THE LUNDON AND WHITAKER CASE.

Thames Guardian and Mining Record, Volume I, Issue 20, 30 October 1871, Page 3

THE LUNDON AND WHITAKER CASE.

The Wellington Evening Post , of a late date, contains the following article, which we give without comment : “ The Select Committee have brought up their report on the Lundon and Whitaker claim ; consequently, we need no longer defer going into its merits. The committee recotninond it to favourable consideration. We expected as much, for reasons that it is unnecessary to give. Having full knowledge of the circumstances, we are unable to agree with the committee in opinion ; and, as public money is at stake, feel it a duty to say why. “ The main facts, stripped of the enormous mass of rubbish with which it has been sought to overlay them, may be stated in few words. The title to certain lands at the Thames was settled in the Native Lanas Court, and an order made. Judge Munro stated that the certificate of title must issue as from the date of the order. This was supposed by all, the Judge included, to validate dealings with the natives ; and it would have done so, but for an imparfection in the Crown Grants Act, subsequently discovered. Graham and others obtained a lease from the native owners. But when the certificate of title was issued, it appeared that, for a technical cause, the expected antedating had not taken place, consequently the leasehold title became bad in law. “ The technical cause was this : —The antedating was supposed by all to be authorised by the Crown Lands Act. But the Chief Judge discovered a flaw in that Act, and mentioned it. Shortly after this Lundon and Whitaker persuaded the natives to make a new lease to themselves, superseding, as they erroneously supposed, the lease to Graham, which was faulty in law. Erroneously, we are careful to say, for on this the claim to compensation turns.

“ They supposed the new lease to be good in law, having been made after the issue of the certificate. But the new lease was as bad as the old one, having been made in forgetfulness of Section 73 of the Constitution Act. To bo good, it should have been defer/ed until after the issue of the Crown grant. All parties, Whitaker as well as Graham, were out of Court in law. But the Committee on the Native Lands Bill, 1868, instead of depriving everybody, introduced two new clauses empowering a judge of the Native Lands Court, with the Chief Justice of the Supreme Oourt, if he chose to sit, to deal with the equities of the case. “The Court found that the doubledealing with the natives, the tempting them with money to lease the same land twice over, was ‘ a transaction repugnant both to public and to privato morality.’ The Court beitig satisfied of the bonafides of the original transaction, pronounced in favour of the first lessees. The Court also found that the negociations of the first lesees had not been illegal; only void.

“ Upon this case—and this is the whole of it—Lundon and Whitaker claim compensation from the Assembly. “We are in possession of a pamphlet entitled ‘The Case of Lundon and Whitaker.’ This was put in evidence before the Select Committee. It is replete with misstatement from beginning to end.. The main point of the commissioners is that they had an unassailable case at law, but that it was destroyed by the new clauses of the Bill. This is absolutely and possitively untrue. Had the new clauses not been passed, petitioners were still out of Court. The Supreme Court could not haye decided in their favour, in the teeth of the Constitution Act. Before they can prefer a claim, they must upset Judge Fenton’s law. Now this law has been approved by an obiter dictum of the Chief Judge of the Supreme Court; we are told that the Attorney-General coincides in opinion. Petitioners never had the law of the case ; they do not pretend to have the equities ; the two new clauses never banned them, for the Court gave it against them, independently of those clauses. Upon what, then, docs their claim to public money rest ?

“A laboured attempt is made, in the pamphlet, to raise a false issue, viz., the alleged unprofessional conduct of Mr. A. F. Whitaker, said to be based on misstatement, in affidavit, Mr. De Hirsch. This is throwing a led herring acioss the scent, and nothing more. The endeavour (a complete failure) is to show that the new clauses in the Act were framed by the Committe on the bill, because of their indignation at the conduct alleged. Now, the fact is that the Committee knew nothing whatever about the matter. It is not true that, as alleged in the pamphlet, Mr. De Hirsch was examined before the Committee ; and it was proved before the Compensation Committee, by comparison of dates, that his evidence before the Petitions Committee was not given until after the clauses had been reported to the House. More than this: the Chairman of the Committee, after the report had been brought up said in the House that he had heard something of unprofessional conduct, he did not know by whom, and had taken care not to enquire. Be it also remembered, though it has nothing to do with the clauses that although Mr. A. Whitaker is cleared, professionally, concerning the deed of 30th June, 18v.J, ho is not cleared concerning the deed produced before the Committee on evidence—namely, that of the 11th Feb., 1869. “ Tho whole thing lies in a nutshell. Petitioners, discovering a flaw in the original lease, “jump ” another man’s claim. They obtain a second lease for themselves but mistake the law, and leave a flaw in the second lease as well. For everybody had forgotten clause 73 of the Constitution Act. They took their stand in an act of spoliation upon the letter of their law ; and, to their dismay, found that they had no law. They were not injured, as they allege, by retrospective legislation—i.e., by the two new clauses; for they were out of Court whether the clauses were passed or not. They could not have won in the Supreme Court, or in any Court. Yet, upon the pretext of these clauseshaving been passed, they now seek a grant of public money. “ We regret having to differ from the Committee on compensation, which must have been misled. When we see the evidence taken by the Committee, we shall be in a position to show where they were misled. For the present it suffices to say that out of the many jobs we have known attempted, this, if our statement of the case be true, is the rankest.

Since writing the above, we have been able to glance at the report and evidence. We confess that our surprise is great. The report seems to us in direct contradiction to the evidence. The Committee think otherwise ; so doctors must differ. Since the report of the too-celebrated Privilege Committee of 1869, we have entertained small respect for Select Committees ; but on this occasion we intend no disrespect. This much, however, we are entitled to say, that the evidence is incomplete. Mr. De Hirsch’s exculpation of himself, formally put in evidence, is not there. We do not say that it is entirely satisfactory to ourselves, though it puts a very different complexion on the matter ; but it ought not to have been kept back. Mr. Whitaker’s pamphlet, also formally put in evidence, is also kept back. We merely state, as a matter of fact, that it contained many statements most damaging to his case. But what strikes us as being most remarkable is this. It was argued before the Committee unanswerably, that petitioners had no case until the judgment of the Court was upset. This, it appears, was clearly perceived by the Committee on compensation ; and, consequently, they take upon themselves to upset that judgment by declaring that the petitioners had a legal title to the land when the “ Native Lands Act, 1869,” was passed. The Court declared that the petitioners had none.