HISTORY, LAW AND LAND: The Languages of Native Policy in New Zealand’s General Assembly, 1858-62 Samuel D. Carpenter 2008 HISTORY, LAW AND LAND: The Languages of Native Policy in New Zealand’s General Assembly, 1858-62 A thesis presented in partial fulfilment of the requirements for the degree of Master of Arts in History at Massey University, Auckland, New Zealand. Samuel D. Carpenter 2008 ii to J. H. Wright iii Abstract _________________________________________________ This thesis explores the languages of Native policy in New Zealand’s General Assembly from 1858 to 1862. It argues, aligning with the scholarship of Peter Mandler and Duncan Bell, that a stadial discourse, which understood history as a progression from savage or barbarian states to those of civility, was the main paradigm in this period. Other discourses have received attention in New Zealand historiography, namely Locke and Vattel’s labour theory of land and Wakefield’s theory of systematic colonization; but some traditions have not been closely examined, including mid-Victorian Saxonism, the Burkean common law tradition, and the French discourse concerning national character. This thesis seeks to delineate these intellectual contexts that were both European and British, with reference to Imperial and colonial contexts. The thesis comprises a close reading of parliamentary addresses by C. W. Richmond, J. E. FitzGerald and Henry Sewell. iv Acknowledgements __________________________________________________________________ I wish to thank my supervisors Peter Lineham and Michael Belgrave, who have guided me through the challenges of thesis writing, posed many helpful questions and provided research direction throughout the process. Others have provided material and encouragement along the way, including Michael Allen (Waitangi Tribunal), Ruth Barton and Caroline Daley (University of Auckland), John Martin (New Zealand Parliamentary historian), and Sarah Dingle (currently working on a Ph.D. concerning C.M.S. missionaries’ conceptions of civilization). Thanks also to the Alexander Turnbull Library for images of the three principal protagonists. I wish to acknowledge the financial support of Massey University with the grant of a Masterate Scholarship in 2007. Also my employers, Gaze Burt Lawyers, Auckland, who were supportive of this undertaking. Thanks to Jeremy Browne for reviewing a draft. Lastly, thanks to my wife Hana who has endured the Masters experience and provided valuable critique in the final weeks. v Table of Contents _______________________________________________________________ Introduction p. 1 PART I: HISTORY AND LAW Chapter 1. Richmond’s 1858 Address: p. 23 Saxon Courts & Native Self-Government Chapter 2. FitzGerald’s 1862 Address: p. 51 Saxons, Celts & Native Representation PART II: HISTORY AND LAND Chapter 3. Richmond’s 1858 Policy: The ‘Growth’ of British Tenure & Native p. 69 Territorial Rights Chapter 4. FitzGerald’s 1862 Address: p. 82 Political Civilization & Native Title Chapter 5. Sewell’s 1862 Speech: p. 94 The Peaceful Mission of Colonization & British Empire Conclusion p. 114 Bibliography p. 124 vi List of Illustrations [cover page] Thumbnails of three images detailed below. p. 22 Christopher William Richmond, ca 1888, Ref. No. 1/1-013502-G, S. P. Andrew Ltd Collection (PAColl-3739). p. 50 James Edward FitzGerald, ca 1890, Ref. No. 1/1-001316-F, Herman John Schmidt Collection (PAColl-3059), Photograph by Herman John Schmidt. p. 93 Henry Sewell, ca 1860, Ref. No. 1/2-038343-F. Images courtesy Alexander Turnbull Library, Wellington New Zealand. Permission of the Alexander Turnbull Library, National Library of New Zealand, Te Puna Matauranga o Aotearoa, must be obtained before any re-use of this image. Abbreviations AJHR Appendices to the Journals of the House of Representatives DNZB Dictionary of New Zealand Biography . All of these biographies have been accessed from http://www.dnzb.govt.nz/, updated 22 June 2007. HR House of Representatives LC Legislative Council n. Footnote reference, usually being a reference to the accompanying text as well [n.d.] A publication/document with no date NZPD New Zealand Parliamentary Debates ATL Alexander Turnbull Library. Other All references to an An Encyclopaedia of New Zealand , ed. A. H. McLintock (1966) have been accessed from http://www.teara.govt.nz/1966. Notes on Style Capitalization/Quotations. For authenticity, the basic approach has been to leave capitalized the words capitalized in the debates. In the text generally however, for ease of reading, only a few words such as ‘Native’ have been spelt in upper case. Spelling. Some words, such as ‘civilization’ I have consistently spelled with a ‘z’ rather than an ‘s’, including amending spelling within citations if necessary. 1 Introduction __________________________________________________________________ ‘How, then, did we raise ourselves from a barbarous state? How were we developed, from a rude, red-haired horde on the banks of the Elbe, into the foremost rank amongst the nations – amongst the first in power, and in all that ennobles and beautifies life?’ Christopher William Richmond (18 May 1858). 1 This thesis explores the discourses of Native policy in New Zealand’s General Assembly from 1858 to 1862. It endeavours to illuminate the nature and meaning of Native policy debates by examining the languages employed by parliamentary protagonists, setting these languages in their intellectual and cultural contexts. These discourse traditions reveal the ways in which nineteenth-century New Zealand politicians conceived of themselves, most significantly as being a British people with a constitutional history in which Britons were the inheritors of civil freedoms and rights of property, and a national history in which Saxon ancestors had brought with them early forms of these constitutional freedoms. The dominance of British Empire underlined the perception that Victorians enjoyed the world’s pre-eminent civilization. The principal argument of this thesis is that ‘race’ was not the key motif of Native policy discourse or conception in this period, aligning with the scholarship of Duncan Bell and Peter Mandler rather than scholars such as Catherine Hall. ‘Race’ or ‘superior race’ language was used but this should be seen within the tradition of the growth of civilization in societies, from savage or barbarian states to those of civility. This was a paradigm constructed from history, rather than from notions of inherent racial (particularly biological) differentiation. It was a ‘stadial’ or ‘conjectural’ mode of philosophical history, identified in recent 1 NZPD (1858-60): 446. 2 literature with the Scottish Enlightenment histories of civil society. 2 This thesis argues that this was the dominant paradigm of Native policy through to 1862, and probably for some years beyond that. This means that ‘fatal impact’ thinking did not, in fact could not, imply a belief in a fundamental divide between British and Māori societies. The stadial paradigm in this mid-Victorian period was joined by the language of Teutonism or Saxonism, which did not modify its essential universalist assumptions but flavoured them with comparisons of national character. The use of Saxon language reflected a mid-to-late Victorian enthusiasm for cultural Saxonism, but its appearance in the debates on Native policy in New Zealand has not been fully addressed in historiographical scholarship. 3 Notions of systematic colonization and Native land tenure were perhaps the most highly contested political issues of this period. A more intense focus on this five year period reveals, more than general studies have done, the variety of parliamentary opinion: from Henry Sewell’s clear view, in 1862, that M āori title was not cognizable in English courts, to FitzGerald’s view in the same year, that it was or might soon be cognizable, because M āori tenure practice was adapting itself to English forms. These debates also reveal similar language as that employed in Native governance debates generally, including a Burkean conception of law as a reflection of cultural practice or custom. In using the methodology of intellectual or cultural history, the thesis does not deny the affects of colonial and imperial policy contexts. As Mark Hickford has written of an earlier period, the nature of Native policy formation was contestable, 2 Mark Hickford, ‘"Decidedly the Most Interesting Savages on the Globe": An Approach to the Intellectual History of Maori Property Rights, 1837-53’, History of Political Thought 27 (2006): 122-67; Damen Ward, ‘A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia’, History Compass 1 (2003): 1-24; Bruce Buchan, ‘The Empire of Political Thought: Civilization, Savagery and Perceptions of Indigenous Government’, History of the Human Sciences 18 (2005): 1-22. See also, M. P. K. Sorrenson, ‘How to Civilize Savages: Some "Answers" From Nineteenth Century New Zealand’, New Zealand Journal of History 9 (1975): 97-110. 3 Or perhaps, it has not arisen in some instances because the focus was on an earlier period. 3 its language and practice ‘profoundly entwined’. 4 The politics of colony and Empire in New Zealand exhibited a number of interests and opinions as to the nature of M āori society and the appropriate policy response. While these colonial and Imperial contexts are examined, the emphasis is on the intellectual contexts of Victorian Britain, as it is these that have been largely passed over in New Zealand historiography. Appraising