THE NELSON EXAMINER. Nelson, September 28, 1844.

Nelson Examiner and New Zealand Chronicle, Volume III, 28 September 1844, Page 2

THE NELSON EXAMINER. Nelson, September 28, 1844.

Journal! become more necessary as men become more equal, and individualism more to be feared. It would be to underrate their importance to suppose that they serre only to secure liberty : they maintain crrilitstiott. Dm TocauKTiLLi. Of Democracy in America, vol . 4, p. 303.

It being notorious to every one that the laws of England have been, since British j sovereignty was nominally established in these islands, far too rigorously enforced against such natives as have infringed them, the Governor and Council have passed a bill to prevent their penalties pressing so heavily upon them in future. The continual imprisonments to which the natives who have so often molested the settlers of the i Hutt, Taranaki, or Motuaka have been subjected — the excessive punishments which the rioters at Russell have undergone — above all, the promptitude, vigour, and severity with which the penalties of the law were inflicted upon the cold-blooded murderers of our countrymen at the Wairau, and which have struck such awe into the hearts of the whole native population, justify beyond all question this first attempt to alleviate the pressure of a code so cruel upon a people who doubtless only offend because not intelligent enough to comprehend its enactments, and not sufficiently enlightened to be saved from infringing them by the dictates of natural morality.

As far as we can learn from notices of this bill in the northern papers, its object, is to regulate the procedure in cafes of crimes Committed amongst the natives themselves as well as amongst Europeans. In the first case, warrants axe to be issued on the information of the chiefs, and directed in blank to the two principal chiefs of the tribe by the Protector of Aborigines, who* is to fill the blank. The chiefs, in the other case, are alto to execute the warrant, and receive as wages for so doing the sum of £2 for any distance within fifty miles, and Is. for every mile beyond fifty. No native is to be imprisoned on theft, or charge of theft, but is to be allowed to go at large on depositing a sum equal to four times the value of the property stoles, pt, apparently, on procuring

two or more chiefs to bind themselves in a sum not exceeding £20 to secure his appearance to take his trial; If tried and convicted, he is to pay four times the value of the stolen property. No native is to be. imprisoned for debt.

The Governor, in moving the first reading of this bill, takes' occasion to reprehend the notion of imposing upon the natives the whole of our penal code, and wastes much " excellent indignation" upon certain writers who are supposed to have advocated such imposition. Whoever the hapless writers who have so unwittingly nettled his Excellency may be, we cannot believe that any one ever seriously desired or intended to recommend the adoption of any such course as^that Tso denounced. To expect that a complex system of criminal law, which has gradually grown up in, and as it were moulded itself upon a highly civilized and artificial state of society, could all at once and in every particular be successfully applied to a society in a totally different condition — almost in a state of nature as it it called — is manifestly absurd. But to lavmdI avmd this extreme, it surely is not necessary to run into the other ; and, wherever the enforcement of the law may appear difficult, either to suffer it to lie dormant altogether, or pass new lawsio remove the cases in question from the operation of the old.

The Governor fortifies his opinion, that " mild and persuasive " measures alone ought to be adopted, by a reference to the despatches of the Marquis of Normanby and Lord John Russell. Lord Normanby, in directing Captain Hobson to put down at all risks, and by force if necessary, cannibalism, human sacrifice, and infanticide, certainly prescribes the previous essayal of " all the arts of persuasion and kindness.'' Lord John Russell, in speaking of native customs, also orders that no toleration be given to the above-mentioned crimes, and proceeds thus : — " On the other hand, there are customs which, however pernicious in themselves, should rather be gradually overcome by the benignant influence of example, instruction, and encouragement, than by legal penalties." And further, there are other customs which, " being rather absurd and impolitic than directly injurious, are to be borne with." Now these, from all we can learn, are the only classes of crimes according to English law which Lord John Russell appears to anticipated, it will be proper to exempt from its ordinary operation. Certainly, it cannot be maintained that he included theft among the customs to be so leniently dealt with, " however pernicious in themselves," nor among those which he calls " rather absurd and impolitic than directly injurious."

But one thing is clear, from various incidental allusions in that admirable despatch of Lord John Russell, so replete with sound sense and practical experience, that his lordship takes it for granted, as a general principle, that the law of England is to be established over the entire native population, however modified and specially adapted to their condition. He says in the paragraph containing the above extract, " It is important to advert distinctly to this topic, because without some positive declaratory law, authorizing the Executive to break, such customs, the law of England would prevail over them and subject the natives to much distress." But this, the natural result of declaring these islands subject to British sovereignty, Lord Stanley seems to have abandoned the idea of attaining. Governor Fitzßoy read despatches " authorizing the exemption of natives from the operation of British law, and directing him to employ British authority in mediation only." And t this after the Treaty of Waitangi, about which so much noise has been made, by which the chiefs distinctly bind themselves , to "relinquish all the rights and powers of sovereignty which, the said confederative or individual chiefs respectively exercise or possess." But if the Government be only mediator*, theie powers and rights are viz- i

tuatly and literally restored. And of course as the condition upon which the possession of their lands was secured to the natives is broken, the Government is no longer "bound to maintain their right to these lands. But the Governor allows that his bill goes even further, than this—implying, we suppose, that British authority out here is not sufficient for purposes even of mediation. Let us not be accused of exaggeration. Captain Fitzßoy himself allows that the " powerful <;hief who told him he was Governor of the whites and the chief himself of the natives," was right, and that such would be the case for years to come. The declaration of sovereignty and the Treaty of Waitangi were all a mockery then.

It will be seen that we have assumed above that the Council, by the bill" they have passed, have included theft among those customs directed to be tolerated by Lord John Russell, that is, not to be -visited with legal penalties. We have done so, because we cannot but conclude from the whole debate, that the bill is only an excuse for getting rid of the necessity of enforcing the law at all in such cases. For the Attorney-General declares in so many words, that in the case of the natives refusing to pay the amount of their forfeited recognizances, the prisoner not being produced, the recognizances " must remain a dead letter." And of course, supposing the culprit produced and convicted, and refusing to pay the penalty, the law inflicting it must equally remain a dead letter ; for one could be exacted as well as the other. And the Governor confesses that imprisonment is to be abolished to avoid the possibility of a rescue, such as had been effected in the case of Te Mania. Is it not clear then that the consciousness of inability to enforce the law is the cause of the measure ?

But the Attorney-General, whose extreme I candour so often extorts our admiration and heartfelt thanks, informs us, in his straightforward manner, that " the intention of the bill was not to enforce the law if it could be avoided." Really this is the most original reason for making a law we ever heard ! We are spending all our valuable time, exhausting all our statesmanlike ingenuity to frame a statute so that it may not be enforced ! In other countries crimes have to dodge the law to escape them ; but here the laws are to dodge the crimes — to get out of their way with all the address they can ! We have heard of acts of Parliament through which you might drive a broadwheeled wagon ; but this, we venture to I say, is the first statute ever made expressly to accommodate such wagoners. It reminds one of the humane country-gentleman, who ' insisted upon his spring-guns being warranted not to go off. With such laws, how pleasing would be the statistics of crime in this colony ! What quarterly gratulations should we not have from our judges on the lightness of the calendar ! What a show would a convicted felon be — what a lucrative rarity ! The gaol would be a crowded exhibition ; a lock-up a cabinet for curiosities. We should realize the imaginary commonwealth of Gonzalo : — "No kind of traffic Would I admit— no name of magittrate; Treason, felony. Sword, pike, gun, or need of any engine. Would I not have: all men idle, all. And women too— all innocent and pure."