19 CHAPTER 3 THE DRAFTS OF THE TREATY Although Ruth Ross made an effort to identify the writing of these officials, and her identifications of scribal hands have generally been accurate, she was not able to identify all the scribes or to establish the sequence of the writing of all the relevant documents. Ross observes that "Official despatches yield no clues about how the Treaty of Waitangi was drawn up" but crucial information also occurs in non­official sources.1 The evidence concerning the drafting of the Treaty of Waitangi comprises both extant original documents (holographs) and subsequent transcripts of those holographs. Ross is correct that:2 The notes brought to him [Busby] by Hobson's officers [Cooper and Freeman] have survived and are reproduced in Fac­similes of the . Treaty of Waitangi. There are two sets of these notes. The first, in Hobson's handwriting, is the draft of a preamble only. The second set of notes, in the handwriting of J. S. Freeman, Hobson's Secretary, comprises the draft of a differently worded preamble and of three articles. I concur with Ruth Ross in these identifications, but the order in which they were written is a subject for further discussion. Which was written first? The paper stocks provide no answers.3 A study of the filiation of the draft texts, has been much more revealing. These texts are presented, in the order of their composition in the Appendix, as documents 1­6. Hobson's holograph sheet fits late in this sequence, not at the start of it, as other researchers seem to have assumed. The start of the sequence is Freeman's sheet, not Hobson's. Ross was exercised over the identification of Freeman's writing: "it is not always easy to identify the handwriting of minor officials, as they seldom sign the letters they write. It had seemed likely that the second set of notes in the Fac­similes was in Freeman's hand, many of Hobson's despatches being in the same handwriting. Definite identification became possible with the chance finding of a letter to J J Galloway of 5 June 1840 signed by Freeman 'for the Colonial Secretary', IA 1 R Ross "Te Tiriti of Waitangi" New Zealand Journal of History v 6 no 2 (1972) p 132 and footnotes 20­22. 2 Above n 1. This is, indeed, in Hobson's own writing. 3 Hobson's holograph preamble is a single full sheet of foolscap with the watermark "J Simmons 1838" and Freeman's is another single full sheet of foolscap, but with the watermark "Dewdney & Co 1838". Busby's second draft of the articles of the Treaty is also a single full sheet of foolscap but with the watermark "J & J Town Turkey Mill 1838" and so all three sheets are from different paper stocks. It is apparent that officials used any paper available and the watermarks are of no significance, for writing paper from several different stocks was used throughout the period. 20 RJP/NZACL CAHIER SPECIAL 1, 40/191, National Archives Wellington."4 This identification of Freeman as the scribe of the "second set of notes" rests on slender evidence – four words and a signature – but I have no doubt that it is correct.5 Fortunately, however, many other examples of documents written and also signed by Freeman exist.6 Both original holographs and subsequent transcripts have evidential value, so long as their filiation is correctly understood, and this is where conventional 'historical evidence' – largely focussed on the text (what the words say), rather than the scripts (the evidence of penmanship), has let historians down. The concept of filiation is also useful when the scribal responsibility for the various transcriptions of the Māori text of the Treaty is examined. The original Waitangi sheet (i.e. the document signed on 6 February 1840) is known to be in Richard Taylor's writing. It postdates all the drafts, and it provides the anchor for the subsequent Māori language copies of the Treaty, some dozen of which were prepared for signatures March to April, in various hands, presumably under Shortland's general oversight, soon after Hobson appointed Shortland as Acting Colonial Secretary on 7 March.7 Some of these derivative filiated copies are by Freeman. As with the later documents concerning Galloway's leave application, it is minor annotations in their hands, such as cipher initials and authentication notes which prove who prepared the documents.8 4 R Ross, above n 1, 133. 5 Galloway's holograph letter of 5 June is to the (Acting) Colonial Secretary, at this time Freeman (Shortland had earlier sailed to Port Nicholson). Freeman thought that Galloway had resigned. The draft response to Galloway, on the same day, is in the hand of Grimstone but is signed by Freeman. The response was submitted to Hobson for approval but Hobson commented "Mr Galloway has not resigned – I permit him to proceed to Sydney in accordance with the medical recommendation. Let him remain on the books until the end of this month. WH". On the next day Felton Mathew added a further letter, also initialled by Hobson, giving the Governor's approval, but noting "it is inconsistent with regulations and would be a bad precedent to grant passage money. WH" On 17 June the letter written by Grimstone was cancelled. The only text actually in Freeman's writing is "for the Colonial Secretary, Ja Stuart Freeman". 6 See, for a good example, Archives New Zealand G 36/1 e.g. Hobson to Gipps 40/8, 5­6 February, pp 16­20. 7 Shortland's patent as Colonial Secretary was only issued on 3 May 1841, no warrant of dedimus potestatem having been drawn up for him to act with that authority. This patent and other official documents including Hobson's appointment are in Shortland's papers in the Hocken Library, DUHO­MS­0052. These papers include the official and unofficial correspondence between Shortland and Hobson, some of it written by Freeman as Acting Colonial Secretary in Shortland's absence 27 April to 6 May, during his visit to Kaitaia. (Colonel Thomas Bunbury's troops arrived on the Buffalo on 16 April, and Nias and the Herald arrived back at the Bay of Islands on 23 April.) 8 Māori texts of the Treaty now identified as penned by Henry Williams are at Archives New Zealand G 30 /1 pp 25­27, and in Clendon's papers at Auckland Public Library. Both copies were authenticated by Freeman, the former with his cipher and the latter with his 'true copy' annotation and signature. Associated with these are Clendon's letter of 18 March requesting a copy of the Treaty (Colonial Secretary's inward letter 40/61, original now missing) with verso annotations of Freeman and Kemp: "Answered H. Kemp, Interpreter". But this does not establish that the Māori text was copied at that date. When Hobson's despatch no 3 (40/3 to ENGLISH DRAFTS OF THE TREATY OF WAITANGI 21 The 'Government Notice' signed "By His Excellency's Command, for the Colonial Secretary J. Stuart Freeman, Colonial Secretary's Office Russell New Zealand 15 July 1840" (initialled and signed by Hobson on that date) is another good example.9 The Private Secretary's letter­book at Archives New Zealand (G 36/1 'Extra book of Governor's letters 24 Jan. 1840 – 14 May 1842') is largely in Freeman's hand. This chapter now seeks to establish the correct chronological sequence of the source documents for the Treaty, using such evidence and methods. I HOBSON'S DRAFT SHEET (ARCHIVES NEW ZEALAND, IA 9/10) Hobson's holograph text commences "Her Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the native chiefs and tribes of New Zealand and anxious to protect their just rights [. .]" (see Appendix, document 5). This holograph was extensively revised by Hobson himself – various passages have been struck out and others substituted – but it is solely a preamble, and the text breaks off after the words "to concur in the following articles and conditions – ". It has usually been assumed that this preamble was written before the other documents, but I suggest, below, that it was not written until 5 February. The reference to 'the following articles and conditions', by itself, shows that it was written after the contributions of both Freeman and Busby. Two further clues are in the removal of 'most gracious' and the use of 'regarding with Her Royal Favour' in place of Freeman's 'viewing with deep solicitude'. II FREEMAN'S DRAFT SHEET (ARCHIVES NEW ZEALAND, IA 9/10) Prepared by Freeman on the Herald, this text (see Appendix, document 1) commences with the paragraph: Her most Gracious Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland viewing with deep solicitude the present state of New Zealand arising from the extensive settlement of British subjects therein – and being desirous to avert the evil consequences which must result both to the Natives of New Zealand and to her subjects from the absence of all necessary laws and Institutions has been graciously pleased to empower and authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor in New Zealand to invite the confederated chiefs to concur in the following articles and conditions. Three more paragraphs contain (1) what was to become the third article of the Treaty ("In consideration whereof Her Majesty The Queen extends to the Natives of New Zealand Her Royal Protection and imparts to them all the Rights and Privileges of British Subjects"); then (2) what was to become part the first article (starting "The United Chiefs of New Zealand cede to Her Majesty in Secretary of State) was prepared in May 1840 by Grimstone, some pages were marked with his cipher (SEG) and others were marked with Freeman's (JSF) – see G 30 / 1 p 81 (JSF) and 101­103 (both SEG).