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«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»

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Busby’s New Zealand context, 1836-37

The ink was hardly dry on the Declaration of Independence before Busby was asked to mediate in a dispute between Waikato’s Te Hikutu from Te Puna and Noa’s hapū from Whananaki. The background was this: Two European traders, Bond and Day, had entered into an arrangement with Waikato for the sale of a kauri forest at Whananaki. However, the whakapapa links of Waikato to that whenua (at least in Busby’s account) seemed doubtful. Henry Williams became involved and the Whananaki hapū conveyed the said land in trust to the missionaries. Williams then communicated with Day, a British settler, that he would have to obtain the consent of both the missionary trustees and the local hapū owners before any purchase could be effected.

Waikato then requested Busby’s mediation. Waikato brought 35-40 men to the 12 January hui, while Noa brought around 150 men, women and children. After some verbal fire-works, one of

149 Busby to Col Sec, 16 Jun 1837, No 112, p 256.150 Busby to Col Sec, 16 Jun 1837, No 112, pp 245-263. 55

Waikato’s party pushed an older kaumatua from Whananaki. Noa’s party reacted. Te Hikutu then leapt up, recovered their muskets lying concealed nearby, and proceeded to fire upon the Whananaki people. Two died. Others were injured. Soon the large Whananaki group was crowding into the Residency for protection. ‘The floors were covered with blood’ reported Busby, and in a later despatch appealed to a sense moral outrage in his superiors by referring to blood on the floor of his wife’s bedchamber.151 In the aftermath, Busby avoided calling a hui of the Confederation as he feared it might provoke an even greater conflict.152 Although he believed the Confederation would sanction a punishment of the Te Hikutu offenders, he preferred the actual punishment to be carried out by a British military force.153 In the meantime he delayed, waiting for the ‘determination of the [British] King whether justice should be done by his Government or by the Government of this Country alone [that is, the Confederation]’.154 The second event involved Pomare’s apparent attempt to retake Kororareka from the Titore-led Northern Alliance. After the Alliance forced Pomare out of Kororareka in 1830, he had removed about five miles away to Otuihu at the southern end of the Peiwhairangi anchorage. The loss of Kororareka obviously hindered his trading interests and prestige. According to Busby the fighting involved around one thousand warriors (200 on Pomare’s side and around 800 on the 151 Busby to Col Sec, 18 Jan 1836, No 84, pp 175-185.

152 Busby to Col Sec, 26 Jan 1836, No 85, p 187.

153 Busby to Col Sec, 18 Jan 1836, No 84, pp 183-185.

154 Ibid, p 180. Still waiting for an answer from NSW on 20 February, he wrote: ‘The Congress of Chiefs might be prevailed upon to pass sentence upon [the offenders]; but I believe it would be impossible to procure native executioners’, Busby to Col Sec, 20 Feb 1836, No 86, p 196. The Governor finally responded by despatch dated 23 March but its suggestion of a Rete-type punishment of land forfeiture and banishment was rejected by both Busby and the missionaries as unrealistic and ‘would occasion a general war’ in Tai Tokerau if there was not any ‘British Force’ to supervise or carry out the punishment. Busby also disagreed with the Governor’s view that there was no insult to the British Resident. He now considered that his office was ‘in abeyance’ as he could do nothing to resolve the situation, and he requested permission to proceed to England to lobby for greater British intervention (this was not the last time when his request to plead the case of NZ in London was denied), Busby to Col Sec, 18 May 1836, No 95, pp 210-217. The Governor’s 23 March 1836 despatch (a response formulated by the Governor in Council) gave as reasons for not interfering with a British military force: ‘Because there appears no sufficient motive for an armed interference, amounting in fact to an invasion of an independent state on the part of the British Government....

Such affrays between Savages are of common occurrence and the New Zealanders being but little removed from the Savage State, the attack... cannot with propriety be considered as an intended insult to the British Nation requiring immediate reparation and chastisement for the vindication of National honor’; and ‘Because supposing it was expedient in Policy to strike with terror the New Zealanders by the expedition of a Foreign Military force in their Country... it would be an act wholly unjustifiable to take the lives of those People under colour of British Law to which they owe no obedience, in retribution of [?] an offence committed by one New Zealander against another’, see McLeay to Busby, 23 Mar 1836, No 36/6, NSW 4/3523, pp 530-536.

56 other). There were some deaths, including of leading rangatira Titore, but otherwise the death toll was not initially significant and British property was, with one or two exceptions, spared.155 Widely different accounts exist concerning resolution of the conflict. Busby wrote that missionary and Hobson’s attempts at mediation failed.156 McDonnell claimed that he along with Hokianga chiefs resolved the conflict.157 Yet according to missionary accounts, Williams and colleagues were integral to its resolution.158 Besides these immediate concerns in mid-1837, the spectre of de Thierry still hung in the air.





Busby had talked further about the possibility of such European adventurers making use of the unstable geopolitics of Tai Tokerau to obtain a territorial dominion. He suspected they might even purchase from rangatira the rights to shipping dues in the Bay, as he had earlier proposed to NSW.159 The tensions within Ngāpuhi had also figured after the Te Hikutu-Whananaki incident at Waitangi, Titore and other Northern Alliance rangatira supposedly lending their support to Waikato, and Pomare and others potentially aligning himself with Whananaki.160 These movements did not immediately provoke conflict but may have simmered until the Kororareka turmoil broke out.

Busby was also encountering problems with a somewhat reckless McDonnell. In Hokianga, the Additional British Resident was passing laws and taking the law into his own hands. On one occasion he literally took up arms to protect the supposed rights of European land purchasers, in a run-in with Waka Nene who claimed the land had not been sold and that he therefore had rights to sell the trees. McDonnell was also involved in a turf war with the Wesleyan missionary, the 155 Busby to Col Sec, 4 May 1837, No 111, pp 242-245; Busby to Col Sec, 16 Jun 1837, No 112, pp 245-263.

Leading rangatira Pi also died in the conflict, see Rogers, Te Wiremu, p 135.

156 Busby to Col Sec, 16 Jun 1837, No 112, p 247.

157 McDonnell provided an 18pp wide-ranging account of the conflict between the Titore-led Northern Alliance, and the Pomare-led Ngati Manu. He also believed that both Busby and the CMS Missionaries had failed to intervene effectively. He accompanied WMS Missionaries Nathaniel Turner and John Whitely, together with Hokianga rangatira ‘Tuckiore’ on a peacemaking mission to the Bay. This he said was much more effective in bringing hostilities to a close. McDonnell to Col Sec, 24 July 1837, CO 209/2, pp 68-68a, encl in Bourke to Glenelg, 13 Sept 1837, No 90. In most cases, however, McDonnell was not a reliable witness.

158 Rogers, Te Wiremu, pp 133-135.

159 Busby to Col Sec, 12 March 1836, No 89, pp 197-200.

160 Busby to Col Sec, 26 Jan 1836, No 85, pp185-191. Busby’s account is somewhat vague, as he indicates Pomare paid Waikato a ‘friendly visit’, even though Pomare was on the opposite side of the Bay of Islands division (perhaps because he was, like Waikato, not ‘under the influence of’ the missionaries).

57 Rev William White.161 All these little and larger fires were breaking out in 1836 and 1837, causing Busby to call even louder for the interposition of British authority de jure backed by real not imaginary force.

Māori ‘juries’ and the ‘school’ of Congress Given this background it is not difficult to comprehend Busby’s conviction (if it was a strong belief in 1834-35 it was certainly a conviction by 1836) that British ‘Legal Authority’ and military power was needed to bring about a more durable framework for law and order. Nor is it difficult to understand his conception that Māori structures of government and law based on British models (including especially criminal justice) would be brought about only over time; as he said (in the quote above): ‘Thus would the way be prepared for confiding to the [Māori] people the trust of Jurymen, in like manner as to the Chiefs of Congress, that of Legislators, when a generation should arise sufficiently enlightened and virtuous to be capable of these high functions’.

The immediate context for these comments was Busby’s recommendation that Māori juries be not judges in the case but rather ‘witnesses to the Country’ of the accused having had a fair trial.

Jurymen would be ‘compurgators’ with the accused, he said.162 A ‘compurgator’ was a witness who swore to the innocence or good character of an accused person.163 This recommendation, said Busby, was in accordance with ‘the original Constitution of Juries in England’, as evidenced by the research of Sir Francis Palgrave (a prominent English legal historian).164 This reference to old English jury models may seem irrelevant today, but to Busby’s mind, and in conformity with his evident stadial conceptions of the rise of civilization, this reference made complete sense.

Institutions of law and government must reflect the characteristics of the people and their state of civilization if they were to prove durable. In other words, all institutions must be adapted to the 161 Busby to Col Sec, 30 Jan 1837, No 107, pp 228-235.

162 Busby to Col Sec, 16 Jun 1837, No 112, p 256.

163 As defined by the Concise Oxford, 9th ed, (1995), which notes it as an historical legal term.

164 Busby to Col Sec, 16 Jun 1837, No 112, p 256. The text Busby was referring to was most probably The Rise and Progress of the English Commonwealth: Anglo-Saxon Period (London: John Murray, 1832), (http://books.google.co.nz/books, accessed 12 November 2009). I could only locate vol 2 of this, which referred to this Saxon jury system at pp 176-178.

58 people’s circumstances. If Māori were not currently able to exercise legal judgement in a British criminal justice sense – because they knew not its forms and rationale – then they needed to be educated into it over time by sitting as ‘witnesses’ on juries. In like manner Busby saw the Congress of rangatira as ‘a School in which the Chiefs would be instructed in the duties required of them’.165 The learning would take time and it would be “on the job” learning. This conception of civilization requiring exemplary education for its emergence was derived clearly from stadial or Scottish Enlightenment concepts. Although Busby also shared in the Evangelical missionary idenfication of conversion as integral to civilization, the civilization of Māori also required coaching or tuition in British legal forms.166 Busby believed that the ‘infant Māori state’ had to be tutored to emerge gradually as ‘enlightened’. Only then could its juries adjudicate on matters of fact, guilt or innocence. This was, according to Busby, the education, knowledge or ‘enlightenment’ problem. The other problem, mentioned in Busby’s jury reference, was the required cultivation of ‘virtue’. In Busby’s view, rangatira needed to transition from Māori conceptions of justice (muru or group compensation) to British conceptions (individual punishment on behalf of the community or state). Busby’s use of the word ‘virtue’ perhaps fundamentally indicated the need for moral and character growth (as he conceived it), rather than mere shifts in theoretical understanding. In his 16 June 1837 ‘plan of Government’ this reasoning also appeared in the passage immediately

before he described the Congress as a ‘school’. He said:

In theory and ostensibly the Government would be that of the Confederate Chiefs, but in reality it must necessarily be that of the Representative of the British Government. The Chiefs would meet annually or oftener and nominally enact Laws proposed to them, but in truth the present race of Chiefs could not be entrusted with a discretion in the adoption or rejection of any measure that might be submitted to them, moral principle, if it exist among them at all, being too weak to withstand the temptation of the slightest personal consideration.167

–  –  –

This proved the need for Congress to be a ‘School’, in which both British legal forms and a British morality supposedly adverse to personal aggrandisement and nepotism would be inculcated with time. This passage echoes Busby’s comments prior to 1835 about the inadvisability of Confederation rangatira enforcing a liquor prohibition regime (with search and seizure functions) for fear they would be ‘paid off’ by traders who would then be able to avoid the law.168 And with reference to the Rete affair, Busby was concerned that rangatira enforcing a forfeiture of land would consider themselves justified in plundering property personally (ironically, rangatira did receive some personal payment, both from Rete’s property and from Busby).169 From ‘savagery’ to ‘civilization’ The above quotation was moderate compared with the fierceness of Busby’s expression following the Te Hikutu attack on Whananaki, the language of ‘savage’ being more prominent

than at any other time:



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