Juridical Encounters: Maori and the Colonial Courts, 1840-1852

By Shaunnagh Dorsett

From 1840 to 1852, the Crown Colony period, the British attempted to impose their own law on New Zealand. In theory Maori, as subjects of the Queen, were to be ruled by British law. But in fact, outside the small, isolated, British settlements, most Maori and many settlers lived according to tikanga. How then were Maori to be brought under British law? Influenced by the idea of exceptional laws that was circulating in the Empire, the colonial authorities set out to craft new regimes and new courts through which Maori would be encouraged to forsake tikanga and to take up the laws of the settlers. Shaunnagh Dorsett examines the shape that exceptional laws took in New Zealand, the ways they influenced institutional design and the engagement of Maori with those new institutions, particularly through the lowest courts in the land. It is in the everyday micro-encounters of Maori and the new British institutions that the beginnings of the displacement of tikanga and the imposition of British law can be seen. Juridical Encounters presents one of the first detailed studies of the interactions of an indigenous people in an Anglo-settler colony with the new British courts. By recovering Maori juridical encounters at a formative moment of New Zealand law and life, Dorsett reveals much about our law and our history.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Sep 18, 2017
• ISBN: 9781775589204

Shaunnagh Dorsett

Shaunnagh Dorsett is a professor of law at the University of Technology Sydney and research fellow in the Faculty of Law at Victoria University of Wellington. She is the author or editor of a number of books, including Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave McMillan, 2010, edited with Ian Hunter); Jurisdiction (Routledge, 2012, with Shaun McVeigh); and Legal Histories of the British Empire: Laws, Engagements and Legacies (Routledge, 2014, edited with John McLaren). She was the leader of the New Zealand Law Foundation's 'Lost Cases' Project.

Book preview

JURIDICAL ENCOUNTERS

Māori and the Colonial Courts 1840–1852

‘This is a book that opens up an almost entirely new territory of legal historical research and places Māori agency at the forefront of the narrative. By unearthing little-known stories of Māori direct engagement in New Zealand’s early courts, Dorsett shines a light on important aspects of our early colonial history.’

– PROFESSOR DAVID V. WILLIAMS, UNIVERSITY OF AUCKLAND

‘Juridical Encounters is a rich, intellectually robust, and cogently argued legal history. By plotting the various ways in which Māori encountered, used, or repudiated the British legal system Shaunnagh Dorsett demonstrates the vital role colonial courtrooms played as sites of cross-cultural encounter and political debate, bringing a fresh and exciting perspective to New Zealand’s colonial past.’

– ASSOCIATE PROFESSOR ANGELA WANHALLA, UNIVERSITY OF OTAGO

JURIDICAL ENCOUNTERS

Māori and the Colonial Courts 1840–1852

SHAUNNAGH DORSETT

For George

Contents

Acknowledgements

Introduction: Juridical Encounters

Part I: Whose Law? Which Law?

1. Preliminary Matters

2. Metropolitan Theorising: Amelioration, Protection and Exceptionalism

3. Amenability to British Law and Toleration: The Executive and Others

4. Common Law Jurisdiction over Māori: Three Cases

5. Conclusion

Part II: Designing Exceptional Laws and Institutions

1. Hobson and Clarke: ‘Native’ Courts

2. FitzRoy: The Native Exemption Ordinance 1844

3. FitzRoy: Unsworn Testimony

4. Grey: The Resident Magistrates Courts 1846

5. Conclusion

Part III: Juridical Encounters in the Colonial Courts

1. Preliminaries: Courts and Data

2. Offices: Protectors, Lawyers, Interpreters

3. Crime

4. Suing Civilly: The Resident Magistrates Court and the Office of the Native Assessor

5. Conclusion

The Displacement of Tikanga – A Brief Jurisprudential Afterword

Appendices

Abbreviations

Bibliography

Index

Acknowledgements

In writing any book one of the hardest, and yet most pleasant, tasks is to thank the myriad of people without whom the project would never have seen the light of day, let alone come to fruition. Foremost, I would like to thank the New Zealand Law Foundation: Lynda Hagen, the Executive Director, Diane Gallagher, and the Board of Trustees. I would like to thank them not just for supporting this project, and the previous Lost Cases project of which I was a part, but for their support for legal history more generally. New Zealand legal historians are privileged to have an institution which supports their work so strongly. Institutionally, both the Faculty of Law at the University of Technology Sydney and at Victoria University of Wellington also deserve considerable thanks. They have both been generous during the writing of this book in multiple ways.

There are, of course, several people without whom this book could not have been written: Hannah Boast, who slaved in the archives for months, undoubtedly cross-eyed from looking for small court returns, and who willingly returned time and time again to retrieve important fragments through which this story was constructed; Megan Simpson, whose wonderful research as part of the Lost Cases project started this book. I am sure its genesis is coffee with her so many years ago and the unforgettable statement (not question): ‘But this is a book, right.’ Tai Ahu and Tawini White, whose translations add an important element to the text. Lachy Paterson for the added translations by email on a Sunday afternoon. Kosta Hountalas for the countless hours spent counting Māori participants on court returns, and collating crimes. Alison Whittaker for the same for Nelson. Thanks also to Kennedy Sanderson and William Coleman for fetching items from the National Archives at Kew every time that I realised that I needed yet one more document . . .

Others gave feedback and encouragement and helped in various practical ways. Particular stalwarts include Damen Ward, Geoff McLay, Alecia Simmonds, Shaun McVeigh, Amanda Nettelbeck, Richard Boast and Andrew Sharp. I cannot thank each of you enough. Beyond that there are, of course, many more debts: P.G. McHugh, David V. Williams, Ann Genovese, Diane Kirkby, Mark Hickford, Bevan Marten, Eugene Schofield-Georgeson, Shelley Gavigan, to name just a few. For those who in the madness that is finishing a book I have missed, my thanks is nevertheless sincere.

Thanks also must go to the staff at Archives New Zealand; State Records New South Wales; The National Archives, Kew; the Alexander Turnbull Library, Wellington; the Mitchell Library, Sydney; the Hocken Library, Dunedin and others. Their patience and help is much appreciated.

Finally, but by no means least, thanks to Sam Elworthy and the staff at Auckland University Press and to Mike Wagg for the impeccable editing.

And George: for encouragement, for proofing, for generally putting up with me and, most importantly, for the lasagne.

Some parts of this book draw on previously published material:

‘Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of Barbarous Customs in New Zealand in the 1840s’, The Journal of Legal History, vol. 30, 2009, pp. 175–97

‘Destitute of the Knowledge of God: Māori Testimony Before the New Zealand Courts in the Early Crown Colony Period’, in Diane Kirkby (ed.), Past Laws, Present Histories: From Settler Colonies to International Justice, ANU E Press, Canberra, 2012

‘How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand’, New Zealand Journal of Public and International Law, vol. 12, 2014, pp. 103–22

‘The Precedent Is India: Crime, Legal Order and Governor Hobson’s 1840 Proposal for the Modification of Criminal Law as Applied to Māori’, law&history, vol. 1, 2014, pp. 29–55

Introduction: Juridical Encounters

At the first sitting of the New Zealand Supreme Court in early 1842, Maketu Waretotara, a Ngā Puhi man, was convicted and sentenced to death for the murder of Thomas Bull.¹ He had killed Bull, their mutual employer Mrs Robinson, her two children, and Isabella Brind, the granddaughter of Rewa, a Ngā Puhi rangatira. Maketu’s sentence was almost immediately confirmed by the Executive Council and, two days later, he was hanged.² Maketu was neither the first Māori indicted for murder by the fledgling New Zealand administration, nor the first tried for a crime by a New Zealand court. He was, however, the first person executed by the settler government. The confluence of the opening of the Supreme Court – the most visible symbol of the new British legal order – and Maketu’s trial, ending in the first hanging in New Zealand, has ensured his place in public memory to this day.

Some years later, William Swainson, the Attorney-General and Crown Prosecutor for Maketu’s trial, wrote of the first sitting of the Supreme Court that ‘in this unpretentious building the advent of a new power in these islands was solemnly proclaimed’. Maketu’s trial was an important element of that proclamation and was intended to be so. It was, if you will, an exercise in public relations. According to Swainson, Maketu’s case had deliberately not been brought on first. Rather, another matter, that of Francis Leethart, who had been indicted for shooting at Pooterai, was ‘purposely taken first . . . to satisfy the people of both races that our English law – the law to which they were all henceforth to be subject – was no respecter of persons . . . all were alike to be the objects of its care’.³ Swainson similarly attributed the failure to grant clemency to the broader aim of reinforcing the primacy of the new legal order and thus ‘Maketu was the first of his race to afford an example of [the law’s] sovereign power’.⁴

Contemporary accounts by colonial administrators of Maketu’s trial sought to paint a portrait of a new legal era in which British sovereignty had been established over the islands and in which law would be impartially administered to all by the new institution of the Supreme Court. Unlike its nearest neighbour – New South Wales – in which legal uncertainty as to the amenability of its aboriginal (indigenous) inhabitants to British law had lasted for decades, in New Zealand it was accepted at the outset (by the British) that Māori, as subjects of the Queen, were to be ruled by British law, at least in their interactions with Europeans.⁵ For the settlers who witnessed Maketu’s trial and the aftermath, the fact that Maketu had been turned in by his iwi, rather than captured, likely reinforced the illusion of the power of settler law. On the day of the indictment, nineteen men, described in the newspaper as an Assembly of the Chiefs of Ngā Puhi, denounced Maketu’s crime, stating that ‘his work was his alone’, and emphasising that they had no ‘mischievous disposition towards the Europeans’. An almost identical letter was also published, signed, among others, by Maketu’s father, Ruhe.⁶ Swainson later suggested that Maketu’s iwi gave him up: ‘knowing him to have been the author of the guilty deed, and having been parties to the Treaty of Waitangi, ceding to us the sovereignty over their country, they delivered up Maketu to be dealt with in accordance with our laws’.⁷ This was only the first of a number of occasions across the 1840s when the Crown and its officers trumpeted the willingness of Māori to give up their own to be tried according to British law as evidence of their acknowledgement of the power and superiority of that law.

The rhetoric and the reality were somewhat different. At the signing of the Treaty of Waitangi in 1840, Māori lived under and according to their own laws. While the colonising British government asserted sovereignty over the islands of New Zealand, they understood, whatever the rhetoric to the contrary, that this assertion of sovereignty hardly meant that the common law had become the legitimate or even effective law of the land. It had been acknowledged prior to colonisation that Māori were sovereign (although whether for the British that meant quite the same sovereignty as enjoyed by European nations was debatable), and that they had their own laws, however brutal or sometimes ‘uncivilised’ they appeared to European eyes. After the acquisition of sovereignty all British subjects in New Zealand were formally subject to British law, and this included Māori who were declared ‘subjects’ by Article III of the Treaty. Despite this, the British, at the outset at least, did not intend Māori to be subject to British law in all circumstances. In particular, there was no assumption that Māori would necessarily be amenable to British law with respect to many intra-Māori matters. Outside the small, isolated and vulnerable British settlements, most Māori, and many out-settlers, lived according to tikanga Māori, and the authorities – both local and metropolitan – were painfully aware that British legal authority was largely unenforceable. While the Colonial Office maintained that Britain had established sovereignty over the whole of the islands, it was not clear that all local officials agreed. Moreover, even if it was to be taken that sovereignty had been established, this in no way suggested that they had also established effective jurisdiction: either over all matters to do with Māori, or, even physically, beyond the main settlements.⁸ Sovereignty and ‘practical jurisdiction’ were understood as being quite different matters.⁹ Maketu’s trial was possible because his own iwi had brought him to the British, and, as was later explained by Swainson, this was not because they thought he should be dealt with according to British law, but because they hoped to avoid Maketu being instantly subject to Rewa’s vengeance for the death of his grandchild. Such was the understanding of the colonial authorities at the time.¹⁰ It was by no means clear that Ruhe understood what would happen as a result of handing his son to the British authorities.

But there is another story to tell that does concern the highest court and high politics: one that proves to be more revealing of Māori encounters with the law of the settlers. During the ‘Crown colony period’ from 1840 to 1852, hundreds of Māori appeared – both willingly and unwillingly – before the new settler courts. In particular, they came to the magistrates courts, the lowest courts in the land. They came to lay criminal informations, to sue for civil debts, and to witness to the same. They were also subject to the new criminal law. Unlike Maketu, they did not engage with the highest court in the land. Few Māori did. Between 1841 and 1852 there were only fifteen trials before the Supreme Court in which Māori appeared as defendants (three of which were dismissed for lack of evidence). Maketu was one of four charged with murder. Only one Māori sued for civil damages in that court.¹¹ In the main, Māori, as did Europeans, encountered British law in the lowest courts in the land. Small-scale debt, unpaid wages, drunkenness and petty theft were the matters which brought them there. Unlike Maketu’s trial, with almost no exception, these hundreds of small juridical encounters have disappeared without trace.

This book presents one of the first detailed studies of the interactions of an indigenous people in an Anglo-settler colony with the new colonial courts. From the first indictment of a Māori, Kihi, for the murder of Patrick Rooney in Kororāreka in April 1840 (prior to Maketu’s Case), to the end of the Crown colony period, this book traces these juridical encounters – both civil and criminal; both significant and petty. It was in this period, from the establishment of British sovereignty earlier that year to the grant of self-government in 1852, that key administrative and judicial institutions were first established, so instituting a process of engagement of Māori with the settler courts which continued through the nineteenth century and beyond.¹²

While nuanced comparisons to other places in the Empire are always difficult given the disparity in data available, the story of Māori and the colonial courts is especially noteworthy for the high level of engagement by Māori in the judicial process, and for the variety of roles that Māori played in the courts: as plaintiffs, informants, defendants, accused, witnesses, and, in a limited capacity, court personnel. This is particularly so with respect to the lowest courts in the land presided over by local magistrates. While the Supreme Court, for example, heard at least 244 criminal matters between 1841 and 1852, in a little over a year after its institution (November 1846 to December 1847) the Auckland Resident Magistrates Court alone heard 1083.¹³ It was, it is very clear, those inferior courts, not the superior courts, which constituted the key site of juridical engagement, and in which the day-to-day engagement of Māori with the institutions of British law occurred.

Māori did not appear only before the colony’s regular courts. Another significant site of encounter was in the courts of the various Land Claims Commissions. One of the Crown’s first acts upon claiming sovereignty was to assert its right of pre-emption over native land. On 30 January 1840, Lieutenant-Governor Hobson proclaimed the Crown’s intention to recognise only those titles derived from the Crown itself.¹⁴ Prior to this, however, significant land had changed hands, purchased directly from Māori by Europeans. The proclamation, therefore, was quickly followed by the establishment of a Land Commission to investigate all those acquisitions of land from Māori. Only those transactions which were ‘founded on equitable principles, and not in extent or otherwise prejudicial to the present or prospective interests of Her Majesty’s Subjects in New Zealand’ were to be allowed and confirmed.¹⁵ A specific commission, chaired by William Spain, was also appointed in 1841 in order to investigate the claims of the New Zealand Company to 20 million acres of land it had purchased around Cook Strait in 1839, and to determine any compensation payable to Māori. In the 1840s many Māori appeared before these commissions, witnessing to, and contesting, purchases. From the mid-nineteenth century the task of investigating titles was given to the new Native Land Court, the forerunner of the modern Māori Land Court.

Significant as the courts of the commissioners were as sites of legal engagement for Māori, an examination of them is not within the scope of this book. Unlike the work of the regular courts, early land transactions, and the work of the commissions, have received considerable attention from New Zealand historians, particularly the historical investigations undertaken in connection with the hearings of the Waitangi Tribunal. The Waitangi Tribunal is a permanent commission of inquiry tasked with making recommendations to the Crown based on ‘acts or omissions’ of the Crown relating to breaches of ‘the principles of the Treaty of Waitangi’.¹⁶ As part of its remit the Tribunal has undertaken a number of inquiries into historic claims with respect to confiscation and land transactions in the nineteenth century. This has led to an array of reports, each underpinned by significant historical reports prepared as evidence.¹⁷ In turn, this reliance on historical work by the Tribunal has helped spawn a body of scholarship concerned with the place of history in contested proceedings, how to think in the present about Māori losses in the past, and the place of programmatic or political histories written for the purposes of such investigations.¹⁸ This has all led to a New Zealand legal historiography in which, as R.P. Boast has recently commented, ‘the central point at issue is whether or not the Crown can be said to be in breach of the Treaty of Waitangi’.¹⁹ As a result, much is now known about land transactions, and the work of specific institutions such as the courts of the Land Commissioners or the later Native Land Court.²⁰ The importance of the court as a place in which Māori have made arguments about land and custom is long acknowledged, Belgrave maintaining that in this context ‘the court has been much more important than the battlefield’.²¹ By contrast, little is known about Māori engagement with the regular courts, both criminal and civil. The history of interaction with settler institutions other than with respect to land has been largely ignored. One aim of this book, then, is to begin a process of redressing that imbalance.

The formal settlement of New Zealand took place at a particular juncture in the history of British colonisation of the Anglo-settler colonies. The Crown colony period sits at the intersection of two significant facts. The first was the increase in rapid settlement, what James Belich has labelled the ‘settler revolution’ in the nineteenth century, and which included the ‘Greater British’ expansion in its dominions.²² In the nineteenth century, Anglo settlers increasingly pushed, often violently, into new territories – some occupied, others not. New Zealand was no exception. The formal settlement of New Zealand was not, however, a straightforward story of settler colonialism and indigenous ‘elimination’.²³ The New Zealand settlers relied extensively on Māori labour and on trading with Māori for food and goods. Māori were vital to the newly established settler economy. As Ian Pool has noted, it was not the expulsion of Māori as such, but the transfer of resources from Māori to Pākehā, which underpinned eventual European hegemony.²⁴ Nor did the physical settlement of New Zealand proceed by way of a simple forceful taking of land. There was at least a general agreement that sale and purchase was formally the preferred means.²⁵ Nevertheless, the opening up of New Zealand to quantities of settlers could not occur without vast transformation. In order to render New Zealand fit for settler colonisation, refashioning was required. Importantly, it was thought that settlement and investment required security and a guarantee of law and order. The physical transformation of New Zealand, therefore, was necessarily predicated on an accompanying refashioning of the legal landscape. What was required was not just to import British law but to impress it on Māori – to the detriment of existing local legal orders.

The second fact informing imperial expansion was, coincident with the phenomenon of settler expansion, the rise in the first part of the nineteenth century of philanthropic initiatives seeking to protect indigenous peoples (‘aborigines’) from the worst ravages of settler colonialism.²⁶ This found its ultimate institutional expression in the House of Commons Select Committee on Aborigines (British Settlements), which handed down its final report only three years before the formal settlement of New Zealand.²⁷ This report was connected to the creation of institutions such as the Aborigines’ Protection Society. In the early 1830s, the long-running anti-slavery campaign was reaching its end, and attention had already begun to shift to the position of indigenous peoples in the various British colonies, particularly in the south: the Cape, New South Wales, Van Diemen’s Land, and the ‘Islands of the Pacific’, including New Zealand. The Committee’s report was forged within a broad framework of ‘amelioration’ and ‘protection’ (although these hardly had settled meanings), just as had been earlier attempts to improve and regulate the lives and working conditions of slaves. There was an increasing expectation that protection could be furthered by assimilatory policies, designed to amalgamate indigenous populations into the body of the settler state and, perhaps more importantly for present purposes, into the body of the law of the settler state. One important, but under-explored, aspect of the Committee’s report and the commentaries which followed was the idea of exceptionalism and exceptional laws. Various regimes, laws and institutions were suggested, designed to modify British law as applied to indigenous populations, as one facet of a broader goal of legal assimilation.

Colonial administrators, both in England and in New Zealand, recognised the clear distinction of Māori on the scale of civilisation from their Australian counterparts.²⁸ Māori were seen as having strong capacity for improvement in levels of civilisation. As New Zealand was formally settled at the height of the movement to protect the indigenous inhabitants of the Empire from the disasters of settler colonisalism, it is unsurprising that in the 1840s New Zealand became a virtual ‘laboratory’ for the implementation of exceptional legal schemes intended to aid assimilation. Exceptional laws, could, for example, provide exemptions from English criminal law, particularly in terms of procedure and penalties such as hanging.²⁹ In introducing the Native Exemption Ordinance, designed to modify criminal procedure as applied to Māori, to the Legislative Council in 1844, Governor FitzRoy reminded members that such a measure was possible because ‘no other colony produced Native inhabitants so well informed as the Natives of this colony’.³⁰ The Native Exemption Ordinance was only one of several regimes implemented in the Crown colony period. During the 1840s, views as to how best to effect legal assimilation shifted (as did the question of just what that assimilation might look like), largely as a response to levels of Māori resistance to colonisation, caused in part by European incursion onto Māori cultivations. It is the contention of this book that one of the most important sites of assimilatory practice was the new colonial courts, underpinned by New Zealand’s exceptional regimes.³¹

The new settler courts were, for both Māori and Europeans, significant sites of encounter in the new colony. This was so for a number of reasons. Most obviously, they were an important place of social engagement and public participation with law. David Lemmings has recently reminded us that while modern courts are the domain of lawyers, this was not always so. In the early modern period they were places of ‘noise and disorder’, not just places of law, but of public theatre. By the nineteenth century, trials may, in England, have been less of a spectacle, but courts were not yet the rarefied places they have become. They were, however, on their way to taking their current form. Barristers more commonly appeared and the matter progressed as a more ‘formally structured dialogue between cases for the prosecution and the defence’. This did not mean, however, that public participation had ended. As Lemmings argues, rather than participating directly in the theatre of the courtroom, from the early nineteenth century people in England increasingly engaged with court proceedings by means of the newspapers, pamphlets and periodicals which reported on crime.³²

By the time New Zealand was formally colonised, goings-on in court had, as in England, taken on the familiar modern form. However, while they only occasionally descended into the chaotic, there was still a significant personal engagement with courts beyond reading second-hand accounts in the press. In a small colony many of the settlers were involved in court processes. They prosecuted their claims, defended their debts, acted as general and special jurors, and appeared as witnesses. With the exception of acting as jurors, Māori similarly occupied such roles. Māori and settlers did not come to court, however, just when their interests were at stake. They also attended cases of ‘public interest’. In the first half of the 1840s this particularly included cases in which Māori were involved. The appearance of Māori before the new courts often raised, both formally and in popular discussion, contentious questions as to the amenability of Māori to British law. Questions were asked not only as to whether they could be subjected to the new laws, but whether they should be. Settlers and Māori alike were vocal in their opinions, and where Māori were involved the courts were often overflowing. In tiny courtrooms, Māori and settlers sat cheek by jowl, observing proceedings. There was also the undoubtedly disturbing (and maybe tantalising) possibility of Māori disrupting proceedings and the accompanying spectacles. On several occasions Māori were ‘rescued’ by their iwi and whisked out of reach of the authorities.³³

As in England, cases were also enthusiastically reported in local newspapers. Editors of various political persuasions discussed legal issues at length and put their own spin not just on matters before the court but also on government ordinances and policy. Discussions were often detailed and delved into difficult technical legal matters. Some editors were knowledgeable. Richard Hanson, for example, a barrister and Wellington Crown Prosecutor (and later Chief Justice of South Australia), was for several years the editor of the New Zealand Colonist and Port Nicholson Advertiser. However, even where discussion was of dubious legal worth, opinions were defended vociferously, sometimes acrimoniously, and settlers and Māori alike weighed in through the correspondence columns. High rates of literacy among Māori enabled their participation in these discussions. The colony’s courts may not have been the chaotic places of public engagement of earlier times in other places, but they were certainly significant sites of social encounter, and political argument. As Damen Ward reminds us, colonial courts were ‘sites of authority and adjudication that could be used in political debate’. Access to courts was consciously used for the purposes of testing (and attempting to limit) official authority, such as that of the Governor. Litigants sought to deploy political tropes, such as ‘Britishness’ or ‘birthright’, in order to further strategic claims.³⁴ Litigation might be only one strand in complex political debates on settler (and Māori) ‘rights’.

That courts were sites of social and political engagement should not, however, overshadow the fact that they were more. Crucially, courts were key sites of juridical encounter. Here ‘juridical’ reminds us that courts are very specific places of law. Taking part in an action in court has particular consequence. Bringing a matter to court engages the jurisdiction of the law administered by that court and thus brings both the matter itself and the persons involved within the authority of that law. This is not merely a technical point. In modern law we tend to think of jurisdiction as being a simple matter of procedure – in which court, for example, should I commence my action? The answer to this might simply be a prosaic matter of determining the monetary limit of the particular court. But engaging jurisdiction is more meaningful than simply bringing something within the business of that court. Jurisdiction is key to the ordering of law (and laws). Jurisdiction brings someone or something to a particular law. It binds those persons or things to that law.³⁵ As such, jurisdiction figures a particular relation to law and a particular form of legal subjecthood.

Very few cases during the Crown colony period articulated any principles relating to the amenability of Māori to British law. The matter did not come before the Supreme Court until 1847, when Rangitapiripiri was tried for murder for the drowning of Kopereme. Justice Chapman determined that the court had jurisdiction over serious crime, such as murder. A similar decision was reached in Ratea in 1849, in which case Chapman also noted that ‘smaller matters’ of custom could be left to Māori law.³⁶ Such cases are important. Beyond establishing whether Māori were amenable to British law in the particular circumstances before them, these decisions provide crucial insight into judicial opinion as to the relations between important concepts such as sovereignty and jurisdiction and what they might look like in the particular context of New Zealand in the 1840s. But they should not be the sole focus of historical investigation. There has been a tendency by legal historians to focus too closely on doctrine and legal principle to the exclusion of other ways of thinking about what courts do. Too narrow a focus on legal doctrine deflects attention from the institutional practices which were a key element of the colonial process, and which did much to effect the uptake of British law, and the consequent displacement of indigenous laws.³⁷ Despite what one might think to be the gravity of these determinations, neither Rangitapiripiri, nor the similar decision of Ratea in 1849, appear to have ever had any real consequence beyond that to the immediate parties. They were not referred to in any subsequent decision, nor discussed in the ongoing policy debates of the time. Writing to Governor Grey a few days after the decision in Ratea, Justice Chapman did not even deem it worthy of mention.³⁸

But regardless of who, if anyone, paid attention to pronouncements of principle from on high, local courts got on with adjudicating claims and imposing penalties. Within a shifting policy framework established by metropolitan and local administrators, the inferior courts adjudicated small matters involving both Māori and Europeans as best they could. In order to see not just how, but where, jurisdiction over Māori was effected, then, we should look not to macro-, but rather to micro-, juridical encounters. What is important was not so much the nature of the matter before the court, but the fact that by attending the court the jurisdiction of that court was engaged. That engagement figured, then, a new and particular relation between the parties and British law. Each of these juridical encounters further brought Māori within the jurisdiction of British law. The coming of Māori, for a variety of reasons, to these new institutions, had the effect of beginning the slow displacement of traditional adjudicatory fora and, consequently, the places from which Māori law could speak.

Just as ‘juridical’ reminds us that courts are particular places of law, the use of the term ‘encounter’ is deliberate and is used in preference to other terms, such as meeting, or the increasingly popular ‘entanglements’.³⁹ In his The Meeting Place, Vincent O’Malley, for example, examines the meeting of two cultures and peoples – Māori and Pākehā – prior to 1840.⁴⁰ O’Malley looks to the extent to which there was exchange, dialogue and/or mutual accommodation, all things which might happen at a meeting. He looks for the ‘middle ground’.⁴¹ To the extent that there was a functioning middle ground, O’Malley suggests that its preconditions were most likely met in the period 1814 to 1840, and in a weaker form for some years beyond. He concludes that to the extent any such middle ground or meeting place existed it inevitably gave way, as it did in other colonies, to more coercive forms of colonisation.⁴²

In contrast, in his Entanglements of Empire, Tony Ballantyne has preferred the language of entanglement to ‘meeting’ or ‘encounter’. He suggests that the language of ‘meetings’ or ‘encounters’ too readily suggests these ‘as moments when relatively fixed and stable cultures came together’.⁴³ As an analytical framework, ‘encounter’, he argues, underplays the ways in which ‘engagements on imperial frontiers were acts of negotiation and translation’, and the ‘fluid and often mercurial nature of power relations in early New Zealand’.⁴⁴

The coming of Māori to the new courts engaged the jurisdiction and hence the authority of British law. These courts, superior and inferior, were places established by the British and in which their law was administered. What occurred was less of a meeting and more of an imposition. While O’Malley uses the terms ‘meeting’ and ‘encounter’ interchangeably, it is suggested that there is a meaningful semantic difference. In contemporary discourse a meeting might, for instance, invoke some idea that participants to that meeting ‘get on’ in some way. The participants are happy to be together, or at least there is some liking or potential liking. If there is no liking then perhaps the coming together is mutually productive of something. It might involve some form of negotiation (as suggested by O’Malley). If not productive, then meeting might (or should) denote at least a recognition; that both parties recognise each other in that place in some way for some purpose, good or bad. Christine Black, a Kombumerri/Munaljahlai scholar, would go further. She would contend that a meeting requires witnessing – in this context the witnessing by one law of another.⁴⁵ Witnessing, therefore, requires knowing something of the laws (or person) with which (or whom) you wish to engage.⁴⁶

In this book, then, the term ‘encounter’ is preferred to the language of ‘meeting’ or ‘entanglement’. Encounter is less suggestive of dialogue or accommodation, on the one hand, or negotiation and translation on the other. When Māori came before the new settler courts there was no genuine meeting – there was no exchange and no witnessing of one’s laws by another. There was an imposition of law. Further, while the forces which led to the creation of these particular courts in these particular places were indeed the result of Empire-wide forces, of cultural negotiation and translation, and the complex reasons why Māori attended the courts were undoubtedly the result of the same, at the moment of adjudication there was, yet again, an imposition. Jurisdiction was taken, law was administered, and a determination was made under the authority of British law. In the courts encounters were decided according to the authority and rules of the law of those courts.

In the main, recent studies on jurisdiction over indigenous peoples have centred on the imposition of criminal law as a form of colonial governance.⁴⁷ In all Anglo-settler colonies, including New Zealand, the criminal law was a key vehicle through which to impose British legal authority over the local indigenous population. The policy framework within which that occurred, and the crafting of the legal regimes through which the criminal law was imposed, however, varied significantly from colony to colony. In New Zealand, regardless of whether or not Māori were formally amenable to British law, the British did not have the capacity to enforce that law. One response was the enactment of the first ‘exceptional’ legal regimes, by means of which criminal law and procedure were modified significantly in their application to Māori, treating them as exceptions to the general rule that all should be equally amenable to the same laws.

However, while the criminal law was a key mechanism by means of which the British could assert legal authority, too close a focus on criminal law as a tool of governance alone risks distorting any understanding of Māori engagement with British law and the ways in which lawful British authority was established. First, and perhaps rather obviously, Māori themselves turned to the criminal law from the outset. Only a few months after the signing of the Treaty of Waitangi, for example, Wiremu Tako (Wi Tako), a Ngāti Awa rangatira, appeared as complainant in an action for assault against a settler in the local Police Magistrates Court.⁴⁸ This was not an isolated case. Some of the earliest recorded interactions in the new Police Magistrates Courts (the only courts in New Zealand at the time) feature Māori, rather than Europeans, as complainants. That Māori laid informations and sought to hold settlers accountable for breaches of the criminal law does not detract from the idea of criminal law as a tool of governance. But it does complicate the picture of how we might understand that process, and reminds us that the assertion of jurisdiction, and the establishment of legal authority in the new colony via the criminal law, was neither straightforward nor even.

Moreover, the formal engagement of Māori with British law in the new settler courts was just as likely to be on the civil side as it was via the criminal law. Māori sued, and were sued, for civil debts. In the main these encounters were between Māori and Europeans, although there are a small number of important disputes between Māori in this period. A myriad of court returns record the claims for unpaid goods and unpaid wages, the payment of IOUs and the non-specific ‘balances of account’ which brought both sides to court. It was not unusual for two parties – Māori and European – to meet in court more than once per month, taking turns as plaintiff and defendant. Māori likely had many reasons for coming to British law: strategic engagement as a gambit in the dance of intra-Māori politics; as a reaction to the gradual erosion of the traditional authority of rangatira as a result of British colonisation; the avoidance of traditional (and often violent) punishments for socially unacceptable behaviour (such as adultery); an inevitable ‘cost’ of participating in the new settler economy; or even the simple desire of some Māori (often Christianised) to cleave to the ‘Queen’s Law’. We may never know. With the coming of the new legal system it was inevitable that Māori would be forced to engage with that law. Any recognition of ongoing Māori power and resistance cannot obscure the impact of the introduction of British law on Māori law and society. Despite this, there was no predictability as to how Māori would choose to engage with the new institutions or the ultimate shape of that engagement, or of the outcome of so doing. The ‘forum shift’ was one facet of a (re)shaping of fundamental questions of legal authority: of which law spoke, when, and for whom.

Part I of this book, entitled ‘Whose Law? Which Law?’, looks at the views of different metropolitan and local administrators as to which law applied to whom, and in what circumstances, in New Zealand in the 1840s. It tracks the main legal and intellectual forces