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

During their stay at the Bay of Islands the officers of L'Aube were entertained with the utmost cordiality by Captain Hobson, who in conversation with their Commander learned something of the proceedings of the Nantes-Bordelaise Company, a colonising corporation organised in France for the purpose of establishing a settlement of their own countrymen at Banks's Peninsula, and whose vessel, the Comte de Paris, was now within a few days' sail of the coast. In 1838 a Captain L'Anglois, as master of a French whaler, had visited Banks's Peninsula, and there, for some articles of European manufacture valued at £6, together with some agreeable promises, had secured the signatures of several chiefs to a deed conveying to him an estate of 30,000 acres of the Peninsula's finest land.¹⁶⁴ This document, composed in French, provided the basis of a negotiation which L'Anglois arranged between two mercantile firms in Nantes, two in Bordeaux, and three Parisian gentlemen, by which they agreed to promote the Nantes-Bordelaise Company whose purpose was to promote a French colony in New Zealand. Their project received the sanction and support of Louis Philippe, who undertook to sustain their enterprise by the presence of one or two ships of war in the South Pacific. Meanwhile the French King had repeatedly assured the British Foreign Office that he had no designs towards territorial aggrandisement in New Zealand. This, in a qualified sense, may have been perfectly true, because while it had been agreed that the Nantes-Bordelaise Company was to cede certain lands to the French Crown in consideration of the protection afforded them, there is every reason to suppose that the French colonising design did not extend beyond Banks's Peninsula, and that there never was any serious intention to annex the South Island. This position was made clear to Captain Hobson by Captain Lavaud, and if it was not secretly agreed upon as a means of strengthening the latter's hands in making his representations to his Government, the sending of the Britomart south with two Magistrates can only have been a precautionary measure on the part of Hobson, who hoped by this means to make the assurance of his former act doubly sure. It has long been a cherished conviction in our history that by his strategetical move Captain Hobson cleverly outwitted the French. It is more probable that he was acting in concert with them, and that what has hitherto passed as a popular historical fact must now be relegated to the realm of historical fiction. Be that as it may, it is a fact that on the night of July 30, while L'Aube lay at her anchors, the old and weather-worn Britomart sailed for Akaroa, carrying with her Messrs. Robinson and Murphy, who were instructed to open courts at all the settlements on the Peninsula, where the British flag was also to be displayed by Captain Stanley. The manner in which that officer, and those associated with him, executed their mission, is told in the Commander's Despatch, written while the Britomart was returning to the Bay of Islands.

Her Majesty's Ship "Britomart,"

September 17, 1840.

Sir – I have the honour to inform Your Excellency that I proceeded in Her Majesty's sloop under my command to the port of Akaroa, in Banks's Peninsula, where I arrived on August 10, after a very stormy passage, during which the stern-boat was washed away, and one of the quarter boats stove. The French frigate L'Aube had not arrived when I anchored, nor had any French emigrants been landed. On August 11 I landed, accompanied by Messrs. Murphy and Robinson, Police Magistrates, and visited the only two parts of the Bay where there were houses. At both places the flag was hoisted, and a court, of which notice had been given the day before, was held by the Magistrates. Having received information that there were three whaling stations on the Southern side of the Peninsula the exposed positions of which afforded no anchorage for the Britomart, I sent Messrs. Murphy and Robinson to visit them in a whale boat. At each station the flag was hoisted and a court held. On August 15 the French frigate L'Aube arrived, having been four days off the port. On the 16th the French whaler Comte de Paris, having on board 57 French emigrants, arrived.¹⁶⁵ With the exception of Mr. Bellegui, from the Jardin des Plantes, who is sent out to look after the emigrants, and who is a good botanist and mineralogist, the emigrants are all of the lower order, and include carpenters, gardeners, stone-masons, labourers, a baker, and a miner, in all 30 men, 11 women, and the rest children. Captain Lavaud, on the arrival of the French emigrants, assured me on his word of honour that he would maintain the most strict neutrality between the British residents and the emigrants, and that should any difference arise between them he would settle matters impartially. Captain Lavaud also informed me that as the Comte de Paris had to proceed to sea, whaling, that he would cause the emigrants to be landed in some unoccupied part of the Bay, where he pledged himself he would do nothing that could be considered as hostile to our Government; that the emigrants would merely build themselves houses for shelter, and clear away what little land they might require for gardens. Upon visiting the Comte de Paris I found that she had on board, besides agricultural tools for the settlers, six long 24-pounders, mounted on field carriages. I immediately called upon Captain Lavaud to protest against the guns being landed. Captain Lavaud assured me he had been much surprised at finding the guns had been sent out in the Comte de Paris, but that he had already given the most positive orders that they should not be landed. On August 19 the French emigrants having landed in a sheltered, well-chosen part of the Bay, where they could not interfere with any one, I handed over to Messrs. Murphy and Robinson the instructions entrusted to me by Your Excellency to meet such a contingency. Mr. Robinson, finding that he could engage three or four Englishmen as constables, and having been enabled through the kindness of Captain Lavaud to purchase a boat from a French whaler, decided upon remaining. Captain Lavaud expressed much satisfaction when I informed him that Mr. Robinson was to remain, and immediately offered him the use of his cabin and table as long as L'Aube remained at Akaroa. Mr. Robinson accepted Captain Lavaud's offer until he could establish himself on shore. On August 27 I sailed from Akaroa for Pigeon Bay, when finding no inhabitants I merely remained long enough to survey the harbour, which, though narrow and exposed to the northward, is well sheltered from every other wind and is much frequented by whalers, who procure great numbers of pigeons. From Pigeon Bay I went to Port Cooper, where Mr. Murphy held a Court; several chiefs were present, and seemed to understand and appreciate Mr. Murphy's proceedings in one or two cases that came before him. Between Port Cooper and Cloudy Bay I could hear of no anchorage whatever from the whalers who frequent the coast. I arrived at Port Nicholson on September 2, embarked Messrs. Shortland and Stuart, and sailed for the Bay of Islands on September 16.

Much has been said and written concerning this incident, and in the discussion it has been invested with an importance which it does not deserve. In no sense can it rightly be elevated into the crisis of a great international dispute, for the simple and sufficient reason that no dispute existed. Whatever Captain Hobson may have understood as the result of his conversation with Captain Lavaud, the amiable manner in which that officer complied with every request made by Captain Stanley, together with his conciliatory despatch to his own immediate Minister in France, indicate that he at least had no views in the direction of taking forcible possession of any territory in New Zealand, since British sovereignty over it had been officially declared. The pleasure he expressed when he learned that the British Magistrate had determined to remain amongst the settlers; the ready hospitality he extended to him; his refusal to allow the master of the Comte de Paris to land the artillery brought in that vessel; and his promise to do even-handed justice to both English and French should disputes arise, were not the acts of a man who felt that he had been forestalled and worsted in a race involving the sacrifice of new territory and the loss of national prestige.

That Captains Hobson and Lavaud understood each other perfectly is abundantly clear from the letter which the latter wrote to the former over twelve months (September 17, 1841) after the events just narrated. In the month of October 1840 Mr. Robinson, the Magistrate stationed at Akaroa, had intimated his intention of hoisting the British flag, against which Captain Lavaud had successfully protested, as being, in the peculiar circumstances, calculated to inflame the prejudices of the colonists, and to destroy his influence as a keeper of the peace between his own people and the whalers. When Governor Hobson paid his first official visit to Akaroa in September 1841, Captain Lavaud interviewed him and subsequently wrote to him, explaining the incident, and asked that his action might be sustained. During the course of his communication he said:

You have been good enough to promise me that you will give orders to Mr. Robinson that nothing shall be changed in the already established position at Akaroa, upon which we were agreed at the Bay of Islands, until I should receive fresh instructions. I have received nothing since my arrival in New Zealand, but I learned when you arrived that the corvette L'Allier was being fitted out at Brest in February last, to come to relieve me, and would consequently bring the instructions which I now await with so much impatience. This vessel must now soon arrive, and any day I ought to see it make its appearance. From the note of our chargé d'affaires at London, which you were good enough to send to me, I have no doubt as to the recognition by the French Government of British sovereignty over these Islands, and that is all the more reason why I should appeal to Your Excellency to maintain the position we are in to-day, until the arrival of the vessel which will take the place of L'Aube in the protection of the fisheries. My conduct at Akaroa should have sufficiently proved to the British Government that I have no idea of opposing the rights of Her Majesty the Queen of Great Britain to the sovereignty, or in any way impeding it, upon the land. There has been no act on my part, other than with the idea of maintaining order in this place, and preventing friction between the two races. It is not without some trouble and firmness that I have been able, up to the present, to maintain order and satisfy the colonists. I have told them that I have taken all the responsibility upon myself until I receive fresh instructions, and that then I would inform them definitely as to the position in which they would be placed with regard to the British Government. If so soon before the time when my promise should be fulfilled some aggressive action on the part of the British Government were to take place my honour would be seriously compromised. The authority which I exercise over my countrymen has, up to the present, been as advantageous to the interests of Great Britain as to the colonists, seeing that it has only been used for the maintenance of order. More than once I have been asked by the Magistrate appointed by Your Excellency to interfere in a quarrel between some Englishmen and the police who had been driven back and beaten by the first named. The corvette which I command, in giving its protection to the authorities, detained the law-breakers for a few days, and since it was proved that the war-ship was a protection for British authority, order has been maintained. Last October, however, this influence which has been exercised only for good by me, was on the point of being destroyed, when Mr. Robinson announced that he was going to hoist the British flag. Upon representations from me he consented to postpone these proceedings. The following were the grounds upon which I based my objection: The hoisting of the flag in the present state of affairs would add nothing to British rights, the flag having already been hoisted and saluted by the corvette Herald before my arrival. The proclamations in the name of the Queen had quite another effect, as also had the acts and presence of the Magistrate to enforce the British sovereignty. Nothing on my part could have caused the English authorities to doubt in any way the purity and sincerity of my intentions, and of the arrangements between myself and Captain Stanley, to whom I promised that no arms or projectiles of war should be landed. If the British flag were to be hoisted at Akaroa so shortly before the day when I shall doubtless receive orders from my Government to recognise the British sovereignty, the authority which I exercise over my countrymen would come to an end. I should be unable to interfere in any manner whatever on land for the maintenance of peace and order. I should confine myself to my functions as captain of my ship, and should regard myself merely as the protector of my nation's subjects in case of trouble or judicial proceedings, as in the case of all foreign countries where there is no Consul. From such a state of affairs serious evils might result, and before long, so you may be assured from the experience of my fourteen months' sojourn here, consternation and disgust would take possession of the colonists; work would not be proceeded with; there would be widespread drunkenness, and most complete disorder. If on the other hand you may think fit to order Mr. Robinson to await the arrival of my instructions, which certainly cannot fail to be in agreement with the spirit of the note of our chargé d'affaires, in London, you will at the same time prevent the colony being placed in the undesirable position which I have shown you is possible, and you will give me the pleasure of according to your flag, the day it is hoisted, the honours which are due to it, without any disturbance taking place, as I shall inform the colonists that my Government, having recognised the Queen's sovereignty, they must, like myself, submit to the orders I have received.

This letter Captain Hobson acknowledged with becoming courtesy, and promised that as, under existing circumstances, no question could arise respecting the sovereign rights of Her British Majesty over every part of the colony of New Zealand, he would willingly forego the exhibition of any authority that could have a tendency to weaken Captain Lavaud's influence over the minds of his countrymen. He would therefore not display the British flag or publish any proclamation at Akaroa, unless some pressing and unforeseen event should render such measures necessary.¹⁶⁶

Fortunately no such exceptional circumstances did arise before the formal acknowledgment was made by France, and in the following November Hobson, when penning his despatch to the Home authorities, was able to assure them that Captain Lavaud's attitude had been consistent throughout; that he had frankly disclaimed any national intentions on the part of his Government, but had vigilantly supported the claims of the French emigrants as private individuals. As a matter of fact, since he had satisfied himself as to the validity of Britain's pretensions, Captain Lavaud had taken up the position that he was in these waters for no other purpose than to see his countrymen peaceably settled on the estate of 30,000 acres to which the Nantes-Bordelaise Company believed they had secured a title by one of those loose transactions so common in the history of New Zealand. He was determined to preserve the peace until he should be instructed to make war.

But had his intentions been other than peaceable, Captain Hobson's precautions in sending Magistrates to Akaroa could not have made the British title more secure than it already was. The Treaty of Waitangi was a compact such as no civilised nation could, or would ignore, and when Major Bunbury, by virtue of that treaty, hoisted the British flag at the Cloudy Bay pa on June 17, 1840, he put the sovereignty in the South Island beyond all question of doubt until it could be wrested from Britain by force of arms.

The most that can be said for the sudden despatch of the Britomart to Akaroa, and the proceedings of her Captain and his associates there, is that the presence of British authority on the Peninsula may have prevented the growth of any false ideas concerning national interests in the minds of the emigrants, and so obviated possible friction at a later date. In no sense did it give anew to Britain a right that had already been ceded to her by the only people who were capable of ceding it – the natives. That the official mind of France had no delusions on this point was demonstrated during the discussion which engaged the Chamber of Deputies after the receipt of Captain Lavaud's despatch, when M. Guizot, as Foreign Minister, maintained in the face of the sharpest opposition that the British proclamation read at Cloudy Bay determined by the highest principles known to nations in whom the right of sovereignty lay.

It is both interesting and instructive to observe that during this debate M. Guizot declined to seriously discuss the proclamation issued by Captain Hobson on May 21, declaring the Queen's sovereignty over the South Island, "by right of discovery," although the point was warmly pressed by MM. Billault and Berryer. Captain Hobson had always favoured this mode of dealing with the South Island, he being under a grave misapprehension both as to the number and character of the natives residing there. Before he left England he felt that his instructions were meagre in this regard, and in seeking more explicit direction from the Chief Secretary of State he drew the attention of Lord Normanby to what he regarded as a material distinction between Britain's position in the two Islands. In August (1839) he wrote to his Lordship:

The first paragraph (of the original instructions) relates to the acquisition of the sovereign rights by the Queen over the Islands of New Zealand. Under this head I perceive that no distinction is made between the Northern and Southern Islands, although their relations with this country, and their respective advancement towards civilisation are essentially different. The Declaration of Independence of New Zealand was signed by the United chiefs of the Northern Island only (in fact only of the Northern part of that Island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatsoever to the Southern Islands. It may be of vast importance to keep this distinction in view, not as regards the natives, towards whom the same measure of justice must be dispensed, however their allegiance may have been obtained, but as it may apply to British settlers, who claim a title to property in New Zealand as in a free and independent State. I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognised as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity, for with the wild savages in Southern Islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded.

To this Lord Normanby replied that Captain Hobson had correctly interpreted his instructions when he limited his Lordship's remarks concerning the independence of the New Zealanders to the tribes inhabiting the Northern Island. His knowledge respecting the Southern Island was too imperfect to allow of his laying down any definite course of action to be pursued there. If it were really as Captain Hobson supposed, uninhabited, or peopled only by a small number of tribesmen in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, then the ceremonial of entering into any such engagements with them would be a mere illusion and pretence which ought to be avoided, and discovery might be made the basis of the Crown's claim. Still he had a marked predilection in favour of a treaty as the only means of affording an effective protection to the natives; "but," he continued, "in my inevitable ignorance of the real state of the case I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."

The frankness with which Lord Normanby admitted his "inevitable ignorance" of native conditions in the South Island is in striking contrast to Hobson's confident assurance that they were "wild savages with whom it was scarcely possible to observe even the form of a treaty," for at this time his intercourse with the southern tribes was as limited as that of the Chief Secretary's. Nor was his knowledge of them any more complete when he issued his proclamation on May 21. He was then clearly under the impression that the southern tribes were a people physically, intellectually, and socially much inferior to those whom he had met in the North; in fact, so much inferior that he did not believe them capable of understanding the spirit or the letter of a treaty. Such an opinion could only have been founded upon information conveyed to him at the Bay of Islands, and that by chiefs who, glorying in the pride of conquest, were no doubt wont to look upon their southern enemies as the siftings of the race; as "the remnant of their meal." It is therefore open to doubt whether Hobson ever anticipated any great measure of success when he despatched Major Bunbury to the South, and it is conceivable that the results achieved by that ambassador were as pleasing to the Lieutenant-Governor as the information was surprising that the Southern Island and the southern people had been much misunderstood. The falsity of the impression under which Captain Hobson acted, together with all that had gone before, completely undermines the value of his proclamation of May 21, and M. Guizot was only stating the fact when in answer to his critics he declared in the Chamber of Deputies that "this method of taking possession (by right of discovery) has never had any serious consequences. It could not be regarded as having constituted rights, and that is so true that the English Government has been the first to proclaim it."

The second clause of the treaty proved to be the storm centre of the compact. By those natives who took the trouble to reason out the purpose and effect of the negotiation it was unanimously approved; by the land-jobbers it was as unanimously condemned. Guaranteeing as it did to the tribes the full and complete possession of their lands, fisheries, and forests, it complied with the one condition that made the treaty tolerable to them; yet by reserving to the Crown the right, by pre-emption,¹⁶⁷ to become the medium of purchase between the natives and the settlers, it provided the contentious point upon which all who were interested in the acquisition of land concentrated their attacks. Nor was this opposition shown merely because by a broad sweep of the pen the speculator's sphere of operations had been materially limited for the future, but the hostility became the more vehement because by an equally bold assertion of a great principle of law, the treaty called under review all that they had done in the past. The acknowledgment by the British Crown of the native title to all the land in New Zealand, whether waste or cultivated, was in the opinion of many a blunder grievous enough; but that the Crown should claim the right to scrutinise all titles which had been acquired before sovereignty was declared, was an excess of zeal which they regarded as nothing short of preposterous.

This feeling of indignation was rampant amongst those who were deeply implicated in land speculations when the proclamations were issued at Sydney and the Bay of Islands, declaring null and void all titles which were not derived from the Crown; and their ideas of British enterprise were even further outraged when on May 28, 1840, Sir George Gipps introduced to his Legislative Council, "A Bill¹⁶⁸ to empower the Governor of New South Wales to appoint Commissioners to examine and report on claims to grants of land in New Zealand."

In addition to the gigantic pretensions put forward by the New Zealand Company there were 1200 claimants whose demands upon the soil of the country varied from a single rood to over 20,000,000 acres. Three of these exceeded 1,000,000 acres each; three others were claiming 1,500,000 acres between them; three others comprised more than 25,000 acres each, while upwards of thirty persons expected to be placed in possession of more than 20,000 acres each, the aggregation of alleged purchases amounting to 45,976,000 acres. "Some of these claimants," says one writer, "had nothing more to show for their purchases than an ornamental scrawl on a deed which was so phrased as to be unintelligible to the chiefs who signed it." To reduce these wholesale purchases to some principle regulated by justice was the purpose of the Government; to let the dead past bury its dead was the fervent wish of all those who had entrenched themselves behind Maori signatures.

By the following June 25 the provisions of the Bill had been widely circulated, on which date a spirited protest against its enactment was received from a number of gentlemen claiming to be landowners in the new colony. This document, which was presented to the Legislative Council by Mr. H. H. Macarthur, set out that the petitioners having perused certain proclamations in the New South Wales Government Gazette of January 22, as well as the Bill introduced by the Governor, they submitted that their rights and privileges as subjects of the Queen and as landowners in New Zealand would be unwarrantably and unconstitutionally invaded by the provisions of the said measure. They therefore prayed that they might be heard by the Council in protest against such unjust legislation.

So reasonable a request was readily acceded to by the members of the Legislature, and on June 30 Mr. Busby, the former British Resident, Mr. William Charles Wentworth, Mr. A'Beckett, and Mr. Darvall, barristers-at-law, were introduced to the Council, and on that and several subsequent days addressed the members in opposition to the Bill.

The burden of Mr. Busby's contention in defence of his claim to 50,000 acres, including the site of a township, was that the Bill sought to legalise confiscation, and that therefore the principles which it was designed to enact were at variance with and in excess of all that was sanctioned by the British constitution.¹⁶⁹ No doubt, he said, there were many claims to land in New Zealand which would not bear investigation; but contrariwise there were many respectable settlers on the banks of the rivers and shores of the harbours who would be deeply injured were the proposed Bill to become law. This injury would be all the more ruthless because no attempt had been made by the Government, now become so paternal, to prevent British subjects acquiring property in New Zealand, as had been done in the case of those settlers who had come over from Van Dieman's land to originate the settlement at Port Philip. No sooner did it become known that these speculators had purchased extensive tracts of country from the aborigines than a proclamation was issued declaring the illegality of their proceedings. No such prohibition had, however, been put upon the acquisition of property in New Zealand, where the settlers, relying upon certain acts of repudiation by the British Government, had purchased from the natives in the belief that they were negotiating with an independent people. Mr. Busby proceeded to review the various stages of New Zealand's history in order to emphasise the events by which the independence of the chiefs and people had been repeatedly acknowledged, and concluded by asking why the chiefs had been induced under the Treaty of Waitangi to surrender the pre-emptive right of purchase to the Queen if they had never had the right as an independent people to dispose of their lands as they pleased?

Mr. Busby was followed by Mr. Wentworth, one of the local Magistrates, who was claiming 100,000 acres in the North Island, and practically the whole of the South Island except some 3,000,000 acres which he magnanimously conceded had been already sold to other purchasers. The history of Mr. Wentworth's claim, which to say the least, was one of the most scandalous in the long list of extraordinary transactions with the natives, is thus told by Sir George Gipps in his despatch to the Chief Secretary for the Colonies,¹⁷⁰ in which he intimated that in consequence of the part Mr. Wentworth had played in this flagrant attempt to flout the Government, he desired to withdraw a recommendation he had previously made in favour of this gentleman's appointment to the Legislative Council.

"In the month of February last" (1840), wrote Sir George, "seven¹⁷¹ chiefs from the Middle Island of New Zealand happening to be in Sydney, it was suggested to me by the persons who had brought them here, and under whose protection they were living, that they should be invited to sign a declaration of willingness to receive Her Majesty as their sovereign, similar in effect to the declaration which Captain Hobson was then engaged in obtaining from the chiefs of the Northern Island. The chiefs in question were accordingly brought to the Government house, and, through the medium of an interpreter, the nature of the document they were required to sign was fully explained to them in the presence of myself, the Colonial Secretary, and several persons who claimed to have purchased land in the Middle Island; and amongst other things it was expressly declared to them that only such purchases of land as should be approved by Her Majesty would ultimately be confirmed. At the conclusion of this conference a present of ten sovereigns was made to each of the chiefs, and they all promised to attend on the next day but one to sign the paper which was to be prepared for them. On the day appointed, however, none of them appeared; and in reply to a message that was sent to them, a short answer was received by one of the Englishmen, under whose protection they were, that they had been advised to sign no treaty which did not contain full security for the possession by the purchasers of all lands acquired from the natives.