– 440 –

Chapter viii. The War of 1846.

There could be but one end of such strife as that which was waged in 1846. Yet Rangihaeata made a stand on a wooded mountain spur, and there was loss of English life. Te Rangitake wrote to Grey that he had captured three women and a child, and would deal with the prisoners as Grey might direct. He would not entrust them to English care. He did not intend to follow Rangihaeata further.¹ Grey replied from Auckland that they must be well treated, furnished with food for their journey, and told to warn their husbands not to be so foolish as to get into difficulties with the English. It is needless to narrate the warfare in detail. Bitterly lamenting that he had been hunted by men of the Ngatitoa tribe of which Rauparaha was chief, and by the Ngatiawa under Te Rangitake and others, Rangihaeata withdrew whither it was thought useless to follow. Chased at the Pouaha mountain by 1000 men, he successfully drew off his band of 200. Captain Russell of the 58th, who afterwards superintended the formation of a military road at the spot, recorded his admiration of Rangihaeata's genius for war in conducting his band along the narrow mountain crest, and sullenly skirmishing as he withdrew to his innermost fastnesses.

Proclamations of martial law were amongst the weapons wielded by Grey, and they were not infrequent. (In October, 1847, he passed an Indemnity Ordinance for all acts done

– 441 –

under them.) They did not deter Rangihaeata from a daring exploit. He was thought to be concealed amongst the forests. On the 18th April, 1847, a settler at Kapiti, one Brown, waked to see the tall form of the old chief standing over him with a tomahawk. Thirty or forty armed Maoris surrounded the house. Brown deposed that Rangihaeata said he had come to rob and to slay. “I told him he might as well kill me in bed at once. He bade me get up and dress myself. He said he had heard I had a great quantity of powder, and had come to take it away.… On going away he shook hands with me. I upbraided him and his party for plundering me. They replied that they were poor and wanted the things; that they had no animosity towards me, but wanted powder.”Rangihaeata had arrived, and he departed, in a war-canoe. The authorities thought that the professedly friendly Maoris had connived with him. The fifty pounds of gunpowder he had obtained constituted a terrible danger. The ammunition of the Maoris was often broken nails, and pebbles, and yet by close approach they made it effective, although they were not good marksmen.

When Grey, going to the scene of action in May, arrived at Wellington, he found a messenger from Rangihaeata with a parcel containing bank-notes, sovereigns, and other valuables. Rangihaeata, finding that some of his men had taken these things, returned them to Grey lest he should be esteemed a common thief, “whereas his only object was to obtain from the owner of the house, gunpowder which he had left in his care, and which had never been returned to him.”

A few days before Rangihaeata appeared at Kapiti, a new cause of war arose at Wanganui, where the execution of Wareaitu must have left a rankling feeling amongst many Maoris. A midshipman of H.M.S. ‘Calliope’ promised something to a chief for service rendered. There was a dispute about the price on the 16th April. The midshipman, pretending to be angry, threatened the chief with a pistol. Accidentally, it was said, the pistol was discharged, and the bullet wounded the Maori's head. The military, without holding an inquiry to satisfy the natives, sheltered the midshipman in a stockade, and thus confirmed the suspicion of the Maoris that the shot was intentional. The

– 442 –

head of a chief being highly sacred, serious consequences might be apprehended; but the barbarous murders which ensued were unexpected. Six lads determined to take revenge for their insulted chief.¹ Not one of them was twenty years old; one was only twelve. On the 18th April, the day on which Rangihaeata surprised Brown at Kapiti, they savagely murdered Mrs. Gilfillan and four children. When they went to the house Mr. Gilfillan strove to prevent their entrance. He was wounded with a tomahawk, but escaped into the house by a back-door which he fastened. The youthful murderers began to force an entrance. Mrs. Gilfillan heroically urged her husband to go. Only his life, she said, could be thirsted for. Escaping by a small window overshadowed by an eave, he crawled away. When the Maoris broke into the house they butchered Mrs. Gilfillan, two boys and a girl, and wounded a fourth child. The brave Mrs. Gilfillan at first hid her children, and afterwards told a boy eight years old to jump out of the window. He did

– 443 –

so and escaped to a swamp. She put a girl six years old out of the window, and the little creature ran after her brother. When the child was questioned at the inquest she told how, when she was “running after Johnny,”the Maoris were sitting together, “and one of them knocked her down with a stick, and hurt her very much.”Though the outrage might have sprung from the savage demand of blood for blood—the utu of the Maori—knowing no satisfaction by weregild, all the Maoris did not approve it. The chiefs of Putiki at once tendered their services. John Williams (Hipango), a Christian chief, with five others, started up the river in a canoe, learned on their way from other Maoris who the murderers were, captured five of them on the following day, and handed them over to the soldiers, having paddled sixty miles (without stopping for refreshment) in twenty-four hours. A coroner's inquest found the culprits guilty of wilful murder. When Governor Grey heard of the murders he wrote to Captain Laye, directing him “unless some extraordinary necessity had arisen”to retain the prisoners until they could be handed over to the civil authorities. But they could not be sent 120 miles overland to Wellington without passing through the heart of Rangihaeata's country, which would have required a large escort. Though they might have been sent by sea Captain Laye, without waiting for instructions, considered the necessity extraordinary, assembled a court-martial on the 23rd April, and tried the prisoners on four charges: killing, wounding, stealing, and being in possession of stolen goods. The prisoners all pleaded guilty, but evidence was taken. All were found guilty, and all but Narikuri were sentenced to death. His “extreme youth”caused his sentence to be transportation for life. The four others were hanged on the 26th April. They were related to some of the leading Wanganui chiefs, whom their execution irritated. On the 19th May an attack was made on Wanganui. Captain Laye, with 170 soldiers, repulsed it, with loss to the Maoris of their commander and a few others. Governor Grey himself reached Wanganui with more troops immediately after the repulse of the Maoris by Captain Laye. He was accompanied by Waka Nene and by Te Whero Whero, who lamented that he had no warriors with him to assist the English.

– 444 –

Grey wrote: “Nothing was left for him to do, he said, to show his regard for the Government but to go alone and die if necessary in assisting it; and with this view, and without a single follower, the old chief accompanied to Wanganui the natives of the Ngatiawa tribe, who had hitherto throughout his life been his most inveterate foes. Not only did these natives accompany me to Wanganui for the purpose of co-operating with Her Majesty's forces, but I am sure that every officer who was there will bear me out in saying that we could not have dispensed with their services, and that nothing could have surpassed their activity and gallantry.”

The fighting near Wanganui was desultory, though on one occasion as many as 400 were engaged on each side. The Maoris endeavoured to entice the English to pursue them towards ambuscades, but the allied natives foiled their tactics. Towards the end of 1847 Grey was able to say that he regarded the disturbances as terminated. The active aid afforded by Waka Nene and Te Whero Whero entitled them to some consideration in pleading for Rauparaha. They urged that not only the reputation of the Government but their own would suffer if Rauparaha should be kept close prisoner. They offered any guarantee required for his peaceful conduct. Grey accepted their unconditional pledge, and allowed Rauparaha and Hohepa to live in the north till Grey might think their return to Porirua advisable. The prisoners sailed to Auckland with Grey himself, and resided peacefully with Te Whero Whero. A large number of chiefs visited Rauparaha in his exile. Eloquent speeches were made. He recounted his own deeds of old, and the stealthy surprise by which he had been entrapped. But his heart was dark, and he quickly withdrew from the assembly. In 1848 he returned home, in an English man-of-war, accompanied by the Governor, Te Whero Whero, Colonel G. C. Mundy, and others. Preparations were made to receive him at Otaki. He went on deck in an officer's uniform, and saw the Governor and others in plain dress. His eye flashed meaningly. He withdrew and promptly re-appeared in a mat and blanket. He asked for a salute on landing, but Grey would not accord it. Te Whero Whero, dressed in best attire, landed with the party. Rauparaha's son had gone on board to meet his father in

– 445 –

European evening costume. A companion of Grey's related that, after landing, Rauparaha strode from the rest of the party (who proceeded to the village), sat down on the ocean shore, “covered his old grey head with his mat, and remained for hours immovable. Not a soul of his family or tribe came near him: they stood aloof in a crowd several hundred paces distant; for Maori etiquette forbade that the great chieftain should be approached whilst exhibiting such signs of emotion.”Maori custom required that the Governor's clemency should not be unacknowledged: and the old man's son gave a great feast. Though described by Colonel Mundy as showing the remains of great personal strength, Rauparaha was bowed by age and did not long survive his return. In 1849 he died, eighty years old, and was buried at a spot selected by his old comrade Rangihaeata, near the Otaki church. Fifteen hundred mourners followed his remains to the grave. Rangihaeata had survived “the eye of faith”about seven years, when he too was gathered to his fathers. After the embers of his strife had died out he met the Governor at Otaki, and said he was not tired of war, but the times were peaceful, and men like women used the weapon of the tongue. “I want nothing of the white men. I wear nothing of their work,”he proudly said, arrayed with feathers in his hair, and with a dog-skin mantle thrown over him. When Grey reminded him that a peacock's feather in his hair was not native, he cast it reproachfully on the ground, saying, “True; that is Pakeha.”He did not acknowledge that Europeans had conquered him. Mr. Forsaith, in 1860, in the House of Representatives at Auckland, reminded members that Rangihaeata said to Grey, “I am finished. But do not suppose, O Governor, that you conquered me. No. It was these, my own relatives and friends, Rangitake and others. It was by them I was overcome.”As years rolled on, he too, like Rauparaha, attended Divine worship, and dissuaded from war. He accepted European arts for his people, but adhered to Maori customs in his own person. In 1852 Mr. Donald McLean reported that Rangihaeata was making roads, and transferring to the Crown the chieftainship over them. In 1849 Rangihaeata pointed out to McLean the impregnable position of his pah at Porotawao to which he had retreated in

– 446 –

1846. The morasses and lagoons would have furnished eels, the forests on the hills their feathered game. In 1849 the mention of roads excited his wrath. He thought them means of conquest. In 1852 three lines of road were in course of construction at Porotawao; one of them at Rangihaeata's sole expense. In 1852 he wrote to Grey: “O Governor! my friend,—I send you greeting. I cannot express how much I respect or regard you. This then is my address to you; and it is in reference to the considerate manner in which you treated me in times gone by. I need scarcely call to your remembrance the circumstances attending my flight and pursuit; how it was that I took refuge in the fastnesses and hollows of the country, as a crab lies concealed in the depths and hollows of the rocks. You it was who sought and found me out, and through your kindness it is that I am at this present time enjoying your confidence and surrounded with peace and quietness. This then is the expression of my esteem for you, which I take occasion to make now that you are on the point of leaving for your native land.… Te Rangihaeata, Principal Surviving Chief of the Ngatitoa tribe.”

Though Colonel Mundy as the guest and companion of Governor Grey saw many chiefs, nothing could induce him to visit Rangihaeata, whom he styled in his book “The Tiger of the Wairau”: but who was described to him as “singularly manly, well-formed, and athletic; in height about six feet two, with curly black hair, aquiline features, a small piercing eye, and a haughty bearing.”Other Englishmen have said that they never looked upon a finer form than that of Rangihaeata. The Governor won a measure of personal respect from Heke. Unlike old Kawiti, Heke held aloof from the whites for some time after his proclaimed pardon. His friendly interview with the commander of a man-of-war who made a tour in the interior at the Governor's request was duly reported. He affected to expect the Governor to visit him at his agricultural retreat. In July, 1849, he wrote a letter to the Queen of which the Governor advised the acceptance as a customary courtesy, but not as a tribute to the assumed consequence of the writer, who dwelt on the necessity for adhering to the mutual relations established between King George and Hongi, and deprecated the pouring out of innocent Maori blood by the quarrelsome foreigners. In 1850

– 447 –

the turbulent patriot was smitten by consumption, and Grey sent him presents which he gratefully acknowledged; a lingering remembrance of past suspicions haunted him even in affliction, for, taking a sovereign from a number, he turned it round and round and said significantly, “As it comes from Governor Grey, I am looking to see if it has a hook anywhere about it.”After some months' illness he died on the 6th of August, aged forty-two years. There were various reports of the cause of his death, but the Governor “apprehended the truth to be that he died from consumption.”In May he wrote to Grey, “My disease is great, but do not grieve about that. This is not the everlasting abode of the body.”He died a Christian, kindly attended by his wife, the daughter of Hongi. His relatives paid the customary respect to his remains, solemnly exposed his bones before the tribe on two occasions, and finally deposited them in a mountain cavern at Kaikohe. Old Pomārĕ, the object of so much solicitude at the time of Heke's war, and then seized under a flag of truce, died at the same time as Heke, seventy-five years old: and the warriors of the ancient race waned one by one before the paramount Pakeha.

A significant emblem was shown in February, 1853, when old Kawiti was publicly baptized by Henry Williams in the Paparaka church crowded by his countrymen. He had previously informed them that he had decided to renounce his Maori ritenga (mos, or usages) and enter the Christian Church. For a year he regularly received religious instruction from Williams, who, when he baptized him, trusted that the “honourable old warrior had in sincerity and truth become a soldier of Christ.” Kawiti's conversion smoothed the way to the re-erection by his son of the flag-staff at Kororarika, as mentioned elsewhere.

Not in the field only but in the senate the Governor had weapons. To provide against such deeds as Rangihaeata's seizure of gunpowder at Kapiti, he passed a law to prohibit the keeping of gunpowder except in stipulated quantity. He strove to prevent the sale of ardent spirits to the Maoris. He gave gifts and procured pensions for his friends. On Waka Nene an annuity of £100 a year was settled by law for the valuable services rendered by him, “and the zeal, courage, and loyalty”he had displayed. While labouring thus the Governor

– 448 –

was nevertheless paving the way for future trouble by a despatch hastily written and not withdrawn when its impropriety was proved. He would be aut Cæsar aut nullus. He desired to show that he was not dependent upon the good offices of the missionaries.

In June, 1846, before he sailed upon the expedition in which he seized Rauparaha, and, it may be presumed, before he had become acquainted with-the intricacies of the question, he wrote to the new Secretary of State, Mr. Gladstone, that which was long known in New Zealand as the “Blood and Treasure”despatch. It was marked “confidential,”and was written on the same day that Lord John Russell with the aid of Mr. Disraeli procured a majority against Sir Robert Peel on the Protection of Life Bill (Ireland). It was received by Mr. Gladstone's successor, Earl Grey. It deprecated the large tracts of land which Fitzroy had granted under “what is termed the penny an acre proclamation.”Claims under it were “not based on substantial justice to the aborigines or to the large majority of British settlers.… Her Majesty's Government may also rest satisfied that these individuals cannot be put into possession of these tracts of land without a large expenditure of British blood and money.”… “It must be decided whether British naval and military forces should be employed in putting these individuals into possession of the land they claim… and how are Her Majesty's forces to be reconciled to such a service. It is one attended with the greatest danger, hardship, and privations—it offers few prospects of honour or reward. From the desultory mode of warfare adopted by the natives no decisive victory can be gained… the individuals interested in these land claims form a very powerful party. They include among them those connected with the public press, several members of the Church Missionary Society and the numerous families of those gentlemen, various gentlemen holding important offices in the public service.…”As it was not true that any missionary asked to be “put in possession,”or that any Maori disputed the claims of the missionaries, and as the resolute Henry Williams boldly asserted the fact, and denied for the whole body that any missionary would make a claim rendering possible “such an awful circumstance as the shedding of one drop of human blood”—the unwisdom of the charges made by

– 449 –

the Governor was made manifest as soon as they were known. Earl Grey received them in January, 1847, and forthwith communicated them to the Church Missionary Society. A special committee of the Society met in February. A clear statement of the case was prepared for submission to Parliament. Under Fitzroy's proclamation waiving the Crown's right of pre-emption of a penny an acre, there were no claims of missionaries. In the list of persons claiming arrears exceeding the maximum of 2560 acres fixed by the Land Sales Act, there were six missionaries and two persons who had been missionaries. The lands had been purchased from Maoris before the Queen assumed sovereignty, and at a time when the natives were solicitous to persuade their missionary friends to abide with them. The purchases were countenanced by the land regulations of New South Wales, where grants of land were made by the Government to children of chaplains. The parent society had contented itself with warning its missionaries against permitting the purchase of land to subject them to the reproach of being imbued with a secular spirit. The awful consequence of spending British blood and treasure was now for the first time suggested by the Governor. The Society was sure that “not one missionary or catechist would endure the idea of sacrificing British blood in order to obtain possession of land.”Their past lives might “well shield them from such an imputation.”Nevertheless, that the Society might be above reproach, the committee resolved “that no missionary or catechist can be allowed to continue his connection with the Society, who shall retain for his own use and benefit a greater amount of land than shall be determined upon as suitable by the Governor of New Zealand and the Bishop of New Zealand, jointly, or by such other referee or referees as they may be pleased to appoint for the determination of this question, the adoption of which measure is not to be regarded as casting any reproach or suspicion upon the past integrity of the missionaries.”The committee concluded with further encomium on the missionaries, with thanks to Earl Grey for his courtesy, and an earnest request that their statement might be submitted to Parliament if papers on the question should be laid before it. Earl Grey sent copies of the papers to ex-Governor Fitzroy, who, in March, 1847, stated

– 450 –

strongly his conviction that no missionaries' claims could “give rise to native wars,”the natives having “remarkably strong feelings of attachment to the older missionaries and their children.”Earl Grey¹ had written to the Governor: “I deeply regret, with you, that any members of the Church Missionary Society should have engaged in this traffic (under Fitzroy's proclamations and notice).”The gallant sailor told the Earl:² “I am able to assure your Lordship in the most decided manner that no member of the Church Missionary Society, no missionary or catechist in New Zealand, has done so, directly or indirectly.”Charges made without foundation were insupportable. It would have been prudent if not generous to retract them frankly when they were found incapable of proof. Such a course was not chosen, and the result will be told hereafter. It will be sufficient to say here that the Governor linked the influence of Bishop Selwyn indirectly with his own in the course of the proceedings. The thorns which he was to find in his path with regard to the missionary claims were strewn by himself. There were others scattered by Earl Grey. It was known to all men that however rash Heke might have been, he would not have aroused even a section of his countrymen unless he had been able to persuade them that their land was in danger—that the substance of it had passed away, and they were but tenants at will, whom the Pakeha eyed with disgust as he longed for the day when the land would be parcelled out to those whose symbol of authority was the flag at Kororarika. Sir George Gipps had warned the English Government that Earl Grey's principles made known by the report of the House of Commons in 1844 must do mischief. All who knew the Maoris felt the danger of allowing it to be believed that England would not honourably fulfil the treaty of Waitangi.

If Waka Nene and his friends in the north, and the men of Wanganui with the Ngatitoa, Ngatiawa, and Ngatiraukawa in the south and west, were to lose faith in the word of the Queen, all the tribes might combine, and the inversion of the proverb that leaders may govern by dividing might prove that governors may be destroyed by injustice which produces union.

– 451 –

The hurricane which in the first century almost swept the Romans from Britain might recur with greater terrors in New Zealand, where no Paulinus was at hand with unconquerable legions. No military man supposed that a settler could remain in the country if all Maoris willed it otherwise; and many doubted whether even Wellington and Auckland could be held. In such a state of things, while the Governor was winning the goodwill of the Maori chiefs by studying their language and traditions, and was rewarding their devotion, Earl Grey marked his own accession to office by Instructions as elaborately foolish as they were unjust.¹ He who, as Lord Howick, had been so strenuous a repudiator of good faith with the Maoris, was no sooner installed in office with Lord John Russell than he determined to show the world how he could legislate for the antipodes. The honourable despatch in which Lord Stanley instructed the Governor with relation to the report of the Select Committee of the House of Commons in 1844, was wormwood to its chairman, Lord Howick, who stepped as Earl Grey into the seat from which Lord Stanley had issued the instructions which Earl Grey resolved to undermine. He lost no time in broaching his theories. He procured the passing of a Bill containing his “scheme of municipal, legislative, and executive polity.”The provisions for provincial assemblies and a General Assembly need not be set forth here. A special chapter (XIV.) provided that in particular or aboriginal districts the Courts and magistrates were to give effect to the Maori customs and usages so far as they were “not repugnant to the general principles of humanity.”After the ignorance displayed by the Wellington magistrates at Wairau, it is difficult to find words to denounce Earl Grey's foolishness in assigning to them the task of deciding what were general principles of humanity, and of carrying into effect Maori customs which they neither respected nor understood. At Governor Grey's request Chapter XIV. was repealed by Royal Instructions, 14th July, 1848. It is noticeable that

– 452 –

the principles of the Bill elicited no debate in either House, and that on the first reading in the Commons Mr. Hawes, on the part of the Government, said that its object was to establish a municipal and representative Government, “thus carrying into effect the views of both the late and the present Government.”Neither House therefore had warning that Earl Grey intended to deceive Parliament and treacherously break faith with the Maoris by repudiating the spirit of the treaty of Waitangi. When he moved the second reading of the Australian Land Sales Act, in August, 1846, he abstained from drawing attention to the fact that the exclusion of New Zealand would leave the land in that colony at his mercy. Writing on the 23rd December, 1846, to the Governor, Earl Grey said that his project had been objected to, as too complicated, but “the inevitable conditions of the practical problem to be solved were more than usually numerous and complex.”The Parliament had drawn the broad outlines; the Queen in Council could complete them, and delegate power to the Governor to fill up details, and obviate errors into which the Imperial Government might have fallen. No more self-satisfied document was ever penned by a Minister. Four instruments were sent with the new Act, viz.: a new charter for the Government; a series of new Royal Instructions, exhibiting all the details of the new scheme; a commission appointing Grey Governor-in-Chief, as well as Governor in each province, and a commission appointing Mr. Eyre Lieutenant-Governor of each of the two provinces immediately to be established. Having solved these “practical problems,”Earl Grey proceeded to the malign work of undermining the treaty of Waitangi.

The new statute (9 and 10 Vict. cap. 104) for regulating sales of land in the Australian colonies repealed all previous provisions made with regard to New Zealand. “Thus,”Earl Grey said, “there is a complete absence of any statutory provisions on this subject. The Queen, as entitled in right of her Crown to any waste lands in the colony, is free to make whatever rules Her Majesty may see fit on the subject…”“The accompanying charter authorizes the Governor to alienate such lands. The accompanying Instructions direct how such power is to be used. I proceed to explain the motives by which these Instruc-

– 453 –

tions have been dictated.”From the doctrine “that aboriginal inhabitants of any country are the proprietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title”Earl Grey “entirely dissented,”“whether it be maintained on the grounds of religion, morality, or of expediency.”He quoted an abstract opinion of Dr. Arnold's (not written with reference to any country where a treaty like that of Waitangi had been made) as just reasoning, and declared that it could hardly be denied that it was “fatal to the right which had been claimed for the aboriginal inhabitants of those islands to the exclusive possession of the vast extent of fertile but unoccupied lands which they contain.”He would not invade their “patches of potato ground;”“but so long as this injustice was avoided I must regard it as a vain and unfounded scruple which would have acknowledged their right of property in land which remained unsubdued to the uses of man. But if the savage inhabitants of New Zealand had themselves no right of property in land which they did not occupy, it is obvious that they could not convey to others what they did not themselves possess.”Again, “it was only as tribes that they were supposed to possess it, and granting their title as such to have been good and valid, it was obviously a right which the tribes enjoyed as independent communities; an attribute of sovereignty which with the sovereignty naturally and necessarily was transferred to the British Crown.”Such were the principles on which Governor Grey would be instructed to act, “if the colonization of New Zealand were only now about to begin.”Past transactions (notably, it may be inferred, the decision of the House of Commons in 1845, to respect the treaty of Waitangi) made “a strict application of these principles impracticable, but the Governor was to look to them as the foundation of the policy which so far as it was in his power he was to pursue.”“The exclusive right of the Crown to purchase land from the native tribes to which it has been assumed that it belongs”rested “not only upon what has been called the treaty of Waitangi,”but upon national law. There were other passages in the despatch which spoke of the sacred duty of watching over the interests and cultivating the minds of the aborigines, and it is fair that they should be alluded to, in

– 454 –

order that those who choose to do so may refer to Earl Grey's own words in the Parliamentary Papers which contain his base scheme to defraud an honourable race of its heritage, to humiliate England by making her guilty of a gross breach of faith, and to effect by official trickery what the House of Commons, stirred by the manly words of Peel, had refused to do. The Earl's humane professions were but as vapour when contrasted with the ninth section of the thirteenth chapter of the Royal Instructions attempted to be imposed on the Governor. There were to be District Land Courts. “(9) No claim shall be admitted in the said Land Courts on behalf of the original inhabitants of New Zealand to any lands situate within the said islands, unless it shall be established to the satisfaction of such Court that either by some act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or that the claimants or their progenitors, or those from whom they derived title, have actually had the occupation of the lands so claimed, and have been accustomed to enjoy the same, either as places of abode or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereupon.”Earl Grey had heard that the rights of Maoris to land were, like those of his Teutonic ancestors, in the main, common. The heredium, the homestead, was undisturbed by tribal intrusion; but, as amongst the ancient Germans, no member of a tribe could sell to a stranger even his apparent patrimony without tribal consent. The hunting-ground had ever been common, and by the treaty of Waitangi the Queen had “confirmed and guaranteed 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 individually and collectively possess, so long as it is their wish and desire to retain the same in their possession.”Lord Stanley had, it was true, in burning words denounced as unworthy any evasion of the treaty to which the Queen was pledged. But his successor was the man who, in 1844, submitted

– 455 –

to a Committee resolutions, declaring that the treaty was “injudicious”—that the acknowledgment of a Maori “right of property in wild lands”… was contrary to all sound principles, and that their ownership “should have been confined to land actually occupied and enjoyed;”and who advised that “means ought to be forthwith adopted for establishing the exclusive title of the Crown to all unoccupied and waste land.”

It was not a sin of ignorance that the Lord Howick of 1844 committed when, as Earl Grey and Secretary of State in 1846, he endeavoured cunningly to practise the breach of faith which in 1845 the House of Commons had condemned at the request of Peel. All native claims were to be registered. All unregistered lands were to be confiscated finally without appeal.¹ Virgin lands were confiscated without the formality of a failure to register an ancestral claim. Earl Grey could not have been so vacuous as to be ignorant that his Instructions would dispossess the natives of the bulk of their lands, and the Governor told him that not by cultivation only, “but from fern-root, from fishing, from eel-ponds, from hunting wild pigs (for which they require extensive runs), and by such like pursuits”the Maoris supported themselves; and that “to deprive them of their wild lands for the purpose of cultivation, is in fact to cut off from them some of their most important means of subsistence.”Even the cutting down of a tree on certain lands was a deadly infringement of Maori hereditary rights. Fortunately the theorizing Earl had misunderstood the “practical problem”of New Zealand so completely that his scheme broke down.

The new Royal Instructions for welding into one people the Europeans and the Maoris under municipal and representative Government distinctly provided that the franchise was to be withheld from “any person not able to read and write in the English language.”Governor Grey adroitly expressed (3rd May, 1847), much concern lest any want of care on his part in forwarding information should have left Her Majesty's Government in ignorance of various points which he feared were not under their consideration when they proposed to introduce the

– 456 –

new constitution into the Northern Island, where there were about 100,000 Maoris and 4500 Europeans. All the Maoris would be excluded from the representation offered, for he did not know one who could read and write English, though they could read and write Maori fluently, and contributed largely to the revenue. The European minority would impose taxation, and would not have to pay for the British troops who would be employed in coercing the Maori majority. The Maoris would be indignant. Friendly chiefs would point out that they had shed their blood to maintain the Queen's sovereignty. The Maoris were equal in natural sense and ability to the mass of the European population, jealous and suspicious. No nation in the world was more sensitive as to the disposal of their property, and no people that Grey was acquainted with “less likely to sit down quietly under what they may regard as injustice.”

The Governor wrote much in this strain, and Earl Grey published the bulk of the despatch forthwith. He suppressed passages which suggested that the governing minority “to whom the new powers are to be entrusted will benefit largely from (Imperial) expenditure, and will have a direct interest as great as possible;”and that such devices as those of the Select Committee, in 1844, roused suspicion, and tended to cause the Maoris to combine. “Indeed, so far has this spirit of nationality extended that it is a common object of contemplation amongst their young chiefs, and I feel satisfied that many of them have entertained this design if a favourable opportunity offers of endeavouring to set up some national government.”It was surely iniquitous to conceal this statement from Parliament. Earl Grey excised also the following extracts: “If the privilege of local self-government is one of such inestimable value, how much greater a privilege must it be deemed to confer upon so small a population (only a portion of the adult males of whom would really be the persons…) such extensive power over so large a number of their fellow-creatures whose interests in many respects are totally opposed to their own? Then if one examines the claims of the inhabitants of this portion of New Zealand to so vast and unusual a privilege, one feels much difficulty in seeing on what grounds such claims could rest; but it is certain that the majority of them have never quitted the immediate

– 457 –

vicinity of the town, and know little more of New Zealand and its inhabitants and of their wants and real position than people living in England do. To permit, therefore, the inhabitants of this little town to return the representatives to the Lower Chamber, does not really give to New Zealand the benefit of a representative government in the ordinary sense of those words. In reference to the other arguments I have used, viz. that it should be remembered that the minority, to whom it is proposed to entrust these powers, are not required, indeed, cannot pay the expenses of the naval and military force which their proceedings may at any time necessitate to be employed in this country, I beg to state that whilst I have been writing this despatch Lieut-Col. Gold, the officer commanding the troops in the northern portion of this island, has called upon me in reference to some recent proceedings here, to state his entire conviction that many most improper steps are taken by the European population of this colony with the sole object of compelling the Government to incur an increased naval and military expenditure. Captain Graham, C.B., the senior naval officer upon this station, some time since wrote me a letter in which he formally recorded it as his opinion that such was also the sole object of many Europeans here, and my own opinion entirely coincides with that of the two officers.”¹

The Governor did not offend Earl Grey's diseased antipathy by any allusion to the treaty of Waitangi, to which he, like his predecessors, had so solemnly and repeatedly pledged the British faith, but he assumed a responsibility which none but a strong man could incur. He refrained from giving effect to the proposed Instructions, and earnestly requested Earl Grey to advise her Majesty to revoke their offensive portions. He pointed out in a separate despatch the steps which he thought necessary for the government of New Zealand, and Earl Grey in his work ‘The Colonial Policy of the Administration of Lord John Russell,’ declares: “We did not hesitate to act upon his advice.”

– 458 –

… “The merit which we are entitled to claim, is what belongs to us for having supported him in the policy he has pursued, and co-operated with him to the utmost of our power.”The blunder of excluding every Maori from the franchise, and the base instruction to violate the treaty of Waitangi as far as practicable, find no place in the book of Earl Grey, and deserve the more distinct reprobation in history.

The Governor's despatches had been written in May; but Earl Grey's injurious proposition did not become known in the colony until June, 1847. There were true leaders of Christian men in New Zealand who stepped forward in the imminent breach to save England from the shame with which Earl Grey would have loaded her. Chief Justice Martin offered his assistance to Bishop Selwyn in representing the injustice and impolicy of the Earl's propositions. The Governor professed to disbelieve that he was instructed to give them effect. The Bishop was not deceived by such professions, and his character gave weight to his words. Passing from camp to camp in time of war, visiting the wounded under fire, crossing swollen rivers, threading mountain tracks in company with those whom Earl Grey scorned as treacherous savages, Selwyn had won a reputation for the courage of a warrior and the devotion of a Christian apostle. First appealing for confirmation as to facts to Henry Williams (who had translated and explained the treaty when it was made), and fortified by his clear statement, the Bishop on behalf of himself, and of the clergy employed by Governor Hobson to explain and interpret the treaty of Waitangi to the chiefs in 1840, recorded his “formal and deliberate protest against the principles”expressed by Earl Grey in his despatch. None of those clergy would have aided Hobson if Hobson's assurances “had not been directly contrary to the principles now avowed by the Right Honourable Earl Grey.”“It is my duty”(he added) “also to inform your Excellency that I am resolved, God being my helper, to use all legal and constitutional measures, befitting my station, to inform the natives of New Zealand of their rights and privileges as British subjects, and to assist them in asserting and maintaining them, whether by petition to the Imperial Parliament, or other loyal and peaceable methods; but that in so doing I shall not forget the respect which I owe to your Excellency, nor do any-

– 459 –

thing which can be considered likely to add to the difficulties of the colony.”The Bishop's request that his protest might be forwarded to the Secretary of State was at once complied with by the Governor, who, to do him justice, was manfully striving to counteract Earl Grey's sinister Instructions. The Chief Justice drew up a clear and cogent statement,¹ which was printed at the Bishop's College Press, but was not published. A few copies were sent to friends in England. The Governor was not unconscious of the danger he denied.

Captain Sotheby of H.M.S. ‘Racehorse’ received orders to visit the chiefs in the Northern Island, and in transmitting a report the Governor invited Earl Grey's attention to “the rapidity with which the report that the British Government intended to deprive the native chiefs of all lands not under cultivation had circulated through the northern part of the island, and the dissatisfaction which this report had excited even in the minds of those chiefs who had hitherto been friendly to the British, and had always fought on our side.”Captain Sotheby, aided by Waka Nene, informed the chiefs in various places, “on the authority of his Excellency the Governor, that that there was no truth in the report that the Government claimed all land not under tillage.”But though they trusted the Governor the Maoris distrusted Earl Grey. Te Whero Whero and others wrote to the Queen. With her word they would be content. “O Madam the Queen… hearken to our words, the words of all the chiefs of Waikato.… May God grant that you may hold fast our word, and we your word for ever. Madam, listen; news are going about here that your Ministers are talking of taking away the land of the native without cause, which makes our hearts dark. But we do not believe this news, because we heard from the first Governor that the disposal of the land is with ourselves. And from the second Governor we heard the same word, and from this Governor. They have all said the same. Therefore we write to you that you may be kind to us, to your friends that love you. Write your thoughts to us, that peace may prevail among the natives

– 460 –

of these islands.”In transmitting the letter Grey said that he had assured the chiefs that he was instructed scrupulously to fulfil the conditions of the treaty; but they said their countrymen's jealousy was roused, and some distinct declaration upon the subject from the Queen was requisite to secure their attachment. Grey commended Te Whero Whero to Earl Grey as a most excellent man, and a most faithful subject. From the Wesleyan Mission Committee in London Earl Grey received also a lengthy and earnest memorial deprecating any violation of the treaty of Waitangi, and dwelling on the alarm created by Earl Grey's despatch. They referred to the establishment and wording of the treaty, to the pledges of former Secretaries of State and of Governors. They apprehended the most fatal results from the enforcement of Earl Grey's novel Instructions. They did not call Earl Grey's Instructions nefarious, but they proved them so. Before he answered the memorial the conscience of mankind had taught him to speak of “the treaty of Waitangi,”and not of “that which has been called the treaty.”In reply he employed the able pen and signature of the Under-Secretary, Herman Merivale, who thought the treaty in its inception a mistake as recognizing private estates of Maoris, but who declared in 1861 that Earl Grey's “assertion of general principle came too late to be of much practical use after the treaty of Waitangi.”The reply to the Wesleyan Committee, though argumentative, stated that Her Majesty's Government intended, “and have always intended to recognize the treaty of Waitangi,”and that the attention of the Governor would be directed to the true meaning of the Instructions. The Wesleyan Committee thanked Earl Grey for his favourable reply. In sending to New Zealand the correspondence with the Wesleyan Committee, Earl Grey conveyed the satisfaction with which the Queen had received the loyal and dutiful address of Te Whero Whero and the Waikato chiefs, and Her Majesty's assurance that “there is no foundation for the rumours to which they allude; and that it never was intended that the treaty of Waitangi should be violated by dispossessing the tribes which are parties to it.… On the contrary, Her Majesty has always directed that the treaty should be most scrupulously and religiously observed.”

The Bishop had not contented himself with his personal

– 461 –

protest. A strongly-worded petition signed by himself, by the Chief Justice and many others, was handed to the Governor for transmission. They declared that there was danger in the alteration of policy proposed in Earl Grey's despatch, and that though the Governor maintained silence as to the intentions of the local government, something more was required. They prayed that Earl Grey's Instructions might he revoked as derogatory to the Queen's honour, and that the spirit as well as the letter of the treaty might be religiously maintained.

It must have been wormwood to the Earl to reply that the Queen had received the petition very graciously, and that he was commanded to refer to the repeated assurances of the Government that no intention had “ever existed to interfere with any of the rights secured to the natives of New Zealand by the treaty of Waitangi.”The cause maintained by Lord Stanley and Sir Robert Peel had so far prospered that their opponent recognized the treaty. The Governor meanwhile professed respect for the treaty, and endeavoured to convince himself and others that Earl Grey's Instructions could be wrested into conformity with it. He was compelled, however, to furnish further proof that the construction put on his policy by Te Whero Whero, by the Bishop, by the Wesleyan Committee in London, and by the Chief Justice, was generally entertained. The Rev. Robert Maunsell, on the ground that he had taken a large share in the framing and adoption of the Waitangi treaty, urged his claim to be heard in favour of its inviolability. He appealed to the Governor. From the day on which that treaty “was signed the conduct of the Maori towards the British has been marked by a spirit of chivalry, of friendship, and of good faith.”… “Why now does the statesman of a mighty nation seek to confiscate the guaranteed possessions of our friends and allies?”The Instructions and despatch carried out the spirit of the Select Committee Report of 1844, “(of which also Earl Grey was I believe the chief author), and they all indicate an uniform preconcerted plan, which though rejected by the then Colonial Secretary is now revived with authority and furnished with machinery for being carried into operation.”The only course open to some of the missionaries would be in sorrow to leave the country as soon as the Governor might begin

– 462 –

to act on his Instructions. Mr. Maunsell was represented by the Governor as an excellent person. Never having obtained land for himself he was free to shake the dust from his feet if Earl Grey's scheme made honourable stay impossible. Earl Grey referred to his reply to Te Whero Whero as an answer to Mr. Maunsell's arguments against his scheme.

“Deeply lamenting the necessity,”in deference to the Governor's advice, Earl Grey abandoned his projects. On the 20th and on the 30th November, 1847, he informed the Governor that Parliament would be asked to pass a Bill enabling the Queen to suspend the new constitution. “A sense of what is due to the public safety,”he said, “could alone have induced the Government to sanction a departure from the plan originally chalked out.”The old legislative body would be reconstituted for a limited time, and empowered to establish two subordinate provincial councils, and (should it be deemed advisable) to introduce representative members therein. The restriction of municipal franchise to those who could read and write English the Governor would have a discretionary power to dispense with. The tried ability and knowledge of the Governor made Earl Grey feel it his duty to give to his “opinion all that personal weight to which it is entitled.”But though the scheme was abandoned, one conspicuous opponent of it was not to be allowed a peaceful triumph. Beloved and admired by Maoris, and respected by all, Bishop Selwyn's character had given force to his protest which entered like iron into the soul of Earl Grey. On him he vented his spleen. A despatch of the same date as the one last quoted denounced the haste and excitement of the Bishop in his “perilous appeal to the feelings of the natives,”and vainly argued in words which were to be communicated to the Bishop by the Governor, that his despatch expressed only “opinions,”and that the universal understanding as to it and the Instructions was erroneous. About the outrageous Chapter XIII. the Earl was discreetly silent, though his despatch was lengthy. The Bishop had no difficulty in exposing its fallacies. He justified his protest, and denied that it was circulated in such a manner as to excite the Maoris to resistance. Not one of them had seen it. This denial was confirmed by the Governor in transmitting the Bishop's letter. With it the Bishop sent the printed paper

– 463 –

drawn up by Chief Justice Martin, as already described. “Whether,”the Bishop said, “Earl Grey's principle were a mere expression of opinion, or an opinion big with the fate of the New Zealanders; whether the grievance were substantial in its nature, or in itself an act of injustice; whether the New Zealanders be careless of their rights or vigorous in asserting them; whether they be warriors to command our respect, or worms to be trampled on; whether the treaty of Waitangi be a mere farce, or a solemn act of the Queen in the exercise of her prerogative;—we all, with one voice, as the friends and advisers of this native people, have persuaded them to put their trust in the good faith of England; and with one voice we will protest against any infringement, either in word or act, of the rights of British subjects which they acquired by cession of their independent sovereignty.”He appealed to the Governor to say whether he had not found the clergy and missionaries of all denominations faithful allies to British interests, and Grey reported that such was undoubtedly the case, and that if he had not done ample justice to the Bishop and the missionaries he could only plead that many of his despatches were written under the exciting circumstances of war when he himself was called upon to take an active part.

With regard to the Chief Justice's pamphlet, entitled ‘England and the New Zealanders,’ the Governor expressed regret at the course adopted, and forwarded to its author copies of the despatch discussing the Bishop's defence of his protest. The Chief Justice reminded the Governor that on the arrival of Earl Grey's despatch the Bishop had represented the alarm created by it, and stated that both Bishop and Chief Justice concurred “in the view taken by the great body of the colonists of the tendency of the despatch,”and offered such aid as they could render “under the urgent difficulty.”They subsequently determined that “to ward off great evils”they were bound as good subjects to do what they could, and it seemed proper to draw up a complete statement of the case, and put it “into the hands of the leading public men in England.”The ‘Remarks,’ drawn up by the Chief Justice, were printed at the College Press to avoid risk of publicity and embarrassment to the Governor, and only five copies were given to private friends in New Zealand.

– 464 –

In dignified language Chief Justice Martin defended his position and refuted Earl Grey. He had always endeavoured to abstain from political questions; but the chiefs had often asked him whether the words of the first Governor would be fulfilled, and Martin had always answered: “The words of the first Governor were the words of the Queen; they will never be broken.”Moreover, on various occasions he had been requested to convey such an assurance to the chiefs on behalf of the Government. Whether his conduct, in striving to secure peace in coming years, was justifiable, he left with entire deference to the judgment of Her Majesty's Government, with whom it would rest to determine whether it would be for the public advantage that he should still retain the office which Her Majesty had entrusted to him.

A prophetic passage in the Chief Justice's pamphlet demands especial notice. It was devoted to prove, “that Earl Grey's Instructions involve a breach of the national faith of Britain; and a violation of established law;”and to protest against the new principle of colonization advocated by Earl Grey. The past dealings of England with the Maoris, the national faith pledged in the treaty; the words of Waka Nene when he induced his countrymen to sign it; the reference to those words by Sir Robert Peel, when he said to the opposition—“Do not hastily renounce that character for honour and good faith to which this chief appealed in his eloquent address;”the fact that, in New Zealand, Governor after Governor had solemnly declared that the treaty should never be violated; and Lord Stanley's noble words rebuking the company in London, were marshalled with irresistible force by the Chief Justice. He proved, from writings of American jurists, that even if there had been no treaty, the universal principle, obeyed alike by England and the United States, regarded the American Indians as proprietors of the soil, and that in Canada (Sir Howard Douglas had declared in 1845): “Every part of the vast region now settled has been obtained by regular conveyances and compacts from the native tribes.”He proved that Chapter XIII. of Earl Grey's instructions must bring about confiscation, “final and without appeal.”He cited proofs that the New Zealand Company's followers had already raised a

– 465 –

shout of triumph over the Maori, and a song of praise to Earl Grey. One writer declared that by Earl Grey's Constitution, “the humbug treaty of Waitangi is very properly laid on the shelf;”another, that “it sweeps away the whole system of official machinery and self-impeding sophistry established by Lord Stanley—all the treaty of Waitangi nonsense.…”Finally, he pointed out that as yet among the Maoris, confidence had “on the whole prevailed, because no act of aggression has been committed by the Queen's Government.… In particular those who have received Christianity are disposed to look up to us for guidance and government. But let the plan of confiscation or seizure be once acted on, and all this will be at an end. The worst surmises of the natives will have become realities. To them we shall appear to be a nation of liars. All our means of exercising a moral influence over this people will have ceased, together with all the hopes (which we have nationally professed to hold most dear) of success in the work of civilizing and Christianizing them. The Christian faith itself has from the necessity of the case been received mainly upon our credit; that is, in the belief that the Pakeha who proclaimed it was a true man, honestly seeking to benefit, in every way, those whom he instructed. If our dishonesty shall be seen, the Christian religion will be abandoned by the mass of those who now receive it. That such will, in that case, be the result, may be shown (as far as any result yet contingent can be foreshown at all) from the language and conduct of the natives, since the contents of Earl Grey's despatch became known. This consideration can scarcely be deemed a slight matter in the judgment of any Englishman; certainly it cannot appear so in the judgment of any Christian man.”

The Chief Justice's prophecy was scorned at the time; but when the local government proved faithless, the prediction was verified by the apostasy of large numbers of Maoris. Amongst those whose hatred of the Maoris was increased by this defection, there were perhaps many descendants of the East Saxons who, in a body, in the seventh century, forsook Christianity and resumed the worship of idols,¹ when the yellow plague appeared amongst them. The prophet in New Zealand found no honour

– 466 –

except amongst a chosen few. Writing to the Rev. E. Coleridge in England (1848), the Bishop replied to animadversions upon his protest by declaring that, “If Lord Grey's principle had been avowed by the Governor as the rule of his policy, the safety of the English settlements could not have been guaranteed for a day.”The Chief Justice and Bishop had been told by the Governor that “the Instructions were only a satisfaction to Earl Grey's theoretical opinions to which he was pledged, and that he neither would nor could carry them into practice in New Zealand. We, on the contrary, affirmed that the abstract injustice of the principle was in itself an evil to be protested against.… We looked in vain in the English newspapers for any condemnation of a doctrine which we believe to be so essentially false, and so dangerous to New Zealand in particular.”¹

For a time a great crime was averted. Even Earl Grey's obstinacy was abashed by the manly and temperate tone of the good and wise Chief Justice. The battle was won, and Parliament had pronounced judgment before the Governor's despatches were answered. Earl Grey was constrained to acknowledge that many of his former comments on the Bishop's protest were unnecessary, inasmuch as the protest was a private remonstrance, and had not been generally circulated. As the question had become abstract rather than practical, he did not notice the Bishop's further observations. The Bishop promptly accepted the explanation as regarded himself. As to the rights of Maoris, as understood by the missionaries, it would be unnecessary to say more unless they should be again assailed. Chief Justice Martin was not removed from office. Earl Grey doubted not that he was actuated by the best and purest intentions, and

– 467 –

it was “amply sufficient”for Earl Grey to be assured that the Chief Justice had no intention to give publicity to the “Remarks”in New Zealand. To a friend in England, the Bishop wrote (1848) that Earl Grey had sent him a complimentary message, “but I would rather that he cut me in pieces than induced me by any personal compliments to resign the New Zealanders to the tender mercies of men who avow the right to take the land, and who would not scruple to use force for that purpose.”In 1851, looking back upon the crisis, he said, “A little more and Lord Grey would have made me a missionary Bishop, with my path upon the mountain wave, my home upon the deep.”

In December, 1847, Mr. Labouchere introduced in the Commons a Bill to sweep away Earl Grey's scheme, and to confide entirely in the discretion of Governor Grey. Mr. Gladstone approved the new Bill, thinking that the zeal of Earl Grey had outrun his discretion in 1846. He touched on the Bishop's protest, and saw nothing in it which contemplated publication in New Zealand. Mr. Roundell Palmer also justified the Bishop. Mr. Joseph Hume condemned Bishop and missionaries, and Mr. Cardwell maintained that the protest was within the scope of the solemn responsibilities of the learned and most estimable prelate who made it. “There was no right more inherent than that of an Englishman in any situation to state, in firm and temperate language, his opinion on a matter for which he was responsible.”Sir Edward Buxton and others spoke in a similar strain; and Mr. Labouchere had little defence to make, except that the protest was unjustifiable because Earl Grey's despatch did not really mean what it said, and what no Maori could doubt that it meant. On February 9th, the Bill was to be committed. On the previous day the narrative of Captain Sotheby's visit to the Northern chiefs with Grey's opinion that he could “not now entertain any doubt that the country is in a very critical state,”had been placed before the House. Mr. Gladstone urged the demands of the Maoris for justice, declared that “as far as England was concerned, there was not a more strictly and rigorously binding treaty in existence than that of Waitangi,”and deplored the unfortunate designation of it by Earl Grey as that which “has been called

– 468 –

the treaty.”Mr. Labouchere declared that the treaty “should be scrupulously and largely interpreted,”and hoped Mr. Gladstone “would be satisfied that there was no intention on the part of the Colonial Office to interfere with or take any course upon the question of waste lands in New Zealand, inconsistent with the rights guaranteed to the natives under the treaty of Waitangi.”The cause of the Bishop was triumphant; and not the less because Mr. Labouchere contended at great length that Earl Grey had not intended to undermine the treaty. Mr. Cardwell said that as the House “had ascertained from the Government the spirit in which they intended in future to carry out the treaty, he thought it would not be proper to offer any further opposition to going into Committee.”

There was further discussion; the Earl of Lincoln recommended the withdrawal of the Bill, and repeal rather than suspension of the Act of 1846. Mr. Labouchere expressed the gratitude of the Government to Bishop Selwyn for the exertions he had “recently made in settling claims to land on the part of the missionaries, which were causing the greatest peril to the colony.”Mr. Disraeli did not allow Earl Grey to escape censure. He asked if it “was to be tolerated that a Government being just formed, a member of it imbued with certain abstract and theoretical opinions upon Colonial Government, should make his début in his official career by drawing up with the greatest coolness what he called ‘a Constitution,’ sending it to a distant colony, and to an appalled Governor, and be saved only by the discretion and the abilities of the Governor, and by the presumed indulgence of the House of Commons from the consequences of absurdity so flagrant, and which might have been so ruinous?”Why have a Bill to suspend a Constitution which was not really in existence, and acknowledged by the Government to be too ridiculous to defend? They were “astounded by one great assumption, that there was a Constitution which had been suspended. Why should they introduce into this new, this simple, and this primitive society, such a degree of enormous lying?”

On all sides the ability of Governor Grey was relied upon to counteract the crotchets of Earl Grey, and the Bill was sent to

– 469 –

the Lords, where in moving the second reading, Earl Grey, in praising the Governor, urged that it would be “inexpedient not to be guided almost implicitly by the advice received from a person on the spot, who had shown practically that he so thoroughly understood the position and interests of the colony. Looking at what Governor Grey had achieved, he thought it would involve no little presumption to think they could form a judgment of the measures that should be adopted there better than himself. Accordingly, the measure which he was about to ask their Lordships to sanction, was founded almost entirely on the recommendations of Captain Grey.”He had not been quite prepared for the fact that though by far the majority of the Maoris could read and write their own language, the Governor knew none of them who could read and write English, and therefore all were debarred by Earl Grey from the franchise; “but no doubt it was one of considerable importance.”Like the man who, when rated, abuses some one else, “he thought it a great error on the part of the missionaries in New Zealand that they had reduced the barbarous language of the tribes there to the condition of a written language.”

Lord Stanley expressed surprise that the papers laid before Parliament contained no opinion of the Governor on the Instructions issued by Earl Grey as to the property of the Maoris in land unsubdued to the purposes of man. He firmly believed that the Governor was determined to maintain the sacredness of the right of the tribes to their land, and he did not think himself bound to offer any opposition to the Bill.

Governor Grey was left to manage the land as well as all other affairs. His mode of reconciling the treaty of Waitangi with Earl Grey's Instructions was more adroit than ingenuous. He “considered the Instructions as referring to such lands only as have no claimants, and not in any way touching the treaty of Waitangi.”He expected that in some places native titles might disappear before the Government would be called upon to assert its own. He was more politic than candid in thus speculating at a time when he was assuring the Maoris that the treaty of Waitangi should be religiously respected. Independently of the paramount right to the land, he had been sorely vexed by the question of the acquisition of private rights. As early as in

– 470 –

June, 1846, he lamented that, under cover of Governor Fitzroy's penny-an-acre proclamation of October, 1844, many extensive tracts were purchased, over which the Crown's right of preemption had never been waived. The settlers, launching into speculations with a view to ulterior sales of land, were prone to neglect their legitimate pursuits. The natives were tempted to repeat again and again improvident sales of land of which they were “only part owners, and to which their titles were generally doubtful.”He apprehended perpetual contest and warfare. In June, 1846, he notified that he would “not entertain or grant any application for waiving the Crown's right of pre-emption under Fitzroy's notice.”He told the Secretary of State that he would propose to allow Europeans to purchase directly from the natives only on proof to the Government of the native title and payment to the Crown of a fee of fifteen shillings an acre. Larger tracts of land were claimed than Grey thought fit to grant. The limit of 2560 acres fixed by the Government had often been exceeded.

Missionaries claimed large tracts. The Rev. Mr. Kemp had six claims, amounting to 9276 acres. In 1842 and 1843 the Commissioners, Godfrey and Richmond, had awarded him 3638 acres, and Hobson and Shortland had confirmed the several awards. Subsequently the general rule had been laid down that “only a maximum grant of 2560 acres could be given to each individual for all claims.”But Governor Fitzroy had reopened the cases of Mr. Kemp and others. A new Commissioner, R. A. Fitzgerald, had, in 1844, recommended that Mr. Kemp should receive a grant of the 9276 acres he had claimed, and to nine others he awarded larger tracts than the limit of 2560 acres would permit. Grey objected to these proceedings, and determined to issue no further grants of such a nature until instructed to do so. Earl Grey, in March, 1847, condemned the award of Fitzgerald on the ground that it was not competent for Fitzroy to reopen a claim decided by his predecessor. Governor Grey testified that the Bishop gave him invaluable assistance in settling the claims of missionaries to land. Writing in March, 1848, he commented on “the admirable exertions of our most excellent Bishop and his clergy, together with the numerous and admirable body of missionaries of different denominations.”

– 471 –

Nevertheless he sternly resisted the claims of some of the missionaries to land which he denounced as “illegally acquired.”The resolutions passed by the Church Mission Society in February, 1847, with regard to lands held by missionaries for their own use and benefit, have already been mentioned, and it is convenient to summarize the long correspondence which ensued. Governor Grey's opponents believed that he entered upon his crusade against Archdeacon Henry Williams and others because he had, after receiving a deputation from the company's friends at Wellington, desired to secure the goodwill of the company. It was asserted that the company feared that the large tracts held by missionary and other grantees near Auckland would incommode the operations of the company in the southern portions of the island. The company, though it had bought land from Maoris at nominal prices, depended for success upon selling it at not less than £1 an acre to the settlers. To be undersold at the north would mar its proceedings. Earl Grey, the reputed friend of the company, was in office, and his infamous Instructions proved how little he respected the plighted faith of the Crown. He might be pliable in the same manner with regard to grants made to the missionaries, whose influence the company instinctively dreaded. Whether the Governor was or was not consciously, or unconsciously, warped in the manner imputed to him, the belief that he was so warped imparted a tone to the subsequent proceedings. Henry Williams, in particular, comported himself throughout in such a manner as to show that while his character was impugned he would not abate one jot of his claims, although, if the imputations made against him and others in the “Blood and Treasure”despatch should be withdrawn, he would consent to any arrangement about the land claims of his family. Colonel Wakefield and his nephew had assailed his endeavours, in 1839, to prevent the company from inveigling the Maoris at Wanganui, and the false charge of selfseeking then hurled at him was now intensified by its apparent adoption by the Governor. Williams assented to an arrangement on behalf of his family, on condition that “the numerous and severe animadversions expressed or implied by his Excellency upon the past conduct of some of the missionaries be either fully established or fully and honourably withdrawn.”The contention

– 472 –

was so hot and prolonged¹ that a statement of the facts is essential in any history of New Zealand.

When Earl Grey's despatch of February, 1847, reached the colony, with the resolutions of the parent Missionary Society of the same date, some qualms affected the Governor, who had not anticipated the publication of his confidential despatch. He told the Secretary of State that he was “very sensible of the incalculable benefits which some of the missionaries have conferred and may yet confer;”he thought it needful to explain that Earl Grey's regret that missionaries had “engaged in traffic under the ten shillings an acre and penny proclamations”was “an error into which your Lordship has inadvertently fallen.… I never heard that any of them had engaged in this traffic themselves, nor did I intend to bring such a charge against them.”He limited his objection to the excess of grants beyond the 2560 acres permitted by the Land Sales Act. Williams averred that he claimed no such excess. He produced an official letter written by him in 1840, enumerating his eleven children, for whose use and benefit the purchases were made. His own name appeared in the deed of conveyance from the Maoris as the head of the family, yet he not only made no excessive claim, but on receipt of the Society's resolutions of February, 1847, he offered to waive his personal claim so that the whole of the land might be conveyed to his children under the necessary Crown grant. The proposal was not adopted. The Bishop objected on one ground and the Governor on another. The latter impugned the validity of the grants ab initio. To the Society Williams wrote that he saw no difficulty in complying with their wish. The land had been procured for his children. He had no desire to refer to the Governor and the Bishop any question “as to any portion of land for his own use and benefit, having never entertained any desire for such possession.”The Governor declined

– 473 –

to act in conjunction with the Bishop in determining the claims. He was ready to make the grants to which the missionaries were entitled by law, i.e. 2560 acres, which might be selected from the total block claimed, reserving lands which “natives may now justly claim, or which may be required for the use of the natives or for public purposes.”He did not abandon his insinuation that the war with Heke was caused by the grants sanctioned by Fitzroy. His allegation¹ that the war broke out “shortly after the issue of the grants”might have made the war appear consequent upon any one of a thousand occurrences. The House of Commons' report of 1844 had been at once shrunk from by the wise Sir George Gipps and others as likely to produce war, and Heke himself had declared his reasons. Moreover, keenly observant of the Maori mind, Grey had not reinstated the flag at Kororarika after the war was over.

Henry Williams, in August, 1847, for himself and others, asked officially whether any missionary or son of a missionary had ever asked for aid in obtaining possession of land claimed, whether the recent military movements were in any way connected with such claims, whether during the war any missionary or son of a missionary had been dispossessed or disturbed by the Maoris, and whether any complaint against a missionary or son of a missionary had been preferred to the Government by a Maori. To these questions the Governor vouchsafed no answer, but he sent them to the Bishop, saying: “Not that I wish to impose upon your Lordship the trouble of even reading this letter if you do not desire it, much less of expressing any opinion upon it.”He requested the Bishop to recommend the missionaries to accept the grants of 2560 acres, and “then voluntarily restore the surplus land to the original owners or to their heirs,”or to adopt some similar course. He promised that if they would do so they would find no more zealous friend than himself, and hoped they would bear in mind that he was “not responsible for any remark which may result from the publication of (his) private despatch of 25th June, 1846.”Writing to Earl Grey the Governor complained bitterly that his confidential despatch communicated by the Earl to the Society in London had, in some

– 474 –

unexplained manner, been “communicated to the editor of a violent newspaper,”and that its publication (in August, 1847,) in Auckland had been highly injurious, and had subjected both the Earl and himself to “unjust aspersions.”

Earl Grey proposed a hasty course, which the Governor wisely evaded. The latter, writing on the general condition of affairs (No. 106, 17th October, 1846), had said they were satisfactory, “with the exception of the line of conduct pursued by certain ill-disposed Europeans. I do not, however, much regard in a public point of view the proceedings of these individuals, as I have no doubt that I shall be able to prevent their machinations from producing any serious results; nevertheless, in a personal point of view, I have never on any previous occasion in my life been so uncomfortably situated.”There was no reference to the missionaries in the despatch, but its vagueness and the gnarled nature of Earl Grey allowed him to assume the culpability of those who opposed his schemes in 1844. He (February, 1847) regretted that the Governor had “cause to bring such serious charges against any portion of the European population, and especially against some of the missionaries. I fear that you will not be able to obtain legal evidence of the treasonable conduct which you impute to some of those persons, but if you should succeed in obtaining such evidence I trust that you will not fail to bring the culprits to justice.”It would have been as reasonable to prosecute the Prince Consort for disloyalty as the missionaries for treason, and the Governor explained that they were not obnoxious to Earl Grey's charges, and eulogized the missionaries of all denominations as “an admirable body.”But he pursued his scheme for abasing those who would not submit to his dictation, and in an evil hour the Bishop accepted the invidious task, which, so long as character was in question, arrayed the uncompromising Henry Williams against his diocesan, who had only a short time before appealed to him for aid in demanding justice for the Maori.

He wrote to his missionary brethren. He vindicated his own sincerity by quoting a confidential letter, in which he had in 1843 informed the Society that the purchases of the missionaries had “an injurious effect upon the minds of the natives and the English settlers.”He had in 1845 protested against grants

– 475 –

which would infringe the Society's rules, and Captain Fitzroy had declined, as Civil Governor, to “make distinctions between the various land claimants,”or make himself the lay representative of the Society in New Zealand “for the management of its secular affairs.”He begged the missionaries to dismiss from their minds the despatch accusing them of a readiness to sacrifice “British blood and money”in order to be unjustly put in possession of tracts of land. He eloquently entreated them to “forgive and to forget every attack upon you which may have seemed unjust.”He neutralized his labour for peace by saying that the land purchases of the missionaries had created jealousies, affected the character of the Society, and alienated Maori affections. “All this I will undertake to prove if it should ever be necessary; but I earnestly desire to be spared the painful duty by your quiet acquiescence in the Governor's proposal. A guilty man might have been awed by threats; an innocent man could not close with such an offer. Henry Williams replied roundly that he would abide strictly by the Society's resolution. “I did never purpose to retain any portion of the said purchases for my own private use and benefit, of which your Lordship is fully aware… for myself I have not received one shilling”from the proceeds of the farm. A long dispute ensued as to the construction of the resolutions and letters of the Society. Williams consented to abide by the Bishop's construction, on condition that the Governor's charges “be either fully established, or fully and honourably withdrawn. Should these painful difficulties be removed, I shall then be ready to accede to any proposition, however opposed to my own judgment, as to the reading of the Society's letter of March 1st, 1847.”Another member of the body, the late Chief Protector, Clarke, consented with a different condition. If it could be shown that his retention of land exceeding 2560 acres would tend in any way to embarrass the Government, he would surrender his grant, “provided always that the land over and above the 2560 acres may be made over by me to the Church of England for the education of the natives.”A third, Mr. Kemp, volunteered in like manner on condition that the surplus land should be appropriated for the benefit of the natives. With strange inconsistency the Governor informed Clarke that his proposal

– 476 –

to benefit the Maoris could not be entertained. There was conference between the Governor, the Bishop, and Archdeacon Brown and William Williams. The Bishop requested W. Williams to obtain specific questions, the replies to which might satisfy the wounded feelings of Henry Williams.

They were presented as follows, with the approval of Brown and W. Williams:—1. Does his Excellency disclaim having Intentionally cast any reflection which may appear to have been expressed or implied upon the past conduct of some of the missionaries during his Excellency's administration of New Zealand save only in the question of these purchases of land; and will his Excellency admit that this is an open question, and one upon which there is a variety of opinions as to the propriety of the missionaries making provision for their families? 2. Does his Excellency admit that these lands purchased by the missionaries were so purchased in strict integrity and honesty towards the aborigines, as reported upon by Her Majesty's Land Commissioners appointed for the examination of the same? 3. Does his Excellency admit that he is of opinion that the late military movements in the north were not in any respect connected with the missionaries? 4. And will his Excellency further admit that he is not aware that the missionaries or their sons were put out of possession of their lands by the aborigines, but that he believes they remained in quiet possession of their lands during the late wars in the north?

The Bishop objected to the form of the questions, and after an interview with the Governor proposed the following substitutes:—1. Whether his Excellency will have any objection to state that he is not aware of any treasonable or disloyal practices in which any missionary or child of a missionary has been engaged during his Excellency's administration as Governor of New Zealand. 2. Whether the chief matters in which his Excellency may have expressed an opinion adverse to the missionaries may not be connected with the political objections to the acts and counsels of the late Protector of the aborigines, and not to the missionary body in general. 3. Whether his Excellency would feel at liberty to state that neither the report of Her Majesty's Land Commissioners, nor any other public inquiry, justifies the belief that the original purchases of the

– 477 –

missionaries were fraudulent or dishonest. 4. Whether his Excellency will state that no missionary, or child of a missionary, has ever applied for military protection, but that to the extent of his observation they have remained in quiet possession of the land.

The Bishop approved of the substituted questions; Archdeacon William Williams objected to the second clause; Clarke, the late Protector, wrote, as was natural, “I disapprove of the second clause.”Henry Williams was not requested to approve, but condemned the resolutions when he saw them. To make general charges of base conduct, and to declare that they did not apply to a limited time, was to leave them as offensive as before. To say that sweeping charges against a whole body might have been connected with the political acts of one of them, was pointedly to condemn him without generosity or justice to the others. To declare that no public inquiry had justified the charges, and not to withdraw them, was to imply that they were well founded. The alteration of the fourth question was hardly worth making, unless the qualification “as to the extent of the Governor's observation”was intended to permit the question to be raised again. William Williams withdrew from the conference. The Bishop called on Henry Williams unconditionally to surrender his Crown grants. He declined to do so. There was lengthy correspondence, having for its object on one side to show that the Archdeacon was retreating from his offer to surrender his Crown grants, and on the other to prove that the offer was conditional upon the “substantiation or retractation”of the imputations against the character of the archdeacon. The Governor's chagrin was not lessened when it was found that the grants promised by Fitzroy had in fact been signed by Grey himself before he entered upon his crusade against the grantees. But he persevered. He had intimated to the Bishop, when he appealed for his co-operation (in August, 1847), that failing other measures he should be compelled “to take immediate measures for having the grants set aside (as illegal) by the civil courts of the country,”though he feared such a step might injure the mission, and perhaps Christianity. September had been passed in vain negotiations. The Archdeacon was told that the Governor had informed some

– 478 –

Maoris that the missionaries had improperly obtained their lands. Henry Williams had begun life in the navy, and was still militant. Indignant at an effort to destroy his reputation amongst the disciples he had trained for a quarter of a century, he wrote vehemently to the Bishop (30th Sept.): “I have no land, nor desire to possess any but the grave. I must request that your Lordship will never again name the subject of land to me. It is a reproach and offence to me, and will be injurious to both.… I see that no faith is to be kept with Governor Grey.”Unless the Bishop bestirred himself to resist evil—”we shall have much mischief ere long, and the remedy come too late.”On the same day the Bishop appealed to the Archdeacon to comply with his promise to accede to any proposition made by the Bishop; but he omitted to cite the unfulfilled condition on which the promise was based. He entreated the Archdeacon to resign his deeds into the hands of some neutral party, and accept the mediation of William Williams, Archdeacon Brown, and the Bishop. The sturdy Archdeacon recoiled from the suggestion that he would not surrender his deeds in conformity with a promise, and he returned no answer. Some confusion was afterwards created by the fact that at a later date the Archdeacon's vehement letter was quoted as if it had been written on the 1st October, and was an inept reply to the Bishop's, whereas both letters were written on 30th September, though neither reached its destination until the following day. The Archdeacon's “style and tone”were censured by the Society in England, and regretted by many of his friends. He returned to Paihia, where he was comforted by a long letter from Waka Nene, his fellow-labourer in persuading the Maoris to accept the treaty of Waitangi. The old chief declared that the purchases of the missionaries were honourably acquired. “Let not your heart be dark, as if it were a saying of mine that it is through the missionaries the land is gone.”The war had not arisen from the purchases. “If they had fought for their lands I would not have fought against them; but their fighting was wrong.”The Archdeacon answered that he did not believe such an untruth as his “old friend”repudiated. He did not relax his efforts to avert the danger with which Earl Grey's Instructions threatened the land. In December, 1847, he justified his

– 479 –

interference on the ground of the prominent part he had taken in procuring the treaty of Waitangi. “Earl Grey's despatch strikes at the very root of life and liberty of the aborigines.… Let them be once persuaded of the correctness of the reports they have heard recently of Earl Grey's despatch, and I do not hesitate to assure your Excellency, after a residence of twenty-five years in this country, that the whole island will be actuated by one patriotic feeling of resistance.”The Governor rejected advice from such a source. He converted its offer into an occasion for rebuking the missionaries, and for lauding Earl Grey with audacious disingenuousness. He caused the Archdeacon to be informed that his Excellency has “not seen any instructions of Earl Grey's which direct that the lands of the natives should be taken from them; and the Governor attributes a great deal of the ill feeling of the natives in the north to the large land claims of some of the missionaries, who his Excellency had hoped would have assisted in the adjustment of them.”

The Archdeacon in a fiery letter quoted a saying of Waka Nene, who, when told that he had made insinuations against the missionaries, answered, “The Pakeha are a very lying people.”He reminded the Governor that he had on the 16th August, 1847, declared, with reference to Grey's confidential despatch: “I am authorized to say that the missionaries and their children shrink with horror from such a charge, and are prepared to relinquish their claims altogether, upon its being shown that their claims would render the possibility of such an awful circumstance as the shedding of one drop of human blood.”His letters were published. The Governor reported that the publication was injurious, and that some of the charges made by the Archdeacon were “extremely untrue,”and would “certainly obtain for the Government the hatred of the native population, and will probably lay the ground-work for future disasters, which will then probably be attributed to the Government, instead of to the proper cause.”About the same time the Governor laboured to prove to Earl Grey, as he vainly endeavoured to convince men in New Zealand, that the despatches of the Earl were consistent with good faith. “I distinctly understood those expressions which have been objected to (by

– 480 –

the Bishop, the Chief Justice, and others), as not being intended by you to be applicable to the present state of New Zealand.… I felt it my duty to refrain from admitting that the tenor of your Lordship's instructions was such as they maintained; and I would not state that the local government would not act in any manner opposed to the principles of equity and justice, because such a statement on my part would have been an admission that I had received instructions of such a nature from your Lordship.”Earl Grey had the audacity in November, 1848, to say that the Governor's despatch entirely confirmed his own views. As to Archdeacon Williams, a decisive course was taken. Earl Grey obtained from the Mission Society a resolution declaring the publication of controversial political papers “utterly inconsistent with the character of a missionary.”

Meanwhile, the Governor had instituted legal proceedings by scire facias against the missionary grantees. The first case tried was that of the ex-Protector Clarke. Fitzroy had on 16th May, 1844, granted 5500 acres to Clarke, some of which had been purchased before proclamation of the Queen's sovereignty. Under the Land Ordinance of 9th June, 1841, Clarke's claim was referred to the Commissioners Godfrey and Richmond, who on the 13th May, 1841, reported that 2560 acres ought to be granted. Their report was confirmed by Acting Governor Shortland in June, 1843; but Fitzroy, nevertheless, in 1844, having referred the matter to a Commissioner, Fitzgerald, and received a report favourable to Clarke, made the grants, which by Governor Grey's direction were disputed as contrary to the report of the Commissioners, and in excess of the quantity which could be granted by a Governor, except on the recommendation of the Commissioners. The Ordinance of 9th June, 1841, restricted grants to 2560 acres; but a later Ordinance repealed the restriction (September 2, No. 14, 1842). The later Ordinance was not allowed by the Queen. The Supreme Court in New Zealand gave judgment for Clarke (24th June, 1848, though the case was not argued on Clarke's behalf), on the grounds that the Governor exercised the Royal Prerogative in granting lands; that its exercise could only be restrained by express words, and that a departure from the spirit of the Ordinance could not invalidate a grant in the absence

– 481 –

of any false suggestion by the grantee. The New Zealand Government appealed, and as the respondent did not appear, the Privy Council heard an ex parte case, and decided in favour of the Crown. The Governor was held to have exceeded his powers, which were limited by his commission and instructions, and by the Ordinance on which the Crown relied, the amending Ordinance never having been allowed by the Queen. The judgment was delivered on the 15th May, 1851, and Grey was for a time triumphant over the technically erroneous acts of his predecessor. He had in the mean time acted on the spot.

In another case (the Queen versus Taylor), the Supreme Court of New Zealand attributed validity to a Governor's grants, although made in opposition to the Land Claims Commissioners' report, and though otherwise abounding in irregularity. The judgment was delivered in July, 1849. In August the Governor summoned his Council, and laid before them a Draft Bill for quieting titles to land in the province. It accepted the decision of the Supreme Court, and gave validity to all grants made on behalf of the Crown by the Governor under the public seal of the colony. The speech of Swainson (the Attorney-General), warmly supporting the second reading, appears in parliamentary papers. The measure was passed on the 25th August, and in 1850 was allowed by the Queen. Earl Grey highly complimented the Governor on his conduct in allaying doubts by settling the titles rather than disputing them further.

It was fortunate that the New Zealand titles were secured by the Ordinance thus passed, for a subsequent appeal from South Australia, which was argued before the Privy Council, qualified the decision against Clarke. The case of Reg. v. Clarke was relied upon by one side “as an express decision that scire facias will lie although there is no record.”Lord Chelmsford, on the case argued in 1866, declared that such reliance was erroneous. “From the beginning to the end in that case, there was nothing to raise any doubt as to the propriety of the proceeding by scire facias. No objection was taken to it in the colony (where the case was undefended). Not the slightest suggestion was offered upon the subject in the course of the argument upon the appeal. The hearing before the Judicial Committee was ex parte, the

– 482 –

respondent not having appeared, and the attention of their Lordships was not in any way called to the irregularity of the proceeding, in the validity of which they are supposed by their silence to have acquiesced.”The conclusion of the case shows through what intricate paths a Governor of a colony, responsible to the Crown, may have to walk. When the decision was given in the Colonial Court in 1848, Henry Williams, relieved from suspicion that he could be influenced by sordid motives, appealed to Earl Grey to order an investigation of the charges made against the missionaries. Earl Grey refused, on the ground that to grant an inquiry would be an affront to the Governor. Other troubles which beset Williams and his friends may be postponed,¹ in order to follow now the course of public events with regard to lands.

The validity of Governor Fitzroy's penny an acre proclamation was tested on demurrer in the law courts. A grant from the Crown to another person was impeached by one McIntosh on the ground that he, by a certificate from Fitzroy waiving the Crown pre-emptive right in his favour, had acquired a valid prior title. Chief Justice Martin and Mr. Justice Chapman pronounced against McIntosh on various grounds. They dealt with the bare legal question, and declared him simply a purchaser from the natives without authority or confirmation from the Crown. The certificate was not a waiver, but only evidence that a waiver had been made; and the Governor had not authority to make an effective waiver opposed to the Royal Instructions, and to the Act of Parliament in force when the certificate was issued. Governor Grey was thus released in 1847 from Fitzroy's proclamation of October, 1844. In 1846 Grey had passed a law to prevent, by summary proceeding, unauthorized purchases or leases of land. Offences against the law were punishable by a fine not exceeding £100, and persistence in occupation after conviction was similarly dealt with. Fitzroy's action had been reluctantly sanctioned by Lord Stanley with the proviso that sales already made under the penny an acre proclamation were to be recognized, but that as the proclamation and its predecessor were plainly in excess of the Governor's power, the Government was not to be pledged

– 483 –

to a continuance of their efficacy. The orders were disallowed, but acts done under them before their disallowance were to be respected, so long as claimants under them had strictly complied with their conditions. The Governor reported that some of the claimants had by their purchases supplied the means of warfare to the Maoris in arms against the Queen, and against them Earl Grey instructed him to be peremptory in refusing to comply with their claims, “anticipating that the result would be”that very few purchases would be established. There were passages in Earl Grey's despatches from obedience to which the Governor apprehended evil consequences, and he did not hesitate to depart from them. He required land, for roads and public purposes, with which the grants, which were capable of being established, would have interfered. Consulting Swainson, the Attorney-General, he made arrangements. He allowed no claim under the penny an acre proclamation in excess of 500 acres; he reserved lands for roads and for public purposes, giving, in the latter case, compensation in land to those whom he dispossessed. He rapidly disposed of all the m