MR. COMMISSIONER COWELL'S REPORT.

Anglo-Maori Warder, Volume 1, Issue 8, 13 June 1848, Page 3

MR. COMMISSIONER COWELL'S REPORT.

London, 23d June, 1847. My Lord, —Mr. William Swainson, of the Hutt Valley, near Wellington, in New Zealand, having addressed a letter from thence, dated Dec. 15, 1846, conveying to \om* Lordship, on part of the Resident Land Purchasers of the New Zealand Company, a printed letter from them to the Directors of that Company, dated Wellington, New Zealand, September 23, 1840, containing allegations ol injuries inflicted upon them by the sa>d directors, and demands ul' compensation; your Lordship, after having called upon the Directors of the New Zealand Company to proffer such explanations as might seem good to them, was pleased to direct me to examine into tha nJlegationsof the settlers on the one side, and into the explanations relative thereto afforded by the Directors of the Company on the other. Accordingly, hating compared and investigated the statements and counter statements of the parties respectively, and having called for all »uth evidentiary and elucidatory matter from the New Zealand Directors as seemed to me calculated to ttirow any light on the subject, I have the honour to submit the subjoined statement for your Lordship's co»siiieration. The letter of the settlers, dated Wellington, 23d September, 1546, contains their case agninst the Directors of the New Zealand Company, very powerfully, and apparently very fully stated. They make three several demands for compensation, on three several grounds. They appeal to the directors of the company, *' not (they say, page 9) as supplicants for their bounty—not as men suing for favour at their hands, but as parties deeply and grievously injured—as men protesting against great wrongs inflicted by them, and as such demanding redress. First then,'* they continue, addrcssiug the Directors,) " we claim compensation for the loss we have incurred from your in. abiliiy to fulfil the contract made with us seven years They then proceed, p. 13, to draw a picture of their losses, saying, that after having brought out a capital estimated at from £1,000,000 to £2,000,000, they have not, up to the day tbey are writing, a Crown title to a single acre of land, that of all the land selected they ! have only obtained precarious possession of a few thou sand acres, that they have be n doomed to inactivity : tor six years; that instead of emp'oying their capital '■ productively, they have been forced to subsist upon it; ! that they had been exposed to the aggressions of hostile ! savages, who have destroyed houses, burnt crops, and murdered some industrious settlers, that there are but few who are not irretrievably ruined; " And to what I cause," they add, addressing the Directors, in page 14, ** are the disasters which have befallen us attributable >''■—" You cannot and dare not deny, that the imI mediate and proximate cau»e of ruin has been the uonj iul lil me tit by you ol the contract formed with us seven years ago." Finding in this manner that the first of th three gi eat wrongs which the settlers brought under consideration was averred, as well in the beginning as in the conclusion of the sta ement setting it forth, to consist of the non-lulfilment ol the contract made in 1539, I desired to take s,uch instrument into consideration. I found that, strictly speaking, there existed no instrument so entitled, but that there was constructively, a contract consisting of two separate instruments, viz., The Prospectus ot' the Company, dated Ist June, 1839, and the document entitled " New Zealand Landorder." I annex copies of these documents, of which the " Landorder"' does virtually attain to the character of a contract, because it embodies the conditions of a sale of land by the Directors of the Company, in witness of which it bears the signatures of three or the Directors, while its counterpar. exhibits that of the party purchasing. These two instruments consti.ute the contract ; which the signers of the letter affirm has not been ful- '■■ filled by the Directors, and they claim compensation , for this alleged nou-fulfilment, and for the losses they ! have in consequence sustained. ; They claim it with the Prospectus and the Landorder ! themselves in their hands as evidence at once of their quality as settlers, and of their right to compensation : ; and it certainly was difficult for me at first to conceive how they could have been led thus to bring forward ' documents which so completely disprove their allega. I tion, and take from under them all ground to any title to compensation whatever. Your Lordships will perceive that these instruments bear on their face that the Directors did, in 1830, foresee the possibility of their proving unable to give a title to lands in f\ew Zealand, and that they warned their vendees to that effect. "It is understood that the Government intends to inquire into the title of British subjects to lands in New Zealand, but we (the Directors) are not aware that the title to the Corapany*s lands will be found in any manner impeachable; but take notice, that we do not mean to guarantee the title to the laud we are now going to sell, and which you are now going to buy, against the results of any proceedings ot or under the authority of the British Government or Legislature, or any other manner except as against our own acts, and the acts of those who derive title under or in uust for us." Jt seems hard to uudeistand Uow any one can now claim damages trom the Directors for the consequences ol that very contingency against which his own signature acknowledges that they, in the very outset, did solemnly warn htm that they would not guarantee him. I'rocicding next to investigate the equitable or mural ehim of the settlers under tins first head of wrongs, I did not find this to be tenable or valid in ai.y other seusc'or spirit than those in which thedircctois declared themselves to have ever been ready, and ewa eager—-

and even now to be eager—to admit it. These getitlpmen say, " We are joint, although not co-equal, sufferers with the settlers, and the moral claims which in community of misfortune are reciprocal. We for our part acknowledge it to be our duty to do all in our power to promote the well-doing of the settlers—to alleviate their hardships, and to procure for them their titles; and we have struggled through long years to perform this, regardless ol the sacrifice'* it involved/' This is the result of what I learn from the chairman, and fi om such other directors as 1 have applied to oil this topic ; and alter mui h and attentive deliberation, I have not been able to bring my mind to the conclusion that the moral duty of the directors, arising from the relationship in which they stand to the sealers, and from all the circumstance* of the case, extends beyond this. I must add, that I have seen no reason for supposing that they have ever shrunk from acting up to this their sense of their duties. The contemplation oi the claim of the sei tiers under this aspect of equity and moral obligation, naturally led me to examine into the number, quality, ant) condition of the claimant* signing the letter. The only personal evidence accessible to me was that of Mr. Edward Jerningham Wakefield, who is himself one of the original renters—who has resided four years and a half in iMew Zealand, and who happens at present to he in England. This gentleman, in answer to various questions, observes, that the writers ot the letter omit to declare (as they ought in fairness to have done) whether they were original purchasers from the Company, or secondary purchasers. He says, that there arc now resident 111 the colony about one hundred and fifty original purchasers ot lard in the settlements of Wellington and Wanganui; while the number of residents who have purchased lands in those settlements from other persons than the Company is much greater; affirming that there ore one or two villages near Wellington iormed entirely of labourers who have bought small lots of laud cither directly or intermediately from the original purchaser; that at Wellington itself a •' Working Man's Land Association ' has existed five or six years, whose members unite their savings to purchase choice portions of land, which they divide out among themI selves: that many emigrants from other colonies and from England, have bought portions of land from original purchasers; he draws the conclusion that the number of resident purchasers of land at Wellington aud Wanganui would not be over estimated at from four to five hundred. Now it appears that the letter in question, purporting to be, and which Mr. William swainson allirms that he believes to be, signed by all the land purchasers now left in the settlement, except such as either related to some of the body (of directors), and two other indi. viduals holding olnciai situations, is only signed by fifty-five persons. Mr. E. J. Wakefield further observes, that only thirty seven of these fifty-five are original purchasers; and in answer to further questions, informs mo that these thirly.seven persons originally purchased among them one hundred aud sixteen sections, or about 11,700 acres, out of the first settlement (consisting of Wellington and Wanganui), in which a total quantity of 125,001) acres was sold; that while in this maimer these thirty-seven persons represented originally little more than one-eleventh of the whole quantity of land sold by the Company, they have since sold among themselves about a third part of this one-eleventh, in all cases at a large advance on the original price;' in some at almost incredible profits, viz., at the rate of £M, instead of £1 per acre, for parts of couuiry sections; while from £501) to £BOO to £IOOO has been offered for town sections of an acre each and refused. * Mr. E. J. Wakefield has afforded me particular and detailed information concerning forty-four ot tlia gentlemen signing the letter, the tenor of which is, in almost every instance, favourable to tbeir succes'slul industry. I leave to others the task of judging between the conflicting representations of Mr. K.J. Wakefield and the parties to this letter, witb this remark, that their own letter contains a decisive test of llieir weight due to their representations, which it is now incumbent on me to adduce. In page 13 I find the following words addressed to the Directors:—■ " Relying on your representations, we purchased land to which you said you could give us a good title, and of which you assured us you could put us in quiet possession—ive severed all the ties of kindred—sacrificed all our prospects in the mother country—and planted ourselves auiidn savages, in a country almost unknown —bringing witn us a capital which has been estimated at from £1,000,000 to £2,000,000." These are their words. Although, therefore, with these words befote me, I cannot err in understanding them to affirm that they brought out at the least £1,500,000, 1 am left to con. ! jecture the number of capitalist settlers comprehended under the word we. | Tnis pronoun may be, and in strictness it is, confined to tbirty-seven ot the fifty-five signers of this | letter; yet they may intend it to embrace the whole number ofi the ongiual emigrating capitalist settlers, (independent of the labourers and ot those purchasers of land orders who have not yet emigrated) now " resident in Wellington and Wanganui:" in which case it miy extend to lao, or by doubling this number, in order to allow for those who have left the colony, orjare dead, it may be liberally interpreted to comprehend as many as 300. I In the first case, it nill strike your Lordship that they represent themselves as havt„g brought, oa an average, the immense sum of A' 40,010 each; in the. second, >hat of i.'lG.oot); and in the third case that of £5,00u. I know not which of th-se representations will be considered as approaching the nearest to proba. bjtty, but it is evtaent that they are all removed from it by so vast an interval, that those who advanced them were bound to themselves, I should say, quite as much as to the world, to substantiate them by the meat coniiooing proofs. But of proofs of any kind they have net advanced the particle of a shadow. I conclude my investigation of this first wrong alleged to have been inflicted by the Company on tlie settlers, by slating that 1 urn unable to draw fiom the Directors' 3rd Report, and front the Despatch to the agent in New Zealand, dated 2flth April, 1841, the inferences, drawn by the signers of the letter, pages 18 and 23, viz, that the Ditectors distinctly admitted, or th»t they admitted in even the most indistinct or equivocal manner, or in any manner whatever, that tney were under positive and moral obligations to afford to the settlers, out of the lands placed by Government at their disposal, compensation for sacrifices and hardships to when the seltlcts had at that time been exposed ; and consequently their subsequent privations render their claim at the present time much stronger and mote just. Neither cm I bnug my mind to the conclusion advanced in page 23, '• that the directors by express sgieement guaranteed Government ugimst all responsibility to the icttlera, and took upon themselves the sole liability of making good then engage, ments with the settlers." For the directors do not appear to me at any time to have, either intending or uuiiitendiQj it» annulled the defensive proviso contained in the land order to which 1 have already invited yoar Lordships attention; which was meant by them to be, and was known by the veadeei at the time

ol their accepting the contract of p.uchnsa and sale, to have been meant by the directors to be an a 1 solute bar for ever to ail such claims as the vendee* who have ' sipned the ldt.r r.nw make. j In treating; of 'h ft st of the three wrnn.-s for I which the iigoeis oi the letter demand co:npcn*Etnn. 1 I have parsed ja-lj;me. t *>n the serond in so fjr l s this, i which 1 am u<.w abort to submit to \our L-pUh'p, j proceeds from, or i» c tin cteu vri:h other cuec thou the " arts < ( tho C-jn-pany and Directors n-si-rc-livc!y. and tlis aci> of those der.vtLg title uihKt, or in trust for tho-e, rcsncrlWtly." In stat'mp '.lie sscond great wrons, thcre r ore, I &ha ? l be acting in the strictest ronforuiit? «ith justice i' l detaching front it, and hi omitting: to no ice ah that i art cf it which flow* from any of ihc«? sources awms l which the directors, at first and Throughout, ha*c retried toguamtitie purchasers oi laml orders. The sicneis then i-ffinn, in pages 23 rnu* 33 (adduc in" quotations fiom the Company's prcsjiectu- of tin* Ist of June and 30th ut July, 1833), u tlul the Company offered to purchase the most fedilp, a*ala'l«' t mid valuable land in their possession ; that tho pwwoof selection over many district and lha consequent ceitainty of obiainins the very best land in lie Company's pot-session, were the pe.ultar inducements bil. T out to buyers : that, in spite of this, the purchase! s oi these land orders found, on tach at rival in New Z aiaud, that their right to s.dret cv.r nil tic disliuts possessed, cr nominally postered, by the Company was openly repudiated and denied by the Company's in the colony; that they weie then compelled to select land, n g'cat portion of which w.s worthless, a.id that some of ihe best districts about Wellington Tiere never ihionn open for selection." Wherefore they say, ia page 32. we now claim—- *' not as a matter cf favor, Lm of right—that vie th ill be permitted to throw up ail the woitblc*s land we have eo nnjostf) b en com; died to seUct, imd tha* ilia Watmtapa, and the other blocks of land icier red to by 7oar inucipal asetit, ue purchased, survey', and j thrown open for our sckftiou." j I! ts-o interpret a* ion which the letter writers put j Uj-oii the teiias of the prospectus of June and July, ; l„3h', in page24.be entertained for ihe pu.po.c of | iuvi the claims which they ti us aim at founding on it, how will the question stand ? | It will be seen that as fast as each of the holders of these land orders arrived in the colooy, he fuiiud that lie had the rLjht titter of choosing at once am.-ng such lands sa the Coaipauy had at the time of hi & amval to offtr, or of nservirg hts choice until additional land should besubbtqucnuy &urieyed aud oa«.red for selection. But every boluer of a land ord.-r must have known, and did undeniably know ft the t-me of purchasing ihe order in London, that eut,h would be his alternative upon disemtarl lug at >»ew Calami, and he was of course r-erfeet.y prepared so to Hud it; for in the very luiiurc'of Ihii £« be could base lound nothing else. Now, there were peculiar adjutages mixed with peculiar disadvantages attached to each part of the alternative; tome chuss immcdiate.y alter disembarking, among such lane's aa were ti:en prepared for selection ; souic did not choose until they had waited a certain time; and some have nut chosen up to this day. Xhe rights of this third, or last cla?s of purchasers, are not at present brought into question. Ihe ckm now advanced cau only refer to tlie two first classes. And what is \t that these claimants demand ? Nothing less than that en.; shonld ue intr rpreted lo mean two. Ihey maintain that the Company; by £i*Mia" for a cert-iu sum to them the light ut uiaMu£ one selection, did really sell to them ior that s<ime sum the right of miking two selections; and that it is under :be absolute obligation (since a in one party involves a corresponding obligatinu in the other, and the claim is here ostentatiously declared to be, not a matter of favour, but of UgU), not mertly of allowing tbem to make two selections, but aiuo of purchasing and throwing open for their &eteJ!ioua.vtain particular districts that they name. Such demands sre so nuvd in transactions oi business, ihat 1 thiuk it quite unnecessary to canvass them. If a hoi as d»ulcr were to Bell tickets entitling the holders 10 enter i.;& stables ist their pleasure, and take oat any hcr&c tbey might iinu in them, what woala be thought of the o e partieE, if, several months after, having exercised their rights, ihey were to bring tac horses thej had cho o en, and not merely declare that the dealer had sold them the right of making a stcond choice from whatever his stock might at any future time prove to be, but that he was undtr the obligation of purchasing the blood of Eclipse, Smolensko, &c, &c, &c, for satisfactory second choice ? It appears to me that the purchasers of land orders were free to hay, and free to choose; but that, having once chosen, ihey are not free tu change; and I will close this topic of ciaim by savia 5 , that I barn from the letter itself, that when the wiiicrs lniurm your lordship "that they were compelled" to select lands of which a great portion *' waß quite worthies*," they merely mean that at the time oi their seleeaons, re spectively, they found themselves iu tlu alternative in which th;y bad lor.g expected to find themselves, and they were ** compelled iu no other sense. They affirm, indeed, that the power which ih. y had purchased in Loudou of selecting over many diamuts was openly repudiated and denied by the Company's agent in the colony But they do not advance a particle of a proof of this assertion; and as v.ell asscitions of these gentlemen, unsupported by proof, muit neeebssri y stand affected in my mind by the character of that assertion to which I have drawn your Lordship's attention regarding the average capital, which tney or their whole oody oioaght to New Zealand; as I have seen in Colonel Wakeneld's hand-writing a dtnial of this charge, as the Directors of the Cumpaiy affirm that they never beard ot the matter before, and us 1 suppose tact on act of this nature would have been brought to public knowledge at the time of its occurrence, J feel justified for all the a e reasons ia dwelling upjn it no longer at present. The third great wrong is the withholding from the purchasers in the first and principal settlement (p. 13) acres, say two hundred and titty-sh. thousand three hundred and thirty acres, (I write the amount iu words in order that your Lordship may not for a moment suppose, as your eye shah fail upon the themselves, that there must be some clerical envr in Ihertoteiiient,) being that propjrliou of the q aatity of acres accruing to the Company after Mr. rVuning.. ton's award, which gentlemen affhm there is every reason to bc-ieve thut Lord John Russell iu- ; teuded shall cume to tbem, and which, on other and more weighty grounds of •* rights accruing by trus- | iee*h.p," they Bay are theirs. They adtance this ; cliim (addressing the Directors, p. It) as follows: : " You have perverted your trust to your own personal profit—and, therefore, we are entitled to call upon you to account to us for ihe advantages thus obtained, nnd to claim that the landj so acquired (J&ewtiere stattu by them to be exactly 256 3^ ) acre.-) bo held in trust for us;—and we are confident that a court of equity wou'd compel you disgorge those profits—would insist vpoti your giving them up for the benefit of those by mean-* of whose funds you, acting as trustees, acquired them."

A court of equity is certainly the only proper theatre for the investigation of this nature; and 1 therefore presume I msy properly abstain from stating the £rciwd3 of it, and discussing their validity. finch, my Lord, arc the three great wrongs alleged to have been inflicted on the writers of the Wellington Letter. Incidenttil to them a number of assertions are ndviiiced, into every c.vq of which 1 have made an adequate evminntinn. Ido not think, however, ihat it \. jfltl I'-j profit-Me to adduce, or to canvass them, us the r;ruu*Hs of the uho'e case itself are entirely dispoHii cf, ind the themsLlvcs iuvariably turn or.! lo be et'her imnntcrial, unsupported by proofs, or : i Miijuhr contrast with what I understand to be tho i'.icts. The priucip .1 agent of the Company, writing to the d-rectoi-.toHhrd-iio of the 18th December, l»tu*,wiih reference 'o Ihis letter, says Many of those who profess not to he in possession of their lands (i presume all their land) are in the annual receipt of from tv.rnty to thirty per cent on their original capital. Others hatr snM town ucics at the price of £3OO per acre, and h,;vo reused ,I'I,OOU for a country section. I notice with i.o sm..H biirpii r e the statement intended tn con vey the puhlic it is qualified in a subsequent sentence) th.it il.c parties to the letter have " yet ohtiimtd of the lands they selected," as if thev urre all In ihat position, and that a price varying hum ,£loif to .Ci.ooo, had not been repeatedly realised by the sale of a tinj*le town acre in this town by some of those who have now come forward to represent the hardships of never lnviug been put in possession of html both iu town and country, ihH was the subject of c >ii .tnnt cultivation, vale, or exchange by them." These representations arc confirmed by those which I have K-eeivcd fioin Mi. Z J. Wakefield. Finally. I beg to report as my deliberate opinions— That the charges which the signers of the Wellington Lettci made against the directors of the New Zealand Company arc not warranted by any facts or evidence which they have adduced; and socially, that the Directors have not inflicted upon the settlers any one of the wiongs of which the wmers of the Welling on Letter That the manner in which the case is prepared and rvoihcd up, uncq.fivocally betrays in several instances the clearest stjjiia ofjjencral bad faithAnd as there is no colourable grounds for supposing that the 55 s gucis of this letter utter the sentiments of other parties, hut only their own, 1 conclude by submit mg the \ery unfavourable impressions regarding them which this letter is calculated ro produce on eveiy impartial mi: d, should be carefully confined to I those \*hose names iire attached to it, and by no means intended to affect the character of any of the other resident settlers at Wellington and Waiiganui. I 1 have, &c., (Signed) John W. Cowell. (True copy.) (Signed) U. Elliott Elliott, Sec. Off.