3.4 EXPERIMENTOS
3.4.6 PRUEBA #6 APARATO DE ALTURA METACENTRICA (P6235)
Most of the judges appointed to the Native Land Court had extensive experience in dealing with Maori and with Maori customary rights to land. This experience might be derived from a previous work as a interpreter, surveyor, land purchase agent, military officer, registrar of the Court or (much less often) lawyer. In this chapter it is argued that judges had to engage with Maori customary rights to land; the whole function of the Court was to establish a stable and settled title for the purposes of alienation. The only way the Court could achieve this was by engaging with the relationships and rights as they were argued by Maori claimants in the Court and where disputes arose they needed to be able to resolve them. The judges were ably assisted in this task by the Maori assessors. In much of the existing historiography, the assessors are marginalised as irrelevant. In contrast, this chapter argues that the assessors could be crucial to the resolution of customary disputes and that they did have real power in the Court. For this reason, this thesis refers to the Court, as constituted by a judge and one or more assessors, rather than referring to the judge only.
The judges and assessors were the two groups who were central to the process of negotiating the resolution of disputed claims. Part Three of this thesis deals with the different ways Maori argued customary rights before the Court and how the Court went about resolving these disputed claims. This chapter gives a brief overview of how the Court operated when hearing claims based on customary rights to land but focuses primarily on the judges and the assessors. Agents and lawyers representing Maori claimants will be referred to briefly but the emphasis is placed on the men who presided over sittings of the Court. The role of such representatives will become clearer when examining the way in which Maori argued their claims in the Court in subsequent chapters.
In relation to the judges, this chapter places emphasis on the different backgrounds of these men and the common pathways which led them to the bench of the Native Land Court. The judges were drawn from four particular groups. The first were the lawyers. During the nineteenth-century, very few of the judges appointed had legal training or legal experience but there were a small number. However, three
PAKEHA JUDGES AND 'MAORI ASSESSORS 1 70
further groups provided the training ground for the judges throughout the nineteenth and early twentieth centuries. The first were drawn from missionary families or were associated with the New Zealand Company, especially as surveyors. Most of the early judges were appointed from this background. The second group were soldiers who fought in the wars of the 1 860s. They were often closely associated with the Maori contingents who fought with imperial troops during these conflicts and were appointed to the bench from the early 1 880s. The final group who were appointed from the mid- 1 890s were from within the Court' s own institutional structure and they were the clerks and registrars who were promoted through the public service and were finally appointed judges. Their background and experience in working with Maori claimants and applicants was the basis for their appointment.
The common characteristic which draws these three diverse groups together is that all had long experience in dealing with Maori customary rights to land. The surveyors who had worked on the early Crown and New Zealand Company purchases were forced to deal with disputes among Maori over rights to pieces of land on the ground. The soldiers turned judges had lived, led and fought with the Maori warriors who were quite often fighting not for the Crown but as part of long and clearly defined conflicts over land with neighbouring tribes. As for the clerks, they had many years experience of dealing with applications for investigation of title and the institutional framework in which the Court operated.
In all these instances, the judges had a background of dealing with Maori customary rights to land. Ironically, it was generally the lawyers who had little or no prior experience of dealing with those rights. There are obvious exceptions to this suggestion, such as
F.D.
Fenton and R.N. Jones, but generally it was the lawyers turned judges who had the least experience. Those most likely to codify custom, therefore, were often in the weakest position to do so. Among the vast majority in the three groups referred to above, who were not practising lawyers prior to their appointment, the main prerequisite for the job was experience of working with Maori and with Maori land. And there was good reason for this. As will be shown in subsequent chapters, resolving disputes to land was a difficult task, especially when the key function of the Court was to provide stable and settled title to Maori land.The failure to do so entirely undermined the operation of the Court because avenues were available, in the form of rehearing, appeal and petition, for Maori claimants to continue litigation long after the original decision. There was a cost consideration in doing so and there is plenty of evidence to show that continuing the fight beyond the initial hearing did cause significant economic problems for those who continued disputes over customary rights to land in this institutional framework. But there is also a great deal of evidence to show that Maori took these opportunities to continue the fight and would go all the way to the Court of Appeal if necessary. What all this meant is that the failure of the Native Land Court to negotiate a path agreeable to all those claimants at the initial hearing tied the land up in litigation for
P AKEHA JUDGES AND MAORI ASSESSORS 1 7 1
many many years. This issue will b e examined in much greater detail in a subsequent chapter but the point here is that the failure of the judges to engage with and respond to the claims of the Maori asserting rights in relation to a particular block of land meant the Court failed to provide a stable and settled title to provide the basis on which purchasers, whether Crown or private, could negotiate.
There has, in the past, been a tendency to produce one dimensional caricatures of judges which do not reflect their role in the Court process.) They are generally portrayed as, if not racist then righteously ethnocentric and in consequence almost entirely unable to comprehend the diverse and complex nature of Maori customary rights to land. The argument here is entirely the opposite. That is, the judges had to engage and respond to the claims argued before them and to help negotiate a resolution where disputes existed to establish an effective title. Judges could not impose their will on the various kinship groups asserting claims before them because their decisions were always subject to appeal and rehearing and as noted above this avenue to challenge was used regularly when the Court failed to provide a satisfactory resolution of claims. As will be shown below, the judges had to have and usually did have long experience of dealing with Maori customary rights to land. They had to or else the Court would have been entirely irrelevant as a mechanism for establishing title to Maori land.
Having examined the judges, the second half of this chapter deals with the other group required to constitute a Court until 1 909. They are the assessors. In some of the existing historiography, the assessors are dismissed as entirely irrelevant, having a very limited role when the Court was hearing claims to land and no role in a decision-making process dominated by the judge.2 In fact, the minute books suggest entirely the opposite and it is argued here that the assessors were central to the resolution of disputed claims to land. There were many more assessors than judges appointed during the nineteenth-century and no attempt has been made here to collate the entire list. Moreover, with the exception of a number of prominent tribal leaders, very little is known of the vast majority of assessors and again no attempt has been made here to provide a general picture of their collective b ackground. Rather, emphasis has been placed on the examples which illustrate the role of the assessor in the Court and the occasions which suggest their position was o f some significance. The Court had to engage with the claims of the Maori who appeared before them and
I See, for example, Alan Ward, A Show of Justice. Racial 'Amalgamation ' in Nineteenth Century New
Zealand, Auckland: Auckland University Press, 1973, p.2 1 6 and p.289; Ange1a Ballara, Iwi. The Dynamics ofMaori Tribal Organisationfrom c. 1 769 to c. 1 945, Wellington: Victoria University Press, 1998, pp.88-92; and, David V. Williams, 'Te Kooti Tango Whenua. ' The Native Land Court 1864- 1 909, Wellington: Huia, 1999, pp. 152-55.
2 See, for example, Alan Ward, 'Law and Law-enforcement on the New Zealand Frontier, 1840- 1 893,'
New Zealand Journal of History, 5:2 (October 197 1), p. 1 4 1 ; and, Williams, 'Te Kooti Tango Whenua. '
PAKEHA JUDGES AND -MAORI ASSESSORS 1 72
the assessors, it will be argued, played a central role in defining and resolving such disputes.
During the nineteenth-century, the first thirty-five years of the Court' s existence, forty-two judges were appointed to the Native Land Court bench. In the twenty-eight years after the turn of the century, a further fi fteen judges were appointed. Their backgrounds were extraordinarily diverse. Some, surprisingly few though, had a legal background. The chief judge was usually legally trained - G.B. Davy was the one exception. A number had dabbled in provincial and national politics although there were also some career politicians. Of the earlier judges, many were associated with the New Zealand Company, particularly as surveyors, and others were descended from early missionary families. A second, later, group of judges had served in some capacity in the conflicts of the 1 860s. From the late nineteenth century, there was an increasing preference for selecting judges from the staff of the Native Department. It was very common for judges to enter the Department as cadets, be promoted through the ranks of clerk, interpreter, registrar of the Court or land purchase officer and then be appointed to the bench. There were some others though who were selected from different parts of the civil service, especially those involved in the administration of land in some way. In general, all of the judges had, prior to their appointments, held positions which involved dealing with Maori land in some way.
Throughout 1 865, eleven judges were appointed to the Native Land Court. Without question the most important appointment was the first: Francis Dart Fenton was appointed chief judge of the Court on 9 January 1 865. The same day George Clarke and John Rogan were appointed ordinary judges. Later that year they were joined by James Mackay, W.B. White, T.H. Smith, W.L. Buller, G.F. Swainson, James Booth, H.A.H. Monro, and F.E. Maning. So many appointments were required because a number - Buller, Clarke, Mackay and White - did not last long. They retained other appointments, particularly as resident m agistrates and civil commissioners, which was considered inappropriate after the re-establishment of the Court in 1 865.3
All of these men were well established in New Zealand and had a long association with Maori, either through missionary activities, the New Zealand Company or trade. For example, Clarke arrived in New Zealand as a catechist with the Church Missionary Society and was later appointed Chief Protector of Aborigines by Hobson.4 Buller, likewise, was closely associated with missionaries.s The son of a
3 Ward, A Show of Justice, pp. 1 80-8 I .
4 Ray Graver, 'Clarke, George,' in The Dictionary of New Zealand Biography. Volume 1 . 1 769-1869, W.H. Oliver (ed.), Wellington: Alien and Unwin and the Department of Internal Affairs, 1 990, pp.82- 84.
PAKEHA JUDGES AND MAORI ASSESSORS 173
Wesleyan missionary, he was raised at the mission station at Tangiteroria, and after an appointment as native interpreter at the Wellington Magistrate Court, he was rapidly promoted through the Native Department. Booth was another judge drawn from a missionary background.6 He came to New Zealand to assist the CMS missionary, Richard Taylor, at Wanganui where he settled and farmed for some years. He assisted military forces who were engaged in the guerilla campaigns there.
Several other judges were former surveyors for the New Zealand Company. White, for instance, came to New Zealand and worked for the New Zealand Company on roads in the Wellington region.7 Grey later appointed him Resident Magistrate there and gave him the job of settling disputes between Te Rarawa and Nga Puhi over land sales. Rogan and Smith were both surveyors of the New Zealand Company too. Rogan, born in Ireland and trained as a surveyor, was employed by the New Zealand Company and in 1 840 traveled to New Zealand as a part of the advance party preparing for the arrival of settlers.8 He was sent to Taranaki and eventually became assistant chief surveyor for the Company where, as settlers arrived, he was involved in the survey of land purchased from Maori. In 1 854 he was appointed Land Purchase Commissioner in the Waikato and four years later was transferred to Auckland where he engaged in land purchase activities in the Kaipara district. Smith arrived at Port Nicholson in 1 842 as a surveyor's cadet but three years later was appointed to the Protectorate Office at Auckland and was later sent to Maketu where he learnt Maori.9 During the 1 850s he held several appointments in the Native Department.
Three other judges were very early settlers who had no association with either missionary organisations or the New Zealand Company. Monro's background was neither the missionary families nor the N ew Zealand Company but he also gained experience in working with Maori in the Native Department.lo Born in Tasmania, he arrived at the Hokianga as a child with his family in 1 835, and in 1 857 was appointed an interpreter in the Department at Auckland where he remained until his appointment as a judge. Swains on was another early settler: he was the second son of the first
S Ross A. Galbreath, 'Buller, WaIter Lawry,' in The Dictionary of New Zealand Biography. Volume 1, 1 769-1869, W.H. Oliver (ed.), Wellington: Alien and Unwin and the Department of Internal Affairs, 1990, pp.53-54. See also Ross Galbreath, Waiter Buller. The Reluctant Conservationist, Wellington: GP Books, 1989.
6 The Cyc/opedia of New Zealand: Industrial, Descriptive, Historical, Biographical Facts, Figures,
IIIustrations, 6 vols, Wellington: Cyclopedia Co., 1 897- 1908, Volume 2: Auckland Provincial District, p.979.
7 Barbara Bolt, 'William Bertram White - 182 1 -19 10,' Auckland- Waikato Historical Journal, 46 (April
1985), pp.9- 12.
8 W.G. Russell, 'John Rogan - Surveyor and Magistrate 1 82 1 - 1 899,' Auckland- Waikato Historical Journal, 24 (April 1974), pp.32-35.
9 The Cyc/opedia of New Zealand, Volume 2: Auckland Provincial District, p.275.
P AKEHA JUDGES AND MAORI ASSESSORS 1 74