(No. 2.)
Judge Fenton to the Hon. D. McLean.

Having observed, amongst the papers placed before Parliament this session, a paper of Sir W. Martin, enclosing a memorandum by Dr. Shortland on the subject of the Native Lands Act, I have the honour to request your perusal of letters written to me by the Judges of the Court, in reply to one addressed to them requesting them to favour me with their observations on the past working of these Acts, and suggestions of amendments which it would be advisable to introduce into a consolidating Act, which I understood it was the intention of Government to bring forward this session. I have not a copy of my letter here, but the replies to it sufficiently indicate the nature of my inquiries. Mr. Smith did not reply, having been prevented, as he has informed me, by illness. I should not have deemed it necessary to trouble you with these papers, which I obtained simply for my own information and assistance, did I not think that the singular theories of Dr. Shortland, amounting, as they do, to. a re-establishment of the Native protectorate in an aggravated form, might tend to influence the minds of men who have little practical acquaintance with the subject, and who might regard silence on my part as an acquiescence in the views propounded, or at least as an acknowledgment of the truth of the facts referred to as mischiefs to be remedied. On this latter and most important part of the question I can say but little, for these facts are very barely stated and the evils are described in a very meagre manner; but as far as I can gather from the memorandum of Dr. Shortland, which seems to have, had a certain influence on the mind of Sir W. Martin, the mischiefs on which he enlarges are confined to the Province of Hawke's Bay, in which the area of land yet to be dealt with is inconsiderable, and his scheme would, in my judgment, as little avail to cure them in the past as it would to prevent them for the future.

As early as 1866 I stated my views, that where counter-claimants, claimants, and proposed lessees had all a direct pecuniary interest in preventing the minute subdivision of lands, it would be impossible for any Court to discover the ownership of these lands beyond such a point as would suffice to terminate page 49all contest amongst the claimants themselves. I therefore never expected that the Act of 1866 or 1867 would stop the mischiefs to which they were directed as they threw upon the Court a duty which it was quite incapable of performing; and so it has proved. Having once decided the class of claimants to which an estate belonged, the Court became powerless to discover more than these recognized claimants chose to disclose, as all opposition ceased. Sir W. Martin proposes to remedy this evil by carrying still further the plan which has already failed. He would reduce the Court to the position of a diplomatic negotiator first, and, having thus destroyed its standing as a judicial body, would place it on the Bench to act with authority—an idea which entirely ignores the principles of human nature. The true remedy, in my mind, was the presence of some of the local officers of the Government to watch the Courts, and bring forward such matters as were, from immediate and very apparent pecuniary interests, concealed from the Court by parties. Having failed to achieve this object by other means, when I had the honour of a seat in the Legislative Council I lost no time in introducing a Bill for the purpose. This Bill, as you know, passed the Council, but was lost in the House of [Representatives, although taken up by the Government.

The Frauds Prevention Act of last session has done much, but I respectfully submit that it does not begin at a sufficiently early stage of the proceedings in the conversion of Native titles to land. Prevention is always easier than cure, and proper provisions made in grants would absolutely prevent the possibility of transactions which the officer appointed under that Act can only frustrate after money has been spent, and, possibly, something like equities have been created.

The objections to the present system which are urged by such men as Wi Tako constitute, in my judgment, its greatest commendation. Shrewd men like him have not failed to observe that in the destruction of the communal system of holding land is involved the downfall of communal principles of the tribe, and the power of combination for objects of war or depredation. When a man is comfortably settled on his own farm, he is not ready to follow his chief in an agitation which promises nothing beyond a little excitement, and jeopardizes all he has got; and the feeling represented by Tako will doubtless spread as the power to give it any injurious operation will diminish. But for this very reason I think it just and politic that the Government should be furnished with authority to see that the old chiefs, whilst gradually losing one dignity, are invested with another. They should have sufficient land secured to them to render certain their status as gentlemen, though I should be sorry to see this principle extended to the whole race, as I understand Sir W. Martin desires shall be done. A very large number of the Maoris are, according to their customs, slaves, or entitled to no territorial rights, unless a permission to occupy is called such, and I cannot see any reason why they should be excepted from the general necessity of getting their living by labour; but, on the other hand, I see the strongest motives of policy, justice, and gratitude, why such men as Te Hapuku should be carefully provided for and their position secured. Whether Parliament will see fit to rescue men from the effects of their own improvidence it is not for me to say. I cannot avoid thinking that it would be a dangerous precedent to allow any man or class of men to gain the belief that, if their imprudence is only of sufficient magnitude, Parliament will come to his or their assistance. In the case of the Hawke's Bay Natives, I believe a great number of the transactions now complained of were perfectly fair and honourable on the part of the European purchasers, and I am not aware whether it has been found that the Supreme Court has been applied to to interfere in such cases as are of a contrary character. But I am inclined to approve of that part of Sir W. Martin's scheme which would confine the interpretation of deeds to official agents of the Court, though that gentleman does not seem at all aware how greatly this plan would increase the expense attending the execution of any conveyance.

I am not certain that when Parliament, in 1865, passed Mr. FitzGerald's Native Rights Bill, it was not premature in its action. I think the intelligence and caution of the Maori was estimated more highly than it ought to have been, for the action of the Supreme Court is rigorous, and documents, when taken there, are construed according to their expressed meaning, or their meaning implied by law, and what the party thought he was doing at the time he executed an instrument is presumed to be what he has expressed. Thus it is very probable that few interpreters have thought it part of their duty to explain, in the interpretation of a mortgage, that non-payment of interest involved the power of sale, with or without the intervention of the Supreme Court; nor is it probable that Maoris were aware that non-payment of their debts might be followed by judgment in the Supreme Court and the seizure of their lands by the Sheriff. Indeed, I have had letters from Natives complaining, as an injustice, that since they have obtained Crown grants to their lands they have been compelled to pay their debts, and these complaints without reference to the character of their debts. But all these questions are questions of grave policy, the principle of which Parliament alone can decide. That the time must come when nobody will venture to deny that if the Maoris are to have the advantages of British subjects they must also have the liabilities and burdens, no one will venture to deny, but whether that time has as yet arrived it is quite clear, from Sir W. Martin's paper, that influential and conscientious men have not unanimously decided. But, until the voice of the Legislature on this question is declared, I respectfully submit, as my own opinion, that it would not be wise to retrograde, especially as the lesson has now been learnt.

As a great public question, I think it is admitted that the chief object of the Government of a colony is as rapidly as possible to cause the waste lands to be brought into profitable occupation, by cattle and sheep first, but ultimately by the labour of a settled agricultural population. It is contrary to the habits of the Maori to cultivate more than a very limited area; but it is a matter of public concern that such an area should be secured to them, free from all power of alienation; and, that settlement having been completed, I cannot but think that they should be at liberty to deal with the remainder of their wastes as they think best. But in the exercise of this discretion they will not, of course, be precluded from accepting the advice of the Government or of their friends amongst the European race. If the quantity of land determined by the officers of the Crown as necessary to be retained by the Maoris in the case of the final settlement of their claims under the Ngaitahu deed, is to be taken as a criterion, I think it will be found that the amount locked up, even in Hawke's Bay, still exceeds their necessities. Whether they would willingly submit to have any portion of the proceeds of future sales permanently invested I am not prepared to say, but I should not be surprised to see page 50any such interference, although intended and likely to prove for their good, very seriously resisted. Although the Maoris, like every one else, lament the result of their own imprudence, it does not follow that they would relish the power to commit the imprudent acts being taken away from them.

I also enclose for your perusal a memorandum by Mr. Heale, the Inspector of Surveys. That gentleman has, I think, suggested matter for very grave reflection. The progress of the Court has, perhaps, been too rapid, and I would willingly see more power given to the Government to moderate and influence its operations in the future; and the true way of doing this has been suggested by that observant officer. When the Act of 1865 was passed it was well known that Government surveyors would not be suffered on Native lands. The appearance of a surveyor's chain was at that time the signal for a riotous resistance by the Natives; but that feeling has now entirely disappeared, and I have been constantly in the receipt of letters from all parts of the Island requesting me to send Government surveyors on to lands proposed to be passed through the Court. The fact is that now Maoris are fully aware of the frightful expenses of the present system of surveying—a system which, in some cases almost consuming the entire proceeds of the land when sold, is still burdensome and unremunerative to the surveyor himself. Uncertain of payment, and compelled to obtain advances, for which a discount of 60 per cent. is sometimes charged, the surveyor is driven to indemnify himself as far as he can by exorbitant charges. Moreover, the same land is sometimes surveyed by two or more surveyors representing different sets of claimants, and when an adjoining block is prepared for adjudication the same line is again measured. A Government surveyor would be able to survey a number of blocks at once, and at the same time would perform, on the ground, without additional expense, the task of reconciling the minor differences which Sir W. Martin would effect by, in each case, sending on to the ground the Court itself. That the influence of the Court as a judicial tribunal—at present greatly respected by the Natives, because they are aware that it decides simply on evidence taken in an orderly manner in open Court—would not for six months survive such a degradation of its functions I am fully persuaded; and if you will look at the accompanying return of the area of blocks adjudicated upon in Auckland, it will be apparent to you that—except perhaps in Hawke's Bay, where the areas are large—Sir W. Martin's whole scheme, even if otherwise reasonable, would break down under the weight of its expense. If at the same time Mr. Heale's department were charged with the other surveys of this Island, now rendered especially necessary by the large plans of the Government, the saving of expense and the increase of efficiency would, I think, give great relief to the Natives—who now indirectly contribute such large sums to the public surveys—and would prove very satisfactory to the several Provincial Governments.

There are many minor points of practice—such as power for the Court to refer a case to the Supreme Court; the subdivision of lands after they have been dealt with without the unanimous consent of the owners, as in the case of a bill in Equity for a partition; the exclusion of European agents; the powers of Assessors; the calculation of duties; the issue of certificates where Crown grants are to follow—to which I must not advert, for, if I did so, this letter would be too long to be of any use. I will merely add, therefore, that to your plan of dividing land into two classes—one held under certificate, with which no dealings can take place, and the other under grant, with no intermediate certificate—I quite agree.

In again dealing with this great question we are in a position of advantage which we could not pretend to in 1865 and 1862. The knowledge of the able men whom the Government have appointed as my coadjutors, almost all of whom had a long antecedent experience of political and territorial dealings with Natives, enables us now to think with confidence on points which, in 1865, could only be dealt with tentatively; and the authority which the Court has gained throughout the Island—whether in consequence of its own character and operations, or from the proceedings of the Executive Government, or from both, it matters not—renders us now capable of taking steps which, when the first Act was passed, few would have dared to venture on. Although our proceedings have sometimes inflicted upon the Native Minister for the time being the trouble and weariness which, unfortunately, seems inseparable from Native affairs, and which seems to break men down before their time, yet I cannot remember that any decision yet given (Manawatu, perhaps, excepted, which was in exceptional conditions) has ever occasioned the Government a day of serious anxiety as affecting the peace of the country. That the Maori race will always be satisfied with a system which they will gradually learn, as Wi Tako has already learnt, is a very operative machine for opening their lands to colonization and reducing their holdings to some relations to their necessities, I cannot hope.

But although I believe, with Mr. Maning, that the final struggle between the races has yet to come, I do not think that that event will be precipitated by any operation of Government which is fair and perfectly understood and accepted by the Natives, and any law on these great and vital questions must now be also satisfactory to the European people settled in New Zealand. I am quite persuaded that no law which does not give reasonable satisfaction to both races can have any chance of success. But, after all we can do, it is against all our lessons of history, and opposed to the truth of human nature, to suppose that the soil of a country can, by any method within our powers of imagination, be transferred from an ancient race, which has long held it as sovereign owners, to an intruding people, without suffering and unhappiness.