May 20th. 1870.
My Dear McLean,
I promised to have devoted yesterday to writing something about that Outlawry notion; but a very large mail came, in which has been an immensity of writing to do. I really was writing from daylight yesterday morning until half past 12 o'clock last night, and am not near done yet; and as I must send off my letters to meet the out-going mail at Herd's Point this evening, all I can do is to say a few hurried words on the matter, though the subject is one which would admit of, and indeed require a long essay. I am, however, quite sure that you are quite as well up in the matter as I am, or better; and that therefore although I merely write to save myself from breaking a promise, that you will be no looser, but perhaps gainer, by my not saying much.
I have always thought that one of the most fertile sources of our difficulties has been a fasle theory which we started with in the beginning, that is to say, that after the Treaty of Waitangi, the Natives became British subjects just in the way that we natural born subjects are, and that the laws and usages of England ought and could be applied to them.
I know that this was the idea of the first Government, and I have, myself, often heard it enlarged upon in those times, as well as the ease with which any Maori rebellion could be put down by fifty men or so. This mistaken theory put the Government under the necessity of doing at least something in conformity with the idea that the law, that is strictly British law, was in force, and to be enforced here in this country; and consequently we, though departing in practice more and more every day from the first theory, even till we came at last to making special and exceptional laws with reference to natives only - did at last in the course of a few years, manage to do just enough to shew our own weakness, and cause the natives to distrust, fear, and resist, that law which if administered with more caution, and given in homeopathic doses at first, would possibly have been both their salvation and ours. The thoery that the natives are British subjects in the same sense that we are, has never been given up, and that the law of England is to be enforced against them, and that they also have the same rights and priveleges as British subjects.
This notion has even at last been stereotyped by ''Native Rights Act'', and so having suffered almost
all we can for our Theory, and killed our fellow British subjects by hundreds for our Theory, and been massacred ourselves without mercy for our Theory, and incurred a National Debt for our Theory, and gone through fire and flames, and Hell upon Earth for our Theory, - why there is nothing else for it now but to stick to our Theory. The English Imperial Government who invented it may renounce it and desert us too; but we must keep it in affectionate remembrance of the dear old Mother Country, who helped us so well in our difficulties, even till she found it was rather trouble-some and slightly expensive.
But now comes the question - how are we to benefit by the good which our Theory contains without running the risk of - firstly, going through another course of blood and murder, which will certainly begin again as soon as we begin to stealthily and unwaveringly enforce the law against offenders of the native race, as we are bound to do if they are, as declared by Act of Parliament, (to prevent mistakes) British subjects in every respect as we are, having the same priveleges and under the same responsibilities as natural born British subjects; and secondly, - how are we to prevent the native race from destroying themselves quite as effectually as if we killed them all in battle
by means of those very blessed priveleges, which by virtue of their being British subjects in every respect as we are, they have a right to, and must be conceded to them by us?
Question No. 2, I have nothing to do with just now; and so will return to No. 1, - which between you and I, I may as well put in a more familiar form, in this way, how are we to hold to our Theory that the natives are in every respect British subjects as we are, and to be reverenced by the British laws and usages, and at the same time with any degree of plausability depart from the practice which such a Theory must in ordinary, be supposed to give birth to? If that question could be answered in any reasonably plausible manner, and so as to go down with the public and Opposition, it would be a blessing to all well-conditioned Native Ministers for many a year to come.
The only glimpse I have ever had of anything approaching to an answer to this question would be to pass an Outlawry Act, - something to the following effect. I, of course, only give the rude idea, as it has crossed my mind, but I have never had time to think it out.
Suppose it to be enacted that any native who resists, evades, or wilfully neglects to submit to, or fulfill any sentence or decision of any of the petty
country Courts, which have jurisdiction in civil and criminal cases to a limited extent. Should he, after due notice, and an opportunity given to submit to the law, be outlawed - that is to say, exculded from the benefit of the Law, and deprived of its protection, so far as the jurisdiction of that court went:- this, especially in the North, where commercial relations with the Europeans are very extensive, and where the natives do really derive great benefit from the law, would be a very severe punishment, the more so as it would appear so perfectly just to the natives themselves; who would, moreover, no doubt commit all sorts of petty aggressions in many instances against the delinquent when they knew he was debarred from appearing as a plaintiff in the Courts; and the original sentence hanging over him always, I think few would hold out long before they would come in and submit to the law. But whether they did or not, we would be saved any more bother with dangerous characters; and as I think there would be very few who would not submit before long, as the thing would be also felt by a native as a disgrace, a feeling which they are very susceptible to after their own ideas. The Outlaw's name and description to be posted up
conspicuously in every court in the country, of equal jurisdiction with the court in which the original sentence against him was pronounced; and also published in the Gazette of New Zealand; or, as I have said, something like this, this being only the rough idea. I would call this the Lesser Outlawry.
Then suppose it be enacted that in the case of any native committing a Capital felony, murder, rebellion, robbery with violence, etc. - and the person or persons (the offence being sworn to, and all proper means taken, of course, to trace it to the criminal), guilty, successfully resisting or evading punishment or trial, then, after proclamation made giving so many days for the offenders to come in and stand their trial, the sentence of Outlawry should be declared against them in the higher degree, annulling all their rights of property of every kind, and offering a reward, more or less high, according to circumstances, for their apprehension, dead or alive. In some cases the reward should be very high, high enough to induce armed parties every now and then to take a hunt after them, on their own expence.
There should be, I think, also a Clause by which all persons harbouring, assisting, or protecting
the Outlaws in the higher degree, should be punished, say possibly by loss of rights of property of every kind; but to be pardoned and reinstated in those rights if they should seize and give up the original offenders to punishment (provided that in harbouring them they have not shed blood), but if in harbouring or defending the original outlaws, they should have committed murder or any other great crimes, then the defenders to be outlawed also in the higher degree, as well as the original criminals.
It might, perhaps, be a good idea to give anyone apprehending or taking dead or alive, any of the outlawed persons, a right to take their lands, or part of their lands, as the case might be, as a further reward for the apprehension of the criminals.
I believe the above contains the rough ground of what would be a terribly effective measure; by which, with little or no expense, we could turn Hau Hau murderers and rebels into game to be hunted for ever by all sporting characters in the country, and encourage a nice school of fighting men, who would grow up about us like olive branches. We would ''Teach the young idea how to shoot'', and above all things, we
would not be forced, by our stubborn old Theory, to ''comprehend all hagrown (?) men'' ourselves; we would just, by Act of Parliament, transform them into game, and issue licences free of charge, open for all seasons, and guarantee a high price per head when killed, for the produce of the chase.
I really beg you will excuse the hurried scrawly way in which I have written; but I am really wearied out, and have to get through a great deal of work before I leave, a week hence, for Ahipara.
Of course there are many minor matters which I have not touched on, to be considered and embodied in the Act; and I need not quote precedents and authorities to shew that there is nothing in it against our own practice in England and Scotland not so very long ago. They are as plenty as blackberries; every lawyer knows them; or if not, I do. Similar exigencies require similar action in every country; and I do believe that a most useful Act may be worked up out of the Outlawry idea. You have outlawed Te Kooti already, by offering a reward for his apprehension, dead or alive. But we want an Act. Only get it passed, and I will hint to you a way of handling it, more extensively useful, and more to your own comfort
than the ''Collective wisdom'' will think of at the time they vote for it.
At the Treaty of Waitangi I heard the natives saying, and with sincerity too, that from that time out they would submit to the laws of England as the law for the country; but I knew well that they never would do so, and would resist it to the death, if we attempted to enforce it really and in every case without respect to persons or prejudices. The Government at the time perhaps might have been in some degree deceived by these protestations of the natives, as they may not have considered that unfortunately the natives did not know what they were talking about. They took it for granted that the Laws of England were something that would make them all live for ever in an elesium of blankets, muskets, and tobacco, etc. etc. that was all.
I heard the natives at Opoke the other day saying the same thing, and asking for a jail. They were perfectly sincere; but just put up the jail, and try to put one of those speakers into it, and see what will happen. They are certainly something more enlightened and something more civilised in their minds than at the Treaty of Waitangi. A decided step in advance has been made; but when they say they will from this
time out submit to British law, although some of them even may think so themselves, I know that to all useful intents and purposes they are as ignorant now about what they are talking about as they were at the time of the Treaty of Waitangi; and you will as readily get an old lion to eat hay, as you will get the present generation of Maoris to submit to our criminal law in any part of the country where they have men enough to fight. And indeed, if one could get the poor old lion to eat hay, it would be a great cruelty, for he is not used to it. But if he won't keep quiet when we let him alone, we must just Outlaw him, and let some of his own cubs at him, and to keep dodging along till he learns to be good.
My dear McLean, I must stop. I am crushed with work and botheration of all kinds; but in all this nonsence that I have been writing, I do really believe are one or two grains of useful matter. I can't help believing that the Outlawry Act may be made extremely useful, a good and possibly a trump hand measure, a thunderbolt in the hands of those who know how to wield it.
I am, my Dear McLean,
Yours ever sincerely,