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«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»

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142 Williams thus unequivocally stated both the extent and nature of Kāwanatanga. It would protect all, it would suppress lawlessness, and the law which it upheld would be derived from God’s law. An Anglican vision of civil polity seems implicit here. Church and State, God’s law and human law, Māori and Pākehā would be one. In Richard Hooker’s classic conception of English Reformation polity, all members of the English ‘commonwealth’ (state or kingdom) were also members of the Church of England, and the Sovereign was the head of both.455 This influential definition illuminates Williams’ statements. There was one Sovereign and one Law, which was a perfect unity of human codes and God’s law. Williams probably thought the English Sovereign symbolically represented ‘one Law’, or that s/he exercised government in accordance with that ‘one Law’. This ‘one Law’ might also have been called the English Constitution, including the Magna Charta.

The connection between divine and human law, between Church and State, can clearly be seen in

extracts from the Bill of Rights 1689:

Whereas the late King James II, by the assistance of diverse evil councellors, judges, and ministers…did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom….

in order to such an establishment as that their religion lawes and liberties might not againe be in danger of being subverted….

Having therefore an intire confidence that his said Highnesse the Prince of Orange [William III]…will still preserve them from the violation of their rights which they have here asserted and from all other attempts upon their religion rights and liberties…456 455 ‘We hold, that...there is not any man of the Church of England but the same man is also a member of the commonwealth, nor any member of the commonwealth which is not also a member of the Church of England...’, R Hooker, The Works of Richard Hooker, Containing the Eight Books of the Laws of Ecclesiastical Polity, and Several Other Treatises, Izaak Walton, ed, vol 2, (Oxford: Thomas Tegg, 1843), (http://books.google.com/books, 1 September 2009), p 386 (bk 8, Laws of Ecclesiastical Polity).

456 Taswell-Langmead, English Constitutional History, pp 503, 504, 505.

143 Williams had told rangatira at Treaty signings that by consenting to te Tiriti they would be united with their Pākehā brethren under a unitary state that would be ruled in accordance with a law that was ultimately sourced from God’s law. This perhaps is also the best way in which to understand the statement which Williams encouraged Hobson to announce as rangatira signed te Tiriti: ‘he iwi tahi tatou’ (we are all one people).457

The Function and Structure of Civil Government

Williams and the CMS’s basic conception of the function of Kāwanatanga under te Tiriti was in essence that of the Māori government suggested in their November 1838 letter: ‘They [Māori] will form a mutual support to each other[,] a protection to those who do well & dread to evil doers and gradually rise in the scale of Nations.’ These words were derived from Romans 13, an important New Testament chapter on civil government. In the 1837 Kawenata Hou, verse four of

this chapter reads as follows:

Ko ia hoki te minita o te Atua mou mo te pai. Tena ki te mea koe i te kino, kia mataku ra;

ekore hoki ia e maumau hapai i te hoari: ko ia hoki te minita o te Atua, he kai rapu utu mo te riri ki a ia e mahi kino ana.

(For he [the civil magistrate/ruler] is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minster of God, a revenger to execute wrath upon him that doeth evil. (KJV)) The central teaching contained here was that God had appointed the civil magistrate; s/he was none other than his minister or servant. (Such passages made it easy for Anglicans to see the King/Queen as the Chief civil magistrate.) The connection between God’s law, or the moral law, and the law to be enforced by ‘te minita’ was close. The same chapter from Romans (verse nine) referred to several of the ten commandments (thou shalt not commit adultery,...kill,...steal,...bear false witness) which were also summed up by ‘Thou shalt love thy neighbour as thyself’.

457 It was almost certainly Williams who coached Hobson to say this. See W Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi (Wellington: George Didsbury, 1890).

144 The same chapter (Romans 13) exhorted subjection or obedience to these ‘higher powers’, for to resist the authority which they wielded was to resist God. The 1837 translation of this passage suggests that not only Kāwanatanga but also Rangatiratanga under the Treaty’s article two

should be understood as one of these ‘powers’. The translation read:

Kia rongo nga wairua katoa ki nga rangatiratanga nunui. No te Atua anake hoki nga rangatiratanga: ko nga rangatiratanga nei hoki kua oti te w[h]akamea e te Atua.

(Let every soul[wairua] be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. (KJV)) ‘Higher powers’ were here translated by ‘nga rangatiratanga nunui’, which could be interpreted back into Māori as ‘the great chieftainships’. The plural noun indicates any number of powers, and perhaps a hierarchy of powers. Within the English constitution, the monarch, together with the Lords and Commons, was seen as the highest power. But underneath them there were many other powers exercised at the local level, including the powers of local corporations, magistrates and landlords. Pat Thane describes the British state in the later eighteenth century (equally





relevant to the early nineteenth) in this fashion:

This strong central state was associated with an unusual range of ‘free institutions’, official and voluntary, enabling local communities to achieve a high degree of selfgovernment within the broad framework of the law and their representatives to influence the activities of central government. Parliament could and did act as a check upon the actions of crown, ministers (normally resident in the House of Lords) and civil service.

Chartered municipalities [local councils] had considerable independence in the conduct of their local affairs including, often (their exact powers varied with the terms of their charters), extensive judicial powers, both civil and criminal.458 458 P Thane, ‘Government and Society in England and Wales, 1750-1914’, in F M L Thompson, ed, The Cambridge Social History of Britain 1750-1950, vol 3 (Cambridge: Cambridge University Press, 1990), pp 5-6.

145 Until the 1830s, and even beyond that decade, policing and poor relief (welfare) were provided by local municipalities or parishes, and education was the almost exclusive sphere of Anglican and Dissenting churches. Unpaid justices of the peace had extensive local powers, including the arrest and punishment of offenders for drunkenness, vagrancy, profanity, poaching, and so on.459 Busby’s 1837 plan to appoint rangatira as local ‘Conservators of the Peace’ might have reflected such a model.460 In addition, central government land taxes were ‘paid by landowners who passed them on to tenant farmers, labourers, artisans and other tenants in rents and other charges’.461 This demonstrates the property hierarchy of English society.

It is therefore not difficult to see how the missionaries and officials could have conceived rangatira as ‘higher powers’ within their respective hapū. The Queen as the supreme power did not deprive other legitimate authorities of their own powers, within their sphere of influence.

Verse seven of Romans 13 implied that a number of legitimate authorities comprised the

government of a kingdom:

–  –  –

The use of ‘nga mea tika’ (‘dues’) and ‘e tika nei’ (‘is due’) would probably have suggested to a Māori reader, custom law or tikanga. It can be argued that this Biblical passage, along with the hierarchical nature of British society and constitution, can be correlated to the words used in te Tiriti’s article two. That this article was intended to protect land and property rights there can be no doubt. The English text plainly conveyed that. That it protected chiefly authority or rangatiratanga per se is another matter. The interpretation given to the Romans 13 translation above certainly indicates that ‘chieftainship’ was within the hierarchical assumptions of Williams. David Cannadine argues that the British saw other races in terms of social or class 459 Ibid, pp 6, 13, 16-17.

460 See text at n 183.

461 Thane, ‘Government and Society in England and Wales’, p 4.

146 hierarchy, comparing them with their own domestic society, rather than distinguishing themselves from other societies on racial grounds. Hence, Māori and other societies were defined primarily by reference to British norms of social hierarchy.462 Stadial views of civilization support this view: Māori needed only to move from chiefly barbarism to civilized government, that is, from the past form to the present form of British society. Cannadine further argues that a Burkean vision of ‘faith’, ‘family’, ‘property’, and ‘monarchy’, was exported to the empire.463 Anglican missionaries would certainly appear to fit well within this mould. Cannadine’s interpretation supports the idea that indigenous elites would be an important part of the social order, even if Britain exercised the sovereign power.

Rangatiratanga: property rights and hapū authority?

In 1840 most Europeans accepted that Māori land tenure was communal and that the rangatira of hapū would have to be consulted to effect a valid transfer of possessory rights. Missionaries and others transacted land with the relevant rangatira. Only rangatira with links to that whenua as representatives of hapū and whanau could participate in such transactions. Since rangatira claimed the most significant use-rights to land and fisheries within the hapū rohe, Europeans viewed them as akin to English landlords. To Henry Williams the link between property and rank or status was obvious in English society. To him it was no less obvious in Māori society.464 Thus Williams stated in September 1844 that he believed the Treaty protected the ‘Lands[,] Rights and Privileges’ of chiefs, or their ‘Rank, Rights, and Privileges’. ‘Lands’ appears an alternative for ‘Rank’, and visa versa.

Chiefly rights, however, were not limited to land. In his review of the 1840 Commons’ Report on New Zealand, Williams rebutted E G Wakefield’s evidence that ‘there was nothing [in Māori society] like what is called law amongst civilized nations’. Williams’ commented: ‘It is impossible there could be as amongst civilized nations, as they were in a savage state – yet they 462 D Cannadine, Ornamentalism. How the British Saw Their Empire (London: Allen Lane, 2001). His argument is intended to counter Edward Said’s famous Orientalism thesis, in which the British defined themselves by contrast with coloured races and societies. Cannadine instead argues that the British looked for similarities between their own society and other societies, with lesser regard for whether they were ‘coloured’ or not.

463 Ibid, p 122.

464 And political liberties were also conceived as property-rights, see n 330.

147 were not without law whereby their proceedings were regulated’.465 Hence, while Williams accepted that Māori did not have a ‘civilized’ law, they did have law to regulate their society.

Chiefly authority, he implied, reflected what we today might describe as customary law.

Furthermore, Williams stated that the ‘Principal Chiefs’ who made the cession of sovereignty were ‘Sovereign Chiefs’ who exercised ‘Sovereign authority’, and that ‘the limits also of their jurisdiction [were] clearly defined being the territory possessed by the Tribe’.466 These statements challenged Wakefield’s evidence that ‘the cession is extremely vague as to boundaries’ and that the Confederation of Chiefs purporting to make the cession ‘in point of fact, never possessed any sovereign authority’. Wakefield declared: ‘It [their sovereign authority] was a mockery, and the mockery has been carried on now. These natives have been assembled and have gone through the form of a treaty, without being able to define the boundaries of their jurisdiction, since they never had any jurisdiction’.467 Williams’ counter to Wakefield’s mocking of the Treaty was his affirmation that the chiefs did have authority on behalf of hapū to enter into the Treaty and cede to the Queen the sovereignty (civil government) within the hapū’s territories.

This was consistent with Williams’ belief that article one was about rangatira accepting a new authority – Kāwanatanga or Civil Government.

Williams believed that rangatira exercised chieftainship in hapū affairs. This hapū-based sovereignty was nevertheless not equal to the national sovereign authority of the Queen. Yet Henry Williams believed that this hapū-based authority would continue after the Treaty.

Chapter three argued that Magna Charta for Henry Williams stood for the protection of both property rights and the ‘rank’ or authority of rangatira.

Williams’ rendition of article two in his 1847 letter to Bishop Selwyn suggests this:

465 Williams to Coates, 21 Oct 1841, CMS/CN/0 101, pp 2-3.

466 Ibid, p 2. This is quite a brief response of a few lines. Its exact import, as argued in the text above, requires careful interpretation.

467 ‘Report from the Select Committee on New Zealand; Together with the Minutes of Evidence Taken Before Them, and An Appendix, and Index’ (House of Commons, 3 August 1840), in BPP 1840 (582), p 38, IUP, vol 1.

148 The Queen of England confirms and guarantees to the chiefs and tribes, and to each individual native, their full rights as chiefs, their rights of possession of their lands, and all their other property of every kind and degree.



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