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5 homegrown British ideas and assumptions about the meaning and practice of their own society and constitution are important subjects of this report. In particular, te Tiriti cries out to be seen as a constitutional document akin to the English Magna Charta. If Busby and Williams’ understandings are to be comprehended, both the Treaty and the Declaration must be seen as British political and legal documents, quite apart from likely Māori understandings. But in British terms, they both formulated the basis of a national government (Congress/ te Wakaminenga in the Declaration, Kāwanatanga/ Governorship/ Government in the Treaty). They both declared rights and liberties. They both contained the potent cultural and constitutional symbol of monarchical protection. Paragraph four of He Wakaputanga (cited above) appealed to the British monarch to protect the independence (‘Rangatiratanga’) of the new Māori state.

Paragraph two of te Tiriti (cited above) formally confirmed this monarchical protection of chiefly authority and property rights (‘tino Rangatiratanga o o ratou whenua…’). The relationship between the Queen’s Kāwanatanga and Māori Rangatiratanga in te Tiriti should be seen in light of the British constitution, in particular the relationship between a central monarchy and a local landed gentry.

This British ‘domestic’ interpretation of the Treaty seeks to draw the debate away both from a narrow reading of the mere words of the Treaty, and from broader arguments about whether or not sovereignty was transferred. Michael Belgrave’s recent analysis represents a similar attempt to ‘free [the Treaty] from hindsight and from the tyranny of textual and legally driven analysis’.14 By legal analysis he refers to debates in international common law. Belgrave argues that ‘the debates that were raging [on 5 February 1840] about the coming of the governor were only partly about sovereignty; they were much more directly about land and religion’.15 Later nineteenth century or ‘classical’ international law pictured (European) nation-states as equal contracting parties who exercised an absolute and indivisable territorial jurisdiction (or ‘sovereignty’) within their borders.16 According to Belgrave, recent New Zealand commentators have imposed this 14 M Belgrave, Historical Frictions: Māori Claims and Reinvented Histories (Auckland: Auckland University Press, 2005), p 55.

15 Ibid, p 63.

16 See D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’, Quinnipiac Law Review, vol 17, 1997, pp 99-138 (see esp pp 126-129). By contrast, the Europe of the 1830s was composed of different ‘nations’ (peoples or ethnicities) subject to more than one ‘state’ (political society or sovereignty), as Wheaton describes: ‘A State is also distinguishable from a Nation, since the former may be composed of different races of men, all subject to the same supreme authority. Thus the Austrian, Prussian, and Ottoman empires, are each 6 picture on the 1835 Declaration and the Treaty. In 1835, the narrative runs, Māori declared such an absolute territorial independence, ‘rangatiratanga’, or ‘sovereignty’. In the Treaty’s article two, Queen Victoria guaranteed to the Māori nation-state or a number of hapū nation-states this same ‘sovereignty’. The Queen’s government only applied to Pākehā.17 Yet this picture is both inconsistent with the actual subject matter of the debates at Waitangi and with the inequality between the parties.

Such a narrative is also inconsistent with the nature of international law in 1840. David Kennedy writes that in the early phases of the nineteenth century there were many types of sovereigns and sovereignty ‘which overlapped unproblematically’, citing as an example British East India Company ‘rule’ alongside or in conjunction with native potentates.18 ‘Sovereigns came in a variety of shapes and sizes. Their powers and rights differed’.19 European states recognised the sovereignty of indigenous nations, but this sovereignty differed from that of European states.

Moreover, the ‘international law’ rules or conventions that governed the interaction between European states and other states differed in different parts of the globe.20 This report will argue that British recognition of Māori ‘independence’ or ‘rangatiratanga’ in the 1830s reflected this earlier ‘international law’. British humanitarian concerns about Māori welfare and survival as a people constructed and promoted this recognition. It reflected a desire to grant Māori some ‘right of nations’ constructed from convention, custom, and Christian morality. This ‘law of nature’, or ‘law of nations’, differed from a later ‘international law’.21 Hence, the need to understand te composed of a variety of nations and people. So, also, the same nation or people may be subject to several States, as is the case with the Poles, subject to the dominion of Austria, Prussia, and Russia, respectively’. The 1815 Vienna Congress made the Polish city of Cracow an ‘independent state’ protected by these same three sovereign states. See H Wheaton, Elements of International Law, R H Dana, ed, (Boston: Little, Brown & Co, 1866 (1836)), (http://books.google.co.nz/books, accessed 4 November 2009), paras 17 & 34, ch 2, part 1.

17 This is paraphrasing the argument which Belgrave calls ‘the modern treaty’, seen in the works of Ruth Ross, Ani Mikaere, Jane Kelsey, Moana Jackson, and others, see Belgrave, Historical Frictions, pp 52-53. See critique of the ‘modern treaty’ in chapter four.

18 D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’, Quinnipiac Law Review, vol 17, 1997, p 122.

19 Ibid, p 123.

20 Ibid, pp 127-128, citing Baron Montesquieu, who wrote in 1748, ‘All nations have a right of nations; and even the

Iroquois, who eat their prisoners, have one. They send and receive embassies, they know rights of war and peace:

the trouble is that their right of nations is not founded on true principles’ (Montesquieu, The Spirit of the Laws, bk 1).

21 Ibid, p 127 (see Montesquieu quote). William Blackstone founded all law on the ‘law of nature’ and ‘revelation’ (the Bible), both of which were God’s law. The ‘law of nations’ was simply God’s law applied to dealings between nations or peoples, just as individuals were bound by the same law, see W Blackstone, Commentaries on the Laws of England, vol 1 (Philadephia: Robert Bell, 1771), (http://books.google.com/books, 17 July 2009), pp 41-43.

7 Tiriti must be accompanied by stripping it of the baggage of more recent international law and indigenous rights law.22 Belgrave’s other main concern is with the ‘tyranny of textual analysis’ that has shackled recent Treaty interpretation since Ruth Ross’ influential 1972 article.23 Ross’s suggestion that Williams should have used ‘mana’ to translate the cession of sovereignty in article one has influenced subsequent Treaty literature. Her empirically-driven focus on the Treaty’s texts, brought real research and scholarship to understandings of the Treaty. Yet Lyndsay Head has criticised the ‘linguistic essentialism’ of Ross’ approach.24 A focus on the Treaty texts is helpful, but language is almost meaningless without context. Lack of contextualization has lead to narrow understandings of ‘sovereignty’ and ‘government’ (or ‘kāwanatanga’) in particular. Hence, this report utilizes a much wider range of sources in order to comprehend more accurately the Treaty’s meaning.

Shakespeare and Dr Johnson helped define the meaning of the English language for their times, including for Williams’ and Busby’s nineteenth century.25 The passage from Shakespeare’s King John (above) articulates the simple English conception of sovereignty from the sixteenth to the nineteenth centuries – ‘supreme power’. Yet while the English monarch was thus ‘supreme head’ of the English unwritten constitution, real independence and power were exercised by Parliament, courts, and local authorities under her sovereign sway. The relationship of ‘civil government’ to ‘sovereignty’ to ‘independence’ (or ‘rangatiratanga’) within the British domestic context occupies considerable space in this report, because it was the context that formed Williams and Busby’s conceptions of these terms. Because modern international law defines 22 And see Ballantyne, ‘The State, Politics and Power’, pp 104-105, who argues that Empire ‘realpolitick’ was more important than a theoretical ‘law of nations’.

23 R M Ross, ‘Te Tiriti o Waitangi: Texts and Translations’, New Zealand Journal of History, vol 6, no 2, 1972, pp 129-157.

24 L Head, ‘The Pursuit of Modernity in Māori Society: The Conceptual Bases of Citizenship in the Early Colonial Period’, in A Sharp and P McHugh, eds, Histories, Power and Loss (Wellington: Bridget Williams Books, 2001), pp 103-108. And see Rachael Bell’s recent admirable analysis of Ross’ article and its context, R Bell, ‘ “Texts and Translations”: Ruth Ross and the Treaty of Waitangi’, New Zealand Journal of History, vol 43, no 1, 2009, pp 39This report will employ many definitions from Dr Samuel Johnson’s Dictionary, first published 1755. The definitions will be taken from the following 1824 edition: S Johnson, A Dictionary of the English Language: in Which the Words Are Deduced From Their Originals, Explained in Their Different Meanings, and Authorized by the Names of the Writers in Whose Works They are Found, A Chalmers, ed, abrid from H J Todd edition, (London, 1824), (http://books.google.com/books, 17 July 2009).

8 ‘sovereignty’ so narrowly, ‘government’ seems imprecise as a word in translation. Williams however inhabited an early nineteenth century world defined by much broader conceptions of law and government than existed in the world of a later nineteenth century or early twentieth century lawyer.

Other texts help illuminate the meaning of the Declaration and the Treaty. These include the writings and speeches of William Wilberforce, Edmund Burke, George Cornewall Lewis, newspapers and mission periodicals, and the authorised King James Bible. In legal literature, Blackstone’s Commentaries on the Laws of England is perhaps more important than Vattel’s Law of Nations in defining British understandings of the law and the law of nations in this period.26 Other contexts need to be considered besides the British Empire and Constitution, and the French Revolution and Napoleonic Wars. The Evangelical Revival and the Scottish Enlightenment of the eighteenth century are also significant. The Evangelical Revival or renewal generated the modern missionary movement, in the form of the Baptist Missionary Society (1792), the nondenominational London Missionary Society (1795) and the Evangelical Anglican Church Missionary Society [CMS] (1799), to name only the most well known few.27 These developments were closely aligned with the rise of a politically influential Anglican Evangelical party, known as the Clapham Sect, or the ‘Saints’. Headed by William Wilberforce in the House of Commons, the Saints led the British anti-slavery movement. This mass movement also influenced the Vienna Congress and European state relations at the end of the Napoleonic Wars.

Wilberforce himself was part of the formation of the CMS.28 He also encouraged Samuel Marsden to go to the New South Wales (NSW) penal colony as a chaplain to ameliorate conditions there. The Scottish Enlightenment, in the writings of Adam Smith, William Robertson, David Hume, and Adam Ferguson, influenced a younger generation of Whig 26 See William Blackstone, Commentaries on the Laws of England, vol 1 (Philadephia: Robert Bell, 1771 (1765http://books.google.com/books, 17 July 2009); and Emmerich de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, J Chitty, ed, (Philadelphia: T & J W Johnson, 1852 (1758)), (http://books.google.co.nz/books, 11 November 2009).

27 M R Watts, The Dissenters, vol 2: The Expansion of Evangelical Nonconformity (Oxford: Clarendon Press, 1995), pp 14-15.

28 J Pollock, Wilberforce (Tring: Lion, 1977), pp 176-177.

9 statesmen, including Henry Brougham and Lord John Russell.29 Scottish Enlightenment ideas about the staged development of civilization and civil government (‘stadialism’) clearly influenced James Busby.30 This report also considers biographical details that complete the interpretive picture.

Henry Williams

Henry Williams (1792-1867) grew up in a family environment that consisted of his father’s business and political interests, a strong naval tradition, and an equally strong Christian tradition.

More will be said about the last influence in the body of this report. The Williams family was of Welsh origin. His paternal grandfather was a Dissenting Minister.31 His father, Thomas Williams (1753-1804), was a mercer or draper. He probably supplied uniforms to the Royal Navy. His father ‘was spoken of as a man of very superior abilities, a great and fascinating speaker and an excellent companion’. He was also ‘a man of strong opinions and occasional testiness’.32 Henry’s personality was in part a reflection of his father’s. Henry’s mother was a Marsh, an English family with a Dissenting background. His mother’s father, Henry Marsh, was a Captain in the Royal Navy. Three of her brothers (Henry’s uncles) were also in the Navy. The Williams family initially lived at Gosport, opposite the harbour from the Navy’s Portsmouth base in Hampshire, and officers of rank would often frequent Thomas Williams’ clothing retail shop. A close acquaintance was Admiral Sir Joseph Sydney Yorke, brother of the Earl of Hardwick, after whom Thomas named his eldest son, Thomas Sydney.33 With these family influences, it is little wonder that the young Henry Williams exhibited a keen desire to also join His Majesty’s Service. This was revealed when, as a boy, he constructed, 29 Hilton, A Mad, Bad, and Dangerous People?, pp 348-349. Many of these Whig statesmen and intellectuals went to Scotish instead of European universities because of the English-French wars.

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