DESPATCH FROM W. FOX, Esq., RESIDENT AGENT AT NELSON, TO COL. WAKEFIELD, THE PRINCIPAL AGENT OF THE NEW ZEALAND COMPANY.

New Zealand Spectator and Cook's Strait Guardian, Volume II, Issue 88, 3 June 1846, Page 3

DESPATCH FROM W. FOX, Esq., RESIDENT AGENT AT NELSON, TO COL. WAKEFIELD, THE PRINCIPAL AGENT OF THE NEW ZEALAND COMPANY.

Nelson, 11th May, 1846. Sic, — A copy of the report and award of Mr. Commissioner Spain on the New Zealand Company's claims to land in this district, published in the Wellington Spectator of the 18th ult., reached me by the Bee. From the apparent fairness displayed by the Commissioner when his Court sat here in August 1844, I had anticipated a very different result as regards that portion of his award which affects the claim to the Wairau. and it was with equal snrprise and regret that I perused the document alluded to. j The passage in the report, in which he sta- j ted that the claim to the Wairau was entirely passed over without any evidence being offered by the Company's Agents on the subject, the result of which was his being obliged to come to an exparte decision, differs so materially from my recollections that I feel bound to state them. On the Sunday afternoon preceding the Monday on which Mr. Spain was to open his Court in Nelson, you accompanied me home from church, for the purpose of having some conversation relative to the Wairau claim, which was intended to be brought before the Commissioner's Court on the following day. In the course of the discussion which ensued between us, you informed me that you had told Mr. Spain that it was your intention to , ring that claim before him, and that he ex-

pressed surprize, saying that he only expected the Massacre and Blind Bay claims to be brought before him at Nelson, and that before he could entertain the Wairau claim he must examine Rauparaha and other natives on the other side of the Strait, so that its investigation must await his return thither. I was much disappointed, as I believe you were also, and we agreed that to prevent any mistake on the subject, the plan of the Wairau should be laid before the Commissioner to fix and define our claim, as well as the plans of those districts on which he was prepared then to adjudicate. This was done, and the plan not only produced before the Commissioner as stated in his report, but, what he has omitted to state, a memorandum was made upon it, and signed by himself in the following words : — " Plan of the block of land claimed by the New Zealand Company in the district of the Wairau, as exhibited in Court this 10th August, 1844. | (Signed) Willra. Spain, Commissioner. George Clarke, Protector of Aborigines. For the Principal Agent of the New Zealand | Company, William Fox, Acting Resident | Agent." The only reason, as far as I am acquainted with the matter, why the claim was not fully gone into at that time was the above. It will be observed that the above statement so far rests upon my lecollection of what you told me at the time had passed between yourself and Mr. Spain when I wos not present. Whether my recollection of your statement to myself correctly represents Mr. Spain's statement to you, you can best judge and vouch. The fact, however, does not rest entirely on either your assertion or mine. A more disinter- . ested authority, the Commissioner himself, vouches for it. An article appeared in the Nelson Examiner of the 31st August, 1844, immediately after the Commissioner's Court had closed, in which, after giving an accurate account of the proceedings in that Court relative to the other districts, the following passage occurs : " After several meetings with the natives, Mr. Clarke agreed to settle with them for the sum of £800 for all the districts, (exclusive of the Wairau) t-hich question c mid not be entered upon, owing to the absence of the tribe claiming that district, tolio are at present on the other island." Now this whole article (which is worth referring to, though too long to extract here) was written either by Mr. Spain himself or his clerk, and was received by the proprietor of the newspaper from Mr. Spain, as appears by the following certificates, of whioh I enclose the originals. " I certify that I received the article describing the proceedings in the Court of land claims, inserted m the Nelson Examiner of the 31st August, 1844, from Mr. Commissioner Spain. To the best of my recollection, it was in Mr. Spain's handwriting. It was inserted at his request. Mr. Spain stated that he did not wish it to be knoivn that he had furnished it, and I should have conceived myself bound to treat the communication as confidential, but being responsible for the truth of unacknowledged statements in my paper, I feel it necessary now, on private as well as public grounds, to make this disclosure. May llih, 1846, (Signed) C. Elliott." " I certify that the artic.e in the Nelson Examiner of the 31st August, 1844, relative to the proceedings in the Court of the Commissioner of land claims was set up in type by me from a manuscript which I believe to have been in the handwriting of Mr. Commissioner Spain, and which I received from my brother, Mr. Charles Elliott. (Signed) James Elliott. Nelson, May 11th, 1846." Confirmatory of the above are the recollections of several respectable settlers to whom I have spoken, who were much in Mr. Spain's company, and who are confident that they have heard him assign the reason I have given as that which prevented his entertaining the claim. And it W3s notorious at the time. I mentioned it to many persons who asked me why nothing was done. Mr. Spain resided here for several weeks afterwards in familiar intercourse • with the settlers ; yet this universally known statement was never contradicted by him, nor could it have been consistently with the paragraph furnished by himself to the newspaper. Confirmatory of the correctness of my own recollections is the following passage in my official despatch to the Secretary of the Company of 30th Augt., 1 844. " The Company's claim to the Wairau district has not been disposed of, — Mr. Spain, considering it necessary to have some further communications on the subject with Rauparaha before deciding upon it. His present adjudication includes Massacre and Blind Bay only." I think, Sir, that the above evidence fully establishes that it was not owing to any backwardness on the part of the Agents of the Company to produce evidence on the Wairau

claim that it was not investigated when the Commissioner sat here, but that it was owing solely to the intention expressed by himself not to go into it at that time. Notwithstanding however Mr. Spain's intention to dispose of the Wairau claim on the other side of the Strait, thus declared by him both in print and by word of mouth, and which prevented our pressing the claim here, he did not on his return to the other side of the Strait either take any evidence, or (as I gather from your private letters of thac date) afford you an opportunity of offering any on the subject,. by opening a Court for the purpose or otherwise ; but after an interview with Capt. Fitzroy, he departed for Auckland withont taking any steps towards fulfilling his avowed intention, In connexion with this part of the subject, I would also remind you that on my pressing Capt. Fitzroy to dispose of the Wairau claim six months before Mr. Spain held his Court in Nelson, he told me that he thought it had better stand over for a year or two. See my letter to yourself dated February 1844, printed in the appendix to the Company's 14th report, , page 86. This fact seems to me not unimportant, taken in connexion with the course afterwards pursued by the Commissioner. If Mr. Spain were really anxious on the subject, and fully " aware of the peculiar and very delicate nature of the duty of deciding on this question," as he describes himself to have been, surely it was an extraordinary course to suffer the claim which had been put in before him to tlie Wairau to pass over in silence. The claim had been made much more prominently than he admits. It was first made among others preferred by you in March 1842, and was then published by the Commissioner in the Government Gazette dated 28th of that month. Then the deeds by which it was conveyed to the Company were, it appears by this report subsequently before him ; and lastly we produced a plan in Court at Nelson, on which be himself endorsed the specific memorandum above quoted, describing the plan as delineating our claim to the Wairau. Was a judgment by default so desi: able a thing that in order to secure it he declined to intimate to you his expectation tiiat you would produce some evidence, and the probability that if you did not he should be obliged to decide exparte ? Would there have been any indecorum iv his doing so ? Was is it not his boutxleii duty to have done it ? Is net the fact that he did not do it, much more cousistent with the belief that the reasons given above for the non-investigation of the claim are correct, than that it was passed over to the surprize of the Commissioner in consequence of the omission of the Company's Agents to produce any evidence on the subject ? Affecting so deeply as the report an 1 award do the interests of this settlement, I may be excused perhaps if I point out some particulars in .he former in which it appears to me open to much exception. Firstly, As to the dommentary evidence on which the Company's title rests. This consists in the two deeds described by the Commissioner at the commencement of the report, and his description of which is calculated most seriously to mislead. He describes them as pro essing to convey " all the claims to land o the signiug parties within the 43d degree of South latitude in the middle island, and an imaginary line drawn from Moka, &c." It will naturally be inferred from this, that the deeds contain no better descrip'ion of the Company's purchases than the loose general one here quoted. Will it be believed that the important documents in question contain the name of every place that had a name within the purchased districts, Co names in all — that in both of them particular reservations are made by name — that these names were taken down from the dictation of the vendors themselves, and read over to them at the time of their execution ? See your despatches to the Court of Directors in Octr. 1839, printed in the appendix to their 12th report. That the natives might have laboured under some misapprehension as to the extent of lands conveyed by so general a description as given by the Commissioner is probable enough, and any particular claim based on such a description by the Company, would have been as " preposterous" as he described their claims ; but that they should hare been so far misled by the deeds really executed with such particularity as was the case, as their subsequent declarations (made under the expectation of receiving second payments) suppose, is scarcely possible. The Commissioner's description of the deeds conveys about as adequate a conception of their real importance as a matter of title and evidence, as a mere enumeration of the general words in an ordinary conveyance (" all the estate, right, title, interest, and demands, &c. &c") omitting the more particular description of the estate by its name, acreage, metes, and bounds, would give in a private transaction. I allude to this part of the report, not as wishing to establish the validity of the sale

under the deeds in question, for the Com' missioner has decided against such validity on an independent ground, viz. that the vendors were not the real owners of the land proposed to be sold. But I allude to it, because I think it is a statement on record calculated to convey an extremely false and unfair impression of the means by which the Company endeavoured to deal with the natives. Secondly, As to the oral testimony, I am at a loss here to discover any sound principle by which the decision of the Commissioner can be justified. He finds Te Iti, the native witness who was examined in his Court at Nelson, resorting to deliberate falsehood for the purpose of securing an additional payment for himself and fellows, and properly rejects his evidence, observing at the same time that under such an expectation few natives would refrain from making false statements. Now, Te Iti is one of the best disposed natives in Cook's Strait, has always been friendly to the whites, has himself, as well as his followers, shown great inclination for civilized life, displays few, if any, of the bad traits of the savage, and has acquired none of the vices which follow a residence near the whaling stations. If any natives could be believed on a question of this sort, Te Iti might ; yet he is found by the Commissioner bearing false testimony in the witness-box, and rejected by him with an observation inculpating the veracity of his race. But when the same gentleman has to examine Rauparaha and Rangihaeata, I find him placing the most implicit reliance on their bare unsupported word, though directly opposed to the evidence of deeds executed by them in the presence of many witnesses, and to the evidence of yourself and all the other Europeans concerned in the purchases ; yet these chiefs, jt is notorious, are of the worst strain of the oIJ New Zealand blood, unreclaimed from the naive vices of their race, and deeply imbued with the acquired vices of the low European population which resorted to these islands be'ore the commencement of colonization. Of this very Rauparaha Mr. Spain himself, in his report on the Manawatu chvm, informs us that he could every where trace his " insidious counsels and underhand machinations," by which Watanui was induced to deny sales which he afterwards admitted, and of the truth of which admission the Commissioner entertain* no doabt. On what principle can the ready admission of the evidence of Rauparaha and Rangihaeata be reconciled with the character given of native veracity in general by the Commissioner himself, and with his particular experience in the case of the semi-civilized and respectable Te Iti. Another singular conclusion at which the Commissioner arrives is this ; He justifies himself for giving credence to Rauparaha's and Rangihaeata's denial of the sale of the Wairau, on the ground of the consistency of their assertions that no other places but Taitap and Wakatu had been sold, with the admission of the resident natives (inferred from their non-opposiiion), that those chiefs had sold those places. But the alleged consistency of this evidence will not bear dissecting. Rauparaha denied the sale of any place but Taitap, of course excluding "Wakatu. Rangihaeata denisd the sale of any place but Wakatu, of course excluding Taitap. It is true that between them they admit the sale of both Taitap and Wakatu, but each negatives the assertion of the other. Then the resident natives, by their acts, admit the sale of both places, at once confirming and contradicting both witnesses. The assertion of the Commissioner, that this is consistent evidence, is a poor proof of his possessing those powers of disci imination which might have been looked for in an officer to whom so important an inquiry had been committed, or rather (to take Lord John Russell's view of the subject) who had assumed the supererogatory office of making such inquiry. There is another remarkable inconsistency in a very material part of this report. Mr. Spain states in the most explicit manner that the only natives in whom he recognizes any title to the land are the resident natives. This principle he says has guided his decision in every instance, and is confirmed by all the evidence he ever took on the subject. "In all cases " he repeats " the residents and they alone have the power of alienating any land." Now after this decided avowal, which is repeated with particular stiess in three places in the report, why did Mr. Spain take any trouble at all to decide whether Rauparaha and Rangihaeata had or had not conveyed the Wairau to the Company ? From the very first he must have known that those chiefs resided on the other side of Cook's Strait, that they could on hs own principle have no sort of claim, " no shadow of a right either in equity or by native custom " to any part of the Wairau. Their residence, their permanent and only residence, tUeir pas, cultivations, and all their possessions, were on the north side of Cook's Strait, the Wairau on the south. And yet Mr. Spain has con-

suraed much time in investigating, and a large part of his report in deciding on the validity of a deed by which those nonresident chiefs proposed to convey the Wakau. But further, it must have been known to Mr. Spain long before the unhappy event at the Wairau, that neither Rauparaba nor Rangihaeata, were residents there. With the broad principle alluded to x * guiding him in all his decisions," why did he direct them to meet him at the Wairau that they might be parties to the investigation of the Company's claim ? Ought he not rather to have told them that with the Wairau claim, they, 'being non-resident, could have nothing to do ; and had he told them this, may it not be believed that the comse they subsequently pursued would have been abstained from? While however I think the -course followed by Mr. Spain so inconsistent with his own principle, I can find no fault with that principle itself, if carried out to its legitimate and inevitable consequences. If none but resident natives have any title to land, what business had Rauparaha or Ran.gihaeata in the Wairau when they opposed the p regress of the surveyors and resisted the authorities there \ It was not the resident natives who committed the atrocious acts alluded to, but Rauparaha and Rangihaeata, strangers, from the other side of the Strait, whom Mr. Spain now decides in the most positive and explicit manner had no claim whatever " equitable or by native custom" to one acre of land on the southern side of Cook's Strait. If the authority of this report be maintained, the principle here enunciated affords the most complete and unanswerable vindication of the acts of the Europeans concerned in that -unhappy affair. Nor is the principle I hope less unfavorable to the Company's prospect of yet obtaining the Wairau. Mr. Spain expressly decides that Rauparaha and Rangihaeata have no title to that district, that none but resident natives -can have any. Now resident natives there are strictly none. The inhabitants of one or two small pas on the shore of Cloudy Bay, at the very extreme northern limit of a district of upwards of 200,000 acres, not ten of which they have ever cultivated, can never be consid ered as " resident" in that extensive district, in any sense of the word which should give them a property in it. If any portion of the world can be justly considered as the waste lands of the Crown the Wairau may, all nonresident titles being set aside-; and as such, why may not the Company claim it under their agreement with the Colonial Office? If this view of the subject appear to you to -have foundation, I beg to suggest the propriety of your applying to Government for the Wairau on that ground ; the title of Rauparaha being negatived by the Commissioner and there being no resident natives, we are entitled to claim it under the agreements with «Lord John Russellin 1840. If the -only obstacle to our immediate occupation of the district be the few resident natives in its extreme northern boundary, I make no doubt but that with the permission and assistance of Government we can soon come to terms with them, and I should be glad at any time to receive your instructions, to meet on the spot any officer of Government whom his Excellency the Lieutenant Governor might appoint to treat wilh those few residents. If however this cannot be done, there seems to be no hope but in an appeal to the expected new Commissioner " properly qualified," whom Lord Stanley has promised to send out if desired by the Company. From the use of those remarkable words (which 1 believe originated with the Colonial Office), I conceive -it must be intended that such new Commissioner should have power to entertain appeals from the decisions of his predecessor, and probably the acknowledgement of Mr. Spain •in his report that his decision is an exparte one, made in the absence of evidence, which was withheld in consequence of a misunderstanding of his intentions, would induce the new Commissioner to consider this a proper case for the excercise of such powers of revision as he may be intrusted with. I have had some difficulty in following the ■Commissioner through his report, and I am notsare that I correctly apprehend the signification -of some portions of it. The same fact is alluded to in different places in words which admit of very different interpretations ; while the frequency of repetitious, the want of any logical sequence among the different paragraphs, and a certain rhetorical inflation under which the whole document labours, make it a matter of some uncertainty whether its meaning is ascertained. I have the honor to be, Sir, Your most obedient servant, (Signed) William Fox, Resident Agent. Col. William Wakefield, Principal Agent of the New Zealand Company, Wellington.