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Pathways to te Tiriti, c 1837-1840 Busby’s Protectorate and Hobson’s Factories Chapter one concluded with Busby’s protectorate plan for New Zealand.343 This plan envisaged a formal protectorate, established by treaty with te Wakaminenga (the Confederation). It involved a British official proposing laws for the adoption of the rangatira Congress, a Māori police force supported by British military muscle, an embryonic Māori jury system, rangatira as head officials of the central government in their rohe (district), and multiple subsidiary features (including schools and newspapers).344 Governor Bourke dismissed Busby’s scheme. He supported Captain William Hobson’s ‘factory’ proposal, formulated after Hobson’s visit to New Zealand on HMS Rattlesnake.345 Hobson articulated his remedy for New Zealand’s alleged lawlessness in a despatch to Bourke of 8 August 1837.346 His ideas originated in his naval experience in India. Hobson recommended the establishment of ‘Factories’ at the Bay of Islands, Hokianga, Cloudy Bay ‘and in other places as the occupation of British Subjects proceeds; [to ensure that] a sufficient restraint could be constitutionally imposed on the unctuous Whites without exciting the jealousy of the New Zealander or any other Power’.347 Hobson was aware of how other nations might view Britain’s

intervention. He proposed that:

–  –  –

The Heads of Factories should be Magistrates, and the Chief Factor should, in addition be accredited to the United Chiefs of New Zealand as a political agent

–  –  –

Two or More of the most respectable British Residents nearest each Station should hold Commissions of the Peace to assist the Factors.

–  –  –

A Treaty should be concluded with the New Zealand Chiefs for the recognition of the British Factories and the protection of British Subjects and property.348 Registration fees, harbour dues and import duties could finance the Factories. Settler support would follow protection of their property. An Act of Parliament could extend the jurisdiction of NSW. Such Factories may ‘be the means of introducing amongst the Natives a System of Civil Government...’ It will also ensure that British subjects ‘become powerful by concentration’.349 Governor Bourke accepted the thrust of Hobson’s Factory proposal.350 He contrasted it with

Busby’s 16 June 1837 protectorate proposal:

Mr Busby recommends that Great Britain should undertake the protection of New Zealand, and for this purpose should maintain British troops on the Islands. But, though this undertaking should be commenced with the greatest good faith and purest intentions, it would be open to misinterpretation; and, in a remote country where it is hardly to be expected the law would be very effectively administered, it might be eventually perverted by British subjects to selfish purposes.

–  –  –

Bourke thought Busby’s protectorate proposal was ‘not without virtue’, but was not easily reconciled with Hobson’s observations. Bourke believed that a protectorate would require greater military support than Factories.351 Both proposals contained similar elements: a ‘Chief Factor’ or ‘Resident’; courts of justice; and shipping and import duties to fund the government administration. Both schemes were to be established on the basis of treaties with Māori. Both were concerned with the development of civil government among Māori. Their core conceptions, though, differed markedly. Hobson’s factories were an attempt to limit British jurisdiction geographically, while Busby envisaged a country-wide protectorate jurisdiction. In keeping with its comprehensive reach, Busby’s plan also contained many more ways to incorporate Māori within the new regime. It was designed to instruct Māori in the arts of civil government, by the use of the central Congress, rangatira appointees in the localities, and embryonic Māori ‘juries’.

The expansive scope of Busby’s scheme made it less palatable to NSW and London in 1837-38.

It was comprehensive and reasonably detailed, but its application left questions unanswered. The use of a military force Busby believed was necessary to maintain a pan-hapū order. However Bourke, justifiably, believed this might provoke Māori opposition. There was also the matter of finding and financing such a force. Bourke believed the military commitment would be greater for the protectorate than for the factories.

For his part, Busby believed Hobson’s scheme was manifestly ‘impracticable’. Hobson, he argued, had visited New Zealand for less than four weeks, when he had been there for four years.352 Although not without its defects, his protectorate at least recognised that law and order 351 Ibid, p 27.

352 Busby to Gipps, 30 Nov 1838, CO 209/2, pp 24-28a. Governor Gipps succeeded Bourke in NSW. In this despatch Busby defended himself against Bourke’s criticism of his official conduct in Parliamentary Papers dated 2 Sept 1835 and 7 Feb 1838 that had only just arrived in New Zealand. The former referred to the 1834 Harriet incident in Taranaki, which was unfair since Busby was not involved (see Bourke to T Spring Rice, 6 Dec 1834, BPP 1835 (585), p 6, IUP, vol 3, p 14). Busby cited Bourke’s failure to take up his protectorate proposal as evidence that Bourke did not treat him with the confidence and respect he deserved. See also Busby to Col Sec, 8 Mar 1839, No 141, pp 297-298, in which stated ‘that further injury [to New Zealand] was likely to result from the entertaining of unpractical[sic] projects, such as that suggested by Captain Hobson’.

116 was as much the result of Māori activity as British.353 It also purported to found a new civil government on Māori rangatiratanga (Congress), however much this rangatiratanga might be subject to the direction of a British Officer. Hobson’s Indian experience must have taught him the difficulty of confining British authority to the geographical area of the factories. Once established, it would inevitably expand beyond these jurisdictional limits, especially as territory was purchased outside the nominal factory area.354 Britain also had to consider the rights of foreign nationals in unceded areas. It became evident, on further reflection, that it would be difficult to ‘ring-fence’ British jurisdiction geographically within Aotearoa.355

The New Zealand Association and the Mission Societies

The Mission Societies still wished to prevent the large scale European settlement of New Zealand, with British authority extending only as far as absolutely necessary. They wished to create a civilized Christian New Zealand, without competition from settlers. Dandeson Coates, Lay Secretary of the CMS London, wrote to Glenelg in early 1838 arguing that the New Zealand Association 1837 plans would ruin New Zealand.356 Busby’s 16 June 1837 protectorate report had confirmed this, he argued. New Zealand was a special case, requiring ‘some departure from the strict letter of the law of nations’. He saw British authority as a necessary guarantor of ‘native sovereignty and independence’. Coates recommended a ‘Court of Judicature’ be established in New Zealand, available to both Europeans and Māori.357 Cession of a ‘small portion’ of land might be necessary on which to erect court buildings. This cession should be ‘absolutely exclusive of colonization’. Coates opposed all species of colonization, including the Association’s proposals for private (though Government-authorised) colonization.358 Colonization, to Coates, meant British settlers moving to New Zealand with a British colonial administration (whether or not it was exercised by a chartered company).

353 The 1831 letter from rangatira to William IV had sought protection against both British subjects and ‘neighbouring tribes’, cited in Stephen memo, 16 Nov 1839, CO 209/5, p 51.

354 See P J Marshall, ‘The British in Asia: Trade to Dominion, 1700-1765’, p 506.

355 Hobson, in early 1839, acknowledged the imperfections of his factory system, see below.

356 Coates to Glenelg, 3 Jan 1838, (Private), CO 209/3, pp 127-129a.

357 Ibid, p 128.

358 Ibid, p 129.

117 Coates supported Busby’s native police force, under the jurisdiction of Māori rangatira.359 He thought that the way Busby dealt with the theft of Captain Wright’s property was a good example of this. Busby had obtained from a Committee of the Congress a warrant for the arrest and deportment to NSW of the Europeans charged with the crime.360 However Coates believed Busby’s picture of the threatened extermination of Māori was ‘exceedingly overcharged’. Other parts of Busby’s proposal he criticised as too complicated and intrusive.361 Rev John Beecham, Secretary of the Wesleyan Missionary Society, also lobbied Glenelg to prevent colonization. If colonization became necessary then it must be directly Government controlled.362 In a 67 page tract presented to Glenelg he critiqued the New Zealand Association plans.363 Despite protestations to the contrary, Beecham argued, the plans depended upon buying Māori land cheaply, or for ‘little more than a nominal consideration’.364 While the Association would appoint a Protector of Aborigines, it would claim unoccupied Māori land as wasteland (as in South Australia). The question then became: ‘what can the Protector do?’365 Beecham concluded that Association unwillingness to pay ‘more than nominal’ consideration for Māori land, its ‘Quixotic’ means of civilising Māori (for example, by introducing feudal recognition of chiefly powers), and the hollow promise of protection, all made its Plan unworthy of the Government’s support.366 In his major November 1837 tract to Glenelg, Coates objected to the Association’s plans on somewhat different grounds from Beecham. Of all metropolitan defenders of Māori interests, Coates took the lead in advocating Māori ‘sovereignty’ and ‘independence’. In this 1837 pamphlet, he pointedly critiqued the idea of the Association obtaining ‘cessions’ of ‘sovereignty’ and ‘unoccupied lands’ from Māori.367 He stated: ‘It is a fact, fully established by the intercourse of the Missionaries with the Natives, that extreme jealousy is entertained by them of being 359 Ibid, p 129. See text at n 185 above.

360 See Busby to Col Sec, 3 Jul 1837, No 113, pp 263-265.

361 Coates to Glenelg, 3 Jan 1838, p 129.

362 Beecham to Glenelg, 26 Jan 1838, CO 209/3, pp 205-206.

363 J Beecham, ‘Colonization: being remarks on Colonization in General with an examination of the proposals of the [New Zealand] Association... [Jan]1838’, CO 209/3, pp 209-242.

364 Ibid, pp 223a-224a.

365 Ibid, pp 235-235a.

366 Ibid, pp 240a-241.

367 Coates, The Principles, Objects, and Plan of the New-Zealand Association Examined, p 13.

118 deprived of their independence and sovereignty, by their intercourse with White People’.368 A necessary precondition of such a plan of acquiring territory and sovereignty would require conveying the practical consequences of these cessions clearly to the Natives, said Coates. He doubted that Māori could understand this, such was their ‘state of barbarism’. He argued that treaties in English or which attempted to convey English concepts in the Native language, because of its ‘rudeness and poverty’, would be difficult for the Natives to comprehend.369 The Aborigines Committee Report (1837) made similar recommendations against treaties with native peoples. The fact that Europeans dictated the terms of colonial treaties meant Aborigines were in no position to negotiate terms as willing and witting parties.370 Coates critiqued the powers requested by the Association by reference to the expansion of the British Empire in India. Coates argued that the Association wanted the power to acquire ‘cessions of territory’ until they had bought up or conquered the whole of New Zealand, just as the East India Company had conquered ‘Hindostan’ (India).371 Colonization, whether by charter or by direct Crown action, would surely lead to conflict and disaster, argued Coates. Māori would inevitably resist colonization: ‘Of great physical and intellectual powers – fierce, uncontrolled, and ungovernable – proud of his rights and independence, and prompt to avenge the infringement or supposed infringement of either’.372 Coates understood that any attempt to limit the scope of colonization would encounter difficulties.

The issue of territorial scope was one of two key issues upon which Glenelg’s offer of a Government charter to the New Zealand Association floundered. One of the charter’s proposed 368 Ibid, pp 16-17.

369 Ibid, p 17.

370 The full quote from the Aborigines Report, p 121, read: ‘As a general rule, however, it is inexpedient that treaties should be frequently entered into between the local governments and the tribes in their vicinity. Compacts between parties negotiating on terms of such entire disparity are rather the preparatives and the apology for disputes than securities for peace: as often as the resentment or the cupidity of the more powerful body may be excited, a ready pretext for complaint will be found in the ambiguity of the language in which their agreements must be drawn up, and in the superior sagacity which the Europeans will exercise in framing, in interpreting, and in evading them. The safety and welfare of an uncivilized race require that their relations with their more cultivated neighbours should be diminished rather than multiplied’.

371 Coates, The Principles, Objects, and Plan of the New-Zealand Association Examined, p 18.

372 Ibid, pp 19-20.

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