The Treaty of Waitangi; or, how New Zealand became a British Colony

CHAPTER II

SEEKING A WAY

The cry for better Government was thus becoming imperative, and the demand was not a new one. Both the House of Lords and the House of Commons had entered upon exhaustive enquiries into the subject. The former had reported that the responsibility of extending the colonial possessions of the Crown was one that rested solely with the Government, while the latter had declared in spirited terms that "however pressing the nation's need for a vigorous emigration policy, and whatever action the Government might take to meet that need by finding a soil to which its surplus population might retreat, the House would tolerate no scheme which implied violence or fraud in taking possession of such territory." The reference to "surplus population" in the House of Commons' report introduces a new factor into the problem. It indicates internal as well as external pressure; it tells of clamour from the teeming cities, and a rural population discontented with their lot. It suggests that the nation's mind had moved faster than the politicians, and that already many of England's artisans were seeking to escape to some new country where they might live under freer conditions. The popular theory of the political economists of those days was "over population," and the panacea for the existing national poverty was emigration. In spite of the fact that people are the most precious asset a country can ever have, both doctrines found much favour with the different sections of the community whose interest they seemed best to serve; the spirit of colonisation had got into the air, and the question of finding new fields for the energies of the "surplus" people became a practical issue which no Government could afford to ignore. The necessity for doing something appeared impossible of evasion. Poverty at home and crime unchecked abroad clamoured for redress, but just what to do, or how to do it, was not easy of decision.

Sir Richard Bourke had told the Government in plainest terms that unless they were prepared to give the British Resident more power, and permanently station a ship of war on the coast to support him, it would be more in keeping with the dignity of the nation to withdraw him altogether. To give him more power was an impossibility, unless the Government was prepared to violate the express injunction of the House of Commons and all the precedents by which they had acknowledged the independence of the Maoris. It was therefore not practicable to supply the existing deficiency by extending the jurisdiction of Mr. Busby.

In their dilemma the Ministers turned for light and leading to the comparatively few people then in England who had previous experience of these far-away islands. Amongst these was Captain Hobson, who in 1837 had been sent over in H.M.S. Rattlesnake pell-mell to render what aid he could to British shipping and British interests generally, on news reaching Sydney of serious hostilities between two of the northern tribes.28 Captain Hobson had on his return furnished the Governor with a report upon the condition of affairs as he found them at the settlements he had visited. He had also entered into the discussion of a scheme for the future government of the country, in which he favoured proceeding upon the plan of the Hudson Bay and East India Companies by establishing trading factories in different parts of the islands, and so fulfilling what he urged had become a solemn duty to apply a remedy for a growing evil. "It has occurred to me," he wrote, "that if factories were established at the Bay of Islands, at Cloudy Bay, and Hokianga, and in other places as the occupation by British subjects proceeds, a sufficient restraint could be constitutionally imposed on the licentious whites, without exciting the jealousy of the New Zealanders or of any other power. I will not presume to enter too deeply into the details of such a measure, but beg simply to suggest that sections of land be purchased, enclosed, and placed within the influence of British jurisdiction as dependencies of this (New South Wales) colony. The heads of factories should be Magistrates, and the chief factor should, in addition, be accredited to the united chiefs of New Zealand as a political agent and consul. All communications with the British Government should take place through the chief factor, with whom alone the local factors should correspond. All British subjects should be required to register themselves and their landed property at the factories. Two or more respectable British residents nearest to each station should hold Commissions of the Peace to assist the factors. Prisons should be constructed within the factories and legally proclaimed in the colony. A treaty should be concluded with the New Zealand chiefs for the recognition of the factories and the protection of British subjects and property. To meet the expenses which the establishment of a system of factories upon the principle I have mentioned would necessarily entail, funds might be obtained from a variety of sources, such as a small fee on the registration of the purchase of land from the natives, on the entry and clearance of British shipping, and a small percentage on goods and produce imported and exported. The great security which would result from this system would, it is conceived, readily dispose the British subjects resident in New Zealand, to conform to such an impost."

After acknowledging the primary need for Imperial legislation to give effect to his suggested policy, he continues: "The benefit which may be supposed to arise from the establishment of factories in New Zealand is not confined to the mere legal protection they are supposed to afford; but we may hope they will be the means of introducing amongst the natives a system of civil Government which may hereafter be adopted and enlarged upon. Nor is it to be overlooked that in times of intestine war they will afford a safe retreat to our fellow-countrymen, who will then become powerful by concentration."

In the estimation of Sir Richard Bourke, Captain Hobson's scheme contained "suggestions of great value," and in transmitting it to the Colonial Office he not only gave it his full endorsement, but justified it because it was in his opinion "neither possible nor desirable to put a stop to the growing intercourse between the English colonies in these seas and New Zealand." He also raised his voice against the neutral policy which was being pursued, for while admitting the failure of the British Residency, he protested that "it would be difficult for His Majesty's or this Government to act for any length of time upon the stern principle of non-interference if the lives and property of British subjects appeared to be in jeopardy. Any plan, therefore, by which the intercourse may be sufficiently regulated, and usurpation, real or apparent, avoided, is well worthy of serious consideration."

Simultaneously with Captain Hobson's scheme, was sent a letter from Mr. Busby, written while the Rattlesnake was in New Zealand waters. In this communication the Resident also endeavoured, for the guidance of Ministers, to reduce to a system a scheme of government based upon his several years' experience of the people and the country. Governor Bourke evidently looked upon it with a less favourable eye than he did upon the report of the naval officer, and commended it merely as advancing "suggestions that were not without value."

This letter must, however, be regarded by all historians as the more valuable of the two, for in it will be found the germ of the treaty which was afterwards adopted by both Pakeha and Maori as the basis upon which New Zealand was taken into the British Empire; upon which her past progress has been built, and her future prosperity must depend.

In the previous year (1836) Mr. Busby had made a somewhat similar suggestion, founded upon the principle sanctioned by the Treaty of Paris in the case of Great Britain and the Ionian Isles, and also applied in various instances on Britain's Indian frontier. That principle recognised "a protecting state administering in chief the affairs of another State in trust for the inhabitants," and this condition he claimed could be, with but slight modification, applied to New Zealand both economically and efficiently. Mr. Busby was by no means of the opinion, afterwards so contemptuously expressed by Sir George Gipps, that the native Declaration of Independence was "a paper pellet fired off at Baron de Thierry." On the contrary, he attached considerable importance to it, proposing to make it the authority on which the chiefs were entitled to enter into diplomatic relations with Great Britain for the cession of their administrative rights.

"The chiefs who were parties to the articles of Confederation, and to the Declaration of Independence," he wrote, "together with those who subsequently adhered to it, include, with very few exceptions, the whole of the chiefs of influence in the northern parts of the Islands, and the adhesion of the remainder could at any time be procured. Whatever acts approaching to acts of sovereignty or government have been exercised in the country, have been exercised by these chiefs in their individual capacity, as relates to their own people, and in their collective capacity as relates to their negotiations with the British Government, the only Government with which the chiefs or people of New Zealand have had any relations of a diplomatic character. The articles of Confederation having centralised the powers of sovereignty both de jure and de facto by the several chiefs, and having established and declared the basis of a constitution of government founded upon the union of those powers, I cannot, I think, greatly err in assuming that the congress of chiefs, the depositing of the powers of the State, as declared by its constitution, is competent to become a party to a treaty with a foreign power, and to avail itself of foreign assistance in reducing the country under its authority to order, and this principle being once admitted all difficulty appears to me to vanish."

It did not, however, enter into the proposal of Mr. Busby that the British Government should be both in theory and in fact the administrative authority. He still contemplated the retention of the federated chiefs as the nominal source of power, with himself as its presiding genius. "In theory and ostensibly the government would be that of the confederated chiefs, but in reality it must necessarily be that of the protecting power. The chiefs would meet annually, or oftener, and nominally enact the laws proposed to them, but in truth the present race of chiefs could not be entrusted with any discretion whatever in the adoption or rejection of any measure that might be submitted to them."

He proposed to constitute the chiefs guardians of the peace and public morals, and to pay them for their services. Schools were to be established, and the Missionaries and catechists were, as far as their duties would permit, to be appointed Justices of the Peace, whose decisions were, if needs must, to be supported by a military force. Even a periodical newspaper was provided for as a means of "instructing the natives in those relative duties of the people and their rulers, which are familiar to all ranks of the population under established Government, but of which the New Zealanders have scarcely yet formed an idea." Revenue was to be raised by an impost on shipping and a duty upon spirits and tobacco. Indeed, so modest was his contemplated civil establishment that he estimated an expenditure of not more than £1000 per annum would be sufficient to maintain it in adequate splendour. All existing land claims were to be settled by an independent commission, and after that all titles were to be void unless procured through the Government, whose special duty it would be to see that ample reserves were retained for the natives.

Mr. Busby, in submitting these proposals, ventured to suggest that they might be presumed to give an effective degree of protection to the British subjects resident in New Zealand, without infringing on the rights of the New Zealanders as an independent people and at the same time "satisfy the reasonable scruples of a foreign Government." This latter condition was one that in maturing their plans the British Cabinet could not leave out of their consideration; for already both France and America were factors to be counted upon in the South Pacific, and might with almost equal justice claim a share in the sovereignty of the country.

The Government were still wrestling with the perplexities of the position when the New Zealand Association rose into being, and served to still further complicate the issues. There was an opinion in political circles, afterwards crystallised into a definite recommendation by the House of Lords, that the colonisation of New Zealand was the duty of the State, if it was Britain's duty at all, but private enterprise had never been wholly disassociated from the scheme.29 As far back as 1825 a New Zealand Company, "acting with the sanction and encouragement of the Government," had been formed under Lord Durham, and had acquired an estate on the banks of the Hokianga River. This settlement, under Captain Heard, had been of the most fugitive character; but the land still remained more or less an asset, and subsequently was acquired by the New Zealand Association, founded in 1837 by the Hon. Francis Baring, M.P. for Sheffield, in conjunction with other gentlemen prominent in English public life of that day. This Association grew out of an enquiry made at the instance of the House of Commons by a committee called the Committee on Colonial Lands, but the real subject of the enquiry was colonisation. One of the principal witnesses was Mr. Edward Gibbon Wakefield, who gave some account of the then existing state of New Zealand, and spoke of it as a country extremely eligible for the purpose of British colonisation, provided some regular system should be adopted in place of the lawless practices that were then rampant. In consequence of that statement, a member of the committee spoke to him upon the subject of colonising New Zealand. Subsequently other gentlemen were admitted to their discussions, and as a result of their joint deliberations they determined to form an Association for the purpose of obtaining from Parliament (for Parliamentary aid was considered essential) some regulation both for the colonisation and the government of the Islands, to take the place of the irregular practices that were then on foot.

There is little doubt that in its inception the Association had a large measure of philanthropy underlying its principles, for it was the outcome of the unsatisfactory social conditions existing in England at that period. The scheme attracted to its aid men of wealth and culture, and under the organising genius of Edward Gibbon Wakefield it acquired an influence, both social and political, which no government could safely regard with indifference.30

To secure New Zealand as a British possession; to find a profitable investment for British capital; and to provide employment and opportunity for England's idle labour were the nominal objects for which the Association had been formed. To give these purposes practical effect the Association had, under the guiding hand of Wakefield, formulated definite theories upon the subject of colonisation; and to the end that their ideals might be achieved they sought the assistance of the Government and the sanction of Parliament.

On a day in June 1837 they secured an interview with the Prime Minister, Lord Melbourne, whom they found attended by Lord Howick, a member of the Government, though not of the Colonial Office, and who was present, so they were told, in the character of an adviser on the subject, he having paid considerable attention to colonial problems. The aims and purposes of the Association were laid before the Ministers by Mr. Baring, chairman of the society, and the result of the deputation was an assurance from the Premier that for himself he saw no objection to the scheme of the Association, and that he perceived in some of their purposes a laudable object, but that not being familiarly conversant with such subjects he did not care to do more than to express his general approbation, and to refer the deputation for the discussion of all matters of detail to Lord Howick, who was well informed on all such questions, and who possessed, in the office which he held, as much leisure as would enable him to attend to the subject. The committee was highly satisfied with their interview, and communicated in various ways with Lord Howick upon the details of their plan, amongst other things submitting to him a draft of the Bill which they proposed to introduce into the House of Commons. Lord Howick examined the Bill, and both in conversation and in writing suggested various modifications, which though not universally approved by the promoters, were adopted in their entirety rather than risk the loss of that influence which they considered essential to the success of their plan – the assistance of the Executive Government. The death of the King, William IV., at this juncture, put a sudden termination to their political proceedings; but the outlook for their negotiation appeared so satisfactory that, pending the assembly of the new Parliament, they published an invitation to all persons so disposed to join the Association for the purpose of emigrating to New Zealand. The publication of this resolution drew to their ranks a large body of wealthy and influential people; and when Parliament met again in December of the same year a very considerable number of persons had expressed their intention of settling in the new colony. Accordingly the committee, on December 13, again waited on Lord Melbourne with a view to obtaining his final approval upon the measure which they proposed to submit to the Commons. As at the previous interview, the object of the Association in seeking this second conference was stated by Mr. Baring, when Lord Melbourne, who appeared to have forgotten what had passed on the former occasion, referred the deputation to Lord Glenelg, who was present as Colonial Minister.

This gentleman at once adopted an attitude of hostility to the whole proposal, his objections being primarily that the jealousy of foreign powers might be excited by the extension of British colonies; that England had colonies enough; that they were very expensive to govern and to manage; and that they were not of sufficient value to make it worth while to increase their number.31 The rebuttal of these unexpected objections involved a discussion of over an hour, during which considerable feeling was displayed by some of the gentlemen present, who saw in the attitude of the Minister a grim prospect of their scheme being thwarted. Several of these had, during the interval since the previous interview, disposed of their property and quitted professions in which they were engaged, with a view to emigrating, and they now felt very strongly the position in which they were placed by the withdrawal of the Ministerial approval which they believed their enterprise was to receive. One of these was described to Lord Melbourne as having wound up his affairs with a view to emigrating, and as being likely to suffer very seriously from now finding himself unable to carry his plan into effect. Lord Melbourne, not knowing that he was present, said that such an individual must be mad. The gentleman immediately rose and, facing the Premier, said that he was the madman. This created a distinctly dramatic situation, and the conference was on the point of breaking up in excitement and disorder when Lord Melbourne was reminded of his former sympathetic reception of the Association's proposals, whereupon he held a further brief consultation with the leaders of the deputation, and gave them to understand that the matter would be again considered by the Government, and that if they would wait upon Lord Glenelg in a week's time they would get an answer more to their satisfaction. Pursuant to that arrangement, the same body of persons waited on the Colonial Secretary on that day week (Wednesday, December 20), when Lord Glenelg informed them that the subject of the colonisation of New Zealand had been reconsidered by the Cabinet, and that circumstances which had occurred during the interval had induced Ministers to think that their former view was not the correct one. What had happened to so influence the Ministerial mind was the receipt of those important despatches from Mr. Busby, the British Resident, and from Captain Hobson, in which both these officers urged the need for a more vigorous policy on the part of the Colonial Office in its relations with New Zealand. The opinions of the Government, therefore, now approximated somewhat more closely to those of the Association, but there was still some hesitancy in proceeding by way of Act of Parliament. The Colonial Department, Lord Glenelg said, had fully considered the matter, and were satisfied that the measures desired might be carried into complete effect without applying to Parliament at all; and that they were consequently prepared, in the exercise of the power of the Crown vested in the Secretary of State for the Colonial Department, to give to the Association a Charter of Incorporation, being a Charter of government similar to those which were granted in the sixteenth and seventeenth centuries to the companies which founded the thirteen great colonies in America. Nine days after this interview the Association received an official letter from Lord Glenelg, reiterating his offer of a Charter, and calling upon the committee to form their members into a Joint-Stock Company with a subscribed capital sufficient to qualify them for the Charter he proposed to issue. This proposition was wholly unacceptable to the Association for two vital reasons. They had from the beginning declared that they intended to take no private pecuniary interest in the undertaking, and yet in spite of their care in this direction they had been very untruly charged before the public with having no other object than that of private pecuniary gain for themselves. Again some of their most influential leaders were persons, such as distinguished clergymen of the Established Church, holding preferment, who were almost disqualified by that circumstance from becoming members of a Joint-Stock Company, and, therefore, it was unanimously resolved that the offer of the Colonial Secretary could not be accepted. But though this avenue of procedure was closed there was still another open to them, and it was determined to procure, if possible, the passage of a Bill through Parliament, based upon the plan which they had originally placed before the Government. Such a Bill was brought into the House of Commons by Mr. Baring, but owing to the opposition of the Ministers, including Lord Howick,32 and the widespread impression that the Association was nothing better than a land-sharking Company, the measure was defeated by a large majority.

The discussion which was provoked by this Bill was responsible for concentrating public attention upon two points, namely, the objects which animated the Association, and, secondly, the diversity of opinion which existed on the subject of British sovereignty in New Zealand. One of the most ardent advocates of the Association was the Rev. Dr. Hinds, a clergyman of the Established Church, who had been greatly impressed by the social stagnation in England, and who had joined the committee in the hope of providing some outlet for the country's allegedly "surplus" population. Dr. Hinds told the Committee of the House of Lords in 183833 that he considered the colonisation of New Zealand expedient because of the number of persons of various classes in Great Britain who were anxious to settle themselves in a colony in New Zealand; persons who from their character, station, and other considerations, had a claim on the British Parliament to facilitate that object. The feeling, he assured their Lordships, in favour of such a colony was deep seated and sincere, supporting his contention by quoting letters he had received from Scotland,34 where, he said, existing conditions were clamant for an immediate remedy. That remedy, he contended, the colonisation of New Zealand would supply. "There is," he said, "an abundance of capital and an abundance of labour in Great Britain, and the abundance of capital the capitalists can hardly employ so as to be sufficiently remunerative by any investment in this country. At the same time there is a great mass of the labouring population who can no longer obtain sufficient wages to keep up what have become the necessaries of life to them. The proposed colony would therefore be a measure of relief to both the capitalists and labourers."s