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By F.M. Brookfield
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Additional info for Waitangi & Indigenous Rights: Revolution, Law & Legitimation
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Revolutions, coups, and the ordinary citizen: when does allegiance shift? ’ PART 2 4 Aotearoa New Zealand: the Constitutional Background Maori legal and constitutional orders The United Kingdom Constitution Preliminaries to colonization An attempted revolution? The Declaration of Confederation and Independence The Treaty of Waitangi What was (purportedly) ceded and what was reserved? Kawanatanga: a subordinate power? Did kawanatanga extend to Maori? The non-signatories The Tribunal and kawanatanga: summary comment 5 Revolutions and Counter-Revolutions 1840–1986 The 1840 revolution Rules of the 1840 revolution Maori as British subjects Maori autonomy Section 71 of the New Zealand Constitution Act The division of the Crown: another revolution?
Under this the courts of the pre-revolutionary order recognize as valid the day-to-day acts of government of the revolutionary regime and of public officers appointed by it, but not acts advancing or entrenching the revolution. This form of the doctrine rests on the authority of civilian writers (Hugo Grotius46 and others); and on American post-Civil War cases, such as Texas v White (1869)47 and Baldy v Hunter (1898)48 in the United States Supreme Court, in which it was necessary for the Court to consider the validity of acts of government of the secessionist states.
This appears to have been the case in England, where historically all the functions of government — executive, legislative and judicial — have inhered in the monarch. The monarch’s being deposed and replaced by a rival claimant, who seizes power in all three areas but leaves the constitutional structure unchanged, constitutes a coup within the monarchy. 19 That included the legislation of their parliaments. 21 But the English legal system has not accommodated republican change. The republics of 1649 to 1660 were revolutionary in their replacement of the monarchy and the structure of government.