Lapas attēli

pointed with certain powers, to be derived from the governor and legislative council of New South Wales, to inquire into and report on all claims to such lands, and that all persons having such claims will be required to prove the same before the said commission when appointed. And I do further proclaim and declare that all purchases of land which may be made from any of the chiefs or native tribes thereof, after the date of these presents, will be considered as absolutely null and void, and will not be confirmed or in any way recognized by Her Majesty.

It is to be observed that these proclamations had reference only to territory in New Zealand that, under the first proclamation, "is or may be acquired in sovereignty by Her Majesty." At the date of these proc lamations no such sovereignty had ever been acquired. New Zealand was still, to use the expressions of the Marquis of Normanby and of Lord John Russell, "a sovereign and independent state," and recognized as such by Great Britain. The sovereignty that Mr. Hobson was to negotiate for was yet to be acquired. Uutil such cession was obtained the proclamations were inefficacious; and, if obtained by treaty, any provision in the antecedent proclamations inconsistent with the stipulations of the treaty would be thereby necessarily annulled. Accordingly the treaty of Waitangi was concluded on the 6th day of February, 1840. It recites that Her Majesty has empowered William Hobson, a captain in the royal navy, consul and lieutenant-governor over such parts of New Zealand as may be, or hereafter shall be, ceded to Her Majesty, to invite the confederated and independent chiefs of New Zealand to concur in certain articles and conditions. These are:

First. The chiefs of the confederation of the united tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty absolutely all the rights and powers of sovereignty which they respectively exercise or possess over their respective territories, as the sole sovereigns thereof. Second. The Queen of England confirms and guarantees to the chiefs and tribes, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of all their lands and estates, forests, fisheries, and other properties, which they may collectively or individually possess, so long as it is their wish or desire to retain the same in their possession; but the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of preëmption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Third. In consideration thereof, Her Majesty extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects.

Shortly after the assumption by Great Britain of sovereignty over New Zealand the governor and legislative council of New South Wales, the jurisdiction of which colony had been extended to include New Zealand, passed, in 1840, an act empowering the governor of New South Wales to appoint commissioners to examine and report on claims to grants of land in New Zealand. This act in substance provided that all titles to lands in New Zealand which were not, or may not be hereafter, allowed by Her Majesty were and are absolutely void. This statute or ordinance was not long in force, and was repealed June 9, 1841, New Zealand having been separated from the government of New South Wales and erected into a colony by royal charter; whereupon, as part of the repealing act, the ordinance known as the New Zealand land-claimants' ordinance was adopted by New Zealand, by which it was ordained that all titles to land in that colony held or claimed by

virtue of purchases, conveyances, agreements, or other titles, either immediately or mediately from the chiefs or aborigines and native tribes, which may not have been, or may not be hereafter, allowed by Her Majesty shall be absolutely null and void.

The ordinance provides for a commission to hear, examine, and report on such claims to lands which have been acquired, and the extent and situation of the same; the prices paid for the lands, the time and manner of payment, and without taking into consideration the prices which may have been paid therefor by any subsequent purchaser. The commission was also directed to ascertain the number of acres which such payments would have been equivalent to according to the rates fixed in a certain schedule which were, as to purchases from January 1, 1837, to December 31, 1838, from 28. to 48. per acre, and from January 1, 1839, to December 31, 1839, were from 48. to 8s. per acre. It was also provided that no grant shall be recommended by the commissioners which shall exceed in extent 2,500 acres, unless it is plainly authorized thereunto by the governor or the council; and it was further provided that nothing contained in the ordinance shall be held to oblige the governor to make or deliver any grants unless he shall deem it proper to do so. Mr. Webster and other citizens of the United States, then resident in New Zealand, had previously become apprehensive that their estates would be attacked by the commission, which Mr. Hobson had stated in his proclamation would be appointed, and by the fact herein before stated that an act had been passed in New South Wales providing for its appointment, stating its purpose to be "to examine and report on claims to grants of land in New Zealand." Mr. Webster, accordingly, on behalf of himself and his fellow citizens, on the 4th day of November, 1840, addressed a letter to Mr. Williams, the consul for the United States at Sydney, New South Wales.

He states in this letter that the British Government had taken possession of some parts of the islands; that proclamations had been issued that all titles to lands acquired from the native chiefs are to be sent to the office of the colonial secretary at Sydney; that he supposes they intend to allow whatever proportion of the land they may think proper, and asks to be informed what all Americans in the island are to do with the large quantity of land they had purchased. He presents a schedule of the lands purchased by him, and the amount paid in the premises, and requests the consul to make the facts known to the American Government as early as possible. He states that, to the best of his knowl edge, about 1,000,000 acres of land had been purchased in the island by citizens of the United States, for which they had expended about 50,000 pounds sterling, besides several years' labor. He states that the British Government has not taken "any of my lands as yet, but I expect they will take all from me, and every other American, unless our Government will take it in hand and stop it. I trust you will make this known to the United States Government as early as possible, so that all Americans may know how to act in this case."

Consul Williams had not meanwhile been inattentive to the situation. It is stated in Rusden's History of New Zealand (vol. 1, p. 245, et seq.), a work of great completeness, and evidently written with access by the author to every source of information, official and otherwise, that—

When the American consul saw Gipps' New Zealand bill he inquired (June 11, 1840,) whether "it was expected that American citizens who may have acquired by purchase or otherwise lands or titles in New Zealand shall submit their titles to the proposed commission." The governor replied that he had sought instructions "as to the course to be pursued with reference to lands claimed by persons other than Brit

ish subjects," and he regretted that he could in the mean time give no more definite


When the laws of New South Wales were extended to New Zealand the consul (Williams) again asked Governor Gipps (June 22, 1840) whether the enactment was intended to "affect the commercial relations of the United States and New Zealand?" The governor replied that it "was not intended to alter in any way the commercial relations between any part of the territory comprised between the limits of this government and the United States, it being indeed incompetent for the legislature of any colony to pass laws affecting its relations with foreign powers. Sir G. Gipps deems it right, however, in making this communication, to add that New Zealand having been placed by Her Majesty under this government, the trade between it and all foreign countries will be governed, he presumes, by the laws which regulate the general trade of the Empire, although he has as yet received no communication from Her Majesty's Government on the subject."

The consul inferred that "all cases having reference to citizens of the United States residing at New Zealand, or resorting thither for the purposes of trade, will remain upon the same footing as in former years," and questions arising would be referred to England and America. The governor coincided as to reference of disputes, but, although "he could not pledge himself that the intercourse between citizens of the United States and the people of New Zealand shall remain exactly on the same footing as at present, he will endeavor (and especially with regard to the whale fishery and curing of whale oil) to obviate any cause of complaint as far as it be in his power to do so." The governor told Lord John Russell (July 23, 1840) that the question might affect the consul's countrymen as land claimants, whale fishers, and importers. There had hitherto been no customs duties or port charges in New Zealand. He proposed to postpone inquiries as to the titles of foreigners until he had disposed of claims of Her Majesty's subjects.


Lord John Russell consulted Lord Palmerston. He thought the rules with regard to titles ought "to be relaxed in favor of any aliens possessing lands in New Zealand by virtue of valid titles acquired previous to the proclamation of the Queen's sovereignty there." Lord Palmerston deemed the proposal "liberal, but just." Though such claimants could not reasonably object to be called upon to prove their titles, "yet, as in the case of a conquered colony, it would not be just to apply retrospectively to aliens who had become land-owners before the islands formed part of the dominions of the British crown the law which prevents aliens from acquiring landed property within those dominions."

The lieutenant-governor of New Zealand, nevertheless, by order dated February 9, 1841, directed all persons not subjects of Her Majesty who had purchased land from the aborigines previous to January 30, 1840, to forward a copy of their claims to the colonial secretary's office at Auckland, on or before June 1, 1841.

In the New Zealand Gazette of October 20, 1841, there was published another order of the governor in which it was stated

For the information of foreigners claiming land in New Zealand by purchase from the natives prior to the proclamation issued by his excellency Sir George Gipps, bearing date the 14th day of January, 1840, that by a dispatch from the right honorable Her Majesty's principal secretary of state for the colonies, it is ordered that all claims, whether British or foreign, be investigated and disposed of by the commissioners appointed for that purpose.

The order continued as follows:

Such foreigners, therefore, as have not already forwarded the particulars of their claims to the Government are required to send them to this office without delay. These particulars should set forth the precise situation of the land claimed, its extent and boundaries, the names of the native sellers, and the consideration paid to them, and, in case of the claims being derivative, the names of the intermediate possessors of the land, and of the original purchaser, and the consideration given by him to the natives.

The attack on Mr. Webster's title having thus been made, and such title having been so slandered and flawed thereby in appearance as to make his estate valueless until cleared; his rights as a citizen of the United States having been thus denied in advance; no time having been allowed for his own Government to make representations in his behalf, notwithstanding the specious assurances of the authorities of Great Britain, Mr. Webster, to prevent an apparent and, in fact, a physi

cally operative seizure and forfeiture of his estate, was compelled to make a special and restricted appearance before the commission, not to prove or to defend his title in that tribunal, but to insist that both he, as a citizen of the United States, and the land, as his property, were exempt from the summary and nonjudicial jurisdiction of the commission; in other words, that both the person and the subject-matter upon which the colonial authorities proposed to proceed were not, under the circumstances, subject to the jurisdiction of such a commission, so constituted and for such purposes, and that if such commission should undertake to proceed in its administrative inquisition upon his property this defense should have due consideration, and, if found true, should be allowed. Accordingly he did, on the 20th day of July, 1841, send seven copies of his title papers to land and seven statements of purchases to the colonial secretary. But in so doing he stated that they be laid before the commission for examination only. He at the same stated:

I have sent all my claims to land in this country before the United States Government by the advice of the American consul of Sydney, and I trust his excellency Governor Hobson will not suffer any of my lands to be interfered with until the question is settled.

After stating this, he expresses his willingness to come forward and prove his purchases, but trusts that he shall be allowed time to do so, as he is busy with ships, and also urges that it will take a long time to get together all the natives and witnesses of his purchases, and that the expenses will be very great.

To this letter the colonial secretary replied, requiring Mr. Webster to distinctly state whether he claims the land as a British subject or as an American citizen. If as the former, his case will take the direction prescribed by law. If as the latter, "your claims must depend upon the decision which may be arrived at by the joint consent of both governments." He was also notified by this letter that" in seeking assistance from a foreign government he must relinquish all the rights of a British subject, such as the ownership of a British vessel, such as he is now understood to possess."

On October 11, 1841, Mr. Webster wrote as follows:

In reply to yours concerning my claims for land, I wish my claims to be laid before the commissioners, and am willing to take my chances with all the others, but I trust that they may be left until the last, for it will put me to great inconvenience to attend to them now.

The colonial secretary made, for the instruction of the governor, a memorandum that the information respecting these claims is sufficiently full to enable them to be referred for investigation, and on November 2, 1841, the governor directed:

Let Mr. Webster's claims be submitted the usual way.

The commission proceeded. It had before it fourteen of Mr. Webster's cases or claims, separately numbered and lettered, and they appear to have been separately passed upon. The aggregate of these claims was for 132,850 acres. These cases did not include all of Mr. Webster's claims, as he had previously informed the authorities. He had in all twenty-seven claims; but as to those which were not laid before the commission he stated that he had not had time to assemble and produce his witnesses, and he had asked for such time.

Upon these claims that were thus considered for 132,850 acres, the commission reported as to eight of them, for 120,850 acres, that Mr. Webster was a bona fide purchaser, and the report stated the amount of the consideration paid by him to have been cash and goods £1,167 S. Doc. 231, pt 3-2

108. 12d., or, in Sydney prices, about £3,427 68. Four of the cases for 4,000 acres and two islands are stated in the report to have been withdrawn; but in this statement Mr. Webster has always insisted that the commission erred. The consideration alleged to have been paid for the lands involved in these four cases was £1,820. The commission found against Mr. Webster in only one case, involving 3,000 acres, consideration £450, upon the ground that he had "not purchased from the rightful owner."

It does not appear that this commission made any specific recommendation as to what action should be taken upon a report which so conclusively established such valuable rights in Mr. Webster to 120,850 acres of land. It is probable that none was made, and that Mr. Webster continued to insist upon confirmation of his grants from the natives, because we find that on December 18, 1843, the commissioners made an amended report recommending, in several of the cases which they had as above passed upon favorably to the extent of 107,250 acres, that the "allowances" be reduced to 7,281 acres. But this was not all. Having reduced Mr. Webster's allowed claims from 120,850 acres to 107,250 acres, and then further reduced them to 7,281 acres, the commission proceeded to further dismember Mr. Webster's rights by recommending that this 7,281 acres "be reduced in the aggregate to the maximum grant of 2,560 acres," in accordance with the land ordinance which prohibited a grant of greater extent. No grant ever issued for the 2,560 acres.

In 1844 a second commission was established, consisting of one person, Mr. Fitzgerald. In April of that year the governor laid before the council the foregoing amended award, and upon the advice of the council that the commission should be authorized to recommend an extension of the grant, all the awards were submitted to the second commission with instructions to extend the grant. Commissioner Fitzgerald did "most conscientiously recommend" that grants be issued to Mr. Webster himself in six of the cases for 5,000 acres, and in the other cases, to various other parties named for 12,655 acres; in all, for 17,655 acres. The reasons given by the commission for this "most conscientious" recommendation are, in substance, that Mr. Webster's outlay had been £7,787 138., with which, according to the valuation scale in the land-claims ordinance, he may be considered to have paid for 50,904 acres; that he had made considerable sales on the faith that all his valid purchases would be recognized by the Crown; that he would be ruined if not treated with great liberality; that he is one of the most enterprising settlers in the colony, having established a shipyard, several whaling stations, water mills, and other improvements.

It is stated that grants were made covering this award of 17,655 acres. The grantees were British subjects to whom he had contracted some of his lands or to whom he was indebted, and this award was really for their benefit. In fact, the entire award inured to the benefit of Mr. Webster's English obligees; for the 5,000 acres allowed to him was eventually vested in Mr. Ranulph Dacre, a British subject, and a creditor of Mr. Webster at the time of this award.

The affidavit of Mr. Dacre, made in London, in 1873, while Mr. Webster was in that city endeavoring to obtain reparation from the Government of Great Britain, imparts valuable information concerning the transactions under consideration. The following appears from this sworn statement:

The affiant was a merchant in Sydney, Australia, in 1835, and there became acquainted with Mr. Webster, when the latter went from Syd

« iepriekšējāTurpināt »