Māori Status in New Zealand Law · Deep Audit · Part 13 · 1842–1843

Did Crown lawyers agree that unceded tribes were already subject to British law?

No. A documented dispute between Attorney-General William Swainson and Colonial Secretary Lord Stanley exposes a live early controversy over non-ceding tribes, territorial sovereignty and the reach of British penal law.

This is one of the clearest documents in the whole investigation because it records disagreement inside the Crown's own administration.

Attorney-General William Swainson considered Britain's international title to sovereignty to rest on several sources together. But as to tribes that had never ceded sovereignty and refused to acknowledge the Queen's authority, he considered that Britain did not have the right, consistently with good faith, to impose its penal code upon them.

Colonial Secretary Lord Stanley rejected that distinction in a despatch dated 21 June 1843. He treated the royal commissions as conclusively fixing the territorial scope of Crown sovereignty for the colonial government. He said all territories within those commissions and all persons inhabiting them must be treated as within the British Crown's dominion.

But Stanley did not say one law had to govern every Māori dealing.He expressly contemplated Māori being exempt from English law and English courts in relations and dealings among themselves, with Māori law and custom maintained subject to stated limits.

Swainson's position

International sovereignty against foreign powers did not necessarily settle the Crown's right to impose penal law upon chiefs and tribes that had never acknowledged or ceded authority.

Stanley's position

The Crown's commissions were a fundamental premise of colonial government: territory and inhabitants were within the Crown's dominion, while legal pluralism could still be tolerated for Māori inter se dealings.

This shows that “sovereignty”, “subjecthood”, “amenability to British penal law” and “continuance of Māori law” were not treated as identical questions even by Crown officers.

The bridge was contested internally: universal Crown dominion could coexist, in Stanley's model, with Māori law for Māori dealings. That is materially different from saying Crown sovereignty immediately erased all Māori jurisdiction.

Contemporary despatchLord Stanley to Shortland, 21 June 1843, reproduced in the Wellington Independent.

Later parliamentary compilationAJHR 1869 — historical legal opinions on Māori status and British law.

← Series index · Previous · Next →