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78 De Thierry to Busby, 14 Sept 1835, Tahiti, CO 209/2, p 85.

79 De Thierry to Rev W Williams & Mr King, 14 Sept 1835, Tahiti, CO 209/2, p 89.

26 There was nothing inevitable about the Declaration. While it is true that Governor Bourke’s instructions to Busby invited him to encourage amongst Māori a ‘settled form of government’, it focused on the establishment of courts rather than a legislative authority.80 Words and concepts such as ‘Confederation of Chiefs’, ‘Congress’ and ‘Parliament House’ appear to be Busby’s own. Busby commenced his New Zealand duties with a clear conception of a Confederation of Chiefs. He saw this Confederation exercising a collective Sovereignty or Government by means of a national assembly or Parliament. He merged these ideas into the 1835 Declaration. De Thierry provided the impetus and perhaps the immediate inspiration for this.

In his letter to the Colonial Secretary reporting his initiation of the Declaration, Busby explained the specific rationale for the Declaration. He intended it to embrace tribes south of Tai Tokerau.

He envisaged a national confederation, to forestall foreign intervention, by incorporating as many regions and tribal sovereignties as possible. Previously Busby was pre-occupied with the Bay and Hokianga, the geographical reach of his Residency. Nevertheless, he had previously alluded to an annual Congress or Confederation in proposing the ‘Parliament House’ for pantribal discussion in 1833. And he had described the 1834 flag as the chiefs’ first ‘National act’ – as a collective expression of individual ‘Sovereignties’. Busby saw such a confederate government as a natural outgrowth or reflection of Māori leadership style – a forum of chiefs who had had both inherited and earned their places in it. This followed eighteenth century English statesman Edmund Burke’s reasoning, in which constitutional growth was seen as organically evolving, as a reflection of the habits, morality and customs of a people.

Busby justified the Declaration by arguing that the establishment of a national chiefly government would allow the British Government to exercise informal control at limited expense.

He argued that acknowledging Māori ‘property in Land’ and the tribes’ ‘natural rulers’ was consistent with British policy. A military presence would be just sufficient to execute the rangatira-sanctioned British laws. In a sweeping conclusion to his 31 October letter, Busby argued that the Declaration established a British protectorate or ‘dependency’. Appealing to Burkean notions of trusteeship, he argued that since Britain was interfering in New Zealand, it needed to confer advantages on Māori by holding in trust their rights and interests. Britain could

–  –  –

protect Māori and advance its own interests without expensive military or naval intervention.

Busby implied that the Declaration went some way to achieving both these goals.81 The ‘International Standing’ of the Declaration British Empire: a diversity of ‘sovereignties’ From the Treaty of Westphalia in 1648, to the Congress of Vienna in 1815, to the Berlin Conference in 1884-5, European empires and states encountered a number of transformations in association, conglomeration, and the nature of internal rule, which in turn affected their respective overseas colonial empires. The Treaty of Westphalia marked the end of the major wars of religion that had dominated Reformation and post-Reformation Europe of the sixteenth and seventeenth centuries. Emerging from these convulsions was the early-modern states system, in which emperors, kings, and princes asserted a territorial authority over their respective lands, kingdoms, and empires, quite apart from the authority over their subject-peoples.

The earlier form of feudal relationship between rulers and ruled was defined by Sir Henry Maine, a later nineteenth century legal historian, as ‘tribe-sovereignty’. Following Westphalia, however, rulers came to assert not just imperium – command or authority – over their subjects, but dominium also – rights of territorial domination or possession. The King of the English (Rex Anglorum) became King of England (Rex Angliae), the King of the French (Rex Francorum), King of France (Rex Franciae), and so on. This transformation in the internal relations of states spilled over into their empires. A century and a half of European empire building later, the Congress of Vienna in 1815 marked the end of the Napoleonic Wars, in which Napoleon had failed in his attempt to build a new unitary European imperium or empire. This arguably made other European states wary of their claims and the nature of their rule in other parts of the world.

In 1776, also, Britain’s American colonies had declared their independence and defeated Britain’s imperium (empire) and dominium (sovereignty). Emerging from the fall of the ‘first

–  –  –

British empire’ in America and the experience of a Napoleonic Europe was the more diverse ‘second British empire’. Forms of political trusteeship emerged in Britain’s Indian empire following the campaign against and impeachment of Governor Warren Hastings in the 1780s, in which greater Government supervision was exercised over the conduct of the East India Company in its commercial and civil governance of a number of Indian states. Edmund Burke, in a number of key speeches on Indian governance in the 1780s, articulated the ‘trusteeship’ principle in relation to native states and peoples. After the crises of the American and French Revolutions, Britain’s dealings with non-European peoples became characterised by a plurality of different relations in the nineteenth century. Protectorates and dependencies in Asia, Africa and the Pacific contrasted with outright rule of some Indian states. In between these ‘soft’ and ‘hard’ versions of empire, Britain shared jurisdiction with Indian princes, exercised ‘indirect rule’ through native potentates in Africa or India, or made treaties with such native rulers for a defined territorial jurisdiction – as in the coastal settlements and ‘factories’ of West Africa and India.

British commercial empire, which began with factories in many Indian states, evolved into territorial empire achieved by military force. Yet even in these Indian states in which Britain (or rather the East India Company) exercised a theoretically absolute imperium from the 1760s and 70s, British authority worked through existing hierarchies of the landed and ruling elites. Local landlords collected revenue and local legal experts operated in part the civil and criminal justice systems in Bengal. The British Empire, like many other empires before it, consisted of a plurality of different authorities or ‘sovereignties’, sometimes with sharp territorial boundaries between jurisdictions (as with the factories), but more often working with or through local elites to extract goods and services for (in many cases) a commercial empire, with the least possible expense.82 Busby’s justification of the Declaration of Independence 1835 can be seen in this light: as an 82 This account relies on A Pagden, ‘Fellow Citizens and Imperial Subjects: Conquest and Sovereignty in Europe's

Overseas Empires’, History and Theory, vol 44, 2005, pp 28-46; L Benton, ‘Colonial Law and Cultural Difference:

Jurisdictional Politics and the Formation of the Colonial State’, Comparative Studies in Society and History, vol 41, no 3, 1999, pp 583-588; and P Burroughs, ‘Imperial Institutions and the Government of Empire’, in A Porter, ed, The Oxford History of the British Empire, vol 3: The Nineteenth Century (Oxford and New York: Oxford University Press, 1999), pp 170-197; also P J Marshall, ‘The British in Asia: Trade to Dominion, 1700-1765’, pp 485-507, and H V Bowen, ‘British India, 1765-1813: The Metropolitan Context’, pp 530-551, in P J Marshall, ed, The Oxford History of the British Empire, vol 2: The Eighteenth Century (Oxford and New York: Oxford University Press, 1998); and M C Finn, ‘The Authority of the Law’, in P Mandler, ed, Liberty and Authority in Victorian Britain (Oxford and New York: Oxford University Press, 2006), pp159-178.

29 argument for ‘informal control’ or ‘indirect rule’ exercised through a Congress of Māori elites (rangatira).83 British sovereignty or ‘paramountcy’ might follow annexation, as in New Zealand (1840) and Fiji (1874). It might also be exercised through indigenous rulers, as in the protected Malay states which from 1874 accepted British resident ‘advisers’. In such cases Britain declared a ‘protectorate’, which stopped short of formal annexation and a declaration of sovereignty but which created effective colonial control. Burroughs argues that these later nineteenth century protectorates were more about controlling British subjects than about trade imperatives. These assertions of extra-territorial control inhabited a grey zone ‘in the absence of clear British precedents and comprehensive rules of international law’. Concerning Fijian discussions, an

official wrote in 1870:

A protectorate is sometimes proposed. I do not quite know what this means. I suppose it is an intimation to the world – that nobody then must assume sovereignty over these Islands or make war on them – but if they have any grievance against them they must apply to us.

Burroughs says the protectorate was ‘an amorphous, elastic concept’ developed to avoid the administrative burden of annexation, though this burden was usually avoided only initially.84 Within this plural empire definitions of imperium (‘empire’, ‘imperial power’, or ‘command’) and dominium (‘sovereign power’, ‘right of possession or use’, ‘territory’) were never static.85 Their form and expression varied from place to place. Not until the Berlin Conference in 1884-5 did a recognisably twentieth century version of nation-state sovereignty begin to emerge. This envisaged a community of equal nation-states with each exercising an absolute authority within 83 See Busby to Col Sec, 31 Oct 35, No 69, pp 156-57, discussed above.

84 Burroughs, ‘Imperial Institutions and the Government of Empire’, pp 190-91. See also W D McIntyre, The Imperial Frontier in the Tropics 1865-75: A Study of British Colonial Policy in West Africa, Malaya and the South Pacific in the Age of Gladstone and Disraeli (London: Macmillan, 1967), pp 359-371.

85 The definitions of these terms in brackets are from Johnson’s Dictionary (1824): ‘Empire’ (empipe, Sax): imperial power; supreme dominion (Rowe); the region over which dominion is extended (Temple); command over anything.

And ‘Dominion’ (domaine, Fr): sovereign authority; unlimited power (Milton); power; right of possession or use (Locke); territory; region; district (Davies).

30 its territorial boundaries. This state system did not really solidify until the 1920s, following the First World War. Nation-states were only constrained to the extent they consented to international conventions or treaties, much as individuals are constrained by contracts they enter into. In the late nineteenth century European states entered into treaties with aboriginal rulers to establish ‘effective [colonial] occupation’. Europe applied this doctrine only after the Berlin Conference of 1884-5, which coincided with the so-called ‘scramble for Africa’. The use of treaties in this way had as much to do, if not more, with the international law standards being applied by the contesting European nations, than it did with recognising aboriginal sovereignty.86 The emergence in the late nineteenth-century of the autonomous and independent nation-state was at least partly influenced by positivist definitions of state sovereignty. The whakapapa (genealogy) of this notion can be traced from the all powerful Leviathan of Thomas Hobbes, through Jeremy Bentham, to John Austin’s lectures at London University in 1829-30. It is surely no coincidence that Bentham, the great positivist jurist, first used the term ‘international law’ to describe ‘the mutual transactions between sovereigns as such’.87 A positivist notion of state sovereignty dominated the Wi Parata decision of 1877. However, even in 1877, it should be pointed out that the positivist discourse had yet to become legal orthodoxy. Prendergast CJ held that Māori society did not have any recognizable structures of government or institutions of law.

On this Busby and many of his contemporaries agreed. Busby believed Māori lacked any effective pan-tribal or national government. But Busby would not have agreed with the positivist legal conclusion to which this premise led Prendergast: that Māori possessed no legal capacity to enter into treaties. To Prendergast, the Treaty of Waitangi was a ‘simple nullity’, because Māori society was a non-legal entity.88 This highly European statist model of positivism did not predominate until some time after 1840.

Notions of sovereignty and authority were much looser and more pluralistic during the first half of the nineteenth century. Busby, from the very beginning of his Residency, recognized that 86 D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’, Quinnipiac Law Review, vol 17, 1997, pp 99-138; P Burroughs, ‘Imperial Institutions and the Government of Empire’, pp 192-95 (especially); M P K Sorrenson, ‘Treaties in British Colonial Policy’, in W Renwick, ed, Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts (Wellington: Victoria University Press, 1991), pp 15-29 (pp 18-19 esp); A Pagden, ‘Fellow Citizens and Imperial Subjects’, p 39.

87 According to Armitage, see n 91 above.

88 Wi Parata v The Bishop of Wellington & The Attorney General [1877] SC 72, 77-78.

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