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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 meaning of ‘independence’ central to the Declaration or He Wakaputanga can likewise be understood by reference to the British constitution and British history. Busby described Britain as the ‘Protector’ of a Māori ‘Independent State’. Both he and the missionaries believed in an ‘independent’ state ‘dependent’ on the British Empire – a contradiction, but completely 102 W Bagehot, The English Constitution, R H S Crossman, ed, (London: Fontana, 1963), p 60. Bagehot thought this description of the constitution ‘erroneous’, though it was nevertheless ‘influential’ (p 59). He thought cabinet exercised far more control than the theory suggested.This book was published shortly before the Second Reform Act 1867 extended the vote to around 58% of adult males in boroughs. Both Blackstone and Bagehot use the terms ‘aristocracy’, ‘monarchy’ and ‘democracy’, forms of government.

103 Blackstone, Commentaries, vol 1, p 51. ‘Co-eval’ = having same age, existing at same epoch.

104 Ibid, p 41.

36 consistent with other British ‘protectorate’ arrangements. This suggests that Busby and Williams viewed ‘international relations’ as an interaction of peoples, states, or nations of unequal power, in which a British jurisdiction was carved out, leading often to a layered system of jurisdictions.

Dr Johnson can also assist in understanding a British conception of ‘independence’. Reflecting on a trip to the Highlands of Scotland in 1770s, he wrote of this ‘Nation just rising from

barbarity’:

There was perhaps never any change of national manners so quick, so great, and so general… We came thither too late to see what we expected… a system of antiquated life. The clans retain little now of their original character, their ferocity of temper is softened, their military ardour is extinguished, their dignity of independence is depressed, their contempt of government subdued, and the reverence for their chiefs abated.105 Although writing in a very different context and some fifty to sixty years later, Busby’s comments on the nature of Māori society stand in the same general tradition as Johnson’s. Busby was himself lowland Scots (he grew up in Edinburgh, though one of his parents was English). By the early nineteenth century many Scots wholeheartedly embraced the Union of Parliaments with England of 1707. As Scotland had emerged from clan conflict in the Highlands, so also it had advanced in commerce, education and civilization. This was the context in which Adam Smith of Edinburgh wrote of his four stages of civilizational growth: from the savage hunter-gatherer state, to barbarous herdsmen, to agricultural semi-civilized societies, to prosperous ‘polite’ commercial and settled societies. This scheme of philosophical history was called ‘stadial’ history, meaning history divided into stages or periods of development from ‘savagery to civilization’.

Busby’s comments should be located within this ‘Scottish Enlightenment’ tradition and, more broadly, a European civic humanist tradition. In these traditions of thought, the freedom and liberty exercised by these confederations of warrior chieftains was praised, but their barbarian 105 Cited in R Porter, Enlightenment: Britain and the Creation of the Modern World (London: Penguin, 2000), p 244.

37 independence from each other was viewed as a barrier to the development of a settled state of civil society. This somewhat negative accent can be observed in the Johnson quote above.

Generally speaking, however, the personal liberty exercised by the German or Saxon ancestors of the English was seen as a good thing, as indicative of their contempt for political slavery and capable of producing constitutional liberty.106 Similarly, Busby did not believe that a patchwork of tribal sovereignties could be the future of New Zealand. If New Zealand Māori were to advance in civilization and prosperity they needed to confederate their tribes, combining their many sovereignties to effect a collective sovereignty.

Only in so doing could their state of society be truly ‘independent’ in the sense of having a ‘Legal Authority’ or government established along British lines. Their tribal independence would become thereby a national (constitutional, governmental) independence and sovereignty. The text of the Declaration itself will now be examined.

The Language of the Declaration (English Text) Article 1 We, the hereditary chiefs and heads of the tribes of the Northern parts of New Zealand, being assembled at Waitangi, in the Bay of Islands on this 28th day of October, 1835, declare the Independence of our country, which is hereby constituted and declared to be an Independent State, under the designation of The United Tribes of New Zealand.

106 See S D Carpenter, ‘History, Law and Land: The Languages of Native Policy in New Zealand’s General Assembly, 1858-62’, MA thesis, Massey University, 2008, pp 43-45. A positive affirmation of the polity consisting of independent warrior chiefs or ‘citizen-soldiers’ actively engaged in government can be seen in the writings of Adam Ferguson, who forged a renewed vision of the classical republican tradition in his Essay on the History of Civil Society (1767). Ferguson said, for example: ‘The rivalship of separate communities, and the agitations of a free people, are the principles of political life, and the school of men’, cited in F Oz-Salzberger, ‘Civil Society in the





Scottish Enlightenment’, in S Kaviraj and S Khilnani, eds, Civil Society: History and Possibilities (Cambridge:

Cambridge University Press, 2001), p 68. Oz-Salzberger describes Ferguson’s understanding of the unity of society and state/government: ‘The polity becomes a natural phenomenon: it is as natural for the members of civil society to run their political affairs as it is natural for them, savages and modern Britons alike, to fight, hunt, or play’, ibid., p 73.

38 The first article was intended to effect two things: it declared the independence of the country of New Zealand, and it constituted by means of that declaration an ‘Independent State’ called or named ‘The United Tribes of New Zealand’. This dual formulation – a declaration and constitution in one – suggested that Busby understood independence as founded on ‘statehood’ or some form of united polity or ‘nationality’. The problem, however, was that prior to the Declaration this united polity did not exist. There was no formal institution to articulate the collective will, apart from an embryonic Confederation of Chiefs. A nascent Confederation acted in instances such as the flag and Rete initiatives. If there was no state nationality or government prior to the Declaration, then it is obvious that, in Busby’s mind, one had to be created. This ‘chicken or egg’ scenario was one encountered by the American revolutionaries in making their Declaration of Independence in 1776. One John Dickinson of Pennsylvania articulated this

argument in Congress during the debates on the draft Declaration:

The formation of our government and an agreement upon the terms of our confederation ought to precede the assumption of our station among sovereigns. A sovereignty composed of several distinct bodies of men not subject to established constitutions, and not combined together by confirmed articles of union, is such a sovereignty as has never appeared.107 Armitage, in his recent work on the American Declaration and its variants, poses the historic issue in this fashion: ‘How could independence be declared, except by a body that was already independent in the sense understood by the law of nations?... A mere declaration alone could not constitute independence; it could only announce what had already been achieved by other means’.108 The American Declaration was not in fact intended to constitute the new confederated state or nation. At the same time as that Declaration was being drafted, so also were draft articles of confederation (constituting the new state) and a model treaty of commerce and alliance (enabling transactions with other states to be entered into).109 By contrast, Busby’s English text attempted both to constitute and to declare the independence of the new ‘Independent State’ at 107 Clark, The Language of Liberty 1660-1832, p 121.

108 D Armitage, The Declaration of Independence: A Global History (Cambridge, Mass: Harvard University Press, 2007), pp 80-81.

109 Ibid, p 35.

39 the same time. Busby intended to conflate a ‘constitution’ and a declaration in the one document.

In his most important 1837 despatch, he referred to ‘Articles of Confederation’ and the ‘Declaration of Independence’ almost as if they were two separate documents:

The articles of Confederation having established and declared the basis of a Constitution of Government, it follows, I think, that the rights of a Sovereign power exist in the members of that confederation, however limited the exercise of those rights has hitherto been.110 The American example was the most prominent example of a prior declaration that Busby had to draw upon. The ‘republican’ or ‘federal/confederal’ wording of the Declaration, together with this later reference to ‘Articles of Confederation’ (an exact replica of the 1776 American phraseology) immediately suggests the American inspiration. This theme will be returned to shortly.

As for the nature and function of a ‘declaration’ in the law of nations of this period, it was essentially equivalent to a ‘declaration of war’ or, indeed, a ‘declaration of independence’ in twentieth century usage. According to Armitage, ‘in contemporary [late eighteenth, early nineteenth century] diplomatic parlance, a declaration meant a formal international announcement by an official body, “either by a general manifesto, published to all the world; or by a note to each particular court, delivered by an ambassador” ’111 There was also the civil court meaning of ‘the declaration, narration, or count’, defined by Blackstone in 1765 as ‘[the form] in which the plaintiff sets forth his cause of complaint at length’.112 Both the 1776 and the 1835 Declarations belonged primarily to the first category – ‘general manifesto[s], published to all the world’, although the American version contained other elements.113 As well as despatching a copy of the Declaration to NSW, Busby also despatched copies to the LMS missionaries in 110 Busby to Col Sec, 16 Jun1837, No 112, pp 245-263, p 251.

111 Armitage, The Declaration of Independence, p 31, citing Robert Plumer Ward, An Enquiry Into the Manner in Which the Different Wars in Europe Have Commenced, During the Last Two Centuries: To Which Are Added the Authorities Upon the Nature of a Modern Declaration (London, 1805).

112 Ibid, p 31.

113 Notably the American declaration, in one of its sections, set out grievances or complaints against King George III.

40 Tahiti (for the obvious purpose of forestalling de Thierry’s New Zealand adventure) and the British Consul in Hawai’i.114 Article 2 All sovereign power and authority within the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity, who also declare that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled.

The second paragraph or article enumerated the powers to be exercised by the independent state of the United Tribes of New Zealand: the generic supreme or ‘sovereign’ authority, all legislative powers, and all ‘function[s] of government’. The exercise of these powers was expressly limited to the ‘the said territories’ of the Chiefs. This is limited in article one to ‘the Northern parts of New Zealand’ (‘i raro mai o Hauraki’). The Chiefs collective powers could also be delegated by way of legislation. Busby no doubt envisaged himself as one of the chief ‘appointees’ of the rangatira. All legislation was to be made ‘in Congress’, the first of two uses of this word.

This second article was not an afterthought or an unnecessary addition designed to oppose McDonnell’s spirits prohibition. Busby used the phrase ‘function of government’ prior to McDonnell taking this action at Hokianga in early October 1835.115 On 10 September Busby

wrote:

114 Busby to Col Sec, 31 Oct 35, No 69, pp 155-156. The appointment of such Consuls was a form of international recognition of other nations. The United States accredited James R Clendon to the United Tribes in 1839. James Stephen minuted Busby’s letter to Col Office of 19 Sept 1839: ‘the United States have still a Consul accredited to the Chiefs, which Consul is recognized in that capacity by the British Resident. We shall certainly not assume the Sovereignty of that Country without a violent remonstrance from the United States’, Stephen minute 22 Apr 1840, CO 209/4, p 75a.

115 See Busby to Col Sec, 10 Oct 1835, No 67, pp 148-150.

41 [The Natives] look to the Europeans to effect…[prohibition]; and indeed they are by their ignorance equally incapable of their rights as an independent people; and by the absence of all established authority for the exercise of this or any other function of government [emphasis added].116 Busby’s use of the concept of independence in relation to function of government is another indication that he saw true independence (at least in a pan-tribal national sense) as founded on established government, something Māori did not have in September 1835.

Article 3 The hereditary chiefs and heads of tribes agree to meet in Congress at Waitangi in the autumn of each year, for the purpose of framing laws for the dispensation of justice, the preservation of peace and good order, and the regulation of trade; and they cordially invite the Southern tribes to lay aside their private animosities and to consult the safety and welfare of our common country, by joining the Confederation of the United Tribes.



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