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

"It subsequently appeared that it was by the advice of Mr. Wentworth that they adopted this course of proceeding; and Mr. Wentworth, when before the Council, acknowledged that he had not only given the advice, but also that he had subsequently and after the issue of my proclamation, in conjunction with four or five persons, purchased the whole of the Middle Island (or all the unsold portion of it) from these very natives, paying them for it £200 in ready money, with a promise of a like sum as long as they should live.¹⁷²

"Such was the origin of Mr. Wentworth's claim to twenty millions of acres in the Middle Island," continued Sir George, "and it was the legality and validity of this transaction that he appeared before the Council to defend."

The magnitude of the property at stake naturally excited Mr. Wentworth to his most eloquent effort, and in an address of considerable length and subtlety he argued that before the proclamations issued by Sir George Gipps and Captain Hobson, nullifying all titles to land not derived from the Queen, could be binding upon British subjects, they must be founded upon some law previously existing; and if they were so founded then it was the duty of those who had issued them to satisfy the Council what that law was. The principle contained in the preamble of the Bill – that no chiefs, or other individuals of tribes of uncivilised savages had any right to dispose of the lands occupied by them – was, he contended, at variance with British law and with the Law of Nations. Numerous authorities were marshalled in support of this view, and also to prove that it mattered nothing whether the New Zealanders were an independent nation or only a few errant tribes scattered over the country; they still possessed the demesne of the soil to do with as they pleased. This being so, those who purchased land from them were only acting in accordance with the natural rights of the natives and in compliance with the Law of Nations. According to Vattel – one of the world's most eminent authorities upon the relation of one nation to another – individuals landing in an uninhabited country might not only establish colonies, but also erect a government and an empire, and he argued that if such a proceeding was permissible in an uninhabited country, it resulted a fortiori, that it might be done in a country that was peopled, provided the natives of that country gave their consent thereto. The story of the first New England Settlement under Davenport and others, in 1620, was urged as conclusive proof that British subjects, unsupported by a Royal Charter, might form colonies and erect governments, as had been done in Connecticut, where the government so established had lasted for over two centuries. He denied that there was any merit in the official assumption that the Crown had derived sovereignty over the Islands of New Zealand by right of discovery. Discovery gave no right of occupation in an inhabited country, nor would the Law of Nations acknowledge the property and sovereignty of any nation unless its possession were real, unless its settlements were actual, or it had in some way made practical use of the soil. The Bill rested upon the principle that the native was incompetent to sell his own land, and the British subject was incompetent to buy – a principle which he thought he had clearly disproved. Confiscation was the key-note of the measure. It was a Bill designed to take away property, annul grants, and to forfeit all landed possessions acquired by British subjects in New Zealand. He condemned the Bill absolutely, because he claimed to have established on incontestable grounds, and by the aid of indisputable authorities, the right of British subjects to buy land from the New Zealanders, a right which could not be taken away until the Council passed an Act to restrain it. Under these circumstances it was highly illegal to proceed to divest parties of their possessions without adequate compensation, such as was given in England when land was required for public purposes. The compensation to be given in such cases must always be awarded by a jury; therefore the proposed Bill was clearly repugnant to the laws of England. Only a few days previously the Council had passed an Ordinance, making all the laws of England and of the colony of New South Wales applicable to New Zealand. Amongst these was the right of trial by jury of which the proposed Bill was completely subversive; it took away the right of trial by jury; and therefore, declared Mr. Wentworth, the Council could not pass it, or if they did, the Judges could not certify to it.

These arguments were reiterated and amplified by the two barristers, Messrs. A'Beckett and Darvell, and on July 9 their official refutation was placed before the Council by Sir George Gipps, who on that day delivered in reply a speech remarkable for its broad grasp of constitutional history, as well as for its fearless declaration of the attitude adopted by the Crown. It was during the development of this smashing rebuttal that the objectors were enlightened as to the three great principles of law upon which the second clause of the treaty was founded; "principles, which, until I heard them here controverted," said Sir George, "I thought were fully admitted, and indeed received as political maxims." Briefly these were:

1. That the uncivilised inhabitants of any country have but a qualified domain over it, or a right of occupancy only; and that, until they establish amongst themselves a settled form of government, and subjudicate the ground to their own uses by the cultivation of it, they cannot grant to individuals, not of their own tribe, any portion of it, for the simple reason that they have not themselves any individual property in it.

2. That if a settlement be made in any such country by a civilised power, the right of pre-emption to the soil, or in other words, the right of extinguishing the native title, is exclusively in the Government of that power, and cannot be enjoyed by individuals without the consent of the Government.

3. That neither individuals nor bodies of men belonging to any nation can form colonies, except with the consent and under the direction and control of their own Government, and that from any settlement which they may form without the consent of their Government they may be ousted. That is, so far as British subjects are concerned, they cannot form colonies without the consent of the Crown.

It is not necessary to closely analyse the first of these declarations, as whatever may be said of it as a principle of law it was not in any sense applicable to New Zealand. Logicians may amuse themselves discussing why a people who are capable of granting titles to individuals of their own tribes are yet incapable of granting similar rights or concessions to individuals of other nations; or how the Government of another nation can acquire from those natives a title to land which it has already declared the natives do not possess and have no power to give. In other words, it may form sport to the mental speculator to discover how a Government can extinguish a native title which that Government has affirmed does not exist, for that is what this declaration of principle means if it is to be invested with any meaning at all.

Such reasoning is at this juncture foreign to our purpose, because, however true it may be that the native lands of New Zealand being held in common, it was not competent for individual natives to grant titles to Europeans, seeing that no individual interests had been ascertained, the right of the tribes of New Zealand to dispose of their lands as they pleased was incontestable. As has already been pointed out, they were by no means in such an uncivilised state as to be devoid of a form of government adequate in all respects for their primitive purposes. Especially was their occupancy and ownership of land highly systematised. It may be true that they had not "subjudicated the ground to their own uses by the cultivation of it," as the term cultivation is freely understood by us, but the waste spaces were just as valuable, just as necessary to them as the garden patches. Their forests, their open plains, their wild mountain sides were as much the sources of their food-supply as were their kumara fields, the streams, or the open sea, and so definitely was this understood amongst them that every hill and valley was known, named, and owned under one of their various tenures. There was, in fact, no side of his tribal life about which the Maori held such clear conceptions, or was so fixed and determined as the occupancy and ownership of the soil, for which in olden days, as in Pakeha days, he was ever ready to fight and, if necessary, to die.

If then Sir George Gipps desired to convey to his Council the impression that the New Zealanders were incompetent to deal with their own lands, he was setting up an entirely false hypothesis, an error into which he was no doubt led through not being clearly seized of all that Maori land tenure implied, the full meaning of which was afterwards to be debated on many a hard-fought field.

That the right of extinguishing the native title rested solely with the Crown was a sounder contention, based upon principles deep set in constitutional law, and supported by the practice of all colonising nations. It was the endeavour of Mr. Wentworth, and those associated with him, to depreciate the principle of pre-emption by casting at it the cheap sneer that it was "American law," and so it was. But it was British law before it was American law, and has only been heard of in American courts more frequently than in English tribunals, because questions incidental to the settlement of the New World have called it more frequently into prominence there. Broadly put the principle rests upon the assumption, dating from feudal times, that the King was the original proprietor of all the land in the kingdom, and the true and only source of title. Therefore all valid individual titles must be derived from the Crown. With the development of constitutional government the personality of the King has disappeared, but still no nation will suffer either its own subjects or the subjects of another nation to set up a title superior to its own. It has thus become a right exclusively belonging to the Government in its sovereign capacity, to extinguish the native title to a country which it may be colonising, "to perfect its own domain over the soil, and to dispose of it at its own good pleasure."

Once admitting that the natives of New Zealand had a valid title to the soil of the country, and were competent to deal with that title, the prerogative of the Crown in exercising the pre-emptive right to extinguish it under the terms of an equitable treaty was not difficult to maintain. But the buttress¹⁷³ behind the attitude which the Government adopted towards the New Zealand land purchasers was to be found in the third declaration of principle enunciated by Sir George Gipps. Here it was laid down "that neither individuals nor bodies of men belonging to any nation can form colonies, except with the consent, and under the direction and control of their own Government."

The fundamental reason which induces nations to hedge its subjects about with this restriction, was thus concisely stated by the Select Committee of the House of Commons in 1844. Although this Committee roundly condemned the Treaty of Waitangi as "a part of a series of injudicious proceedings," it was yet as hostile to the New Zealand Company in seeking to set up a settlement independent of Imperial authority, thereby imperilling their own position and prejudicing that of the Crown.

When large numbers of British subjects have established themselves in distant regions, inhabited only by barbarous tribes, it is impossible for Her Majesty's Government to leave them exposed without protection to the dangers which their own rashness may draw down upon them, or to allow them to exercise, without control, and perhaps to abuse the power which their superior civilisation gives them over the rude natives of the soil. Hence every new establishment of this kind involves a new demand upon the naval and military resources of the Empire, but the undue anticipation of such demands must occasion a very heavy burden upon the nation, and it therefore follows that the enterprises of colonisation should only be entered upon with the sanction and under the authority of the Government.

On this ground and on this ground alone the British Government was justified in calling a halt in the irregular settlement of New Zealand, and if a mistake was made it was not in that the Government now interposed their authority,¹⁷⁴ but in that they had not asserted their rights at a much earlier period. In support of this portion of his argument Sir George Gipps quoted the opinions of four of the most eminent lawyers in England of that day, Mr. William Burgh, Mr. Thomas Pemberton, Sir William Follett, and Dr. Lushington. He was even uncharitable enough to use against the New Zealand Company the opinion of their own legal adviser, Sergeant Wilde, the crushing nature of these authorities completely breaking down the pretensions of his opponents.

"I leave the Honourable Members of this Council," declared Sir George, "to say whether they will take the law from the authorities which I have produced or from the learned gentlemen who have been heard at their table; remembering, moreover, that the former were giving their opinions against their clients, the latter arguing, as they were bound to do, in favour of them."

Sir George also claimed for the British Government the right to intervene in New Zealand affairs, so far as land titles were concerned, on the ground of its immediate contiguity to the colony of New South Wales, in support of which claim he quoted an opinion expressed by a Committee of the House of Commons in 1837, and in further appeal he might have advanced the fact that in the previous fifty years Great Britain had expended no less a sum than £8,000,000 upon colonisation in the South Pacific, a fact which was surely substantial enough to create the peculiar rights which are inseparably associated with those intimate relations which grow out of neighbourhood. Finally, he thus summarised the powers which were sought for in his measure and those which it did not seek:

The Bill, gentlemen, is not a Bill of spoliation as it has been described; it is not a Bill to destroy titles, but rather to bestow titles on persons who at present have none, and who cannot get any but from the Crown. It is not a Bill to take away any man's tenementum, but to give him a tenementum, provided he can show that he has a fair and equitable claim to it, though not indeed a tenementum to any one in the lands which were purchased, or pretended to be purchased, after the issue of my proclamation and in defiance of it, for not one acre of such land shall any one ever acquire under it. Nor is it, gentlemen, a Bill to give Her Majesty any power that she does not already possess; for her power to disallow these titles is vested in her by virtue of her prerogative, and of that principle of English law which derives all landed property from the gift of the Crown. Her Majesty's prerogative in this matter is about to be exercised, not for the love of power, not for the lust of patronage, but for the good of her subjects, for which alone it is given to her; and the exercise of it in this case will be an additional proof that the prerogative is what it was elegantly described to be in the course of the pleadings in the Grenada case, of which we have heard so much, the decus et tutamen regni, the grace, the ornament, the safeguard, not regis, of the King, but regni, of the realm. I have not heard one reasonable and disinterested person object to the main purpose of this Bill. Of all the witnesses examined before the Committee of the House of Lords in 1838, no one was so wild as to say that all purchases from the natives of New Zealand were to be acknowledged; no one pretended, because the Narraganset Indians sold Connecticut, as we have been told they did, for a certain number of old coats and pairs of breeches, or because they sold Rhode Island (as I find they did), for a pair of spectacles, that therefore Her Majesty is bound to acknowledge as valid purchases of a similar nature in New Zealand. The witnesses to whom I have alluded all considered the New Zealanders as minors, or as wards of Chancery, incapable of managing their own affairs, and therefore entitled to the same protection as the law of England affords to persons under similar or analogous circumstances. To set aside a bargain on the ground of fraud, or of the incapacity of one of the parties to understand the nature of it, or his legal inability to execute it, is a proceeding certainly not unknown to the law of England; nor is it in any way contrary to the spirit of equity. The injustice would be in confirming any such bargain; there would indeed be no excuse for Her Majesty's advisers, if, by the exercise of her prerogative, she were to confirm lands to persons who pretend to have purchased them at the rate of 400 acres for a penny; for that is, as near as I can calculate it, the price paid by Mr. Wentworth and his associates for their twenty millions of acres in the Middle Island. A great deal was said by this gentleman, in the course of his address to the Council, of corruption and jobbery, as well as the love which men in office have for patronage. But, gentlemen, talk of corruption! talk of jobbery! Why, if all the corruption which has defiled England since the expulsion of the Stuarts was gathered into one heap, it would not make up such a sum as this; if all the jobs which have been done since the days of Sir Robert Walpole were collected into one job, they would not make so big a job as the one which Mr. Wentworth asks me to lend a hand in perpetrating; the job, that is to say, of making to him a grant of twenty millions of acres at the rate of 100 acres for a farthing! The Land Company of New South Wales has been said to be a job; one million of acres at eighteen pence per acre has been thought to be a pretty good job, but it absolutely vanishes into nothing by the side of Mr. Wentworth's job. In the course of this gentleman's argument, he quoted largely from Vattel and the Law of Nations to prove the right of independent people to sell their lands; and he piteously complained of the grievous injustice which we should do to the New Zealanders if we were to deny them the same right; and the Council may recollect that when I reminded him that he was here to maintain his own rights and not those of the New Zealanders, he replied, not unaptly, that as his was a derivative right, it was necessary for him to show that it had previously existed in the persons from whom he had derived it; it was, in fact, necessary for him to show that the right existed in the nine savages, who were lately in Sydney, to sell the Middle Island, in order to show his own right to purchase it from them at the rate of 400 acres for a penny! Lastly, gentlemen, it has been said that the principles on which this Bill is founded are derived from the times of Cortez and Pizarro – times when not only the rights of civilised nations, but the rights also of humanity, were disregarded. To this I answer, that whatever changes (and thank Heaven they are many) which the progress of religion and enlightenment have produced amongst us, they are all in favour of the savage, and not against him. It would be indeed the very height of hypocrisy in Her Majesty's Government to abstain, or pretend to abstain, for religion's sake, from despoiling these poor savages of their lands, and yet to allow them to be despoiled by individuals being subjects of Her Majesty. It is in the spirit of that enlightenment which characterises the present age, that the British Government is now about to interfere in the affairs of New Zealand. That it interferes against its will, and only under the force of circumstances, is evident from Lord Normanby's despatch; the objects for which we go to New Zealand are clearly set forth in it, and amongst the foremost is the noble one of rescuing a most interesting race of men from that fate which contact with the nations of Christendom has hitherto invariably and unhappily brought upon the uncivilised tribes of the earth. One of the gentlemen who appeared before you did not scruple to avow at this table, and before this Council, that he can imagine no motive Her Majesty's Ministers can have in desiring the acquisition of New Zealand but to increase their own patronage. The same gentleman is very probably also unable to imagine any other reason for the exercise of Her Majesty's prerogative than the oppression of her subjects. These, gentlemen, may be Mr. Wentworth's opinions. I will not insult you by supposing they are yours. You, I hope, still believe that there is such a thing as public virtue, and that integrity is not utterly banished from the bosoms of men in office. To your hands, therefore, I commit this Bill. You will, I am sure, deal with it according to your consciences, and with that independence which you ought to exercise, having due regard for the honour of the Crown and the interests of the subject; whilst for myself, in respect to this occupation of New Zealand by Her Majesty, I may, I trust, be permitted to exclaim, as did the standard-bearer of the Tenth Legion when Caesar first took possession of Great Britain, Et ego certe officium meum Reipublicae atque Imperatori praestitero, fearlessly alike of what people may say or think of me, I will perform my duty to the Queen and to the public.

This forceful presentation of the case for the Crown left the Council but one course open to it, and on the following August 4 the Bill had passed through all its stages and became a colonial statute. Under its provisions Commissioners in the persons of Messrs. Francis Fisher, William Lee Godfrey, and Matthew Richmond were appointed and commenced their investigation of land claims at the Bay of Islands. The separation of New Zealand from the colony of New South Wales in April 1841, however, put an end to the functions of the Commissioners under the measure, and it became necessary to revive their powers under a New Zealand statute. In his instructions covering the granting of a new Charter to New Zealand as an independent colony, Lord John Russell, the new Chief Secretary, had sustained the attitude adopted by his predecessor, Lord Normanby, on the land question. Accordingly, on June 9, 1841, under advice from Lord John, an ordinance was passed by the Legislative Council assembled at Auckland, repealing the previous Act of New South Wales and furnishing Captain Hobson, the now Governor of New Zealand, with the requisite power to appoint their successors. Intelligence had also been received in the meantime that Mr. Spain, an English lawyer, had been appointed Chief Commissioner of land claims; and under the New Zealand statute only two of the original Commissioners were reappointed, Mr. Fisher having accepted the office of Attorney-General to the colony.

With the deliberations and adjustments of this Commission we are not particularly concerned. What is of importance is that its proceedings led to a voluminous, and at times acrimonious correspondence between the New Zealand Company and Lord Stanley, who, in 1841, succeeded Lord John Russell as Secretary of State for the Colonies in Sir Robert Peel's cabinet. During the course of this correspondence the Company boldly maintained that, under an arrangement made with his predecessor,¹⁷⁵ they were so situated as to be beyond the pale of the Commission's enquiries which they said would shake every title in their settlements. They declared that the circumstances in which they had acquired the land they were now claiming were such as could not be affected by the Treaty of Waitangi, they even repudiated the validity of the treaty itself. On January 24, 1843, Mr. Joseph Somes, as Governor of the Company, despatched that celebrated letter to Lord Stanley in which occurred this significant passage: "We have always had very serious doubts whether the Treaty of Waitangi, made with naked savages by a Consul invested with no plenipotentiary powers, without ratification by the Crown, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment."

On the 15th of the following month a further letter was received from Mr. Somes, in which he specifically denied the application of the treaty to the particular possessions of the Company; and in order to give a verisimilitude of truth to his argument deliberately made light of the historical facts connected with the signing of the treaty:

"We have not," he wrote, "thought proper, hitherto, to advert to the Treaty of Waitangi except incidentally. But as we observe that it has occasionally been dwelt upon by your Lordship as being of some importance to the view taken by you in opposition to our claims, it is well that we should not quit the subject without remarking that your Lordship appears always to speak of that treaty as bearing on the entire claim of the Company. Now, your Lordship ought to be apprised of the fact that the Treaty of Waitangi itself applies to no part of the vast extent of country over which we claim the right of selection. The chiefs who signed the treaty neither could, nor did, pretend to cede anything but the northern corner of the Northern Island. Subsequently, it is true, Captain Hobson procured the accession to the treaty of chiefs further south. But the alleged accession of the chiefs within the limits of the Company's possessions in the Northern Island rests merely on evidence far too slight and loose to be taken as establishing a fact of such grave public character; at any rate, half at least of the 20,000,000 affected by our claim lie in the Middle (South) Island; and the Middle and Stewart's Islands, it is obvious, cannot be affected by the Treaty of Waitangi, inasmuch as Her Majesty's title to them was 'asserted' on the grounds of discovery without pretence to any treaty or cession."

This attempt to mislead the Minister by a flagrant disregard for the proceedings of Major Bunbury and all that those proceedings implied, was unfortunately but too characteristic of the methods pursued by the Company at this time, whose officers had now developed a dexterity in conjuring with facts against the subtlety of which the Minister could not too jealously guard the public interests.

To the equivocal attitude adopted by the Company Lord Stanley replied through his Under-Secretary, Mr. Hope, in one of the noblest passages ever penned by a British Minister, – a passage in which he sternly refused to sacrifice official integrity to mere commercialism or national honour to ambitious personal ends:

"Lord Stanley," wrote Mr. Hope, "is not prepared, as Her Majesty's Secretary of State, to join with the New Zealand Company in setting aside the Treaty of Waitangi, after obtaining the advantages guaranteed by it, even though it might be made with 'naked savages,' or though it might be treated by lawyers as 'a praiseworthy device for amusing and pacifying savages for the moment.' Lord Stanley entertains a different view of the respect due to the obligations contracted by the Crown of England, and his final answer to the demands of the New Zealand Company must be that, so long as he has the honour of serving the Crown, he will not admit that any person, or any Government acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful and equitable rights."

Foiled in their efforts to induce the Colonial Minister to award them the full measure of their enormous claim without question or enquiry, the Company then preferred a claim for compensation against the State on the grounds that the policy of the Colonial Office and the proceedings of the Government in New Zealand had brought them to the verge of financial ruin. Still powerful in the House of Commons they were able to exert considerable influence there, and in April 1844 a Select Committee was set up, with Lord Howick, now one of the Company's warmest friends, as Chairman, and an order of reference which authorised them "to enquire into the State of the Colony of New Zealand, and into the proceedings of the New Zealand Company."

The Committee sat until July, taking voluminous evidence from many persons who had some previous knowledge of the country, and when they met to formulate their report it was found that they were sharply divided on material points. A section of the Committee, led by Messrs. Cardwell and Hope, Lord Stanley's Under-Secretary, endeavoured to so frame the report as to make amongst others the following acknowledgments:

That from the time of the discovery by Captain Cook to the beginning of the year 1840, the independence of New Zealand had never been questioned by this country, and in 1832 was recognised by the British Government in a very peculiar and formal manner.

That the urgent applications made by private individuals from time to time to the Colonial Office for the adoption of these islands as a British colony, were reluctantly acceded to by the British Government in 1839, with a view to preventing the evils arising and apprehended from irregular and unauthorised settlement.

That this adoption was effected in the early part of 1840 by an agreement called the Treaty of Waitangi, made by Captain Hobson with upwards of 500 chiefs and other natives, claiming and admitted on the part of this country, to represent the whole population, so far as regarded the Northern Island; while the other islands, which contained no population capable of entering into anything resembling a civil contract, were assumed to the British Crown by the right and title of discovery.¹⁷⁶