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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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The take had already been found: in November 1830, NSW authorities seized a vessel built at Hokianga, the Sir George Murray, with leading rangatira Patuone on board. She was an unregistered vessel travelling without an acknowledged national flag. Other New Zealand-built ships were vulnerable when Busby arrived, their owners unwilling to meet the same fate. One such owner had appealed to Busby for assistance in obtaining registration. Busby apparently approved of his plan to apply to local chiefs for a register. Busby intended to certify the status of the said rangatira as ‘the acknowledged Chiefs of the District’. But he planned to wait until twothirds of chiefs at a hui had agreed upon a ‘National Flag’ together with a ‘Petition to the King of England that their flag shall be respected’. He would then have established a precedent for dealing with these northern rangatira in their ‘collective capacity’ only, and out of which a ‘Tribunal’ or ‘Confederation’ of chiefs would have emerged as the basis of ‘an established Government’ in New Zealand. That ‘Conference’ or hui did not take place for another ten months, in March 1834.48 Busby expressed his notion of orchestrating a pan-tribal collective in a letter to his brother Alexander on 22 June 1833. He wrote enthusiastically of building a ‘Parliament House!’ for rangatira to allow him to instruct them in the art of ‘act[ing] in concert’ – in a kind of aristocratic democracy. Questions should be decided ‘by the will of the Majority’. This was a work in progress as each individual or chief remained ‘for himself’. Within a month of his arrival Busby successfully investigated charges of robbery by a European (possibly from a Māori), a success ‘very apparent to the Natives’. Busby expressed confidence in ‘establish[ing] an influence [among the Natives] which will give me almost entire authority over the Northern part of the Island’. This authority was however to be exercised through the chiefs. In addition to the Parliament House plans, Busby hoped to establish a passport system, whereby chiefs would send out of the country any British subject who did not have the blessing of Busby. He requested the NSW Governor to publish this fact by gazette. He arranged for a ‘passport in the Native language to be engraved’, believing that by this system nearly all convicts or ‘mischievous characters’ would be removed from New Zealand within two years. Busby also wished to

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establish a Native Guard – consisting of the sons of chiefs. He requested the Governor to provide funding for uniforms, arms and accoutrements.49 Busby, in January 1834, advised NSW that a flag should be submitted to the chiefs for their approval as a National Flag for New Zealand. He had been advised – very likely by Henry Williams or other CMS missionaries – that this flag should include the colour red denoting mana.

Otherwise, the chiefs would be ‘slighted’.50 For that reason Busby submitted drawings of three flags prepared by Te Wiremu (Henry Williams). The first flag had been flown from the CMS vessel for some years.51 The chiefs adopted that design on 20 March 1834, in preference to two others prepared in NSW. The margin of the ‘vote’ was narrow – the CMS flag winning out by 12 votes to 10 over another option (the third option managing only three votes). Accordingly, the CMS ensign ‘was declared to be the National Flag of New Zealand’. It was forthwith raised on the flagstaff prepared for the purpose and saluted with twenty-one guns by HMS Alligator (which had brought the flags from Australia).52 In a letter direct to R W Hay, Undersecretary of State for Colonies, Busby described the adoption of the flag as the first ‘National act of the New Zealand chiefs’.53 The first real challenge to Busby’s position as Resident and the first real challenge – in Busby’s eyes – to the effectiveness of this emerging National Confederation came in the form of the attack on the Residency on the night of 30 April 1834. In the affray Busby sustained minor facial injuries from a splinter dislodged by a musket ball. He thought it necessary to despatch a factual 49 Busby to A Busby, 22 June 1833, MS 46, Auckland Museum Library (AML). See also Busby to Col Sec, 17 June 1833, No 17, pp 50-54, in which he included the English text version of the proposed passport: ‘The British Resident of New Zealand prays and requires his friends the Chiefs and all the people of New Zealand to suffer the Bearer [name] being a free subject of H.M. the King of Great Britain and Ireland to pass through or dwell in any part of New Zealand without hindrance or molestation. Given under my hand at…’. The engraved passport was to be in the Māori language (22 June letter to brother) and have ‘the Royal Arms of Great Britain at the top’ (17 June letter to Col Sec).

50 Busby to Col Sec, 13 Jan 1834, No 32 pp 72-73. The word ‘kura’, for the colour red, is a significant word, having a number of meanings related to sacred origins and chiefly status. There are other words for red in te reo Māori as well.

51 Ibid, p 73.

52 Busby to Col Sec, 22 Mar 1834, No 38, pp 84-86.

53 Busby to Hay, 2 April 1834, CO 209/1, p 213a, ATL. Busby had made special arrangements to communicate directly with the Colonial Office in London, thus bypassing NSW Governor Bourke, his immediate superior.





19 account of this event again to Hay directly.54 This, he believed, was necessary to oppose any ‘exaggerated accounts’ that might be published in the English press, or so he told the Colonial Secretary of New South Wales.55 In a further letter to Hay he stated that the chiefs had done all that could be expected, although the lack of ‘national’ institutions of ‘Law’, ‘Government’, or ‘authority’, meant their efforts were inevitably limited. They nevertheless had achieved as much as ‘persons in a more advanced state of civilization’ could have achieved. Busby’s statements reflected a Scottish Enlightenment conception of hierarchical grades or levels of civilization (to be further explored later). Busby noted that the chiefs held a hui at Waitangi of their own volition. He was less pleased that there was no collective plan of action, other than leaving searches for the guilty parties to individual chiefs.56 But, he added to the Colonial Office, considering the missionaries agreed with this course of action, he had little choice in the matter.

He was reluctant to let the issue rest, however, and proposed addressing a circular to all the chiefs to the effect that, in order to keep faith with the British Government, they needed to act to apprehend and punish the offender. He also contemplated making a request of Captain Sadler of HMS Buffalo to suspend his spar supply contract with leading rangatira Titore until the matter was resolved.57 In the months following this April 1834 incident, Busby wavered between proclaiming his faith in the efficacy of collective action by rangatira and the need for his superiors to grant him real legal authority and enforcement power. He normally presented these “options” not so much as alternatives, but rather as two authorities working in combination. The chiefs should provide a basis for government and order, admittedly under Busby’s guidance, with Busby’s authority exercised over shipping and British settlers. Governor Bourke’s failure to respond frustrated him, leading to increased requests for greater jurisdiction (NSW did not respond to his 15 May letter 54 Busby to Hay, 3 May 1834, No 16, CO 209/1, pp 237-238a. He had already sent a number of despatches direct to London, unbeknownst to the colonial authorities in NSW.

55 Busby to Col Sec, 15 May 1834, No 41, pp 89-91 (enclosing copy of remarks to the Secretary of State, being letter of 10 May – see reference next note).

56 Busby to Hay, 10 May 1834, CO 209/1, pp 239-247a.

57 Busby to Col Sec, 15 May 1834, No 41, pp 90-91. Capt Sadler was commissioned to obtained spars in New Zealand for the Royal Navy. He forwarded to Busby on 16 June 1834 a copy of ‘an agreement’ with Titore, Tareha and Wairua at Whangaroa, presumably for the supply of spars. See Sadler to Busby, 16 June 1834, Brit Res InLetters, vol 1, 1832-34, Nat Archives, Wellington, BR 1/1. Busby apparently had in mind an early form of “economic sanction” against Māori: suspension of the Whangaroa contract might have provoked Titore and other rangatira to greater measures to apprehend his attacker. Titore’s importance is explained in the next paragraph.

20 about the attack until after Busby had sent at least three further letters).58 Then Busby believed that the punishment decided upon by the chiefs for the offender was clearly unsatisfactory, and it was not formally enforced until March 1835 – almost a whole year later. The offender was a local Waitangi chief Rete. He came forward to confess his deed. Titore figured prominently in Busby’s account of the investigation and the ultimate decision: this rangatira, regarded by many as the successor to Hongi Hika in the Northern Alliance, said he would himself go to Sydney as a ‘Slave for satisfaction’ if the culprit did not confess.59 Titore proposed at a later hui that the rangatira agree upon Henry Williams’ suggestion that Rete forfeit his land to the King and that they banish him from the district. Williams also advised Busby not to insist on the death penalty for Rete. Busby wrote to the Colonial Secretary and his brother that he considered execution the appropriate punishment since an attack upon him was an attack upon the King.60 Te Wiremu may have considered the Māori custom of muru in proposing forfeiture of land as an appropriate penalty.61 Busby commented upon this custom (without using the Māori word) in explaining to the Colonial Secretary how Māori saw justice. They favoured compensation to the victim, which could be exacted from anyone in the offender’s tribe or area. Execution as ‘community’ retribution was the type of ‘

Abstract

justice’ Busby advocated, but missionary views overruled him.62 Busby grappled with the nature of Māori tikanga and the challenges it posed to a British conception of justice. Busby said that he ‘would not, unless in a case of the greatest extremity, feel justified in using [the chiefs’] power to effect any purpose whatever’. ‘[U]ntil’, he wrote, ‘the Native Chiefs have acquired some idea of the extents and limits of legal authority their power could not be employed for the purpose of maintaining order without risking greater evils 58 Busby to Col Sec, 30 Oct 1834, No 47, pp 97-100, pointed out the lack of response to three previous letters.

Busby to brother Alexander, 17 Nov 1834, MS 46, AML, clarifies that he had received two letters from NSW, but they did not respond to the Residency attack incident, which made Henry Williams think they had never been received. Busby however stated that this could not be so as private letters sent in the same despatch had reached their destinations. Busby complained of Governor Bourke’s ‘character’ in relation to this absence of response, and suggested that he would lay blame for harmful consequences at the Governor’s feet for his failure to act (at p 19).

59 Busby to Alexander, 17 Nov 1834, MS 46, AML. For Titore’s importance, see Capt Sadler to Hay, 12 Jan 1835, CO 209/1, pp 379-380, ATL; and G Phillipson, ‘Bay of Islands Māori and the Crown, 1793-1853’, report commissioned by the Crown Forestry Rental Trust, 2005, p 229.

60 Busby to Col Sec, 30 Oct 1834, No 47, pp 97-100; Busby to Alexander, 17 Nov 1834, MS 46, AML.

61 Busby suggests that muru per se was something to be avoided in this case, see ibid, Busby to Alexander, 17 Nov 1834.

62 Busby to Col Sec, 28 Nov 1834, No 48, pp 103-104.



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