The inviolable contract: The intractable problem of dual sovereignty in New Zealand

“ So, according to the Missionaries, the Maori must have separate laws, language, and rights.
The renewal of hostilities has, we think, been made too much of; not that we would anticipate any lasting good from the peace so hastily patched up before the recall of Colonel Gore Brown, and re-appointment of Sir George Grey. We are not at peace, and never shall be until a thorough revision of the system of government takes place. ”

“ By this covenant the Queen undertook, in consideration of the cession of sovereignty and the granting of the pre-emptive right of purchase of land, to extend to the Maori race her Royal protection, and impart to them all the rights and privileges of British subjects. Of the manner in which this undertaking has been fulfilled, the Maoris have never complained, and they have never had just grounds for complaint. There is no colour line drawn against the New Zealander in New Zealand. ”

“ But the Maori people are not aware of the reasons that led their Pakeha friends to apply to have the sole management of affairs in New Zealand; and the assent thereto of the Queen's Government was given without considering the Maori people, or making any inquiries of them. Because the right of governing and the occupation of the Island by Europeans dates from the Treaty of Waitangi; and it was left to the chiefs, the hapus of the Native people, and Her Majesty to carry out the provisions of the Treaty of Waitangi, which became a covenant on the descendants. ”

“ Many other evils have been discovered by our hearts, therefore have we considered right, O Mother, the Queen, to pray that you will not permit increased evils to come upon your Maori children in New Zealand, but to graciously sanction the appointment of a Royal English Commission to abrogate the evil laws affecting the Maori people, and to establish a Maori Parliament, which shall hold in check the European authorities who are endeavouring to set aside the Treaty of Waitangi ”

“ They were willing that the colonists should remain subject to their own Sovereign and laws, but they claimed the same right for themselves, and in the exercise of that right elected one of their chiefs to be Maori king, and formed themselves into a league to prevent any lands from being sold by any individual member of a tribe without the consent of the whole. Such a league would at once be pronounced illegal in England, where it is a recognised principle that every man has a right to do as he likes with his own ”

“ Few Legislatures in the world have had a more difficult task than has fallen to the lot of that of New Zealand in legislating for the Maori so as to preserve his nationality, his rights, his liberties, and yet not bar the progress of the European state. That it has been embarrassed times without number by the treaty is undoubted, and therefore it is the more to its credit that the diplomatic bargain which has now held good for the better part of a century should have been so little violated. ”

“ It is the outcome of a compromise between dependence and independence, which, save in exceptional circumstances, is not likely to be permanent. The control exercised by one independent state over another is in most cases destined either to disappear altogether, so that the semi-sovereign state becomes fully sovereign, or to develop until the separate international existence of the inferior is merged in that of the superior, the semi-sovereign state descending to the lower level of dependency, and becoming merely a constitutional subdivision of the state to which it is subordinate. ”

“ The majority argues that the Constitution sought to preserve States’ “equal dignity and sovereignty.” Ante, at 13. That is true, but tells us nothing useful here. When a citizen brings suit against one State in the courts of another, both States have strong sovereignty-based interests. In contrast to a State’s power to assert sovereign immunity in its own courts, sovereignty interests here lie on both sides of the constitutional equation. ”

“ It is obviously impracticable, in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved. ”

“ In the year 1881, a new plan was devised by the Government to enkindle strife in respect to the Maoris. Armies were sent to Parihaka to capture innocent men that they might be lodged in prison; to seize their property and their money, to destroy their growing crops, to break down their houses, and commit other deeds of injustice. We pored over the Treaty of Waitangi to find the grounds on which these evil proceedings of the Government of New Zealand rested, but we could find none. Some of the European inhabitants of this Island disapproved of these injurious doings to Maori men ”

“ To abrogate contracts, in the attempt to lessen government expenditure, would be not the practice of economy, but an act of repudiation.'
The argument in favor of the Joint Resolution, as applied to government bonds, is in substance that the government cannot by contract restrict the exercise of a sovereign power. But the right to make binding obligations is a competence attaching to sovereignty. [3] In the United States, sovereignty resides in the people who act through the organs established by the Constitution. ”

“ The agreement can be valid and binding only on condition that each of the contracting parties retains the sovereignty that rendered it competent to enter into the compact, and states that retain severally their sovereignty do not form a single sovereign state or nation. The states in convention cannot become a new and single sovereign state, unless they lose their several sovereignty, and merge it in the new sovereignty ”

“ The validity of a contract, as a matter of fact, depends upon the ability of the parties to enter into it, for no court can enforce a contract when it is shown that the principals to it had not legal right to make it or to fulfill the conditions of it. It is accepted as a surety of power to observe the conditions when a sovereign government makes itself a party to a contract. The people are bound by their agents, to whom they delegate authority. Nothing is regarded in a more obnoxious light than the repudiation of their honest debts by sovereign States. ”

“ No other State or assemblage of States has the least right to interfere with it, in this respect, and cannot do so without impairing its sovereignty. The Constitution of the United States is but the agreement which each State has made, with each and all the other States, and is not distinguishable, in the principle we are examining, from any other agreement between sovereign States. Each State, therefore, has a right to interpret that agreement for itself, unless it has clearly waived that right in favor of another power. ”

“ No more is demanded of a Maori than of a European. His passport to society is his good behaviour, his participation of civil rights is governed by his disposition to become a law-abiding citizen.
Only one question now remains to be discussed. In what relation did those chiefs stand to the Treaty of Waitangi who refused to sign it? It has never been contended that all the chiefs were invited to meet Captain Hobson at Waitangi, nor that all were solicited by his agents to sign the treaty, nor that all who were so solicited agreed to affix their signatures to the document. ”

“ I myself sent those persons to England to lay our grievances before the Queen—that is, before all her governing power—because all {310} the grievances that we, the Maoris, suffer from arise from the colony of New Zealand; hence our petition for the establishment of a Native Parliament in New Zealand. It was not done with the object of trampling on the authority of the Government of New Zealand. No! but we think that the Queen's authority should be exercised directly over us. We, the Maori people, are entirely subject to the authority of our most gracious Queen Victoria. ”

“ So far is this the fact, that to-day the Maori is more insistent upon a due observance of its covenants than is the European. The present generation of natives accept it unquestioningly; and long before the "Old Guard" of objectors had passed away they, too, were beginning to realise that the sacrifice of their independence was more than compensated for by the protection of the British flag. ”

“ Although the Government of England has nothing to do with the affairs of New Zealand, still the Government of the Queen will instruct the Government of New Zealand to devise some measures whereby justice may be done to the Maori people and their interests promoted, and that the Governor should be questioned concerning these instructions from England. ”

“ That change of policy, although manifested by constitutional enactment, cannot affect contracts which, when entered into, were within the power of the state to make, and which, consequently, were protected against impairment, in respect of their obligation, by the constitution of the United States. A state can no more impair the obligation of a contract by her organic law than by legislative enactment; for her constitution is a law within the meaning of the contract clause of the national constitution. ”

“ Congress cannot, by authorization or ratification, give the slightest effect to a State law or constitution in conflict with the Constitution of the United States. That instrument is above and beyond the power of Congress and the States, and is alike obligatory upon both. A State can no more impair an existing contract by a constitutional provision, than by a legislative act ”

“ Thus a State can no more impair its own contracts, by legislation, than it can impair the obligation of the contracts of individuals.186 A sovereign State is supposed to have a more scrupulous regard to justice, and a higher morality than belongs to the ordinary transactions of individuals. ”

“ An end must be put to deeds of blood and violence." This clear and explicit declaration of his determination to permit of only one law for the pakeha and Maori, and to hold the racial balance justly before the eyes of the world, touched a responsive chord in the heart of the Maori nation; and Te Rauparaha was but expressing the general sentiments of the people when he wrote in reply to the Governor's message: "We have heard your words, which are like the light of day to us; our hearts are glad. ”

“ In order that their "equality" may be maintained, they will not act as servants of the white race. One could not induce a Maori girl to do housework for a European for any wage, neither would a Maori boy black a white man's shoes. They have a vote on any measure affecting their interest, but Dominion suffrage ends there. Four Maoris represent their race in Parliament. The immigration laws of this country practically prohibiting, by a high tax, Asiatic and all other black and colored races from entering, the Maori is the only colored inhabitant in New Zealand. ”

“ New Zealand then being an inhabited country and a country under a system of government at least so efficient as to subsequently induce the British authorities to recognise the Maori nation as an independent State, it becomes obvious that this could not be designated a land which could be lawfully seized upon by circumnavigators. ”

“ In conferring upon New Zealand her charter of severance from New South Wales in 1840 Lord John Russell thus conveyed to Captain Hobson his view of the governmental state to which the Maori had risen: "They are not mere wanderers over an extended surface in search of a precarious existence; nor tribes of hunters, or of herdsmen, but a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil ”

“ The Maori chief may lay his tapu on an entire village when a relative dies, and if, after the lapse of years, any one be rash enough to invade the forbidden precincts, he will visit the offence with instant punishment. But it must be remembered that the infringement of the tapu in question is not an insult to the dead but to the living, and that when the chief punishes the offender, he does not avenge an affront offered to his dead relative, but a direct insult to himself. ”

“ After a [Pg 45] battle, disputes frequently arose between those who claimed priority in having applied the tapa to articles in possession of a foe whom they had then still to vanquish.
This was the law of muru, which the Maori accepted philosophically enough, because, though vexatious, it fell with equal severity upon all.
If a man committed an offence against the community, he was punished by the community, his fellow-tribesmen adjusting the fine and collecting it with a generous appreciation of their individual requirements. ”

“ EDWARDS, J.—In support of his contention that the bed of the lake cannot be the subject of a Native title under Maori customs and usages, the Solicitor-General relies upon the inherent improbability that there was any intention, either by the Treaty of Waitangi or by the statutes relating to native lands, to recognise any such right. To hold that there is such a right would be, the Solicitor-General contends, to destroy the right of navigation in all non-tidal waters to the great detriment of the public. ”

“ It very clearly appears, from this exposition of the powers of the general government and of the States, that there may be an exercise of concurrent jurisdiction in the case of a granted power; that the mere grant works no exclusion of State sovereignty, even where its concurrent exercise may lead to occasional interference in the policy of either government, and that nothing short of absolute and total repugnancy and contradiction will suffice. ”

“ The deprivation of their right to freely gather food from the sea and the sea-shore was, together with other grievances, sufficient to galvanise them into political activity, and the Kotahitanga was formed with the meteoric Hone Heke [193] at its head. The Native Rights Bill was introduced by him and rejected by Parliament, but the movement was not without its fruits, for in 1900 part of their purpose was achieved in the concessions made by the Government in the Native Land Administration Act and the Maori Councils Act. ”

“ Their usefulness is being proved, and a large majority of the Native people appreciate them and are using them. It has been found by experience, however, with regard to titles to land, that there is often great jealousy of the committees, and that the Natives prefer to have the land adjudicated on by the Land Courts. (This remark applies also to Resolution 6.) If any other form of Maori council than that which now exists is desired under the clause of the Constitution Act referred to, it can only be obtained by Act of Parliament of New Zealand. ”

“ One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence, every State has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced ”

“ But as the natives of New Zealand, in common with the natives of New South Wales and Tasmania, have got a sense of right to these unappropriated territories, it is well to purchase their good will to the occupancy of these,—that is, their forbearance from molesting the occupiers; because, to take possession without doing so might lead to the sacrifice of life, and because it is even cheaper to hire their forbearance than to compel it by force. Any one purchasing their good will to a portion of territory has no right, however, to that territory, further than not to be molested by the natives ”

“ The millions sterling which have had to be spent in New Zealand, directly and indirectly, in acquiring Maori land for settlement, supply of course no argument whatever against the equity of the Treaty. When honour is in the scale, it outweighs money. Yet had Captain Hobson been able to conceive what was entailed in the piecemeal purchase of a country held under tribal ownership, it is difficult to think that he would have signed the Treaty without hesitation. ”

“ The fusion of the Maori race with the whites is impossible. The half-castes are said never to live beyond the age of forty. The Maoris are dying out, particularly in the South Island, where contact with civilization induces them to adopt European habits and dress, and the latter is the cause of the consumption which carries off a large proportion of them. Their land is being gradually bought up by the government or by settlers, and the introduction of this system has been most baneful to them, inducing them to depend on the sale of their land, instead of their labour, for subsistence. ”

“ Both Waikato and Taranaki owed Nga-Puhi a [Pg 117] grudge, and reasonable men would have combined against a common foe. But the Maori were ever unreasonable where war was concerned, holding tribal grudges more important than unification of the nation; so, instead of combining against Nga-Puhi, Waikato and Taranaki warred the one against the other.
This disunion among the tribes materially assisted the colonists in their own long struggle for supremacy; for the "friendly" Maori often helped their cause not so much from love of them, as from hate of some tribe in opposition to British rule. ”

“ From that time until New Zealand's gradual settlement he held undisputed sway. In color he is similar to an American Indian, and is inclined to fleshiness.
New Zealanders are very proud of the Maori. While of a warring race, he is not a criminal. He can be made a friend—can be trusted. Intermarriages take place frequently, and it is said the white party to the transaction meets with no social discrimination. Civilization has proved detrimental to them, as with most natives, however, and is diminishing their numbers from time to time. Consumption is decimating them fast. ”

“ It has, therefore, been judicially held by a majority of the Supreme Court, that such a doctrine is untenable. Although the law of the place acts upon a contract, and governs its construction, validity, and obligation, it constitutes no part of it. The effect of such a principle would be a mischievous abridgment of legislative power over subjects within the proper jurisdiction of states, by arresting their power to repeal, or modify such laws with respect to existing contracts. ”

“ The natives had very rude weapons in those days; now, however, they have fire-arms, and know how to use them. No foreigner can go into the King's Country without a native permit; no white man can travel there without a Maori guide; a murderer or other criminal cannot be pursued thither by a Government officer, except by first obtaining the proper permission. In these reserved lands the Maoris show a bold and warlike front. They enjoy full political rights in the government of the country, and return their own members to the National Assembly from the several districts in their province. ”

“ It is vain to tell us, that a maxim of common law requires contracts to be determined by the law existing where the contract was made: for it is also a maxim, that the legislature has a right to alter the common law. Such a power forms an essential part of legislation. ”