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

A portion of the Governor's measures to "quiet the apprehensions" of the Maoris was to despatch Captain Sotheby, then in command of H.M.S. Racehorse, to visit the northern chiefs, and aided by the ever loyal Waaka Nene he assured them, "on the authority of His Excellency the Governor, that there was no truth in the report that the Government claimed all land not under tillage." Subsequently this officer invited Earl Grey to reflect upon the rapidity with which this report had spread through the North Island, and the dissatisfaction which it had excited, "even in the minds of those chiefs who had hitherto been friendly to the British and who had fought on our side."

From old Te Wherowhero, of the Waikato, came the following characteristic protest to the Queen, whose honour he would not impugn, whose word he would accept:

O Madam the Queen, hearken to our words, the words of all the chiefs of Waikato.

May God grant that you may hold fast our word, and we your word for ever. Madam listen, news are going about here that your Ministers are talking of taking away the land of the Native without cause, which makes our hearts dark. But we do not believe this news, because we heard from the first Governor that the disposal of the land was with ourselves. And from the second Governor we heard the same words, and from this Governor. They have all said the same. Therefore we write to you that you may be kind to us, to your friends that love you. Write your thoughts to us, that peace may prevail amongst the natives of these Islands.186

In this dignified appeal the chief was joined by Bishop Selwyn, Archdeacon Maunsell, and Chief Justice Martin in the colony, and by the Wesleyan Mission Committee in England, who employed the searching pen of Dr. Beecham to voice their protest.

How the Bishop regarded the proposals of the Chief Secretary may be judged from the following passage in a letter which he subsequently wrote to his friend, the Rev. E. Coleridge, in England: "If Lord Grey's principles had been avowed by the Governor as the rule of his policy, the safety of the English settlements could not have been guaranteed for a single day."

Archdeacon Maunsell, who in 1840 had informed Captain Hobson that the Missionaries had committed themselves to the promotion of the Treaty of Waitangi only because of their unshaken faith in the integrity of the British Government,187 was at least entitled to point out that ever since the treaty was signed the conduct of the Maori towards the British had been marked by a spirit of chivalry, of friendship, and of good faith. "Why, then," he asked, "does the statesman of a mighty nation seek to confiscate the guaranteed possessions of our friends and allies?" If such should ever happen, his letter concluded, there could be no alternative but for the Missionaries in sorrow to leave the country, broken and discredited men.

Nor was the kindly, conscientious Martin less emphatic. In a pamphlet, "England and the New Zealanders," he discusses the danger of thus shattering the native confidence in Britain's honour. "In particular," he states, "those who have received Christianity are disposed to look up to us for guidance and government. But let the plan of confiscation or seizure be once acted on, and all this will be at an end. The worst surmises of the natives will have become realities. To them we will appear to be a nation of liars."

The Wesleyan Mission Society embodied their views in a memorial, which they subsequently deemed worthy of publication,188 wherein they justified their right to question the propriety of Earl Grey's policy, not only because of the prestige and influence of their Mission, but because that prestige and influence had been solicited in the interests of the Treaty of Waitangi by Captain Hobson, at a time when his success without it was impossible. They explained that their solicitude upon the subject had been greatly increased, if not wholly produced by the flood of letters they had received from their Missionaries in New Zealand, expressing the state of alarm into which they had been thrown by the publication of his Lordship's Despatch and Instructions, and which in their opinion affixed a meaning to the Treaty of Waitangi very different from that in which it was understood by the parties principally concerned in its execution. Being apprehensive that any attempt to carry what they regarded as a new interpretation of the treaty into effect, would result in the most disastrous consequences, they were constrained to make such representations upon the subject as they had reason to hope would avert the evils which they feared. They then proceeded to set out that at the commencement of the proceedings adopted by Her Majesty's Government for founding a colony in New Zealand, they distinctly understood that the previous recognition of the independence of New Zealand by the British Government having taken the country out of the category of barbarous tribes and people without a national character or national rights, the ordinary course pursued in colonisation would not be adopted in its case, but that New Zealand would be negotiated with as an Independent State, and that the British Crown would not take anything from the Aboriginal proprietors which was not ceded on their part by fair and honourable treaty. In support of this view, they quoted at length from Lord Normanby's instructions to Captain Hobson, in 1839 and from the subsequent correspondence with him, when that officer sought a greater amplification of important points. On the authority, then, of the noble gentleman formerly at the head of the Colonial Department, they claimed that they were not deceived when they understood that the cession of sovereignty in New Zealand was not to involve the surrender of territory, either in whole or in part; that the cession to the Crown of such waste lands as might be progressively required for the use of the settlers should be subsequently obtained by fair and equal contracts with the natives, and that no lands were to be claimed for the Crown in New Zealand, except such as might be obtained by purchase from the natives, or by their own free consent. They detailed the overtures which Captain Hobson made to their Missionaries in 1840, when, "in accordance with instructions he had received from the highest authority in the realm," he requested their assistance in effecting the negotiation with which he had been entrusted. The Missionaries at this time, the Committee pointed out, had not read Captain Hobson's instructions, for they had not then been published, but they fully understood the claims of the natives upon the soil of New Zealand, and the point upon which they had to satisfy themselves was whether the proposed treaty was designed to admit and confirm those claims in the full and unqualified sense in which they were made. The Missionaries knew that the Maoris claimed the entire soil of New Zealand.189 They knew that the entire country was divided amongst the several tribes, that the boundaries of every property were accurately defined, and the proprietorship so vested in each tribe that all the members of the tribe had a beneficial interest therein. They therefore knew that at the time the Treaty of Waitangi was signed there was no land in New Zealand without an owner, and which would under the principles of public law, be automatically transferred to the Crown.

"In the view, therefore, of both the Missionaries and the natives," they said, "the sovereignty and the land were two entirely distinct things, and to preserve the latter intact, while they surrendered the former, was the great solicitude of the natives. From Captain Hobson the Missionaries received the most satisfactory explanation of the terms of the treaty. It dwelt explicitly on both the sovereignty and the land, and the interpretation which the Missionaries were authorised to give of it was that, while the entire sovereignty should be transferred to the British Crown, the entire land should be secured to the natives. Most certainly the Missionaries received the fullest assurance that, in surrendering the sovereignty, the natives would not by that act surrender their original claims upon any part of the soil. In this sense the chiefs themselves understood the treaty, as it was propounded to them. They clearly comprehended its two main features as explained in their own figurative style, that 'the shadow of the land,' by which they meant 'the sovereignty,' would pass to the Queen of England, but that the 'substance,' meaning the land itself, would remain with them."

But the Missionaries were not alone the source from which the Committee proved the correct interpretation of the treaty. The witnesses who had given evidence before Earl Grey's own Committee in 1844 were marshalled to their support, the official Despatches were quoted to the same end, even those of Lord John Russell being referred to as "warranting the conclusion that his Lordship designed the treaty should be faithfully observed, in the sense in which it was understood by the natives and Missionaries of both the Church and Wesleyan Societies." To these was added the invaluable testimony of Lieutenant Shortland, who had been in closest association with Captain Hobson during the treaty negotiations, who had been privileged to administer the affairs of the colony under it, and who from his close official connection with it was peculiarly the man able to say what it meant and what it did not mean. Shortly before his return to England, the Select Committee of the House of Commons had issued their report upon "the State of New Zealand and the proceedings of the New Zealand Company," and so completely did that report misrepresent, in Mr. Shortland's opinion, the true position of affairs, so harmful did he deem the resolutions which accompanied that report, that he felt in duty bound to protest to Lord Stanley against the needless perversion of the facts. During a lengthy and dispassionate statement of the circumstances surrounding the procuration of the treaty – than whom no one knew them better – Mr. Shortland, writing from his quiet retreat at Torquay, dealt with especial emphasis upon the relation of the sovereignty to the land:

Respecting the cession of the sovereignty to the Crown by the aborigines without a reciprocal guarantee to them of the perfect enjoyment of their territorial rights, I do not hesitate to say, such a proposition would not for a moment have been entertained by the natives, who, during the whole proceedings of the Government at the first establishment of the colony, manifested a feeling of great anxiety and mistrust in regard to the security of their lands. Of this I could produce many instances did space permit, but will content myself with noticing that the Church and Wesleyan Missionaries possessing, as they deservedly did before the assumption of sovereignty by Her Majesty, the unlimited confidence of the natives, incurred by their aiding the local Government to effect the peaceable establishment of the colony, the suspicion of the aborigines, who frequently upbraided the Missionaries with having deceived them, saying, "Your Queen will serve us as she has done the black fellows of New South Wales; our lands will be taken from us, and we shall become slaves." How then could the colony have been founded with the free and intelligent consent of the native owners of the soil, on any other terms than those laid down by the Treaty of Waitangi, viewed in the light in which it has always been understood and acted on by the local Government.

With these and many similar pieces of unimpeachable evidence did the Committee press upon the Colonial Secretary the conviction that their reading and understanding of the treaty was the only one which its "large words," as Lord Stanley had termed them, would bear. Earl Grey relied upon the astute pen of Mr. Herman Merivale, his new Under-Secretary to release him from the horns of the dilemma upon which the cold reasoning of the Committee had impaled him. This he did by referring the memorialists back to an obscure phrase in the Royal Instructions, which provided that no native claim to land would be recognised unless the title had previously been acknowledged and ascertained, "by some act of the Executive Government of New Zealand as then constituted or by the adjudication of some court of competent jurisdiction." The Treaty of Waitangi was now admitted, and even asserted by the Under-Secretary to be "unquestionably an act of the Executive Government," and therefore it followed that nothing that was guaranteed by the treaty was imperilled by the Instructions. With a wealth of argument upon phases of the issue which were not directly raised by the Memorial,190 Mr. Merivale was at least able to assure the Committee that the Government intended and always had intended to recognise the treaty, as they believed, in the same sense in which the Committee recognised it. "They recognise it in both its essential stipulations, the one securing to those native tribes, of which the chiefs have signed the treaty, a title to those lands which they possess according to native usage (whether cultivated or not) at the time of the treaty, the other securing to the Crown the exclusive right of extinguishing such title by purchase." Considerable unction was claimed for his chief by the Under-Secretary, in that he had directed Governor Grey to proceed with all circumspection in giving effect to the instructions of the Department, but he failed to observe that even in his widened interpretation of the treaty, he still limited the rights in native lands to those tribes whose chiefs had signed the treaty. Those who like Te Heuheu, and Te Wherowhero had maintained their independence might still have been subject to spoliation had this view become the accepted interpretation of the Department, and those who were keenly interested in the fate of the colony were not slow to place this construction upon it. The immediate necessity for anxiety upon this point was, however, obviated by the prompt suspension of the Charter by Governor Grey, and upon the submission by him to Downing Street of a more liberal and flexible Constitution, drafted upon the slopes and amidst the snows of Ruapehu.

Ere the brewing storm in New Zealand had burst, the crisis had come in the life of Lord John Russell's Ministry, who were defeated on their Militia Bill. They were succeeded by the Stanley of old, who in the person of Lord Derby, became Premier, with Sir John Pakington as his Colonial Secretary. To him fell the duty of giving legislative effect to the more workable and equitable Constitution drafted by Governor Grey, and when the Wesleyan Committee again approached the Colonial Office with the regretful assurance that the reply vouchsafed to them by the noble gentleman who had just vacated the Chief Secretaryship "was less satisfactory to the people of New Zealand than it had appeared to themselves," Sir John was able to convey to them through the Earl of Desart the gratifying intelligence that in the Bill then before the House there was every provision for the full and complete recognition of the principles for which they had so resolutely contended.

Concerning the Third Clause of the treaty, little need be said. 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. Our courts are as open to him as to anyone, and whether he be plaintiff or defendant, the same even-handed justice is meted out to him. He travels upon our railways, he rides upon our cars, he sits in our theatres on equal terms with his Pakeha friend. His children are educated in our schools and his sons are absorbed into our Civil Service, his chiefs sit at the Governor's table, and his elected representatives sit in Parliament, where their voice is respected and their vote is valued. The professions are open to him, and there is no position in Church or State which he may not fill. 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. There was a residuum, which included some of the most powerful chiefs in the land, who either had no opportunity of subscribing their allegiance to the Crown, or who for reasons of their own held aloof. How were these non-participants affected by the compact?

This question was first raised in its practical application by Taraia, a Tauranga chief, who in December 1842 committed what is believed to have been the last act of cannibalism perpetrated in New Zealand. Taraia was not a signatory to the treaty, and the Government were sorely exercised as to whether they were justified in claiming jurisdiction over him. An effort had been made by the Aborigines' Protection Society in London to define the status of these independent chiefs, by submitting the question to Mr. Joseph Phillimore, an eminent English lawyer, and Mr. Phillimore had given them a qualified opinion that if there were any chiefs who had preserved their independence by refusing to become parties to the treaty, then such chiefs may not be bound by its obligations, and may be entitled to distinct and separate consideration. But clearly, in an abstract sense, there could be no such qualification to the unaltered status of these men. They were still chiefs of an Independent State so far as they were concerned, retaining inviolate their mana, and refusing to be compromised by the concessions made by their fellow chiefs.

The Government, then controlled by Captain Hobson, did not share even the qualified view entertained by Mr. Phillimore and those who thought with him. They presumed all natives of New Zealand now to be British subjects and determined that Taraia must be punished. This valiant determination was not, however, given final effect, not because the authorities were dubious of its justice, but because they had become uncertain as to its practicability; so much so that they subsequently deemed it prudent to limit their interference to a warning to that chief, that he might expect to incur the anger of the Governor upon a repetition of his offence. In Taraia's case this reprimand was sufficient to quiet him, but only a few months later Tongoroa, another Tauranga chief, made war upon his neighbours, and the sore which looked as though it had healed was suddenly reopened. Lieutenant Shortland, who had now assumed the post of Acting-Governor, proceeded to Tauranga to arrest the disturber of the peace, but before the apprehension could be effected his accumulating difficulties were further increased by an unexpected communication from Mr. Clarke, the chief Protector of the Aborigines, and Mr. Swainson, the Attorney-General. Both these gentlemen had previously endorsed the contemplated arrest of Taraia, but to the amazement of the Acting-Governor they informed him that more mature reflection had caused them to reverse their opinion, and that they now considered the arrest of Tongoroa would be illegal.

Hurrying back to Auckland, Shortland called a meeting of his Council, and there sought some enlightenment as to this new view-point of the Maori status under the treaty. Amongst those consulted was necessarily Mr. Clarke, the erstwhile Missionary, and now Chief Protector of the Aborigines, whose close and constant intercourse with all the tribes gave him the most favourable facilities for gauging the strength and direction of the native aspirations. In the course of his examination Mr. Clarke was asked:

(1) Do the natives who signed the Treaty of Waitangi acknowledge themselves to be British subjects?

To which he replied: – The natives who signed the Treaty of Waitangi, having been solemnly assured by Her Majesty's representative, the late Captain Hobson, that they should in the fullest sense of the term be entitled to all the privileges of British subjects, consented to be considered as such, with a full understanding that their allegiance depended upon the British Government fulfilling their engagements in that treaty.

(2) How far, and to what extent, do the various tribes in New Zealand acknowledge the Queen's sovereignty?

To this Mr. Clarke's answer was: – The natives alone who signed the treaty acknowledge the Queen's sovereignty, and that only in a limited sense. The treaty guaranteeing their own customs to them, they acknowledge a right of interference only in grave cases, such as war and murder, and all disputes and offences between themselves and Europeans, and hitherto they have acted on this principle. The natives who have not signed the treaty consider that the British Government, in common with themselves, have a right to interfere in all cases of dispute between their tribes and Europeans, but limit British interference to European British subjects.

(3) In your communications with the natives, have you asserted that they are British subjects, and the right of the Government to interfere with them as such? and (4) On making that assertion how far has it been acquiesced in?: – In all my communications with the natives I have been instructed to assert, and have always asserted, that they are British subjects, and amenable to British authority, in which very few, even those who signed the treaty, would acquiesce, save in matters relating to disputes or depredations upon each other (viz. differences between Europeans and natives).

(5) If the Government were to admit that any tribe or tribes of New Zealanders were not British subjects, and were not amenable to the laws, what effect do you think that admission would have on the peace and future colonisation of the colony?: – The admission that the tribes of New Zealanders were not amenable to British law, would, I am apprehensive, be destructive to the interests of the natives and the prosperity of the colony. It would be made use of by designing men to embarrass the Government, to embroil the natives with each other and with the Government, which must be alike injurious to both. Her Majesty's Government having seen fit to colonise New Zealand, it is now an act of humanity to both natives and Europeans to consider the whole of the tribes of New Zealand as British subjects, and to use every honourable and humane means of getting the tribes universally to cede the sovereignty where it has not been ceded.

(6) Supposing that we should treat as British subjects, by force, those tribes, who have uniformly refused to cede the sovereignty to Great Britain, should we be keeping faith with the principles we professed when we originally negotiated for the cession of the sovereignty?: – In treating those tribes as British subjects by force who have refused to cede the sovereignty to Great Britain, would not only be considered by the natives as a breach of faith with the principles originally professed when negotiating for the sovereignty, but would, I am apprehensive, lead to a destructive war, and although the result would be destructive to the native race, it would be inglorious to the British Government, and at variance with the designs of Her Most Gracious Majesty in adding this interesting people and country to her Dominions.

From the Protector of the Aborigines who only pretended to interpret Maori opinion as he gleaned it in his progress through their pas and settlements, the Executive turned to their Attorney-General, Mr. Swainson, for his more recent interpretation of the position as it appealed to the trained mind of a jurist, and Mr. Swainson only put into less direct language the pronouncement of Wiremu Tamihana, the King Maker, who during the hey-day of the King movement scorned the authority of the Queen over his land: "I am chief of Ngati-Haua, which is an independent tribe. My father, Te Waharoa, was chief before me. Neither he, I, or any of my people signed the treaty, therefore we are not bound by it." Mr. Swainson's opinion was as follows: