The Treaty of Waitangi; or, how New Zealand became a British Colony

by Thomas Lindsay Buick

The fundamental reason which induces nations to hedge its subjects about with this restriction, was thus concisely stated by the Select Committee of the House of Commons in 1844. Although this Committee roundly condemned the Treaty of Waitangi as "a part of a series of injudicious proceedings," it was yet as hostile to the New Zealand Company in seeking to set up a settlement independent of Imperial authority, thereby imperilling their own position and prejudicing that of the Crown.

When large numbers of British subjects have established themselves in distant regions, inhabited only by barbarous tribes, it is impossible for Her Majesty's Government to leave them exposed without protection to the dangers which their own rashness may draw down upon them, or to allow them to exercise, without control, and perhaps to abuse the power which their superior civilisation gives them over the rude natives of the soil. Hence every new establishment of this kind involves a new demand upon the naval and military resources of the Empire, but the undue anticipation of such demands must occasion a very heavy burden upon the nation, and it therefore follows that the enterprises of colonisation should only be entered upon with the sanction and under the authority of the Government.

On this ground and on this ground alone the British Government was justified in calling a halt in the irregular settlement of New Zealand, and if a mistake was made it was not in that the Government now interposed their authority,[174] but in that they had not asserted their rights at a much earlier period. In support of this portion of his argument Sir George Gipps quoted the opinions of four of the most eminent lawyers in England of that day, Mr. William Burgh, Mr. Thomas Pemberton, Sir William Follett, and Dr. Lushington. He was even uncharitable enough to use against the New Zealand Company the opinion of their own legal adviser, Sergeant Wilde, the crushing nature of these authorities completely breaking down the pretensions of his opponents.

"I leave the Honourable Members of this Council," declared Sir George, "to say whether they will take the law from the authorities which I have produced or from the learned gentlemen who have been heard at their table; remembering, moreover, that the former were giving their opinions against their clients, the latter arguing, as they were bound to do, in favour of them."

Sir George also claimed for the British Government the right to intervene in New Zealand affairs, so far as land titles were concerned, on the ground of its immediate contiguity to the colony of New South Wales, in support of which claim he quoted an opinion expressed by a Committee of the House of Commons in 1837, and in further appeal he might have advanced the fact that in the previous fifty years Great Britain had expended no less a sum than £8,000,000 upon colonisation in the South Pacific, a fact which was surely substantial enough to create the peculiar rights which are inseparably associated with those intimate relations which grow out of neighbourhood. Finally, he thus summarised the powers which were sought for in his measure and those which it did not seek:

The Bill, gentlemen, is not a Bill of spoliation as it has been described; it is not a Bill to destroy titles, but rather to bestow titles on persons who at present have none, and who cannot get any but from the Crown. It is not a Bill to take away any man's tenementum, but to give him a tenementum, provided he can show that he has a fair and equitable claim to it, though not indeed a tenementum to any one in the lands which were purchased, or pretended to be purchased, after the issue of my proclamation and in defiance of it, for not one acre of such land shall any one ever acquire under it. Nor is it, gentlemen, a Bill to give Her Majesty any power that she does not already possess; for her power to disallow these titles is vested in her by virtue of her prerogative, and of that principle of English law which derives all landed property from the gift of the Crown. Her Majesty's prerogative in this matter is about to be exercised, not for the love of power, not for the lust of patronage, but for the good of her subjects, for which alone it is given to her; and the exercise of it in this case will be an additional proof that the prerogative is what it was elegantly described to be in the course of the pleadings in the Grenada case, of which we have heard so much, the decus et tutamen regni, the grace, the ornament, the safeguard, not regis, of the King, but regni, of the realm. I have not heard one reasonable and disinterested person object to the main purpose of this Bill. Of all the witnesses examined before the Committee of the House of Lords in 1838, no one was so wild as to say that all purchases from the natives of New Zealand were to be acknowledged; no one pretended, because the Narraganset Indians sold Connecticut, as we have been told they did, for a certain number of old coats and pairs of breeches, or because they sold Rhode Island (as I find they did), for a pair of spectacles, that therefore Her Majesty is bound to acknowledge as valid purchases of a similar nature in New Zealand. The witnesses to whom I have alluded all considered the New Zealanders as minors, or as wards of Chancery, incapable of managing their own affairs, and therefore entitled to the same protection as the law of England affords to persons under similar or analogous circumstances. To set aside a bargain on the ground of fraud, or of the incapacity of one of the parties to understand the nature of it, or his legal inability to execute it, is a proceeding certainly not unknown to the law of England; nor is it in any way contrary to the spirit of equity. The injustice would be in confirming any such bargain; there would indeed be no excuse for Her Majesty's advisers, if, by the exercise of her prerogative, she were to confirm lands to persons who pretend to have purchased them at the rate of 400 acres for a penny; for that is, as near as I can calculate it, the price paid by Mr. Wentworth and his associates for their twenty millions of acres in the Middle Island. A great deal was said by this gentleman, in the course of his address to the Council, of corruption and jobbery, as well as the love which men in office have for patronage. But, gentlemen, talk of corruption! talk of jobbery! Why, if all the corruption which has defiled England since the expulsion of the Stuarts was gathered into one heap, it would not make up such a sum as this; if all the jobs which have been done since the days of Sir Robert Walpole were collected into one job, they would not make so big a job as the one which Mr. Wentworth asks me to lend a hand in perpetrating; the job, that is to say, of making to him a grant of twenty millions of acres at the rate of 100 acres for a farthing! The Land Company of New South Wales has been said to be a job; one million of acres at eighteen pence per acre has been thought to be a pretty good job, but it absolutely vanishes into nothing by the side of Mr. Wentworth's job. In the course of this gentleman's argument, he quoted largely from Vattel and the Law of Nations to prove the right of independent people to sell their lands; and he piteously complained of the grievous injustice which we should do to the New Zealanders if we were to deny them the same right; and the Council may recollect that when I reminded him that he was here to maintain his own rights and not those of the New Zealanders, he replied, not unaptly, that as his was a derivative right, it was necessary for him to show that it had previously existed in the persons from whom he had derived it; it was, in fact, necessary for him to show that the right existed in the nine savages, who were lately in Sydney, to sell the Middle Island, in order to show his own right to purchase it from them at the rate of 400 acres for a penny! Lastly, gentlemen, it has been said that the principles on which this Bill is founded are derived from the times of Cortez and Pizarro—times when not only the rights of civilised nations, but the rights also of humanity, were disregarded. To this I answer, that whatever changes (and thank Heaven they are many) which the progress of religion and enlightenment have produced amongst us, they are all in favour of the savage, and not against him. It would be indeed the very height of hypocrisy in Her Majesty's Government to abstain, or pretend to abstain, for religion's sake, from despoiling these poor savages of their lands, and yet to allow them to be despoiled by individuals being subjects of Her Majesty. It is in the spirit of that enlightenment which characterises the present age, that the British Government is now about to interfere in the affairs of New Zealand. That it interferes against its will, and only under the force of circumstances, is evident from Lord Normanby's despatch; the objects for which we go to New Zealand are clearly set forth in it, and amongst the foremost is the noble one of rescuing a most interesting race of men from that fate which contact with the nations of Christendom has hitherto invariably and unhappily brought upon the uncivilised tribes of the earth. One of the gentlemen who appeared before you did not scruple to avow at this table, and before this Council, that he can imagine no motive Her Majesty's Ministers can have in desiring the acquisition of New Zealand but to increase their own patronage. The same gentleman is very probably also unable to imagine any other reason for the exercise of Her Majesty's prerogative than the oppression of her subjects. These, gentlemen, may be Mr. Wentworth's opinions. I will not insult you by supposing they are yours. You, I hope, still believe that there is such a thing as public virtue, and that integrity is not utterly banished from the bosoms of men in office. To your hands, therefore, I commit this Bill. You will, I am sure, deal with it according to your consciences, and with that independence which you ought to exercise, having due regard for the honour of the Crown and the interests of the subject; whilst for myself, in respect to this occupation of New Zealand by Her Majesty, I may, I trust, be permitted to exclaim, as did the standard-bearer of the Tenth Legion when Caesar first took possession of Great Britain, Et ego certe officium meum Reipublicae atque Imperatori praestitero, fearlessly alike of what people may say or think of me, I will perform my duty to the Queen and to the public.

This forceful presentation of the case for the Crown left the Council but one course open to it, and on the following August 4 the Bill had passed through all its stages and became a colonial statute. Under its provisions Commissioners in the persons of Messrs. Francis Fisher, William Lee Godfrey, and Matthew Richmond were appointed and commenced their investigation of land claims at the Bay of Islands. The separation of New Zealand from the colony of New South Wales in April 1841, however, put an end to the functions of the Commissioners under the measure, and it became necessary to revive their powers under a New Zealand statute. In his instructions covering the granting of a new Charter to New Zealand as an independent colony, Lord John Russell, the new Chief Secretary, had sustained the attitude adopted by his predecessor, Lord Normanby, on the land question. Accordingly, on June 9, 1841, under advice from Lord John, an ordinance was passed by the Legislative Council assembled at Auckland, repealing the previous Act of New South Wales and furnishing Captain Hobson, the now Governor of New Zealand, with the requisite power to appoint their successors. Intelligence had also been received in the meantime that Mr. Spain, an English lawyer, had been appointed Chief Commissioner of land claims; and under the New Zealand statute only two of the original Commissioners were reappointed, Mr. Fisher having accepted the office of Attorney-General to the colony.

With the deliberations and adjustments of this Commission we are not particularly concerned. What is of importance is that its proceedings led to a voluminous, and at times acrimonious correspondence between the New Zealand Company and Lord Stanley, who, in 1841, succeeded Lord John Russell as Secretary of State for the Colonies in Sir Robert Peel's cabinet. During the course of this correspondence the Company boldly maintained that, under an arrangement made with his predecessor,[175] they were so situated as to be beyond the pale of the Commission's enquiries which they said would shake every title in their settlements. They declared that the circumstances in which they had acquired the land they were now claiming were such as could not be affected by the Treaty of Waitangi, they even repudiated the validity of the treaty itself. On January 24, 1843, Mr. Joseph Somes, as Governor of the Company, despatched that celebrated letter to Lord Stanley in which occurred this significant passage: "We have always had very serious doubts whether the Treaty of Waitangi, made with naked savages by a Consul invested with no plenipotentiary powers, without ratification by the Crown, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment."

On the 15th of the following month a further letter was received from Mr. Somes, in which he specifically denied the application of the treaty to the particular possessions of the Company; and in order to give a verisimilitude of truth to his argument deliberately made light of the historical facts connected with the signing of the treaty:

"We have not," he wrote, "thought proper, hitherto, to advert to the Treaty of Waitangi except incidentally. But as we observe that it has occasionally been dwelt upon by your Lordship as being of some importance to the view taken by you in opposition to our claims, it is well that we should not quit the subject without remarking that your Lordship appears always to speak of that treaty as bearing on the entire claim of the Company. Now, your Lordship ought to be apprised of the fact that the Treaty of Waitangi itself applies to no part of the vast extent of country over which we claim the right of selection. The chiefs who signed the treaty neither could, nor did, pretend to cede anything but the northern corner of the Northern Island. Subsequently, it is true, Captain Hobson procured the accession to the treaty of chiefs further south. But the alleged accession of the chiefs within the limits of the Company's possessions in the Northern Island rests merely on evidence far too slight and loose to be taken as establishing a fact of such grave public character; at any rate, half at least of the 20,000,000 affected by our claim lie in the Middle (South) Island; and the Middle and Stewart's Islands, it is obvious, cannot be affected by the Treaty of Waitangi, inasmuch as Her Majesty's title to them was 'asserted' on the grounds of discovery without pretence to any treaty or cession."