I.—B

76

General himself is, in the habit of accepting the assurance of counsel without requiring an affidavit of any kind to satisfy either opposing counsel or the Court, and Mr. Fenton explained that he was always ready to accept the assurance of counsel upon these matters, and he says he was neves deceived. And certainly in this matter he was not deceived, because Dr. Buller's statement war correct, and that to which he gave credence turned out to be true. The Court was held before two Judges, one of them, Mr. O'Brien, a gentleman of experience, not only in law, but in practice—a gentleman who had been Begistrar of the Supreme Court in Auckland, and who had therefore considerable experience in matters of detail. He sat with Mr. Fenton in this Court. Both of them, upon the withdrawal being presented to them, said that that put an end to the matter. They seem to have treated it as not being before them at all. Now, they may have been wrong in so thinking— they may have been wrong in thinking that that was the true construction of the section which has been before the Committee ; and I am not here, as I have said, to contend that their decision upon this point was right. That is not the matter to which I have at all to address myself. But there is this matter of fact: that the Court had, according to the evidence of Mr. Fenton, put that construction upon the section from the very beginning of the existence of the Court. It had always concluded that an Order in Council allowing a rehearing upon the application of certain individuals iet in the claim of those individuals alone, and did not let in the whole of the tribe. As I have said, I do not contend that that decision was correct, but I do contend that it would have been open to very grave comment had they in this case departed from a practice which had been followed from the very commencement of the Native Land Court. The point is not whether the Native Land Court was wrong, but whether they did anything exceptional. Hon. Sir R. Stout: I may mention, as you were not here, that Judge Bogan stated in his evidence that he takes an opposite view entirely. Mr. Bell: I did not know that. Mr. Stewart: But he was not in the habit of conducting rehearings. Hon. Sir R. Stout: But he speaks of the practice of the Court. Mr. Bell: A rehearing must be held before two Judges, and in most cases, for that reason, the Chief Judge was one of the Judges who sat upon the rehearings; and the Chief Judge is still one of the Judges who sits. Hon. Sir R. Stout: I think, under the new Act he must be one of the Judges if he has not heard the case before. Mr. Ball: I think so, too. At all events, this is the fact : A single Judge used to sit in a district to hear cases ; and, if a rehearing was ordered of some case, the Chief Judge came down and assisted another Judge in the rehearing. Therefore the Chief Judge is more likely to know the practice in regard to rehearings than any other Judge. There is no doubt that the clause as to rehearings is very wide ; and it is provided that, upon an order being made, all proceedings theretofore taken, in the matter should be void, and the proceedings be taken dc novo. That is section 58 ; and, oddly enough, section 50, which everybody seems to have overlooked, says that the original owners shall be deemed to be owners unless the decision of the Court is reversed or amended on a rehearing. The omission to notice the effect of that section really caused a good deal of the difficulty and argument. The practice of the Court, according to the evidence of the Chief Judge, who held most of the rehearings, was that when an application for rehearing was withdrawn that put an end to the proceedings. Here comes in a peculiar matter. I have already pointed out to the Committee that what Judge Fenton had in his mind, so far as this rehearing was concerned, was the Taupo claim, and not the Patea claim at all. At that Court two gentlemen appeared—Mr. Cornford and Mr. Lascelles —and the writer of the memorandum comments upon the fact that there was objection made to Mr. Cornford addressing the Court. No counsel could at that time address the Court without the Judge's sanction; for Parliament, in its wisdom, has taken upon itself to clear the Court of gentlemen such as the Attorney-General and myself. Hon. Sir B. Stout: It was time, perhaps. Mr. Bell: It may have been time to exclude the Attorney-General, sir. However, Mr. Lascelles and Mr. Cornford appeared. Wo know now that Heperi was Mr. Donnelly in disguise ; and, for this reason, I am quite sure that the writer of the memorandum will admit that he made a mistake in saying that Mr. Cornford was acting for Dr. Buller's clients. I asked for the telegrams referred to in the memorandum as showing that he so acted; but none such has been produced. There is a telegram from Mr. Cornford to Mr. Eolleston, of the 3rd November, 1880, asking who signed tho application; and that information Mr. Bolleston declined to give. There was a previous telegram, of the 12th October, from Mr. Donnelly to the Native Land Court, asking for the same information. So far, therefore, as the telegrams go, they would seem to indicate that Mr. Cornford was acting for Mr. Donnelly ; and we know now that Mr. Donnelly was really paying his costs, and that in the lion's skin of Heperi was concealed the person of Mr. Donnelly. The Chairman : 1 do not think that Mr. Cornford ever got paid at all. Mr. Bell: That adds some instructive information as to the gentleman who was in the lion's skin. Mr. Fenton has told us of the fear of this gentleman which the Court had in their minds at the time of the sitting of this Court, and he has given a full explanation of what the Court did in reference to the Pukehamoamoa Block, where they made special orders in order to prevent the upsetting of Eenata's title by the gentleman who had married Eenata's niece. Therefore the idea in the minds of the Judges probably was that the object of Messrs. Lascelles and Cornford was to upset the title at the instance of Mr. Donnelly. The Taupo Natives had withdrawn, and, so far as the Court knew at that time, there was nothing whatever to cast any doubt upon the bona fides of their withdrawal. Thus there was a withdrawal of the Taupo grievance, and the Patea grievance appeared to them to be represented by the two counsel whom they knew, or had good reason to suppose, were acting in the interests of, or supported by, the gentleman who had married Airini Kawepo. Now, I submit it would have been a strange thing if the Court had departed from the practice which had been laid down from the beginning, and had in this particular instance, of all instances, allowed the