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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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… I am indeed persuaded that nothing short of Creative power could change the savage of yesterday to the Legislator of today; or bring into operation the functions of an efficient Government among a people whose minds have not yet conceived the ideas of authority and subordination. It is much that they will consent to be led with the confidence of children, to be the passive instruments of enacting laws, and establishing Institutions of which time will gradually evolve the effects. But while in this state of transition from barbarism to order, the well disposed portion of the natives, give up to the cause of religion and civilization, the defences of the Savage, is it consistent with humanity that they should be exposed without protection to the violence of that party of their own Countrymen, whom the dread of vengeance will alone restrain? – or with justice that the subjects of a civilized state should be suffered to excite that violence by

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every motive which can tempt the cupidity of the Savage, aided by every false and wicked suggestion which can stimulate his passions to outrage.170 The nature of this passage, its reasoning and its language has already been explained with reference to both stadial and Christian conceptions of civilization. It is clear from this passage that Busby saw ‘Savage’ as a descriptor for both a moral state as well as a governmental state (or rather, the lack of both a developed morality and ideas of government). Again there is the metaphor of children being coached in the ways of life, whereby they ‘transition’ to a more mature ‘state’ of existence. ‘Religion and civilization’ are both the means of this transition and descriptors of its end goal. This leads us to the core issue, as Busby saw it: if ‘religion and civilization’ had begun to effect this change in the ‘well disposed’ natives, such that they gave up their usual modes of utu and muru, trusting to the missionaries and Busby to intervene on their behalf, then where would that leave those not so influenced? Waikato’s party had brought guns for their defence (and quite certainly for means of attack), while Noa’s party had brought women and children and almost no weapons. In the absence of a military force and the ‘dread of vengeance’ to restrain groups like Waikato’s party, the meek would be at the mercy of the strong. Meanwhile self-interested Europeans, like Bond and Day, would seek personal profit by encouraging Māori to sell disputed property and by provoking them to violence in defence of these contested rights. These were Busby’s views of the Whananaki case and the general state of New Zealand in 1836-37.

Little wonder then that, while continuing to speak of the role of the Confederation and the Congress as a Māori Legislature for New Zealand, he believed it could not succeed in establishing order. British Legal Authority and military force was required. It was required also to defend the national honour. Waikato’s attack was an affront to the British Residency, and thereby to the King himself. Busby believed the only realistic approach to bringing the Te Hikutu offenders to justice was to call on military power. But without Bourke’s support, this never

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happened.171 A British ‘Protectorate’ and even the cession of ‘Government’ was now the

language on Busby’s lips. A week after the Te Hikutu-Whananaki despatch, Busby argued:

In their late declaration of Independence, the Chiefs prayed that their Country might be taken under the protection of the British Government. They are perfectly convinced of their incapacity to govern themselves, or to cope unaided with the novel circumstances to which they are constantly exposed by the encroachments of their civilized visitors. They have as yet confidence in the British Government, and if protected in the enjoyment of their Landed property, and their personal rights[,] they would I am sure gladly become the subjects of the King of England; and yield up the Government of their Country to those who are more fitted to conduct it; and not only feel, but acknowledge the blessings which they would derive from equal Government and impartial Laws. But it is not necessary to require from them even this sacrifice; and I submit for the consideration of H.M. Government – whether the Islands of New Zealand might not be received under the protection of H.M. on the same principle as that upon which the Ionian Islands are constituted an Independent State, in all things which pertain to the real advantage of the Inhabitants, in giving them such a share in the Government of the Country as is consistent with its welfare; but reserving the ultimate authority for that power which affords that protection its weakness requires.172 Busby had already indicated the protectorate idea in his 1835 despatch annexing the Declaration, and it was to find even greater articulation in his 16 June 1837 ‘plan of Government’.173 He again

referred to recent British practice:

[The plan of Government] is founded upon the principle of a protecting State administering in chief the affairs of another state in trust for its inhabitants, as sanctioned

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by the Treaty of Paris in the case of Great Britain and the Ionian Islands, and as applied, I believe, in several instances on the border of our Indian possessions.174 Busby’s somewhat sanguine assessment of Māori character, and his limited requests for a constabulary and native guard in 1834, stand in contrast to his more extensive calls for British intervention in 1836-37. He spoke reservedly in November 1834 of Rete’s midnight attack as ‘revealing a [negative] new trait in the character of the New Zealanders’, amongst their more well known positive traits.175 Then he described Māori as ‘on the very threshold of civilization’.





He added: ‘it is only necessary to acquire their confidence, in order to lead them to whatever changes in their social condition may best afford them the blessings of established Government, and impartial laws’. These types of hopeful comments, as compared with his later pessimistic ones, may well reflect differences of degree, not of kind. Their stadial nature, in which Māori accommodation to civilized legal forms ‘will no doubt be a work of time’, and in which Christian instruction was foundational for civilization, was Busby’s mode of discourse in this 174 Busby to Col Sec, 16 Jun 1837, No 112, p 251. Busby described accurately the nature of the Ionion Protectorate.

Wheaton summarised its elements: ‘By the convention concluded at Paris [the Treaty of Paris of the Vienna Congress] on the 5th of November, 1815, between Austria, Great Britain, Prussia, and Russia, it is declared (Art. 1,) that the islands of Corfu, Cephalonia, Zante, St. Maura, Ithaca, Cerigo, and Paxo, with their dependencies, shall form a single, free, and independent State; under the denomination of the United States of the Ionian Islands. The second article provides that this State shall be placed under the immediate and exclusive protection of His Majesty the King of the United Kingdom of Great Britain and Ireland, his heirs and successors. By the third article it is provided that the United States of the Ionian Islands shall regulate, with the approbation of the protecting power, their interior organization: and to give all parts of this organization the consistency and necessary action, His Britannic Majesty will devote particular attention to the legislation and general administration of those States. He will appoint a Lord High Commissioner who shall be invested with the necessary authority for this purpose. The fourth article declares, that, in order to carry into effect without delay these stipulations, the Lord High Commissioner shall regulate the forms of convoking a legislative assembly, of which he shall direct the operations, in order to frame a new constitutional charter for the State, to be ratified by His Britannic Majesty. The fifth article stipulates, that, in order to secure to the inhabitants of the United States of the Ionian Islands the advantages resulting from the high protection under which they are placed, as well as for the exercise of the rights incident to this protection, His Britannic Majesty shall have the right of occupying and garrisoning the fortresses and places of the said States. Their military forces shall be under the orders of the commander of the troops of His Britannic Majesty. The sixth article provides that a special convention with the government of the United States of the Ionian Islands shall regulate, according to their revenues, the object relating to the maintenance of the fortresses and the payment of the British garrisons, and their numbers in the time of peace. The same convention shall also ascertain the relations which are to subsist between this armed force and the Ionian government. The seventh article declares that the merchant flag of the Ionian Islands shall bear, together with the colors and arms it bore previous to 1807, those which His Britannic Majesty may grant as a sign of the protection under which the United Ionian States are placed; and to give more weight to this protection, all the Ionian ports are declared, as to honorary and military rights, to be under the British jurisdiction, commercial agents only, or consuls charged only with the care of commercial relations, shall be accredited to the United States of the Ionian Islands; and they shall be subject to the same regulations to which consuls and commercial agents are subject in other independent States’, see Wheaton, Elements of International Law (1836), para 35, ch 2, part 1.

175 Busby to Col Sec, 28 Nov 1834, No 48, p 102.

63 earlier period as much as the later period.176 Still, in 1834 he was telling British settlers that ‘they must be satisfied to rest the security of their lives and properties altogether upon their success in conciliating the natives, and securing their protection’.177 In the Declaration, paragraph four, ‘protection’ did not flow all one way. In this Busby acknowledged Māori for protecting British subjects in New Zealand. The Te Hikutu-Whananaki affair and the Titore-Pomare conflict saw Busby’s fears for New Zealand’s future take concrete form in his June 1837 ‘plan of Government’ and the sending of his wife and family back to the comparative safety of Sydney in March 1836 after the Te Hikutu affair.178

The Protectorate Proposal, 1837

Turning, finally, to the specifics of Busby’s ‘plan of Government’ of June 1837, this significantly extended previous recommendations and specifically enlarged on Busby’s conception of a British protectorate.179 Busby argued that the Declaration of Independence or ‘articles of Confederation…established and declared the basis of a Constitution of Government’ and therefore that ‘the rights of a Sovereign power’ existed in the rangatira of the Confederation – ‘however limited the exercise of those rights has hitherto been’.180 It followed that the Confederation rangatira were ‘competent to become parties to a Treaty with a Foreign Government, and to avail themselves of Foreign assistance in reducing their Country to order’.181

Busby continued, elaborating on the notion of a protectorate state established by treaty:

The appearance of a Department of British Troops, in fulfilment of a Treaty with the Confederation of Chiefs would not be a taking possession of the Country, but a means of strengthening the hands of its native Government.182

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In return for this ‘subsidiary force’, British settlers would only be subject to laws passed by or consented to by the British Government and if the enforcement of such laws was ‘under the direction and control’ of British officers (this was consistent with Busby’s earlier idea concerning a treaty for the purchase of harbour dues and a spirits’ prohibition regime). Revenues, presumably from shipping and tonnage duties, would in the first instance be applied to the maintenance of the military presence specified in the treaty, and to pay the salaries of the officials of the protecting power’s ‘Civil Government’. Legislation applying in New Zealand would, in most if not all cases, be legislation enacted by the Congress, applicable both to Māori and British (applicable to the latter on the basis of official consent). Legislation would not usually be a matter of Congress’ deliberation and discretion, but would be a process of simply approving laws and regulations submitted to it by the chief British official or ‘Resident’ (a word Busby continues to use in this context). However, Congress rangatira would be responsible for promulgating and enforcing the laws in their own rohe or districts as ‘Conservators of the Peace’, and would receive a ‘small salary’ for this function. The distinction of this employment would be capped off by the conferring of medal on each rangatira, containing his name.183 Māori authority (even if only instrumental) did not end with the Congress. Congress would select a few leading rangatira to act with the Resident as a native Council or executive authority. The code of laws was to conform to Māori circumstances (as well as to ‘natural’ justice).184 Busby also recommended establishing a native police force to apprehend criminals. This would solve the problem of individual chiefs having a conflict of interest, if they were related to the criminal.

This independent native police would be backed by the British military force. According to Busby: ‘The vengeance of the Laws might not in many cases overtake the guilty party, but the act of a single individual would at once, and for ever cease to be the occasion of a Civil war’.

This recalled one of the key issues that provoked his British protectorate idea in the first place.185 183 Ibid, pp 252, 253, 255. It is quite clear that Busby’s conception of the Confederation was largely a legislative one, as expressed in the Congress, see Busby to Col Sec, 12 March 1836, No 89, p 199, where he talks of obtaining further signatories to the Declaration or Confederation, thus making it ‘impossible for any person to establish a political power in any part of the Island upon a Legislative basis’.

184 Ibid, pp 253-54.

185 Ibid, p 254.



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