75

I.—B

leave it alone. Then, lower down on page 10 there appears a telegram from Mr. Bridson, of the 11th October, 1880, stating " that the Chief Judge wished to know if the signatures were in the writing of one of the several claimants, and what are the names attached." Then follows the comment upon that, " For what purpose did the Chief Judge require this information? Was it to enable Mr. Studholme, through his solicitor, Dr. Buller, to interview the applicants for a rehearing?" You will notice throughout this memorandum that it is not the tone of a Minister of the Crown advising Parliament, but rather that of a counsel for the prosecution endeavouring to make out his case against those whom he has considered it his duty to attack. The Chief Judge says he has no recollection of the matter, but he has no doubt that Mr. Studholme, in the exercise of the right which the statute had conferred upon him, had asked for the information, and that he had ordered the information to be given. He has no doubt about that, because it seems he afterwards ordered that the information should be supplied to Mr. Studholme. As he puts it, it was simply a matter of fees. No doubt Mr. Studholme ought to have paid the fees for this information ; but, as Mr. Fenton puts it, he was entitled by law to it, and he obtained it. I submit with every confidence that that was the law. Then, passing to the telegrams on page 11, the Committee will remember one of the documents, which is called an undated memorandum. This, which asked Mr. Hamlin to open the Court and adjourn it till Monday at two, followed the memorandum of the 27th October, " Application for rehearing is withdrawn." I may say I cannot complain upon that point; because I quite admit it was possible for anybody reading these papers to be misled by the manner in which the minutes were written across the paper. I only refer to it as explaining what really happened, and to show the Committee what the evidence amounted to. What it comes to is this :On the 25th October Mr. Dickey wrote a memorandum to Mr. Fenton to say that he (Mr. Dickey) had been asked to order Mr. Hamlin to open the Court and adjourn it till the Ist proximo. Mr. Dickey said he had delayed, doing so until he received further instructions, as the rehearing must be called on before the 31st instant. Now, that did not come before Mr. Fenton till the 27th, the reason being that he was not at his office on the 26th. So, on the 26th Mr. Dickey, not being able to get hold of Mr. Fenton, sent a telegram which he had been ordered to send. Hon. Sir R. Stoitt: Ordered verbally—not in his handwriting—you mean ? Mr. Bell: Yes —ordered verbally. Mr. Fenton had verbally ordered Mr. Dickey to send the telegram, as the Attorney-General points out. Then there comes this : that on the 26th, or, rather, on the 27th, a telegram had arrived from Dr. Buller, to say that the withdrawal of the application for rehearing had been fully signed. Then Mr. Fenton minutes that the application for rehearing is withdrawn, and then he says, " Ask Mr. Hamlin to open the Court, and adjourn till Monday at two." Now, Mr. Fenton would in the ordinary course have been at Napier on Saturday—that is, the 30th ; because the steamer generally leaves Auckland on Thursday, and arrives early on Saturday morning. It happened in this week, however, that for some reason or other the steamer did not arrive at Napier till Sunday ; and the difficulty seems to have arisen, or, rather, to have been increased, by that steamer being a day late. There is no doubt that it was left till the last moment; but, through the delay of the steamer, which very seldom occurs, the case did not come on on the day mentioned. Hon. Sir R. Stout: But the Court was adjourned on the Friday? Mr. Bell: Yes ; but Saturday would have been in time. Now, I would refer here to the power— the undoubted power—of the Court to adjourn in this way. In the rules, in the Gazette of 1874, page 570, there is this provision, in the fourth rule: " The Judge's Clerk, under section 11 of the Act, may, on the written request of the Judge, adjourn the Court." I am under the impression that there is another rule which provides that it may be done by any person appointed by the Judge for that purpose. Hon. Sir R. Stout: I think these are the only rules until 1880. Mr. Bell: I was under the impression that there were otherrules, and I should like to refer the Committee to them later on, if lam allowed. It may be a doubtful question, I admit, whether the adjournment of the Court did adjourn all cases in such manner as to keep on foot the determination of the rehearing. I admit that it may be doubtful. I should myself, at all events, be prepared to contend that it is open to argument, and I submit to the Committee that it was a sufficiently reasonable argument to be satisfactory to the mind of the Native Land Court Judges. You must remember that you are dealing here not with Judges educated to the profession of the law ; though it appears that in this case the learned Judges were both lawyers. But the Native Land Court was rather a Court of investigation than a Court of law. The Bench on this occasion assumed, not unreasonably, I think, that the adjournment of the Court would carry with it the adjournment of the cases, and would thus keep open the rehearing, which they were bound to hold within three years. Hon. Sir R. Stout: You say " assumed : " is there a tittle of evidence to show that they ever considered it? It was never brought before them. Mr. Bell: The Attorney-General says that it was never brought before them. lam obliged to him for mentioning that, because he says in his memorandum, " No notice seems to have been taken of Mr Dickey's pointed reference to the possibility of the rehearing being shut out by the adjournment of the Court." Therefore, while the writer of the memorandum says that pointed reference was made by the Clerk to this particular point, I understand the Attorney-General now to say that attention was never called to it at all. Hon. Sir R. Stout: I mean the Court. You speak of the two Judges, Fenton and O'Brien. Mr. Bell : Yes; I quite understand. The point never arose in their minds, because they deemed themselves fundi officio. The question whether the adjournment of the Court would imply the adjournment of the case never arose for their decision. Now, as to the comment, at the foot of page 11, upon the correspondence between Dr. Buller and Mr. Fenton, and the assurance of Dr. Buller that the claim had been withdrawn, I confess I am surprised to find that comment in the writing of the leader of the profession to which he and I belong. We are, and the Attorney-