First published in 1974, A Show of Justice remains the essential and definitive text on official policies towards the Māori people in the nineteenth century. Professor Ward shows how an understanding of the past explains why Māori today, formally equal under the law, continue having to demand rights assured under the Treaty of Waitangi and why major issues have yet to be recognised and addressed. A Show of Justice also has a glossary of Māori terms, a full index and notes.
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About the Author
Alan Ward grew up in Turanganui-a-Kiwa. A graduate of Victoria University and the Australian National University, he is Emeritus Professor at the University of Newcastle, New South Wales. He has been involved as a historical consultant to the Waitangi Tribunal since the late 1980s and has written several books.
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A Show of Justice
Racial 'Amalgamation' in Nineteenth Century New Zealand
By Alan Ward
Auckland University PressCopyright © 1973 Alan Ward
All rights reserved.
The Traditional Scene
Any attempt to describe traditional Maori life before the arrival of Europeans is hazardous. The sources of evidence are largely the written observations of early European visitors and settlers, and the Maori oral traditions they have recorded. The fullest of these date from the mid or late nineteenth century, when the pre-contact pattern, and Maori informants' own recollections of that pattern, had already undergone subtle change. Moreover, as Sir Peter Buck observed, several waves of Polynesian migrants, dispersing through as large an area as New Zealand, or even the various 'canoes' of one migration, might be expected to show significant variety in values and institutions from district to district. The very concept 'Maori' itself of course, emerged after the Europeans' arrival. It must also be realised that Polynesian society was not static, but undergoing change during the dispersal through the Eastern Pacific. The migrants to New Zealand, in adapting to a cold climate and a relatively large land mass, passed through considerable social change, and this was continuing when Europeans arrived.
The following generalisations then, should be read in the light of these warnings. Yet it is probably still of value to attempt some description of traditional life, particularly as it relates to the main themes of this study, the building in New Zealand of a bureaucratic machinery of state, and English concepts of law and judicial institutions. There was, moreover, a basic Eastern Polynesian culture underlying local variety, and the various tribes were interconnected by language and through marriage and descent, which was traced through both male and female lines.
Anthropologists, and sociologists of law, have paid considerable attention to methods of social control in so-called primitive societies, part of their discussion centring about whether they can properly be called 'law'. An early view held that an individual had no real freedom of choice, his every action from birth to death being dictated by what has been called an 'iron mould' of hereditary and unchanging custom, reinforced by pervasive fears of the supernatural. Malinowski found, on living among the Trobriand Islands people, however, that this sense of circumscription was patently absent — that people acted with considerable freedom of choice, without an oppressive, ever-present fear of supernatural sanction. The deliberate breach of convention was even undertaken by daring men, as a calculated risk. Licence was prevented, however, and the community held together, by the principle of reciprocity — a sense of the interdependence, for most of the basic needs of life, among its members — which acted as a sufficient constraint on anti-social behaviour. Customary norms regulated social and economic life. Many of these were secular, involving the actions of men, not of deities and spirits, at least not directly; and they were flexible — subject to reinterpretation according to circumstances.
Nevertheless Malinowski came to admit that the need for reciprocity was not of itself sufficient to prevent wayward behaviour, and had to be backed by coercive sanctions. Within a kinship group a defaulter could be punished by withdrawal of community assistance, demand for compensation, beating, banishment, or, more rarely, by execution. Supernatural sanctions could also be invoked through sorcery. Disputes between kinship groups might be settled by payment of compensation, but if payment was withheld blood feud could follow.
Within many traditional African and Pacific societies the right of an injured party to take redress, and the techniques for securing it, were widely recognised and regularly exercised. Adamson Hoebel writes: 'A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting'. On this basis it is certainly reasonable to refer to Polynesian techniques of social control as 'law' or 'customary law', and nineteenth century Maori leaders, reflecting on their society in discussions with Europeans, often referred to 'our law' rather than to 'our custom'.
Many stateless societies, Polynesia among them, lacked specialised judicial institutions — courts or chiefs with specific functions — to pass and enforce judgments, and disputes were resolved mainly by the contending parties themselves. In this situation the strength of the parties greatly affected the outcome. Marshall Sahlins has written of Polynesia: 'The general underlying scheme regulating the application of sanctions to "wrongdoers" is not law, in the Austinian sense [of commands from a central sovereign source of power], but collective retaliation. Punishments, by necessity, vary with kinship backing and support musterable by the respective parties involved'. J. A. Barnes makes the important point that normally no one group could dominate the rest because cross-cutting systems of kinship and organisation 'ensure that a man's friend in one context could be his enemy in another; in any quarrel there are some who are friends of both sides'. This limited conflict, as did a general interest in maintaining relative order so that the economic life of the community and its very rich social and cultural activity could continue. Nevertheless Barnes also notes that 'stateless societies lack courts with power to enforce judgments, and are therefore described as lacking law in the strict sense; they are said to have jurai not legal institutions'. While the European system of law has its own irregularities (including the fact that the strongest group politically may erect legal disabilities against a minority, and that those with greater wealth are more readily able to resort to the courts), it is still convenient to use the unqualified term 'law' to denote a system in which disputes are adjusted not only by the parties themselves, but through a separate system of legal institutions substantially apart from the contending parties. That was the sense in which the British normally used the term, when they undertook to introduce 'law' in New Zealand and supplant Maori 'custom', and it will normally be used in that sense in this book, although it should be appreciated that British-type law is not necessarily much more regular than customary law in application, nor is its separation from other social institutions total.
M. B. Hooker has ably shown how traditional Maori jurai concepts and institutions were based on and derived much of their detail from the fundamental magico-religious beliefs of the society. His account tends, however, to imply rather more regularity and certainty in the jural order than was probably the actual case; traditional Maori society also illustrates the later views of Malinowski, and those of Sahlins and Barnes. The main functional political and economic unit was a hapu or cluster of hapu recognising the mana of a senior chief. Hapu, and the larger aggregation called iwi, were named from founding ancestors, possibly mythical and themselves descended from the who created and still acted in the world order. Hapu were comprised of closely related whanau or extended families. In some Maori kainga and pa, the central storage and defensible villages of hapu, low fences divided the compounds of the various whanau (see photograph of Koroniti village). Marriage was normally but not exclusively, within the hapu. Although the male line was preferred, descent was traced through both the male and female lines — a principle which extended the network of social relations widely and provided great flexibility.
Leadership in Maori society devolved on chiefs, rank and status normally being ascribed to those in the most direct lines of descent from the ancestor-gods and therefore inheritors of spiritual potency, or mana, and knowledge of the rituals to make it effective for the well-being of their kin. The chiefly principle was also flexible: the possession of mana was deemed to be revealed through efficiency in leadership, both in the peaceful arts — cultivation, fishing, hunting — and in war, in other words success in defending the resources of the lineage and promoting its well-being. Despite seniority of descent, ineffective men could be considered as lacking mana and effective chieftainship could pass to a younger brother or near kinsman who proved more resourceful, although the senior descendant might still be called upon to recite the rituals associated with the cycle of cultivation. Genealogies were manipulated to make a claimant to high rank appear close to the senior lines of ancestry.
The actual authority of a chief in a Maori Community was subtle and proved very difficult for early European observers to define. Maori society was not so highly stratified as in Hawaii or Tahiti where the ali'i (Tahitian ari'i) were a dominant and fairly exclusive social class. In New Zealand the term ariki was applied to some men of great rank and power but also to the first born son of a senior family, heir to the mana attained by close relation to the ancestor-dead. The senior chiefs could not stand back and give orders. Their lead or opinion was normally accepted, but the rangatira (the active heads of each extended family) and the kaumatua (elders) also had considerable authority in their own right. Although senior chiefs were normally deferred to by their kinsmen they were still dependent for economic and military strength upon reciprocal services with kinsmen, and they could not take independent decisions or persistently flout public opinion without risk of repudiation. In 1820 an English officer recorded that the leading chief of a hapu sent the daughters of two rangatira aboard a visiting ship in return for trade goods without their fathers' knowledge, but on going about the village 'he had been so severely reprehended for doing so, that he was obliged in his own defence to withdraw them'. Early observers then, who believed the chiefs to be despotic, or capable of giving orders or taking decisions for their people without consultation, were mistaken. There is merit in the observation that Maori society had only two classes, rangatira and slaves, the latter being prisoners taken in war — though even these were likely to inter-marry with their captors and their children would be free. Perhaps a better approximation was attained by an early Sub-Protector of Aborigines, Dr Edward Shortland, when he characterised Maori society as 'a democracy, limited by a certain amount of patriarchal influence'.
Yet, while a senior chiefs authority over other rangatira was limited, it was never unimportant and English settlers were as wrong to under-rate it as to over-rate it. Under traditional religion a high-ranking and powerful chief, a man of great mana, especially when recently engaged in his ritual duties (and more particularly those relating to death and burial) was charged with powers that made contact with him or his artifacts extremely precarious for ordinary men: he was tapu. The mana and tapu principles were the source of both order and dispute in Maori society. Kinship orientation and the community routine of cultivating, hunting and fighting were focused upon them. A chief was the recipient of wealth through gifts from his kin, and he distributed that wealth in feasts on important occasions. A chiefs power was a source of control which could be used to tapu property or person, to make a crop safe from trespass, to set aside a tree for canoe-building, or to conserve a stretch of forest or shell-fish ground for an important feast. The burial places of chiefs were highly tapu. These prohibitions were generally well-known to the members of the community whose chiefs created them, and would not normally be violated for fear of sickness or catastrophe which would follow as a result of the anger of the spirits and ancestor-dead. But strangers could unwittingly infringe tapu and the community whose sacred places were violated would be impelled to exact compensation from or even kill the intruder, lest their own offended ancestor-dead take retribution on them for the unrequited affront. Moreover, possessors of mana were impelled to demonstrate it, by boldness and by constant concern for their names and stations. This made chiefs, especially young and aspiring chiefs, enterprising travellers, entrepreneurs, adaptors and innovators when European material wealth and ideas came on the scene. It also made them highly sensitive to insult, slight, or diminution of status. A curse or execration (kanga) levelled at a chief (particularly at his head, the most sacred part of his person) was a frequent source of demand for compensation, or bloody retribution.
Theft was a further frequent source of dispute. Although few would dare touch the property of a high-ranking chief, according to early European observers, thefts often appear to have been committed in a spirit of boldness and daring, offenders often readily admitting their actions when challenged. Powerful people deliberately broke rules to prove that they were toa — strong men, possessed of great mana. The gods who measured conduct were after all, not like the all-good creator of the New Testament but more like the gods of the Old, jealous of name and reputation and concerned with avenging injury. Therefore, although there were widely accepted rights of person and property, it was not unethical to try to advance one's fortunes, or those of one's kin, by tricky conduct, as well as by manipulation of the network of reciprocal obligations. It was perhaps more shameful to be caught out, demon-strably to fail, and impair relations with another group, although some chiefs were indeed righteously indignant at false accusations of theft after European contact.
A greater sense of shame seems to have been felt by chiefs discovered to have committed adultery and this (perhaps the shame of having brought retribution on one's kin from the kin of the offended wife, as much as shame of the offence itself) seems to have been responsible for many suicides. Women were indeed a constant source of contention, taking precedence over land in the proverb 'by women and land men are lost'. There were complex disputes over conflicting claims to the betrothal of young women, over adultery after marriage, and over the future status of widows.
Land rights were also extremely intricate. Constant adjustment was required to accommodate the primary rights of a lineage born and resident on the land, the contingent rights of those who married or were adopted out of the lineage but later returned, the rights of their children who returned, and the rights of those who married into the lineage or were given permissive residence in time of war or migration. The rival claims of conquerors who settled on the land, and the conquered — or more particularly of the descendants of each — were particularly contentious. Although there was no land in New Zealand not claimed by at least one hapu, and some boundary marks were well-known and accepted, the extent of territory within which a hapu could cultivate and hunt became less well defined the further one drew from the central village. Between many hapu lay areas of disputed land left uncultivated.
The belief that the spiritual order constantly interacted with the material order extended to the view that sickness and death were caused by the withdrawal of protection, or the malignancy, of spirit beings. This could be due to some failure in action or ritual of the afflicted person or his kin, but was frequently held to be the result of sorcery by some adversary, and this too was a cause of conflict.
Maori society therefore held to be wrongs a number of actions which were not recognised as such in the English law of the nineteenth century. The imposition of a sharp differentiation between criminal and civil offences in Maori customary law is not helpful, because as we have seen, in the absence of a state or legal machinery, all disputes were adjusted between the parties themselves, and a greater or smaller circle of kinsmen. In this sense they could all be considered civil matters. On the other hand disputes between hapu, especially those leading to full-scale battles, had something of the character of war between separate 'states', and many early European observers did consider Maori society to be in a constant state of war.
Excerpted from A Show of Justice by Alan Ward. Copyright © 1973 Alan Ward. Excerpted by permission of Auckland University Press.
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Table of Contents
Glossary of Maori words,
1 The traditional scene,
2 Maori and Pakeha,
3 British annexation,
4 The introduction of English law,
5 Some concessions to Maori viewpoints,
6 Sharing state power,
7 Crisis in race relations,
8 Resort to war,
9 The 'new institutions',
10 Invasion of the Waikato,
11 Early effects of war,
12 Moderates in office,
13 The Native Department reduced,
14 Main lines of policy and practice,
15 McLean resumes power,
16 The McLean 'system',
17 Land legislation,
18 Maori initiative and frustration,
20 Maori administration transformed,
21 The end of an era,
22 Myths and realities,
A Native Ministers 1858-93,
B Native Secretaries (Under-Secretaries of the Native Department) 1856-92,
A note on primary sources,