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[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., 10th March, 1845.

Mr. FITZGERALD:

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

The private secretary to Mr. Webster.

GOVERNMENT HOUSE, 10th March, 1845.

SIR: I am desired by the governor to acquaint you that his excellency has examined and taken advice respecting your land claims, marked 305H and 305J, 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.

I have, etc.,

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.

It will be seen that the governor's minute does not convey any direct reply to Mr. Webster's letter; it does not inform him of the substance of the commissioner's reports on Claims 305H or 305J, nor hint that such reports were still under consideration; and Mr. Hamilton's letter does not convey the substance of the governor's minute, but rather leads to the inference that the claims had not been considered.

This letter is unfortunate in its expression also, for the land in Mr. Webster's undisputed possession, mentioned in the postscript, refers to the small pieces of land which he was proved to have bought in the Mercury Island, but it has been assumed, wrongfully no doubt, to apply to the whole of Mr. Webster's claims. A great deal has been said about this letter in the report of the committee, and an attempt has been made to prove that Mr. Webster had been unjustly treated; but this idea will be dispelled when Mr. Hamilton's letter is read together with the correspondence and minutes here given in relation to its origin.

Referring again to the minute of Governor Fitzroy of the 10th March, 1845, it can not be a matter of surprise that he should hesitate about making any more grants to Webster until the opinion of the secretary of state as to the former grants is made known; the truth is more likely to be that the governor, in making such large grants, was frightened at his own act in the face of the despatch addressed to his predecessor by Lord Stanley when notifying the disallowance by Her Majesty the Queen of the ordinance of 1842 above mentioned. That despatch was as follows:

[Extract from a despatch from Lord Stanley to Governor Hobson.]

DOWNING STREET, 19th December, 1842.

SIR: In my despatch No. 76, of the 1st ultimo, I informed you that Her Majesty's decision had been suspended on the act of your Government, passed on the 25th February, 1842, No. 14, "to amend an ordinance enacted by the governor of New Zealand, with the advice and consent of the legislative council thereof, session I, No. 2, for the settlement of land claims within the colony."

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I have now to intimate to you Her Majesty's decision with regard to that act and, in doing so, I think it right to acquaint you generally as to the grounds of her decision.

When the British Government undertook to colonize New Zealand it was with the distinct intention not to admit that any titles to land could be valid which were not derived from or expressly confirmed by the authority of Her Majesty

CLAIM OF WILLIAM WEBSTER.

This principle was laid down in Lord Normanby's instructions to you, on your first appointment to proceed from England to New Zealand; and it was publicly announced in the earliest proclamations issued, both at Sydney and in New Zealand, on assuming the sovereignty of those islands.

In Sir G. Gipp's address to his council, in explaining the principles involved in his bill on land claims, he accumulated proofs that no British subject was entitled to acquire lands in countries under the circumstances of New Zealand otherwise than with the sanction of the Government. He showed that the same principle of public law was confirmed up to the present time by the highest legal authorities in England, and it was also enforced in the extensive colonization which is carried on by the United States of America. The conclusion deduced by Sir G. Gipps from his argument was that those who had previously engaged in the acquisition of lands from the natives in New Zealand had no rights of their own to such acquisitions, but that whatever the Crown might accord to them would be pure concession; and from this conclusion, notwithstanding the arguments which have since been advanced against it, I see no reason for dissenting.

But, while the principle was so distinctly laid down from the first, there was no wish to deal severely with those who had made bona fida purchases from the natives; and it was announced, in the same proclamation which declared the paramount rights of Her Majesty, that means would be taken to investigate the claims of the owners of any lands "acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community."

A bill was passed accordingly by the governor and council of New South Waleswithin whose province it then was to legislate for New Zealand. It provided for the appointment of commissioners to hear and report upon claims; it determined at what rate the value of goods employed in barter should be estimated, and laid down a graduated scale of the prices at which land should be assigned to claimants, naming a much lower price to regulate the quantities allotted to those who had made purchases at earlier periods than to those who had bought when the islands had acquired increased value and security, or might be supposed likely immediately to pass under the sovereignty of Great Britain.

The details of that measure can not but be considered as very favourable to the claimants. The rate at which the value of their goods was to be estimated was no less than three times the selling price at Sydney. The assumed price of land was to be not more than 6d. an acre for all purchases from the 1st January, 1815, to the end of 1824, and then, ascending very gradually, it was not until after the commencement of 1839 that it was to be taken at from 4s. to 8s. an acre. Such being the assumed prices up to 1839, inclusive, their moderation will be more apparent when it is borne in mind that in the course of the very next year the actual price of land for fresh purchasers became 20s. an acre.

But, while thus indulgent to the claimants in all minor particulars, the foresight of the New South Wales Government provided one important check against abuses arising out of claims to an extent which might be seriously prejudicial to the prospective interests of the colony. A maximum was fixed of 2,560 acres (4 square miles), beyond which the commissioners were not to recommend any grant of land.

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In determining the course to be taken as to allowing or disallowing this ordinance, I have considered the subject with reference, first, to the instructions on which you conceive yourself to be acting; secondly, to its effects upon the interests of the colony at large; and, thirdly, to its consequences as regards individuals; and I proceed to each of these in their order.

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Secondly, to the probable effect of the change upon the general interests of the colony at large.

To these it appears obviously highly unfavourable on that most important point, the extent of land to which it permits titles to be established.

It is not my intention here to discuss the evils attendant on the accumulation of land in new colonies in the hands of persons without capital or the means of introducing labour. I consider them to have been sufficiently established by experi ence to entitle me to assume them as admitted. By the ordinance of the 9th June, 1841, which has been assented to by Her Majesty, this evil is guarded against by the limitation to 2,560 acres, beyond which no grant can be claimed. This restriction the ordinance now under consideration abandons, and, placing no limit on the size of the grant which each claimant may acquire, might

prove the means of exposing New Zealand to those evils which have resulted in other colonies from throwing large and unmanageable grants into the hands of individuals unable profitably to use them. What the extent of this danger may be in the present instance it is impossible, from the imperfect state of my information, to calculate; but when I see it officially reported that nearly nine hundred claims had already been lodged, involving demands for not less than twenty million acres, I can not think that it would be prudent in Her Majesty's Government to dispense with the direct and wholesome check upon the undue acquisition of land which the former ordinances had imposed, and which, from the earliest proclamations, the settlers must have been led to expect.

I feel, therefore, no doubt, as regards the interests of the colony at large, that they will be best consulted by reverting to the ordinance of June, 1841. Feeling, however, the consideration which is due also to the interests of individuals, I will examine

Thirdly, the provisions of this ordinance as affecting claimants themselves. To many of them, and those too the persons most deserving of considerationviz, a large body of the early settlers-judging by their own representations, it appears probable that its operation would prove most injurious. The principle of the ordinance of June, 1841, was to value the land, to those who had acquired it in times of insecurity and expended labor and capital on its improvement, at a low rate, and in so doing proceeded upon a perfectly just principle. That principle the ordinance of February, 1842, abandons, placing all parties upon an equality, fixes a uniform price of 5s. upon land whenever and under whatever circumstances it had been acquired. To the justice of this I cannot assent. The price of 5s. per acre would be too high for those to whom by the graduated scale it would have been valued at 6d., and too low for those to whom it would have been valued at 8s.

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Under such circumstances, I need hardly observe that it became my duty to advise Her Majesty to disallow, and Her Majesty is accordingly pleased hereby to disallow, this ordinance.

It follows that you will be guided in future by the provisions of the enactment of 9th June, 1841, which will, of course, be revived by the disallowance of the act which repealed it.

I have, etc.,

STANLEY.

It happened that the opinion of the secretary of state upon the extended grants made by Governor Fitzroy was not received in the colony until three years after the grants had been issued and eighteen months after Captain Fitzroy had left the colony. In a despatch dated the 7th September, 1844, enclosing to the secretary of state copies of the minutes of the executive council for the half year ending the 30th June, 1844 (amongst others being those above printed relating to Webster's claims), Governor Fitzroy gave no particulars of the grants issued under the aforesaid authority of the executive council, nor did he furnish any such information to the secretary of state in any subsequent despatch sent by him during the remainder of his term of office. Lord Stanley, in a despatch 15th August, 1815, to Lieutenant-Governor Grey, in respect of the action of the executive council in making such grants, observes that a question involving so important a principle should have been made the subject of a distinct and separate report; and by a subsequent despatch requires a full report on the cases to be sent to him.

Governor Grey accordingly sent his report on the grants to Mr. W. E. Gladstone, on 23rd June, 1846; and ultimately the opinion of the secretary of state was expressed in the following despatch, received in the colony about the month of June, 1847:

No. 50.]

[Extract of a despatch from the Right Hon. Earl Grey to Governor Grey.]

DOWNING STREET, 1st March, 1847.

I acknowledge, and propose to answer together, your despatches Nos. 65, 66, and 68; the two former of which are dated on the 23d June, 1846, and the last of which is dated on the 24th of the same month. Although the cases to which they relate are different, the questions arising on them are too much alike to be properly disconnected from each other.

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There appear to be twenty-four other cases in which the grants have exceeded the prescribed maximum of 2,560 acres. In seventeen of these cases the land

claims commissioners appear to have reported in favor of smaller grants. But, for reasons which are unexplained, Governor Fitzroy reopened the inquiry, and in the result gave as many new grants in extension. In the absence of any explanation from your predecessor of the motives by which he was actuated, I can not venture to express any opinion on this class of cases. I can only state that the impolicy of these lavish grants of land is too evident to call for any explanation, and that the illegality and invalidity of them would seem to follow from the circumstance of their having been made in direct opposition to the reports of the commissioners. On what ground Governor Fitzroy's claim to set aside previous decisions may have rested I am not informed, nor can I conjecture.

I hesitate, however, to instruct you to engage in litigation requisite for setting aside these grants, in ignorance, as I necessarily am, of the obstacles which in prosecuting such suits you might have to encounter.

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It is possible that practically what has been done may be found irreparable and irremediable, and that the difficulties of legal proceedings may defeat any attempt to resume the improvident grants which have been made. Yet, even if such should unfortunately turn out to be the case, this correspondence may not be wholly unprofitable. It will remain as a record of the extreme inconvenience resulting from a disregard of law, and from an improper facility in cases of this kind.

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I have, &c.,

GREY.

Governor GREY, &c.

The case in respect of Mr. Webster's grants was indeed irremediable, as he had sold all his lands and parted with his titles. New complications also arose from the obstruction of the natives, who, in several instances, refused to deliver possession of the lands granted to Webster because he had not fulfilled his pledges to them, nor paid the balance of the money he had promised them; so that, ultimately, considerable sums of money had to be paid by the colonial government in redemption of Mr. Webster's broken promises, before the owners of the lands purchased from Webster could obtain possession thereof. This will appear from the following memoranda from the late Sir Donald McLean and Mr. Drummond Hay:

[Memorandum by the chief native land purchase commissioner on some uncompleted purchases of land by Mr. Webster.]

LAND COMMISSIONER'S OFFICE, Auckland, 10th July, 1854. SIR: I have the honour to report to you, for the information of his excellency the officer administering the Government, that I find there are certain lands for which Crown grants have been issued, and to which the native title has not as yet been extinguished.

For instance, there is a block of land, comprising about eight hundred acres, at the Waiheke Island, for which a certain amount of goods and money were paid by Mr. William Webster, of Coromandel, and for which the commissioners for investigating and reporting on claims to lands purchased from the natives have recommended a Crown grant. It appears, from the statements of the natives, that a vessel had been promised them by Mr. Webster conditionally that they would admit the justice of his claims before the commissioner's court; this vessel they nominally had possession of, but it was taken away by Mr. Webster to Coromandel, to undergo, as he alleged, some repairs, and was never afterwards returned to them. The natives, in consequence, will not give up the land. The consequence is obvious, that any person taking possession there would be driven off, and the Government in all probability involved in endless difficulties before the matter could be adjusted or the validity of its grant established.

A second case, something similar in its bearings, is now under my notice with reference to land claimed by the said Mr. Webster at the Piako, and for which grants have been issued. These lands have only been alienated by a section of the claimants, and quiet possession of it can not possibly be given to settlers until a further payment is made.

I am aware that the precedent of making such payments is a dangerous one; but I apprehend that leaving such questions unsettled would be still more so. These lands have been sold lately on the faith of a Crown grant, some of them

at high prices. Persons taking possession will be driven off by the natives, and it may consume large sums of money to obtain an undisputed title. The only conrse, therefore, which I can suggest under the cases alluded to is that, as faith has not been kept with the natives by the original purchaser, they should be induced to relinquish their claims in favor of the Government for a moderate consideration, and this consideration might be in connection with the sale of fresh lands to the Crown. By this means they would obtain satisfaction for the past, and place land at the disposal of the Government which they would not agree to sell until their old claims, where, in cases such as the present, apparent injustice is done to them, are satisfied.

Should his excellency favor this view of the question, a good opportunity for settling with a large majority of the natives for their claims to the above lands now presents itself, as they are at present on a visit to Auckland, and, if they are not settled with, it is questionable if such easy arrangements can be made with them at any future period.

The Waiheke chiefs would agree to give up the disputed claim of 800 acres, and an additional block, comprising about eight hundred acres of valuable forest land, at the watering place at Waiheke, for a consideration of £300, and I believe the arrangements at Piako could be adjusted, if done promptly, on equally reasonable terms.

I have, &c.,

The COLONIAL SECRETARY, Auckland.

DONALD MCLEAN,
Land Commissioner.

[Extracts from reports by Mr. District Commissioner Hay to the chief commissioner.]

AUCKLAND, 21st October, 1857. SIR: I have the honor to state for your information, with regard to the land on the Piako, as follows:

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With regard to Webster's purchase, all that I could do amounted to nothing, as I had no names to go by with regard to boundaries, and a long time has elapsed since the purchase; moreover, the Ngatihaurea-who, as vassals of the Ngatipaoa at the time of the purchase by Webster, did not dare then to say anything-have now, from the decline of the influence of the chiefs, come forward and denied the sale of the frontage from Maukoro to Angapunga, stated to have been purchased by Webster, and declare his eastern boundary to be that laid down in the accompanying plan. I have also shown in this plan what they state to have been his western or back boundary. In consequence of the facts above stated, and from the frontage to the river having been supposed to be twice its actual length, the purchase made by Mr. Webster turns out to be only about six thousand acres.

AUCKLAND, 11th November, 1857.

I should wish to call the attention of the Government to the following facts, from which have arisen the delay and difficulty in settling the Piako question. The natives have refused the sum offered yesterday (£50) because they did not consider it sufficient, and also because they maintain that some payment ought to be made by the Government on account of Webster's purchase. With regard to this purchase, they have been most consistent in asserting that, though their names were signed together in token of assent, and their evidence before the commissioners' court went to prove that the purchase was a bona fide one, still they were induced to act thus from the promises and representations of Webster, and that at that time they hardly knew the importance of the steps they were taking. I may observe that the sum promised by Webster was five times the amount paid by him. It is needless to state that the promise was not kept.

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On my arrival at Maukoro, on the Piako, I found the residents on the block (Ngatirauhea, formerly vassals of the Ngatipaoa) prepared to assert their right, not only to sell land on their own account, but to retain all land belonging to them that had been sold to Webster without their consent and without their sharing in the payment. The natives dispute a good deal amongst themselves,

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