The Littlewood Treaty, The True English Text of the Treaty of Waitangi, Found

Chapter: Précis 1 2 3 4 5a, 5b, 5c, 5d, 5e 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Lord Normanby's Brief Additional Resources

Chapter 9

TREATY DRAFTING ADVISORS AND PARTICIPANTS

Historian Dr. Claudia Orange writes:

‘Hobson, therefore expected missionary cooperation and received it in full. By the evening of 3 February, when he held several sets of notes from which the final treaty draft had to be selected, he had been visited by a number of missionaries - Henry Williams, Charles Baker, George Clarke, William Colenso and Richard Taylor of the CMS, and the Wesleyan James Buller who was passing through. Any or all of these men may have influenced the treaty’s wording. But it was William’s presence on the Herald that Hobson had first requested, and had he sought advice on the final treaty wording, it was to Williams, head of the CMS mission, that he was most likely to refer.
The role that Williams played in final decisions of the English draft will probably never be known precisely. Nor can any trace be found of the final English draft put together on the Herald’ (see: The Treaty of Waitangi, by Claudia Orange, pg. 39). Underlining added.

Historical documentation does not seem to support the statements of Dr. Claudia Orange or other leading treaty historians that the drafting of the finalised English treaty text took place aboard H.M.S. Herald. To the contrary, Freeman’s despatch titles indicate Hobson was not aboard during the night of the 3rd when much of the final treaty discussion took place. Nor was he on H.M.S Herald throughout most of the following day, when the final draft was fully completed by Busby and handed to Reverend Williams, by Hobson, for translation into the Maori language. If any kind of formal gathering aboard ship had been anticipated and organised, then it’s probable there would have been, at least, some scant mention of it in the H.M.S. Herald log. There is no such entry concerning a shipboard conference and the log records only the passenger ship Diana arriving from Sydney, rigging the large tent ashore for the treaty assembly on the 5th, crew employed making paint, activities of the carpenter, ropemaker and sailmaker, then mooring the ship at sunset.
The despatches prepared by James Stuart Freeman, Hobson’s personal secretary, were written ashore on the afternoon of the 3rd and morning of the 4th of February 1840. Hobson also finalised an agreement on the 4th for long-term rental of Busby’s two room cottage at Kororareka.

On the Monday night, with the treaty assembly only one full day removed, Hobson was under considerable pressure to finalise the English wording and get it translated into the Maori language by the morning of the 5th of February. He was completely out of time, with only one day left beyond the evening of the 3rd of February 1840.

Ian Wards, former Head Government Historian, who virtually lived and researched at the National Archives from 1948 until after retirement, well into the 1990’s, states in his 1968 book:

‘A Treaty, soon to be known as the Treaty of Waitangi, was prepared with the co-operation of Busby, J.R. Clendon and two missionaries, H. Williams and A. Brown’ (see Shadow of the Land, by Ian Wards, Wellington, 1968, pg. 42). Government Historian, Ian Wards lists one of his sources as, James. Rutherford, The Treaty of Waitangi.

Although the documented evidence shows that Clendon was involved, there doesn’t seem to be much to indicate that Reverend Alfred Nesbit Brown of Tauranga mission had any input. According to a suggestion proffered by Dr. Phil Parkinson, Ian Wards was probably referring to Captain Gordon Brown, who transported goods for the C.M.S Mission. Gordon Brown later provided a back-translation of the Maori treaty that was used in April 1840 for comparative reference by James Reddy Clendon and Commodore Charles Wilkes. Twenty years later, Donald McLean also used Gordon Brown’s back-translation and Dr. Parkinson further suggests that this was, seemingly, in preparation for the Kohimarama Conference, initiated by Governor Gore Brown and held in early July 1860.

The four primary players in the final English drafting of the Treaty and its subsequent translation into Te Tiriti O Waitangi were, in the preceding montage, Top left: Captain William Hobson (Lieutenant-Governor), Top right: James Busby (British Resident). Bottom left: Reverend Henry Williams (Head of the C.M.S. Mission and official translator). Bottom right: Captain James Reddy Clendon (U.S. Consul, upon whose paper the Littlewood Treaty was written. The pictures are very representative of how these gentlemen looked at the time the Treaty of Waitangi was produced.

It is apparent that Hobson pre-planned a gathering of some sort, to seek counsel from senior missionaries and leading local dignitaries, foremost of whom were Busby and Clendon. Some senior missionaries gave opinions while in transit or, possibly, tarried longer on the night of the 3rd of February to help in the treaty brainstorming discussions. Others, like William Colenso, are said to have had input during these two days of finalising the English draft.

James Stuart Freeman, Hobson’s private secretary was in attendance during discussions of the 3rd & 4th of February, although he was, probably, otherwise engaged in preparing despatch letters for Sir George Gipps.

Despite the fact that H.M.S. Herald stood directly off Kororareka township, going ashore or returning to the ship, was not necessarily an easy task, especially in unsettled weather. It’s quite obvious that when Hobson’s party went ashore on this occasion in the late afternoon of the 3rd of February they had no intention of returning to the ship later in the dark of night. If a treaty draft writing and finalising conference had been pre-planned in preceding days, then Hobson could not have confidently anticipated it be held aboard H.M.S. Herald. Moderately bad weather would have negated any possibility of the landlubber advisors reaching the ship or returning home afterwards. Felton Mathew described the physical characteristics of Kororareka Bay, which gives us some idea of the logistics or difficulties incurred when going to and fro, ship to shore:

‘The principal, and indeed the only settlement yet formed in the Bay of Islands is at “Kororarika,” a small bight which is shown on the Admiralty chart: and to this point my attention was in the first place directed, as being the spot in which the majority of the present European population is concentrated. It is, in my opinion, open to many formidable objections, which unfit it for a principal settlement, and preclude the possibility of its ever becoming a place of other than secondary importance.
The water, in approaching the beach, is very shallow, so that it is impossible for even small vessels to approach within a considerable distance of the shore, which is fully exposed to the north and north westerly winds and on which there is frequently so much surf as to render it difficult, if not impossible for a boat to effect a landing’ (see Enclosure 1, in No. 41, B of Islands, N Zealand, 23 Mar. 1840).

The important role played by Clendon.

The natural and logical venue for a final drafting session, incorporating a sizable group of participants, was the spacious 8-room home of James Reddy Clendon at Okiato. Alternatively, Busby’s cottage at Kororareka might well have proved to be more than adequate for discussions and a treaty brainstorming session on the night of the 3rd of February. We know that James Reddy Clendon also had a cottage at Kororareka by 1845 and, conceivably, owned it on February 3rd 1840.

Reverend’s Richard Taylor and George Clarke took tea with Clendon at Okiato on the 4th of February, as mentioned in Taylor’s diary, so these two senior missionaries were, certainly, still in the area on the Kororareka side of the bay. Clendon was entertaining an American Lieutenant at the time of the missionaries’ visit. Taylor’s diary entries for the 3rd and 4th of February state:

‘Feb 3rd. I went with Mr. Clark to Paihia to pay our respects to our new Governor. We went to Kororareka in the morning and spent so much of the day there that we hesitated proceeding to the Herald to call on the Governor; As however Mr. Williams was on board we went and received a gracious reception. Captain Hobson appeared very communicative and was very courteous. We stayed tea on board.
4. We went with Mr. Palmer on board the Samuel Winter and dined there afterwards we went to Mr. Mair We were nearly swamped by our stupid boys running the mast of the boat against the boom of the vessel. Captain Robertson the commander of the vessel was a gentlemanly person. We took tea at Captain Clendon’s, where I met the 1st Lieutenant of the American Squadron now at Sydney’ (see Reverend Richard Taylor’s Diary, Auckland Institute & Museum).

When Taylor mentions, “we stayed tea aboard”, he probably means afternoon tea.

The American First Lieutenant, plausibly from Commodore Wilkes’ expeditionary squadron had, apparently, come over on H.M.S. Samuel Winter to be an observer at the Treaty assembly and this same officer attended proceedings on the 5th of February. Richard Taylor wrote in his diary entry for the 6th of February:

‘Yesterday an American naval officer attended but left before a single favourable speech was made’.

The primary participants in the drafting of the 1835 Declaration of Independence for the Confederation of United Chiefs had been Busby, Williams, Clarke and Clendon. With the proposed, Treaty of Waitangi now emerging to supplant the 1835 legislation, it seems obligatory that Clendon would have been invited, by Busby, to participate in this new incentive.

As the leading and most influential merchant in the district, Clendon had befriended Busby in 1833 and continuously supported his attempts to bring law and order to the district. Captain Clendon, an Englishman acting as US Consul, had a thriving business outfitting or supplying the many American whaling ships visiting the Bay of Islands. In his capacity as US Consul, he recorded the arrivals of 151 American ships between 1839 and 1841. His main residence was situated on the harbour frontage at Okiato, about 4-miles from the Kororareka shantytown of fifty or so houses and shops. He also had a cottage at Kakikiroa nearer to Kororareka Township and, seemingly, a cottage in the town as well. By 1845, at least, he had a Kororareka cottage near to the home of Bishop Pompallier. Dr. Paul Moon states that Clendon and his family moved to a house at Kororareka on the 1st of May 1840, having sold their Okiato estate to William Hobson’s government (see The Treaty And Its Times, by Paul Moon and Peter Biggs, pg. 249).

As the leading businessman in the district, it seems obligatory that Clendon maintained mercantile premises at Kororareka, although he ran a trading post from his Okiato estate, where there was sheltered and safe deep water mooring available for large ships close to shore. Surveyor General, Felton Mathew, later recommended Clendon’s estate as the location for the township of Russell and Clendon’s spacious new home became the first Government House of New Zealand. Felton Mathew wrote:

Proceeding up the harbour, I examined the shores on either side without finding any suitable locality, the land being in all cases too broken and precipitous, and the water too shallow to admit of vessels approaching it. Nearly at the head of the anchorage, however, there is a spot belonging to Mr. Clendon, American Consul, which after a most minute and careful examination, both by land and water, I can confidently assert to be the only spot in the Bay of Islands which is at all suitable for a settlement, or calculated for the purposes of the Government. It is distinguished on the Admiralty chart as Point Omata; the water along a large portion of its boundary is so deep as to admit of ships lying almost close in shore, and an extensive line of wharfs and quays may be constructed at a very moderate expense. This part of the harbour, moreover, being land locked, presents the best and safest anchorage. The land rises less abruptly from the shores than is common in the Bay of Islands and there is a considerable extent of undulating ground highly favourable for the laying out of a town. There is abundance of fresh water, firewood, and brick earth, and its position on the southern shore of the harbour, and just at the junction of the Kawakawa river presents peculiar advantages for internal communication, either by land or water. The Kawakawa I have examined for a distance of some miles upwards, and I had a clear and unobstructed channel, having a depth of water of one fathom at least at low water (see Felton Mathew’s Report, Enclosure 1, in No. 41, B of Islands, N Zealand, 23 Mar. 1840).
Prior to Clendon purchasing the large Okiato Estate, he’d acquired property closer to Kororareka by 1.2 miles at Kakikiroa. The site consisted of “more or less” 10-acres and had been bought from Frederick R. Spooner, who, in turn, had bought it from William Brown. This purchase was on August 30th 1836.

By March 13th 1840 Felton Mathew, Surveyor General, was involved in business discussions with James Reddy Clendon. This culminated in a general agreement that the government would purchase Clendon’s entire estate as the site of the new township of Russell. It appears that some rental of Clendon’s premises, by the government, began in February 1840, but formal agreement of government purchase for the entire property was entered into on the 22nd of March 1840 (see Clendon’s letter to Lord Stanley, November 10th 1845, Clendon House Papers, Special Collections, Auckland Public Library).

‘The government agrees to purchase from Captain Clendon his property at Okiato in the Bay of Islands said to contain by measurement Two hundred & thirty acres, together with all buildings and improvements thereon, and also another portion of land supposed to contain about 10 acres, immediately adjoining the said property of Okiato, for the sum of Fifteen Thousand Pounds…’ (Felton Mathew, S. G.)

‘The buildings are valued at Thirteen Thousand Pounds Sterling and the land at Two Thousand Pounds…Bay of Islands, 23rd March 1840, W. Hobson, Lt. Governor’

‘Value of annual Rent for the buildings at Okiato, April 1840,

Store £850
Dwelling House £200
Cottage £70
Blacksmith Shop £60
Carpenter Shop £90
Cottage £30

Memo: Surveyed by:
Mr. Shortland-Chief Magistrate.
Mr. Mathew- Surveyor General.
Mr. Mason-Architect and Superintendent of Public Works’.
(see Clendon MSS, taken from Professor Rutherford’s copy, Clendon House Papers, Special Collections, Auckland Public Library… original now missing).
Hobson, very early on, was enamoured by the general location where Clendon lived, as it soon became the seat of government for New Zealand. We know that all buildings or lands acquired by Hobson in March and April, on behalf of the government, belonged to Clendon. These included those for his own family, other incoming staff or soldiers, government store facilities and, ultimately, the physical premises of the first Government House of New Zealand.

When Hobson wrote to Lord Stanley from the new Government House in Auckland on August the 4th 1841, he acknowledged that the government owed James Reddy Clendon 18-months rental. This tells us that government rental of at least some, and later all, of Clendon’s premises commenced in February 1840. Hobson states:

‘His Excellency replied that he saw no objection to my paying a fair rent for the stores and premises, which have been for the last 18 months of the highest value to the Government’.

‘...and I submitted to the Executive Council the propriety of granting, at the usual rate of interest in this country, a sum of money amounting to two thousand three hundred pounds (2,300) as rent for the 18 months for the stores [large storage sheds] wharves, dwelling houses and other premises that had been used in the Government service at Russell, and to give Mr. Clendon a maximum grant of land according to the provision of Act of Council 4 Vict. No. 7 in compensation for the land, buildings &c. at that place...’ (see The Auckland Chronicle, “Extracts From The Latest Blue Book”, Despatch no. 41, Governor Hobson to Lord Stanley, The Clendon House Papers, Special Collections, Auckland Public Library).

Clendon appears to have first met Hobson in 1837 when Hobson had to intervene, with the help of missionary Samuel Marsden and James Busby, to negotiate, in behalf of the settlers, during hostilities that had broken out between Pomaré II and Titore. During the fighting two great chiefs, Pi and Titore were killed and it was feared that their deaths would initiate “utu” or revenge killing. At that time, when Captain Hobson arrived in H.M.S. Rattlesnake in a show of British naval strength and gunboat diplomacy, the English settlers risked being caught in the middle of the warring Maori factions. Clendon’s Okiato estate was purchased from Pomaré II and Kiwikiwi of Ngati Manu in 1830 and Pomaré’s PA was situated adjacent to the 10-acres of land that Clendon had bought in 1836. Clendon made further purchases from the chief in 1837 (80 additional acres at Okiato) and 1838 (The Clendon farm of 3,342 acres at Manawaora).

‘Early in 1837 the British Resident in New Zealand, James Busby, sent word that tribal war was endangering British subjects. Hobson left in the Rattlesnake, arriving at the Bay of Islands on 26 May. He met Busby; spoke with missionaries, prominent settlers and Maori leaders. With Samuel Marsden and Busby he interviewed the warring chiefs, Pomaré II and Titore, attempting to reconcile them, and warned against violence to British subjects’ (see Dictionary of New Zealand Biography).

From the foregoing information that exists within our historic documents on public file, it can be established that Hobson’s movements for February 3rd 1840 put him in reasonably close proximity to property owned by James Reddy Clendon. It is also very probable that Hobson, in 1837, had already met Clendon who, as a close friend of Pomaré II, would logically have been one of the prominent settlers aiding Hobson in negotiations with the warring chiefs. From the moment Hobson first landed on the 30th of January 1840, James Reddy Clendon appears to have befriended him and been central to all of his on-shore activities and political incentives.

Inasmuch as Dr. Phil Parkinson has concluded that the Littlewood Treaty was written by James Busby, and in consideration of the fact that the paper upon which it is written came from Clendon’s personal stock, we can confidently accept that the date of 4th February 1840, as written upon the Littlewood Treaty document, is correct.
It is very doubtful that Clendon would have carried his personal stock of W. Tucker 1833 paper to a venue outside of his own estate. The compelling evidence shows that the final drafting session was held at his home on the 4th of February 1840 and that at least two copies of the final draft were completed there on that date, including Clendon’s own transcribed copy.

Hobson needed to go ashore from the clamour, bustle and confinement of H.M.S Herald, if for no other reason than to get away from Captain Nias.
From the moment HMS Herald had dropped anchor in Kororareka Bay on the 29th of January, the ship became a hostile environment, where Hobson had no assurances whatsoever, of any cooperation from a belligerent Captain Nias. The fact is that Nias was being deliberately obtuse, disrespectful and obstructive to anything that Hobson wished to do throughout this entire period. The on-going conflict with Nias led to Hobson, in a severe state of stress, having a paralytic stroke only 1-month after his arrival in the country. Let’s review some first-person accounts of incidents that demonstrate the degree of this worsening rift, as extracted from the letters of Surveyor General, Felton Mathew to his wife, Sarah:

29th of January 1840: ‘Hobson is much annoyed because Nias refuses to salute Busby when he comes on board, which as he has been always accustomed to receive the honour, will of course mortify him. Hobson very good naturedly and very considerately says, that now, just as Busby’s powers are about to be extinguished, he would rather salute him with 20-guns, than be the means of making him feel his altered position. The proper number of guns for a Resident is eight - This shews good feeling on the part of our Governor and bad taste to say the least of it on the part of the Captain - His mortifying and degrading a man, when he might do him honour at no expense or trouble to himself’.*

30th of January 1840: [Before the ceremony ashore at Kororareka Church]. ‘The Governor is to be formally installed this afternoon at 2 o’clock - by the reading of his commission and the Queen’s Proclamation - What ceremonies are to be observed on the occasion I know not; for our Captain is such a queer fellow that there is no saying what he will do. His idea of “cooperation” seems to be that of doing as little as possible to promote the success of the expedition’. [Felton Mathew then writes the following after the ceremony]: ‘Captain Nias has behaved scandalously in the business, having offered every impediment and shewn as little respect, both to the Governor and to the ceremony itself as possible - Poor Hobson is very much annoyed; and I fear we shall have some difficulty in preventing an unpleasant explosion of some kind now, before we leave the ship’.
Felton Mathew further writes:
1st of February 1840: ‘Several circumstances have occurred to prevent us from going to Hokianga; and this morning we had a very disagreeable collision with Captain Nias, which put it almost out of our power to go anywhere - We intended to have gone across to Paihia and when there to have made an arrangement with the missionaries for proceeding to Waimate - When however we sent to ask for a boat, he refused to let us have one, although he had himself offered us one to be at our service while we are in the harbour. This has of course occasioned a breeze;* [colloquial expression for argument] and we have in consequence hired a whaleboat to be at our disposal while here. After a while we put ashore at Kororarika - and after a walk across the hills enjoyed a delightful bath in a fine sandy bay - We returned on board to dinner - since dinner we have had considerable rows - Nias has behaved very ill indeed to Captn Hobson - I fear we shall not be able to preserve peace while we are on board - He appears to have been under great restraint during the past fortnight and is unable to contain himself any longer’.

*Footnote: There are always two sides to every story and the daughters of Captain Nias later wrote a book to vindicate the reputation of their father. They were very concerned that authors like T.L. Buick, who wrote The Treaty of Waitangi in 1914 (2nd & 3rd editions in 1933 & 1936 respectively), were only quoting slanted or one-sided accounts, showing their father in a very bad light. The daughters of Captain Nias contributed to a book called, Captain Joseph Nias and The Treaty Of Waitangi - A Vindication, T.D.H. Hall, 1938.

*Footnote 2: BREEZE. To raise a breeze; to kick up a dust or breed a disturbance (see Dictionary of the Vulgar Tongue, 1811).

Regardless of how one might wish to apportion blame for the impasse that existed between Hobson and Nias, from Hobson’s perspective things had come to a head and he could no longer tolerate the continuously obstinate and obstructive attitude of Nias. At a time when Hobson desperately needed a very composed, well-organised environment in which to think, plan and successfully delegate, Nias was a constant negative distraction and source of aggravation. By the evening of Saturday the 1st of February, Hobson had only 3-days left in which to write and prepare a complete treaty document. By the following Wednesday, he would be obliged to stand before a crowd of over 1000 people and conduct a meeting with such finesse, eloquence and rationale that the Northern chiefs of New Zealand would be induced to sign their powers of sovereignty over to Queen Victoria. Hobson had just come halfway around the world to secure a treaty, the clauses of which, at this late juncture, remained unwritten. The Governor-in-waiting was under immense pressure and unnecessary stress, brought about by his constant arguments and frustrations with Nias, causing him to become increasingly ill. Of this, historian T.L. Buick wrote:

‘To add to their difficulties, Captain Hobson began now to experience the symptoms of that illness which in less than three years proved fatal to him. He became indisposed and was unable to leave the Herald. In the seclusion of his cabin, however, he devoted himself to an effort to reduce to concrete terms the obligations in which the Crown was prepared to involve itself, and the reciprocating advantages it would require from the natives. In this he achieved but meagre success, and conscious of failure he despatched the principal member of his staff, Mr. George Cooper, to Mr. Busby, giving him his rough notes together with a request that the erstwhile Resident might favour him with his opinion as to their suitability as the basis of a treaty’ (see The Treaty of Waitangi, by T.L. Buick, pp 109-110).

It would appear that after Sunday 2nd of February Hobson was not going to tolerate another night aboard ship until the treaty draft was finalised, but would stay ashore in order to compose himself and have a peaceable environment in which to complete the urgent work. At this late stage he would have to call in all the favours he could muster from the local missionaries and dignitaries to help him, as time was very much of the essence, with the pre-scheduled treaty assembly only days away and still no written treaty to present to the assembly. He seems to have had concentrated expert assistance from Busby, Clendon and Williams, with in-transit or spasmodic advice and help from Taylor and Clarke. Historians also acknowledge contributions of others like William Colenso and James Buller.

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