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Chapter xiv.
Native Land Court.
It is proper to examine the working of the Native Lands Court, constituted under the Native Lands Act of 1865. Two or three cases which were brought before the Land Court and before the Compensation Court created under the New Zealand Settlements Act, will throw light upon many previous occurrences dealt with in these pages. One enabled justice to cast a momentary ray upon the shameful wrong done to the loyal Ngatiawa chief, Te Rangitake, at the Waitara. It would have been easy to state the final result, and then to dismiss the subject. But by such a course the true history of New Zealand would have been concealed; and by such a course the numerous misrepresentations in other works would have been contradicted but not disproved. The act done at Waitara by Governor Browne was the plague-spot which corrupted the subsequent life of the colony. He himself, and Mr. Richmond, wrote despatches and minutes, as bulky as volumes, in which they contended that the prayer of Sir
William Martin and others for judicial inquiry was ridiculous, and that the title of
Teira, so rashly accepted by Governor Browne, had been “duly investigated” and found good. Two or three sentences written by Governor Browne and Mr. Richmond may be quoted before the proceedings of the Land Court are told. To the Secretary of State the Governor wrote (March, 1860): “I have insisted on this comparatively valueless purchase, because if I had admitted the right of a chief to interfere between me and the lawful proprietors of the soil, I should soon have found further acquisition of territory impossible in any part of New Zealand.” A published manifesto prepared for the Governor by his Ministry
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declared: “Te
Teira's title has been carefully investigated and found to be good. It is not disputed by any one. The Governor cannot therefore allow Te Rangitake to interfere with Te
Teira in the sale of his own land.” To his shame it must be said that Mr.
Donald McLean abetted this manifesto. In the same despatch which transmitted that manifesto to England was enclosed a memorandum by Mr. Richmond, imploring for troops. Mr. Richmond wrote: “An occasion has now arisen on which it has become necessary to enforce obedience to the Governor's decision by a military force. The issue has been carefully chosen—the particular question being as favourable a one of its class as could have been selected.” The reader will form his own conclusions as to the class, after scrutinizing the special and favourable case thus gravely averred to have been carefully chosen. It is only necessary to refer generally to the earnest intercessions of Sir
William Martin, the Bishop, and Archdeacon Hadfield, in favour of judicial inquiry, and the contempt with which they were thrust aside. The land at the Waitara was included in the blocks confiscated in the Taranaki province in September, 1865. It will be remembered that within confiscated tracts, the Government undertook to reserve and award lands to loyal natives who had tribal rights in the district. Rebels were also invited to declare their allegiance, and thus entitle themselves to restoration of such lands as might be allotted to them. To ascertain the proper quantities to be awarded in the Taranaki province a Government Gazette notice intimated in March, 1866, that a Compensation Court would be “holden at New Plymouth (Taranaki), for the purpose of hearing and determining the claims of persons to compensation on account of the taking under the authority of the New Zealand Settlements Act of the blocks of land in the province of Taranaki hereunder described.” The blocks were described by certain boundaries as the Waitara South, and the Oakura. The first-named included the land which Governor Browne professed to buy from
Teira in 1859, and which was abandoned by the Government in 1863. The Oakura case was first undertaken. The Judges of the Compensation Court were Mr. Fenton sitting as Senior Judge, and Messrs. J. Rogan and H. A. M. Monro sitting as Judges. It will be remembered that Mr. Fenton was also
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Chief Judge of the Native Land Court. Mr. W. S. Atkinson appeared as Crown Agent to oppose the claims of the natives. His contention was peculiar. By the Settlements Act the Crown could elect whether to give compensation in land or in money. He elected “to give land in lieu of money.” But the Oakura block was supposed to contain from 25,000 to 26,000 acres, and the Crown or its agents, without regard to possible or probable claims of loyal natives, had authorized occupation by European settlers to such an extent that only 2500 acres remained to satisfy any awards which might be made by the Compensation Court. Mr. Atkinson pleaded generally, as Mr. Fox and his friends had often urged, that the natives did not really exercise ownership, and only used about 1000 acres properly. On this point a chief replied: “As to the extent of our cultivations, I call attention of the Court to our live stock on the land. I demand that our compensation be within the block; the blood of my relatives is on the land. Remember my services during the war. My cattle, my sheep, my pigs, and all my property went in the war; my wheat and my cultivations; and I never received any compensation for them, though the Pakehas have all been compensated. What I did was not rewarded. Let the Government now fulfil its promises.” Mr. Atkinson was unable or unwilling to produce any evidence as to the lawful settlement of military settlers on, or of the disposal of, the block by sale, to such an extent as to leave an insufficient quantity of land to meet the claims of natives, which claims were contemplated in the Act, and had been repeatedly and solemnly guaranteed by the Government. In a proclamation of the 17th December, 1864, there was the unshakable sentence: “The land of those natives who have adhered to the Queen shall be secured to them.” There had been other intimations of like purport. The Court considered and admitted 76 claims in a manner which may be told in their own words.
1 “Having thus arrived at the, to us, unavoidable conclusion that the claimants before us were entitled to 7400 acres of good land in this block, and having accepted Mr. Atkinson's assertions that the whole of the available land, except 2500 acres, had been appropriated to military settlers, the question then arose, What are we to do?
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We thought that possibly the Government were not aware of the large majority of owners of this land, who had remained loyal, and reflecting on the great public calamity which would be caused, and the serious embarrassment which would occur to the Government if we issued orders of the Court extending, as they would have done, over the lands of considerable numbers of these military settlers, we determined to despatch one of our number to Wellington to place the state of affairs before the Government, and give them an opportunity of availing themselves of the power given to the Colonial Secretary by the 9th clause of the Act of 1865.
1 We accordingly postponed our decision, and Mr. Rogan went to Wellington, whilst Mr. Monro and I proceeded with the case of Waitara South. Mr. Rogan returned with the Honourable Colonel Russell, the Minister for Native Affairs, who effected an arrangement with the claimants, and ultimately all the claims except one, that of Rawiri Motuere, were withdrawn to our satisfaction. What the terms of Colonel Russell's arrangement were, the Court did not think it their duty to inquire. In consequence of this agreement having been come to, no adjudication was made by the Court, as our jurisdiction was gone…. In the case of Rawiri Motuere, who had returned home to Waikanae, the Court accepted the undertaking of the resident owners to admit him as one of themselves.”
Such was the measured language of the judicial report. But more might have been told. The section of the Taranaki community which had so largely promoted discord through its covetous agents and representatives in former days, was indignant at the thought that even loyal natives should maintain a footing on the land through the action of a Court of Law. It mattered not that the claimants in 1866 had in 1863 gone out, when many Europeans declined, to rescue and escort to the town the scattered settlers whose lives were in danger after the
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Oakura massacre. It mattered not that by now striving to strangle the claims of their allies in war, the settlers were doing their utmost to prove the truth of the prophecy, that, when alleged rebellion had been dealt with, loyal Maoris would be robbed. The passions of the dwellers in Taranaki darkened their judgment. The nature of the settlement arrived at by the Native Minister may be told in few words. Mr. Parris acted as native agent. Mr. Atkinson “applied for and obtained a suspension of judgment for two days,” and offered to the natives “the whole of the remaining land in the Oakura block.” Parris on behalf of the Maoris accepted the offer if “intended to include all the Government reserves and the whole of the land not allotted to military settlers.” Atkinson consented. The land thus restored to the original joint-owners (according to Parris's statement) exceeded 10,000 acres. That held by military settlers contained 18,930 acres. Every one familiar with the conversation of the settlers is aware that the restoration of lands to the Maoris has been made the constant theme of ridicule. The use made by the military settlers of their lands may be illustrated by the result at Taranaki. The three prescribed years of service terminated in 1866, and nearly all of the settlers sold their lands and left the province. The historian of the province ascribes their departure to the unfitness of many of them for rural life, and to the inability of the local government to employ them, or to make roads amongst their farms. As a proof of the tenacity of the Taranaki mind to the course pursued with regard to the natives, it is right to mention that although that historian
1 devotes some space to the departure of the military settlers and the absorption of their lands by other Europeans in 1866 and 1867, he says not one word of the sitting of the Compensation Court and the emergency in which one of its Judges was despatched to Wellington to induce the Government to find a way of escape from the exposure which was dreaded. A further proof of the pertinacity displayed is to be found in the fact that when a Maori prophet,
Te Whiti, stirred up his disciples, and a West Coast Commission was appointed in 1880, it was proved that the Government had not at that date taken steps to comply with the contract made by the Native Minister
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with the Maoris in 1866. To promise and not to perform was the accepted method of dealing with Maori claims by the numerous Ministries which existed in the colony from 1866 to 1880. Within that period there was occasion for many claimants to die. The urn of fate combined with weapons of war in removing suppliants or appellants from the scene in which they troubled the heirs of Colonel Wakefield's devices.
Startling revelations were made at Waitara, where the native ownership of the ill-famed Waitara block was incidentally brought under the eye of the law. Teira and his friends appeared before the Court to establish their claims on the 4th July, 1866. The exiled rebels were of course unrepresented, but in order to prevent exorbitance of the claims of Teira and others, the Government were of necessity constrained to put forward some portion of that which would have been the case of the absentees if they had not been barred. Their hereditary rights, concluded by their imputed rebellion, could be used to rebut the claims of others. The Government Agent in the Court was a Mr. Atkinson. Tamati Tiraurau of the Ngatiuenuku hapu (of the Ngatiawa tribe), of which Te Rangitake was the principal chief, was first examined. The evidence of Teira will be sufficient for the purposes of this narrative.
It will be remembered that under the Native Rights Act of 1865, native title and interests in land were to be determined in all cases according to the ancient custom and usage of the Maori people so far as they could be ascertained. It was the practice of the Land Court to receive copious evidence and frequently to frame genealogical tables, which, when established by concurring testimony, often decided cases to general satisfaction. There were many Maoris present when Teira was examined (about 400 of them attended the Court). Teira said he was of the Ngatiuneku tribe. The hapus, or sub-fribes, which were part-owners of “Taylor's piece” (as the block bought by Colonel Browne was termed), were Ngatirangiroa, of which a woman, Mauirangi, was chief—Ngatiuenuku, of which the witness and Te Rangitake were chiefs; Ngatihinga, whose chief was Hemi Pataka; Ngatihineuru, of which Rewiri Kaiuri was chief; Ngatihua, whose chief was Parani Tukoko; and Ngatituao, whose chiefs were the witness, and Ropoama Te One. The
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tribes enumerated were all hapus of the Ngatiawa. In the solemn atmosphere of a Court of Justice, and surrounded by Maoris who could refute mis-statements, the man who to wreak his spite against Te Rangitake had lied to Governor Browne, was compelled to admit that several hapus had interests in the block which he had been put forward, and had been accepted as competent, to sell in 1859, without tribal concurrence. He essayed, even in 1866, to maintain his evil reputation. When a table of descent was framed from the evidence it was found that Teira was seventh in descent from Tarikura; while, from her sister Parekaita, Te Rangitake was fifth in descent, and had therefore a better title than Teira as being more nearly related to the common ancestor. When reminded of this, Teira had the effrontery to say that proximity of descent made no difference in heritage; but the Maoris in the Court significantly evinced their dissent. A further catastrophe awaited the claim which Colonel Browne's advisers had pronounced to be good. Ascending higher towards the family founder it was found that the two sisters above-named derived their descent from a female ancestress, Nenuku, whose brother was Te Wheturereao. From Te Wheturereao in the male line, Te Rangitake traced a direct and incontrovertible descent. Thus, in addition to representing a wider circle within the tribe, Te Rangitake boasted direct descent from the house-father, so dear to Maori hearts.
It would perhaps be too much to say that by Maori as by Roman law, agnatic was invariably preferred to cognatic inheritance, although the reverence for the ancestor, or eponymous hero of a tribe, would give much sanction to such a theory. One careful and learned writer, Colenso,
1 distinctly declares the “order of succession of inheritance as clearly shown in Maori genealogical recitals was from father to son.” The transfer of tribal leadership, from the unworthy to the worthy, of which there were well-known instances, perhaps forbids the laying down of an irreversible canon on the subject. But the carved images of their great forefather in the Maori meeting-houses were perpetual memorials of Maori custom and tradition, if not of positive law. But this the brazen
Teira was ready to challenge. Asked whether the proven descent from Te
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Wheturererao did not establish Te Rangitake's claim as superior to his own, he desperately denied the fact. His own followers were so amused or shocked at this affirmation that they made demonstrations of dissent.
The Court tested Teira on a more general principle.
“You say that an individual Maori can sell land?—Yes. And that a single Maori could sell land before the Government came here?—Yes. Could he have sold to any one?—Yes. Could he have sold to another Maori?—Yes. Now could you have sold this piece (the Waitara block) to Kukutai,1 or to Te Awaitaia?—Yes. And would the tribe have let them take possession?—Yes. And build a pah upon it?—Yes.”
At this daring denial of well-known Maori usage, Teira's friends burst into laughter so loud and derisive that the baffled liar, looking round and seeing that further imposture was hopeless, rushed out of the Court.
One touch from the wand of justice had destroyed the baseless fabric on which Colonel Browne and his advisers endeavoured to justify the robbery of Te Rangitake. The visions of which Sir
William Martin had denounced the folly were dissolved; but not without leaving a rack behind. The Majesty of England pawned to do a great wrong: the home, the church of a loyal chief wantonly sacked by the Queen's troops although that chief was believed to have saved Wellington from destruction after the Wairau massacre in 1843;—a solemn treaty shamefully violated in defiance of the warnings of that just man who had been Chief Judge of the colony; the blood of thousands of loyal Maoris, (resenting injustice) spilt upon their land in futile strife with the mighty engines arrayed against them; the desperate hearts of many driven to fulfil the prophecy of Sir
William Martin and to spurn the creed tendered to them by those whom they believed to be a nation of liars; the Bishop, who had lived in their affections, and, welcome in every Maori village, could wander through mountains and forests at will, turned into an object of aversion because in endeavouring to temper the horrors of war he had accompanied the conquering army of the Queen!
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These were the fruits of the policy which Governor Browne abetted in 1859, when he was tempted to abandon his opposition to the schemes which in 1858 he had denounced as framed to rob the Maoris of their land—”
Recte si possint, si non quo-cunque modo.” And this was the policy which after such a significant warning from the Governor, the Duke of Newcastle had formally approved, though he admitted subsequently that he deemed it reprehensible. By retributive justice, Stafford, the head of the Ministry by which the wrong was done, was Premier when it was exposed; and the Crown Agent, a member of that section of the Taranaki community which had urged the crime, was in 1866 the unwitting tool by which the truth was brought to light. In resisting the claims, in order to diminish the unholy wages, of
Teira, the Government was constrained to make clear the title of Te Rangitake. But although
Teira's evidence, and that of Kirikimero, Tamati Tiraurau, and others established completely Te Rangitake's original title. Te Rangitake could obtain no benefit from the proof. He, as a rebel, had no standing in the Court. The “carefully chosen issue” of Mr.
C. W. Richmond had been sufficient for the purposes of Taranaki avarice. The confiscation of the land under the Settlements Act of Whitaker and Fox professed to bar all claims of those directly or indirectly concerned in the war. Violence in seizing upon the land had been resorted to in order to convert Te Rangitake into a rebel, and the device had been successful enough to satisfy not only Mr. Richmond and his Taranaki friends but a majority in the New Zealand Assembly. There might have been an argument raised that as the Maori title was tribal, the abrogation of the rights of the rebels left their loyal tribesmen with rights co-extensive with the area of the tribal domain, but no New Zealand Government would tolerate the raising of such an issue in the Courts. In reporting their proceedings at Taranaki in 1866, the views of the Judges on Maori tenure were succinctly stated. “Each individual has a right as against the rest of his tribe, to a pretty well defined piece of land, part of the tribal estate, which he could hold and cultivate as against any member of the tribe; but his power extended no further. He could not alienate it out of the tribe; and, if he abandoned it, another member could take possession. The tribal estate belonged to
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the tribe, and no man could weaken the tribe by alienating any part of it to another tribe, or person out of the tribe, or to any outsider.” By the treaty of Waitangi the Queen had 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, and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession.” It would have been difficult to maintain in a Court of Justice that the forcible extinction of the rights of Te Rangitake could abrogate those paramount tribal rights which ran over the whole domain, and by which each member was invested with concurrent tribal rights. The joint-tenancy known to English law recognized the
jus accrescendi of each remaining owner at the time of the removal of any of his co-tenants. The hereditary tribal right could not be weaker than the artificial ownership created by joint-tenancy. It added to all the favourable incidents of joint-tenancy the crowning quality that each man born into the tribe became invested in his turn with the common right. So long as the tribe might exist, so long was there a man to stand upon the soil and assert the common ownership. Even the ephemeral joint-tenancy of English law preserved the whole of the estate to the last survivor. Could it be said that the forfeiture of his allegiance by one man could divest all his tribe of their inheritance? If so, some vile creature might be bribed at any time to destroy his people by some act to be put forward by the Government as an excuse for confiscation of tribal lands. But reason and justice had been silenced in New Zealand. When the New Zealand Settlements Act was passed by Whitaker and Fox in 1863 a point of tyranny was reached from which Henry VIII. had abstained. He, when he desired to bring within his grasp the possessions of his victims, procured a repeal of the law which protected estates-tail from forfeiture for treason. He resorted to the only tribunal needful in that matter. In New Zealand no law could be honourably proposed or passed by the Europeans in violation of the treaty of Waitangi. Only by the formalities by which that treaty had been made, could it be undone, or its sanctions be changed. But the dry light of justice was obscured when Whitaker and
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Fox darkened the political hemisphere, and the Assembly passed the Settlements Act of 1863. During the Weld Administration in 1865 the influence of himself, Mr. Mantell, and Mr. Fitzgerald, and the labours of Sir
William Martin and Mr. Fenton, purified the air, and by the working of the Native Rights Act and the Native Lands Act some gleams of light were admitted to the gloom in which justice had been shrouded.
The wrongs of Te Rangitake need no further comment in these pages, though in finally dismissing them it is not out of place to remind the reader that in July, 1867, Major Richardson, one of Mr. Stafford's colleagues, in an elaborate report hazarded the statement that the whole war had “unmistakably arisen from the necessity of vindicating Her Majesty's supremacy and the rights of British native subjects guaranteed by treaty with the Crown.” Before that report was received and lauded by Mr. Stafford, the Compensation Court had wrung the truth out of the mouths of
Teira and others, and to prevent exposure or avoid inconvenience, the Government had eluded the delivery of judgments, in the Oakura and Waitara cases, by compositions out of Court which ousted the Court from jurisdiction. Mr. Richardson's assertion requires no other comment than the remark that if he believed what he wrote, the self-deception possible with man is immeasurable. The papers relating to the sitting of the Court were laid on the table by command, and were ordered to be printed on the 4th October, 1866. The genealogies of the tribes, as compiled by the Senior Judge, Fenton, were laid on the table on the 24th September, 1866, but were not ordered to be printed until, in the session of 1867, Mr. Carleton, on whose motion the other papers were printed in 1866, succeeded (though not without a division in which 18 members opposed him) in causing the genealogies of
Teira and Te Rangitake to be preserved in the blue-books.
1 It may be well to glance at the result of the Waitara negotiations. The Crown Agent, Atkinson, procured adjournments from time to time. He also impugned
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the validity of
Donald McLean's proceedings. He denied that McLean's appointment had been proved, and urged that McLean's recognition of, and promises to, absentee owners ought to form no precedent for the Court, inasmuch as McLean might have been constrained by a desire to pacify the Maoris. Atkinson also maintained that one Government was not bound by the acts of its predecessors. The Court over-ruled him in each case. On the last point they said: “We doubt very much whether the doctrine expressed is a good doctrine even in politics; certainly in Courts of Law, in matters of right affecting the Crown, it must be held to be bad doctrine.” Forty-two claimants had been admitted when the Government deemed it advisable to settle the Waitara investigation, like that of Oakura, by arrangement out of Court. There was an adjournment to afford “time and opportunity” for negotiation. On the 10th July, Atkinson proposed to Parris to give to “the friendly residents and absentee natives and half-castes… the whole of the block to seaward of the military settlements in the Waitara south block with the exception of the Waitara township… the whole of the reserves in the military settlements with the exception of the town belts… a fourth part of the land comprised in the township of Waitara outside of that intended for the town, present and future, comprising about 500 acres… 125 sections in the Waitara Township… and also sections on the site of the Hurirapa pah.” To these terms Parris on behalf of the natives agreed. The land thus stipulated for exceeded 11,000 acres, but its quality was, according to Mr. Parris, very inferior to the 14,000 acres comprised in the military settlers' allotments in the block. This restitution was viewed with anguish by the more petulant amongst the advocates of confiscation of Maori lands. The claims being withdrawn from the Court, the defence of the Crown on their merits was not entered upon. So much has been written about what Colonel Browne called the “comparatively valueless purchase” from
Teira that its disappearance from the field of strife deserved special notice. Many volumes have been written to defend that fatal wrong which in 1859 and 1860 plunged the races into war. Others have been written to denounce it. Now for the first time are arrayed together the facts which enable the curious to see in one
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work the contention of its champions and of its opponents. All impartial persons must admit that the rape of the Waitara was an act which can never be sufficiently mourned by those who hold dear the honour of England. Would that it could be blotted out! It may not be; its deadly poison envenoms still every relation between Pakeha and Maori.
Another case brought before the Compensation Court must be recorded. The Rev. Heta Tarawhiti was left in charge of the mission station at Taupiri on the Waikato river when the war of 1863 drove all Europeans from the district. No threats could deter him from his duties. Bishop Selwyn's testimony to that effect has been recorded. Tarawhiti applied (under the Settlements Act and the Government proclamations) for a block of land within his native territory, Central Waikato. At a Compensation Court held in January, 1867, at Ngaruawahia, Mr. Mackay on the part of the Crown admitted Tarawhiti's interest in the lands taken from his tribe by confiscation, but alleged that the claimant had barred himself from compensation by aiding or comforting rebels, or conspiring against the Queen, or joining with conspirators, &c. Such acts under certain provisions of the Settlements Act of Fox and Whitaker deprived a Maori of hope of compensation.
Mr. Mackay thought it sufficient to allege generally that the Rev. H. Tarawhiti had infringed the Act, but when asked by the claimant's counsel to define the charges—” declined to bind himself to anything, or even to state decisively the times and places where the acts to be proved were committed.” So monstrous an injustice could not find favour in a British Court, and Mr. Mackay was fain to apply for an adjournment of two months, which was granted. He still declined to put his “accusations into form.” On the 12th March, the case was resumed at Auckland. Evidence was taken generally, the Crown Agent still abstaining from formulating his accusations. Again, on the 12th April, evidence was taken. On the 18th April, Fenton, the Senior Judge, with Mr. Monro, Judge, delivered judgment. They commented on the course which, “in the absence of any specific charge against the claimant,” left the Court “to abstract from the closing address of the counsel for the Crown the points on which he relied.” They might have added that such a course was in direct violation of cherished statutes which guard
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in England the liberty of the subject. The charges so extracted were—that the claimant, “though left in charge of the Taupiri station, wandered about ministering amongst rebels,—that in his ministrations he omitted the prayer for the Queen, and inserted a prayer for the Maori king (so-called)—and that he supplied sheep and other food” to rebels.
Bishop Selwyn1 had given evidence, and distinctly stated that he had instructed Tarawhiti to minister to all sick and wounded without fear or favour. As to the prayer for Matutaera, the Bishop also declared that the practice of praying for the principal chief of a place was usual, and was conformed to by the Bishop himself. The claimant averred that he never omitted the prayer for the Queen when using the Book of Prayer. The Court believed him, and did not think the omission of the Queen's name in an extempore prayer could be construed as “comforting, or adhering to, or aiding rebels.” As to the supply of sheep, the claimant stated that he had none in 1863 when the offence was charged. Mr. Ashwell testified that he had given Tarawhiti some sheep in 1860, and had put others in his charge for Matutaera, for the king-maker, and two other natives. Tarawhiti declared that on the marriage of a son, in 1861, he gave him all his sheep. At the end of 1863, when General Cameron's army devastated the Lower Waikato, the king-maker sent to demand ten sheep as the property of himself and of his king. Tarawhiti disputed the number, alleging that six only belonged to them. The messenger seized and killed ten. In passing, the Court remarked upon the singular fact that there were many sheep at the station deemed to be the property of the mission or of a missionary, and that the Maoris respected them during the war. The Bishop declared that he afterwards found 140 sheep “more than he expected.” The charge of supplying sheep was set aside. That of giving food was more colourable. Matutaera, the king, had taken food at the station. Tarawhiti declared that he had no quantity of food to give. He
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received but £20 a year from the Bishop. If his store had been large he would have given it. “Let the food perish, so that I remain alive.” The Court pronounced that “alone as the claimant was among rebels in arms” it could not reasonably be supposed that they would have abstained from supplying themselves, and that submission in such a case was, according to Sir Michael Foster, not criminal. There was one charge made by Mr. Mackay which was withdrawn by counsel. Tarawhiti was arraigned for attending the death-bed of Te Whareupu. Commenting on the graceful withdrawal of the charge by counsel, the Court said that Mr. Brookfield “doubtless recognized, with the Court, in the conduct of Tarawhiti the same Christian sentiment which induced the Commodore to send thither his medical advisers.” After a careful summary of the facts the judgment concluded thus: “In the judgment of this Court the Crown has failed to prove that the claimant has done any of the things mentioned.… It was the hope of the Court when the case was closed that the Crown Agents, having discovered that the circumstances which appeared to them suspicious had been disproved or explained away, would have gracefully withdrawn the whole of the charges, and admitted the right of this claimant to the compensation which the Legislature has provided for loyal citizens whose property has been taken under power of the New Zealand Settlements Act, 1863. This course was not taken. The Court therefore feels itself called upon to conclude by adding that the Rev. Heta Tarawhiti leaves this Court with his name untainted as a loyal subject of Her Majesty, and with his character high in our estimation as a good and courageous clergyman. We are unable to see in the matter before us any grounds of reasonable suspicion even; and the Court is entirely at a loss to discover any grounds for the remarkable pertinacity with which Mr. Mackay has pushed this case, nor can it refrain from expressing its surprise that that officer, on the occasion of the second adjournment, refused the very reasonable request of Mr. MacCormick, the counsel for the claimant, for a statement of the charges against his client.” It was added that the case was the only instance of its kind which had come under the experience of the Judges present. The judgment of the Court must have given unalloyed pleasure to many, but to none more
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than to the good Sir
William Martin, the personal friend of Tarawhiti.
A case tried before the Native Lands Court in 1869 may be selected to illustrate its working. The anachronism of inserting it here will be outweighed by the convenience of placing it in juxtaposition with the Oakura and South Waitara investigations. In 1869 a cloud loomed at Wanganui. The Rangitikei tribal dispute about land, which had so often been before the Government, seemed about to burst into war. The General Assembly, fearing to take a wrong step, had taken none at all. The Ngatiraukawa were the stumbling-block. Warlike, but friendly to the English, they were now brought almost into collision with active allies of the English, Hori Kingi, Rangihiwinui, and others. In July, 1867, Parakaia te Pouepa, a Ngatiraukawa chief, petitioned the Queen. He asked that some competent person might be sent from England, “to give life to the tribe,” and raise up the treaty of Waitangi, which the New Zealand Government was “trampling under foot.” The demand of the tribe was that their claims might be judicially investigated; but the Government refused to bring the disputed title under the operation of the Native Lands Court. Other chiefs sent similar petitions to the Queen. The case was complicated, and furnished volumes of reports, and yet, in 1868, the New Zealand Government had arrived at no decision, and would not apply to it the test of law. In 1866, the Native Minister drew up for Sir George Grey a statement as to the facts, which a subsequent decision of the Native Lands Court controverted. He assumed that the Ngatiraukawa tribe had rights which, on examination by a Court, were found wanting. Whatever the titles to the land might be, it was found that search would have to be made so far back as Rauparaha's invasion of the southern regions of the North Island. The Court had to glance at the history of half a century. Colonel Wakefield, in 1839, for guns, tobacco, beads, fish-hooks, apparel, and gunpowder, had procured signatures to a deed which purported to make him lord over islands, bays, streams, forests, and mountains in the Manawatu district; but it was palpable that many potential signatures were absent, and in the description of the land, territories were included which the signers had no intention to convey.
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The company's claim was condemned by Mr. Spain in 1843. In process of time the Crown acquired land in the territory, and Maoris gave to Europeans irregular leases, from which the Ngatiapa and Rangitane tribes derived the principal profit, though the Ngatiraukawa and Muaupoko received a share. The death of Taratoa, a Ngatiraukawa chief, who counselled moderation, threatened to embroil the three tribes. The Ngatiapa relied upon the friendship of the Wanganui tribe, without whose support they could not war against the powerful Ngatiraukawa. To avert a fray, Dr. Featherston, in 1863, was commissioned to mediate between the tribes. Arbitration failing, a suggestion was made by the Ngatiawa and Rangitane that the Crown should buy the disputed land, and distribute the purchase-money equitably between the tribes. The Ngatiraukawa held back for some time, but at length a majority, led by Ihakara, consented—a section of the tribe still refusing to accede to the terms. There were meetings in April, 1866, which lasted for days. A deputation of ten chiefs of the other tribes prevailed on the Ngatiapa to agree to terms. The purchase-money was fixed at £25,000, each of the two large tribes receiving two-fifths, the petty Rangitane receiving one-fifth. But many delays intervened before, in December, 1866, the money was paid. Petitions and meetings were numerous. The Government intended to reserve a per-centage of the proceeds of land sales, to content, if possible, the recusant section of the Ngatiraukawa. Parakaia still advocated an appeal to the Native Lands Court. An English traveller, Sir C. Dilke, saw a meeting at the Parewanui pah in December, 1866. A thousand Maoris were there armed. The heralds summoned them as the Greeks were summoned on the plains of Troy. The traveller wondered at the resemblance of the runanga to the Homeric council. Though the disciple of an unheroic school, he saw, in Hunia te Hakeke, the Achilles; in others, the Nestors of the Maoris. “The Argive and Maori leaders are one in fire, figure, port, and mien,” he said. At one time Hunia seemed about to strie a Ngatiraukawa chief, but the genius of wisdom at the last moment stayed the hand of the dusky Achilles. The meeting ceased when the bell began to toll for evening prayer. Sir C. Dilke had been told that there would be no blows, but was full of doubts when Hunia
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and Karanama poured upon one another a torrent of Homeric abuse. A day intervened, and the chiefs, at the close of it, consumed the night in solemn conclave. On the following morning the runanga was resumed. Hunia, having prevailed in private, was gracious in public. The sale must be completed, lest the world be “set on fire by intertribal war. What is the good of mountain land? There is nothing to eat but stones. Granite is a hard, but not a strengthening, food; and women and land are the ruin of men.” Again there was oratory mingled with bardic rhymes interwoven with the words of the speakers. The deed of sale was borne to the flagstaff by Hunia and Ihakara; friendship was sworn, and the deed was signed by hundreds of men and women. Rangihiwinui rode with Dr. Featherston to Wanganui for the purchase-money; and grief came over the quiescent at the camp. The wife of a chief chanted a lament, whose burden was that nature was still gay, the sun would shine, the trees would bloom, the fruit of the earth would be found, but the Maoris would melt away from the homes of their fathers. Hunia postponed the payment of the money till the following day, so that the sun might shine upon the deed. When it was done the war-dance was performed, and the ensuing feast was prolonged until the following morning. Hunia said, and Sir Charles Dilke believed, that all dispute was ended. The chief, generously assuming that every Englishman was loyal to his Queen, charged the visitor to tell her that the Maoris would fight for her. “My cousin Wiremu died fighting for her. As he died, we will die if need be—I and all my chiefs. This do you tell our Queen.” The Englishman could admire the “noble eloquence and singular rhetoric art” of Hunia; but it is probable that, if the chief could have foreknown the unchivalrous terms in which his auditor was afterwards to reflect upon the Queen in England, he would have poured another kind of eloquence into his ears. But even the Parewanui meeting did not allay doubts and strife. A section of the Ngatiraukawa still demanded inquiry. “Let the Land Court try their rights.” But the Governor's advisers shrank from the test. The Native Minister, Mr. J. C. Richmond, reported in July, 1867, that the case was one of “compromising and insoluble quarrel between half-civilized men,” whose titles all
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rested on recent violence, and who were ready for fresh violence as a last resort. The policy of the Government was to allow considerable delay in winding up the transaction, in order that as many as possible of the malcontents might be brought to agree to it. Governor Grey had tried his eloquence in Maori tongue upon Parakaia in 1866, but in 1867 was requested to forward petitions to the Queen, asking for justice to Parakaia and his tribe. He wrote, in August, 1867, that he would himself have wished to submit his claims to a Court, whose decision might teach the Maoris to submit all disputes, however complex, to a judicial tribunal. On the other hand, the Ministry urged that any decision would be challenged by the losers, and might provoke strife. As the local government had become responsible for the peace of the country, it would be difficult to interfere with their views, and as the case had attained notoriety, Sir George Grey thought it improbable that injustice could be done. The Maoris, by petitioning the Queen, had shown that they understood their rights and the constitutional means of defending them.
By an amending Act (1867) the Governor was empowered to refer to the Court the claims of the natives who had withheld their consent to the sale of the block, and in process of time the Rangitikei-Manawatu claims were submitted for judgment. Sir George Bowen, in reporting the result, declared that it seemed to be generally agreed that their previous exclusion from jurisdiction had been unfortunate. The Chief Judge, Fenton, presided. A few Maori policemen were the preservers of order. The Attorney-General appeared for the Crown, and eminent counsel spoke for the petitioners. Eighty-four Maori witnesses were examined. The trial lasted 45 days. The wars and conquests of Rauparaha; the rights lost and won; the revival of the claims of restored warriors; the resistance of those claims by others, for whom obscena pecunia mingled its charms with alleged Maori customs;—all these matters were before the Court. Tamihana Te Rauparaha, son of him into whose thoughts the proverb said it was hard to dive, appeared as a witness. The Pakeha Maori, F. E. Maning, delivered the final judgment of the Court at Wellington on the 25th September, 1869. It coursed over fifty years. The Ngatiapa tribe were once possessors of the land. About 1818, Rauparaha, with
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fighting men of his own (Ngatitoa) tribe, suspicious of the growing power of the Ngapuhi, whose acquisition of fire-arms threatened to gratify Hongi's lust for empire, induced some Ngapuhi warriors to accompany him, with their dreaded weapons, to the south on a tour of conquest. From Kawhia, carving his unchecked way, he passed through the forests (through which General Chute in later years was to march), ravaging, as he reached it, the territory of the Ngatiapa, who eluded the terrible fire-arms, and sought fastnesses in the hills. Conquering at Otaki and Cook's Straits with Maori ferocity of triumph, the wily chief looked round for means of retaining what he had seized. The Ngapuhi, with their fire-arms, might wrest from him the territory he had gained by their aid, unless he could fortify himself by new alliances, and place between Otaki and the distant Ngapuhi a cord of allies. “It is pertinent to remark,” said the Judge, “that Rauparaha, famous for wiles and stratagems, either conquered by force, or made tools of by policy, or destroyed by treachery, almost every one he came into contact with.” He established amicable relations with the Ngatiapa on his homeward route. He dismissed the Ngapuhi warriors from Kawhia with gracious words and presents, some prisoners being thrown in to flavour their banquets or to attend them as slaves. Having parted with his dangerous friends, he collected his tribe for a migration to his southern conquests; and, to create an additional barrier against invasion from the north, invited the Ngatiraukawa tribe to settle on some of his new territory, to which he himself proceeded after his conquest. In separate bands, from time to time, the Ngatiraukawa under the leading of Whatanui complied with the invitation. As they passed they killed or captured straggling members of the Ngatiapa tribe, whose sagacious war-chief withdrew the main body of his people to the hills, anxious to give no cause of quarrel with Rauparaha, with whom he had so recently made friendly arrangements. The Judge pronounced that no acts of these roving Ngatiraukawa, whether of killing or enslaving, gave them any rights according to Maori usage over Ngatiapa lands. The paramount chief Rauparaha would not object to such atrocities so long as none of his own particular tribe, the Ngatitoa, were involved. Neither would the Ngatiapa conceive that the
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ravagers were exceeding the bounds of Maori usage. They would reserve to themselves a right to retaliate if they should become strong enough. They were neither conquered nor looked upon as conquered. The small Rangitane tribe, whose own lands were adjacent to those of the Ngatiapa, were interfused with the Ngatiapa tribe when the scourge of Rauparaha's first raid swept the land. On his second journey these Rangitane, weak in the field, conceived the idea of destroying the terrible conqueror by stratagem. They nearly succeeded. Almost all the companions of Rauparaha, and four of his children, were slain, but he eluded the fate prepared for him. He never forgave the Rangitane. With others he made peace. He encouraged the Ngatiapa in procuring fire-arms, and ensured their aid as a barrier against possible invasion from the north. But the Rangitane he followed with bloodhound tenacity. He slew their fighting men, and made their name a memory on the land of their fathers. For a time they disappeared as a separate people. But within the bounds of Ngatiapa territory, near to their hereditary and ravaged homes, they reappeared as half-castes, or children of intermarriages between Ngatiapa and Rangitane, and became entitled by Maori usage to the privileges of their hosts. About 1829 the Ngatiraukawa immigration was complete. Kapiti, Waikanae, and the neighbourhood, were the principal homes of the Ngatiraukawa, while under Rauparaha's advice they cultivated flax to exchange for fire-arms with European traders. Subsequently he apportioned other lands to them, but no evidence was produced to show that he made grants to them within the Ngatiapa boundary. To have done so would, according to Mr. Maning, have been inconsistent with Maori usage. The Ngatiapa were allies whom he was strengthening. The land between the Manawatu and Rangitikei rivers was theirs, by ancient tenure, and by his own friendly recognition. But after 1835, three “hapus” of the Ngatiraukawa tribe were proved to have been found settled between the rivers, in friendship with the Ngatiapa, owning lands, sometimes in homesteads under Maori usage, sometimes jointly; aiding in war expeditions, and, as witnesses averred, “eating out of the same basket” with the Ngatiapa. The claims of the petitioning Ngatiraukawa, were—1st, that the land conquered by Rauparaha was
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given by him to the Ngatiraukawa tribe; 2nd, that failing proof of right by conquest, they claimed by any right accruing to them, whether by occupation or otherwise. The counter-contention was, that the Ngatiapa were not conquered, that as a tribe the Ngatiraukawa had no right or interest in the land, and that the Crown had purchased the land from the rightful owners. The judgment—was that Rauparaha had not made a grant of land north of the Manawatu river to the Ngatiraukawa; that he had given land on the south, and that the grantees, in the language of one of the witnesses, “stretched the grant of Rauparaha, and came over the river”; that the Ngatiapa, much as they valued land, valued fighting-men more, and welcomed the three “hapus” who were found settled north of the Manawatu; and that the guests, thus received, acquired, by Maori custom, well-known and recognized rights in the soil, constituting them owners along with the Ngatiapa tribe to the disputed lands. The Ngatiraukawa, as a tribe, were found to have no right or interest in them; but the rights of sections of the tribe were recognized by the issue of certificates of land as follows: To thirty-seven named members of the Ngatikauwhata “hapu,” 4500 acres; to five of the Ngatikahoro and Ngatiparewahawaha “hapus,” 1000; to twenty enumerated chiefs, 500; to one named chief, 200—as marked in a survey-plan before the court.1
The Rangitikei-Manawatu case affords a good example of cases brought before the Native Lands Court. The Chief Judge thought that the Court had “settled cases of much greater intrinsic difficulty, and possessing far more powerful extrinsic
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obstacles, and had never yet, even at Taupo, had a decision disputed, or obedience delayed.” Whether he undervalued the difficulty of the case or not, his testimony as to the acceptance of decisions by Maoris gives further proof, if proof were needed, of the folly of the Government in refusing to allow the Waitara case to be tested by law. It must be noticed also that in recognizing the rights of “hapu” settled by permission on Ngatiapa territory, the Court affirmed that Te Rangitake would have acquired positive rights at the Waitara block by his settlement there, under tribal sanction, even if he had had none before.
It deserves to be mentioned that shortly after the delivery of the judgment in the Manawatu-Rangitikei case, Donald McLean entered into friendly relations on behalf of the Government with the Maori king. There were still some members of the Ngatiraukawa tribe who strove to resist the survey of the land. One Meritana1 was sentenced to imprisonment. King Tawhiao showed his good faith to the English, and the reality of his office among the Maoris, by directing the Ngatiraukawa tribe to abide by the decision of the Lands Court. The surveys were peacefully resumed and a free pardon was granted to Meritana.
The reader may here be reminded of two important cases in which the judgments of the Lands Court have been interwoven in these annals; viz., the Orakei case which explained the convulsions of the Auckland tribes before and during the wars of Hongi, and the Te Aroha case which resulted from the wars of Waharoa the father of the king-maker.
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