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The Pamphlet Collection of Sir Robert Stout: Volume 32

Chapter IV

page 27

Chapter IV.

The Treaty of Waitangi.

Remembering how the British Government had been forced by external pressure, and in spite of its avowed scruples on behalf of the aboriginal inhabitants, to permit and ratify colonization by British subjects in the Islands of New Zealand, and to accept on behalf of the British Crown the sovereignty of of the country, if voluntarily ceded by the aboriginal tribes, and that its professed objects in so doing were to give just and equal protection to both races, and to treat all such Chiefs, tribes, families, and persons as should voluntarily become subject to British sway upon the same general principles of justice as regards person and property, our inquirer would now turn to the Treaty of Waitangi, the only title-deed on which the supremacy of the British Crown is based as to the Northern Island of the group.

And be it remarked here, that, whatever may be said about the mode in which that treaty was negociated and executed, about the ignorance of the Natives with respect to its contents and operation, the Maories who have come under British dominion must either look to it, and it only, for the foundation of their rights as against the British Crown and the Colonists, or to nothing but the vague dictates of natural justice, and it would seem that all chiefs, tribes, and individuals of the Native race, who have acknowledged the sovereignty of the Queen since the treaty, must be taken to have submitted to its being made the test of their privileges and duties. Such acknowledgment, either express or by necessary implication, has been made by almost every tribe in New Zealand. A difficulty might arise both as to the jurisdiction of tribunals, and as to the question between rebellion and war, if it should ever be made manifest that some tribe exists which had never directly or indirectly been a party to the Treaty of Waitangi nor acknowledged the supremacy of the British Crown. This difficulty it is well not to ignore or overlook; although, as it can arise only in exceptional cases, it need not in the meantime embarrass the inquirer in his consideration of the language and meaning of the treaty.

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The true meaning of the treaty must be that which the respective parties, the Representative of the British Crown on one side, and the representatives of Aboriginal tribes on the other, must be taken, under all the circumstances above alluded to, to have contemplated in common. Both races had objects of self interest to secure by the treaty. For the English Colonists, the Crown desired to obtain a permanent and safe footing on the soil of New Zealand, enabling them to acquire a fixed property in the land, to be secured, along with personal liberty and protection, by the establishment of Civil Government and the administration of justice on British principles. The Natives, on the other hand, wished not only to get money and goods from the Europeans in return for the lands which they disposed of and to keep up commerce with them and profit by the arts and conveniences of life which they had introduced; but also, fearing the power of the foreigners in case they should permanently settle among them in great numbers, the Maories desired an assurance that the lands which they retained should not be taken from them, either by force, or in any other way, against their will. Those who had become good Christians began to prize the real value of peace; and the wiser men, even among themselves, probably contemplated with satisfaction, the cessation, ere long, for ever, of those internecine wars which, destructive as they were of life and the fruits of industry, had been formerly among their principal avocations and the ultimate arbiters of all their rights. All that has been before considered must now be used to throw light upon the treaty.

The preamble announces that Her Majesty "regarding with her Royal favour the Native Chiefs and tribes of New Zealand, and anxious to protect their just rights and property, and to secure to them the enjoyment of peace and good order, has deemed it necessary, in consequence of the great number of Her Majesty's subjects who have already settled in New Zealand, and the rapid extension of emigration both from Europe and Australia which is still in progress, to constitute and appoint a functionary properly authorised to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority, over the whole or any part of these Islands. Her Majesty, therefore, being desirous to establish a better form of Civil Government, with a view to avert the evil consequences which must result from the absence of the necessary laws and institutions, alike to the Native population and to her subjects, has been graciously pleased to authorise page 29 me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul, Lieutenant-Governor over such parts of New Zealand as may be, or hereafter shall be, ceded to Her Majesty, to invite the confederated and independent Chiefs of New Zealand to concur in the following articles and conditions."

This language emphatically declares that the motives inducing the British Crown to enter into the following agreement, were, favour for the Native Chiefs and tribes, anxiety to protect their just rights and property (that is to say, such rights and property, consonant with the general principles of natural justice, as they then possessed) and a desire to avert the evil consequences of lawlessness both to Aboriginal inhabitants and British settlers. The object of the treaty, in pursuance of such motives, was to secure to her Majesty the recognition by the Aborigines of her Sovereign authority, which would enable her, by means of the establishment of civil government, to secure to the Aborigines and British immigrants those advantages which she was desirous to bestow upon them. In speaking of the "confederated" and "independent" Chiefs, allusion is evidently made to the Flag confederation, and it is evidently intended to include both those who had joined, and those who had not joined, in that abortive and resultless proceeding. No pains seem to have been taken to discover what right Chiefs had to enter into such a treaty so as to bind their tribes—but acquiesence by the tribes would naturally be looked upon as a ratification of the acts of the Chiefs—and the intention must be taken to have been to secure whatever rights and property Chiefs, or tribes, or individuals might possess,—being such rights as natural humanity and justice and Christian principle would allow.

Such being the words, and the obvious meaning of the pre-amble, the inquirer proceeds to the words of

Article the first.—"The Chiefs of the confederation of the united tribes of New Zealand and the separate and independent Chiefs who have not become members of the confederation, cede to her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said confederation or individual Chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective territories, as the sole sovereigns thereof."

Now, it is pretty clear, in the first place, if the statements in Chapter II. are correct, that the so called confederation had in fact no joint or representative sovereignty over the tribes which had been brought together to form it for a special and pressing page 30 purpose. It is equally clear, if the statements in Chapter I be correct, that no Chief had any "sole sovereign" power, such as is recognized, with fixed attributes, by the common public law of civilized nations.

In the next place, it probably matters little whether the Chiefs who did enter into the treaty had the right, according to native customs, to do so without the express consent of their tribes; because the subsequent recognition of the Queen's Sovereignty by the body of those tribes would estop individuals from denying the agency of their Chiefs. And now, with respect to what was ceded, it seems beyond cavil, when the article and the preamble are read together, and the circumstances of the parties making the cession are considered, that all the usual attributes of sovereignty known to civilized nations must be taken to have been given up to, and admitted to reside thereafter in, the British Crown; that the rights of civil government, of administering justice and enforcing it, and of levying war and of making peace, must have been surrendered, at all events, or nothing : provision being made, as will presently be seen by the next article, to prevent the Queen from claiming, by virtue of the cession of sovereignty, the "substance" or actual usufuctuary occupation of the land against the will of the rightful Maori possessors thereof.

The words of the first article would be absurd unless the Chiefs who entered into the treaty were held to have given up every such sovereign or quasi-sovereign right as they either did possess or might be supposed among the British to possess. Otherwise they ceded nothing of their own. Therefore, if Chiefs had any sovereign rights distinct from beneficial and usufuctuary possession—which does not seem to have been the case—or any "mana" other than that of which the acknowledgment was in truth a rent paid to them by slaves for possession, by sufferance, of lands which must be treated under the second article as in the possession of their masters, those rights and that "mana" were certainly transferred by the treaty to the Queen of England, and could not be said to be among the rights and property which it was her avowed intention to guarantee to the Chiefs. As far as the ambiguous "mana" existed, it seems to have been that very interest, attribute, or accessary, that "shadow" connected with the land, which the Chiefs really intended to part with, either on their own behalf or on behalf of the tribes, as distinguished from the substance, and usufructuary possession, of the soil.

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Such, then, being the nature of the cession which the Chiefs, becoming parties to the treaty, must be taken to have made on behalf of their tribes to the British Crawn, it is to be remarked that such cession in fact implied the greater part of the consideration for it, inasmuch as it cast upon the British Sovereign the duties, as well as granted her the privileges, of sovereignty.

And in this alone the Maoris derived a vast advantage from the treaty, inasmuch as they exchanged barbarous, unsettled, and no longer practicable usages, strife and war, for wholesome institutions tending to insure justice and peace. But in order to give them morel explicit assurance of the preservation of that which they most prized, namely, their possession of the soil, the treaty proceeded to declare in

Article the second.—"Her Majestg the Queen of England confirms and guarantees to the Chiefs and tribes of New Zealand and the respective families and individuals thereof, the full exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties, which they may collectively or individually possess, so long as it is their will and desire to retain the same in their possession."

Now this article certainly seems to contemplate the possession of lands by chiefs as chiefs, by tribes as tribes, by families as families, and by individuals as individuals, and such possession, whether collective or individual, it professes to guarantee and confirm;—that is to say, it promises that the British Sovereign will prevent such Chiefs, tribes, families, or individuals, being in lawful possession, collectively or individually, from being disturbed in their possession by any other tribes or persons either Maori or European. And it might very well be argued that inasmuch as no right is guaranteed or recognized except the undisturbed possession of the lawful possessor, and as such undisturbed possession is to be guaranteed only so long as it is the will and desire of the possessors to retain the lands, &c., in their possession, the treaty contemplated not only the power of alienation of tribal lands by tribes, but of family lands by families, and of individually held lands by individuals. But though the article seems open to this construction, it would probably be a more fair and ingenuous mode of construction to suppose that the words "Chiefs, tribes, families, and individuals," and the words "collectively and individually," were intended to cover any kind of claims which might afterwards be made out, to the lawful possession of lands, &c., and that the implied right of possessors to alienate, when they no longer desired to retain the lands, &c., page 32 should be recognized as existing in those who had any rightful interest in the possession. It could not have been intended that mere permissive occupation liable to be put an end to at the will of the true owner, or for some definite time or purpose, should be turned into a title as against the true owner. In such case, the occupation of the party permitted would be the possession of the party permitting,—for the purposes of this treaty.

Still it is to be carefully noticed that possession—that is, lawful possession—(whatever may have been its origin) is the thing guaranteed, and that it is guaranteed to those who collectively or individually possess.

The second article, after the foregoing provision, proceeds to stipulate for the pre-emptive right of the Crown; and it clearly contemplates that, by the guarantee before given, a power of alienation was to exist in lawful possessors whether collective or individual. But even supposing an individual possessor—say through inheritance—of land within the general territory of a tribe, acquired by the tribe by conquest, having now got a right of possession as against the tribe itself and all strangers whether Maori or European, must be held to have, also, incidentally, got an independent power of alienating to the Crown; it certainly might be very impolitic for the Crown, during that transition period before spoken of to purchase land possessed by an individual member of a tribe and situated in the heart of the laud of the tribe, against the will or without the assent of those Maoris who might consider themselves in the meantime aggrieved or encroached upon by such purchase. With the development of a wise policy, such a purchase would in course of time be looked upon by the Maoris as a positive advantage, giving increased value to their own possessions; but in the meantime, it would be wise in the Crown to forbear from such purchases, where without the attainment of adequate advantages they would be sure to be looked upon with jealousy and suspicion, or would excite hostility, or help to keep up antipathies or prejudices of race.

These last remarks though properly belonging to another stage of the inquiry, seem necessary here to prevent misconception.

The words of the provision for pre-emption are these:—

"But the Chiefs of the united tribes, and the individual Chiefs [and this must mean on behalf of the tribes as well as on their own behalf] yield to her Majesty the exclusive right of preemption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by her Majesty to treat with them in that behalf."

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It is to be noticed here that the word "proprietors" is used, and not the word "possessors"; but it certainly would be too much to infer from that fact that the proviso contemplated that the Chiefs were to be treated as "proprietors" having power to alienate lands of which they were not lawful possessors in their own right, because any alienation of land by any person other than the Chiefs, Tribes, Families, or Individuals, who rightfully possessed the land without their consent would be such a disturbance—at least if the alienation was of a beneficial interest—as had just been provided against.

The only consistent meaning, therefore, is that whoever might have such an interest in the land as is guaranteed by the Treaty must, when willing to alienate it, alienate it in the first instance to the Crown and not to a subject. This provision is founded upon a very intelligible principle already alluded to.

The third Article states: "In consideration thereof, Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection, and imparts to them all the rights and privileges of British subjects."

This article is but an express recognition of that which must have been implied by the acceptance on the part of the Crown of the ceded sovereignty, but was probably introduced for the purpose of reminding the contracting Natives that they were, from the fact of their being British subjects, receiving many substantial advantages besides that for which they more especially stipulated—namely the undisturbed possession of the lands theretofore possessed by them.

They got by the Treaty the general rights of British subjects plus an express British title to the possession of their lands as long as they chose to hold them. But there is no pretence for saying that they had any other just rights and property within the terms of the preamble guaranteed to them, either expressly or impliedly, by the Treaty.

To guarantee in perpetuum any of their usages which must be hindrances to their improvement and civilization would have been most unwise, inhumane, and shortsighted. But in applying to their case the general rights and privileges of British subjects, justice as well as policy would require that during the transition period regard should be shown to their previous customs and habits, so far as they were not at variance with humanity. Protection from violence, justice and personal freedom, and equality with other subjects in those respects, were the main rights and page 34 privileges conferred; but the particular modes in which those rights and privileges were to be insured to them must depend upon the wisdom and policy of the Sovereign power. The modes in which the lights and privileges of British subjects are secured vary in different parts of the British dominions, but the same general principles are applied everywhere; and no doubt it was the intention of the British Crown, and ought still to be its policy, to prepare the way gradually for the universal adoption of the same modes of securing British rights to the whole population of the Colony, giving the Maoris, whenever they are ready to enjoy them, the same tribunals, and the same share in making the laws and administering them, which their fellow subjects of European origin enjoy. To say that by virtue of the Treaty they became at once entitled to act as jurymen, or to take such part in legislation or government as the Europeans might do, or to share such duties and privileges, would be to say that they were entitled to that which all British subjects are not entitled to, merely as British subjects.

After the third Article of the Treaty came the signature of Her Majesty's representative; and then followed a clause of acceptance of the terms of the Treaty in these words:—

"Now, therefore, we, the Chiefs of the Confederation of the united tribes of New Zealand, being assembled in Congress, at Victoria, in Waitangi, and we the separate and independent Chiefs of New Zealand, claiming authority over the tribes and territories which are specified after our respective names, having been made fully to understand the provisions of the foregoing Treaty, accept and enter into the same in the full meaning thereof. In witness whereof we have attached our signatures or marks at the places and dates respectively specified.

"Done at Waitangi, the 6th day of February, 1840."

[There were 512 signatures or marks.]

When the Chiefs spoke of "claiming authority" over tribes and territories, they must have meant either the sovereign or quasi sovereign authority which they ceded by the treaty, or merely the authority to bind the tribes and contract for them in respect of the territories, or both. And it could not be urged with any fairness that, the treaty, either directly or indirectly, guarantees to them or acknowledges in them, any authority "over the tribes" or the members thereof, inconsistent with the Queen's authority or the rights of British subjects.

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Whether the signatures and marks to the treaty were fairly or satisfactorily obtained, whether the parties to it really did understand its provisions or no,—it is needless to inquire; for to all Maoris who have acquiesced in the British sovereignty the treaty is in the nature of a charter of privilege; inasmuch as on a mere cession of sovereignty it would have been competent for the sovereign power to make laws for the government of its new subjects, which would, directly or indirectly, wholly or partially, have deprived them of the possession of the land which they did not hold by any title from their new sovereign; whereas, under the treaty, any law or edict of the sovereign power which, without the express or implied consent of the Natives themselves, would confiscate or disturb their possession of their lands against their will, while they continued to bear true allegiance to that sovereign power, would be contrary to principle and justice.