CHAPTER VII.

Sunt autem privata nulla naturâ, sed aut vetere occupatione, ut qui quondam in vacua venerunt; aut victoriâ, ut qui bello potiti sunt; aut lege, pactione, conditione, sorte.--Cicero de Off., Lib. 1, ch. vii.

If you were to make inquiry from a New Zealander as to his land-title, it would be difficult to obtain from him reliable information as to any general rules of proceeding; for he would at once consider some particular case in which he was himself personally interested, and would give an answer corresponding with his interest therein. This may be due partly to the inaptitude of the Maori to take an abstract view of anything, which has been already noticed^[1]. But it is doubtless from this cause that persons having competent knowledge of their language have expressed different opinions on this subject, founded on information thus obtained.

There are three reliable sources, however, from which such information can be obtained.

1. From Maori narratives, wherein matters relating to their land-titles are incidentally mentioned.

2. From Proverbs relating to the disposition of land among themselves.

3. From investigations of titles to land offered for sale, or when in dispute among themselves.

In the early days of the colony disputes about land

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were of frequent occurrence, and the Government was often appealed to by one or other of the disputants.

From the foregoing Maori narrative^[1] we learn that, after the canoe Arawa reached this island, the crew did not form a united and compact settlement at one place, as might have been expected. The names of nine chiefs are recorded who dispersed themselves north and south of the place where the canoe was dragged on shore, each going off in search of lands for himself and his own family.

Of these chiefs three went to Taupo, two to Wanganui, one to Rotorua, one to Mercury Bay, and one to Cape Colville; at the same time leaving behind at Maketu some members of their families. In the third generation two divisions of the family who had been settled about Cape Colville migrated, the one to the Bay of Islands, and the other to Kaipara.

From the narrative above referred to it also appears that the lands thus taken possession of were considered as rightfully belonging to the first occupier and his descendants, and that names were forthwith given to a great many places within the boundaries claimed, these names being frequently such as would make them sacred to the family, from being derived from names of persons or things to which some family sacredness was attached.

MANA.

The chief of any family who discovered and took possession of any unoccupied land obtained what was called the mana of the land. This word mana, in its ordinary use, signifies power, but in its application to

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and corresponds somewhat with the power of a Trustee. Thus mana gave a power to appropriate the land among his own tribe according to a well recognized rule which was considered tika or straight. Such appropriation, however, once made, remained in force, and gave a good title to the children and descendants of the person to whom it had been thus appropriated. The mana of the acknowledged representative of the tribe had then only power over the lands remaining unappropriated, which power was more especially termed the mana rahi or great mana--the mana over appropriated land being with the head of the family in rightful possession. In course of time quarrels and wars arose between different tribes, so that tribes nearly allied to each other united for mutual defence and protection; and all the Maori of New Zealand came to be divided, for this purpose, into a few large tribes, each representing generally the crew of one of the various canoes composing the migration from Hawaiki. These being frequently at war with each other, it came to pass that every man who did not belong to a particular tribe was considered in respect to it as a tangata ke or stranger.

It has been affirmed by many on presumed good authority that no member of a tribe has an individual right in any portion of the land included within the boundaries of his tribe. Such, however, is not the case, for individuals do sometimes possess exclusive rights to land, though more generally members of families, more or less numerous, have rights in common to the exclusion of the rest of the tribe over those portions of land which have been appropriated to their ancestors. Their proverbs touching those who wrongfully

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remove boundary-marks show this, if other evidence were wanting.

The lands of a tribe, in respect to the title by which they are held, may be conveniently distinguished under two comprehensive divisions.

1. Those portions which have been appropriated, from time to time, to individuals and families.

2. The tribal land remaining unappropriated.

Whenever land is appropriated formally by native usage, it descends in the family of its first owners according to well recognized rules, and the mana of the representative of the tribe ceases to have any control over it. Their laws as to succession naturally tended to render tae greater part of such lands the property of several of the same family as tenants in common; but an individual might and did frequently become a sole owner.

The tribal lands never specially appropriated belonged to all under the mana[1] or trusteeship of the tribal representative.

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Long before our colonists came to New Zealand land was of great value in Maori estimation, and was given and received as a suitable equivalent or compensation in certain cases.

Thus when a peace was concluded between two tribes land was sometimes given up as a sort of peace offering, but in a remarkably equitable spirit, it was always the tribe that had suffered least who, in such cases, gave some land to compensate the greater losses in war of the other party.

Such a mode of making peace seems to have been adopted in case of civil war between divisions of the same tribe, especially when waged with no prospect of either party completely mastering the other, and with the consideration of preventing both suffering such serious loss as would render them unable to cope with a common foe.

Also, in cases of adultery a piece of land would be demanded by the injured person; and his demand would be respected, for such was the proper compensation for the injury--land for the woman. But then a stratagem was sometimes employed, for when the injured man went to take profession, he might find his right opposed by some of the owners of the land who had purposely absented themselves from the conference whereat it was

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given up. And this unfair practice has sometimes been seized on as a precedent in their dealings with the Pakeha; for they have too often shown a readiness to sell lands to which they had only a joint right with many others, knowing well that those others would repudiate their act.

DESCENT OF LAND.

1. Male children succeed to their father's land, female children to their mother's land.

So says the proverb--"Nga tamariki tane ka whai ki te ure tu, nga tamariki wahine ka whai ki te u-kai-po." "Male children follow after the male, female children follow after the breast fed on at night."

2. If a female marries a man of another tribe--he tangata ke--she forfeits all right to land in her mother's tribe.

So says the proverb--"Haere atu te wahine, haere marokore." "The woman goes, and goes without her smock."

3. The children of a female married to a man of a stranger tribe have no right of succession to land in their mother's tribe."

So says the proverb--"He iramutu tu ke mai i tarawahi awa^[1]"--"A nephew or niece standing apart on the other side of the river."

But there is a provision which can be applied to modify this last rule. If the brothers of the woman ask for one or more of the children--their iramutu--to be given up to their care, and they are thus. as it were,

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adopted by their uncles, they become reinstated in the tribal rights which their mother forfeited.

A NEW ZEALANDER'S WILL.

Under this title in a former publication^[1] I gave a literal translation of a written communication which I received from the celebrated Wi Tamihana Tarapipipi of Matamata, as follows:--

"A certain man had a male child born to him, then another male child, and then another male child. He also had daughters. At last the father of this family being at the point of death, the sons and daughters and all the relations assembled to hear his last words, and to see him die. And the sons said to their father: 'Let thy mouth speak, O father, that we may hear your will; for you have not long to live.' Then the old man turned towards his younger brothers, and spoke thus:--

'Hereafter, O my brothers, be kind to my children. My cultivations are for my sons. Such and such a piece of land is for such and such a nephew. My eel-weirs, my potato gardens, my potatoes, my pigs, my male slaves, and my female slaves are for my sons only. My wives are for my younger brother.'

Such is the disposition of a man's property; it relates only to his male children."

From this it appears that the head of a family had a recognized right to dispose of his property among his male offspring and kinsmen, and that his will expressed shortly before his death in the presence of his family

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assembled for that purpose possessed all the solemnity of a legal document.

RAHI.

is the term applied to a tribe reduced to a dependant condition by a conquering tribe. The same authority says, "Hear the custom in regard to lands which are held by right of conquest, that is lands fallen to the brave (kua riro i te toa). Suppose some large tribe is defeated. Suppose that tribe is defeated a second and a third time, till at last the tribe becomes small, and is reduced to a mean condition. It is then made to do the work of dependants--to cultivate the land for food, to catch eels, and to carry wood. In short, its men are treated as slaves. In such a case their land passes into the possession of the tribe whose valour conquered them. They will not think of striving against their masters; because their power to fight has gone from them. They were not brave enough to hold possession of their land, and although they may grow numerous afterwards, they will not seek for a payment for their former losses; for they are fearful, and say among themselves, 'Don't let us strive with this tribe, lest we perish altogether, for it is a brave tribe.'"

William Thompson belonged to a victorious tribe; his sentiments therefore have a natural bias in favour of the sole right to the lands of the conquered tribe being with their conquerors. If, however, a member of the conquered tribe were to be consulted on this point, we should learn that he had not abandoned all idea of a right in the lands he had been allowed to retain, and was then occupying. Instances could be referred to where the conquered remnant of a tribe had regained power enough

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to re-possess themselves of the hands formerly their own; and in all cases where the conquerers have sold the lands of their tributaries the latter have resisted the right of the sellers to dispose thereof irrespectively of their own interests therein.

NGATI-HANUI.

One day a chief named Hanui and his travelling companion Heketewananga fell in with the old chief Korako seated in the hollow trunk of a tree, which he had converted into a temporary abode. Then said Hanui's companion, "I will make water on the old man's head, to degrade him (lit., that his growth may be stunted)." Hanui was displeased; for the old man was his cousin, being the son of the younger brother of his father Maramatutahi, that was the cause of his displeasure at the words of his companion. But that fellow Heketewananga persisted. He would not listen to the anger of Hanui, but climbed the tree in order to make water on the head of the old man. And when he had done so, he jeered at the old man. "Ho I ho! now then your growth is stunted because of my water; for your head has been made water on."

With this Hanui and his companion went on their way. When they were gone Korako also went to seek his son. When he reached the bank of the river Waikato he saw some boys on the other side of the river at play near their Pa, and called to them, "Go and tell Wainganui to bring a canoe for me." "We will bring a canoe," said the boys. But the old man said "No. I don't wish you to bring the canoe. Go and call Wainganui. He himself must bring the canoe." So the boys went and told Wainganui, "Your father is calling you to go to

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him with a canoe." "Why did not you go?" said Wainganui. "We offered to take the canoe to him," said the boys, "but he was not willing. He said that you must take the canoe to him." So Wainganui went in a canoe, and when he reached the other side of the river he called to his father to come down to him. But his father said, "Do you come up here to my side." So Wainganui left the canoe and went to his father; for he knew that he had something important to say to him. Then seating himself by his father's side he said "What means this that you have done?" The father said, "My son, I have been wronged by your uncle Hanui and by Heketewananga." "What sort of wrong?" inquired the son. "My wrong," said the old man--"my wrong. Heketewananga climbed on top of my house, and made water on my head--at the same time he jeered me, 'Ho! ho! now then your growth is stunted.'" Then the son said to his father, "Ha! you were all but murdered by those men. Their act shall be avenged. Their heads shall soon be struck by my weapon." Then turning in anger he went back. to his canoe, and returned to the Pa.

Without delay he called together the whole tribe, and made known to them all that his father had told him. After the tribe had heard the wrong done to their old chief, they assembled. at night to deliberate, and determined to go the next morning to kill those men. Then they retired to rest. At daybreak they arose and armed themselves, in number three hundred and forty, and set out for the Pa at Hanui.

The men within that Pa were more than six hundred. So when they saw the: armed party coming to attack the

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Pa, the six hundred rushed out to fight, and a battle took place outside. The men of the Pa were driven back, and the conquerors entered it with them. Then while the men of the Pa were being struck down Wainganui shouted to Hanui, "Be quick, Hanui, climb on top of your house, you and your children and your wives." So Hanui and his children and his wives climbed on the roof of their house. But most of the men of his tribe were killed, some only being left to be a Rahi, in which condition they now remain.

TAPUIKA.

It may happen that a tribe is driven off its lands by a conquering tribe, who may hold possession of the conquered lands for many years, but be, in their turn, driven off by the assistance of tribes allied to the original possessors of the land. It then becomes a question what right the allied tribes acquire in the recovered lands. A case of this sort came under my notice thus: I was instructed to purchase for the Government a piece of land of moderate size at Maketu to be occupied as a Mission station. As I had built a house on this land on a title of mere right of occupation, or as expressed in Maori, "Noho noa iho," and had resided there for some time, I thought, naturally, that the persons, at whose invitation my house had been placed there, were the persons to whom the land belonged. An arrangement was therefore made with them for the purchase of the land required, and a price agreed on. One night shortly after I was awoke from sleep by a knocking at the door of my house. My visitors were a deputation from some of the tribe Tapuika who had a small Pa

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below my house by the river side, at some distance from the large Pa by the mouth of the river. Their business was to warn me not to complete the purchase of the land, the persons with whom I had contracted being, as they affirmed, only occupiers and not owners thereof; whereas their tribe Tapuika were the owners, and the mana of the land belonged to their chief Te Koata. They came by night because they did not wish their interference to be known publicly, as it would cause disputes. And it did cause dispute when their nocturnal visit and its object was made public the next morning. However a good result came of it, for it was agreed that the question of title should be referred to the decision of the chiefs of the whole Arawa tribes.

A general assembly of the tribes consequently met at Rotorua, when it was shown that the land I proposed to purchase came within the old boundaries of Tapuika. But several generations before the present the Pa at Maketu had been taken by the hostile tribe Ngatiawa, and the Arawa tribes, including Tapuika, had been driven from the sea-coast to Rotorua and elsewhere. When the flax trade with Sydney was in vigour, many of the Arawa natives had been permitted to return too scrape flax for sale to a trader named Tapsell who was stationed at Maketu; and at length the combined Arawa tribes expelled Ngatiawa, and recovered the lands of their forefathers. They then established themselves in force at Maketu, and some of them marked out by boundaries, and took possession of land originally belonging to Tapuika, for their own use. Tapuika did not offer any objection to this, but now said that the land so taken was merely given up for their occupation, and that the

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mana of their chief Te Koata over the land had never been given up.

The decision of the chiefs of the Arawa, to which Te Koata, who was present, assented, was that as Tapuika could not have recovered their lands if unassisted by other Arawa tribes, the land of Tapuika which had been taken possession of by the fighting men of the combined tribes now belonged to those men, or expressed in their own words, "kua riro i te toa," had gone to the brave.

This decision was important, as it established a precedent of value in dealing with any lands similarly circumstanced elsewhere in New Zealand--a precedent being always a powerful argument with the Maori.

THE EARLY SETTLERS.

When foreigners, called by the natives Pakeha, first came to New Zealand, they were admitted readily by the Maori to dwell among them. They were allowed to acquire land by purchase, and to form alliances with their families; and the children of such connections were considered as belonging to the tribe of their mother. They were never treated as belonging to a stranger tribe--as tangata ke. Täku pakeha, toku matua, my own pakeha, my father, were the common terms used to denote their sentiment of relationship.

It is not to be wondered at that every tribe in these islands was at first anxious to have Pakeha settlers dwelling with them, and was ready to admit them to the privileges of tribesmen, for through them they could obtain what they most valued of the world's goods. But

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when dissensions arose between the two races, notably about land, and issued in war, the feelings of those who took up arms became modified, and their old friends, the Pakeha, were no longer looked on as matua or fathers, but rather as tangata ke, or strangers.

THE WAITARA DISPUTE.

It is a recognised mode of action among the Maori, if a chief has been treated with indignity by others of his own tribe, and no ready means of redress can be obtained, for the former to do some act which will bring trouble on the whole tribe. This mode of obtaining redress is termed "whakahe," and means putting the other in the wrong. Strange to say, this very dangerous principle of action, by whatever great evils it may be followed, obtains the respect and not the censure of the whole tribe for the person who adopts it.

Being in the neighbourhood of Matamata some years ago, not long before the war broke out in Waikato, I heard in conversation with a chief^[1] of Ngatihaua, who had taken part in the war at Taranaki, that the reason why Teira proposed to sell Waitara was to obtain satisfaction for a slight put upon him by Wi Kingi in connection with a private quarrel.^[2] I never had an opportunity to verify the facts narrated, but there was in them nothing improbable, and according to Maori usage they accounted for Teira having acted as he did.

The land thus offered for sale was estimated to contain about six hundred acres, the whole of which had, in

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former years, been thickly inhabited, and apportioned among a great many individuals and families. It was therefore of the character comprised under our division No. 1. Teira and those more nearly allied to him offered to sell the whole six hundred acres, in opposition to the wish of Wi Kingi and others who claimed rights in the land.

That Kingi and his party had substantial claims to portions of this land, and that such was the original ground of his opposition to the sale appears from several letters written by natives at the time as a kind of protest, particularly from one written by Riwai Te Ahu in which he says: "The reason why Wiremu Kingi and his party made so much objection, when Teira proposed that the place should be sold to the Governor, was the fear lest their land and ours should be all taken as belonging to Teira."

A chief of great influence well supported has no doubt frequently acted as if he could dispose of large tracts of land without consulting others who had rights included therein. But he never thought of asserting a right to ignore in toto the rights of others not parties to the sale. On the contrary, the chief and they who had shared the purchase money would say to other claimants who had not received any part of the payment, either that they should be satisfied out of a future payment (for it was a general, though an impolitic and bad custom, to pay by instalments in such transactions), or that they might themselves apply to the purchaser for payment of their interests, or that they might hold fast to their own.

If before paying any part of the purchase money to

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Teira, he, had been required to mark out the boundaries of those portions of the six hundred acres which he and his party claimed, the onus probandi would have been placed on the right man. It would then have been discovered that those portions were detached and of various shapes and sizes, and in some cases only to be approached by narrow paths, and that some of his boundaries were disputed. For all which reasons what he could have rightfully sold would have been of little value for the occupation of our colonists.

But in addition to any claim of Wi Kingi and others whom he represented to the ownership of portions of the six hundred acres offered for sale by Teira, they had a further right not to be disturbed in their holdings, which does not appear to have been considered at the time.

When the Te Ati-awa tribes determined to abandon Cook's Straits and return to the lands of their ancestors about Taranaki, they were still in dread of their old enemies the Ngatimaniapoto. It was therefore arranged among them, for their better security, that they should form one united settlement on the south bank of the Waitara--thus placing the river between themselves and the common enemy. Supposing, therefore, that Wi Kingi and his division of the tribe had no land actually their own by ancient right at the place thus occupied, they had acquired a right by virtue of the arrangement made, a right recognised by old native custom, on the faith of which they had expended their labour in building houses, as well as in fencing and cultivating the land, to disturb which, in a summary manner, could only be looked on as an offensive act. We have seen also how

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in relation to the dispute between Tapuika and the Arawa tribes it was adjudged by general consent that the latter had acquired a permanent right to the lands which they had occupied under somewhat similar circumstances.

There appears little reason to doubt that Teira's proposal to sell Waitara was prompted by a vindictive feeling towards Wi Kingi; for he knew well that by such mode of proceeding he would embroil those who would not consent with their European neighbours. At the same time it is a rather mortifying reflection that the astute policy of a Maori chief should have prevailed to drag the Colony and Her Majesty's Government into a long and expensive war to avenge his own private quarrel.

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