The Treaty of Waitangi; or, how New Zealand became a British ColonyBuick, Thomas Lindsay
History
The Treaty of Waitangi; or, how New Zealand became a British Colony
Buick, Thomas Lindsay
New Zealand -- Politics and government; Treaty of Waitangi (1840)
and to forfeit all landed possessions acquired by British subjects in
New Zealand. He condemned the Bill absolutely, because he claimed to
have established on incontestable grounds, and by the aid of
indisputable authorities, the right of British subjects to buy land
from the New Zealanders, a right which could not be taken away until
the Council passed an Act to restrain it. Under these circumstances it
was highly illegal to proceed to divest parties of their possessions
without adequate compensation, such as was given in England when land
was required for public purposes. The compensation to be given in such
cases must always be awarded by a jury; therefore the proposed Bill
was clearly repugnant to the laws of England. Only a few days
previously the Council had passed an Ordinance, making all the laws of
England and of the colony of New South Wales applicable to New
Zealand. Amongst these was the right of trial by jury of which the
proposed Bill was completely subversive; it took away the right of
trial by jury; and therefore, declared Mr. Wentworth, the Council
could not pass it, or if they did, the Judges could not certify to it.
These arguments were reiterated and amplified by the two barristers,
Messrs. A'Beckett and Darvell, and on July 9 their official refutation
was placed before the Council by Sir George Gipps, who on that day
delivered in reply a speech remarkable for its broad grasp of
constitutional history, as well as for its fearless declaration of the
attitude adopted by the Crown. It was during the development of this
smashing rebuttal that the objectors were enlightened as to the three
great principles of law upon which the second clause of the treaty was
founded; "principles, which, until I heard them here controverted,"
said Sir George, "I thought were fully admitted, and indeed received
as political maxims." Briefly these were:
1. That the uncivilised inhabitants of any country have but a
qualified domain over it, or a right of occupancy only; and that,
until they establish amongst themselves a settled form of government,
and subjudicate the ground to their own uses by the cultivation of
it, they cannot grant to individuals, not of their own tribe, any
portion of it, for the simple reason that they have not themselves
any individual property in it.
2. That if a settlement be made in any such country by a civilised
power, the right of pre-emption to the soil, or in other words, the
right of extinguishing the native title, is exclusively in the
Government of that power, and cannot be enjoyed by individuals
without the consent of the Government.
Public-domain text, read in full here on John Shaqi.
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