WHY A TREATY?

New Zealand Herald, Volume LXXI, Issue 21716, 3 February 1934, Page 1 (Supplement)

WHY A TREATY?

BY 3IATANGA . .

l-ROM COOK TO HOBSON

Raised in many minds by the Waitangi celebrations is a question of great importance: Why was there any need of a treaty? Those thoughtful enough to ask the question, yet ill-informed about events of old history and facts of old law, usually mention Cook's planting; of the flag and proclamation of sovereignty and aro content to look no further until a doubt enters their minds because of " the fuss made about tho treaty." Only when a careful survey is made of the period between Cook and Hobson is found an answer to their question. The compact between British and Maori in 1840 implies acknowledged possession by the Maori. Round that fact tho answer gathers. Whatever Cook had done was not decisive. It might have been made so. It was not. Mere discovery was not enough to confer a right of possession. Time was when it would havo done so, after the manner of the old Roman law that gave the finder of a derelict article in the street a perfect claim to it. That law, good New Zealanders doubtless know, has gone by the board. Long ago, its application to lands lying about in the world was abandoned. The pretensions of Portugal and Spain to territories of their discovering led to a somewhat close scrutiny of the doctrine, with the result that there was enunciated this principle—" Prior discovery, though still held in considerable respect, is not universally held to give an exclusive title." Unless followed by occupation, evidenced bv settlement, " discovery is only so far useful," runs this principle, " that it gives additional value to acts in themselves doubtful or inadequate." Nothing was done by Cook, or by the British Government after his announcement of his discovery, to settle these islands. In the state of international opinion of his day, such occupation would have been decisive. True, he found Maoris here in occupation, and by the rule they would seem to have had" a good title. But there was then a pleasant fiction that savages were incapable of possessing territory. Still, there was something to be said for their claim even under the rule that was gaining acceptance; it implied what has since been clearly —that occupation, as a basis of claim to sovereignty, must be reasonably effective, having regard to the circumstances of the particular case; and there can be no doubt that in the particular circumstances of the case the fighting habits of the Maori had to be reckoned. His prowess got such a fame that some nations, after the manner of Tasrnan's decision as entered in. his journal, preferred to give Old New Zealand a wide berth. British settlement, however, did go on; but the point to be given special attention is that it went on without Government sanction, even in opposiion to Government policy, and was thus in no sense a national enterprise. It became so only after Hobaon's giving effect to his commissions in 1840. The establishment of Wellington by the arrival of colonists there before then was nationally an event born out of due time A Changing Situation Cook's proclamation, made under a Royal Commission in the name of George 111, was recognised in certain documents issued soon after 1769. Eight years "later, a Royal Commission was granted to Captain Phillip appointing him *' Captain-Creneral and Governor-in-Chief in and over the territory of New South Wales and its Dependencies," which dependencies, from the details of latitude and longitude given, were clearly meant to include New Zealand. In 1814, the year o:r Marsden's coming. New Zealand was more definitely declared by proclamation to be a dependency of New South Wales, and Governor Macquarie appointed Justices of the Peace here by regular commission. But in 1817 there was enacted by the British Parliament the first of a series of measures entirely altering the position. Three separate Acts dealing with the punishment of certain offences " committed in places not within His Majesty's Dominion " mention, among other such places, New Zealand. Then came a remarkable happening in New Zealand itself. Thirteen chiefs, ir: a letter sent to England, asked for the protection of the British Crown ' against the neighbouring tribes, and against British subjects residing in the inlands." They did not, as might be supposed, make any acknowledgment cl: British sovereignty in so approaching the Crown. Far otherwise; the appeal might be reasonably viewed as one t:> a foreign Pow r er whose alliance was sought. In any case, the answer these chiefs received, when James Busby was a ppointed as British Resident, was conveyed through his hands in a letter in v hich the King, addressed them as an independent people. In Busby's ills' ructions, moreover, received from Governor Darling, New Zealand had l] ention as a foreign country, and he v as accredited to the chiefs. As if to r .ake the position clearer still, the native chiefs were persuaded, not long a fter, to choose their own flag.

Busby's Service It was the startling scheme of Ilaron de Thierry that carried a little further this definition of New Zealand ai! an independent country. He threatened to establish a, kingdom of his own on the large tract of land he thought Kendall had secured for him, and he notified Busby accordingly. Busby saw in this a. danger of the whole country's becoming French. He knew of the growing eagerness of France to become established here, in the hope of making good Crozet's proclamation of French sovereignty. But he was in a. dilemma. The British Government, then indisposed to take any steps to extend the national bounds, was at that time opposing all schemes to colonise New Zealand; colonies, in general, were in dsfavour. To apply to it would have bi>en useless. He must do something h mself, or else let the Frenchman's claim go uncontested. Busbv hit upon a plan. Fearing delay while he consulted his immediate superior, the Governor of New South Wales, he took n xm himself the responsibility of calling together the chiefs who had in the p-evions year been induced by him to clioose a flag. They signed a document declaring their country an independent S ;ate under the name of "The United Tribes of New Zealand." _ In this document they signified their willingness to grant protection and facilities to all British subjects desiring to resort I to New Zealand for the purpose of tiade. > Completing the Task Busby's move had much astuteness. II was in thorough conformity with tiiic view of the status of New Zealand tiiien and for some time afterwards held l>;r the British Government. But I;iusby"s taking of things into his own hands left him in danger of a sharp r;;,p oil the knuckles, tic got it. The Governor of New South Wales —when his learned that the Baron's scheme hud failed, through its own weakness — reprimanded Busby for exceeding his authority and perpetrating what he oj!lied " a silly and unauthorised act" and for "a. paper pellet fired off at B iron d.e Thierry." Whether the Governor would have felt free to administer this reprimand had the Baron succeeded in establishing himself is very doubtful, as we shall see.