Gerald assumed to be necessary. But the memorandum of Sir Robert Stout contains the following statement:

"Webster received his grants for 5,000 acres, and within less than four months had transferred the whole of these lands to his creditors, besides the 12,655 acres granted directly to them, leaving himself without an acre of all his purchases and still a debtor to the Sydney merchants."

And this statement is made the text of animadversions upon the speculative character of Mr. Webster's dealings.

This may be regarded as somewhat remarkable, when both the first and the second commission found that Mr. Webster had made bona fide purchases for value, before the annexation of the island by Great Britain, of more than 105,000 acres of land, exclusive of various large tracts upon which they did not report; when it is also considered that Mr. Webster was, by universal testimony, an industrious and meritorious settler; and when it is further observed that his conduct throughout shows that he was making every effort to deal honorably with his creditors at a time when the annexation of the islands and the ensuing land ordinances were threatening him with the commercial disaster in which they had then partially, as they afterwards completely, involved him.

In 1845, the year after the grants above alleged, it is asserted that certain correspondence took place between Mr. Webster and the New Zealand authorities, which was as follows:

Mr. Webster to Mr. Commissioner Fitz Gerald.

AUCKLAND, March 8, 1845.

SIR: I take the liberty of writing to you to know what has been the decision on my two land claims. I believe they are No. 305 H: one is the Big Mercury Island and the other is a piece of land near the river Tairua, in the Bay of Plenty. Both of those claims was examined before Commissioner Godfrey at Coromandel Harbor, and I have not yet heard any more of them. The Mercury Island was purchased in 1838. I paid upwards of £300 for it, and have had possession of it ever since, and have expended a deal of money on it; but the whole of the payment agreed on was not given to the natives, and when the claims was examined they agreed to give me a part of it for what they had received. The piece of land near Tairua was also purchased in 1838, and I paid about £400 for it; and since that I have expended about £400, for which I have never received any return for whatever. I have never heard of any dispute of the title, which, I suppose, the evidence taken by the commissioner will prove.

Your answer to this will oblige, your most obedient servant,
WM. WEBSTER.

Commissioner FITZ GERALD, etc.

MINUTE THEREON BY THE GOVERNOR.

Very large grants having been made to Mr. Webster, no further grant can be made until the opinion of the secretary of state as to the former grants is made known.

R. F., March 10, 1845.

MR. FITZ GERALD: Direct Mr. Chipchase to communicate this reply to Mr. Webster, who is now in Auckland, but about to leave immediately. R. F., March 10, 1845.

The private secretary to Mr. Webster.

GOVERNMENT HOUSE, March 10, 1845. SIR: I am desired by the governor to acquaint you that his excellency has examined and taken advice respecting your land claims, marked 305 H and 305 J, and is sorry to find himself precluded from authorizing any further grant to be made to you at present, on account of the largeness of those grants already made in your name.

J. W. HAMILTON,
Private Secretary.

P. S.-The governor directs me to say that the land which you now hold in undisputed possession will probably be granted to you eventually.

As the recommendation of Commissioner Fitz Gerald is, in the memorandum of Sir Robert Stout, declared to be a "mystery," the reply of the governor, made through his private secretary, is pronounced in the same memorandum to be "unfortunate in its expression." As the reply only evinces an intention to treat the acquisitions of Mr. Webster in a spirit of justice, on the clear principle of allowing him what he held "in undisputed possession," the unfortunateness of its expression is not perceived. In the memorandum of Sir Robert Stout the fact appears to have been wholly neglected that the reports of the commissioners, so far as they recommended grants, were only advisory. This fallacy is disclosed in the argument that because the commissioners reported that no grants could be made in certain cases on account of the largeness of the grants made in other cases, the governor could not have referred to the claims mentioned by Mr. Webster in which no grants were recommended.

It is to be remembered that in those very cases, or at least in some of them, the commissioners had reported valid titles, and in no instance discovered any evidence of bad faith. Nothing unfortunate is perceived in the language of the governor, nor is there any reason to suppose that it was intended to have any other effect than to declare the principle that the undisputed possession of land was to be treated as constituting a valid basis for a grant. It is not denied that Mr. Webster had made use of a portion of his lands; nor, notwithstanding the effort to throw discredit on Commissioner Fitz Gerald's recommendation, is any attempt made to impugn his statements that Mr. Webster had made large outlays on his land in addition to the purchase-money and that he was "one of the most enterprising settlers" in the colony, "having established a shipbuilding yard, several whaling stations, water mills, and other improvements." It is not strange, therefore, that the governor should have expressed the belief that the land which Mr. Webster held in undisputed possession would ultimately be granted to him.

THIRD COMMISSION.

But Mr. Webster's claims were not in reality disposed of until 1862, long after he had left the country, and without notice, by a third commission, consisting of Mr. F. D. Bell. This commission was constituted under "the land claims' settlement act, 1856," which made provision for the setting aside of all grants made under previous ordinances. It required all claimants to have the exterior boundaries of their claims surveyed and plans sent in to the commission, together with their grants and all documents and deeds relating to the alienation of any claims by an original claimant; but it prohibited the reconsideration of any case disallowed by any previous commission, or that had been withdrawn by the claimant. Under this prohibition, the third commission did not examine and made no grant in cases 305 D, 305 E, 305 F, 305 L, 305 J, and 305 M, comprising claims to extensive tracts of land for which valuable consideration was given. The grants set forth in the report of Mr. Bell accompanying the memorandum of Sir Robert Stout are the only ones finally made in respect to the claims of Mr. Webster. It is stated in that memorandum "that all the grants issued under the ordinances were surrendered to him (Mr. Bell), together with all documents relating to the land described in such grants."

Referring to the report of Mr. Bell, we find, in respect to the claims of Mr. Webster, the following result:

"In case No. 305, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 250 acres, this third commission, in 1861, granted to R. Dacre 57.5 acres and to H. Downing 57.5 acres, in all 115

acres.

"In case No. 305 A, in which the commissioners reported, in 1843, that Mr. Webster had purchased and paid for 250 acres, this third commission, in 1860, granted to G. Beeson 335 acres.

"In case No. 305 B, in which the commission reported, in 1843, that Mr. Webster had purchased in good faith and paid for 1,500 acres, this third commission ordered a grant to be issued to J. Solomon; but no grant was, in fact, issued. "In case No. 305 C, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 800 acres, this third commission, on the 20th of November, 1847, granted to R. Dacre 284 acres, and on the 3d of May, 1860, to the same person, 384 acres, and on the 25th of January, 1861, to T. Keran 59 acres; in all 727 acres.

"In case No. 305 G, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 10,000 acres, this third commission, at a time not known, granted to R. Dacre 1,944 acres, which is said to have beer commuted for scrip.

"In case No. 305 I, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 3,000 acres, this third commission, on the 3d of July, 1860, granted to J. Solomon 885 acres.

"In case No. 305 J, in which the commissioners reported, in 1843, a bona fide purchase of a tract which Mr. Webster alleged to contain 6,000 acres, this third commission made no grant, and no grant was ever made.

"In case No. 305 K, in which the commissioners reported, in 1843, that Mr. Webster had purchased 80,000 acres, this third commission, on the 27th of November, 1878, granted to the heirs of Sir S. Donald 1,464 acres; to F. Whitaker, 12,855 acres and 2,141 acres, and for 294 acres September 30, 1878; total, 16,754

acres.

"In case No. 305 M, in which the commissioners, in 1843, reported that Mr. Webster had purchased in good faith, but only partly paid for, 3,500 acres, no grant was ever made."

Every one of these grants, it may be observed, was made to some person or persons alleged to be derivative owners from Mr. Webster.

From the foregoing it appears:

CONCLUSIONS.

(1) That the good faith of Mr. Webster in his land purchases is unquestionable.

(2) That the validity of nearly all his important conveyances from the natives was recognized and admitted, and valuable consideration established.

(3) That, in consequence of the annexation of New Zealand by Great Britain and of the land ordinances adopted and enforced, Mr. Webster was prohibited from selling or conveying or completing title to any of the lands which he had purchased and of which he was in quiet and undisputed possession at the time of the annexation.

(4) That in certain of Mr. Webster's cases (305, 305 A, 305 C, 305 G, 305 I) the land commissioners found that 94,300 acres had been purchased by Mr. Webster in good faith, but recommended grants to him and his assigns of only 17,655

acres.

(5) That in certain other cases (305 B, 305 J, and 305 M) it was shown that 11,000 acres had been purchased by Mr. Webster in good faith, but that no grant whatever was made.

(6) That in certain other cases (305 D, 305 F, and 305 L) no awards were made, on the ground that the claims had been withdrawn, which Mr. Webster denies. And in this relation it is to be observed that the withdrawal of these claims is alleged to have been made before Commissioner Godfrey in May and June, 1844, after he had ceased to be a commissioner and had returned to England, and after the second commission, consisting of Mr. Fitz Gerald, had entered upon its duties.

(7) That these proceedings, which were consummated in 1862 under the act of 1856, were in derogation of the principle conceded by Lord Aberdeen to Mr. Everett in 1844.

(8) That they were in derogation of the same principle as announced by the governor to Mr. Webster a year later, in 1845.

In view of the facts above set forth, it is not perceived what basis there is for the assertion in the memorandum of Sir Robert Stout that "awards were made in his (Mr. Webster's) favor, or in favor of his acknowledged assigns, of every single acre of land which the native owners admitted he had justly bought from them."

These words are found in the concluding paragraph of Sir Robert Stout's memorandum. Above them, on the same page, are the following observations:

"I have to remark that in the year 1874 the secretary of state, in a dispatch to Governor Sir James Fergusson, required a report on Mr. Webster's claims, in order to reply to a complaint made by Mr. L. C. Duncan, on behalf of Mr. Webster, that he had been treated with injustice in their adjudication.

"Mr. O'Rorke, the then commissioner, and at present Sir G. M. O'Rorke, speaker of the house of representatives, furnished to the governor for transmission to the secretary of state a full report on the claims, together with an opinion from Mr. Whitaker as to the accuracy of such report (who had been personally acquainted with all the details of Mr. Webster's land transactions at the Piako) and a further report from Dr. Pollen, then colonial secretary, who had been personally acquainted with Mr. Webster in New Zealand."

An examination of the report of Mr. O'Rorke does not render necessary any

CLAIM OF WILLIAM WEBSTER.

change or modification in the statements herein made in regard to Mr. Webster's claims. The "further report," however, of Dr. Pollen merits examination. It is expressly referred to and put forward in the memorandum of Sir Robert Stout as the statement of a contemporaneous witness and as possessing the peculiar value of a declaration made by an individual "personally acquainted with Mr. Webster in New Zealand." The value of this piece of evidence, which was formulated on July 29, 1874, is readily tested. Dr. Pollen's statement is as follows:

"I knew Mr. Webster during the period of his residence in New Zealand, from January, 1840. He was what was then called a 'trader' on the coast, and was known to represent or to be supported by Sydney merchants.

"Towards the close of the year 1839, when it became certain that the sovereignty of New Zealand was about to be acquired by Great Britain, Mr. Webster, as did many others, dealt largely with natives for land, or, rather, for land claims. There was then no way of ascertaining the right to land of the natives who took 'trade' for their signatures; there was no survey, and the estimate of area within the boundaries, when any boundaries were defined in the deeds of conveyance, was almost always excessive, in many cases ridiculously so. the exaggerated character of some of the claims.

Hence

"The early land purchases, which were made with deliberation and care and in accordance with native usage, were rarely questioned, but those which were made in haste immediately before January, 1840, and, as it were, more for the of getting up a "claim" than of acquiring title, were commonly repudipurpose ated by the native owners of the land. Some of Mr. Webster's claims are in this category.

"Mr. Whitaker, of Auckland, who has a derivative title through Mr. Webster to a large block of land in Piako district, has not, to this day, been able to get possession from the natives. It will be necessary, in order to keep the faith of the Crown (as the land in question was awarded to Mr. Webster by the land claims commissioner) and to preserve the peace of the country, either to extinguish the native title to this land by purchase or to find for Mr. Whitaker an equivalent elsewhere. A proposal with a view to settlement of this claim is now before this Government.

"Mr. Webster's failure was, as I recollect, of the usual commercial character; he was already in difficulties, as shown by his arrest in Sydney in 1840, and his insolvency was completed in the financial crisis of 1842-43 in New South Wales, by which his principals there were affected. His misfortune was never, so far as 1 know, until now attributed to the action of the Colonial Government or of the I do not think that it would Imperial Government. If any such complaint had been made in the early days of settlement, I think that I must have heard it. have been made in the presence of any person familiar with the facts. It may "DANIEL POLLEN. at present be regarded as a lawyer's plea, merely, on his client's behalf.

"JULY 29, 1874."

The first observation to be made upon this statement is that Dr. Pollen does not assert acquaintance with Mr. Webster prior to January, 1840, before which time every title claimed by Mr. Webster was acquired. The next thing to be noticed is the declaration that "towards the close of the year 1839, when it became certain that the sovereignty of New Zealand was about to be acquired by Great Britain, Mr. Webster, as did many others, dealt largely with the natives for land, or rather land claims."

In answer to this, it is to be observed, in the first place, that the commissioners found and reported good faith and valuable consideration in all Mr. Webster's purchases which they examined. In every case but one they found that the purchases had been made from the rightful native owners, and in that case valuable consideration for the purchase was reported. But the conclusive refutation of the impugnments of Dr. Pollen is found in a review of the claims examined and reported upon by the commissioners, as follows: 305, purchased June 4, 1837; 305 A, purchased December 8, 1836; 305 B, purchased November 23, 1839; 805 C, purchased January 30, 1837; 305 D, purchased 1836; 305 E, purchased 1838; 305 F, purchased 1836; 305 L, purchased November 24, 1839; 305 G, purchased January, 1839; 305 H, purchased November 23, 1839; 305 I, purchased 1836 and 1838; 305 J, purchased May 20, 1839; 305 K, purchased December 31, 1839; 305 M, purchased 1838.

It thus appears that out of fourteen cases or claims only four (305 B, 305 L, 305 H, and 305 K) arose in the latter part of 1839 so as to fall under Dr. Pollen's

general charge that Mr. Webster was speculating on the probable annexation of the island by Great Britain. In view of these facts, no comment is necessary upon the value of the opinions and recollections stated in the last paragraph of Dr. Pollen's memorandum. What is meant by the declaration that " Mr. Webster's failure was, as I (Dr. Pollen) recollect it, of the usual commercial character ?" "He" (Mr. Webster), says Dr. Pollen, "was already in difficulties, as shown by his arrest in Sydney in 1840." This was after the proclamations of Lieut. Governor Hobson invalidating the land titles. Dr. Pollen further says: "His misfortune was never, so far as I know, until now attributed to the action of the colonial government or of the Imperial Government. If any such complaint had been made in the early days of settlement, I think that I must have heard it. I do not think that it would have been made in the presence of any person familiar with the facts. It may at present be regarded as a lawyer's plea, merely, on his client's behalf."

The value of this evidence, either upon the score of information, of recollec tion, or of competency, is easily tested.

The very allegation that Dr. Pollen says would not have been made by Mr. Webster in the presence of any person familiar with the facts" was made in the letter of Mr. Webster to the colonial secretary of July 20, 1841, heretofore quoted, and was never questioned. But this is not all. The fact appears equally and unmistakably in the recommendation of Mr. Commissioner Fitz Gerald, which bears conclusive evidence of the good faith of Mr. Webster's purchases, of his large outlays upon and development of his land, and of his enterprising and useful character as a settler.

It may be thought somewhat significant that the attack made in 1874, and now sanctioned and renewed by Sir Robert Stout, upon the conduct of Mr. Webster is conclusively answered by British official records, which, being nearly contemporaneous with the transactions of Mr. Webster, and containing the testimony of persons having actual knowledge of the facts, uniformly attest his good faith and the meritorious character of his claims. In 1843 his claims were found to be bona fide, but were disallowed on the ground that the ordinances did not permit him to hold what he had purchased and paid for in good faith. The disallowance was modified, completed, and made final under the act of 1856. In 1874, when he presses for the recognition of the claims so disallowed, another and wholly inconsistent ground is assumed against all the evidence; and it is alleged that he is not entitled to further consideration because he was a dealer in " land claims" in anticipation of the annexation of New Zealand by Great Britain.

These two positions can not both be maintained. Nor, if the latter position be true, can it be understood why, as the memorandum of Sir Robert Stout constantly reiterates, Mr. Webster was treated with exceptional liberality. Such treatment can be explained only on one or both of the suppositions that the good faith of Mr. Webster's transactions was admitted or that a partial recognition was made of his rights as an American citizen.

In regard to the Piako tract, which he purchased in 1838, and for which a deed was executed in 1839, Mr. Webster states that, before the case came before the commissioners in 1845, he sent a surveyor with a party of chiefs and others from whom he had made his purchase and measured the front boundary, which extended about 21 miles along the river bank, and then marked each corner of the tract, which extended about 8 miles back from the river. In regard to the fact and notoriety of this purchase, Mr. Webster refers to a report of George Clarke, 66 protector of aborigines," to the colonial secretary of New Zealand, which was transmitted to the British Government, in which there is the following:

"Upon the western side of the river (Piako) is the extensive purchase of Mr. Webster, who claims upwards of 40 miles of frontage, two-thirds of which is unavailable, being swamp; the upper part is good; the depth of the river for about 30 miles is less than 8 feet."

The commissioners found that he had made bona fide purchases from the chiefs, as he alleges.

The claim which Mr. Webster now sets forth is as follows:

(1) For the value of 11,000 acres of land (included in cases 305 B, 305 J, 305 M), found to have been purchased in good faith, but which were never granted to him or his assigns, and which he was prohibited by the land ordinances and officers from selling or conveying, estimated at £1 per acre, £11,000.

(2) For the value of 84,300 acres of land (included in cases 305, 305 A, 305 C, 305 I, 305 K), found to have been purchased by Mr. Webster in good faith, less 5.000 acres assigned to R. Dacre, leaving 79,800 acres, estimated at £1 per acre, £79,000.