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While Hobson acknowledged the formal existence of the Declaration, doubting only its practical or governmental effect, Bourke’s successor, Governor Gipps, dismissed the Declaration as ‘a silly as well as an unauthorized act.... it was…a paper pellet fired off at the Baron de Thierry’.545 Gipps’ comments could themselves be dismissed: they were made five years after the Declaration in a debate about pre-Treaty European land claims. Although the Declaration was itself unauthorised, it was arguably within the scope of Bourke’s instructions which exhorted Busby to encourage among Māori ‘a settled form of government’ and law.546 Bourke and his Council approved the Declaration, even though Busby did not have specific authority for it. But they objected to article two, which they thought was inserted to override McDonnell’s Hokianga law prohibiting liquor imports. And they cautioned Busby to seek NSW’s sanction for any future 543 Hobson to Bourke, 8 Aug 1837; encl in Bourke to Glenelg, 9 Sept 1837, No 86, CO 209/2, ATL, p 34-34a.

544 Ibid, p 35-35a.

545 Gipps’ Speech to NSW Legislative Council, 9 July 1840, CO 209/5, pp 281-281a.

546 Bourke to Busby, 13 April 1833, BPP (1840), p 6.

185 measures of importance before submitting them to rangatira for adoption.547 For his part, Secretary of State Glenelg approved Busby’s efforts ‘to defeat the attempt of the person calling himself Baron de Thierry, to establish a Sovereignty over the New Zealanders’.548 The Confederation acted on at least two occasions between 1835 and 1840. A Committee of the Congress issued a warrant in 1837 for the arrest and deportment to NSW of the Europeans charged with the crime of theft from Captain Wright. Busby probably prepared this warrant for their endorsement.549 In 1838 Busby obtained the authority of Confederation chiefs to execute a Hokianga ‘slave’ for the murder of a European.550 Issue 4: The relationship between He Wakaputanga and Te Tiriti ‘What, if any, was the relationship between He Wakaputanga/ The Declaration and Te Tiriti/ The Treaty?’ The close relationship between He Wakaputanga and te Tiriti requires careful interpretation. In particular, the uses which He Wakaputanga makes of the words rangatiratanga and mana must be understood in light of all other important word choices, including kāwanatanga. Te Tiriti also makes use of rangatiratanga and kāwanatanga. Each document must also be understood in light of its unique purpose and context. He Wakaputanga was about creating a new Māori state. Te Tiriti was about bringing that Māori state, or rather a collection of states or hapū, under the protective governance of Britain.


–  –  –

The Declaration’s article one declared the independence (rangatiratanga) of the independent state (whenua rangatira) of New Zealand. Te Tiriti appeared to protect this same rangatiratanga in article two.

What did the independent state of New Zealand mean to Busby and Williams and their British associates? This report suggests that Williams saw He Wakaputanga as confirming the rights and independence which the Māori ‘nation’ already possessed by virtue of being a people created by God. ‘Nation’ should be understood in the early-modern sense given by Johnson’s Dictionary as ‘a people distinguished from another people’. This Māori nation pre-dated He Wakaputanga.

Therefore, He Wakaputanga declared an independence that already existed. It also pointed to a British form of national governance, in the form of a Congress or legislature.

Busby, with his stadial views of civilization, identified the existence of an independent state more with this collective national governance – Congress or te Wakaminenga. Most British officials similarly identified the two. Hence, when it was clear that a Māori pan-tribal government had not developed much beyond the Declaration by 1839, Normanby’s instructions

qualified the acknowledgment of New Zealand ‘as a sovereign and independent state’:

so far at least as it is possible to make that acknowledgement in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even deliberate in concert.551 Yet British officialdom did not believe that a Māori state properly existed at 1840. And Williams and company, for their part, saw its ‘independence’ in terms of a sanctified Māori chieftainship (or rangatiratanga), at least as much as in governmental terms. This means that the rangatiratanga protected by Kuini Wikitoria in article two of te Tiriti did not amount to that of a European kingdom or state. There was in fact no ‘Kingitanga’ established by 1840: there was no King, neither was there an operational British-style legislature.

–  –  –

‘Kingitanga’, ‘Mana’, ‘Kawanatanga’, and ‘Tamarikitanga’ Article two of He Wakaputanga specficied the location of the United Tribe’s ‘sovereign power and authority’ (ko te Kingitanga ko te mana’) in their Congress (‘huihuinga’ or ‘runanga’). In other words, it was Congress that was to exercise or represent the sovereignty of te Wakaminenga. Article two expanded on this thought, declaring that only Congress was to make laws (‘te wakarite ture’) and/or exercise government (‘Kawanatanga’). Hence, the Declaration established the inextricable connection, in British thinking, between national sovereignty and national government or kāwanatanga: Congress held the sovereignty because it enacted the laws.

It is possible to say that rangatira probably had a limited understanding of the meaning of rule by legislation, especially as the Congress was never effective in that capacity. The governor’s authority in NSW would have showed itself more in terms of military and police powers – the coercive end of civil government or kāwanatanga, rather than the law making or parliamentary end. On the other hand, Christian rangatira may have had some conception of the new Christian ‘ture’ (law) from the scriptures (the Ten Commandments, for example). And ‘ture’ was of course used in He Wakaputanga for law-making (‘te wakarite ture’).

The text of He Wakaputanga tied a British form of governance, by way of national assembly or Congress, very much to this law (ture) and its associated kawanatanga. Hence, Williams and Busby probably considered that at least some rangatira would have made the connection between the chiefs’ claim of governmental powers in 1835 and the coming of Hobson to be a governor for Pākehā and Māori (‘hei Kawana hoki mo tatou’), in the words of Busby’s invitation to the 5th February hui.552 In the Treaty’s article one, rangatira granted to the Queen this right of government over the land.

Williams’ explanation at Waitangi reinforced the idea that te Kāwanatanga would govern all by

means of one law:

–  –  –

We gave them [the chiefs] but one version [of the Treaty], explaining clause by clause, showing the advantage to them of being taken under the fostering care of the British Government, by which they would become one [Christian] people with the English, in the suppression of wars, and of every lawless act; under one Sovereign, and one Law, human and divine.553 Rangatira influenced by Christian teaching presumably would not have escaped the implication that the law brought by Hobson would reflect scriptural principles or ‘ture’. Hobson’s ‘he iwi tahi tatou’ (we are all one people) on 6 February 1840 would surely have brought home to some rangatira the Biblical concept of a new sanctified nation, of Māori and Pakeha, under British protection.

Article three of the Declaration stated the subject-matter of the laws to be made by Congress:

‘justice’ (which probably meant the criminal law), the peace of the realm, and commercial regulation. These ideas were expressed idiomatically in the Māori text. Together with the foreign threat, these were the key concerns of Busby, the missionaries, and rangatira, in 1835. Arguably, missionaries thought that these ‘national’ governmental functions were handed over to Hobson in 1840 (by the cession of kawanatanga).

The Declaration’s article four requested the King’s protection. The Treaty of Waitangi formalized this request by express convenant (in particular, articles two and three). This protection implied some form of natural or social hierarchy, as expressed by the metaphor of the King as parent (‘matua) and Māori as child (‘tamariki/tanga’).

Issue 6: Crown understandings of Te Tiriti/ The Treaty ‘How did the Crown understand Te Tiriti/ The Treaty? And, therefore, what was the nature of the relationship and the mutual commitments it was assenting to in signing Te Tiriti/ The Treaty?’ 553 Williams, ‘Early Recollections’, [nd], cited in Carleton, The Life of Henry Williams, vol 2, p 14. Williams’ account is somewhat unclear, whether it was the 5 February hui when he reassured chiefs in this fashion, or whether it was after the hui in private discussions with some rangatira.

189 The focus of this section will be on the meaning of Williams’ translation.

Article 1: ‘Sovereignty’ and ‘Government’ In the early nineteenth century, ‘sovereignty’ was defined as ‘supreme power’ or ‘highest place’.

A ‘sovereign’ was a ‘supreme lord’, who was subject to no other authority.554 These definitions suggest that the English Monarch was the highest power in the kingdom, though not an absolute power. The idea of absolute, unlimited, or despotic power was associated in British thought with European Catholic kingdoms, not with the British constitution. In England, the sovereign ruled in accordance with law and liberties. William Blackstone gave a theoretical legal definition of sovereignty as ‘a supreme, irresistible, absolute [and] uncontrolled authority’. Yet Blackstone also stated that English laws (stemming from Magna Charta) preserved English rights of personal security, personal liberty and private property. The ‘spirit of liberty’, Blackstone said, was ‘deeply implanted in our constitution, and rooted even in our very soil’.555 Blackstone expressed a common English view of constitutional monarchy rather than absolute monarchy. Williams, Busby, and their compatriots no doubt shared this view. Williams applied this domestic constitutional perception to the Treaty, when he said: ‘My view of the Treaty of Waitangi is, as it ever was, that it was the Magna Charta of the aborigines of New Zealand’.556 In the common-place political thinking of Williams’ day, Magna Charta, or the Great Charter, had protected the lives, liberties and property of Englishmen from 1215 to the present.

Ruth Ross, in her 1972 article, suggested that Williams should have ‘associated mana with kawanatanga in the translation of sovereignty’, for then ‘no New Zealander would have been in 554 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). Johnson apparently derived these definitions of sovereignty largely from William Shakespeare, as well as Richard Hooker.

555 Blackstone, Commentaries, vol 1, pp 127-129.

556 Williams to Bishop Selwyn, 12 July 1847, vol 100, p 53, MS 91/75, AML, p 53.

190 any doubt about what the chiefs were ceding to the Queen’.557 Ross and many commentators since have assumed that the sovereignty being ceded was akin to Blackstone’s ‘supreme, irresistible, absolute [and] uncontrolled authority’. Yet this ignores the common understandings of most Englishmen about their constitution that even the great legal authority of Blackstone included in his account. Williams emphatically did not believe that Māori were granting to Queen Victoria a sovereignty that was unconstrained by law and liberty. Likewise, he believed in a sovereignty that protected chiefly mana (authority) and rangatiratanga (chiefly privileges) in relation to hapu affairs. Seen through the eyes of constitutional monarchy, therefore, the cession of sovereignty did not imply the loss of chiefly rights.

So what was ‘sovereignty’ to Williams, if it was not unlimited political power, or the absorption of all authorities (or mana) into the person of the Queen or the Governor? In essence, it was civil, constitutional, government. ‘Government’, especially government by legislation, was the English version of ‘sovereignty’. Johnson’s Dictionary defined ‘government’ as ‘form of community with respect to the disposition of [administration of] the supreme authority’. Hence, sovereignty was administered by institutions of government.

William Blackstone identified government with legislative rule. And he wrote that ‘Sovereignty and legislature are indeed convertible terms; one cannot subsist [exist] without the other’.558 In the British constitution, according to strict legal definition, Parliament (or the Crown-inParliament) made laws and was therefore sovereign. Williams’ discussions of the Treaty, on the other hand, showed that he saw the Crown or Her Majesty at the pinnacle of the constitution.

Whatever the exact location of the sovereign power within the British state, it is clear that Williams associated the Queen’s ‘sovereignty’ with her ‘government’. In his important letter to Bishop Selwyn of July 1847 Williams made no attempt to gloss his Māori translation of ‘kawanatanga’ as ‘sovereignty’ for the Bishop’s benefit. He simply translated back the Māori text as ‘government’. Māori had given up ‘government’, not ‘sovereignty’, to Queen Victoria.

Yet, if there was any difference in Williams’ mind between the two terms, he did not show it.

–  –  –

Rather, on the balance of evidence, Williams thought ‘sovereignty’ and ‘government’ were identical terms.

This interpretation is consistent with the actual subject-matter of Waitangi discussions. As

Michael Belgrave argues:

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