Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of ‘Barbarous’ Customs in New Zealand in the 1840s

Field: Social Sciences (Social Sciences)

Abstract This paper examines the judicial construction of jurisdiction over Maori in the 1840s in New Zealand. Using new data, including case material and extra-judicial commentary, it examines the first decisions by the New Zealand Supreme Court on crime between Maori (crime ‘inter se’). In so doing, it briefly places New Zealand in a broader context of settler colonies, and considers how colonial judges (such as Chapman J of the Supreme Court of New Zealand) fashioned the common law to fit the contingency of local circumstance, thereby playing their part in constituting local sovereignty. Finally, the article also considers the reaction of settlers to Maori crime and these decisions. Notes 1 R. v Rangitapiripiri (alias Kopitipita), [H.S. Chapman] Notebook entitled Criminal Trials No. 5 1847–49, Hocken Library, Dunedin (HL), MS-0411/013, entry for Wed. 1 Dec. 1847, 23–36 (Chapman ‘Notebook’); reported in the New Zealand Spectator and Cook's Strait Guardian, 4 Dec. 1847, 2–3. 2 The Queen v Native, Chapman ‘Notebook’, entry for Mon. 3 Sept. 1849, 205–219; reported in the New Zealand Spectator and Cook's Strait Guardian, 5 Sept. 1849, 2–3; and in substantially identical terms in the Wellington Independent, 12 Sept. 1849, 3; 5 Sept. 1849, 2. 3See also Damen Ward, ‘Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court, c. 1840–60’, 34 Journal of Imperial and Commonwealth History (2006), 483, at 485–486. 4See ibid. and, in particular, Damen Ward, ‘A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia’, 1 History Compass (2003), AU 049, 001–024. 5Peter Spiller, The Chapman Legal Family, Wellington, 1992; Alan Ward, A Show of Justice: racial ‘amalgamation’ in nineteenth century New Zealand, Toronto, 1973. 6This is work which was begun by Paul McHugh and has more latterly been taken up by Lisa Ford in Australia and Mark Walters in Canada. See Paul McHugh, Aboriginal Societies and the Common Law, Oxford, 2004; Lisa Ford, Settler Sovereignty: jurisdiction and indigenous people in north America and Australasia, 1788–1836, forthcoming, Boston, 2009. This latter work is on file with the author (as yet no final pagination); Mark Walters, ‘The Extension of Colonial Criminal Jurisdiction over the Aboriginal Peoples of Upper Canada: Reconsidering the Shawanakiskie Case (1822–26)’, 46 University of Toronto Law Journal (1996), 273. 7It was reported in the New Zealand Herald and Auckland Gazette that Maketu had been sentenced to death: 5 March 1842, 2. Maketu is one of the best-known early cases involving Maori: see Ward, Show of Justice, 53–54; Guy Lennard, Sir William Martin: the life of the first chief justice of New Zealand, Christchurch, 1961, ch. 2. For contemporary comment see Arthur S. Thomson, The Story of New Zealand: past and present – savage and civilised, 2 vols., London, 1859, vol. 2, 50–53. The New Zealand Herald was one of the first ‘non-political’ papers, being essentially for business. 8Ward, Show of Justice, 26; Lennard, Sir William Martin, 10–11. 9See, for example, A. Ano (Native Chief) v Forsyth, Police Magistrates' Court, Wellington, W. Shortland JP, New Zealand Gazette & Wellington Spectator, 18 July 1840, 3; R. v Way, Bukker and Tavlo, Magistrates' Court, Kororarika (now Russell), J. Johnson, F. Mathews and T. Beckham JPs, New Zealand Advertiser and Bay of Islands Gazette, 13 Aug. 1840, 4; Ropata Nuitone o Te Pakaru v Johnsone Wilkinson, Supreme Court, Wellington, 7 Sept. 1846, Martin CJ, Auckland Civil Minute Book, 1844–56, Archives New Zealand (Auckland) (ANZA), BBAE 5635/1a, 47. An important matter yet to be explored is the role of the aboriginal protectors in such actions. In 1841 George Clarke snr was appointed protector of Aborigines. The protector aided in negotiations with Maori over land purchases, guarded against encroachment on their property and watched over their interests in court actions. In practice the protectors played an important role in mediating between the Crown and Maori and generally acted as interpreters. Sub-protectors were also appointed for each main district. On protectors generally see Alan Lester and Fae Dussart, ‘Trajectories of Protection: Protectorates of Aborigines in Early Nineteenth Century Australia and New Zealand/Aotearoa’, 64 New Zealand Geographer (2008), 205. 10 New Zealand Gazette & Wellington Spectator, 13 June 1840, 2. This paper was begun by Samuel Revans in 1840. It was a ‘company paper’, in other words it was run by supporters of the New Zealand Company and was in the main critical of Crown policies, particularly with respect to its dealings with land. When the paper folded in 1844, it was followed by the Wellington Gazette & Cook's Strait Guardian. 11For a detailed legal history of this see Paul McHugh, ‘The Aboriginal Rights of the New Zealand Maori’, thesis submitted for the degree of Doctor of Philosophy, University of Cambridge, Cambridge, 1987, 83ff. Hobson read two proclamations, the first declaring the boundaries of New South Wales to include New Zealand; the second stating the Crown's intention to only recognise titles derived from the Crown itself: issued 30 Jan. 1840, Hobson to Gipps, The National Archives: Public Record Office, Kew (PRO) CO 209/7: 23–24. 12Issued 21 May 1840, PRO CO 209/6: 156–158; Hobson to Russell, PRO CO 209/7: 61–62; London Gazette, 2 Oct. 1840. For a full account of the process see McHugh, ‘Aboriginal Rights of the New Zealand Maori’. 13Stanley to Shortland, 21 June 1843, House of Commons Parliamentary Papers (HCPP), 1844 vol. 13, no. 556, app., 475; Stephen to Hope, minute, 28 Dec. 1842, PRO CO 209/18: 416. 14Ward, Show of Justice, 62; Ward, ‘Means and Measure’. Swainson argued that the Crown lacked sovereignty over those iwi which had not signed the Treaty of Waitangi: Swainson to Shortland, 27 Dec. 1842, PRO CO 209/22, 247–254; Swainson, opinion, 13 July 1843, PRO CO 209/22, 285–293. 15James Stephen to Hope, 19 May 1843, PRO CO 209/16, 455. 16Ward, Show of Justice, 63: Stephen to Shortland, 21 June 1843, HCPP, 1844 vol. 13, no. 556, app., 475. 17Ward, ‘Means and Measure’, 6. 18Ibid. 19Ibid. 20An Act to Make Further Provision for the Government of the New Zealand Islands, 9 & 10 Vic., c. 103, s. 10 (1846); instructions to Governor Grey: Earl Grey to Governor Grey, 23 Dec. 1846, HCPP 1848, vol. 38, no. 763, 64–71, reproduced locally in the New Zealand Spectator and Cook's Strait Guardian, 9 June 1847, 2; 12 June 1847, 3, and reprinted in The Ordinances of New Zealand passed in the first Ten Sessions, Wellington, 1850. 21 R. v Pakewa (alias E Tonghi), Court of Quarter Sessions, Wellington, 5, 6 Oct. 1841, E. Halswell, reported in New Zealand Gazette and Wellington Spectator, 9 Oct. 1841, 3. Also Edward Jerningham Wakefield, Adventure in New Zealand from 1839–1844, 2 vols., London, 1845, vol. 2, 146–149; Ward, Show of Justice, 46. However, for an example of the problems of enforcement see the arrest of E Waho for theft, twice liberated by his iwi. For comments: New Zealand Gazette and Wellington Spectator, 2 Dec. 1843, 2; trial: ibid., 30 Dec. 1843, 2–3. There are also a number of examples of accused being ‘rescued’ from the courtroom itself. See the trial of Te Mania for stealing a blue cloth cap: Auckland Chronicle, 22 Feb. 1844, 2. 22H.S. Chapman ‘Legal Notes’, c. 1858, Alexander Turnbull Library, Wellington (ATL) MS-Papers-8670-047 (Chapman ‘Legal Notes’). The paper is undated. It is part of a collection of materials, including correspondence, which has been collated and designated c. 1858 by the Alexander Turnbull Library. However, the contents point to this document having been written around 1845. At the earliest it can have been authored in late 1844 as it refers to an incident involving slavery in that year. At the latest it can have been authored in early 1846, as Chapman notes that the enumeration of customs which should be abrogated would be of use to the Aboriginal protectors, an institution which was abolished in 1846. The purpose for which this document was initially written is unclear. Originally, Chapman may not even have had a specific purpose. In requesting his father send paper he writes that: ‘I write a good deal of law which may or may not grow into an essay or article or perhaps even a book’: Henry Samuel Chapman to Henry Chapman, ATL qMS-0418, vol. 1, 323, letter dated 1 July 846 (Chapman ‘Letters I’). By 1847 he had determined that ‘[o]n this [R. v Symonds] and other subjects of Colonial law I intend to write some articles or a book or both’: HCS to HS, ATL qMS-0419, vol. 2, 438, letter dated 3 Feb. 1847 (emphasis in the original) (Chapman ‘Letters II’). 23Spiller, Chapman Legal Family, 27. He began reading for the Canadian bar in the mid-1830s in Montreal: ibid., 22–23. 24On his connections to the New Zealand Company see Mark Hickford, ‘Making “Territorial Rights of the Natives”: Britain and New Zealand 1830–1840’, thesis submitted for the degree of Doctor of Philosophy, University of Oxford, Oxford, 1999, 143ff; also Mark Hickford, ‘“Settling Some very Important Principles of Common Law”: Three “Forgotten” Cases of the 1840s’, 35 Victoria University of Wellington Law Review (2004), 1. Chapman continued, for example, to correspond with J.S. Mill until the 1870s. 25While the Bentham Project at UCL have no record of his participation (personal communication with Professor Paul Schofield, by e-mail, Dec. 2008), see however [Sir Frederick Revans Chapman] Memo [to the Department of Internal Affairs] on Presenting his Father's Copy of Jeremy Bentham's Works to the Alexander Turnbull Library: ATL Chapman papers 1835–1929, MS-Papers-0053-19. 26In particular see H.S. Chapman, ‘The English, The French and the New Zealanders’, 1,5 The New Zealand Journal (April 1840), 1. A number of the principles on sovereignty in Chapman ‘Legal Notes’ had already been published in this piece. It did not, however, discuss abrogation; see also H.S. Chapman, ‘The Colonies’, in J. Roebuck, ed., 2,8 Pamphlets for the People (1836), 8; H.S. Chapman untitled, 9 Dublin Review (1840), 189; H.S. Chapman, ‘Zealand, new’, in Encyclopaedia Britannica, 17th ed., vol. 21, 1842, 975; H.S. Chapman, ‘Is Killing No Murder in New Zealand? – A Dilemma’, 1,14 The New Zealand Journal (Aug. 1840), 173. 27Chapman ‘Letters II’, 562, letter dated 22 Feb. 1848. See also ibid., 543, letter dated 17 April 1848. 28Shaunnagh Dorsett, ‘Thinking Jurisdictionally: A Genealogy of Native Title’, thesis submitted for the degree of Doctor of Philosophy, University of New South Wales, Sydney, 2005, ch. 5. Stadial theory generally refers to the speculations of Enlightenment thinkers that societies progressed through stages of increasing development: hunting/gathering; pastoralism/nomadism; agriculture; commerce. In this form, stadial theory is often associated with the Scottish Enlightenment and, for example, the work of Adam Smith and John Miller. For a full discussion of ‘civilisation’ as an extra-legal referent used to assess whether there was an existing ‘lex loci’ in the new colony of New Zealand see Ward, ‘Means and Measure’. 29See generally Mark Hickford, ‘“Decidedly the Most Interesting Savages on the Globe”: An Approach to the Intellectual History of Maori Property Rights, 1837–1853’, 27 History of Political Thought (2006), 122. 30James Kent, Commentaries on American Law, 2nd ed., New York, 1832; Johnson v M'Intosh (1823) 8 Wheat. 543, 21 US 543; Hickford, ‘“Decidedly the Most Interesting Savages”’, 150. 31Joseph Story, Commentaries on the Constitution of the United States: with a preliminary review of the constitutional history of the colonies and states, before the adoption of the constitution, 2 vols., Boston, MA, 1833. 32See also McHugh, Aboriginal Societies, ch. 2. 33This was Lecture L in the first edition; R. v Symonds (1847) 1 NZPCC 387; 108/3 The New Zealander, 12 June 1847, 3. For a contextualised discussion of Symonds see Mark Hickford, “‘Vague Native Rights to Land”: British Imperial Policy on Native Title and “Custom” In New Zealand, 1837–1853’, forthcoming, draft on file with the author. 34Letter, H.S. Chapman to his father, on the forthcoming case of R. v Symonds: Chapman ‘Letters II’, 437, letter dated 3 Feb. 1847. 35Ibid., 554, letter dated 18 Jan. 1848. 36Chapman ‘Legal Notes’, 16–17. 37Ibid., 20. 38Ibid., 22. 39Ibid., 21. Tapu refers to a law or restriction deriving its force from religious beliefs. To declare a thing or place tapu is to declare it a place where no one may go, or possibly even speak of. Tapu literally means sacred, and the English word ‘taboo’ is derived from it. For an example of one contemporary understanding of ‘tapu’ in colonial New Zealand of see the Revd Thomas Buddle, The Aborigines of New Zealand: two lectures, Auckland, 1851. 40 Calvin's Case (‘the PostNati’) (1608) 7 Co. Rep. 1a, 77 ER 377. 41Ibid., at 7 Co. Rep. 17b, 77 ER 398. 42 Anon., 1 Salk. 46, 91 ER 46. While this case has no year of judgment, as it appears in 1 Salk. it was most likely determined between 1689 and 1710. See also Wells v Williams, 1 Salk. 46, 91 ER 45, 46 (King's Bench, 1697). 43 Blankard v Galdy (1693) 2 Salk. 411, at 411, 91 ER 356, at 357. The case is also reported at Holt 341, 90 ER 1089; 4 Mod. 215, 87 ER 359; Comb. 228, 90 ER 445. Only the Salkeld report contains the exception. That treaty relations could be conducted with non-Christian powers had long been agreed: see McHugh, Aboriginal Societies, 86–87. 44 Case of Anonymous (1722) 2 P. Wms 75, 24 ER 646. 45 Campbell v Hall (1774) 1 Cowp. 208, 98 ER 1047. 46Charles Clark, A Summary of Colonial Law, London, 1834, 4. There is no doubt that Chapman had, for a colonial lawyer, a fine legal library. On his departure from England he lamented his lack of books. He had the Statutes at Large and ‘a couple of treatises but no “digests” – no “indexes” of the law – no “abridgments” no “reports” beyond those published since 1833 or 1834’: Chapman ‘Letters I’, letter dated 3 July 1843. However, by 1849 he was able to boast of a library of over 1000 books, of which some 259 were law books, including some ‘rare’ works. A number of these were on international law and colonial law generally, although he wished for more, on a number of occasions writing to his father that he was unable to finish his book on colonial law as ‘I have some parts (say chapters) prepared, but I want some book to enable me to do it well’: Chapman ‘Letters II’, 438, letter dated 3 Feb. 1847. 47The rite of Jughernaut (Juggernaut) refers to a form of Krishna worship where during the annual festival his image is dragged through the street on a heavy chariot. Here jughernaut refers to the English understanding of the practice whereby devotees were said to throw themselves under the wheels of the chariot. Suttee (sati) referred to the funeral practice among some Hindu communities in which a recently-widowed woman would either voluntarily or by use of force and coercion immolate herself on her husband's funeral pyre. There is little information on the practice of on the of notes that: a was on a at the Chapman ‘Legal Notes’, This latter example appears to be a to R. v and & ER Chapman may have of this as he was in England in 1842, although on the ‘Legal Notes’, 20. Summary of Colonial Law, 5. While write of to it is as a to In a colony the to The to may be by the in which Governor of was to trial in with in to the of a British to Damen for this Chapman his father a of the trial and send it to in 6. ‘Legal Notes’, 17 June 1843, reproduced in the 12 Aug. 1843, The began as a paper in in 23–24. and New Zealand Chronicle, 3 Oct. 1846, 122. are a of data, be taken in are On this generally see and in Political Journal (2006), Adventure in New Zealand, New Zealand Spectator and Cook's Strait Guardian, 4 Dec. 1847, 2. the of into in the context of indigenous see The of Law, London, of the New York, the the of and the over the Property Rights of the American in ed., The of Political in Cambridge, When Early Common Law and the Case of the Law Case (1608) ER was the by contemporary English to the practice under which through the of a common to the most of the This in to The of was not by this but by extra-judicial of the judges in see generally A Story of Common Law Native Title and the Case of University Law Review The case on the that the English common law had abolished the or the even it was a to Calvin's Only customs could be argued to as common law to the by Sir Edward No was McHugh, ‘Aboriginal Rights of the New Zealand Maori’, A. through The of 46 American Journal of Legal History (2004), 26; American and United law in the nineteenth Cambridge, v Supreme Court of the and as the of that judgment, that the were and of the is to be and that or it be at See also v 8 for example, v The 1 & P. United v F. v 1 through on see Ford, Settler Settler R. v 1 of jurisdiction R. v of the Supreme Court of New South Wales, 13 June and J. A of the of J has been by in 3 Australian Indigenous Law R. v or and Supreme Court of New South Wales, 23 Feb. at May R. v published in 3 Australian Indigenous Law see also Ford, Settler On South Australia see Ward, For of jurisdiction for example, R. v 12 Jan. 1842, Supreme Court of from The 12 Jan. 1842, at May R. v reported in the June and the June R. v reported in the 7 Sept. reported in the 7 Sept. Ford, Settler the law in and other early cases in New South Wales see Law, and Aboriginal Legal History New Zealand Spectator and Cook's Strait Guardian, 4 Dec. 1847, 3. only contains a of the not the legal principles 5 Sept. 1849, 3, and in substantially terms the Wellington Independent, 8 Sept. 1849, 3. to Hope, 28 Dec. 1843, PRO CO 209/22, Chapman ‘Legal Notes’, 16–17. New Zealand Gazette and Wellington Spectator, 8 March 1843, 3. was first in the New Zealand and March 1843, 2. The place on and 21 March 1843, and is reported in the New Zealand and 24 March 1843, 2. of are between and He is for example, as being the of some at in see court to chief by William July New Zealand Gazette and Wellington Spectator, 17 July 1844, 3. He was on 2 The matter is in in early of New Zealand: Thomson, The Story of New Zealand, Wakefield, Adventure in New Zealand, 77 New Zealand and March 1843, 2. the paper is dated it may in have been The is most likely 21 March 1843. are the iwi in the 1840s the Wellington and to the north part of the South was a In some the land was to Shortland, PRO CO that in a was issued against but would Thomson, The Story of New Zealand, This is the New Zealand Gazette and Wellington Spectator, 19 Oct. 1842, 2. had been to Shortland, 2 Dec. 1843, PRO CO The at was Police 5 no. 4 s. which that or to should be before the of the could either or the or the Three the in issued a against and for This in the which to the was at In part as a to the Native No. specific for Maori in See and R. v E 7 Oct. 1842, Supreme Court, Wellington, Martin CJ, reported in New Zealand Gazette and Wellington Spectator, 19 Oct. 1842, 3. to Shortland, 2 Dec. 1843, PRO CO the local iwi to Maketu as for her In of Maketu was to the Lennard, Sir William Martin, New Zealand and March 1843, 2. – a A for a had also been in R. v 21, and R. v The 7 Vic., no. 2 for to be passed Maori to on in the of case or in which the property or of aboriginal Native of New Zealand may be The were not On see The Law of the the and of law and 87 Chapman Act to Make Further Provision for the Government of the New Zealand Islands, 9 & 10 Vic., c. Grey to Governor Grey, 23 Dec. 1846, HCPP 1848, vol. 38, no. 763, 64–71, reproduced locally in the New Zealand Spectator and Cook's Strait Guardian, 9 June 1847, 2; 12 June 1847, 3. No. Ward, A Show of Justice, and generally ch. 6. s. 1. s. Court For an example of the of the under the 1844 see R. v E 1 Dec. 1845, Supreme Court, Wellington, Chapman entitled No. to fine of for The with two as a court of the of and and the of Earl Grey and Governor Grey these not of see Ward, ‘Means and Measure’, Grey to Governor Grey, 23 Dec. 1846, HCPP 1848, vol. 38, no. 763, long Legal in Nineteenth Century in and Law, and in the history of English Oxford, ‘Thinking ch. Dorsett, For the of this see The History of the Common Law of and An of the Civil of the Law, Charles ed., 18 published McHugh, ‘The Status of and Aboriginal and the Law Review to Shortland, 21 June 1843, HCPP, 1844 vol. 13, no. 556, app., 475. ‘Legal The referred not only to the of Swainson, the but of Chapman on the treaty be the of a forthcoming v Smith 2 ER ‘The Common Law Status of For a discussion of theory and the colonies see McHugh, ‘The Aboriginal Rights of the New Zealand Maori’, H.S. Chapman, Law a New Chapman Papers to Cases and ATL in ATL it was written This document not to the of but the on of the common law to a colony such as New Zealand. ‘Means and Measure’, Lester and have to the of connections the colonial in other colonies, in New Zealand information was and often published in the local from other from were some of the in which was legal treatises were by judges around the See Colonial the information and colonial this should not be There is little that judges such as Chapman of the decisions of in other that of decisions and local that were so important in constituting see also Ford, Settler ‘Legal Notes’, Johnson v On the long in the American colonies of the generally see J. ‘The of in American 42 Law Review 1. v 5 1 30 US 1 Chapman on the Case in ‘The English, The French and the New also and History in a The Case of New Zealand and the Treaty of 43 Law Journal ‘Thinking ch. Hickford, ‘Making “Territorial Rights of the New Zealand Spectator and Cook's Strait Guardian, 13 Oct. 1847, 3. it was reported that the a very among the the Court in New Zealand Spectator and Cook's Strait Guardian, 5 Sept. 1849, 3. and New Zealand Chronicle, 3 Oct. 1846, 122. this generally see Ward, Show of Justice, ch. 6. New Zealand Spectator and Cook's Strait Guardian, 5 Sept. 1849, 3; Wellington Independent, 8 Sept. 1849, 3. from Henry Samuel Chapman to George Auckland and vol. letter dated 10 Sept. on to Damen Ward, Mark and George for the I would also to the for their those of the author. Some of the in this article have been by the New Zealand Cases This is by the New Zealand Law and to Supreme Court and to those from 1841 to materials, cases and other information are at May 2009.