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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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21 than it could remedy’. He worried about chiefs exacting justice for personal gain. A distinction existed in Busby’s mind between the personal power and authority of chiefs exercising customary powers of muru, and a British authority based on legal (impersonal) forms and procedures. At the same time, he was confident that his influence with the chiefs would enable the emergence of ‘established Government, and impartial laws’ without New Zealand becoming ‘a direct dependency of the British Crown’; this would in turn secure British settlement and trade. Busby’s presentation of the state of affairs in New Zealand, including the difficulties of bringing about law and order, must also be seen as supporting an appeal to his superiors for greater legal jurisdiction. He requested a constabulary of two (European) officers, with ‘two young Chiefs’ working alongside. In total he requested annual funding of £200 to £300 to retain the services of around twenty Māori as a ‘Native Guard’ to live with him at Waitangi. In addition he requested £100 annually in ‘conciliating the Chiefs’ – in particular ‘procuring the sons of the most influential of them to be educated under my direction’.63 In Busby’s letters he wrote that he considered the Rete event as ‘the crisis of British affairs’ in New Zealand.64 To his brother he wrote that this was a test case of whether the chiefs would and could act so as to secure peace again and thus preserve ‘commercial intercourse’, without being able to call on an armed force to ‘over-awe’ the inhabitants.65 Busby appealed to Captain Lambert of HMS Alligator for naval support. Williams apparently agreed with Busby that the presence of a war ship would add at least symbolic weight (if not actual force) to chiefly and British authority. Williams and his colleagues also believed that the chiefs would enforce the punishment.66 This motif of naval support for Busby’s authority appeared again in March 1835, when Busby called on the captain of HMS Hyacinth to remain in the Bay until the chiefs enforced Rete’s forfeiture of land (a decision Bourke approved later). At a hui on 14 March, twenty rangatira unanimously support the sentence against Rete. The next issue was, however, how exactly to effect this? Busby wanted as much of a show of force and authority as possible to create an ‘effectual and permanent’ impression on the Native ‘mind’. However, the hui 63 Busby to Col Sec, 28 Nov 1834, No 48, pp 103-106. The ‘Native Guard’ concept was mentioned specifically by Busby as early as a letter to Col Sec, 17 June 1833, No 20, pp 58-61: Bourke’s original instructions had apparently authorized him ‘to claim protection for the persons of myself family and servants either by the establishment of one or other of the Principal chiefs at or near my dwelling; or by placing a native guard over it...’.

64 Busby to Col Sec, 28 Nov 1834, No 48, p 101; Busby to Alexander, 17 Nov 1834, MS 46, AML.

65 Busby to Alexander, 17 Nov 1834, MS 46, AML.

66 Busby to Col Sec, 28 Nov 1834, No 48, p 101.

22 expressed concern that too large a party would look like a taua (war party) and might be provocative, (while some chiefs were concerned at personal ‘illwill’ against themselves). The hui approved a deputation of four chiefs to enforce the sentence. But this four increased to twelve when, according to Busby, some had overheard him tell Pomare of his intention to make gifts of blankets to those chiefs who accompanied him – as a recognition, it seems, of their time and trouble – this payment was duly performed following the party’s return to Waitangi. The forfeiture of land at Puketona (four miles distant from the Residency) was proclaimed with some ceremony and little opposition, Rete’s relatives even burning down huts on the land when Busby expressed his desire that this be done – to prevent future reoccupation. Busby then ‘took possession of the place as the King of England’s farm, and as they [the chiefs, probably] desired me to give it a name, I called it “Ingarani”- the native name for England’. The rangatira of the official party divided a quantity of Rete’s potatoes and a field of growing corn amongst themselves. A deed signed by the rangatira confiscated approximately 130 acres and ‘vested’ it in the King of England.67 This, however, was not the end of the Rete affair. Around two months later, Busby complained to the Colonial Secretary that the chiefs had ‘not fulfilled their engagement, that they would compel Rete… to quit this District’. After discovering that Rete frequented fishing huts within a quarter of a mile of the Residency, Busby burned them down. Busby had allowed local Māori to continue to use these fishing huts, despite his purchase of the land without reserving fishing places. His precipitate action in destroying these huts – without notice to their habitual users (Rete’s ‘friends’) and without consulting either chiefs or missionaries – provoked disquiet and the threat of retaliation. The missionaries disapproved and may even have encouraged the Māori concerned to seek compensation from Busby. Busby told a relation of Rete’s that the chiefs had dishonoured their pledge of expelling Rete from the district. He did not, it seems, receive a very positive Māori response.68 Bourke’s suggestion that Busby place some of his Māori ‘supporters.





.. upon it as [his] Bailiffs’, however, was unrealistic: no Māori would be prepared to put himself in such an invidious position, wrote Busby.69 67 Busby to Col Sec, 16 Mar 1835, No 51, pp108-111.

68 Busby to Col Sec, 11 May 1835, No 54, pp 118-119.

69 Busby to Col Sec, 25 Sept 1835, No 66, p 147.

23 By mid-1835, therefore, Busby’s attempts to encourage the growth of collective action by the chiefs to enable law enforcement had mixed results.70 However, he remained committed to the principle of a chiefly collective, having always spoken of its development over time. A deputation of missionaries and ‘respectable settlers’ (including Henry Williams and trader James Clendon) in September requested a prohibition on spirits. Busby rebuffed them. In a despatch to NSW he reminded his superiors that he needed ‘legal authority’ – an increasingly common refrain of Busby’s – to work in conjunction with chiefly authority. The requested ban on liquor imports involved the search and perhaps seizure of British vessels and possessions. He distrusted the chiefs in their willingness or capacity to conduct such operations without causing further strife (especially as these operations were British in nature). He also believed that rangatira might get bought-off by a liquor trader. However, if the operations of Māori were supervised by a British official or ‘Constable’ he thought this system might work.71 He reiterated his call for a police power in the form of two British constables and two Native chiefs, and naval support. He alluded to a ‘treaty’ with chiefs for the purchase, for a fixed period, of ‘right and title’ to all harbour and other monetary impositions on European shipping (especially tonnage duties) to fund prohibition. At the end of this period this regime could be taken over by a Māori government. Alternatively a further ‘purchase’ of these rights could be made. Such a ‘treaty’ could extend from the Bay to Hokianga, Whangaroa and Maunganui (with Britain paying £500 each for the Bay and Hokianga harbours for a period of 21 years). Since the purpose of these ventures was the ‘preservation of order’, and hence the enabling of trade, Busby also believed that the American Government might subscribe to this treaty (enabling exaction of the tonnage duty from American ships). Such a treaty could also exempt British subjects from subjection to Māori power or authority, unless with the co-operation and under the direction of a British authority (in relation to search and seizure operations), but could also stipulate that chiefs lend their active support to the Residency in controlling British subjects under its jurisdiction.72 70 Busby to Col Sec, 25 Sept 1835, No 66, pp147-148.

71 Busby to Col Sec, 10 Sept 1835, No 65, pp138-142.

72 Busby to Col Sec, 11 Sept 1835, No 65/2 (Private & Confid.), pp142-147. By December 1834, Governor Bourke had already virtually written off Busby as ineffective, in his correspondence with London, see Bourke to T Spring

Rice, 6 Dec 1834, BPP 1835 (585), p 6, IUP, vol 3, p 14. Bourke attributed this ineffectiveness to several factors:

Busby had not earned the respect of the European residents of the Bay of Islands. He had not formed a close working relationship with chiefs, thus he could not call on their aid to restrain violence. Nor had he been granted legal jurisdiction to deport British subjects to NSW for trial. Bourke recommended that Parliament grant these extraterritorial powers and that a naval vessel be stationed in the Bay to aid Busby’s authority. Bourke concluded 24 A month later, on 10 October 1835, Busby wrote to the Colonial Secretary, protesting against the Additional British Resident’s (McDonnell’s) ‘legislation’ prohibiting the importation and sale of liquor at a public meeting of chiefs and settlers at Hokianga. Busby claimed McDonnell lacked jurisdiction for such a regulation: McDonnell had no authority from the British Government to enact legislation interfering with British property, and the New Zealand Chiefs ‘in their collective capacity’ had not sanctioned this liquor law. Busby reiterated his conviction that authority in New Zealand needed to be founded on the chiefly collective, even if this was insufficient to achieve practical governance (certainly in respect of British subjects).73 From the beginning Busby had objected to McDonnell’s appointment. He alleged that McDonnell’s trading operations in the Hokianga would cause conflicts of interest to arise in disputes with other traders and perhaps Māori. He also alleged that McDonnell had paid little for his extensive claims to land in New Zealand – certainly not nearly the amount paid by the missionaries and himself.74 McDonnell, for his part, sought to discredit Busby in numerous letters both to NSW and London over the next few years.75 Although Governor Bourke was to retrospectively approve McDonnell’s liquor law, much to Busby’s disgust, he did so mainly because McDonnell convinced him that the Hokianga chiefs would enforce the measure.76 However, the interpretation of one historian that Busby was motivated to call together the Confederation of Chiefs to declare their independence in order to override the legitimacy of McDonnell’s Hokianga liquor law, is inconsistent with of Busby’s consistent attempts, from the beginning of that if such measures were not adopted, it would be more creditable to the British Government to withdraw Busby completely.

73 Busby to Col Sec, 10 Oct 1835, No 67, pp148-150.

74 Busby to Col Sec, 7 Aug 1835, No 61, pp131-135.

75 See Bourke to Glenelg, 13 Sept 1837, No 90, CO 209/2, pp 60-61a, in which Bourke regretted McDonnell’s harsh comments about both Busby and the CMS missionaries. He described McDonnell as ‘a person of such sanguine and hasty temperament...’ (see also Historical Records Australia (HRA) 1/19, p 90). McDonnell accused Busby of having ‘compelled me to resign’ as Additional Resident. He accused Charles Baker of the CMS of having actively obstructed his peacemaking. He also accused the ‘Church Missionary Natives’ of being ‘far worse than the unenlightened Savages’, McDonnell to Col Sec, 24 July 1837, CO 209/2, pp 70-72 (encl in above, Bourke to Glenelg, 13 Sept 1837).

76 Bourke believed ‘that Moetara and his Countrymen should take a most prominent part’ in enforcing the law. It ‘should be imposed…under the Native Law by New Zealanders, and not by the British’ (emphasis in original), Col Sec to McDonnell, 24 Oct 1835, CO 209/3, p 461. McDonnell dutifully circulated a (handwritten) notice dated 14 Dec 1835, (CO 209/3, p 476), which stated: ‘The Native Law made and passed by the Chiefs of this District…[banning liquor imports] within their jurisdiction having received the sanction and approval of …[Governor] Bourke’ will now be enforced by the said Chiefs. McDonnell will not ‘interfere with any steps that they may take to accomplish their object after this warning’.

25 his appointment, to work through a collective of chiefs. Indeed he had always wanted to deal only with a collective.77 The concomitant of the argument that McDonnell’s actions provoked the Declaration is the argument that Baron de Thierry did not. In fact Ross argues that the Baron was a mere pretext for the Declaration, when the real reason was Busby’s jealousy of McDonnell. Yet, it may well be that de Theirry’s well known assertion of his authority as ‘Sovereign Chief of New Zealand’ not only led to the Declaration, the very language of his letters to Busby and missionaries William Williams and King, may have given Busby the specific idea of a declaration of independence. As de Thierry had declared his sovereign independence within all his (purchased) dominions, so Busby was to compose a very similarly worded declaration for the New Zealand chiefs. To

Busby, de Thierry wrote:

I am on my way to New Zealand for the purpose of establishing there a Sovereign Government, and address you [as] His Britannic Majesty’s Consular Agent at the Bay of Islands to inform you of my early arrival having already declared my independence to their majesties the Kings of Great Britain and France, and to the President of the United States.78 And to the missionaries, he used these words: ‘Invited by many Native chiefs, Shungie [Hongi] the foremost. And as a Sovereign Chief by purchase, I have declared the Independence of New Zealand; that is[,] my own Independence as Sovereign Chief...’.79 In both letters he spoke at some length of establishing a Government for the protection and prosperity of both white traders and settlers and Māori, whereby Māori and New Zealand would be raised to a state of ‘Civilization’.

77 J O Ross, ‘Busby and the Declaration of Independence’, New Zealand Journal of History, vol 14, no 1, 1980, pp 83-89. Ross says the second article of the Declaration was totally irrelevant, reading it as an attack on McDonnell’s law; however legislative authority and government/executive functions were clearly envisaged by Busby much earlier – as seen in the concept of a Native Parliament, and were in any event an elaboration on the concept of an ‘Independent State’ in para 1 of Declaration. See reasoning below.



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