MR. COMMISSIONER COWELL'S REPORT. London, 23d June, 1817.

New Zealander, Volume 4, Issue 213, 14 June 1848, Page 2

MR. COMMISSIONER COWELL'S REPORT. London, 23d June, 1817.

My Lord,— Mi. Will am Swainson, of the ifntt Valley, near Wellington, in New Zealand, having addressed a letter from thence, dated Dec. 15, 184G, conveying to your .Lordship, on pait of the Resident Land I'nr hasejs of the New Zealand Company, a printed letter from them to the D icctors of that Company, dated Wellington, >cw Ze.ilaud, September 23, 1840', containing allegations ot injuries itiilicted upon them by the said diiectors, a^d demand* ol connieiuittion; your Lordship, ailer having calkd upon t'te Directois of the New Zealand Company to prcil'er such cxp ai ntions as might wem good to them, wib pleaded to direct me to examine into the allegations of the settlers on the ono side, and into the explanations relative thereto uliorded by the Directors of the Company on the other. Accordingly, hjvu>& compared find investigated the statements uiid countci statements of the parties respectively, and having called for all mih evidentiary and elucidatory matter from the New Zealand Directois as seemed to rae calculated to throw any light on the subject, I have the honour to ■übmit the subjoined statement for your Lordship's consideration. The letter of the settlers, dated Wellington, 23d September, 1846", coniains their case against the Directors of the New Z;alund Company, very povvei fully, and apparently veiy Hilly stated. They make tlnee several demands for compensation, on tlirce several grounds. Tjiey appeal to the dncctuib I of the company, " not (they say, page 9) as supplicants for their bounty— not a& men ming for favour at their hands, but as paitics deeply and grievously injured — as men protesting against qi eat wrongs inflicted by them, and |as such demanding redress. .First then," they continue, addressing the Ducctors,) " we claim compensation for the loss we have incurred from your inabiliiy to fulfil the contract made with us seven yeais ago." They then pioceed, p. 13, to draw a picture of their losses, saying, that after having (nought out a capital estimated at liom .£1,000,000 to £2,000,000, they have not, up to the day they are wilting, a Crown title to a single acre of land, that of all the land selected they have only obtained piecarious possession ol a few thou sand acies, that they have bom doomed to inactivity foi six years; that instead of employing their capital pioductively, they have been forced to subsist upon it; that they had been exposed to the aggiessions ol hostile savages, who have destioycd houses, burnt ciops, and mm dcicd sonic industiious settleis, that theieme hut lew who aie not in eliievably ruined ; "And to what cause," they add, addressing the Dneetors, in page 14, "are the disastcis which have befallen us attribute* hie?"—-" You cannot and daio not deny, that the immediate and pioxnnate came of uiin has been the nonuUilineul by you ol the contiact loimed with us seven years ago." Finding in this manner (hat the fiist of the thicc great wrongs which the settleis bi ought under consi. tictation. was avcrrcdj a.s> well in, thg beginning a,s iv Uic

(onrlvision of thy statement spiling it fmth, to consist ! of the non-fullilmpnt ol the conti.ict made in JS,">9, I I dcsucd to lake' such inslmnicnt into consideiati ni. I /bund that, sfnoily speaking, Ilicic existed no insliuinciit so entitled, but lli.it there was cunstiuctivcly, a conliact consisting ol' two sepaiate iiistiiitnuuLs, iiz The Prospectus ol the Company, dated Ist June, lS.i«), and the document, entitled " New Zealand Laudoidci." ) annex copies of these documents, of wbifb thr " Landoider" does virtually attain to the chaiactci ol.i conlinct, because it embodies the coiulitious of a sale of land by the Dhcclois of tlie Company, in witness ol which it beats the signatures of thiee of the Diieelois, winle its countei pate exhibits that of the paify puiehasinnr. These iwo instalments constitute tlic conlmcl which the t-igneis ol tlie letter aflirm has not been lulii'led by the Dneetois, and they claim compensation toi this allciyd non fulfilment, and for the losses they have in consequence sustained. They claim it with the I'iospectus and theLandoidcr themselves in their hands as evidence at once of their quality as .•-ctticis, and of theii li^ht to compensation ; and it ccitamly was difficult foi mo at thst to conceive how they could have been led thus to bring fonv.ird documents which so completely dispiove their allcga- | tion, and take Aoin under them all giound to My title | to conijiensution whatever. Your Loidships will perceive that these instruments bear on their face that the Diicctois did, in 18.J9, foresee the possibility of their proving unable to give a title to lands in New Zealand, and that they warned their vendees to that effect. "It is umlei stood that the Government intends to inquire into the title of Mulish subjects to lands in New Zealand, h\v we (the ])'uectois) aie not aware lint tho title to the Company's lands will he found in any manner impeachable ; but take notice, lhat we do not mean to {fiiaianlee the title to the land wo aie now going to bell, and which you aie now going to buy, against the lesults of any piocccdings of or undei the authority of | the JJiilish Government or Lcsriiilatmc, or any othei , manner exempt as against our own acts, and the acts ol I those who derive title under or in tiust foi us." Jt seems haul to undo stand how any one can now claim dannges fioin the D.iectois for the consequences of that vciy contingency against which his own signatiue acknowledges that they, in the veiy outset, did solemnly wain him lhat they would not gu.uanlce him. Piocccding next to investigate the equitable or moral i him of the settlers under this iiist head of wrongs, 1 did not find this to be tenable or valid in any other sense or f>nii it than those in which the diicctorh declaicd themselves to Invc tver been leady, and even ca^cr— and evci\ now to he cager — to admit it. These gentlemen bay, " We aie joint, s'lthough not co equil, j,,iffeieis with the settleis, and the moral claims which in community of mislortunc aie lcciprocal. We for our part acknowledge jf, to be our duty to do all in our power to promote the well-doin^ of the sett lets — to alleviate lltcfr h.'iulsliips, and to procure for them thiir titles; ami we huve snuggled (luough lon» ycais to peiloim thif, iegaidlcs,s ot the sacrifices it involved."^ 1 his is the result of what I Icain lioin the chaiiman, and fiom such other diieitors as I have applied to on this topic ; and alter much and attentive deliberation, I hive not been able to bring my mind to the conclusion that the moial duty of tlie dnectois, ansing fiom the lclationship in which they stand to the settleis, and fiom all the circumstances ol the case, extends beyond this. 1 must add, that I have seen no reason for supposing that they have ever shiuiik from acting up to this their sense of their duties. Tlk: contemplation of the claim of the so! tiers under this aspect ol equity and moral obligation, naluially led me io examine jn o me nuu.ber, qu'ility, ,hii| ci/inhtiou o( the claimants signing the letter. The only peisonai evidence accessible to me w,is that of Mr. Ldwaul Jemingh nn Wakefield, who ishimselfone ol'tJieoi filial pettlcis—uho lias, resided four ye.us and a half niiN'civ Zealand, and who happens at picsent to be in England. This genii, man, in answer to various questions, obkcivcs, that the ivnters of the lcflei omit to (feclaie (as they ought in fairness to have <'o ie) whcthei they woe ongiii.it purchaseis horn the Company, or secondary purcha-ei.s. lie snys, that theio arc now resident in the colony about one bundled and fitly original pwrchascis ot land in the settlements of Wellington and Waiigainii : while the muni oi of lcsirfonU, who ha\s put chased 1 mds in those ieltlcmi-nts liom olher poisons than the Company is much gieatei ; affiunmg ih.it there aie one or two villages near Wellington loj mid cntiic-Iy of labotueis who li.vo bought small lots of land cither directly or jntei mediately fiom the original purchaser; th.'t at Wellington itiolf a ''Woiking Man's Laud Association ' h is rxiMcd five or six j eais, whose mcmbeis unite fhoir savings to pin chase choice portions of land, which they divide out among themselves Mli.u many emigrants /torn other colonies and from England, have bo-ight portions of land from ori. ginal piuchascib; he di.nvs the conclusion that the niimbci of lcsident puichiscrs of land at Wellington and Wanganui would not be over estimated at lioni four to five hundicd. Now it appeals that the letter in question, pmporting to be, and which Mi, William Swamscn allirms that he believes to be, signed by all the land pmelnscrs now left in the scttlcmgnt, except such as either related to some of the body (oT diicctois), and two olher individuals holding ofhcial situations, is only signed by filty-fivo persons. Mi. Ji. J. Wakefield fmtber obseivcs, that only thnty-scven of these fifty-live aie ouginal pm chasers; and in answer to lurthcr questions, informs me that these Unity- seven persons originally puichased among them one hundred -md sixteen sections, or about U, 701) acres, out ol the first sen lenient (consisting of Wellington a. id Wanganui), in which a total quantity of 12r>,<)00 acies was fold; that while in this mannei these tliirt) -seven poisons lepiesen ted originally little more tnan one-eleventh of ibe whole tjiujiti/y ol hud told by the Company, they have since jold 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 £40, instead of £1 per acre, for pm is of country sections; while Jrom £500 to X'Boo to X'looo has been oflbred lor town sections ol an acre each, and ltfusid. Mr. E. J. Wakefield has aflbidcd me particular and detailed information concerning forty-four of the gentlemen signing the letter, the tenor of which is, in almost every instance, favourable to their successful nulustiy. I leave to others the task of judging between the conflicting lepicsentations of Mi. X J. Wakefield and the panics to this letter, with this lcmark, that their own letter contains a decisive test of their weight due to their repiesentattons, which it is now incumbent ou me to adduce. In page 13 I find the following words addressed to the Dneetors:— " Relying on your representations, we purchased land to which you said jou could give us a good title, and of which youassmed us you could put us in quiet possession — wescveicdall the tics of kindred— sacrificed all our piospects in the mother country— and planted ourselves amidst savages, in a countiy almost unknown I — bringing with us a capital which has been estimated at from X' 1,000,000, 000,000 to X' 2,000,000." These aie their words. Although, therefore, with these words befoje me, I

cannot fir in uiulci I inning tlicm to nffirm that tlioy bought out at the k-.isi Cl, >OU,OUO, I nm left to conjrctuu 1 the miinboi of capitalist scttleis coinpiehendcd undei the wowl wk. This pronoun may be, and in stiictness it is, confined to thirty-seven of the fifty- five signers of this letter ; yet they may intend it to embrace the whole number of the original emigrating capitalist settlers, (independent of the labourite and of those purchasers of land orders who have not yrt emigrated) now " resident in Wellington and Wdnganui :" in which case it miy cvtend to I.V), or by doubling; this number, in order to allow for those who have left the colony, 01 are dead, it may be liberally interpreted to comprfchend as many as 300. In the first case, it will strike youi Lordship that they represent themselves as havi £ brought, on an average, the immense sum of £A 0,0 >.0 each ; in the second, »hat of XlO OOl) ; und in the third case that of XT),OO'J. I know net which of these icpiPsentalions will be consideied as approaching the neaiest to probability, but it is evident that they arc 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 woild, to substantial them by the most comincing proofs. But of pi oofs of tiny kind they have notadvauced the particle of a thadow. I conclude my investigation of this first wrong alleged to have been inflicted by the Company on the settleis, by stating that I am unable to diaw fiom the Director*/ 3id Report, and fiom the Despatch to the a^cnt in New Zealand, dated 26th April, 1811, tl'<* inferences, drawn I y the signers of the letter, pages 19 and 23, viz, that the Dhcctors distinctly admitted, or thut they admitted in even the most indialiii. I oc equivocal manner, or in any manner whatever, that ttiey •weie under positive and moral obligations to affoul w the settlers, out of the lands placed by Government at theii disposal, comp nsation for sacrifices and hardships to wh ci the sutlers had at that lime been exposed; and cmsequenily tluir sulisqucnt piivat ons render their claim at the present lime much stronger and more just. Neither can I bring my mind to the conclusion advanced in page 23, " that the directors by cxpicts agreement guaranteed Government against all rcspnihihility to the icdleis, ;ind took upon ll.emselvcs the sole liability ol making good their engagement!, with the settlrn." For the directors do not appear to me at any time to have, either intending oi uaintendmc: it, annulled the defen-dv-j picviso contnincd in the land order to which I have already invited your Lordbhips attention ; which was meant by them to be, and was known by the vendees at the time of their accepting the contract of p m chase and sale, to have been meant by the dn colors 10 be an absolute bar for ever to all such cUi.iis as the vendees who have signed the letter now make. In treating of the fi st of the three grppt wron s for which the signers of the letter demand compensation, I have passed judgment on the second in so far as this, which I am now about to submit to your Lordship, proceeds from, or is connected with any other cause than the " ads of the Company nnd Directors respectively, and the acts of those deriving title under, or in trust for tho-e, respectively." In stating the second q tat wrong, therefore, I shall be acting in the strictest conformity with justice in detaching from it, and in omitting to nou'ee all that part of it which flows from an^ ol these sources acainsr which the dircctois, at first and throughout, have relumed to guarantee the purchasers of land orders. Ihe signers then affirm, in page« 23 and 33 (adducing quotitions from tin* Company's prospectus ol Hie Ist ol June and 30th of July, 1839), '• that the Company <>flVti''i to purchase the most fertile, ;iva laMo, and v.luable land in their possession ; that the puwei of selection over many dislncls, and the consequent ctilamiy of ob'aining the very bfst land in the Com. pany's potsoshion, were the peculiar inducements held out to buyers : that, in spite of this, the purchase! sof these land orders found, on t >eir arrival in New Z-u« land, that their right to select ovi.r all the districts possesofd, cr nominally possessed, by the Company was openly lenudnited and denied by the Company's, agent m the colony ; that they were then compelled to select land, n g<eat pottion of which w.is worthless, and that some of the bLht diitiicts about Wellington were nc\er ihro.\n open for selection." Wheiefore they say, in page 32, vre now claim — " not us a matter of favor, but of right — that we shall be permitted to thiow up all the worthless land we have so unjustly bon < otnj died to select, and thai, the Wairurapa, and (lie other blocks of land icfeired to by your principal a^nt, be purchased, surveyed, and thrown open for our selection." If the intcrprctaiion which the- letter writers put upon the terms ol the prospectus of June and July, 1839, in page 21, be entu-uined for the pu. pose of investigating the clajni3 which they thus aim at founding on it, how will the question stand ? It wilt be seen that as fast as each of the holders of these land orders arnvetl in the colony, he found that he had the right titler of choosing at once among such lands -fiß the Company had at the time of his arnval to offer, or of reseiving his choice until additional laud should be subsequently sufveyed and oftertd for selection. Hut every holder of a land ordrT must have known, and d:d uudcniabiy know at tin, time of purchasing the order in London, that such would be Ins alternative upon disembarking at New Zealand, and he was of course perfectly prepared so to find it ; for in the very nature of things he could have found nothing else. Now, there were ptculiar advantages mixed with peculiar disadvantages attached to cadi part of the alternative ; some chose immediately after disembarking, among such lands as were tnen nrepaied for selection ; boidc did not choose until they had waited a certain time; and some have not chosen up to this day. The rights of this third, or last class of purchasers, are not at present brougln into question. The claim now advanced can only refer to the two first classes. And what is it that theie claimants demand ? Nothing less than that one should be interpreted to mean two. 'ihey ma'ntain that the Company, by selling for a cert'iin sum to them the right oi making one selection, did really sell to them for that same sum the right of making two selections ; and that it is under the absolute obligation (since a light m one party involves a corresponding obligation in the other, and the claim is heie ostentatiously declared to be, not a matter of favour, but of right), not merely of allowing them to ftiake two stleclions, but also of puichasing and throwing open for their selection certain particulai districts that they name. Such demands ore so novel in transactions of business, that I think it quite unnecessary to canvass them. It a horse dealer were to sell tickets entitling the holders to enter his stables at their pleasure, and take out any horse they might lind in them, what would be thought of these paities, if, several months after, having exercised their rights, they were to bring back the horses they had chosen, and not merely declare that the dealer hud sold them the right of making a second choice from whatever his stock might at any future time prove to be, but that he was under the obligation of purchasing the blood of Eclipse, Smolcnfcko, &c, &c, &c, for their more satisfactoiy second choice ?

It a incuts to me tii.it the purchase: s of I'uul onh'is were tree to buy, and fiee to choose ; but th 't, having once chosen, they me net free to cluuge; mid I will close this tojiic of claim by s<iyui'r, that 1 lcai 11 fiom the letter itself, th.it when the wti'ois ni'oitn your Lordhhip "that they were compelled" to select \nvls of which a great portion " uaj quite worthless," they mciely mean that at the time of thcit seluoiiori 1 -, re spectivclv, they found ti'cmselvc3 in the alternative m which th 7 had long expected to find themselves, and they wete " compelled in no other sense. They affir.n, nuleed, that the power which tlioy had put chased m London of selecting over many dmiricts was openly repudiated and denied by the Company's a^cnt m the colony But they do not advance a p.uticle of a proof ol this assertion ; and as nell asseitions of these gentlemen, unsupported by proof, must niv i\>snri'y stand affected in my mind by the eh racier of that assertion to which I have dnuvn your 1 oidship's attention regarding the average capital, which they oi their whole body brought to New Zealand ; us I have seen m Colonel Wakeheld's hand-writing a dcin.il of this chaigc, as the Duectors ot the C mipaiiy afliini that they never heard of the maftcr X fore, and as I suppose that an act of this nature would have been brought to public knowledge at the nine of its occuirence, 1 foel justified for all tluso leusuns in dwelling upjn it no longer at prcsnit. The thiid great wroi'g is the w'thloMing from the pin chasers m the first and pniicipal --cUlement (p <l )) 25(i,3J0 acics, siy two hundred and fitlv-six thou and three bundled and thirty acies, (I write the amount in woids in order thai your Loidship may not for a moment suppose, as your eye shall fall upon the figures tlieniae'ves, tli'it there must be some cicucal eimr jn the statement,) being that prop >rtion of the q antity of acres accruing to the Company after Mr. Peunington's awaid, winch these gentlemen afiirm thete ia every reason to believe tlut Lord John llus«ell intended shall come to them, and which, on other and more VYciehty grounds of " rights accruing by trustcethip," they say arc theirs. They athanco this claim (addressing the Diicctors, p. 41) m follows: — " You have pcr \ cried your trust to your own personal profit— and, thciefore, we are entitled to call upon you to account to us lor the advaitages thus obtained, and lo claim that the landi so acquired (elsewhere stated by them to be exactly 236 3,'Jl) aeies) be held m tuist loi us;— and we aie confident that a com tof equity would compel >ou disgorge those pioii's — would insist upon your giving them up ior the benefit of those by means of whose hauls you, acting as tmstees, aiquircd (hem." A court of equity is ceitainly tho only proper Ihcatic for the investigation of this natuie; and 1 thercioro ])resume I may piopcily abstain fiom slating the giounds of it, and discussing their validity. Such, my Loid, are the tlnee gical wiongs alleged 'o have been inflicted on the wiileis of the Wellington Letter. Incidental to them a number of assci lions aie advanced, into every one of which 1 have made an adequate examination. Ido not 'hinlc, however, (hat it would be piohtable to adduce, or to canvass them, us the giounds of the whole case itself aie cntiicly disposed of, 'md the asseitions themselves invaiiably turn out to he cither iminatciial, unsuppoitcd by proofs, or in singular contrast with what I uudcistand to be the facts. The princip.il agent of the Company, writing to the diiectois under dale of the 18th December, liSlf}, with lefe-ionco to this letter, s.iys •—" .Many of those who prolcss not to be in possession of then lauds (I picsume all their lands) aie in the annual lcceipt oi'fiom twenty lo thirty per cunt on their oiigin.il capital. Ollui's have sold town acies at tin 1 puce of C->OO pci acre, and have lelused £ 1,000 ibi a counliy section. I no'ice with no small surpiise the statement intended to con vcy the public (although it is qmlificd in a subsequent s(titenee) that the paitics to the loiter have " never yet obtained possession of the lands they selected," as if they were all in that posi ion, and tint a pi ice varying fiom iCli) 1 ) to Cl,0()0, had not been repeatedly realised by the sale of a tingle town acre in this town by .some of those who have now < onic lorward lo lepresent the haidships of never hiving been put in possession of land both in town and countij, tint was the subject oi constant cultivation, sale, oi exchange by them." These lcprcsunlations aie confiimed by tiiose uhHi 1 have leeeived fiom Mr. E J. Wakei'ie'd. Finally, I beg to report as my delibeiatc opinions— 'lhat the ehaigcs which the si«ncis of the Wellington Lcttci made against the dnectjis of the JVew Zealand Company aie not wan an tod by any facts or evidence which they have adduced; and soci,i!!\, that the Diicctors have noi inflicted upon the setlleis any one ol the wiongs of which the wuteis of the Wellington Letter accuse them. That the manner in which the case is picpmed and woiUed up, unequivocally hi-tiays in scveul instances the clemcst signs of gcneial bad faith. And as ihcie is no colouiahlc giounds for supposing that the <>5 signers of this le-ter utier the sentiments ol other parlies, but only their o'vn, I conclude by submiuing the veiy unfasourable impressions ie,j'ai(ling them which this lettei is calculated to pioduce on evciy impartial mind, should be c.iicfully confined to those whose names me attached l'> it, a.id by no means intended to aflcct the chaiactcr oi an} of I lie olhei lesidcnt settlers at Wellington and Wanganui.

I June, Le, (Signed) ,'ohn W. Cowr.LL. (True copy.) (Signed) G.Elliott Elliott, See. Off.