«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»
The language of parent-infant and protector has already been explored in the analysis of Busby’s English text. It was suggested there that it derived from feudal conceptions of the relationship between monarch and subject, and from Scottish notions of civilization where uncivilized societies were regarded in their ‘infancy’. The importance of Christian teaching and conversion to this British expectation of ever-increasing peace and prosperity was also considered (as reflected in Busby’s opening address to Māori). Busby also suggested that this appeal to the King as ‘matua’ to protect ‘Tamarikitanga’ was a Māori ‘sentiment’ and Māori ‘language’. This 89 statement has some validity.257 For the missionaries, theological understandings of God as a father, as expressed in the Lord’s Prayer, would have been paramount over feudal and certainly over the civilizational conceptions of this clause. Christian rangatira would doubtless have had these Christian analogies in mind also.
What did Busby and Williams mean when they referred to Te Tiriti/the Treaty as ‘the Magna Carta of the Māori’?
On at least two occasions, Henry Williams called te Tiriti o Waitangi a ‘Magna Charta’ for Māori, while James Busby called He Wakaputanga ‘the Magna Charta of New Zealand Independence’. What did they mean by this? To answer this question it is necessary to understand what Magna Charta (or ‘Great Charter’) represented in British political discourse of the early nineteenth century.260 This chapter provides a brief summary of the historic Magna Charta and its context. A sketch of Magna Charta discourse in the seventeenth to nineteenth centuries follows. The final section locates Henry Williams and James Busby’s use of Magna Charta within that historical discourse. Williams demands more attention than Busby, as it was Williams’ role in explaning te Tiriti’s meaning to Māori that was significant in shaping Māori understanding.
258 Williams to Bishop Selwyn, 12 July 1847, MS 91/75, AML, vol 100, p 53.
259 Busby to Alexander Busby, 10 Dec 1835, MS 46, AML.
260 I will adopt this spelling of Magna Charta in my text, as this was the spelling used by Williams and Busby and their contemporaries, rather than the modern ‘Magna Carta’. From the Latin word ‘charta’ is derived the English word ‘charter’, defined by the Concise Oxford Dictionary, 9th edition (1995): ‘a written grant of rights, by the sovereign or legislature, esp. the creation of a borough, company, university, etc.’. This meaning is quite close to the historic meaning of the Magna Charta (or ‘Great Charter’).
91 The Magna Charta is critical in comprehending Williams’ understanding of the importance of the Treaty. This is because Magna Charta was a pervasive cultural symbol of British law and justice, rights and liberties. A leading modern historian of Magna Charta has defended the political and constitutional potential of the thirteenth century Magna Charta(s) against those writers who have derided its ‘myth’. According to the ‘myth’ view, much more has been made of this thirteenth century feudal document than was justified by its original context. However James Holt writes
The history of Magna Carta is the history not only of a document but also of an argument.
The history of the document is a history of repeated re-interpretation. But the history of the argument is a history of a continuous element of political thinking…. Approached as political theory it sought to establish the rights of subjects against authority and maintained the principle that authority was subject to law. If the matter is left in broad terms of sovereign authority on the one hand and the subject’s rights on the other, this was the legal issue at stake in the fight against John, against Charles I and in the resistance of the American colonies to George III.261 Famous twentieth century jurist Lord Denning described Magna Charta similarly as ‘the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot’.262 Part of the purpose of this chapter is to show how the Magna Charta ‘myth’ pervaded British culture and was used as a weapon in political debate. Even the monarchically inclined Dr Samuel Johnson felt compelled to include a definition for Magna Charta in his Dictionary. His definition cited the authority of Addison, editor of probably the most influential English periodical journal (the Spectator) of the eighteenth century English
Magna Charta [Lat]: the great charter of liberties granted to the people of England in the ninth year of Henry the Third, and confirmed by Edward the First (Addison).
This definition referred to Henry III’s 1225 confirmation of the original 1215 Magna Charta granted by King John. This illustrates that Magna Charta enjoyed an ongoing political life from its inception. ‘Charter’ language pervaded English politics. Johnson’s Dictionary defined charter (from the Latin, charta) as: ‘A written evidence. Any writing bestowing privileges or rights’ (Shakespeare).263 The nineteenth century radical ‘Chartist’ movement in England proves the relevance of this language.
The relevance of Magna Charta to nineteenth century New Zealand political discourse is demonstrated by the number of times it is cited in the New Zealand press. In the period 1 January 1839 to 1 January 1849, around 24 different articles mentioned Magna Charta or ‘great charter’.
Many of these articles concerned significant settler and Māori interests.264 Auckland paper, the Daily Southern Cross, a paper sympathetic to Māori during the 1840s, recorded Governor FitzRoy’s statement to the Legislative Council in April 1845. The Governor assured members that Māori at Orakei were ‘all disposed to abide by the Treaty of Waitangi, the Magna Charta of New Zealand’.265 The New Zealand Colonist, a Wellington paper established to oppose the proNew Zealand Company New Zealand Gazette, defended George Clark’s efforts to protect the Māori of Te Aro pa from Colonel Wakefield in 1842. It argued that a letter written by Protector Clark contained ‘nothing more than a simple statement of an undeniable principle of English law, at least as old as Magna Charta’ that no person should be ‘driven from his property’.266 Settlers also argued from British constitutional precedent. The Nelson Examiner of 22 March 1845 argued for settlers’ rights to operate any business they chose without obtaining a license, because this was protected by Magna Charta, the Bill of Rights and even the Coronation Oath itself. The article relied in part on the Bill of Rights (1689), which, it stated, was ‘incorporated in the statute law of the realm’, and which declared ‘that excessive fines should not be imposed, nor cruel and unusual punishment inflicted’.267 263 See Johnson’s Dictionary (1824 ed).
264 The majority were settler concerns. The following references to New Zealand newspapers are taken from www.paperspast.natlib.govt.nz. A search of ‘Magna Charta’ on this site between the above dates delivered 21 results, a search of ‘Magna Carta’ one result, and a search of ‘great charter’ four results. In total 26 results, though a few searches identified the same article.
265 Daily Southern Cross, 5 April 1845, vol 2, no 103, p 3.
266 New Zealand Colonist, 16 Sept 1842, vol 1, no 14, p 2.
267 Nelson Examiner, 22 March 1845, vol 4, no 159, p 12.
93 FitzRoy, in his 1846 New Zealand Remarks, called the Treaty a ‘Magna Charta’, as did subprotector George Clarke jnr in his memoirs.268 The Wesleyan Mission Society in 1848 described the Treaty as ‘the pledge of [Māori] loyalty, and the Charter of their rights’.269 These examples demonstrate the continuing relevant of Magna Charta and its successor documents to colonial political discourse in the Treaty period.
A Brief History of the Great Charter, 1215 To understand the historical echoes of 1215 during the nineteenth century requires a brief description of its origins. King John, a successor of William the Conqueror, exacted on England a burdensome level of taxes and fines and avoided the finer points of criminal justice procedure.270 Since the Norman Conquest of 1066 the Norman barons, granted estates by William I,271 gradually came to identify more with England than with Normandy, the land of their ancestors.272 In 1213 the northern nobility refused to follow the King to fight in France, and John lost Normandy to the French. He also lost his battle with Pope Innocent III over the appointment of a new Archbishop of Canterbury and surrendered England’s independence when it became a fief of the Church of Rome. This national humiliation and multiple grievances over misgovernment combined to create a ‘confederacy’ of church, nobility and people against a tyrant king. The barons in arms demanded that the King confirm the rights and liberties of the people by written charter sealed by him. When the time for doing so expired they marched on London and their articles (formulated in part by Archbishop Stephen Langton) were subsequently embodied in the ‘Great Charter’ at Runnymede. The traditional date for King John’s acceptance of the Charter is 15 June 1215.273 268 R FitzRoy, Remarks on New Zealand (London: W and H White, 1846), p 10; G Clarke (jnr), Notes on Early Life in New Zealand (Hobart: J Walch & Sons, 1903), p 36.
269 Correspondence between the Wesleyan Missionary Committee and the Rt Hon Earl Grey (London: P Thoms, 1848), cited in R Evans, The Truth About the Treaty (Kerikeri: Lal Bagh Press, 2004), p 118.
270 T P Taswell-Langmead, English Constitutional History: From the Teutonic Conquest to the Present Time, T F T Plucknett, ed, tenth edition (London: Sweet and Maxwell, 1946), p 77. See also Holt, Magna Carta, chs 8 and 9 for a detailed discussion of the Charter’s key clauses and the various contributions to its drafting.
271 Taswell-Langmead, English Constitutional History, p 35.
272 Ibid, p 76.
273 Ibid, pp 76-80.
94 The Great Charter consisted of 63 articles and was largely concerned with practical issues of government and the relationship between the King and his feudal subjects. It commenced with a declaration that the church should be free with all rights and liberties secured, and confirmed the freedom to elect prelates which had already been granted by separate charter.274 It dealt with a range of feudal obligations: wardships, the marriage of heirs, widows’ dowries, and the rights of barons to the custody of abbeys which they had founded.275 The administration of law and justice was the subject of a number of articles. These clauses covered issues from fixing the location of the king’s court (so that plaintiffs did not have to follow the king around the kingdom), to civil suits by a woman being limited to the death of her husband (as women could hire a champion to fight for them in a ‘trial by battle’, hence suits or ‘appeals’ by women were disliked).276 Clauses 12 and 14 of Magna Charta concerned specific dues or taxes from feudal tenants, rather than taxes in general. However, these clauses were later held to represent the constitutional principle that the Crown had no right of general taxation except with the consent of the national council (or Parliament).277 Clauses 39 and 40 also had future constitutional significance. These clauses contained the principles of no imprisonment without trial (habeas corpus), trial by jury, and security of
property and personal liberties generally:
39. No free man (nullus liber homo) shall be taken or imprisoned or disseised [deprived of his property] or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.
40. To no one will we sell, to no one will we deny or delay right or justice.278 274 Ibid, p 80.
275 Ibid, pp 81-83. A good example of the feudal nature of the Magna Charta is c 29: ‘No knight shall be compelled to pay for castle-guard, if he be willing to perform the service in person, or (on reasonable excuse) by a proper deputy; and whilst on service in the army, he shall be free from the duty of castle-guard’.
276 Ibid, pp 83-89.
277 Ibid, pp 89-90.
278 Holt, Magna Carta, p 461; Taswell-Langmead, English Constitutional History, pp 89-93 has a slightly different translation. The writ of habeas corpus (Latin ‘you must have the body’) was developed later. It required a detained person to be brought before a judge or into court to investigate the lawfulness of his or her detention.
95 Other clauses secured to London, and all other cities, boroughs, towns, and ports their ‘ancient liberties and free customs’. Uniformity of weights and measures was prescribed. Foreign merchants were granted free movement in and out of and within England, except in time of war.279 Constables and royal bailiffs had to pay if they took any man’s corn or other chattels. The king, his sheriffs, or bailiffs were prohibited from taking any horses or carriages of freemen or any timber for castles or other uses, without the consent of the owner.280 Clause 61 provided that the king’s castles and possessions could be seized until such time as a grievance against him was redressed. The clause set up a ‘Council’ of twenty five barons. Like a court, the Council would adjudicate on disputes with the king concerning the seizure of property or the imposition of fines. The Council was to operate by majority decision, an innovation pointing to the future. Some older commentators have seen in this clause a general right of rebellion. The clause really conferred a legal power to distrain the Crown’s property. This nevertheless represented a real check on its own powers.281 The Charter stated that it was both a ‘confirmation’ and a ‘grant’ of rights by the King.282 Holt writes: ‘Sometimes Magna Carta stated law. Sometimes it stated what its supporters [the barons] hoped would become law. Sometimes it stated what they pretended was law’.283 Nevertheless, Magna Charta was interpreted by many commentators in successive centuries as merely confirming ancient English rights and liberties. The Magna Charta itself was confirmed dozens of times by successive monarchs.284 279 Taswell-Langmead, English Constitutional History, pp 93-94.
280 Ibid, pp 94-95.