Lapas attēli
PDF
ePub

conclusions and expressed the hope "that a way may be found by friendly consultation between the two governments to afford Mr. Webster the fair and impartial disposition of his claims to which, it is thought, that he is entitled."

The Senate, had previously, by resolution of June 11, 1890, transmitted to the President, the papers in the case of Mr. Webster, with a statement that the Committee on Foreign Relations respectfully recommend the matter to his attention as a claim that is worthy of consideration, and with the request that it be made the subject of further negotiation with Great Britain.

Mr. Lincoln, the American minister at London, on October 11, 1890, addressed the Marquis of Salisbury, stating his instructions to acquaint the British Government with the fact that the United States had made the matter the subject of careful examination, and expressing the hope that a way may be found, by friendly consultation between the two governments, to afford Mr. Webster the relief to which it is believed he is entitled.

Answer to this communication was made January 6, 1891, stating that the papers and circumstances in the case have been most carefully examined, with an unfavorable result to the claim; stating also that it is clearly shown that Mr. Webster in the first instance, when bringing his case before the commissioner under the colonial ordinance of 1856, waived his right to be treated as an alien, and so was debarred from receiving beyond what was awarded him by those commissioners, and that under the circumstances Her Majesty's Government regret that they are unable to reopen the case, or entertain Mr. Webster's claim for further compensation.

The Department of State on June 3, 1891, informed Mr. Lincoln that it had been the understanding of that Department that Mr. Webster was in reality deprived of his lands and claims to lands by the commissioners under the colonial land-claim act of 1856, and that there seems to be an incorrect appreciation of the facts when the Government of Great Britain states in its note that it is clearly shown that Mr. Webster, in the first instance, when bringing his case before the land commission, under the colonial act of 1856, waived his right to be treated as an alien, and so debarred himself of the right to be awarded anything beyond what was awarded him by that commission, and that an examination of the evidence shows that he never brought his claim before the commissioners under the colonial act of 1856, and that he was then in the United States and presenting his claim before this Government, and had been at this time nearly ten years absent from New Zealand.

Mr. Lincoln submitted these considerations to Lord Salisbury. The response of the British foreign office was under date of August 18, 1891, that it appears on further examination of the case that in the note of that office of the 16th of January last a mistake was inadvert ently made in the reference to the colonial land claim act of 1856, and that it was in the year 1841, and by the commissioners under the colonial act of that year, that Mr. Webster submitted his case, having previously received full notice from the governor that if he adopted this course he must be held as a British subject. It is also stated that it does not appear to Her Majesty's Government that this mistake materially affects the question at issue; that Mr. Webster, having voluntarily accepted the conditions imposed upou him, Her Majesty's Government are unable to admit that he could at any time afterwards bring

in a claim as an American citizen under the principle conceded Mr. Everett by Lord Aberdeen in his note of the 10th of February, 1844.

The refusal of the Government of Great Britain to entertain these claims is distinctly put upon the ground that Mr. Webster by appearing before the commission waived his right to be treated as an alien, and so debarred himself of the right to be accorded anything beyond what was awarded him by that commission, and that having voluntarily, as it is alleged, accepted the conditions imposed upon him by Governor Hobson in 1841, and having, as it is alleged, submitted his claim as a British subject under the colonial ordinance of that year, Her Majesty's Government are unable to admit that he could at any time bring in a fresh claim as an American citizen, upon the principle conceded by Lord Aberdeen in his note to Mr. Everett, dated the 10th of February 1844.

The facts under consideration do not, in the opinion of your committee, warrant this conclusion. It fully appears that on the 4th day of November, 1840, under apprehensions that the colonial government would proceed against his estates to his detriment, Mr. Webster addressed a letter to Mr. Williams, the consul for the United States at Sydney, stating, on behalf of himself and his fellow-citizens in like situation, his apprehensions; that he supposed the authorities intend to allow whatever proportion of the land they may think proper, asked advice as to what the Americans on the island were to do with the large quantities of land they had purchased, presented a schedule of his property, and requested the consul to make the facts known to the American Government as early as possible.

It also appears that while the confiscatory statutes or ordinances were in contemplation, and immediately upon enactment of the first one by New South Wales, the American consul at Sydney inquired of Governor Gipps whether it was expected that American citizens who may have acquired by purchase or otherwise lands and titles in New Zealand shall submit their titles to the proposed commission, and the governor replied as to this that he had sought instructions as to the course to be pursued in reference to the lands claimed by persons other than British subjects, and stating that he could in the meantime give no more definite information; that he proposed to postpone the inquiry as to the claims of foreigners until he had disposed of the claims of Her Majesty's subjects. Lord John Russell had stated to Lord Palmerston upon this same matter that he thought the rules relating to titles ought to be relaxed in favor of aliens possessing lands in New Zealand by virtue of valid titles obtained previous to the acquiring of Her Majesty's sov ereignty there, and that Lord Palmerton deemed the proposal "liberal but just," and that, though such claimants can 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 landed owners before the island formed part of the dominions of the British Crown the laws which prevent aliens from acquiring landed property within those dominions.

The American consul transmitted Mr. Webster's letter to his Government, and in consequence thereof, Mr. Everett, the American minister at London, in 1843, made the representations to the Government of Great Britain on behalf of American citizens generally, resident in New Zealand, which we have herein before fully set forth, and distinctly protested against any measures by which injuries should be inflicted on those interests of American citizens acquired in the progress of a commerce which had grown up and had been open to all nations; particu

larly protested against a regulation vacating at one blow purchases of all lands made by citizens of the United States, as unreasonable and oppressive; asserted that such cessions made by the chieftains to a citizen of the United States ought to be fully entitled to respect, and expressed confidence that if it should appear that such regulations had been established by the colonial authorities bearing with undue hardship upon the equitable interests of American citizens before the assertion of English sovereignty, proper measures of redress will be directed to be taken.

To this Lord Aberdeen replied, February 10, 1844, that as to the rights and obligations of aliens in New Zealand, instructions had been forwarded in the month of March, 1841, to the governor of the colony, directing him to bear in mind the principle that when aliens had acquired lands from the chiefs prior to the proclamation of the Queen's Sovereignty there, and that fact was undisputed, the claims should be acknowledged; but that where a doubt arose whether the alien made a bona fide purchase of the land, the settler should be treated as any British subject, and his claim disposed of accordingly.

This was a distinct notification of the purpose and policy of the Government of Great Britain, upon which the United States and its citizens had a right to reply. In Mr. Webster's case this assurance was flagitiously violated by the colonial authorities, and the British Government, in the note addressed to Mr. Lincoln by which it refuses to consider Mr. Webster's claim, has ratified this violation of its own instructions.

As to the claims of Mr. Webster, which successive commissions found to have been bona fide, the colonial authorities were expressly required by the instructions which Lord Aberdeen informed Mr. Everett had been sent to the governor of New Zealand in March, 1841, to acknowledge them.

The colonial authorities in the executive inquests by which the claims of Mr. Webster, confessedly bona fide, were first acknowledged and then were reduced, and then again reduced, proceeded in distinct violation of these instructions, and a breach of the assurances given by the Government of Great Britain to the United States.

As to the narrower contention by the Government of Great Britain, and upon which it rests its refusal to consider these claims, that Mr. Webster submitted them to the commission as a British subject, and is therefore bound by its decisions, it has no support in the recorded facts.

For sufficient reasons, which we have herein before stated, Mr. Webster submitted a portion only of his claims to the commission, and stated that he submitted these for "examination only," at the same time stating that he had put all his claims to land in that country before the United States Government, by the advice of the American consul at Sydney, and expressed the wish that the colonial authorities would not allow any of his lands to be interfered with until the question should be settled. Subject to this defense, and insisting that his case in all of its subordinate aspects should be controlled by it, he expressed his willingness to come forward and prove his purchases. The greater portion of his claims were never in any manner submitted to the commission, and as to the few that were submitted the colonial authorities assert that four of them were withdrawn.

The response of the colonial authorities to this distinct claim of American citizenship and of rights thereunder, was so coercive, disingenuous, menacing, and oppressive, as to constitute practically duress

of property. It required Mr. Webster to state distinctly whether he claimed the lands as a British subject or an American citizen. This he had already done, and had stated that he claimed them as an American citizen, and that he had put all his claims to lands in New Zealand betore the United States Government. The response goes on to state that if he claimed as an American citizen, his claim must depend upon the decision arrived at by the joint consent of both governments, thus informing him, as Governor Gipps had previously informed the United States consul at Sydney, that Mr. Webster's claims should be considered as an international matter between his government and the gov ernment that was threatening to proceed against him. In his reply, October 11, 1841, to this communication, Mr. Webster did not in the least qualify the claim of citizenship advanced by his previous letter, by "distinctly" or at all, stating that he desired to claim as a British subject, although he had been required to so "distinctly state" if he desired to so claim. He thus clearly continued, and reaffirmed, and left in force his previous assertion of rights as an American citizen. He thus kept himself within the protection of all his rights as an American citizen, not only those which he was entitled to under general principles of international law, but those which were conceded to all American citizens in like case by the letter which Lord Aberdeen had addressed to Mr. Everett; so that, in proceeding against Mr. Webster's estates, all the commissions proceeded subject to this defense and assertion of right, and they proceeded against him as an American citizen.

Having done this he could not, while retaining his actual citizenship, take away from his government its rights, or lessen its duty, to resist a decree that was no less than a national injustice inflicted upon an American citizen. The pretension could not be justified, nor could any conduct of Mr. Webster condone a measure so arbitary and in principle utterly indefensible.

Nor was the claim of William Webster to his lands in New Zealand, which was perfected by conveyances from the owners of the soil, made to him before the Government of Great Britain had acquired sovereignty over those islands, forfeited, nor did he forfeit his rights as an American citizen, by demanding from that government, in any form, or in any tribunal, their recognition and full and just protection. To all that he was entitled as an American citizen he continued to be and now is entitled, and he had no need to be made a subject of the Queen of Great Britain in order to enjoy rights conceded to him by that government.

It was possibly unobjectionable in the colonial authorities to require all denizens of the island to bring forward their claims and designate their boundaries; this might be a proper regulation in the institution of a new government for the administration of its lands. But when the commissioners went beyond this purpose, and proceeded to forfeit and escheat titles and estates, many of which they conceded to be bona fide, they exceeded their jurisdiction, not only upon general principles of law, but also under the limitations prescribed by their instructions. Mr. Webster, as a denizen of the islands at and before the treaty concluded at Waitangi, February 6, 1840, was entitled to its benefits. By this treaty Great Britain confirmed and guaranteed to the chiefs and tribes and to the respective families and individuals thereof the exclu sive and undisturbed possession of all their lands and estates, which they may collectively or individually possess so long as they may desire to retain the same.

Under the provisions of the treaty, the Government of Great Britain

had no right to forfeit the lands tius guaranteed to the chiefs and tribes, nor had it the right to forfeit the title of any of their grantees. Concerning this treaty, and its violation in this respect, your committee have heretofore observed:

It would be difficult to select language that would more clearly import a perfect ownership in all the soil of New Zealand, in the chiefs, the people as tribes, and as private owners, than that which is guaranteed in the treaty itself. Such a title, afterwards acquired by any person in Great Britain, in lands to which he had no title at the time he had previously attempted to convey the land to another, would, by relation and estoppel, accrue to such grantee the moment that he got such a deed, or a treaty had granted the title to him. These chiefs had conveyed these lands to Mr. Webster before the date of the treaty. As no exception is made in the treaty of the rights of the persons to whom these prior conveyances had been made, their titles are necessarily confirmed by its terms, unless they were obtained by fraud. So that Mr. Webster, if he had no other claim to the land, would be entitled, under the laws of England, to the benefit of the express grant in this treaty, made to the chiefs from whom he had purchased and who had previously conveyed the land to him.

But his titles were of equal dignity with that afterwards acquired by Great Britain, as it relates to the sovereign power from which they are derived. They are of equal validity and force with the title of Great Britain, as it relates to the fact of the prior ownership of the lands by the chiefs and tribes. They are of equal integrity, as it relates to the consideration paid for these lands, and of as much greater moral value, as a voluntary contract stands above one made under coercion, in the estimation of all civilized people.

Mr. Webster's title came first, in point of time, from the same sovereign power that Great Britain expressly recognizes in this treaty, and it was purchased for value from people whom he had been at great expense and labor to benefit, and who, even in their savage state, appreciated and were grateful for his kindness.

This treaty was preceded by British royal proclamations, prepared and issued just before the treaty was signed. It was under these proclamations that the rights of William Webster and other American citizens in New Zealand were afterwards stricken down.

The result has been that all of Mr. Webster's estate except 17,655 acres, which we have shown the British Government allowed and granted to his creditors and obligees or for their benefit, has been absorbed into the colonial domain, and sold as public property.

The history of this case, all of its particulars being considered, presents such repeated instances of injustice, and of delay and denial of justice by the final action of the Government of Great Britain refusing even to consider Mr. Webster's claim for reparation, as to warrant the further interposition of the United States. The case is such a one as would, if necessary, after all other methods of redress had been exhausted, justify special reprisals. Upon this the leading publicists are in agreement.

An injury committed upon one of his subjects, for which justice has been plainly denied, or unreasonably delayed, warrants a sovereign in issuing letters of marque or reprisal. (3 Phillimore, International Law, ed. 1857, p. 13.)

International justice may be denied in several ways: (1) by the refusal of a nation either to entertain the complaint at all or to allow the right to be established before its tribunals; or (2) by studied delays and impediments for which no good reason could be given and which are equivalent to a refusal, or (3) by an evidently unjust and partial decision. (Law of Nations, by Sir Travers Twiss, Part 1, p. 36.) To render legitimate the use of reprisals it is not at all necessary that the ruler against whom this remedy is to be employed, nor his subjects, should have used vio lence or made any seizure or any other irregular attempt upon the property of the other nation or its subjects; it is enough that he has denied justice. (Valin.)

It may happen that a nation, disregarding those moral obligations which bind states and individuals alike, unlawfully seizes the property of another, refuses to pay an admitted debt, suspends without reason the performance of a conventional engagement, procrastinates reparation for an evident injury or denies manifest justice or an equitable indemnity for losses caused by its own fault, in cases in which its own responsibility is directly engaged. In all these cases, after having exhausted

S. Doc. 231, pt 3—3

« iepriekšējāTurpināt »