PASSAGES FROM MR. BUSBY’S LETTER, IN REFERENCE TO LAND CLAIMS COMMISSIONER BELL’S REPORT ON MRS. SMITHSON’S PETITION, ADDRESSED TO HIS EXCELLENCY THE GOVERNOR.

Auckland Examiner, Volume III, Issue 141, 12 March 1859, Page 5 (Supplement)

PASSAGES FROM MR. BUSBY’S LETTER, IN REFERENCE TO LAND CLAIMS COMMISSIONER BELL’S REPORT ON MRS. SMITHSON’S PETITION, ADDRESSED TO HIS EXCELLENCY THE GOVERNOR.

A few words are sufficient to shew that of whatever else Mr. Dillon Bell’s report may be 'conclusive/ it does not in the slightest degree affect the truth of any material allegation contained in Mrs. Smithson’s Petition, or the validity of her claim to redress. The facts are not denied, that the property was purchased under the express sanction of the Queen’s represehtative, that the Queen’s representative was bound by a solemn instrument of contract to confirm the purchase on certain conditions, on which conditions alone Mrs. Smithson admits that her busband and daughters were entitled to the issue of Crown Grants , and which conditions, she states, they were ready, as indeed it was plainly their interest, to fulfil.

After having alleged that the certificate attached by me to Mrs. Smithson’s Petition, would without farther explanation, mislead her Majesty’s Governrticnt. Mr. Dillon Bell proceeds to state : —First. '‘That he finds no record of the claim under certificate No. 75, having been preferred before the then Commissioner for investigation, which the proclamation warned all claimants was a necessary preliminary to a Crown Grant ” The answer to this observation is, that the original proclamation specified no period within which the title deeds, and a survey of the land, should be lodgedin the Colonial Secretary’s office, as a preparatory step to their being referred to a Commissioner. Whereas Governor Grey’s notice of the 15th June, 1846, required all the purchasers of land and pre-emption certificates “to send in, on or before the 15th September next, (after which no claim will be received or entertained) all the papers connected with their alleged purchase, whether deeds or surveys, for examination before such Commissioners as may be appointed.” It has always been stated by those who were best acquainted with th© circumstances, that this was requiring an imposibility, as there was not in the Province a sufficient number of surveyors to survey all the lands within the period of three months.

It is next alleged, “That the purchase from the Natives (under Certificate No 75) conflicted with that of another pre-emption claimant, and that it is uncextain which of the two would on enquiry have been sustained.” It is certainly a new way to settle the rights of a disputed title for the arbitrator to seize the property for himself, and thus save either party the trouble of proving that his opponent’s claim was not so well founded as his own.

It is next alleged that “the Certificates No. 117, 188, 189, related to la id at Mahurangi,” that “on the 20th December, 1844, Governor Fizroy had refused an application from Smithson for a waiver over part of the same land, because the Chief Proteetor, and SurveyorGeneral, showed it to be within the Mahurangi block purchased long before by the Government and because it formed part of the reserve for the Natives there, over which, by the lerms of the Proclamation itself, no waiver could be granted.” I must here beg your Excellency to send for the papers relating to Smithson’s case, which are in Mr Dillon Bell’s custody (or were when I was in Auckland), and examine the endorsements thereon in the hand-writing, respectively, of Governor Fitzroy, Mr. Ligar. Surveyor-General, and Mr Clarke, Protector of Aborigines, in order that you may judge by tflie pains which have evidently been taken in this case before a decision was come to, whether Captain Fitzroy, was or was not a better judge of the manner in in whieh nis Proclamation was to be carried out than Mr Dillon Bell, sitting in judgment on his conduct fourteen years after the transaction.

It is further stated, in the same paragraph, that the applications for the waivers of preemptions were made on the 19th February, and were granted by the Governor on the Bth March, the Native deeds of sale bearing date the 13th February. “Now, the proclamation had pointed out that purchases made before waiver were contrary to the conditions on which the right of pre-emption was waived, and by a Gazette notice (7th Dec., 1844) express warninghad been given that the Crown’s right of pre-emption would not be waived in respect of land of which a purchase bad been made previous to the consent of the Governor being formally obtained in writing.” I would here again ask, has Mr. Dillon Bell, at this distance of time, the means of judging whether Fitzroy. did or did not carry out his own proclamations in the spirit’in which they were published ? Has he any right to assume that the Smithson’s did not obtain the formal consent of the Governor in writing, before entering into the contract which resulted in the purchase? It is notan unusual thing for a deed of sale to bear on the face of it two distinct dates; namely, that on which the contract was entered into by an agreement on terms, and that on which it was completed by the payment of the purchase money ? or even to complete it by the payment of the purchase money

and the delivery of the deed at a date subsequent to that stated in the deed ? Is it reasonable to suppose that the purchaser would risk the loss of his money, by paying it until the pre-emptive certificate was issued : and to what purpose apply for the pre-emption certificate until he had ascertained by an agreement as to the terms of purchase, that it could be made use of? If such suggestions as these are to have any weight in bringing bonafides of a contract into question, there are probably few contracts in existence the bona jides of which might not be brought into question, after the lapse of a period of fourteen years, and the or absence of tbe parties to the contract who might htive been able to explain what may be seemingly inconsistent.

Under these circumstances, and finding “no record of these Mahurangi purchases having been preferred by the claimant before the Commissioner,” Mr Dillon Bell comes to the conclusion, that so far from a title having been acquired which has never been disputed or questioned, “it is extremely doubtful whether under the circumstances above named, they could have been sustained at all.” In reply to this, I could again appeal to your Excellency to ascertain whether tbe Government entered into possession of the laud , or leased such parts of it as were sold, under any other title than that which was acquired by Mr. Smithson and his daughters. In the next paragraph Mr. Dillon Bell denies Mrs. Smithson’s statement that before Go- ‘ vernor Fitzroy had time ta complete his engagement to issue a grant, he was superseded by Governor Gray, as “there were in the proclamation other antecedent conditions, not mentionedin the petition, before a grant could be issued ; one of which was that the claimant should send in a survey.” This observation, after what has been already said, would seem almost too frivolous to be noticed. Governor Fitzroy could not according to the terms of the proclamation, issue a grant till after at‘lest twelve months from the receipt of a survey. Equally frivolous seem the observations in the next paragaph, as to the incorrectness of the terms in which Mrs. Smithson expresses herself in relation to. her interviews with Sir George Grey, and the false statement by which she was induced to take back the money originally paid for the land. Your Excellency will, I believe, find copies of tbe written communications enclosed with Mrs Smithson’s petition, and will be able to judge whether there is any inconsistency between what is stated in her petition, which could in any way affect the validity of complaint; and as to the verbial communications which passed between Mrs Smithson and Sir George Grey, Mrs. Smithson is I should think as an authority upon that point, as Mr. Dillon Belk There is however one passage in this paragraph which may perhaps be justly designated as of a character more grave than frivolous : namely, the quotation from Mrs. Smithson’s letter of the Bth August, that “if the proceeds were paid into the executors hands it would be a satisfactory arrangement of the same, a in the former instance of compensaion.” Its strikes me that by the connexion in which these words are introduced in Mr. Dillon Bell’s report, the words “satisfactory arrangement ” are made to apply to the terms of “the settlement of the Mahurangi claims’—that is that it was a satisfactory arrangement that the money should.be received, instead of the land, whereas I am confident your Excellency will find, on referring to the letter, that the satisfactory arrangement referred solely to the parties to whom the money was to be paid. Whether Sir George Grey was, or was not, in Auckland at the time the money was paid,is immaterial to the question ; that “ he does not appear to have had any thing to do with it” is equally so. What was done by his authority was done by himself. The real question is, did he offer to give her the land on the conditions originally agreed upon, or bad he not in fact 'sold all of it that was of sufficient value to attract purchasers ? The next .paragraph affirms that “it is incorrect and a misquotation of Lord Grey’s despatch of 10th February 1847” to say that Her Majesty while disallowing Governor FitzToy’s proclamations commanded that every act done under them should be held as valid and effectual as if the proclamations had been allowed and confirmed ;” that “on the eontraay Lord Grey, in transmitting the Queen’s commands to the Governor, only authorised validity being given in the penny an acre claims, to “such acts” as might have been done in striet pursuance of, aTid under the authority of, the Proclamations of the 18th October 1844, antecedently on the receipt of Lord Stanley’s despatch of the 27 June 1845” ; and no grant whatever was to be made except upon a certificate from the Attorney General that the claim was in “exact conformity” to the proclamation.

If there is any incorrectness in the quotation made in Mrs Smithson’s petition it is not attributable to the Petitioner, who admits that she was entitled to a Crown grant on compliance with theconditionsof Governor Fitzroy’s proclamation, but to an apparent or real inconsistency in Lord Grey’s despatch. Does Blr. Dillpn Bell consider that the Secretary of State had power to alter the conditions of the

original contract, or to add new conditions which should take effect after the receipt of Lord Stanley’s desparch of 27th June, 1845 ? It is true that Governor Grey after a detail of the unjustfiable conduct of one of the holders of the preemption certificates to certain native chiefs, writes to the Secretary of State, of the whole class, in terms which could only be justified by evidence of a conspiracy between them and Governor Fitzroy to defraud the public ; and that Lord Grey received these statements in the spirit in which they were written,” anticipated—as Mr. Dillon Bell quotes—“that the result would be that very few would be sustained,” and “had no difficulty in avowing it would be gratifying to him to learn such was the result.” But does he mean that one part of Lord Grey’s despatch was to invalidate another part ; or that it would be gratifying to Lord Grey that titles should not be sustained, although m order “to maintain the public faith inviolate” it would be necessary to sustain them ?

In the following paragraph it is stated that “it is incorrect to say that, in taking advantage of helplessness to despoil your Majesty’s Petitioners, and her orphan daughters of their rightful property, Governor Grey was violating the express commands of Your Majesty, signified through two successive Secretaries of State;” that “on the contrary there is no measure of doubt, that under Lord Grey’s directions at least thtee of the Smithson’s claims must all at once have fallen to the ground as it was impossible to get the necessary certificate of the Attorney-General.” But what made it impossible but the arbitrary imposition by Sir George Grey of new and impossible conditions ? Nominally, indeed, he left it open to the purchasers of land under the penny an acre proclamations (to quote the words of his address to the Council of 7th August, 1847, see pari, papers of 1848, p. 46) to avail themselves of any one of three modes of proceeding : “Ist. Either to avail themselves of the provisions of the instructions of Her Majesty’s Government, which I have now laid upon the table; or, “2ndly. To avail themselves of the provisions of the local ordinance (Nd. 22 Sess. 7) to authorise compensation in colonial debentures to be made to certain claimants to land in New Zealand ; or, “3rdly. To avail themselves of the following regulations which the Government are prepared to v.dopt, that is—to give a grant of 500 aers <ut of the whole quantity purchased, oa paying ss. an acre, and giving up the remainder whatever it might be.’”

It does not appear, however, that Governor Grey had placed before the Council copies of the despatches from Lord Stanley and Lord Grey, but only the “provisions of the instructions” as' drawn up in the annexed report of the Attorney General on the course which would have to be pursued under the terms of Lord Grey’s despatch.