«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 one idea that was repeated again and again in the treaty debates was that of a governor. No Māori was recorded as discussing the meanings of the three articles with Hobson or any other bearer of the treaty for signing. However, Māori repeatedly debated whether they wanted a governor and, if they did, what powers the governor would have and what the consequences would be. These were down-to-earth, realistic discussions, the kind of discussions that Henry Williams would have considered a practical debate about sovereignty.559 Supporting this interpretation also, ‘sovereignty’ was at the core of early nineteenth century definitions of ‘governor’ and ‘govern’. Dr Samuel Johnson defined the phrase ‘To Govern’ as ‘to rule as a chief magistrate’, and ‘to regulate, to influence, to direct’. A ‘governor’ was ‘one who has the supreme direction [sovereignty]’, or ‘one who is invested with supreme authority [sovereignty] in a state’. ‘Governor’ was further defined as: ‘one who rules any place with delegated and temporary authority’. The idea that a governor was someone who exercised at least a local or provincial sovereignty was stronger in these definitions than the idea of delegated power from Emperor or King. The Biblical Roman governors and the Australian governors all exercised the same sovereign control or the ultimate governing power within their respective provinces or colonies.
560 Belgrave also suggests that ‘Busby, with his much more esoteric language of rights, might have preferred a different term [than kawanatanga], but Williams was not Busby’, ibid, p 60. This is a reasonable suggestion based on the differences in Busby and Williams’ character and worldviews, yet there is no direct evidence of this. The interpretation advanced above suggests rather than kawanatanga or civil government was both a functional and theoretically-correct word to translate sovereignty.
192 Hence, Williams’ use of kawanatanga to translate sovereignty was both functional and theoretically-correct. It was functional because it was focused on Hobson’s exercise of practical powers of civil government.561 It was theoretically-correct because the highest form of sovereignty to be exercised over a territory or people was a law-making and law-enforcing power.562 The tino rangatira, Queen Victoria, had sent her rangatira, Hobson, to be kawana for all those places of New Zealand that were given to her (‘hei Kawana mo nga wahi katoa o Nu Tirani, e tukua aianei a mua atu ki te Kuini’), in the words of the preamble. The rangatira of the Confederation and the other rangatira then, in article two, gave up fully to Queen Victoria for ever the entire Government of their lands (‘ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu te Kawanatanga katoa o o ratou w[h]enua’).
Andrew Sharp has suggested, summarising others’ views, that Williams should have used ‘mana’, ‘rangatiratanga’, or ‘kingitanga’ to convey to Māori ‘the abstract and magical conception of British legal sovereignty’.563 However, Williams possessed an ‘abstract and magical conception’ of the Queen’s personal sovereignty, not some view of unlimited, impersonal legal power. Besides, missionaries had already taught Māori to exalt the idea of the Crown’s Majesty.
Rangatira did not need to be told that Kuini Wikitoria possessed mana. Nor did they need to be told that her rangatira Hobson possessed mana. The real issue was the type of sovereignty to be exercised by Hobson, which was captured by the word kāwanatanga.
Lastly, Ross pointed out that although Williams used mana with kingitanga in He Wakaputanga to mean ‘all sovereign power and authority’, he did not employ mana for sovereignty in te Tiriti.564 Yet the contexts and purposes of each document were different. Ross’s use of Declaration terminology has superficial appeal because it appears to be a simple case of taking a word used in one document (mana = sovereignty) and using it in a second document to mean the same thing (cede sovereignty = cede mana). However simple word transference is not a good 561 In 1837 Busby wrote about Māori giving up ‘the Government of their Country’ to the Crown. ‘Government’ was here equivalent to ‘Sovereignty’, see text at n 172.
562 Blackstone said that ‘legislature…is the greatest act of superiority that can be exercised by one being over another’, Commentaries, vol 1, p 46.
563 Sharp, Justice and the Māori, p 18.
564 Ross, Te Tiriti, p 141.
193 understanding of the way translation must work in practice. The fact is that sovereignty was an English word. There was no direct Māori equivalent. A Māori sovereignty declared in part by the significant word mana in 1835 was not going to work to mean the giving up of that mana in
1840. To Williams this was not intended in 1840.
Williams needed to interpret sense and spirit rather than attempt the impossible of direct wordfor-word translation. Even then, he admitted these translation difficulties:
In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Māori, preserving entire the spirit and tenor of the treaty.565 Williams expressed his considered opinion that words without a Māori equivalent required him to avoid direct translation. Instead, he used an introduced word or transliteration that Māori understood via other means. Kāwanatanga was very likely one of those transliterations. In a sense Māori already had their ‘picture’ of the type of authority that would be exercised by the Queen through her Kāwana. It was provided in the New Testament by the Roman governors and by the Australian governors from first hand experience of some chiefs.
Article 2: The Crown Guarantees ‘te tino Rangatiratanga’
In article two of te Tiriti, the Crown guaranteed to rangatira, to hapū, and to all Māori people, their true or full chieftainship of their lands, villages, and all their other treasured possessions (‘te tino Rangatiratanga o o ratou whenua, o ratou kainga, me o ratou taonga katoa’). This report has argued that Te Wiremu (Henry Williams) understood this Crown guarantee as protecting chiefly authority in relation to tribal property and affairs. Williams argued with chiefs in 1844 that the Treaty protected their ‘Rank, Rights, and Privileges’. These words should be understood as a guarantee of tribal property, with the chief as hapū representative having the right of transacting land with parties outside the tribe.
565 Williams, ‘Early Recollections’, [nd], cited in Carleton, The Life of Henry Williams, vol 2, p 12.
194 Yet these words also strongly suggest that rangatira retained the exercise of authority and discretion in relation to tikanga. The word ‘privilege’ implies a negative right of immunity from Crown interference in hapū affairs. This can be compared with the connotation of ‘independence’ or ‘freedom’ which Williams gave to the word ‘rangatiratanga’ in the Declaration of Independence. The three words ‘Rank, Rights, and Privileges’ also suggest positive powers or rights of self-determination (or ‘prerogative’). Williams use of ‘rank’ in 1844 and in 1833 at Busby’s welcome, suggests a degree of aristocratic independence. In simple terms, this word implied that rangatira enjoyed and should continue to enjoy a degree of dignity and eminence. They were not to be levelled down to become simply British subjects. In his 1847 letter to Selwyn, Williams clearly emphasized the ‘rights of chiefs’, as distinct from Māori rights generally. In this sense, the Treaty as a Māori Magna Charta confirmed the rights, privileges, and even liberties, of a Māori nobility. A Māori hierarchy of sorts was confirmed. At the same time, like Magna Charta, this status was now held under the Crown.566 Article two in the English text was also capable of yielding a confirmation of rangatira status.
The Crown guaranteed the rights of ‘Chiefs’, ‘Tribes’, ‘families’, and ‘individuals’ to their ‘Lands and Estates… which they may collectively or individually possess’. Tribal rights, implying in particular chiefly rights, were acknowledged. The word ‘estate’ can mean both possession and rank.567
Article 3: ‘the Rights and Privileges of British subjects’
Whereas Williams saw article two as confirming rangatira status, his translation of article three appeared to confirm to Māori British rights and privileges generally. This was in accordance with the English text which did not distinguish chiefs, tribes, and individuals. It simply referred 566 This discussion is in part constructed from definitions in Johnson’s Dictionary, as follows: ‘Privilege’: peculiar advantage (Milton); immunity, right not universal (Shakespeare). ‘To Privilege’: to invest with rights or immunities, to grant a privilege (Dryden); to exempt from censure or dander (Sidney); to exempt from paying tax or impost (Hale). ‘Immunity’: discharge from any obligation (Hooker); privilege, exemption from onerous duties (Sidney);
freedom (Brown). ‘Right’: various defns, including, property, interest (Dryden); power, prerogative (Tillotson);
immunity, privilege (Shakespeare). ‘Rank’: several definitions including, range of subordination (Wilkins); class, order (Atterbury); degree of dignity, eminence, or excellence (Dryden); dignity, high place, as in ‘he is a man of rank’.
567 See Johnson’s Dictionary.
195 to ‘Natives’, which Williams rendered ‘nga tangata Māori’. Rights and privileges, Williams interpreted as ‘tikanga’. Williams conceived British subjects generally as ‘freemen’. A ‘freeman’, in the words of Johnson’s Dictionary, was ‘one not a slave, not a vassal (Locke)’, or ‘one partaking of rights, privileges, or immunities (Dryden)’.
David Brion Davis in his 2006 book Inhuman Bondage, refers to Britain as a rather surprising
core of the international anti-slavery movement. He ponders the words of ‘Rule Britannia’:
Britons never, never, never, shall be slaves. It captures something that perhaps explains why Britian, not France, and certainly not the US, kicked off the mass emancipation of the 1830s.568 Issue 7: the Effect of Te Tiriti/ The Treaty ‘What then was the effect of Te Tiriti/ The Treaty at 1840?’ From a missionary point of view, te Tiriti established the Crown’s protection of chieftainship (rangatiratanga) over tribal lands and tribal tikanga (to extent these were not inconsistent with Christian morality). It granted to Queen Victoria the rights of civil government over all rohe or territories ceded (e tukua). In Williams’ eyes, this civil government probably included the power to try and convict criminals (both Māori and Pākehā), mediate in inter-tribal disputes, regulate trade, and keep the peace generally. These were in essence the powers of kāwanatanga which the Confederation nominally exercised under the Declaration.
From a Crown point of view, it would be fair to say that officials envisaged a wider range of prerogatives or rights coming under the umbrella of Kāwanatanga than did rangatira (and missionaries). Heke and others disputed the Crown’s assumed right to harbour dues in Peiwhairangi. The Crown right of pre-emption in the English text was not clearly an exclusive right of purchase in the Māori text. It is arguable Williams understood this as a right of ‘firstpurchase’ rather than exclusive purchase, though the Crown would still investigate and confirm land transactions with Māori. Neither Māori nor missionaries anticipated the Crown’s claim in
the mid-1840s to waste lands. This watershed Treaty issue is beyond the scope of this report. The Crown’s assumption of criminal justice powers was tested with Maketu’s case in the early 1840s.
This, too, is beyond the scope of this report and beyond the scope of the Tribunal’s issues.
197 Bibliography Primary Unpublished Alexander Turnbull Library, Wellington, New Zealand (ATL) Busby Despatches qMS , 1833-1839 Busby Private Letters qMS , , 1831-1839
Church Missionary Society Microfilm:
CMS/CN/0 101, reel 65, 1833-1848 CMS/CN/0 94(b), reel 60, 1836-1845 CMS CN/0 4, 1839-1840 Archives New Zealand, Wellington, New Zealand British Resident In-Letters, vol 1, 1832-34 Colonial Office Microfilm, CO 209/1–209/9, 1833-1841 NSW Colonial Secretary, Outward Ltrs 1831-1836 [NSW 4/3523] NSW State Archives, Micro Z2710.
Auckland Museum Library, New Zealand (AML) Busby Papers, MS 46, 1832-1839 Algar Williams Collection, MS 91/75, H Williams correspondence, 1839-1850 Williams Family Papers, MS 91/78 Williams and Marsh Family Papers, MS 2007/66 George Augustus Selwyn papers, MS 273 St John’s College Library, Auckland, New Zealand William Cotton, Journals, vols 7&8, 1844-45, microfiche.
Waimate North Mission House, Northland, New Zealand Library, selection of books and periodical journal volumes (including Missionary Register, Evangelical Magazine, and the Christian Guardian) Published works Parliamentary Papers/ Reports Appendices to Journals of the House of Representatives (AJHR), vols 1858 & 1860 British Parliamentary Papers (BPP), Irish University Press series, vols 1, 3 & 4, 1835-1845.
Report of the Parliamentary Select Committee on Aboriginal Tribes, (British Settlements), Reprinted, with Comments, by the ‘Aborigines Protection Society’ (London: Ball and Chambers, 1837), (http://books.google.com/books, 4 August 2009) 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 British Parliamentary Papers (Shannon: Irish University Press, 1968) Official Publications Bladen, F M, ed, Historical Records of New South Wales (Sydney: Govt. Print., 1892-1901).