Officer; with which view power to call out the Taranaki Militiaand Volunteers, and to proclaim Martial Law, be transmitted to the Commanding Officer at New Plymouth.

“3rd. That when the survey shall have been completed, the Officer commanding at New Plymouth shall, until further instructed, keep possession, by force if necessary, of the said land, so as to prevent the occupation of, or any act of trespass upon, it, by any Natives.

“4th. That the Civil Authorities at New Plymouth be instructed to assist and co-operate, by every means in their power, with the Military Authorities in carrying out these instructions.

“And the Honorable Colonel Gold and the Honorable C. W. Richmond are to give the necessary directions accordingly.” (Pap. E, p. 11.)

The Governor acted on this advice of the Executive Council. A Proclamation of Martial Law was accordingly signed by the Governor, and counter-signed by the Colonial Secretary. It was in the following form;—

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WHEREAS Active Military Operations are about to be undertaken by the Queen's Forces against Natives in the Province of Taranaki, in arms against Her Majesty's Sovereign Authority, Now I, the Governor, do hereby PROCLAIM and DECLARE that MARTIAL LAW will be exercised throughout the said Province, from publication hereof within the Province of Taranaki until the relief of the said district from Martial Law by public Proclamation.

The Colonial Secretary wrote on the same day to Lieut. Col. Murray, commanding the detachment at New Plymouth, as follows:—

“I have the honor to forward herewith to you a Proclamation by His Excellency the Governor, proclaiming that Martial Law will be exercised throughout the Province of Taranaki from the date of the publication in that Province of the said Proclamation.

“I also transmit an Instrument appointing you to be the Governor's Deputy for the purpose of directing the Officer commanding the Militia in the District of Taranaki to draw out for actual service the Taranaki Militia, or such number thereof as you may judge necessary.

“It will be obvious to you that the Proclamation should only be published by you, and operative effect given to the other instrument, under such circumstances as in your opinion render it impossible to carry out the wishes of the Government page 66 without resorting to the powers conferred by these documents.”^* (Pap. E. No. 3. p. 12.)

2. In pursuance of instructions, an attempt was now made to survey the land. The proceeding is thus stated in the Taranaki News, Feb. 23rd, 1860:—

“On Monday, (20th Feb.) Mr Parris, with Mr Carrington, and Mr W. Hursthouse, of the Survey Department, and one of the armed police force, proceeded to Waitara. The party was met at various points of the road by parties of Natives, but no obstruction was offered to their progress.

“Arrived at the land to be surveyed, a large number of natives, of men and women, were found assembled, and a party, apparently appointed for the purpose, attempted to obstruct unpacking the instruments without success; but when the chain was thrown out, and taken by Messrs. Parris and Carrington, they effectually prevented their making any use of it. The obstruction was managed in the least objectionable way possible; there was no noisy language, and no more violence was used than was necessary to prevent the extension of the chain; they laid hold of the middle of the chain, and so disturbed the measuring; and the surveying party, finding it vain to persist further, forthwith returned to town.

“Subsequently a communication from the page 67 authorities was made, giving the Waitara Chief twenty-four hours to apologize for the obstruction offered by his people, and to notify his relinquishment of his opposition to the survey. To this an answer was received, to the purport that he, Wiremu Kingi, did not desire war; that he loved the white people very much, but that he would keep the land, and that they (that is, he and the Government) might be very good friends, if the survey were relinquished.”

On the 22nd day of February, 1860, the Proclamation of Martial Law, was published by Col. Murray. The Proclamation though published on this day, bore date 25th January, 1860, that is, the day on which it was signed by the Governor at Auckland. It is to be observed, that the Proclamation extended over the whole of the Province of Taranaki, not only over the territory of the Ngati awa tribe, but also over the whole territory of the tribes to the South of New Plymouth, that is to say, the Taranaki tribe, and the Ngati rua nui. The Proclamation was published both in the English and the Maori languages. The Governor then proceeded to Taranaki with additional troops, where he arrived on the 1st of March. He immediately despatched to William King a message requesting, that “to prevent misunderstanding, he would come into the town and learn the Governor's intentions,” and offering a safe conduct. (Pap. E. No. 3. p. 21.)

After a long conference with the Governor's messengers, William King said he would either come, page 68 or send his final decision to the Governor, the next day. Accordingly the next day he sent a letter, declining to come. (Pap. E. No. 3. p. 15.) The letter has not been printed amongst the papers laid before the Houses of Assembly.

3. Very much has been said lately about this refusal of William King to accept the Governor's safe conduct. It becomes necessary therefore to consider it more particularly.

It is to be remarked in the first place that the proposed conference with the Governor could not be a substitute for that which William King and all the other claimants were entitled to, namely, an inquiry before a competent and independent tribunal. If even at that time the Governor had offered to leave the question to some fair arbitration, there might have been some shew of reason; but no such thing was offered then or at any time. The Governor offered nothing. No re-opening of the subject was contemplated. He required submission, and he gave a final opportunity for making it. This appears from the language of the message itself, as well as from the other official documents. The Governor had written on the 27th February to His Grace the Duke of Newcastle: “I do not anticipate any real opposition when the Chief, William King, sees that I am determined not to permit him to defy Her Majesty's Government” (Pap. E. No. 3. p. 12.)

On the 25th of January, Mr Richmond wrote page 69 thus to Mr Parris: “You are to take care that the intended commencement of the survey is publicly known; and in particular, that Wiremu Kingi and his party are made fully aware of it, and of the firm determination of His Excellency to complete the purchase.”

A year before the time at which we are now speaking, there had been no unwillingness on the part of William King and his people to confer with the Governor. On the 29th March, 1859, the Governor reported to the Secretary of State, his recent visit to the Province of Taranaki. (Pap. E. No. 3. p. 3.) In that despatch, he says “I had also an interview with the Chief, William King, and a large part of his tribe, who came to see me.” The Governor took advantage of this opportunity to make the declaration cited above, in page 16.

If the lapse of twelve months had diminished the willingness of William King to visit the Governor, may we not discern some reason for it? The course taken by the Government in that interval, could hardly appear to him fair or reasonable. His claim on behalf of his tribe had been simply set aside, never investigated. The opposition of his tribesmen was disregarded; part of the money had been paid; the survey of the land had been begun, and was to be carried out by force. He was asked to go and “learn the Governor's intentions.” Were not the Governor's intentions plain enough? By the proclamation of Martial Law, a week before, notice had been given page 70 that “Active Military operations were about to be undertaken by the Queen's Forces,” and the Governor had now brought troops with him.

Even if he accepted it, how was he to go? The safe conduct itself required him to appear “unarmed.” (Pap. E. No. 3a. p. 4.) Yet, was he safe without arms? On a like occasion, formerly, William King had dreaded Te Rauparaha's fate, (Dr. Thomson, vol. 2. p. 226.) whose capture has become a proverb among the Natives. But a far greater risk was apparent. Ihaia, his deadly enemy, was now amongst the allies of the Government. It was Ihaia that laid the plot, which issued in the murder of Katatore, William King's ally. Those persons who find in this conduct of William King a justification for resorting to force, appear to overlook the fact that the resort to force had been already determined on, and that that determination had been publicly notified.

I do not desire to travel further into the questions that have been raised about this matter. William King has been blamed for speaking roughly or insolently. Again, he has been blamed for not taking away from the Governor's feet the mat which Teira laid there. Had he taken it away, he would probably have been blamed still more. There has been a noting of tone and demeanour, complaints of abruptness and incivility, to a length, which appears to me unworthy and un-english. It is needless to attempt a nice measurement of such things. If our case be good page 71 in itself, we do not need the aid of such considerations: if otherwise, the want of right on our part cannot be supplied by foolishness or lack of temper on the other side.

Moreover, William King was not the only person interested. There were many adverse claimants who had nothing to do with the Governor's message: some were not even on the ground. Was their land to be taken because William King was uncivil?

4. On the 5th March the troops were moved down to the Waitara, and occupied a position on the disputed block.

The Officer commanding the troops was instructed to confine the operations of the force at Waitara within the bounds of the block. It is stated in the Official document (Pap. E. No. 3. p. 23) that “on the 13th and 14th March, the sellers pointed out the boundaries of the block, which were duly surveyed and the lines cut; the sellers aiding in the work.” It now appears that only the southern boundary of the block was then cut, and that the inland or eastern limit of the block is still undefined. The Government thus undertook to obtain possession of the disputed land by force; to awe the opponents into submission by a display of military force. We, the English subjects of the Queen, dislike nothing so much as being intimidated into the relinquishment of a right. Why should a Maori dislike it less? On the contrary, the pride and passion of the race, the patriotism of each clan, has page 72 always centred on this point. To fight for their land, to resist encroachment even to the death, this has been their point of honour. A Chief who should yield to intimidation in such a case would be degraded in the eyes of his people.

On the night of the 15th March, a pa was built by some of William King's people, within the bounds of the block. The next day they pulled up the survey stakes and burnt them. On the 17th March, the conflict began.

5. Let us now review the relative position of the Government and the Natives. There had been a quiet and peaceable prohibition by them of an entrance on their land. So far they were right, but this involves no censure of the attempt made by the Government to survey the land. A sort of usage had existed from the beginning of our land purchasing, that the outside boundaries should be laid down before the money was paid. Latterly it had become customary to pay the first instalment before the survey. The survey then was not taken as an assertion that all parties had consented, but rather that all known claimants had consented. The survey itself would probably bring out those claimants who were as yet unknown. If they came forward, an endeavour was made to satisfy them. If the endeavour failed, the transaction stood over. The entrance on the land with this view, to lay out the outside boundary, was not to be blamed. But when the preliminary survey, page 73 or attempt at a survey, had served its proper purpose, and brought out a large number of adverse claimants, it then became the duty of the Government to take one of two courses: either to stay its hand for a time, after the manner of former Governments, until the adverse claimants agreed to the sale; or, if it was thought wise and necessary to proceed, notwithstanding the adverse claimants, in that case to disprove their claims and establish its own right before some competent tribunal. The Government was bound to do in this case, that which, in the case of one of ourselves being the adverse claimant, it must have done. The course of the Colonial Government was to be guided by one consideration only, namely, what was lawful and just. The one question to be asked was this:—was it lawful for the Government, under the circumstances, to take possession of the land by armed force? There could be only one answer. It was not lawful.

6. It is unnecessary to point out the practical difficulties in the way of the Native elaimants, supposing they desired to protect themselves by legal means against this invasion of their land, or to consider the circumstances which disable men without knowledge of our language and our customs, and with little money, from applying to a remote Court. Nor is it necessary to inquire whether they could have proceeded effectually against officers who would have justified their acts under the authority of the Governor; the Governor himself not being liable to an action in the page 74 Colony for any act done in his public capacity: nor whether any proceedings at all could practically be carried on under Martial Law. But it is necessary to notice the view which has been lately taken of the jurisdiction of the Supreme Court of this Colony.

In December, 1859, the opinion of the Law officers of the Crown in England was obtained upon the question, whether the Aboriginal Natives of New Zealand are entitled to the Electoral Franchise under the Constitution Act. In their opinion the following passage occurs: “Could he (one Native) bring an action of Ejectment or Trespass in the Queen's Court in New Zealand? Does the Queen's Court ever exercise any jurisdiction over real property in a Native District? We presume, these questions must be answered in the negative.” It appears then that the Law officers hold that the Colonial Courts have no cognizance of questions of Native title or occupancy in any case.

If this view be correct, it follows that William King and his people had no legal and peaceable means of redress, through any tribunal capable of entertaining their suit. Nor was any mode of settling the question by arbitration ever proposed by the Government.

7. It is not meant by this that the Government had proceeded regularly and lawfully up to this point, and that now it became the duty of the opponents to appeal to the Law to protect them; and that therefore page 75 the first wrong was done on the part of the Natives in not seeking redress by Law. The first wrong was not on the part of the Natives; it was on the part of the Colonial Government. What is maintained is this: that it was not their business to appeal to the Law in the first instance, but the business of the Government. The party, which sought to disturb the existing order of things, was the party which needed to justify itself by some legal warrant for so doing. It was bound to establish its right first in some legal way, due opportunity being afforded to the opponents of defending their counter claims. The Government had already put itself in the wrong by taking forcible possession without lawful authority.

This is the point which was forgotten throughout, that the Governor, in his capacity of land buyer, is as much bound by law as other land buyers. The rights of William King and his people, in respect of that piece of land, were not altered by the fact of the Governor being the purchaser. They were the same as if Teira had sold to any private person. The Governor has no more right to seize land upon the decision of his own agent than any other land buyer would have. He has no right to take possession, except where a private buyer would have such right: no more right in the case where he is buying land from a Maori, than where he is buying from a Pakeha. The Government, however, did not stay to obtain legal sanction for its act. It proceeded to take page 76 possession by an armed force, and, without any legal authority, to oust subjects of the Crown from their lands. As we have said, the Government had not protected the Native claimants as it was bound to do. It had not submitted their case to a proper inquiry. In failing to protect them, the Government had failed to protect itself. As there was no legal decision upon the Native rights, so there was no legal warrant for the Government to take the land.

8. It is not meant to be suggested here that William King and the other claimants knew or thought much of Constitutional rights or English Law. They had sufficient natural sense of fairness to know that they had not been treated fairly. The tribal claim, put forward by their Chief, had been simply disallowed by the Government, never investigated. There were claimants, even on the ground, who did not consent; yet possession of the land was taken without their consent. So far as there had been any investigation at all, it had been left to Mr Parris; who, under the circumstances, could not be regarded by them as a fit person for that office. As was to be expected, William King and his people did not appeal to the Queen for protection against those who wielded her power. They met force by force.

9. What was the character and degree of their criminality in so doing? Their resistance was highly criminal, for blood was unlawfully shed, and that as page 77 the natural and foreseen consequence of that resistance. Does their offence amount, as is often assumed, to the very highest of all criminal offences—the offence of treason—to open rebellion against the sovereign authority of the Queen of England? To constitute such an offence, it is essential that those who resort to unlawful force shall propose to themselves some unlawful object of a general nature.

“All risings in order to effect innovations of a public and general concern by an armed force are, in construction of law, high treason within the clause [of the Statute of Treasons] of levying war. Insurrections likewise for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the king, or for the reformation of real or imaginary evils of a public nature, and in which the insurgents have no special interest—risings to effect these ends by force and numbers are by construction of law within the clause of levying war, for they are levelled at the King's Crown and Royal dignity.” So says Mr Justice Foster.

“Tumults,” said Lord Ellenborough in Watson's Case “the object of which is the peculiar private and individual interest of the parties engaged in them, are distinguished, by the Statute of Treasons itself, from attacks upon the Regal authority of the Realm.”

In Brandreth's case, Lord Tenterden thus stated the law:—

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“Insurrections and risings for the purpose of effecting by force and numbers, however ill-arranged provided or organised, any innovation of a public nature or redress of supposed public grievances, in which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war.”

In Frost's case, the facts were these. Frost had combined with the other prisoners to lead from the hills, at the dead of night, to the town of Newport, some thousands of men; of whom many were armed with deadly weapons. These men arrived at the town by daylight, and after flring upon the civil authorities and upon the Queen's troops, were defeated and dispersed. Chief Justice Tindal, in summing up the evidence, refrained from expressing any opinion of his own, whether or not the insurrection aimed at objects of a general or a particular nature. He introduced the following passage from Sir Matthew Hale's Pleas of the Crown; “if men levy war to break prisons to deliver one or more particular persons out of prison, wherein they are lawfully imprisoned (unless such as are imprisoned for treason,) this, upon advice of the Judges upon a special verdict found at the Old Bailey, was ruled not to be high treason, but only a great riot but if it were to break prisons or deliver persons generally out of prison, this is treason.” In conclusion, he stated the exact question the Jury had to determine, namely, “whether it was Frost's object, by the terror which bodies of armed men would inspine, to seize page 79 and keep possession of the town of Newport, making this a beginning of an extensive rebellion;—which would be high treason: or whether he had no more in view than to effect, by the display of physical force, the amelioration of the condition of Vincent and his companions in Monmouth Gaol, if not their liberation;— which would be a dangerous misdemeanour only. The Jury were to look at the evidence with all possible candour and fairness, and see if the Crown had conclusively disproved this limited object and design.”

It is plain that, where the persons who resort to armed force have for their object to assert and maintain their own rights in a particular piece of land, the offence, whatever it be, does not amount to Treason or Rebellion, according to the Law of England. These men being subjects of the Crown of England, the nature of their crimes and the penal consequences thereof must be measured by the Law of England. We are not at liberty to deal with these our own fellow-subjects, as if we were waging war against aliens.

10. What then, on the whole, is the position of the Colonial Government at this time as to the disputed block? The Government has taken possession of it without proper inquiry and without lawful authority. It has been assumed, that no tribal right exists as to the land at the Waitara. If such right does exist, then we have no right to be on the land at all, not even on Teira's land. As to individual claims, the page 80 case is even worse. There are absentee claimants, whose claims are not to be arbitrarily denied. For all we yet know, they may be sound and just. For all we know as yet, the pa, built within the block on the night of the 15th March, may have stood on ground belonging to the very persons who built it. Nor can we get rid of the difficulty in the manner proposed by Mr Richmond. As to the claims of absentees, “they are entitled, if real, to compensation, and no more.” (Speech in the House of Representatives, August 7th, 1860.) The doctrine thus laid down amounts to this, that a man's land may be taken, whether he aǵree or not, and without any law or lawful authority for taking it: that he may be compelled to surrender his land by a decree of the Native Department. So easily is it forgotten that these men are subjects of the Queen; and that, even within these few weeks, we have assured them again that they are entitled to the protection of the same laws with ourselves. Fortunately the Governor of the Colony has not forgotten what is due to subjects of the Crown of England. On the payment of the first instalment to Teira, 4th December, 1859, a declaration was read on behalf of the Governor, “that if any man could prove his claim to any piece of land within the boundary described, such claim would be respected, and the claimant might hold or sell, as he thought fit.” But even this declaration does not wholly remove the difficulty. Where is a man to “prove his claim”? For there is no com- page 81 petent or lawful Court. Are the Natives to keep or lose their lands according to the decision of a subordinate and dependent agent of the Executive Government? If this be so, what is the value of the Treaty of Waitangi? If this be so, how can they be called subjects of the Crown of England? Is the Government to be at liberty to take land indiscriminately, and then to require the dissentients to prove their claims? The Government should rather have ascertained from the sellers, what they had to sell. What can be less fitting than that the Government should proceed to take possession, without even knowing what it is entitled to possess?

11. The result is, that it is still quite uncertain whether the Government be in the right, as to the substance of its claim: whilst it is quite certain that the Government is in the wrong, as to the mode in which it has asserted its claim.