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426 Hutt to Normanby, 29 Apr 1839, Stephen minute, 30 April, CO to Hutt, 1 May 1839 (draft), CO 209/4, pp 532The Colonial Office resistance to New Company plans continued throughout 1839. Stephen was at the forefront of this resistance. In October he wrote that he was convinced that the Company was trying to cover-up an ‘Establishment by their own authority of a Conventional System of Govt in [New Zealand] ’. In subsequent correspondence ‘the Coy themselves virtually admit to have been [guilty of] an illegal usurpation of Royal Authority, Lord Durham being the leader in that measure ’, Stephen to Vernon Smith, 24 Oct 1839, CO 209/4, pp 577-580. Although Durham was granted an interview, against Stephen’s wishes, this was on condition that it be ‘distinctly understood that I [Normanby] do not by doing so recognize in any manner the Assn... [nor] sanction the object for which this assn has been constituted’, CO to Durham, 28 May 1839, (draft), CO 209/4, pp 562-562a.

130 Hobson accepted the Consulship of New Zealand on 14 February 1839.427 The Crown issued Letters Patent on 15 June 1839, which extended the boundaries of NSW to include ‘any territory which is or may be acquired in sovereignty by Her Majesty, Her Heirs or successors’ in New Zealand. On 30 July Hobson was made Lieutenant-Governor ‘in and over that part of Our Territory which is or may be acquired in Sovereignty in New Zealand’. On 13 August Hobson’s appointment as Consul was confirmed and he departed England on 25 August 1839.428 One final piece of policy advice from Stephen is noteworthy. In a letter of 28 July 1839 to Vernon Smith, Stephen critiqued American case law on aboriginal nations, in particular Johnson v M’Intosh (1823). He considered British law in Canada more ‘humane’ than the Marshall jurisprudence. In Canada, land was first purchased from aborigines by the Crown. In America, Indians occupied the land ‘on sufferance’ as European states claimed title by right of discovery and conquest. He also distinguished Māori society from Indian society, stating the New Zealanders were agriculturalists rather than herdsmen. They had ‘a settled form of Government’ and had ‘divided and appropriated the whole Territory amongst them’. In any event, Britain disavowed sovereignty in New Zealand. For these reasons, United States aboriginal law was not good British law.429 Stephen’s placement of Māori high on the civilizational scale was no doubt designed to appeal to stadial definitions of sovereignty and independence – though it did not qualify them for full international status. Yet Stephen’s core assumption was incorporated in Normanby’s final instructions, issued on 14 August 1839: since Māori exercised a tribal sovereignty (or government), they had legal standing to enter into a Treaty which granted sovereignty (or government) to the Crown.430 427 Palmer, Treaty of Waitangi, p 47.

428 Ibid, p 48.

429 Stephen to Vernon Smith, 28 Jul 1839, CO 209/4, pp 343-344.

430 In a minute on Hobson's reports of 3-6 Feb 1840, Stephen wrote: '[Hobson's reports]... prove, if proof were wanting, how much wiser was the course taken of negotiating for a Cession of Sovereignty, than would have been the case of relying on the proceedings of Captain Cook, or the language of Vattel in opposition to our own Statute Book', Stephen to Vernon Smith, 9 Jul 1840, CO 209/6, p33a. Stephen, here, appears to be rejecting any British right to the sovereignty of New Zealand on the grounds of discovery (‘Cpt Cook’), or on the basis of limited use and occupation of Māori, leaving Britain free to claim the unused portions (‘Vattel’). New Zealand Company interests argued both of these positions.


Busby’s View of the Confederation, 1839

In defending his official conduct and accomplishments to Glenelg, in February 1839,431 Busby commented on te Wakaminenga. Busby rejected Bourke’s charges that he had failed to win the confidence of the Chiefs or to accomplish any of the objects of Bourke’s 13 April 1833 instructions. These instructions specified that conciliating the Chiefs was Busby’s “most important duty”. Busby claimed that he had ‘entirely succeeded’ in this object.432 He paid

particular attention to the accomplishment of the Confederation:

The basis of a settled form of Govt has also been established by the Confederation of Chiefs on principles Sufficiently Comprehensive to embrace all the Tribes in the Islands. And though no overt acts of Govt or Legislation has[sic] proceeded from this union... it has not been without a beneficial effect of a negative character.

The Confederation still had the potential, argued Busby, to politically and governmentally

unify the country. However, its purpose had been stymied by lack of resources:

While, had Sir R Bourke complied with my urgent request [12 Mar 1836 des, No 89] to be enabled to visit and obtain the adhesion of other Tribes, it would have proved a but[buttress?] to the interference of any foreign power or the establishment of any other authority [18 Jun 1836 des, No 97] than what should emanate from itself [the Confederation] throughout the Islands.

He reiterated the key problem that had beset an effective Confederation government; the lack of authority, both from within the Confederation and from outside it. He explained that … in attempting to obtain the cooperation of the Chiefs in execution of any of the functions of a Govt, or to establish amongst them any system of Jurisprudence,

–  –  –

there was no foundation on which I could proceed. The Native Chiefs possessed no authority, and they could not, therefore, impart to me what they did not possess. No one Tribe had acquired such a preponderating influence as to overawe the rest; nor could any Chief secure the assistance…to enable him to enforce the obedience either of his own Tribe, or of others beyond them…433 A Wakaminenga or Confederation force which was resisted would be bound to fail. Moreover, in New Zealand, ‘all exertion of power is violence, and the only law that of the strong arm...

[Māori] have not, in fact, acquired the ideas of authority and subordination’. Busby, consequently, had to exercise the greatest ‘caution in bringing a [Confederation] power into action, which I had not the means to control’. He could have proclaimed a Code of Laws, but he could not enforce it.434 Bourke, also, never provided him with police power, so he had no ability to bring wrongdoers to justice.435 Busby completed his appraisal of the Confederation’s failure with some metaphysical or

scriptural reflections:

I was ‘not able to make that straight which God made crooked’. Divine Providence has denied to this Country the blessings of Social Institutions, and the protection of established laws. The New Zealander is still the son of Ishmael, the ‘wild man whose hand is against every man and every man’s hand against him’; and he is likely so to continue till the race shall become extinct, unless some Civilized State should take them not only nationally, but individually, under its protection.

This My Lord is a truth which is now undisputed by the Missionaries and by all others [well enough informed to comment reliably on New Zealand].436

–  –  –

Despite their influence, the missionaries ‘will not restrain the wicked. Till human nature is changed the majority [of Māori]…will require the strong arm of the law…to make them respect the rights of their neighbours’.437 The Confederation’s authority had not been entirely ineffective. In addition to the warrant Busby obtained from a Confederation committee for the arrest of Europeans (for the theft of Captain Wright’s property), Busby appeared to utilize Confederation authority to execute a Hokianga ‘slave’. The crime was murder of a European, Henry Biddle. Busby reported to NSW that Māori executed the ‘slave’ ‘after as fair a trial as circumstances would admit of…on my application in the name of the Queen’. The executioner ‘appointed by the Chiefs’ shot him after a day-long public trial attended by both Māori and Pākehā. Busby instructed what appeared to be the allPākehā jury that a two-thirds majority would be sufficient to convict. An 8-9 year old boy was an accessory, but since he was not a ‘slave’, any attempt to try him ‘would have roused the whole tribe to arms…’438 The NSW Attorney General later protested Busby’s failure to act in a manner that would make it clear that the sentence was an impartial one, unrelated to slavery. Busby rejected the inference that he allowed the execution of a man because he was a slave, not because he was a murderer. He declared that ‘the safety of my Countrymen demanded the example which was made…’ The new Governor, Sir George Gipps, needed ‘to be aware that there exists neither law nor Government in any form in New Zealand… Justice is however essentially independent of Law… and that it was administered, perhaps for the first time in New Zealand… is a triumph of order which persons unacquainted with New Zealand, can ill appreciate…’ Busby expostulated that the example set ‘will do more to teach the New Zealanders the advantages arising from the regular administration of justice and to prepare them for its establishment, than a whole volume of Instructions and exhortations upon the subject’.439 Busby’s defensive assertion that ‘justice’ was different from ‘law’ was at least consistent with his view that there were no effective legal institutions in New Zealand. His resort to a jury and a Confederation executioner nonetheless showed Māori what ‘civilized’ justice looked like.

–  –  –

The CMS in New Zealand Having considered a number of pre-1840 proposals for British intervention in New Zealand, it remains to consider the views on this subject of Henry Williams and the CMS in New Zealand.

In late 1837, Sydney defence lawyers subpoena’d Henry Williams, Baker and Davis in the Captain Wright theft case. According to one account, Williams’ evidence in Sydney helped to convict the accused, James Doyle.440 Doyle was executed there in December 1837. Coates used this example to highlight deficiencies in the existing enforcement of the law.441 Doyle and other Europeans were assisting Pomare in the fight with the Northern Alliance when they attacked and plundered Wright’s property. The Sydney trial interrupted Williams’ mission work for around three months.442 These circumstances no doubt influenced Williams’ view that greater British involvement in New Zealand was necessary.

Yet Williams was more concerned about large scale British colonization than a few rogue British subjects in the New Zealand. Within a month of his return from Sydney, Williams wrote to Coates expressing alarm at the New Zealand Association plans.443 He presented the two options as British Government protection or the ‘slavery’ or ‘extirpation’ of Māori. He elaborated on

these two themes:

The European Settlers are making rapid advances and are beginning to hold out threats.

Should any encouragement be given to the Association, thousands would immediately come and over-run the whole country and the natives must give way. The only protection I can propose is that the English Government should take charge of the Country as the Guardians of New Zealand and that the Chiefs should be incorporated into a general assembly under the guidance of certain Officers with an English Governor at their head, 440 Rogers, Te Wiremu, p 136.

441 Coates to Glenelg, 23 July 1838, CO 209/3, p 166. According to Coates, a ‘Native Chief of the District under the influence of Mr Busby’ apprehended the offender.

442 Rogers, Te Wiremu, p 136.

443 Williams to Coates, 11 Jan 1838, (rec’d 24 Aug 1838), CMS/CN/0 101, reel 65. See same letter in H Carleton, The Life of Henry Williams, vol 1 (Auckland: Upton & Co, 1874), pp 231-232.

135 and protected by a Military Force, which would be the only means of giving weight to any laws which might be established, and preserve that order and peace so much desired.

The natives have many years since proposed that this should have been done and have repeated their desire from time to time.

Williams’ proposal reflected the broad outlines of Busby’s protectorate proposal. Congress, or an ‘assembly’ of rangatira, would act as a legislature under the direction of a British Resident or Governor. A military force would ensure that these laws were carried out.

George Clarke’s 1 March 1838 letter, on behalf of the CMS Northern District Committee in New Zealand expanded on the concerns raised in Williams’ letter.444 Having considered the New Zealand Associations’ tract the Committee recommended That the whole country be recd under the protection and guardian care of the British Government for a certain number of years – with a resident Governor & other officers with a Military Force, to support their authority and ensure obedience to all laws which may be enacted.

That the Principle Chiefs of Tribes being regarded as members of Congress under the guidance of the Governor and Counsel [Executive Council?] who collectively shall enact all laws & by whose authority all offenders shall be punished.

This account clearly saw the 1835 Wakaminenga as the foundation of the proposed government.

Like Williams’ account, Clarke’s appeared to grant Congress a little more influence in law making than under Busby’s 1837 protectorate, in which rangatira would have (initially at least) almost no discretion in rejecting or adopting laws proposed by the Resident or Governor.

Clarke’s next paragraph combined the stadial language of civilizational growth with the

missionary language of moral transformation:

444 Clarke (Corr Sec Northern Ctee) to Coates, 1 Mar 1838, encl in Williams to Coates, 4 June 1838, CMS/CN/0 101, reel 65. See same letter in Carleton, The Life of Henry Williams, vol 2, p 232.

136 This mode of proceeding we consider the most salutary as a commencement and most likely to redeem this people from that degraded and immoral state in which they are.

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