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

2009; Routledge; Volume: 30; Issue: 2 Linguagem: Inglês

10.1080/01440360903069775

1744-0564

Shaunnagh Dorsett,

Colonialism, slavery, and trade

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 available on the practice of swearing on the dirt of graves. 48He notes that: ‘In 1842 a Chinese was sworn on a cracked saucer. [marginal note: at the old Baily [sic]]’: Chapman ‘Legal Notes’, 19. This latter example appears to be a reference to R. v Entrehman and Samut (1842) Car. & M. 249, 174 ER 493. Chapman may well have known of this personally as he was practising in England in 1842, although on the northern circuit. 49Chapman ‘Legal Notes’, 20. 50Clark, Summary of Colonial Law, 5. While Mansfield does write of laws contrary to ‘fundamental principles’, it is as a limit to prerogative power. In a conquered colony the king cannot introduce laws contrary to fundamental principles. The reference to torture may well be inspired by the Picton incident, in which Governor Picton of Trinidad was brought to trial in 1806, charged with inflicting torture in order to extort the confession of Louisa Calderon, a British subject. My thanks to Damen Ward for suggesting this connection. Chapman requested his father purchase a copy of the Picton trial and send it to him in Wellington. 51Ibid., 6. 52Chapman ‘Legal Notes’, 23. 54 Southern Cross, 17 June 1843, reproduced in the Nelson Examiner, 12 Aug. 1843, 299. The Southern Cross began as a weekly paper in 1843 in Auckland. 53Ibid., 23–24. 56 Nelson Examiner and New Zealand Chronicle, 3 Oct. 1846, 122. 55While newspaper editorials are a rich source of data, care must be taken in considering whose views are represented. On this issue generally see Duncan Bell, ‘Empire and International Relations in Victorian Political Thought: Historiographical Essay’, 49 Historical Journal (2006), 281. 57Wakefield, Adventure in New Zealand, 332. 58 New Zealand Spectator and Cook's Strait Guardian, 4 Dec. 1847, 2. 59On the ‘degeneration’ of ‘law’ into ‘custom’ in the context of indigenous normative systems see Peter Fitzpatrick, The Mythology of Modern Law, London, 1992. 60See Anthony Pagden, Lords of All the World, New York, 1995; Anthony Pagden, ‘Dispossessing the Barbarian: the Language of Spanish Thomism and the Debate over the Property Rights of the American Indians’, in Anthony Pagden, ed., The Languages of Political Theory in Early-Modern Europe, Cambridge, 1987. 61Jonathan Bush, ‘“You're Gonna Miss Me When I'm Gone”: Early Modern Common Law Discourse and the Case of the Jews’, [1993] Wisconsin Law Review, 1225, 1259. 62 Le Case de Tanistry (1608) Davies 28, 80 ER 516. Tanistry was the name given by contemporary English observers to the practice under which Irish succession devolved through the male line (agnatic descendants of a common grandfather) to the most worthy male member of the extended kin group. This sat in stark contrast to primogeniture. The actual ‘abolition’ of tanistry was effected not by this decision, but by extra-judicial resolution of the judges in 1606: see generally Shaunnagh Dorsett “‘Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’, 26 Melbourne University Law Review (2002), 32. The case proceeded on the agreed basis that the English common law had entirely abolished the barbaric Irish, or the so-called Brehon, law, even though it was a Christian country according to Calvin's Case. Only selective customs could be argued to remain, recognised as common law custom according to the usual evidential requirements set out by Sir Edward Coke. No decision was ever handed down. 63See McHugh, ‘Aboriginal Rights of the New Zealand Maori’, 154–155. 64See Deborah A. Rosen, ‘Colonization through Law: The Judicial Defence of State Indian Legislation, 1790–1880’, 46 American Journal of Legal History (2004), 26; Sidney L. Harring, Crow Dog's Case: American Indian sovereignty, tribal law, and United States law in the nineteenth century, Cambridge, 1994. 65 State v Foreman (1835) 16 Tenn. 256, Supreme Court of Tennessee, Catron CJ: ‘…but the controlling and conclusive position assumed as the basis of that judgment, that the Indian nations were distinct and sovereign political communities, independent of the States, is confidently believed to be incorrect, and that sooner or later it must be abandoned’, at 335. 66Ibid., 283–284. See also Wall v Williamson (1845) 8 Ala. 48. 67See, for example, Caldwell v The State (1832) 1 Stew. & P. 327; United States v Cisna (1835) 25 F. Cas. 422; State v Tassels 1 Dud. 229; Rosen, ‘Colonization through Law’; on Tassels, see Ford, Settler Sovereignty. 68Ford, Settler Sovereignty, 139. 69 R. v Murrell (1836) 1 Legge 72. 70For denials of jurisdiction see: R. v Ballard, unreported decision of the Supreme Court of New South Wales, 13 June 1829, per Forbes CJ and Dowling J. A transcript of the notebook of Dowling J has been provided by Bruce Kercher in 3 Australian Indigenous Law Reporter (1998), 412; R. v Boatman or Jackass and Bulleye, Dowling J, Supreme Court of New South Wales, 23 Feb. 1832, available at accessed 26 May 2009; R. v Bonjon, published in 3 Australian Indigenous Law Reporter (1998), 417; see also Ford, Settler Sovereignty. On South Australia see Ward, ‘Judicial Constructions’. For assertion of jurisdiction see, for example, R. v We-war, 12 Jan. 1842, Supreme Court of Western Australia, sourced from The Inquirer, 12 Jan. 1842, available at accessed 26 May 2009; R. v Peter (1860), reported in the Argus, 29 June 1860, and the Herald, 29 June 1860; R. v Jemmy (1860), reported in the Argus, 7 Sept. 1860, reported in the Age, 7 Sept. 1860. 71See Ford, Settler Sovereignty. 72On the natural law sources in Ballard and other early cases in New South Wales see Ian Hunter, ‘Natural Law, Historiography and Aboriginal Sovereignty’, 11 Legal History (2007), 137. 73 New Zealand Spectator and Cook's Strait Guardian, 4 Dec. 1847, 3. Chapman's notebook only contains a transcript of the evidence, not the legal principles applied. 74Ibid., 5 Sept. 1849, 3, and in substantially similar terms the Wellington Independent, Sat. 8 Sept. 1849, 3. 75Stephen to Hope, 28 Dec. 1843, PRO CO 209/22, 247, 253; Chapman ‘Legal Notes’, 16–17. 79 New Zealand Gazette and Wellington Spectator, 8 March 1843, 3. 76Parata-Wanga's death was first mentioned in the New Zealand Colonist and Port Nicholson Advertiser, 20 March 1843, 2. The coroner's inquest took place on 20 and 21 March 1843, and is reported in the New Zealand Colonist and Port Nicholson Advertiser, 24 March 1843, 2. Occasional mentions of Ratea are made between 1843 and 1849. He is noted, for example, as being the ‘robber’ of some huts at Makara in 1844: see police court deposition (given to M'Donough, Esq., chief police magistrate) by William Ed Vincent, 11 July 1844: New Zealand Gazette and Wellington Spectator, 17 July 1844, 3. He was eventually arrested on 2 August 1849. The matter is mentioned in passing in several early accounts of New Zealand: Thomson, The Story of New Zealand, 175–176; Wakefield, Adventure in New Zealand, 332. 77 New Zealand Colonist and Port Nicholson Advertiser, 20 March 1843, 2. Although the paper is dated 20 March, it may in fact have been misdated. The correct date is most likely 21 March 1843. 78Ngati Toa are the iwi whose territory in the 1840s extended throughout the Wellington and Kapiti region to the north part of the South Island. Rangihaeata was a prominent Ngati Toa leader. In 1842 Rangihaeata pulled down some houses near Porirua, claiming the land was his: Michael Murphy (chief police magistrate) to Shortland, PRO CO 209/24: 31. Thomson claimed that in 1842 a warrant was issued against Rangihaeata but ‘no bailiff would execute it’: Thomson, The Story of New Zealand, 42. This is probably the same incident. 82 New Zealand Gazette and Wellington Spectator, 19 Oct. 1842, 2. Interpreters had been provided. 80Martin to Shortland, 2 Dec. 1843, PRO CO 209/24: 41–44. The ordinance at issue was Police Magistrates Ordinance 5 Vic. no. 4 (1842), s. 4, which provided that any person committed or held to bail should be brought before the police magistrate of the district, who could either commit, bail or release the accused, or dismiss the case. Three months later, Thompson, the police magistrate in Nelson, issued a bench warrant against Rangihaeata and Rauparaha for arson. This was, in part, the spark which led to the Wairau Massacre. Thompson was killed at Wairau. In part as a response to Wairau, FitzRoy enacted the Native Exemption Ordinance, No. XVIII, Session III (1844) which, inter alia, provided specific procedural provisions for Maori in criminal matters. See n.91 below and accompanying text. 81 R. v E Poti, 7 Oct. 1842, Supreme Court, Wellington, Martin CJ, reported in New Zealand Gazette and Wellington Spectator, 19 Oct. 1842, 3. 83Martin to Shortland, 2 Dec. 1843, PRO CO 209/24: 41–44. 84However, the local iwi threatened to kill Maketu as revenge for her death. In view of this, Maketu was surrendered to the coroner: Lennard, Sir William Martin, 17. 85 New Zealand Colonist and Port Nicholson Advertiser, 20 March 1843, 2. 86Literally ‘half-tongue’ – a mixed jury. A request for a mixed jury had also been rejected in R. v Pakewa, above, n. 21, and R. v Maketu, above, n. 7. The Jury Amendment Ordinance 7 Vic., no. 2 (1844) provided for regulations to be passed permitting Maori to sit on mixed juries in the ‘trial of any case civil or criminal in which the property or person of any aboriginal Native of New Zealand may be affected’. The regulations were not passed. On mixed juries see Marianne Constable, The Law of the Other: the mixed jury and changing conceptions of citizenship, law and knowledge, Chicago, 1991. 87 Ratea, Chapman ‘Notebook’. 88An Act to Make Further Provision for the Government of the New Zealand Islands, 9 & 10 Vic., c. 103 (1846). 89Earl 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. 90Resident Magistrates Courts Ordinance No. XVI, Session VIII (1846). 91Native Exemption Ordinance; Ward, A Show of Justice, 74, and generally ch. 6. 92Native Exemption Ordinance, s. 1. Resident Magistrates Ordinance, ss. 7–9. 93Native Exemption Ordinance, s. 9; Resident Magistrates Court Ordinance, ss. 10, 11. For an example of the application of the penalty provisions under the 1844 ordinance see R. v E Hipu, 1 Dec. 1845, Supreme Court, Wellington, Chapman J, notebook entitled ‘Criminal trials No. 1’, 1844–45, HL MS-0411/009, 101–107 (ordered to pay fine of £8 for stealing). 94Resident Magistrates Ordinance, ss. 19–24. The resident magistrate sat with two native assessors as a court of arbitration. 95On the dominant strands of ‘exceptionalism’ and ‘assimilation’, and the positioning of Earl Grey and Governor Grey within these not entirely discrete modes of thought see Ward, ‘Means and Measure’, 8–10. 96Earl Grey to Governor Grey, 23 Dec. 1846, HCPP 1848, vol. 38, no. 763, 64–71. 97Resident Magistrates Ordinance, long title. 98See Harry Arthurs, ‘Special Courts, Special Law: Legal Pluralism in Nineteenth Century England’, in G.R. Rubin and David Sugarman, eds., Law, Economy and Society, 1750–1914: essays in the history of English law, Oxford, 1984. 99Dorsett, ‘Thinking Jurisdictionally’, ch. 7; Dorsett, ‘Since Time Immemorial’. For the classic articulation of this see Matthew Hale, The History of the Common Law of England, and An Analysis of the Civil Part of the Law, Charles Gray, ed., Chicago, 1971, 18 (first published 1713). 100Above, n. 45. 101Paul McHugh, ‘The Common-Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past’, 61 Saskatchewan Law Review (1998), 393, 422, 402. 102Stanley to Shortland, 21 June 1843, HCPP, 1844 vol. 13, no. 556, app., 475. 103Chapman ‘Legal Notes’. The ‘legal difficulty’ referred not only to the opinion of Swainson, the attorney-general, above, n. 14, but of Chapman himself. Chapman's views on the treaty will be the subject of a forthcoming article. 104 Ruding v Smith (1821) 2 Hag. Con. 371, 161 ER 774. 105McHugh, ‘The Common Law Status of Colonies’. For a discussion of birthright theory and the colonies see McHugh, ‘The Aboriginal Rights of the New Zealand Maori’, 131–142. 106See H.S. Chapman, ‘What Law Does a New Colony Take’, Chapman Papers Relating to Cases and Land Sales, ATL MS-Papers-8670-046 (original in ATL MS-Papers-8670-06). From content, it was written post-1854. This document does not refer to the status of Maori, but rather concerns the rules on importation of the common law to a settled colony such as New Zealand. 107Ward, ‘Means and Measure’, 14. Laidlaw, Lester and others have pointed recently to the web of connections throughout the colonial world. As in other colonies, in New Zealand information about matters abroad was eagerly sought and often published in the local newspapers: newspapers from other colonies; dispatches; excerpts from personal correspondence were just some of the ways in which news was disseminated. Major legal treatises were acquired by judges around the empire. See Zoe Laidlaw, Colonial Connections 1815–1845: patronage, the information revolution and colonial government, Manchester, 2006. But this should not be over-read. There is little evidence that judges such as Chapman knew of the day-to-day decisions of courts in other jurisdictions, that matrix of decisions and local practices that together were so important in constituting sovereignty: see also Ford, Settler Sovereignty. 108Chapman ‘Legal Notes’, 1–2. 109 Johnson v M'Intosh, above, n. 30. On the long acceptance in the American colonies of the doctrine generally see Robert J. Miller, ‘The Doctrine of Discovery in American Indian Law’, 42 Idaho Law Review (2005), 1. 110 Cherokee Nation v Georgia, 5 Pet. 1 (1831) 30 US 1 (1831); Chapman wrote on the Cherokee Case in ‘The English, The French and the New Zealanders’. 111See also J.G.A. Pocock, ‘Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi’, 43 McGill Law Journal (1998), 481. 112Dorsett, ‘Thinking Jurisdictionally’, ch. 7. 113Cf. Hickford, ‘Making “Territorial Rights of the Natives”’. 114 New Zealand Spectator and Cook's Strait Guardian, 13 Oct. 1847, 3. 115Ibid. 116However, it was reported that the ‘trial excited a very great interest among the natives who attended the Court in considerable numbers’: New Zealand Spectator and Cook's Strait Guardian, 5 Sept. 1849, 3. 117 Nelson Examiner and New Zealand Chronicle, 3 Oct. 1846, 122. 118On this period generally see Ward, Show of Justice, ch. 6. 119 New Zealand Spectator and Cook's Strait Guardian, 5 Sept. 1849, 3; Wellington Independent, 8 Sept. 1849, 3. 120‘Correspondence from Henry Samuel Chapman to George Grey’, 1848–70, Auckland City Library manuscripts and archives GLNZ C1-C10 vol. 6, letter dated 10 Sept. 1849. Additional informationNotes on contributorsShaunnagh Dorsett My thanks to Megan Simpson, Damen Ward, Mark Hickford and George Lafferty for the various conversations. I would also like to thank the anonymous reviewers for their helpful comments. All errors remain those of the author. Some of the materials in this article have been recovered by the New Zealand Lost Cases Project. This project is funded by the New Zealand Law Foundation, and seeks to recover Supreme Court cases, and contextual materials relating to those cases, from 1841 to 1883. Source materials, cases and other general information are available at accessed 26 May 2009.