THE ORAKEI CASE. INTERLOCUTORY JUDGMENT.

Daily Southern Cross, Volume XXIV, Issue 3572, 30 December 1868, Page 4

THE ORAKEI CASE. INTERLOCUTORY JUDGMENT.

Thb following is the first part of the very important judgment delivered by Mr. Fenton, Chief Judge of the Native Lauds Court, in tht case of the claimant* to Orakei Thii ii a cue in which Apiiui te Kawau, on behalf of himself and the members of th» tribes Te Taon, IVgaoho, and T« Uringutu, claim* a certificate of titi« to an estate at Okahu, on the shores of the Waitemata, containing about 700 acies. ! fleteraka Takapuni, on behalf of himself, as a j remnant of the ancient possessors of this isthmus, and on behalf of himself and the tribes Ngatipaoa, Mgatimaru, Ngatiwbanaunga, and Ngatitcmatera appears as a counter-claimant. Hori T«urof,ou behalf of himself) Abipene Kaib.au, and Matene Raketonga, members of the tribe Ngatiteata, appears as a co-claimant, not denying the title of the claimants, but asse.'tiog a right t) come in along with them, through ancestral relationship and* occupation. Paora te Iwi, of the tribe Ngatitamaoho, gets up a similar right on behalf of himself. Wiremu te Wheoro, of the Waikato tribe Ngatinaho, and Hawira Maki, of the tribe Ngatipou, assert similar rights on behalf of themselves. AH the counter-claimants seek only for a partition and a share in the estate along with tho claimants, except Hetaraka Tikapuna, who denies the title of any person except himself and those who claim under or with him, though this extreme position was not taken by hts counsel. I will here mention that I propose to use the name of Okahu as applying (generally) to the whole estate ; the smaller names such as Wakatakataki, although necessarily used m tho evidence, may be dropped in this judgment. I intend alto generally to use the first person in expressing the opinion of the Court, simply for the convenience of dictioo, but I should add that in all points the Ansessor entirely concur* with me. It is desirable also that counsel should be made aware that he understood their addresses as they were delivered in English, although, as he expressed himself, he would not have been able to reply to them in that language. There are a few points brought under the notice of the Court by the several counsel which I will notice here before proceeding to treat the merits of the case itself. 1. It was with great regret that I obierved that flori Tauroa, who sat as an Assessor in the previous case, where the parties were substantially the same, appeared as a claimant in this. Nothing can be more obj actionable, and more repugnant to proper sentiment, than that an interested person should sit as an administrator of justice. Of course, such conduct cannot pass unnoticed, and it will be my duty to ask the Government to advise his Excellency to remove Tauroa from the list of Assessors. But although the confidence of parties must necessarily be shaken in the decision which was given in the previous trial, it does not appear to me that the present proceedings can be in any way impeached by this malfeasance. Of course, he now comes before the Court with an antecedent prepossession in my mind against his perfect integrity — a prepossession confirmed by a passage in his own evidence where he says, " Hetaraka's claim is as good as mine," although he decided against it, and now urges bis own. 2. Many references were made by witnesses as to the doings of Captain Symonds, principally for the purpose of fixing dates. As it appeared, in the course of the case that there were two gentlemen answering to this description who were not often distinguished by the witnesses, the Court is deprived of the assistance which it might have derived from the known and attested facts connected with them which it might have obtained if the Christian uames of each had been known and given. 3. The learned counsel for Heteraka drew my attention to an inconvenience — a hardship iv fact, as he put it— under which he felt himself to be labouring by the rule of Court which regulates the course of proceedings. I have given tbe subject some consideration, and cannot couvijee mybelf that there would be in reality any injustice in a ruin which would in fact merely give the person in possession the advantage of being in the position of a defendant in an action of ejectment in the Supreme Court. But Mr. Gillies thinks that the rule goes further than that, especially in the matter of addresses of counsel to tbe Court. It was not in the power of the Court to alter it, and I do not thiuk, however, that any substantial failure of justice has taken place in this case from this cause, for after the lengthened inquiry that has taken place, and the very complete manner in which the cases on all sides were placed before the Court, I cannot suppose that any alteration in the course of proceedings would have affected the result. 4. Much time was occupied in cross-examination, tbe object of which at the time it was difficult to perceive. For i stance, Mr. Hesketh used much labuor and great xlrill in endeavouring to upset Apihai's alleged possession from d*trs anterior to the coming of che first Governor; and Mr. Mackay, in Mr. Gillies'B absence, cross-examined at considerable length, to prove or disprove descents from Potukeka, also induced the Court to recall a witness for the purpose of showing the political status of a rahi or pahi, and the distinction between them and common mo >ai or slaves. I did not interrupt these gentlemen, trusting in perfect faith that they would show the Court, when the proper time came, how their own cases would be fuithered by the course which they were taking. But this was not done, and the Court feels that if Mr. Heakoth had succeeded in upsetting Apihai's claim he would in so doing, as Mr. Gillies observed in his opening address, have only produced the effect of entirely destroying his own case ; and tht matters referred to, as inquired into by Mr. Mackay, appear to have been irrelevant. I may add that lam quite at a loss to discover what bearing the history ot the mere pounamu called "Kabotea," which was investigated by Mr. MacCormiok, can possibly have in this case. I merely mention these matters as involving a painful waste of time. 5. There remains one more question for notice by the Couri, viz., the appearance of Mr. Mackay, a Civil Commissioner, as agent for one of the parties in this suit. At the first sitting of the Court Mr. Gillies applied for an adjournment on the ground that Mr. Mackay, who was instructing him, was absent, unavoidably detained at the Thames by important Government affairs, and said tbat he would be entirely unable to do justice to his clients in Mr. Mackay'* absence, and urged for an adjournment. On Mr. MacCormick opposing the adjournment, Mr. Gillies stated that, if the Court determined to proceed, his clients would be placed in such » disadvantageous position that he tthould consider it his duty to ask for a rehearing. The Court was of opinion tbat, if » rehearing were asked for, supported by the authority of Mr. Mackay, it would in all probability be granted ; and such a result appealed to be so unfortunate, not only as regards the great loss of time and expenditure of money, but also as leaving this agitating question for some time longer unsettled, that tbe Court thought the wisest course and the most advantageous one for all parties, under such circumstances, was, that the adjournment should be granted. At a subsequent stage of the proceedings, when Mr. Mackay was called as a witness, chiefly, as it appeared to the Court, to give Mr. MacCormick an opportunity of asking him any questions he might wish, that gentleman objected to his appearing, and argued on the ground of privilege. The Court decided tbat theprivilege was with Mr. Mackay and not with the suitors; that if he,called as a witness, stated on his oath that hi* giving evidence or producing papers would be prejudicial to the public service, the Court had no power to compel him to answer, but that the discretion to plead the privilege was with himself. la his concluding address to tho Court, Mr. MacCormick referred m a very earnest manner to the disadvantages under which he felt himself to be labouring by reason of Mr. Mackays appearance. He said that a Civil Commissioner, or any officer of the Government, had no moral right to use in a private suit communications made to him ia | confidence as a public officer ; that such a com so must be highly prejudicial to the Government, as tending to destroy the trust which should exist I between the natives and officers of the Crown, esptoially officers merely charged with tba management of native affairs. And he added that my mind was affeoted by his presence, as I had already shown by granting the adjournment ; and, although he felt sure that my judgment would not be influenced, he oonld not have the same confidence with respect to the Assessor, who was in constant communication with Mr. Mackay and lo ked to him as his superior officer, with power to influence his advancement or prejudice hia future position. It does not appear to me that the Court has any concern with the relations which exist or may exist between Mr. Mackay and the Government, or between the natives and Mr. - Mackay as an agent of the Government ; nor canl Mr. MacCormick have anything to complain of, unless (1 ) Mr. Mack ay hag dv closed matters entrusted to him in confidence by virtue of his position, to the prejudice of Mr. MacCormick'i clients ; or (2.) That th« conduct «f the Court is influsneedby

hit presence or affected by hit interference in tbflj private suit Tiie first in not alleged. The second wm hinted at »■ far aa concerns myaelf, and brcadly stated as far as the Assessor is concerned. Now, I am inclined to think that Mr. Uillies' view of human nature as it is found among Englishmen i* the more correct one. He appealed to the Court not to be too jealous about; the appearance « of the Crown officer on the ■ide of his olients ; npt, in fact, to keep too strict a guard againat Exeoutive influence, lest we should err on the other side ; but to decide si if there were no •uoh person as Mr. Maokay present. The letter of the Native Minister to a Judge of this Court, to which Mr. MacCormiet referred, has not, so far as my knowledge extends, in any way influenced, nor is likely to influence, the conduct of any Judge of this Court, and I cannot discover any grounds for entertaining the apprehension which Mr. MacCormick has expressed. Mr. Gillies re»d our common nature more truly. But there if another point of view to which I wish to direct th« attention of parties and their counsel, with reference to Mr. Mackays appearance and evidence. I gathered from his evidence that his clients were very powerful tribes, that they were excited about this conteit, and that ho bad, on the previous occasion of an adverse decision, restrained them from any excesses, and would endeavour, in case of another, to do so again. Now, without for a moment supposing that this information was intended as a menace to the Court, it struck mo at the time Mr. Mackay did not appear to have conttmplated a decision adverse to the other side, which represents tribes,»with their allies at Kaipara, Hokianga, and Waikato, equally powerful, and, possibly, equally excited. His influence could avail little with them, forth*y would regard him as a friend of their opponents, and a prime agent in their diioomfiture. Now, when I remember how, at a previous sitting of this Court, Ngatipaoa,his present clients, were defeated in a claim they mada to land on the other aide of Tamaki, and how effectively Mr. Mackay stepped ;in and made an arrangement which healed t&eir wounded feeling*, and made them part from their victorious competitors in perfect amity, and when 1 think of the great services he has rendered to this Court on other occasions when he occupied an impartial and, consequently, an influential position, I cannot but regret that, on this occasion, the Court cannot rely with the same confidence upon the efficacy of his intervention, for there are three parties to satisfy, and the decision must necessarily afford disappointment and loss to some of them. Therefore, although I do not think Mr. MaoCormick suffers by this intromission, and the Court nas nobbten "overshadowed by the Crown," yetlcwnot conceal from myself that the Court is not in tne position it ought to ocoupy with reference to the Executive Government ; and intimately concerned as its proceedings are, and unavoidably rouat be, with the peace of the country, my present mind w, tbat l (speaking as an individual Judge of the Court) shall decline ia future to proceed with any case in which the Crown's officer appears, either with or without reward, an aiwsting either of the suitors. The case has presented unusual difficulties, or, rather, the great value of the property has caused so much care and attention to be devoted to the preparation of the cases, that an appearance of intricacy and complication has been given to trantactionswincb, in tbemsislves, are clear and intelligible. When once the history of the case is understood, and those passages which really have no bearing on the questions to be decided are eliminated from the evidence, the great principles which have governed this Court in determining Maori custom, or the laws of native ownership of hnds. will suffice to guide us to a safe decision as to the effect of what remains. The history of this estate is very much mixed up with the history of this isthmus, and that *Bam8 am " almost an epitome of the history of N«jW Zealand durioe many years, for this was the highway of tha armies of the tribes in old days, and, whether going Noith or South, all war parties passed through or touched at Tamaki. For the sake of brevity and convenience, I hare condensed this part of the question into the form of a historical chronology, and 1 bave spent much time in preparing thiistatementin order that the judgment might be as short as possible, I cannot expect that all the dates and statements contained in this paper will be acknowledged as absolutely accurate, but I have got the best results I could from conflicting evidence, and in places where the statements seem to be contrary [to some particular evidence it must not be supposed thst I have'not noticed that evidence, but tbat I have preferred oome other to it. The land about this isthmus appears to have gone in early days under the general name ot Tamaki, though that name is now confined to the river and a limited district adjoining it. In early times the part of New Zealand comprised between lines drawu from Cape Rodney across to the- West Coast, and from Waikato to Tauranga, were in the possession of one great tribe, called, from their ancestor Oho, Ngaoho. As the tribe increased it seems to have divided itself, withoutany express compactor arr»n?«ment, but simply by the gradual operation of ordiDary causes, into scotiors, and thrse sections m the same unmarked *nd g>adual manner btcame the possessors or persons especially eutitled to res>de in par1 ticular and partially defined sections of the original great tribal estate. These sections of the Ngaouo [ came to be distinguished by names taken or acquired ' from different origins. Those which have been 1 brought to notice in this trial are Ngaiiki, Ngaiwi, and Ngaoho. Ngariki inhabited chi-fly tha land '' about and to the south of Papakura, Kgaiwi the 1 interval between Papakura and the "**<»■ ° l ' Waitemata, and Ngaoho to the north of Waitenuta, . in the direction of Kaipara. At a later period Ngaiwi : divided itself agaia into Ngaiwi aad Te Waiohua, and 1 a species of half.recogoised boundary seems at a still later period to have existed between them at the canos portage of Otahuhu, half of the peninsula of 1 Mangere and Ihumatao being attached to.tbemortherly ' sub- division. Bub Ido not think that this territo- ' rial division was evsr distf .ctly laid down and agreed 1 to, but there was a sort of understanding that that 1 portion of the tribe who looked up to Hua (the origin 1 of the name) who lived at Manj{akiel<i« (One-tree 1 Hill) and Mangere, and who inhabittd the country around tbat place, should continue to live there, and ' should be called Waiohua, and thoae who remained k in the southern part of the district should continue 1 to be called after their ancestor Ngaiwi. But the names nevar had any definite meaning, and a person 1 was still described by both names, or by either of them indiscriminately, and the territorial under- ? standing carried no evidence of "ownership," for, L in those daye, the idea of ownership of land, or oJ 1 anything else, except slaves and other movable pro1 petty, did not exist. ? As these original tribes became mixed up with in j trading tribes, new namts arose, such as Te Aua, I Te Akitai, and many others, and the long inhabiting a particular piece of land by a particular tribe graI dually grew into a right of possession, which was . recognised as long as the tribe was strong enough to l protect their persons from hostile attack, without fleeing from the land to the protection of other tribes, ! or to the concealment of tht mountains. 5 Thus at the opening of our history we find that t tbe part of the Tamaki district to the north of Ofcahuhu portage, including part of the Mangere penin- \ sula, was inhabittd by a tribe called Waiohua generally, but still bearing the name of Ngaiwi. ! The northern section of the Ngaoho, who seem to b have retained their original name, were at the same time gradually amalgamating at Kaipara with a t conquering tribe from the N ortb, called Ngaririki, I subsequently called Te Taou, and the original name t of Ngaoho disappeared in favour of the name of the I intruders. At a later period (detaUed hereafter) i when Te Taou invaded this country and conquered the Waiohua, tbeir chiefs intermarried with the 1 women of the land; and their offspring, at the sugg estion of Awarua, one of the chief of them, revived L the old name of the original tribe, and the doubly mixed race appear again as Ngaoho, beinf in faefc I Ngaoho the Second. Others of the remnants of the t nearly exterminated people of Tamaki gradually returned from their concealment, or t the abodes of the Waikato tribes, whither they , had fled for protection at the tima of tbe conquest, t were received into the conquerors* tribes now resi- , dent, *nd this "colL-.ction of remnants," aa oW of , the witnesses called them, received tbe name of Te t Unngutu. Apihai te Kawau by intermatriages of his ancestors on all aides in now the chief of these I three tribes Te Taou, ■ j>aoho (the Second), and Te , Uringutu, and on their behalf is the claimant in this suit. The pure Te Taou, i.e., the descendants of , tbe Kaipara tribe Ngaririki from their intermar- \ riagea with the original Ngaoho ( Ngaoho No. 1), have j a chief of their own ( Tautari), and are not altogether j without jealousy of Paul and other descendants of t the mixture with Ngaoho No. 2, but they look up to . Apihai as their head chief, for he is, as Sir Walter Scott describes a Hjghland_.ohief, "tbe man of r many cousins." _ _ t Tbe Ngatiteata and Ngatitamaoho, Ngatinaho, . and Ngatipou are inhabitants of the southern or E western sides of Manukan, and the r«snlt of interj marriages of Waikato tribes with the southern portion of the great original tribe Ngaoho. The Wai1 katos intruded from the South in precisely the same > manner, though at different periods, as the Taou did from the North, thongh in my judgment Maki and r Ngatipou would be more fitly uaoln<UWLamoogst.tin

Unn^utu tl.*a in tube* thai! Lair© come to be r*> girded m almost purely Waikato 1 . Heteraka Tak«pun* is * member of threw tnbetV Ngaiitw, JMgntikahu, and Nx»tipo»Uol»»li», an* claims also to be descended /rom tht WaioHna ; and whsther this claim is made «ut, or flwhether he and 1 hii co-claimants (the Thames tribes) have, by their ancestors or themselves, ever intruded, themselvesi into this country, is ono of the principal subjects of this inquiry. PEDIGRKS. It will be at once apparent that the pedigrees of the. suitars will be a matter of ({reat importance ia determining the questions arising in this trial. Mr. Gillies expresses an entire disbelief in tb*mj ibinka that they are of no value, and, in fact, neither genuine nor authentic, but are made up or compiled for each case at it comes on. Now, it is obvious that the Court must express a decided opinion on thM question generally, for it hci been largely imported into the evidence of many of the wittusses. This Court has no common law to direct its step* by; in fact it has by its own operations to make its conmonlaw, and to "rtablish •• year-books " which may in the course of time afford a code of law ta which "appeal may to made for guidance in.decidiog all question* which. may come before it. And it has been, the practice of this Court hitherto to inquire into pedigree*, giving them such weight as they seemed entitled to from their intrinsic merits •in each case. The I"*!* 1 principle which should; govern* the Court ai to>l>tdi» greeswat laid down in » previous case:— "They must be revived, not for the ipurpoie of deciding tribal estates, but for the purpose of determining members of tribes." It is, no doubt, almost beyond the> powers of members of a civilised race, 1 who, possessing written documents, are-i not required and are little accustomed to trust facts of importance to th«ir memories, to believe that any person can remember from tradition a whole family, with all its branches, for, twenty or even ten generations back; but, in my experience a> a Judge of this Court* I have received peditprees which I have compared with, pedigrees given sometimes by the same witness, sometimes by others, at other Courts, at distant period* of time, and hare found the general concord perfectly astonishing. Now it appears, to me that, if the natives generally admit these pedigrees, and themselves largely found on them their right, as members of a tribe, to join in the tribal estate, it ia strictly according to native custom tbat' this Court should entertain them *s aids in discovering the owners of properties, of course subject in all casea to the more visible and important facts of occupation or possession. Even if these pedigrees are all "amass of invention," and the whom therein aro purely fictitious, their general value is not in my judgment affected if all natives agree to have their; claims to a certain extent decided by them. Th« reception of them, under such circumstances, has not only convenience to recommend it, but safety also, and the knowledge that in so doing the Court is best consulting natire feelings or prejadices, and native manners, and consequently is best interpreting 11 Maori custom." In ear case, all the patties put in pedigrees, Mr. Hesketh almost entirely relying upon them, for the acts of ownership or occupation proved by his witnesses were (with one exception) of a very trivial character; and Mr. Gillies*! client Heteraka Takapuna made three starts at his pedigree to connect himself and his friends with Waiohua, and evidently felt so aaxious about tha question that at the close of the case he made an application to be re-called in order to put in another. The Court does not therefore propose to depart from its precedents, but wi", for tht purpose laid down in previous Courts, give such weight J^™* pedigrees as it thinks each is entitled to. And I may here state that after much investigation and thought I have not discovered any reason why any of them should be discredited— several little discrepancies, such as putting dowm Huakaiwaka as a woman and speaking 'afterwards of him as a man, not to my mind affording any gronnd for supposing that a person of that name never really existed, or for doubt whether he or she really occupied tha allotted place in the pedigree. I have, from the evidence, drawn out'tne pedigrees attached hereto, and will, in this judgment* allude to them hereafter when necessary, as evidence. kawbtawa's conqumt. Heteraka Takapuoa founds his title and that of his co-claimants, the Ngatipaoa and other Thames tribes, partly on Waiohua ancestry (to be noticed hereafter), and partly on a conquest made by their anceitor in days long gene by. He says, " Kapetawa is the ancestor to whom this laud belonged. Thia is the only conquest alleged by them ; and it will, therefore, be proper to inquire into it particularly. Countine baok by generations this conquering ancestor (Kapetawa) must have been cotemporary with Hua, the Ngaiwi chief, who live* at One-trte Bill and Mangere, and as the name Waiohua thtn had its commencement this part of the country must have been pretty thickly peopled. Indeed, when one looks at the enormous earthworks surrounding Mount Edeo, One-tr*e Bill, and all the tolcswjo. hills of this district, and recollects thechara-ter of the tools with which they were constructed, there can be no doubt that the people who built thena can nelt*er have been few in numbers nor sparsely settled. The came people seem also to have occupied Waiheke and the islands of the Gulf, and possibly down the shore* of the Waitemata to the Firth of the Thames. At this time the Thames tribes seem to have been living on the Firth of the Thames and up the Thames; Valley to florotiu and RaDgiawuis, and perhaps further west and south— for iJotereue Taipari told us that the ancestor of those tribes, Mamtuahn (whence the name Ngatimaru), lived at Kawhia; whence they worked their way across the Waipaand Waikato plains, and ultimately down the Thames and Piako ; aud then gradually spread eastward and northward. At a late period of their history we find them living at Mangatsutari, and we have many witnesses who tell us of their final expulsion from the Waikato Valley by Waikato, under Te Waharoa and PotaUu. And Taipari adds ;— " At this time. Te Waiohua owned all this land. We Ngatimara were on lands tbat did not belong to us. We were* living south of Kauaeranga, on the lands of Ngatlhuarere and Ngatikorowhai." And Heteraka stated that the pa at Orakei captuwd by Kapetawa wa» built by Ngatihuarere. Possibly the two •vents may have some connection with each other. At the time of tbip conquest, then, wmo of tbt> Thames tribes were living at hauraki, rear tha mouth of the Thames. The cause of the war <va< as follows -.—About ssven generatidps ago, Taraknmikumi, a man who is alleged to be * Waiohua, though gome what unaccountably his brother (Kapet*w»'e father) is stated to be a Ngatipaoa, was living in a pa near Or»kei. His brother's son was Kapetawa. Tarakumilcumi married Kapetawa's sister, ie., bis own niece. The uncle and the nephew went out one day to fish aear the Bean Kocks, and the uncle took the nephew, then a boy, and put him on the rock at low water, and left him. As the tide advanced, his mother from the shore beard his screams, put off in a canoe from Kobimarama, and rescued mm. Kape4 tawa cherished the remembrancs of this affront until he grew up, when he raised a war party of NgaW paoa, and attacked his uncle in the pa at Orakeu This pa was taken, and another at Kohimar*mav, and many people killed, but Tarakumilmmi asoaped. Kapetawa, thinking his utu insufficient, pursued Tarakumikumi to Waiheke, where he finally wipe* off his early insult by killing him and life wife and children, and, then pursuing his successes, took many pas and killed many people. He settled at Waiheke, and the title of his descendants haa been recognised to a portion of -land at Pntikl, founded, it is suggested, on this eonqwt. JSow, it is abundantly dear that this alleged conquest is nothing but a raid made for revenge. U Kapetawa had extended his views, and followed up his successes at Orakei, by taking possession of tht land, and with his descendants permanently aettlinf there, they would, doubtless, bave acquired a title, bat nothing was further from his thoughts. Tarakomikumi had escaped him, so the chase wm* newed, and when at length he came up with him and killed him he quietly nettled down wbefjhm was, and (as far as the evidence goes), giving no for* ther thought to Orakei. ended his days in peace in his »ew acquisitions in Waiheke. - And this inroad into this district could have made no permantnt impression, for we find at • -later period the country fully peopled, and Kiwi, chief Of the Waiohua, the tribe allege* to have been destroyed by Kapetawa, living at Mangakeikei (OnetreafliU), and sounding a big gong to a nnmerou. people who lived there, and bad places of strengtli on all the volcanic hills of the country, besides pas at Kohimararoa and Taurarua, at the former of which places Kapetawa is alleged to have e xtermi, nated the original inhabitants. And at a later period of our history, after Kiwi had been killed, we and a populous pa at Te Umuponga, Orakei ; and we are .told of the .©ntinel. singing tbeir, aongs en the ramparts of Kohimarama as Ngatiwhataa advanced to the assault. It does not appear to me that this inroad of Kaps> tawa should be allowed to hate any^ weight, in determining the question of ownership of any land, .except perhaps that portion of Waiheke whereto settled. The history ha* Jh* oharaetesiitissi

of the inroad of Chevy Übase, except that the re»ulfc was more fortunate to the aggrenor. 1720.— Kiwr.

Aboub the year 1720, a great chief of WaioW or Ngaiwi is found living in strength at One-tree Hill, where he had a pa, the trenches of which may be teen to thi*day. fli« people held pas or positions of defence, formed by, largo ditches aod protected by Stake*, and in some places by stone tthUs, at M»ngakiekie (One-tree Hill),Mangarei (Mount Wellington), ' Mangete, lhumatao, Oaebunga, Remuera. Omabn. near flemuera, Te Umuponf?a, at Orakei, Kohimaram*, T.owrua (Judge's Bay), Te Io (Freeman* , Bay), Rarotonga (Mount Smart), Te Tatua (Three Kings), Owairaka (Mount Albert), aad other plac-s In facr, he appears to hive held undisputed p« ssension of the whole country from the T«unaki river to Te Whtu, and stretching from the Manukau to the Waitemata. But piospenty and power appear to have made him treacherous and overbeariMp to his neighbours For we find about the year 1740, at a f«a»t *t Waituoru, Kiwi, astiated by le Kaugikaketu, the great-grandfather of Heteraka, •urpriied and treacherously murdered thirty of the tribe Te Taou ; and about the same period ho murdered, at Mimihanui, in K*i|>ara,Tahat«hi, the Miter of Tuperiri, a chief of Te Taou, and grandfather of Apihai (the claimant), atd other members of the tribu. We are also told by Hotereoe Taipari that Kiwi's people,murdered Kahurautao, an ance-otor of Vgatimaru, "a different man," he adds, from the ancestor in "Hetaraka'i pedigree ;' aod about the same time Kiwi or lria people treacherously killed Te Hunt »nd Taura, of the Ugatiwhatua tribe, in Kaipara.

CONQTXBST OF WAIOHOA BY T« TAOU. . At length.the Kaipara tribes took stepi to avenge the slaughtered thtir friends, and about 1741 an army of TeTaou, und«rW»b»akiaki and other chief*, descended from Kaipara to Manukau, crossed the Heads in the night time in caofoes made of rushes, and stormed Taratana, a p* of Te Waiohua or Ng«iwi, to the south of Awuitn, and slaughtered the people in it. ; The tauatheo raturned and attacked Pukeborokaton, a pa to the-north of Awhitu, but met with a repulse, and re-croised Manckau. Heads. Kiwi assembled ' all hU people from One-tree Hill, Mangere, Ihumafcao, Moerangi, and other pas, and a great battle earned at Poruroa (Big Muddy Creek). The Waiohua were defeated with iinmente slaughter, 30 being destroyed in one canoe, and Kiwi was killed. One-tree Hill and all the pas in ihe neighbourhood were de«erted by the vanquished, and taken possession of by Te Taou. The remnants of Out Waiohaa assembled in their pa at Mangero and tntdo a final «tand, spreading shells on the paths approaching to the p-», so that the sound of their being crushed might give tha alarm in case of a night attack. Te Taou advanced under Taperiri another of their chiefs (Apibai'a paternal grandfather), spread their dogskin mats orer the shells, assaulted the pa, andiSok it by inrpriie. The whola of the people Inside irere killed or finally dispersed, eroe^fc toma yr^man and a few men who were spared, amongst whom was Paerimu's grandfather.

CAPTtTBI OP KOHIMARAMI AND Ti.UBARUA. Two months after the p» of Hangars fell, the Ngatiwhatua, another tribe of Kaipu-a, to which Te Taou were related, collected lb»r forces to avenge (the murder of their friends Te Hum and Taura, and moder their chiefs T«kaae, Te P-hi, and Raor&o. whaina, p issed over the isthmus of Waikoukou to Pitoitoi (Urigham's Mill), and, sailing down the "Waitemata, assaulted and took in one day the pai of Kohimaram* and Taurarua, held by Waiohua under J-heir chiefs Hupipi and Humataitai, twin brothers. Altet destroying all the inhabitants, Ngatiwhatua returotd to Kaipara, leaving the fruits of their victory to b* enjoyed by their friends Te Taou. Thas ended thi* «pi«ode in the hi*i<yy. Te Waio. hua wrro extirpated at a tribe, and individuals only existed in a subject state, or as wiyes amongst the conquering Iribe Tuperiri built hit pa afc One-tree jFli.lt, and entered inio occupation of the desolated mod vacant country, and held undisputed posre'-sion of all the lands twelve months before inhabited by the numerous tribe To VVaiohua, which had now become extinct.

BBMA.BRS THEREON. Before leaving this epoch I desire to notice two remarkable circumstances which appear to me to have an important bearing on the ca*e generally, and especially a* indicating to lome degree the real value of Hetaraka's claim, and the importance to be attached to his case as put forth in bis own evidence >' any witness speak, of these hi-tories with alight variations, which, to my mind, give a greater aspect of truth to the teller of tradition?, ."onu of thest variations were n«ticed by counsel and admitted at errcs or explained in a remarkable manner, at for instance the two Kiwis, but in the general tenor of the tale there is evidently a clear and very consistent train of history. Many of these witnesses must have a. en and talked with the actors in the<e events. Apihai very probably heard from hi-t grandfather the tale of the night attack on M anger e. It was Paerimu's grandmother who wai murdered at MimiJbauui, and be doubtless heard his mother often talk of the death of her mother and the subsequent cap* tare of her hu«b»nd'a father at th« great destruction of har tribe at Mangere. Varena Hengia h»i himself seen the posts of Tapirini'a pa at One-tree Hill, and Te Waka Tuae lived in the pa at Orewa as a child. Yet only one witness mentions Mount Eden all through these operation.*, and, when questioned directly, without one exception they •ay they never heard of a pa having been there in or since the dayg of the conquest. Yet Heteraka told us that Rangikaketu lived there with his people, and that it was tb« ''pt-rmanent pa" of his grandfather Te Hehewa. Now, Te Kangikaketu was a party with Kiwi to the murders. It is not credible that after the decisive battle of Poruroa, in which Te Rangikaketu was engaged and at which Kiwi was killed and h<c tribe ware so disheartened that they abandoned all their pa* on the north of Manukau and concentrated themselves in Mangare for » final straggle, Rang<kaketu with his Waiohua, as Hetcraka allege* hu people to have been, can have been quietly left in occupation of Mount Eden ; nor would his son have been allowed to make it his " permanent pa." But while some of the witnesses tell us of the pas taken and thoie abandoned, not one speaks of Mount Eden at all, and there is no doubt in my mind that it had been altogether abandoned before Kiwi's time, and that ifc has not been occupied as a pa since. I do not say that Te Hehewa never lived at Mount Eden. I think he probably rdid ; that is, I gee no reason for supposing the contrary. He married Huiatara, a woman of Ngatikahua, a hapu of the Waiohua, and Teka, another Waiohua woman; and, his father having apparently cast in his lot with the Waiohua, Hehewa may have been living there before the conquest ; for if Apibai's grandfather /had a hand, as an influential chief, in effecting it, it is not at all improbable that Hetaraka's grandfather, as a yonng man, may have been one of the sufferers and subsequent fugitives. But to believe that Te Hehewa, after the conquest, had a " permanent pa" there, is quite impossible. The evidence is also coni elusive against Hetaraka's statement that he died or was buried there The Courb believss that the evidence is preponderating that he died a natural death near Manukau Beads — tbat'he was buried at Hbrohoro," near Wharenga, at the Heads — that some chiefs of Te Kawerau, on Recount of their relationship to him, moved his bones to Piba, near Waitakere, and placed them in the wahi-tapu of Te Kawerau, caled Pukemore, near that place, where they now repose. The other remarkable incident which occurs to my mind is the presence of Kangikaketu with Kiwi's follower! at this time, and hit apparent connection with their fortunes, and theirs only ; for it |a admitted by all sides that he was a principal chief of Ngatitai and Ngatikahu, whose possessions exten del from Takapuna northwards to Whangaparaoa. And Rangikaketu is engaged in these affair*, with a lew followers, who are stated to be his own people — FgatitaL Neither side has explained this satisfactorily. If these people w«re Ngatitai, what were they doing there? for we scarcely ev«r hear of Kangikaketu or- Hehewa being "in their own country," as Mr. MacCormick would say, or "in their other country," as Mr. Gillies would say. 1 think there is evidence to show that Ngatitai were a broken people before th« time of Kiwi : and, if that is f o, Te Rangikakesu and his few followers were then already ' refugees. ' Hapimana Taiawehio told us of the destruction of Ngatitai in old days by the Ngatipaoa," Ngatimaru, and other Thames tribes, < »nd We have evidence that Ngatipaoa have exercised oyer their >nds j and we were told by another witness (Paora Tuhaere), "I hare heard of the lanunt of Te Hehewa for his pa at Takapuna." Many matters difficult to ex* plain, stfeh. as the residence of Purehurehu and of Heteraka amongst Ng-itipaoa, can be easily understood on the above hypothesis ; but Ido not think '■* that the evidence on this point is sufficiently clew ■> or decided- to allow the Court to make any important deductions from it. Buc one thing is certain T that Te Hehewa was, and Heteraka is, a pbief wsh» out any followers. From' the period of this conquest - Tor aWm't 'half a century, "there is nb evidence? of - peace having been broken". Te Taou,'»nd the new mixfure, under a revived Batae, Ngioho (really Ngapno No,2 ), and* the returned 'refugees of WuAhua, under the name of 'te Uringuftii, lived to* gefoer in difjerjnfc 'places iti' qpnew tfce Jlftiunui, in

nndimnrbtd poMCMion. They appaar to have aban-d«»n-il some of tbe pas that they captured from Te Wai -liua, but maintained M their pr;noipal pa.Onetree Hill ; and had outlying pw»» ?"•»• (^■•" rl Pjin), occupied by Tarabawa>bi Apihais father), and TeWhakaakiaki, the comm*ndcr at P«ruroa; 1* T*on, K".eeman»« Bay, under Waitaheke; Mangonai (■vide K.uri Point), under Beretnanra ; andTaubinu furthe. up the rirer. "Tbete," Waka Taw say., " wore all the pas that k»pt poisefißion of tbia eea (Waitemata) after the original people were de. atroyed." Btside« theie pas, they maintained others at M.ngere and Ihumatao, und*r Te Horeta and Awarua, with whom and whose people the Wait ato tribea hnd begun to mix by marriage for the P>*«t»otion of the portion of the triboJiTing on the Manu-

kau side. „ • 1780.— QIFT Of LAND AT PAHMUKB, CALLED . TAVOMA. About 1780, «n eTent fruitful in disturbances took I la. c. Te Tuhuie, the daughter of To Horeta, who by descent was half Ngaobo and half Walkaio, had a youni«-r fumalo relMion (called by Hetaraka a teima) who married Te Putu, a Ngatipaoa man. For some reason which d>es not appear, be wished to live away from tho residences of his friends at Wbarekawa, on tho Firth of the Tbame. ; and Kehu asked her relative Te Tahuri to mark off for her a piece of lavd 'on the Tamaki river. Te Tahuri denned a large tract, probably then unoccupied, commencing near tho place now called r anuiure, and extending round th« shores to Whakamunu, and thence inland to Waiatarua (College) Lake; and Te Putu and his wife and friend* appear to have taken immediate possession. This place was celebrated for its great growth ol tui akihi. the plant which produced the poisonous fruit called "tutu." And the sages of Waikato, , when they heard of the arrangement, predicted future qmrrels and mi»fortunei as likrly to result from tno intrmion of a strange people into the hitherto compact territory peopled alone by the cognate tribes. " Soon these two old women will be drunk with the juice of the tutu" was the propbecynot proverb, as Mr. Gillies uodoißtwd it. It muse hert be noticed that the Court is of opinion that this estate was marked off for Kehu and her husband m the manner described, and- that it was not the ancestral territory of Ngatipaoa. Haora Tipa and the witnesses on that side speak of Kehu as a Waikato woman, and of the land aa belonging to her, though they deny the fift, and speak of it as originally Ngatipaoa land. This is clearly ipponsistent, It was not alleged that Ngatipaoa had any land on the other side of the Tamaki ; and Tarn aware that the tire to the land on the east shores of th* Wairon, with the exception of a small piece of 100 aorea or so at One, w»s after a string contest decided in this Court not to belong to, them, and they do n»t attempt to give any explanation of bow they became possessed of this isolated piece at Panmure- called Tauowa. Indeed, when they stato that Kehu was a Waikato woman and that the land was hers, it appears to ma that practically they abandon their position of Tauoma being ancestral Ngatipao* land, 1700. —FIGHT BITWEBITTB SPAOU AND NO*M»AOA. The prognoitication of the Waikato sages was goon fulfilled. A party of the Ngaoho were at Mahurangi fUhing for ih»rk*, and at the same time a party of N s atipaoa were there amilarly engaged, tifcher to balance some old " utu" account, or to commence a new one, the Ngatipaoa party set upon the Ngaoho and killed great numbers of them, amongst whom was Tarahawaiki, the son of Tuperiri and father of Apihai. 3792. A. year or two afterwards, a battle took place between the two partiei at Rai'gimatariki, ne»r tfoe Wb*u, in which Ngatipaoa were defeated with heavy loss; "You may sfg thg U<ingi* (ovene) to this d*y," s*ys I?amatj Tangiteruru. Apibai says that this engagement was to avenge tho deaths at Mahurangi, but this can scarcely be, for Ngatipaoa appears to have been the attacking party. 1793. Waikato, now closely relatpd by intermarriage with Apihai's people, begin to appear upon the scene, and, shortly after the above engagement, Te Taou, thinking they hid not yet balanced the item in the uiu acaouut, caused by their loties at Mahurangi, sailed the Waikato tribes inhabiting the fcoush (bores of Manukati to their assistance, and together they cro3«ed over to Wathake to renew their attaok on Ngatipaoa, but failed in meeting with the enemy. Re-crossing Tamaki Strait?, they were pursued by Ngatipaoa, and an engagement took place at Orohe, in the west shopa>f Tamaki river, in which Ngafrpaoa were victorious, killing To Tahuri, the giver of the fatal present of land, and Tomoaure, her husband and paternal uncle of Apihai. One witness said that Rsngimatoru, Kiwi's son, was killed at this battle, fightiug amongst bis father's conijusrors. " This *as. the last fitfht of old days," »nd the debtor and oreditor account of •lain appears to have been finally left unbalanced. I will hera bri fly state, ai too clear to require any remarks, that those contests between Ngatipaoa and Te Taou and Ngaoho were fight* for revenge simply and purely, and were never contemplated to affect in a.ny way the possession or title to the estate under investigation. At the time jf this last fight-part of the Ngaoho and Te Taou ] wire living at Hikurangi, be pond the Manukau 5 ranges. Tuperiri, with a party, was still at OneTee Hill, and Tauoma was uninhabited. There is iow a blank in the evidence for many years. Clearly 30 great erenti happened, which would cau»« perions to remember or detail the residences and doings >f the actors in this history. It is probable that both tides were for some time suspicious and in fear »f each other, and kept as far apart as posiible. 1815, I can find nothing whtoh I think the Court aught to rely upon until about the year 1815, when Ngati* paoa appear to be comfortably settled at Mokoia, a place «n Tauoma, the piece of laud given to Kehu ; mi Apibai'd people appear to be living principally at Ihumatao and Mange re, cultivating also at Okahu and on the shores of Wait^mat*. It if also alleged by Hetaraka and his friends that they cultivated there at the sane time. The only witnesses who say that they themselves personally lived and planted tb«r« at thi* time are Hetaraka, Haora Tipa, and Taitu. Hetaraka' s occupation can hare no weight in this suit, for hit father bad married a Ngatiwhatua woman, and he would have an undoubted right to cultivate on the estates of his mother* tribe at his will so long as ha remained with them — a right which ha would lose as soon as he cast in his lot with a strange tribe. Taitu and Haora Tipa pointed out to the Court, when it vititad the estate, portions of land, comprising together a out one-fourth of the whole property, or 150 acres, as as that which they with their own hauda cultivated. Now there was certainly, to say the least, great exaggeration in these ttatement*. But, tuppojing that they cultirated in a settled and domiciliary manner for some period, I do nob understand that any ground for the right to do so is set up except the cooquett by Kapeta wa, which I have already stated that theC'Qurt does notthinkhasanycharaoterutics beyond that of a raid for revenge for "personal affront." Cerb&inly it cannot suffice iv tbis Court to create any "take" for hit descendant* to oommenoe cultivating a century afterwards. Apihai alleges that he and bis people were in permanent oo.Qupa.tiQa at the same tim«» but he and his witnesses all deny that any Ngatipaoa were cultivating Okahu (including in that name the whole estate) along with them. I think the truth it that neither party bad their real domiciles at Okahu at this period, but Ngatipaoa (including Hetaraka, for be appears to have been living with them) lived at Mokoia, and Apiha.i ap,d his people lived nt Mangefe as their beacUquar.ers, and th»t both parties came over to Waitemata waters for fishing purposes, and they planted food at Okahu simply for such purposes— the former in a very small way, and the latter mora largely, for it must be remembered that the tribes wejro in a state of perfeoi amity at this time. The Rev. Dr. Maumell gave important testimony a* to the habits of Maoris cultivating the lands of other tribes while in a state of friendship, and Hotereni Taipari gave some remarkable instances of the same custom : Ngatipukeko, now living on the lands of To farawiiaii, at Wh, aogarei j Ngatip,ukenga,"on the lands of bis own triba Ngatimam ; and bii own tribe formerly living on the territory of Ngatikarowhai. Ido not remember that any claims have been established in this Court solely on the ground of modern occupation, without reference to soae " take" of q|d d.ay« j a,nd the Nga.tip.aoa seem to afjmit this "rul<s, for they e#t up Kapetawa's conquest, which, in the judgment of the Court, does not suffice. 1818. A few years after setting at Mokoia Ngatipaoa built a strong pa very* near to Mokoia, called Mauinaina, 1820. About tbe year 1820 we find a large patty of Ngatipaoa living, at Mnuinaina ; Te Tacm at Oneonenui (Ka p»ra), a^id qtbers of tbpm a£ Onehunga j and Ngaoho at Mangeie au4 Okahu. the 'former Being their pi o* I think" the partial cul. <i vat ion by tome members of JNgatipaoa'on or adjoining the Okahu qitate still c.outinue.d' ; but lam i-ery doubtful og this point. They owned &c Und. 8P to the' College Lake, and a trespass, ore? the oundari^ woultf b» pegarded yritk no |.»luusy t bad

. I rather as * flatteriDg testimony of confidence and j ! good feeling. 11 1821 or 1822. A party of the Buy of Inlanders (Ngftpuhi) touched at Tamaki Heads on their way to Maketu, on a war expedition against T© Aravra; and another party, under Koperu, catne down from the Bay in canoes, and attaoked Mauiuaiim, but were repulsed by Ngatipaoa, assisted by Apihai and Ngaoho, and Koperu was killed. Apihai and his party came from and returned to Mangere, # Hongihika, the great tfgapubi chief, in command of a powerful party of the Northern natives armed with* guns, went up the Firth of the Thames and took by assault a large pa at Totara, near the mouth of the Thames, held by Ngatimaru and the Thames tiibei. The slaughter wai very great, and the strength of the tribe wan much weakened. In the same year Apihai and his people mnited with several of the W B ikato tribe*, and started on a war expedition through ftotorua to Hawks'* Bay ; thence they went on^to Wellington, and returned baok through Taranaki toWaikato and home. They were away nine months, and during their absence, in 1823, Hongihika attacked Mauinaina (Panmure) Pa and capturfd it from Fgatipaoa. Those who escaped fled for the most part up the Waikato, while tome joined their friends at Maungatautari. The loss of life appears to have been very great ; and Hongi remained there many days feasting, then hauled his canoes over the portage at Onehunga; sailed across the Manukau to Wtiuku; again hauled his oinoea across the portage one and three-quaitcr miles into the Awaroa river near its source, thence down the Awaroa, straightening the channel where the length of his large canoes required more room, and passed up into the "Waikato ri»er. fle sailed quickly up the Waikstw and Waipa rivers, driving all the inhabitants, men, women, and children, before him until he arrived before a great pa at Matakitaki, on a high sand cliff at the place where the Msngapouri river flown into the Waipa. The total population of the Waikato country seems to have collected here; and here, als<», some of the remnants of Ngatipana, who fldd from Mauinaina, sought a refuge. Hongi attacked the place at once, and took it. The slaughter which ensued was very great. Mr. Co well, who at the time was luring at the Bay, and who saw Hongi start and return, say* that above 2,000 people were killed, and many heads were brought ba;k to the Bay. Some of the Ngatiwhafcua joined Hongi in this expecJitioQ, but { oan find no explanation of this singular eircuraatance. Hongi returned to the B»y after a year's absence. When Apihai and his tribe returned from their Southern invasion, they found that all these events had taken place. Mauinaina, which he left a flourisbing settlement, was desolated and yapa.ns, and. the survivors of the slaughter, who fled from Maui* nalna, either dispersed among their friends up the florofciu or were k)lledat Matakitaki. It appears probable, a' so, that those of his owu tribe whom he had k-fc behind him at M*ngere, and scattered about the country across to the Waitemat>, had fled away to tbe broken countiy known ag the Manflka.u J^ngee. where tljey a| ajl tinges of g'^k danger appear Iq have found oerfain refuge, Apihai a.nd his people took up their abode at Hikurangi, the wooded , district to the porth of Mauukau Heads, and One* ■J onenui, in Southern Eaipara. From thence they m rred to Waikumefci (Uttl© Muddy Creek), a «mall * utream flowing into the Manukau, aod finally settled j: down along with RukaTaurua and someNgatit»hinga ' (Waikato) people at Tekehu (Low and. Motjon'i), a * small stream flowing into the Waitemati. During I marly tuo years Te Kehu appears to have been their principal domicile, though they occasionally visited Pahurihuri, ia Kaipara, and had also some small cultivations at Okahu, and at the place where Auckland now etaßds. Th^s year (according to Heteraka) Ngatipaoa organised apd aent from Waikato, under Purehurehu, * He'arftka's t^na, a war expedition agaiust Te Para' «hui (Vgapubi), living at Whaiigarei ; and another Ngatipaoa, t*ua started under Te Rauroha, their chitf, who made a successful attack against the same tribe, and killed Kaipia, and took Eahungau pri«oj}er f (To be continued.)