Mr. Wharton to Mr. Lincoln.

No. 350.]

Sir: With his dispatch No. 638, of December 10, 1887, Mr. Phelps inclosed to the Department triplicate printed copies of a memorandum of Sir Robert Stout, governor of New Zealand, on the subject of the [Page 345] claims of Mr. William Webster, a citizen of the United States, to lands in that colony. In that memorandum Sir Robert Stout reviews the history of the claims and makes an extended reply to a report of the Committee on Foreign Relations of the Senate of the United States, who have for some time had the subject under consideration. The committee were furnished with a copy of that reply and gave it careful consideration. The result of that consideration is that on the 11th of June last the chairman of the committee, by their direction, advised the President of the adoption by the committee of the following resolution:

Resolved, That the papers in the case of William Webster be transmitted to the President, with the statement that the committee respectfully recommend this matter to his attention, with the accompanying papers, as a claim that is worthy of consideration, and with the request that it be made the subject of further negotiation with the Government of Great Britain.

The Department has made the matter the subject of careful examination, with a desire to arrive at a just determination, and finds itself unable to accept the conclusions stated in Sir Robert Stout’s memorandum. The reasons why it is unable to accept those conclusions are set forth in a memorandum which accompanies this instruction and of which you are directed to furnish copies for the consideration of Her Britannic Majesty’s Government.

It is believed that Her Majesty’s Government, upon a perusal of this document, will find that the conclusions stated in the memorandum of the governor of New Zealand and the arguments and allegations, some of them injurious to the claimant, by which those conclusions are reached, are not justified by the facts as disclosed in the documents furnished by the governor.

It is hoped that a way may be found, by friendly consultation between the two Governments, to afford Mr. Webster the fair and impartial disposition of his claims to which it is thought that he is entitled.

I am, etc.,

William F. Wharton,
Acting Secretary.
[Inclosure in No. 350.]

claim of william webster against great britain.

Origin of Mr. Webster’s claims.

William Webster, when quite a young man, went to New Zealand with a capital of $6,000 invested in general merchandise suited to trade with the native population. Being of an enterprising disposition, he rapidly extended the scope of his business. He learned the language of the people, cultivated friendly relations, and traded with them. He purchased lands and established trading stations, not only for the sale of merchandise, but also for the sale of timber and other products of the lands which he had purchased. He was one of the pioneers of civilization in that country. He had no connection with the Government of the United States other than that of citizenship, and nothing to rely upon but his own energy and resources and such assistance as he could privately obtain. From 1835 to 1840 Mr. Webster had, as he states, invested in lands in New Zealand, in the form of cash and of merchandise, about $78,000, and had acquired by deed from the native chiefs in all about 500,000 acres of land.

Annexation of New Zealand by Great Britain.

On January 30, 1840, William Hobson, a captain in the British Navy, issued a proclamation as lieutenant-governor of the British settlement in progress in New Zealand, declaring the extension of the former boundaries of New South Wales so as to comprehend any part of New Zealand that had been or might be acquired in sovereignty by [Page 346] Her Britannic Majesty. On the same day he issued another proclamation, by which it was declared that Her Majesty did not deem it expedient to recognize as valid any titles to land in New Zealand which were not derived from or confirmed by Her Majesty. But, said the proclamation, in order to dispel any apprehension that it was intended to dispossess the owners of land “acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community,” Her Majesty had directed that a commission should be appointed, before which all claims to land would have to be proved.

On the 6th of February, 1840, a week after the issuance of these proclamations, Governor Hobson, on the part of her Britannic Majesty, concluded with the native chiefs the treaty of Waitangi, by which, for the sole consideration of being made subject to the British Grown, they ceded their sovereignty and powers. Nevertheless, the treaty confirmed and guarantied to the “chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.” The only qualification of this confirmation and guaranty of title is the cession to Her Majesty of a right of preëmption of such lands as the native proprietors might, at any time, be disposed to alieniate. This was only a further recognition of the title of the native chiefs, from whom Mr. Webster’s titles were also derived prior to the date of the treaty. It is therefore unnecessary to argue that the title of Mr. Webster was equal in origin with that of the British Crown, and, being prior in time, was superior in right and could not be affected either by the proclamations of Governor Hobson or by the treaty of Waitangi.

Position of Mr. Webster after annexation.

The position in which Mr. Webster found himself after the proclamations of Governor Hobson is very simply, but not the less forcibly, stated in a letter to J. H. Williams, esq., United States consul at Sydney, New South Wales, dated November 4, 1840. In this letter Mr. Webster said:

“No doubt you are aware that the British Government have taken possession of some parts of these islands and have issued proclamations and other notifications that all titles to land acquired from the native chiefs are to be sent to the colonial secretary’s office at Sydney to be examined. I suppose they intend to allow whatever portion of land they may think proper. I beg to call your attention to know what all Americans in this island are to do with the large quantity of land they have purchased.

“No doubt you are aware that a great part of the oil taken by American ships is caught on this coast, and I can safely say that there are ten American ships come into these ports to recruit to one ship of any other nation. I beg to acquaint you of the valuable lands I have purchased from independent chiefs of this place, and beg you will make it known to the American Government as early as possible. The land purchased by me and the amount paid for it is as follows:

Paid for Barrier Island, in March, 1837, and the title deeds, signed by thirty-six independent chiefs, giving up all right and title to the same, cash and merchandise £1,200
Paid for part of the island of Waiheke, in 1836 558
Paid for land at Coromandel Harbor, in 1836 1,000
Paid for Mercury Island, in 1838 944
Paid for land at Point Rodney, in 1838 490
Paid for land on banks of River Thames, 1836 250
Paid for land on banks of River Watermata, 1837 280
Paid for Bay of Plenty, 1839 450
Paid for River Piako, 1839 1,375
Amount expended in building and other improvements from 1885 to 1840 9,060
Total 15,607

Equal to about $78,145.

* * * * * * *

“You will see by the copy of the title deeds that I have expended equal to $78,145, for which I have bought about 500,000 acres of land, and, to the best of my knowledge, there has been about 1,000,000 acres purchased in these islands by citizens of the United States, and for which they have expended about £50,000 sterling, besides several years’ labor and running great risks where the natives were not civilized. They (the British Government) have already put me to a loss of £6,000 sterling by their acts. They have not taken any of my land as yet, but I expect they will take all from me and every other American, unless our Government will take it in hand to stop it. I trust you will make this known to the United states Government as early as possible, so that all Americans may know how to act in this case.”

[Page 347]

British ordinances.

Prior to the date of this letter an act was passed in New South Wales for the purpose of creating a commission “to examine and report on claims to grants of land in New Zealand,” audit was doubtless the passage of this act that gave rise to the reports to which Mr. Webster adverted in his letter. Subsequently this act became inoperative by reason of the severance of New Zealand from New South Wales, and on June 9, 1841, an ordinance, which was virtually a transcript of the New South Wales act, was passed in New Zealand by the governor and his council. This ordinance and the prior act, both of which were drawn in conformity with instructions of the Home Government, declared:

“All titles to land in the said colony of New Zealand which are held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases or pretended leases, agreements, or other titles, either mediately or immediately, from the chiefs or other individuals or individual of the aboriginal tribes inhabiting the said colony, and which are not or may not be hereafter allowed by Her Majesty, her heirs, and successors, are, and the same shall be absolutely null and void.”

It was further provided that no grant of land should be recommended by the commissioners under the ordinance which should exceed in extent 2,560 acres, unless they were specially authorized thereto by the governor, with the advice of the executive council, or which should comprehend any headland, promontory, bay, or island that might be required for the purpose of defense, or for the site of any town or village, reserve, or for any other purpose of public utility, nor of any land situate on the seashore within 100 feet of high-water mark. And it was further provided that nothing in the ordinance should oblige the governor to make and deliver any grant unless His Excellency should deem it proper to do so. There was also a provision that the commissioners should not recommend any grant whatever of any land which, in the opinion of a majority of them, might be required for the site of any town or village, etc.

Orders respecting foreigners.

By an order of the lieutenant-governor of New Zealand, dated February 9, 1841, it was directed that all persons not the subjects of Her Majesty who had purchased land from the aborigines previous to January 30, 1840, should forward a copy of their claims to the colonial secretary’s office at Auckland on or before June 1, 1841.

In the New Zealand Gazette of October 20, 1841, there was published another order of the governor, in which it was stated “for the information of foreigners claiming land in New Zealand by purchase from the natives prior to the proclamation issued by His Excellency Sir George Gipps bearing date the 14th day of January, 1840, that by a dispatch from the right honorable Her Majesty’s principal secretary of state for the colonies, it is ordered that all claims, whether British or foreign, be investigated and disposed of by the commissioners appointed for that purpose.”

The order continued as follows:

“Such foreigners, therefore, as have not already forwarded the particulars of their claims to this Government are required to send them to this office without delay. These particulars should set forth the precise situation of the land claimed, its extent and boundaries, the, names of the native sellers, and the consideration paid to them, and, in case of the claims being derivative, the name of the intermediate possessors of the land and of the original purchaser and the consideration given by him to the natives.”

Submission of Mr. Webster’s claims.

On the 20th of July, 1841, being thus expressly required to do so, Mr. Webster sent seven copies of titles to land and seven statements of purchases to the colonial secretary of New Zealand, with a request that they be laid before the commissioners for examination only. At the same time he said:

“I have sent all my claims to land in this country before the United States Government, by the advice of the American consul of Sydney, and I trust His Excellency Governor Hobson will not suffer any of my lands to be interfered with until the question is settled. I have been a resident of New Zealand for 7 years, and have expended a large sum of money and undergone a great deal of trouble and hardships.

“I am willing to come forward and prove all my purchases, but I trust that I shall be allowed time to do it, for I am very busy now with ships, and am under heavy penalties for the fulfillment of my agreements, and I find it will take a long time to get all the natives and witnesses to my purchases of lands together, and the expense will be very great. I find myself already at a great loss, and it appears to me that [Page 348] I am to be put to much more, and I do not know who to look to for it. I trust when my claims for purchases to land (in this country) are examined that they will prove to be all well understood by them that hear them; and it was all bought before that any government was formed here; and I further consider that all I have has been dearly earned, and I trust that, before I am dispossessed of any of it, it will be proved who has the best right to it.

“Hoping that I have not made any unjust remarks, I have, etc.,

Wm. Webster.

In reply to this letter, Mr. Webster received a communication from the colonial secretary dated August 7, 1841, which is as follows:

Colonial Secretary’s Office,
Auckland, August 7, 1841.

Sir: I have had the honor to receive and lay before His Excellency the governor your letter of the 20th ultimo, transmiting copies of titles of claims to land in New Zealand, and am instructed to acquaint you that you must distinctly state whether you claim the land as a British or American subject. If the former, your case will take the course the law prescribes; if the latter, your claims must depend upon the decision which may be arrived at by the joint consent of both governments. The governor further directs me to inform you that in seeking assistance from a foreign government you must relinquish all the rights of a British subject, such as the ownership of a British vessel, which you are now understood to possess; but, if the claims be lodged as a British subject, His Excellency will consent to their being laid before the commissioners in the usual way.

“I have, etc.,

Willougrhby Shortland.

“Mr. William Webster,
Coromandel Harbor.”

On the 3d of October, 1841, Mr. Webster sent the following answer:

Coromandel Harbor, October 3, 1841.

Sir: In reply to yours concerning my claims to land, I wish my claims to be laid before the commissioners, and am willing to take my chance with all others. But I trust that they may be left until the last, for it will put me to a serious inconvenience to attend to them now.

“I have, etc.,

Wm. Webster.

It is stated in the memorandum of Sir Rober Stout that upon the cases submitted by Mr. Webster there were made the following entries:

memorandum for the governor.

“The information furnished regarding these claims is sufficiently full to enable them to be referred for investigation. It appears from Mr. Webster’s letter of July that these are only a part of his claims—he mentions twenty-seven as the total number—but states that the documents referring to the other claims are mislaid.

Willoughby Shortland.

October 30.

minute by governor.

“Let Mr. Webster’s claims be submitted in the usual way.

W. Hobson.

November, 2, 1841.”

On the strength of these communications the memorandum of Sir Robert Stout contains the following assertions:

“From the foregoing correspondence no other inference can be drawn but that Mr. Webster intended to have his claims heard as those of a British subject; and,

  • “Firstly. That the governor so interpreted his intention is apparent from the minute of the 2d of November, 1841, where, in directing Mr. Webster’s claims to be submitted in the usual way, he adopts the course and uses the identical language which the colonial secretary, in his letter of the 7th of August, informs Mr. Webster would be adopted if he advanced his claims as a British subject.
  • “Secondly. Mr. Webster, in his reply of the 3d of October, where he expresses his wish that his claims should be laid before the commissioners, requests that very course to be adopted which the colonial secretary informed him would be adopted if he advanced his claims as a British subject.
  • “Thirdly. Mr. Webster appeared before the commissioner’s court and gave his evidence on oath in respect of each claim, without protest, after his claims had been notified in the usual way, and never asserted any exceptional claim as an American [Page 349] citizen; and, also, he accepted the awards in each claim and the Crown grants issued in virtue of the said awards.
  • “Fourthly. Mr. Webster did not relinquish the rights of a British subject, such as the ownership of a British vessel which he possessed, and which, in the aforesaid letter of the colonial secretary, he was informed he would be required to do if he advanced his claims as a foreigner.

“It is to be especially noted here that, although Mr. Webster’s letter of the 20th of July, 1841, to the colonial secretary, wherein he advances his claims as an American citizen, has been submitted to the Senate of the United States and is referred to in the report of the committee of the Senate (post page 41), yet no evidence appears of Mr. Webster having submitted to the Senate either the colonial secretary’s letter of the 7th of August or his own reply thereto of the 3d of October, 1841. From this surprising omission I can not but conclude that it was an act of willful disingenuousness on Mr. Webster’s part, done for the purpose of suppressing all evidence which might be adduced to prove that he advanced his claims before the land claims commissioners as a British subject and not as an American citizen.”

It is not thought to be necessary now to consider so much of the above-quoted passage as makes against Mr. Webster a charge of “willful disingenuousness” and suppression of evidence. On his part, Mr. Webster vehemently denies that some of the documents which accompany Sir Robert Stout’s memorandum, apparently as contemporaneous records of the investigation of the land claims, possess that character. Mr. Webster asserts that he left Coromandel Harbor on June 23, 1843, when the examination of his cases was concluded, and never afterwards saw any commission then or afterwards appointed, and that all proceedings subsequent to that date in respect to his titles were ex parte and without notice to him and without his knowledge. In respect to some of the proceedings that appear to have taken place in and after June, 1843, before Commissioner Godfrey, Mr. Webster points, in confirmation of his statement, to the following passage in Sir Robert Stout’s memorandum:

“The first commission concluded its labors by reporting on all the claims referred to it. Major Richmond, on the 8th of March, 1844, was appointed superintendent of the southern division of New Zealand, and Colonel Godfrey returned to England.”

Just after this the following statement is also noted:

“In the year 1844 an ordinance in amendment of the above-recited ordinance was passed giving to a single person the powers granted to two commissioners under the ordinance of 1841. This was called ‘the land claims ordinance, 1844, session iii, No. 3;’ and Mr. Robert Appleyard Fitz Gerald being appointed, on the 25th of March, 1844, sole commissioner thereunder, he formed what is herein called the second commission.”

In the memorandum of Sir Robert Stout there are found seventeen or eighteen pieces of evidence which purport to have been “taken in court” before Commissioner Godfrey from May to August, 1844. It is found that the amended and last report of Commissioners Richmond and Godfrey bears date December 18, 1843. Their recommendations were referred to the second commission, consisting of Mr. Fitz Gerald, on April 10, 1844, and the report of Commissioner Fitz Gerald, which is said to have been adopted, bears date April 22, 1844.

The charge of suppression of evidence made against Mr. Webster in respect to the submission of his claims to the land commission adds force to the impression that the answer to his claims made in the memorandum of Sir Robert Stout is chiefly based upon the ground that Mr. Webster sought to be, and was, treated as a British subject. In the passage above quoted from the memorandum four reasons are set forth to sustain that pretension. In respect to these it is to be observed—

That the notice issued to claimants required foreigners, as well as British subjects, to present their claims to the commission.
That the commissioners did not possess power to make grants, but only to investigate claims and make reports and recommendations to the governor.
That the letter of Mr. Webster of July 20, 1841, in which he submitted seven titles for examination, clearly and unmistakably asserted his American citizenship.
That the reply of the colonial secretary of August 7, 1841, intimating that Mr. Webster’s claims would not be considered so long as he should seek the protection of his Government, was inconsistent with the notice previously issued to claimants and not warranted by the scope and functions of the commission.
That Mr. Webster’s statement in his letter of October 3, 1841, that he was “willing to take his (my) chances with all others” was not a renunciation of his American citizenship nor an assumption of a British citizenship.
That there is no evidence whatever to show that Mr. Webster was ever supposed to be a British subject, nor is it asserted that he ever performed any act by which he could be held to have assumed that character.
That the statement in the colonial secretary’s letter of the 7th of August, 1841, that Mr. Webster was “understood to possess” a British vessel is not an allegation that he did own such a vessel, and that no evidence whatever is adduced to show that the statement had any other foundation than rumor of the vaguest character. [Page 350] No authority is given for the statement; neither name nor description of the vessel is afforded. Mr. Webster denies that he owned such a vessel, and there is no apparent reason to question his denial.
That, if it had been true that Mr. Webster owned a British vessel, no law of Great Britain is known by which such ownership would have been tantamount to an act of naturalization.
That, no evidence being adduced to show that Mr. Webster owned a British vessel, the inference sought to be drawn from the assertion that he “did not relinquish the right of a British subject, such as the ownership of a British vessel which he possessed,” must be treated as wholly without justification.
That the letter of the colonial secretary of August 7, 1841, may be regarded as conclusive evidence that Mr. Webster had not been naturalized as a British subject.
That that letter was inconsistent with the instructions given to the colonial authorities, as disclosed by the note of Lord Aberdeen to Mr. Everett of February 10, 1844, which says:
“Having now received an answer from the colonial department, the undersigned has the honor to inform Mr. Everett, with reference to the first head of complaint, that, in consequence of certain questions raised by the American consul at Sydney as to the rights and obligations of aliens in New Zealand, instructions were forwarded to the governor of that island in the month of March, 1841, upon which occasion that officer was directed to bear in mind the principle that where aliens had acquired land from the chiefs prior to the proclamation of the Queen’s sovereignty there, and that fact was undisputed, the claims should be acknowledged; but that where a doubt arose whether the alien made a bona fine purchase of the land the settler should be treated as any British subject and his claim disposed of accordingly.”
That the argument that Mr. Webster elected to be a British subject and to renounce his rights as an American citizen is not sustained by the facts and is unwarranted by the law.

The anxiety exhibited on this subject and the ingenuity in argument in regard to it in the memorandum of Sir Robert Stout are amply justified by a review of the

Treatment of Mr. Webster’s claims.

Taking the proceedings of the first commission, as set forth in the memorandum, we have the following in respect to Mr. Webster’s claims:

Case No. 305.—Two hundred and fifty acres; conveyance by natives; consideration, merchandise to value of £208. Report: Bona fide; consideration (goods), £114 12s.; Sydney prices, £343 16s.

305 A.—Six hundred acres; deed; consideration (merchandise and cash), £260. Report: Bona fide; 250 acres; consideration (goods), £94 14s. 6d.; Sydney prices, £284 2s. 6d.

305 B.—Fifteen hundred acres; deed; merchandise, £90. Report: Bona fide; goods, £7118s. 6d.; Sydney prices, £215 5s. 6d.

305 C.—Twenty-five hundred acres; deed; merchandise, £203. Report: Bona fide; 800 acres; goods, £89 10s.; Sydney prices, £268 10s.

305 D, 305 E, 305 F, 305 L.—These are alleged to have been withdrawn, and no report appears on them. They comprise 4,000 acres of land and two islands whose area is not stated; and consideration, in cash and merchandise, for the whole is claimed to have been paid to the amount of £1,820.

305 G.—Boundaries stated, but not contents; deed; merchandise, £490. Report: Bona fide; 10,000 acres; goods, £140 8s.; Sydney prices, £421 4s.

305 H.— Three thousand acres; deed; merchandise, £450. Report: Not purchased from righful owners.

305 I.—Three thousand acres; deed; merchandise, £108 1s. Report: Bona fide; 3,000 acres; cash, £15; goods, £62 12s.; Sydney prices, £202 16s.

305 J.—Six thousand acres; deed; merchandise, £944. Report: Bona fide; acreage not known; cash and goods, £278; Sydney prices, £834.

305 K.—Eighty thousand acres; deed; cash and merchandise, £1,195. Report: Bona fide; 80,000 acres; cash, £35; goods, £563 16s.; Sydney prices, £1,691 1s. Total, £1,726 8s.

305 M.—Two thousand acres; deed; merchandise, £108. Report: Bona fide, 3,500 acres; cash and goods, £80.

32.—Twenty thousand acres; deed; merchandise, £1,140. Report: Bona fide; cash and goods, £580 15s.; boundaries but not contents, stated.

The report of the first commission covers fourteen claims. In respect to eight of these (305, 305 A, 305 B, 305 C, 305 G, 305 I, 305 K, 305 M ) the commission found that Mr. Webster had purchased in good faith 108,300 acres. In respect to these same tracts, his claims amounted to 119,850 acres. The commission also found that he had paid for them in cash and goods £1,167 10s. 12d., or, in Sydney prices, about £3,427 6s.

Four cases (305 D, 305 E, 305 F, and 305 L) Mr. Webster is alleged to have withdrawn, as he asserts, erroneously. These four comprise 4,000 acres and two islands [Page 351] whose area is not stated. The consideration alleged to have been paid is £1,820. In case 305 H, containing a claim for 3,000 acres (consideration £450), the commission reported that the claimant had not purchased from the rightful owners.

By their amended report of December 18, 1843, the commissioners recommended the following allowances: In case 305, 240 acres; 305 B, 550 acres; 305 C, 800 acres; 305 G, 1,944 acres; 305 I, 1, 187 acres; 305 K, 2,560 acres; total, 7,281 acres, “to be reduced in the aggregate to the maximum grant of 2,560 acres,” in accordance with the land ordinance, which forbade a grant of greater extent. But no grants were made upon these recommendations.

In 1844, as above shown, an amendatory ordinance was passed constituting a commission of one person. In April, 1844, the governor brought before the council the awards recommended by Commissioners Godfrey and Richmond in cases 305,305 A, 305 B, 305 C, 305 G, 305 I, and 305 K, amounting to 7,541 acres; and, upon the advice of the council that the commissioners should be authorized to recommend an extension of the grant, all the awards were referred to the second commission, with instructions to extend the grant.

The second commission, consisting of Mr. Fitz Gerald, reported as follows:

“I do most conscientiously recommend for His Excellency’s approval that grants be issued to the under-mentioned parties, upon a letter of authority to that effect from Mr. Webster:

Claim No. 305. William Webster 125
Claim No. 305 A, William Webster 125
Claim No. 305 C, William Webster 400
Claim No. 305 G, William Webster 1,944
Claim No. 305 I, William Webster 1,187
Claim No. 305 K, William Webster 1,219
Claim No. 305 B, David E. Munro 550
Claim No. 305, Henry Downing 125
Claim No. 305 C, Henry Downing 400
Claim No. 305 K, Henry Downing 320
Claim No. 305 A, Peter Abercrombie 125
Claim No. 305 K, Peter Abercrombie (one-eighth of his purchase from Webster) 5,000
Claim No. 305 K, Felton Mathew (one-quarter of his purchase from Webster) 2,560
Claim No. 305 K, John Johnson (one-quarter or his purchase from Webster) 1,280
Claim No. 305 K, Vincent Wanostrocht (one-quarter of his purchase from Webster) 250
Claim No. 305 K, John Wrenn and Jeremiah Nagle (one-quarter of their purchase from Webster) 150
Claim No. 305 K, Arthur Devilin (one-quarter of his purchase from Webster). 1,255
Claim No. 305 K, George Russell 640
Amounting in the aggregate to 17,655

Robt. J. Fitzgerald,

Land Office, Auckland, April 22, 1844.”

Upon this report the memorandum of Sir Robert Stout contains the following comment:

“It must ever remain a mystery how Mr. Commissioner Fitz Gerald could have made such recommendation.”

It is thought that this mystery is completely solved by the commissioner himself in the memorandum which he made of the reasons for his action, and which is found in the report of Sir Robert Stout, as follows:

memorandum by mr. commissioner fitz gerald.

“Reasons for extending a grant of land to Mr. William Webster:

  • “(1) By the accompanying synopsis of the land claims of Mr. Webster it appears that his outlay amounts to £7,787 13s., which, according to the valuation scale in the land claims ordinance, he may be considered as having paid for 50,904 acres; and, even limiting his outlay to the mere payments to the natives, he would be fairly entitled to 17,950 acres.
  • “(2) Considerable sales of land having been made by him on the faith of all his valid purchases being recognized by the Crown.
  • “(3) Should he not be enabled, by great liberality on the part of His Excellency, to meet his engagements, even partially, he is likely to be overwhelmed with lawsuits and subjected to great losses.
  • “(4) Mr. Webster is one of the most enterprising settlers in this colony, having established a shipbuilding yard, several whaling stations, water mill, and other improvements.

[Page 352]

“For these reasons I do most conscientiously recommend for His Excellency’s approval that grants he issued to the under-mentioned parties, upon a letter of authority to that effect from Mr. Webster.”

In view of these reasons, which the memorandum of Sir Robert Stout criticises, but does not in any respect invalidate, it is not perceived why “mystery” should have been attributed to the recommendation of Mr. Commissioner Fitz Gerald. If the reasons stated by that official for his recommendation were not so obviously just and true, it is thought that the adoption, as stated in Sir Robert Stout’s memorandum, of that recommendation by the authorities at that time would sufficiently divest it of mystery and demonstrate its propriety. Still more completely does the “mystery” vanish when it is recollected, as hereinbefore pointed out, that it appears by the documents contained in Sir Robert Stout’s memorandum that the reference of the awards of the first commission in the cases of Mr. Webster to the second commission, consisting of Mr. Commissioner Fitz Gerald was “with an instruction to recommend an extension of the grants.”

In the memorandum of Sir Robert Stout it is stated that Governor Fitzroy adopted the recommendations of Commissioner Fitz Gerald and on May 1, 1844, issued grants in accordance with them. It is not asserted that Mr. Webster ever gave the “letter of authority” which the recommendation of Commissioner Fitz Gerald assumed to be necessary. But the memorandum of Sir Robert Stout contains the following statement:

“Webster received his grants for 5,000 acres, and within less than 4 months had transferred the whole of these lands to his creditors, besides the 12,655 acres granted directly to them, leaving himself without an acre of all his purchase and still a debtor to the Sydney merchants.”

And this statement is made the text of animadversions upon the speculative character of Mr. Webster’s dealings.

This may be regarded as somewhat remarkable, when both the first and the second commission found that Mr. Webster had made bona fide purchases for value before the annexation of the island by Great Britain of more than 105,000 acres of land, exclusive of various large tracts upon which they did not report; when it is also considered that Mr. Webster was, by universal testimony, an industrious and meritorious settler, and when it is further observed that his conduct through out shows that he was making every effort to deal honorably with his creditors at a time when the annexation of the islands and the ensuing land ordinances were threatening him with the commercial disaster in which they had then partially, as they afterwards completely, involved him.

In 1845, the year after the grants above alleged, it is asserted that certain correspondence took place between Mr. Webster and the New Zealand authorities, which was as follows:

Mr. Webster to Mr. Commissioner Fitz Gerald.

Auckland, March 8, 1845.

Sir: I fake the liberty of writing to you to know what has been the decision on my two land claims. I believe they are number 305 H. One is the Big Mercury Island and the other is a piece of land near the River Tairua, in the Bay of Plenty. Both of these claims were examined before Commissioner Godfrey at Coromandel Harbor, and I have not yet heard any more of them. The Mercury Island was purchased in 1838. I paid upwards of £300 for it, and have had possession of it ever since, and have expended a great deal of money on it, but the whole of the payment agreed on was not given to the natives, and when the claims were examined they agreed to give me a part of it for what they had received. The piece of land near Tairua was also purchased in 1838, and I paid about £400 for it, and since that I have expended about £400, for which I have never received any return whatever. I have never heard of any dispute of the title, which, I suppose, the evidence taken by the commissioner will prove.

“Your answer to this will oblige, your most obedient servant,

Wm. Webster.

Commissioner Fitz Gerald, etc.”

minute thereon by the governor.

“Very large grants having been made to Mr. Webster, no further grant can be made until the opinion of the secretary of state as to the former grants is made known.

“R. F., March 10, 1845.

“Mr. Fitz Gerald: Direct Mr. Chipchase to communicate this reply to Mr. Webster, who is now in Auckland, but about to leave immediately.

“R. F., March 10, 1845”

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The private secretary to Mr. Webster.

Government House, March 10, 1845.

Sir: I am desired by the governor to acquaint you that His Excellency has examined and taken advice respecting your land claims, marked 305 H, and 305 J, and is sorry to find himself precluded from authorizing any further grant to be made to you at present, on account of the largeness of those grants already made in your name.

J. W. Hamilton,
Private Secretary.

P. S.—The governor directs me to say that the land which you now hold in undisputed possession will probably be granted to you eventually.”

As the recommendation of Commissioner Fitz Gerald is, in the memorandum of Sir Robert Stout, declared to be a “mystery,” the reply of the governor, made through his private secretary, is pronounced in the same memorandum to be “unfortunate in its expression.” As the reply only evinces an intention to treat the acquisitions of Mr. Webster in a spirit of justice, on the clear principle of allowing him what he held “in undisputed possession,” the unfortunateness of its expression is not perceived. In the memorandum of Sir Robert Stout the fact appears to have been wholly neglected that the reports of the commissioners, so far as they recommended grants, were only advisory. This fallacy is disclosed in the argument that because the commissioners reported that no grants could be made in certain cases, on account of the largeness of the grants made in other cases, the governor could not have referred to the claims mentioned by Mr. Webster in which no grants were recommended. It is to be remembered that in those very cases, or at least in some of them, the commissioners had reported valid titles, and in no instance discovered any evidence of bad faith. Nothing unfortunate is perceived in the language of the governor, nor is there any reason to suppose that it was intended to have any other effect than to declare the principle that the undisputed possession of land was to be treated as constituting a valid basis for a grant. It is not denied that Mr. Webster had made use of a portion of his lands; nor, notwithstanding the effort to throw discredit on Commissioner Fitz Gerald’s recommendation, is any attempt made to impugn his statements that Mr. Webster had made large outlays on his land in addition to the purchase money, and that he was “one of the most enterprising settlers” in the colony, “having established a shipbuilding yard, several whaling stations, water mills, and other improvements.” It is not strange, therefore, that the governor should have expressed the belief that the land which Mr. Webster held in undisputed possession would ultimately be granted to him.

Third commission.

But Mr. Webster’s claims were not, in reality, disposed of until 1862, long after he had left the country, and without notice, by a third commission, consisting of Mr. F. D. Bell. This commission was constituted under “the land claims’ settlement act, 1856,” which made provision for the setting aside of all grants made under previous ordinances. It requred all claimants to have the exterior boundaries of their claims surveyed and plans sent in to the commission, together with their grants and all documents and deeds relating to the alienation of any claims by an original claimant; but it prohibited the reconsideration of any case disallowed by any previous commission, or that had been withdrawn by the claimant.

Under this prohibition, the third commission did not examine and made no grant in cases 305 D, 305 E, 305 F, 305 L, 305 J, and 305 M, comprising claims to extensive tracts of land for which valuable consideration was given. The grants set forth in the report of Mr. Bell accompanying the memorandum of Sir Robert Stout are the only ones finally made in respect to the claims of Mr. Webster. It is stated in that memorandum “that all the grants issued under the ordinances were surrendered to him (Mr. Bell), together with all documents relating to the land described in such grants.”

Referring to the report of Mr. Bell, we find, in respect to the claims of Mr. Webster, the following result:

“In case No. 305, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 250 acres, this third commission, in 1861, granted to R. Dacre 57.5 acres and to H. Downing 57.5; in all, 115 acres.

“In case No. 305 A, in which the commissioners reported, in 1843, that Mr. Webster had purchased and paid for 250 acres, this third commission, in 1860, granted to G. Beeson 355 acres.

“In case No. 305 B, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 1,500 acres, this third commission ordered a grant to be issued to J. Solomon; but no grant was, in fact, issued.

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“In case No. 305 C, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 800 acres, this third commission, on the 20th of November, 1847, granted to R. Dacre 284 acres, and on the 3d of May, 1860, to the same person, 384 acres, and on the 25th of January, 1861, to T. Keran 59 acres; in all, 727 acres.

“In case No. 305 G, in which the commissioners reported, 1843, that Mr. Webster had purchased in good faith and paid for 10,000 acres, this third commission, at a time not known, granted to R. Dacre 1,944 acres, which is said to have been commuted for scrip.

“In case No. 305 I, in which the commissioners reported, in 1843, that Mr. Webster had purchased in good faith and paid for 3,000 acres, this third commission, on the 3d of July, 1860, granted to J. Solomon 885 acres.

“In case No. 305 J, in which the commissioners reported, in 1843, a bona fide purchase of a tract which Mr. Webster alleged to contain 6,000 acres, this third commission made no grant, and no grant was ever made.

“In case No. 305 K, in which the commissioners reported, in 1843, that Mr. Webster had purchased 80,000 acres, this third commission, on the 27th of November, 1878, granted to the heirs of Sir S. Donald 1,464 acres; to F. Whittaker, 12,855 acres and 2,141 acres, and for 294 acres September 30, 1878; total, 16,754 acres.

“In case No. 305 M, in which the commissioners, in 1843, reported that Mr. Webster had purchased in good faith, but only partly paid for 3,500 acres, no grant was ever made.”

Every one of these grants, it may be observed, was made to some person or persons alleged to be derivative owners from Mr. Webster.


From the foregoing it appears:

That the good faith of Mr. Webster in his land purchases in unquestionable.
That the validity of nearly all his important conveyances from the natives was recognized and admitted, and valuable consideration established.
That, in consequence of the annexation of New Zealand by Great Britain and of the land ordinances adopted and enforced, Mr. Webster was prohibited from selling or conveying or completing title to any of the lands which he had purchased and of which he was in quiet and undisputed possession at the time of the annexation.
That in certain of Mr. Webster’s cases (305, 305 A, 305 C, 305 G. 305 I) the land commissioners found that 94,300 acres had been purchased by Mr. Webster in good faith, but recommended grants to him and his assigns of only 17,655 acres.
That in certain other cases (305 B, 305 J, and 305 M) it was shown that 11,000 acres had been purchased by Mr. Webster in good faith, but that no grant whatever was made.
That in certain other cases (305 D, 305 F, and 305 L) no awards were made, on the ground that the claims had been withdrawn, which Mr. Webster denies. And in this relation it is to be observed that the withdrawal of these claims is alleged to have been made before Commissioner Godfrey in May and June 3, 1844, after he had ceased to be a commissioner and had returned to England, and after the second commission, consisting of Mr. Fitz Gerald, had entered upon its duties.
That these proceedings, which were consummated in 1862 under the act of 1856, were in derogation of the principle conceded by Lord Aberdeen to Mr. Everett in 1844.
That they were in derogation of the same principle as announced by the governor to Mr. Webster a year later, in 1845.

In view of the facts above set forth, it is not perceived what basis there is for the assertion in the memorandum of Sir Robert Stout that “awards were made in his (Mr. Webster’s) favor, or in favor of his acknowledged assigns, of every single acre of land which the native owners admitted he had justly bought from them.”

These words are found in the concluding paragraph of Sir Robert Stout’s memorandum. Above them, on the same page, are the following observations:

“I have to remark that in the year 1874 the secretary of state, in a dispatch to Governor Sir James Fergusson, required a report on Mr. Webster’s claims, in order to reply to a complaint made by Mr. L. C. Duncan, on behalf of Mr. Webster, that he had been treated with injustice in their adjudication.

“Mr. O’Rorke, the then commissioner, and at present Sir G. M. O’Rorke, speaker of the house of representatives, furnished to the governor for transmission to the secretary of state a full report on the claims, together with an opinion from Mr. Whitaker as to the accuracy of such report (who had been personally acquainted with all the details of Mr. Webster’s land transactions at the Piako) and a further report from Dr. Pollen, then colonial secretary, who had been personally acquainted with Mr. Webster in New Zealand.”

An examination of the report of Mr. O’Rorke does not render necessary any change or modification in the statements herein made in regard to Mr. Webster’s claims. The [Page 355] “further report,” however, of Dr. Pollen merits examination. It is expressly referred to and put forward in the memorandum of Sir Robert Stout as the statement of a contemporaneous witness and as possessing the peculiar value of a declaration made by an individual “personally acquainted with Mr. Webster in New Zealand.” The value of this piece of evidence, which was formulated on July 29, 1874, is readily tested. Dr. Pollen’s statement is as follows:

“I knew Mr. Webster during the period of his residence in New Zealand, from January, 1840. He was what was then called a ‘trader’ on the coast, and was known to represent or to be supported by Sydney merchants.

“Towards the close of the year 1839, when it became certain that the sovereignty of New Zealand was about to be acquired by Great Britain, Mr. Webster, as did many others, dealt largely with natives for land, or, rather, for land claims. There was then no way of ascertaining the right to land of the natives who took ‘trade’ for their signatures; there was no survey, and the estimate of area within the boundaries, when any boundaries were defined in the deeds of conveyance, was almost always excessive, in many cases ridiculously so. Hence the exaggerated character of some of the claims.

“The early land purchases, which were made with deliberation and care, and in accordance with native usage, were rarely questioned; but those which were made in haste immediately before January, 1840, and, as it were, more for the purpose of getting up a “claim “than of acquiring title, were commonly repudiated by the native owners of the land. Some of Mr. Webster’s claims are in this category.

“Mr. Whitaker, of Auckland, who has a derivative title through Mr. Webster to a large block of land in the Piako district, has not, to this day, been able to get possession from the natives. It will be necessary, in order to keep the faith of the Crown (as the land in question was awarded to Mr. Webster by the land claims commissioner), and to preserve the peace of the country, either to extinguish the native title to this land by purchase or to find for Mr. Whitaker an equivalent elsewhere. A proposal with a view to settlement of this claim is now before this Government.

“Mr. Webster’s failure was, as I recollect, of the usual commercial character; he was already in difficulties, as shown by his arrest in Sydney in 1840, and his insolvency was completed in the financial crisis of 1842–’43 in New South Wales, by which his principals there were affected. His misfortune was never, so far as I know, until now attributed to the action of the colonial government or of the Imperial Government. If any such complaint had been made in the early days of settlement, I think that I must have heard it. I do not think that it would have been made in the presence of any person familiar with the facts. It may at present be regarded as a lawyer’s plea, merely, on his client’s behalf.

Daniel Pollen.

July 29, 1874.”

The first observation to be made upon this statement is that Dr. Pollen does not assert acquaintance with Mr. Webster prior to January, 1840, before which time every title claimed by Mr. Webster was acquired. The next thing to be noticed is the declaration that “towards the close of the year 1839, when it became certain that the sovereignty of New Zealand was about to be acquired by Great Britain, Mr. Webster, as did many others, dealt largely with the natives for land, or rather land claims.”

In answer to this, it is to be observed, in the first place, that the commissioners found and reported good faith and valuable consideration in all Mr. Webster’s purchases which they examined. In every case but one they found that the purchases had been made from the rightful native owners, and in that case valuable consideration for the purchase was reported. But the conclusive refutation of the impugnments of Dr. Pollen is found in a review of the claims examined and reported upon by the commissioners, as follows: 305, purchased June 4, 1837; 305 A, purchased December 8, 1836; 305 B, purchased November 23, 1839; 305 C, purchased January 30, 1837; 305 D, purchased 1836; 305 E, purchased 1838; 305 F, purchased 1836; 305 L, purchased November 24, 1839; 305 G, purchased January, 1839; 305 H, purchased November 23, 1839; 305 I, purchased 1836 and 1838; 305 J, purchased May 20, 1839; 305 K, purchased December 31, 1839; 305 M, purchased 1838.

It thus appears that out of fourteen cases or claims only four (305 B, 305 L, 305 H, and 305 K) arose in the latter part of 1839 so as to fall under Dr. Pollen’s general charge that Mr. Webster was speculating on the probable annexation of the island by Great Britain. In view of these facts, no comment is necessary upon the value of the opinions and recollections stated in the last paragraph of Dr. Pollen’s memorandum. What is meant by the declaration that “Mr. Webster’s failure was, as I (Dr. Pollen) recollect it, of the usual commercial character?” “He” (Mr. Webster), says Dr. Pollen, “was already in difficulties, as shown by his arrest in Sydney in 1840.” This was after the proclamations of Lieutenant-Governor Hobson invalidating the land titles, Dr. Pollen further says:

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“His misfortune was never, so far as I know, until now attributed to the action of the colonial government or of the Imperial Government. If any such complaint had been made in the early days of settlement, I think that I must have heard it. I do not think that it would have been made in the presence of any person familiar with the facts. It may at present be regarded as a lawyer’s plea, merely on his client’s behalf.”

The value of this evidence, either upon the score of information, of recollection, or of competency, is easily tested.

The very allegation that Dr. Pollen says would not have been made by Mr. Webster “in the presence of any person familiar with the facts” was made in the letter of Mr. Webster to the colonial secretary of July 20, 1841, heretofore quoted, and was never questioned. But this is not all. The fact appears equally and unmistakably in the recommendation of Mr. Commissioner Fitz Gerald, which bears conclusive evidence of the good faith of Mr. Webster’s purchases, of his large outlays upon and development of his lands, and of his enterprising and useful character as a settler.

It may be thought somewhat significant that the attack made in 1874, and now sanctioned and renewed by Sir Robert Stout, upon the conduct of Mr. Webster is conclusively answered by British official records, which, being nearly contemporaneous with the transactions of Mr. Webster, and containing the testimony of persons having actual knowledge of the facts, uniformly attest his good faith and the meritorious character of his claims. In 1843 his claims were found to be bona fide, but were disallowed on the ground that the ordinances did not permit him to hold what he had purchased and paid for in good faith. The disallowance was modified, completed, and made final under the act of 1856. In 1874, when he presses for the recognition of the claims so disallowed, another and wholly inconsistent ground is assumed, against all the evidence, and it is alleged that he is not entitled to further consideration, because he was a dealer in “land claims” in anticipation of the annexation of New Zealand by Great Britain.

These two positions can not both be maintained. Nor, if the later position be true, can it be understood why, as the memorandum of Sir Robert Stout constantly reiterates, Mr. Webster was treated with exceptional liberality. Such treatment can be explained only on one or both of the suppositions that the good faith of Mr. Webster’s transactions was admitted or that a partial recognition was made of his rights as an American citizen.

In regard to the Piako tract, which he purchased in 1838, and for which a deed was executed in 1839, Mr. Webster states that before the case came before the commissioners in 1845 he sent a surveyor with a party of chiefs and others from whom he had made his purchase and measured the front boundary, which expended about 21 miles along the river bank, and then marked each corner of the tract, which extended about 8 miles back from the river. In regard to the fact and notoriety of this purchase, Mr. Webster refers to a report of George Clarke, “protector of aborigines,” to the colonial secretary of New Zealand, which was transmitted to the British Government, in which there is the following:

“Upon the western side of the river (Piako) is the extensive purchase of Mr. Webster, who claims upwards of 40 miles of frontage, two-thirds of which is unavailable, being swamp; the upper part is good; the depth of the river for about 30 miles is less than 8 feet.”

The commissioners found that he had made bona fide purchases from the chiefs, as he alleges.

The claim which Mr. Webster now sets forth is as follows:

For the value of 11,000 acres of land (included in cases 305 B, 305 J, 305 M), found to have been purchased in good faith, but which were never granted to him or his assigns, and which he was prohibited by the land ordinances and officers from selling or conveying, estimated at £1 per acre, £11,000.
For the value of 84,300 acres of land (included in cases 305, 305 A, 305 C, 305 I, 305 K), found to have been purchased by Mr. Webster in good faith, less 5,000 acres assigned to R. Dacre, leaving 79,800 acres, estimated at £1 per acre, £79,000.
For the value of 40,960 acres of land, comprised in case 305 G and proved to have been purchased in good faith, estimated at £1 per acre, £40,960.
For the value of 3,000 acres, case 305 H, proved to have been purchased in good faith, and for the value of spars taken from the land for the use of the British navy, £25,645.
For the value of 9,000 acres (cases 305 D, 305 F, 305 L), purchased in good faith and erroneously alleged to have been withdrawn from the commission, estimated at £1 per acre, £9,000.

Mr. Webster also asserts claims to other tracts of land, comprising about 200,000 acres, which he estimates at 10 shillings per acre, and claims damages for the destruction of his credit and business in New Zealand, and contends that interest should be allowed on all the items except the last from January 30, 1840. Mr. Webster does not include in the above statement Barrier Island (case No. 305 E), which he reserves for further consideration.