THE TARANAKI QUESTION.

5

E—No. 2.

2. In the first place then, what was the nature and effect of the Cession by Potatau ? The Waikato invasion had swept like a flood across the country of the Ngatiawa and of the Taranahi tribes to the South. The latter tribes, however, had suffered less than the former, and had not been actually scattered and driven off. Their occupation of the land was never interrupted. Yet the Cession purported to cover the whole of the territory so overrun, extending from Tongaporutu, 10 miles South of Mokau, to the Waitotara River, near Whanganui, that is to say, about one hundred and fifty miles of coast. Now, according to Maori usage, it was necessary that the conquering tribe should hold possession of the conquered territory, in order to establish a valid claim or title to it. As soon as they ceased to occupy, the original owners re-occupied. Even if the invaders occupied the land, the conquered tribe were held to be justified in doing their utmost to recover possession, if possible, of their fathers' land. Nothing but their utter inability to do that, made the title of the conquerors complete. Thus, for example, the Ngapuhi, under Hongi, overran the South of this Island. Whole tribes were driven off their land, and did not venture to return for years. The invaders, however, did not take possession of the land of those tribes, and consequently they have never put forward any claim in respect of it. The only two Waikato Chiefs who signed the deed of Cession to Captain Hobson, namely, Potatau, and his brother Kati, had been themselves driven out of their own territory by Ngapuhi. Governor Hobson's own view of the matter is to be gathered from his Despatch, Dec. 15, 1841. " The Waikato tribe, under the Chief Tewherowhero, are extremely powerful. They conquered and drove away the Ngatiawas from Taranaki, in 1834, leaving only a small remnant, who found refuge in the mountains of Cape Egmont ; and having pretty well laid waste the country, and carried off a large number of slaves, they retired to their own district, on the banks of the river Waikato. It appears that in 1839, Colonel Wakefield visited the country, and bought a considerable portion of it from the few Ngatiawas who had resumed their habitations on the retreat of Tewherowhero. " Now, Tewherowhero claims the country as his by right of conquest, and insists on it that the remnant of the Ngati-awas are slaves ; that they only live at Taranaki by sufferance, and that they had no right whatsoever to sell the land without his consent. In illustration of his argument, he placed a heavy ruler on some light papers, saying, ' Now, so long as I choose to keep this weight here, the papers remain quiet, but if I remove it, the wind immediately blows them away : so it is with the people of Taranaki ;' alluding to his power to drive them off. " Tewherowhero certainly has a claim on the land, but not a primary one ; as the received rule is, that those who occupy the land must first be satisfied. But he is the most powerful Chief in New Zealand, and I fear will not be governed by abstract rights, but will rather take the law in his own hands. " I had hopes, untila few days ago, that he would consent to take a moderate compensation for his claim." That which Potatau really possessed was the power to overrun their land a second time (23). It was might, not right: —the might of a successful invader, and nothing more. According to Native usage, the Waikato tribe had an interest in certain spots where their Chiefs had been slain, and which had thereby become tapu. Beyond that, they had no further right in the soil. We could not expect William King to admit any right in Potatau. He was not bound by a transaction between Governor Hobson and that Chief. He could not possibly doubt the title of his tribe to land which the invader had never occupied (24). We ourselves recognised their ownership, when Governor Fitzroy, in 1844, allowed "in all their integrity" the claims of those of the Ngatiaiva who were not parties to the sale in ] 840. We have again and again recognised it, by our subsequent purchases of blocks of land within the region which Potatau relinquished. It was recognised by the Government itself in this very transaction (25), in the purchase of Teira's land. For if Potatau's claim were good for anything, it was equally good against Teira as against William King. 3. However the claim of Potatau may be defined, it is plain that it could not be equivalent to the rights of the Chief, or of the Tribe, as distinguished from those of the individual holder. Nor could the relinquishment of his claim put the Governor in the same position as if the Chief and Tribe of Ngatiawa had assented to Teira's sale to the Governor. The right, or might, of the conqueror or successful invader was wholly outside of the tribe (26). If it prevailed at all, it prevailed absolutely, displacing the Tribe altogether, and sweeping away all rights of the Tribe, of the Chief, and of the Clansmen alike. If it was withdrawn, and the Tribe returned, they returned of course to all the rights they possessed before the invasion, and in the same measure and manner as before ; the individuals to their rights, the Tribe to their right, the Chief to his. They enjoyed their own again as of old. Their old rights and their old relations to one another, were necessarily resumed. They knew of none other. Why, then, was this claim, so long ago abandoned, set up again by the Government (27)? It must be presumed to have been done for a purpose of policy to disarm any opposition which might be apprehended from the Chiefs of Waikato, for they would naturally be indisposed to disparage their own Cession. Its real value has been candidly stated by Mr, Richmond. " This deed was relied upon as, at all events, precluding the interference of Waikato in the Taranahi Question." \_Papers E. No. 3. p. 35.] In that way it has not been without its use. 4. The point, then, on which the Government really relied, was that which alone is mentioned in the second document, namely, the position that the individual native cultivators and occupiers of the block of land could make a title without the consent of the Tribe or Chief (28). From the stress laid upon the admission stated to have been made by William King that the land belonged to Teira, it