The Treaty of Waitangi; or, how New Zealand became a British Colony

So wrote one of the great explorer's most friendly biographers, and in his dispassionate review of the facts we have a correct summation of the rights which Cook's discoveries did and did not confer upon our nation. Clearly New Zealand was not a country in which, or over which, Britain could, by Cook's act, acquire a bona fide possession, for it was inhabited by a strong and virile people, living under a system of government adequate in all respects for their social and military purposes.

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; who are not without some measure of agricultural skill, and a certain subordination of ranks, with usages having the character and authority of law." 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.

But such rights as Cook's discoveries did confer upon the nation, the Government of that day sought to conserve. Following upon his return to England with the accounts of his travels in strange waters, his contact with strange peoples, his finding of new lands, proclamations were issued which were not contested by other Powers. The Dutch title to these islands was thereby lawfully extinguished, and New Zealand, Van Dieman's Land, and Australia became for geographical and colonising purposes portions of the British Empire.

A laudable effort was made to render the claims of Britain even more explicit when in 1787 Captain Philip was appointed by Royal Commission Captain-General and Governor-in-Chief in and over the colony of New South Wales and its dependencies, which were claimed to include all the discoveries of Cook in the Southern Pacific. The territory over which the new Governor was authorised to exercise jurisdiction was described in his Commission as extending "from Cape York, the extremity of the coast to the northward in the latitude of 11° 37´ south, to the South Cape, the southern extremity of the coast in the latitude of 43° 30´ south, and inland to the westward as far as 135° of east longitude, comprehending all the islands adjacent in the Pacific Ocean within the latitudes of the above-mentioned capes."

Unfortunately, owing doubtless to imperfect geographical knowledge on the part of those responsible, these boundaries were but loosely defined, for if they had been strictly adhered to, then Britain was setting up a claim not only to Cook's valuable discoveries, but to all the islands eastward of Australia, as far as the western coast of South America, embracing many Spanish discoveries; while on the other hand they excluded not only Stewart's Island, but all that part of the Southern Island of New Zealand south of Bank's Peninsula. Governor Philip's Commission was therefore faulty, because it asserted excessive rights in the one direction and made insufficient claims on the other.

It is true that in later years these boundaries were abandoned and the position made even more anomalous. During the Governorship of Sir Thomas Brisbane it was deemed expedient to separate Van Dieman's Land from New South Wales, and more circumscribed limits were assigned to the Mother State. In this readjustment, whether by accident or design it is impossible now to say, not only Van Dieman's Land but New Zealand were excluded from amongst the dependencies of New South Wales. Then it became an arguable point whether the word "adjacent" had ever covered Islands so far distant from the parent colony, and much legal acumen was expended in the effort to justify the contention that New Zealand had always been beyond the pale of the dependencies.

Up to this point, however, the official mind had never been troubled by doubts as to the extent of its jurisdiction. Governor Philip not only believed that his authority extended to New Zealand, but far beyond it, and under this belief he actually colonised Norfolk Island as a part of the territory he had been commissioned to govern. In like manner the British Government believed it had a right to all that it claimed in Philip's Commission; and at the Congress of Vienna at the close of the Napoleonic wars in 1814, when the map of Europe was recast, it had its claims allowed, New Zealand being acknowledged by the Great Powers to be a portion of our then infant Empire. Even earlier in the century Ministers had seriously discussed a representation made by Lieutenant-Colonel Foveaux, of the New South Wales Corps, to appoint a Lieutenant-Governor in New Zealand, which under his scheme was to become a penal settlement subordinate to New South Wales. Fortunately for New Zealand that baneful suggestion was not entertained; but Governor Macquarie appointed Justices of the Peace and exercised the functions of Government within the Islands, as did his successor, Sir Thomas Brisbane, down to the time of his proclamation which excluded New Zealand from amongst the dependencies of New South Wales.

Thus far Britain would seem prima facie to have kept alive her right to colonise in these Islands as against any other nation, except, perhaps, in the important particular that she had not systematically occupied the land. It is not sufficient that discovery should take place, or that the free will and consent of the native inhabitants should be obtained to the introduction of colonisation. It is an essential factor in the acquisition of new territory that the sanction thus secured should be followed up by speedy emigration and effective settlement, for obviously no nation could be permitted to hold idle for an indefinite period vast tracts of waste country to the exclusion of another nation to whom the inhabitants might also be willing to concede the right to colonise. The principle upon which this view is based has thus been stated: "The Law of Nations, then, will recognise the proprietary rights, and the sovereignty of a nation over only uninhabited countries which it shall have occupied really and in fact, in which it shall have formed a settlement, or from which it shall be deriving an actual use."

In the case of inhabited countries the condition of occupation is no less exacting. It is, however, hedged about by the additional restriction that before occupation can take place the right to settle must be ceded by the inhabitants. Had the point ever become one of national importance as between ourselves and France, Britain might have pleaded that her occupation was at least as far advanced as that of her rival. She might have pointed to her Missionaries, her traders, and her whalers as evidences of an irregular settlement by no means inconsiderable. But whatever importance British jurists may have attached to such a form of occupation in the settlement of an international dispute, it cannot be denied that it loses much of its value from the fact that the settlement was irregular, and that British Ministers would have been put in the anomalous position of calling to their aid a condition of society which had arisen, not with the sanction of the Crown, but in spite of the Crown.

If these views be founded on the principles of justice, it will be seen that it is a popular fallacy to suppose that Britain acquired any rights of sovereignty in, or over New Zealand by virtue of Cook's discovery. Her position in 1770 was much less absolute than that, and whatever rights she had then acquired she subsequently proceeded to abrogate. In 1817 commenced a period of renunciation during which successive British Governments appeared only too anxious to absolve themselves from all further colonial responsibilities. Not only by neglect, but by direct Act and Ordinance did they repudiate the claim to New Zealand which their predecessors had been laboriously building up through all these years. These Acts of repudiation were specifically enumerated by Lord John Russell in the memorandum which he prepared for Lord Palmerston in reply to the protest of the New Zealand Company against the views on sovereignty adopted by Lord Normanby in his instructions to Captain Hobson, and it was the known abrogation in these statutes of whatever claim Britain may have had to New Zealand that led to the Declaration of Maori Independence in 1835.

It cannot be said that this Declaration of Independence was a serious bar to Britain's colonising scheme, for under the Confederation of Chiefs which grew out of it, no Government was founded stable enough to merit recognition by other established administrations. Indeed its own members were the first to acknowledge its failure in the face of the difficulties by which it was confronted. As useless and as harmless as the "paper pellet" to which it has been compared by the sarcastic Gipps, it was neither government for the Maori nor a controlling influence for the Europeans. It was therefore not that which the Maori had done which created difficulty for the Melbourne Cabinet when they had seriously to face the question of assuming responsibility in New Zealand – the obstacles to be overcome had, curiously enough, been raised by the acts of the British Parliament itself. This was why, at the critical hour, Britain stood in no better position towards New Zealand than did any of the other nations; why she had to run the gauntlet of their competition for sovereignty, and why more astute statesmanship on the part of France or the United States might have robbed her of "the fairest flower in all the field."

In bidding for the sovereignty of the country two courses were open to the British Government – force of arms, or honourable negotiation with the chiefs. It is not to be doubted that had Britain chosen to invade the country, she might, by pouring her battalions into it, in course of time have overcome the tribes by the slaughter of the sword. But who can estimate at what a cost the country would thus have been won? – while the crime of it would have been even more awful to contemplate than the sacrifice of blood and treasure. Happily it can never be suggested that Lord Melbourne's Ministers had ever contemplated such a mode of securing sovereignty. Their personal view was that it must be ceded if it was to be acquired at all, while the House of Commons had made it abundantly clear that it would accept it on no other terms.

Here then we have the genesis of the treaty. Discovery gave us no right of sovereignty. Force of arms was incompatible with the spirit of the times; possibly beyond the resources of the nation. Negotiation on the other hand had been made easy by the labours of the Missionaries, and the repeated expressions of good-will which had passed between the British Sovereigns and the chiefs. It was the line of least resistance; a mode agreeable to the national conscience, and approved by the laws of civilisation. For these all-sufficient reasons then Captain Hobson was despatched to New Zealand, charged with the mission of securing for the British Crown the sovereignty of the country by the "free and intelligent consent of the natives, according to their established usages."

In proceeding to an analysis of the treaty itself it will not be necessary to refer to the preamble, which is but an abridged recital of all that has appeared in the previous chapters of this work. It asserts no principle, and is remarkable only for the fact that it reflects in dignified terms the spirit of justice and equity in which its promoters desired to approach the Maori people.

In the first clause the chiefs both within and without the Confederation were invited to "cede to Her Majesty Queen Victoria absolutely and without reservation all the rights and powers of sovereignty which the said Confederation or individual chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective territories as the sole sovereigns thereof."

It has been said that this was a condition which the natives never did, and could not possibly understand, seeing that they had neither sovereignty amongst themselves, nor any word in their language to express the idea of sovereignty. Their tribal system, it is true, was fatal to the principle of sovereignty in its broadest sense, and until the formation of the Confederation of Chiefs there was no force amongst them capable of exercising absolute authority over any great number of the people, the sovereignty of each chief being limited to his own tribe. No real sovereignty, however, vested even in the Confederation. From the first it was impotent as a national Government, because it lacked the requisite cohesion. Mutual tribal jealousies still prevailed, making it a Confederation only in name; and so far as is known it did not pretend to exercise any sort of dominion over the people after the excitement consequent upon the advent of Baron de Thierry had subsided. The native mind had therefore learned nothing of what was meant by sovereignty as we understand it, from the union of their chiefs. All that they knew of a paramount authority which it was their duty habitually to obey was the mana158 of their personal chiefs. That they understood perfectly, and that conveyed to them all that they required to understand. Each chief was a sovereign over his own people, and the people were not so lacking in intelligence as not to perceive that the treaty meant the passing of this mana from the chief to the Queen. It would, of course, be radically unsound to pretend that every native who signed the treaty had perfectly grasped its provisions, and knew with even moderate certainty what he was retaining and what he was conceding. In many instances, particularly where the land had already been sold, it might not be incorrect to say that some of the chiefs did not even attempt to comprehend it. The red blanket159 or the juicy plug of tobacco was an irresistible bait to many who felt they had no longer a "name," and so far as they were concerned, sovereignty and all else might fly to the four winds so long as their personal wants and their love of colour were gratified. The predicament in which those natives found themselves who afterwards alleged they had signed the treaty without a full appreciation of its terms and its obligations was poignantly put by Paora (Paul) Tuahaere, who, speaking at the Kohimarama Conference160 in 1860, said the treaty had come "in a time of ignorance," and upbraided the elder chiefs for being caught thus unwarily. "Blankets were brought by Mr. Williams. These I call the bait. The fish did not know there was a hook within. He took the bait and was caught. When he came to a chief Mr. Williams presented his hook and drew out a subject for the Queen."

In less figurative, but not less pointed speech, Paora was supported by Heme Parae, who declared that the only law he heard of in 1840 was the law of God. "As to what is called the Treaty of Waitangi, I have heard nothing about it. It is true I received one blanket from Mr. Williams, but I did not understand what was meant by it. It was given to me without explanation by Mr. Williams and Reihana."

Twenty-three years after the event, when discussing the mental attitude of the Maori towards the treaty, the Rev. John Warren, one of the Wesleyan Missionaries, wrote: "I was present at the great meeting at Waitangi when the celebrated treaty was signed, and also at a meeting which took place subsequently on the same subject at Hokianga. There was a great deal of talk by the natives, principally on the subject of securing their proprietary right in the land, and their personal liberty. Everything else they were only too happy to yield to the Queen, as they said repeatedly, because they knew they could only be saved from the rule of other nations by sitting under the shadow of the Queen of England. In my hearing they frequently remarked, "Let us be one people. We had the Gospel from England, let us have the law from England." My impression at the time was that the natives perfectly understood that by signing the treaty they became British subjects, and though I lived among them more than fifteen years after that event, and often conversed with them on the subject, I never saw the slightest reason to change my opinion. The natives were at that time in mortal fear of the French, and justly thought they had done a pretty good stroke of business when they had placed the British lion between themselves and the French eagle. We have heard indignation expressed at the way in which the natives were, in the treaty, overreached by the Government, especially in the matter of securing to the Queen the right of pre-emption in the purchase of their lands. There is a native proverb which says, with reference to a man of great keenness and sagacity, 'He was born with his teeth,' and in the matter of making bargains the New Zealanders may be said to be a people who were born with their teeth. I believe it is a very long time since it was possible to overreach the natives much in a bargain. I know that their particular clause of the treaty was there by their own urgent request, and that it met with the universal and unqualified approbation of the chiefs."

In adopting this view Mr. Warren is not singular, for we find that his impression is confirmed by many equally competent authorities. It would therefore be an undeserved reflection upon the well-established intelligence of the Maori race to suppose that these indifferents constituted any large section of the people, there being amongst them a wide comprehension of the two great principles embodied in the treaty – that they were surrendering the magisterial control of the country to the Queen, and retaining the possession of the land to themselves.161 The speeches of its opponents were eloquent of this fact. This was what Te Kemara meant when he exclaimed, "If thou stayest as Governor then perhaps Te Kemara will be judged and condemned. Yes, indeed and more than that – even hung by the neck." This surely was what the great Te Heuheu of Taupo meant when, addressing some natives who had signed the treaty, he said: "You are all slaves now. Your dignity and power are gone, but mine is not. Just as there is one man in Europe, King George, so do I stand alone in New Zealand; the chief over all others; the only free man left. Look at me, for I do not hide when I say I am Te Heuheu. I rule over you all just as my ancestor Tonga-Riro, the mountain of snow, stands over all this land."

The forms by which our sovereignty was exercised were doubtless new and strange to them, as witness their amazement at the pains the Crown took to prove a crime against a prisoner who had already confessed his guilt.162 In some instances the degree of authority parted with may also have exceeded their anticipations, for we are told that it came as a shock to some of the chiefs when they discovered that they were not free to kill their slaves under the new regime as they had been under the old. Failure to comprehend such details is understandable in the peculiarity of the circumstances. Indeed complete clarity of mental vision could not have been expected, and would not have been attained in all particulars had civilised men instead of savages been concerned. The natives, however, understood clearly enough that for the advantages they hoped to reap from the treaty they were yielding much of their existing power to the Pakeha Governor, and whether it was much or little they were the more willing to surrender it because they realised that the advent of the European had so altered their social conditions that rule by the old method was no longer possible.

To these convictions must be added the indispensable persuasions of the Missionaries, in whose word and advice the Maoris placed implicit trust; but the thing which proved the determining influence in the negotiations – more than the inducements offered by the Crown, or the persuasions of the Missionaries – was that the chiefs had acquired a clear grip of the primal fact that whatever it took from them, the treaty left them in secure possession of their lands.

The sovereignty was the shadow, the land was the substance; and since the shadow was already passing from them by force of circumstances over which they were powerless to exercise control, they consented to its surrender with all the less regret. Once having determined upon this course, and given effect to their determination, there was no wavering, even though in its early stages the rule of the Pakeha must have clashed harshly with their ideas of individual authority. The Maori people were a people capable of delegating their sovereign rights, and they did so delegate them. The Treaty of Waitangi therefore became what it professed to be, a yielding of the supreme political power in the country to the British Crown,163 and when the last signature had been put to it, Britain's right to colonise and govern in New Zealand was incontestable before all the world.

That is why it has always appeared to the writer that there was at the time, and has been for many years since, much beating of the air by the importance given to the so-called race to Akaroa, between the British sloop Britomart and the French frigate L'Aube, when, soon after the consummation of the treaty, the sovereignty of the South Island was supposed to be in danger. As this incident is the leading historical event which seems to challenge the value of the clause now under review it will be convenient to discuss it here.

Major Bunbury had returned from his southern mission on July 4, and at midnight of the 10th the French corvette, L'Aube, cast anchor in the Bay of Islands. From the pilot who went out to bring her in, Captain Lavaud heard that British sovereignty had been proclaimed over the country by Captain Hobson, and that the Union Jack was flying over his residence as an evidence of the fact.

This was serious intelligence for the Frenchman, who saw in it a circumstance that would render discreet a material modification of the instructions under which he had sailed from France. He had been commissioned to hoist the French flag at Akaroa, where a colony of his countrymen was to be established under his protection. These instructions had been given to him by the French Ministry in ignorance of the British Government's intentions, and Captain Lavaud now saw that to carry them out in their strict and literal sense must inevitably plunge the two countries into a distressful and useless war. The French Commander thus found himself in a position of great delicacy, but fortunately he was an officer blessed with a healthy frankness of spirit, and he lost no time in communicating to Captain Hobson the real nature of his mission. So soon as he had satisfied himself by an examination of the treaty and the proclamations that British sovereignty had been procured in a manner such as could be approved by other nations, and was effectual in its operation, he readily agreed to respect the rights thus acquired without committing himself so far as to formally acknowledge them until he should hear further from his own Government. At the same time he undertook, upon the first opportunity, to communicate with his Minister, and he entertained little doubt that on his representation of the altered conditions he would be instructed to recognise British sovereignty, and honour the British flag. It is at least certain that at the conferences between the two officers, an amicable arrangement was arrived at by which the French commander was able to preserve the honour of his own flag, while avoiding the tragedy of a conflict between their respective countries. There is even colour for the suggestion that the subsequent despatch of H.M.S. Britomart, followed by L'Aube, was only a part of a preconcerted plan, and that the much-paraded race to Akaroa between the French corvette and the British sloop was not a serious contest for sovereignty, but merely a little piece of theatrical play, promoted for the purpose of saving the Frenchman's face. Certain it is that before he left the Bay of Islands, Captain Lavaud had realised that it would be impossible to carry out his instruction at Akaroa without rupturing the national peace, and he was equally determined that he would not accept the responsibility of firing the first shot until he had been further advised from Paris. When this is understood it is all that is necessary to explain the conciliatory manner in which he met the British demands at Akaroa, and participated with our officers in the preservation of order at the southern settlement.