The Pamphlet Collection of Sir Robert Stout: Volume 30
22nd November, 1879.
"To T. W. Lewis, Esq.,"Under-Secretary, Native Office.
"No reason having been assigned by the Chief Judge, I am unable to reply to his objection. I will, however, state for the information of the Government the circumstances under which the money was paid in the vouchers under remark. On the 30th July last, Mr Dickey, who frequently acts for Mr. Fenton in these matters, telegraphed to me re the Court to sit at Opotiki in the following terms: 'There is neither a clerk nor an interpreter to send,' and 'could you not get . . . at £1 per diem; reply.' I replied objecting to ... on account of his very intemperate habits, but that I would recommend an interpreter. In reply, Mr. Dickey wired on 2nd August, 'I have no interpreter to send,' and on the 5th August be wired that 'the Resident Magistrate at Opotiki would place the services of his clerk at my disposal.' Under these circumstances it became my duty to engage an interpreter, because, though I speak the page 57 language, I knew that the clerk to the Resident Magistrate at Opotiki did not understand it, and, therefore, an interpreter was necessary, the proceedings being recorded in English; hence I engaged Mr. Thorn, the interpreter whose name appears on these vouchers at the same rate (or rather less) than has hitherto been paid in the Bay of Plenty to the interpreters of the Native Land Court by the sanction of the Hon. Native Minister, viz., £2 2s. per diem. This rate was paid by Judge Halse to Mr. Warbrick, and I am informed to Mr. Piercie also. It was paid by Judge Heale—including Sundays—to Mr. Edwards for many weeks. It was paid by myself to Mr. Edwards—including Sundays—at Maketu and at Tauranga; also by myself to Mr. Carrol at Wellington. Such being the established rate—being, moreover, the rate which by Orders in Council an interpreter is entitled to charge for his services—I engaged Mr. Thom at the same, viz., two guineas per diem; but I stipulated that Sundays should not be paid for.
"Mr. Thom lives 40 miles from Opotiki. He was not paid for his journey to and from his place of residence, although he might have insisted on these payments.
"When I arrived at Opotiki on the morning of the opening of the Court, I found the interpreter I had engaged there, but the arrangement of the Chief Judge to obtain the services of the clerk to the Resident Magistrate had broken down. (Vide copy of letter by Captain Preece, Resident Magistrate attached.)
"This arrangement, I should explain, was based upon an obsolete order issued in July, 1867, by the Native Minister, Mr J. C. Richmond; an order which was made when the labour in the various Courts under remark was much less than it is now, which, I believe, has been acted upon once in 12 years, and which is not in accordance with the law as it now stands; for the "Native Land Act, 1873," requires that the Judge shall have a Secretary who understands the Maori language. Fortunately, the interpreter I had engaged was a good clerk. I put him to that work—paying him, of course, his stipulated fees—and I did the interpreting myself.
"I arrived at 8 a.m. The natives had collected from Cape Runaway, the Uriwera and Whakatane. I kept no one waiting to refer to Mr Fenton, besides the expenses of waiting would have been £4 4s. 6d. per diem to the Government. I considered it my duty, as presiding Judge, to make page 58 the necessary arrangements to hold the Court then, for the natives would have been very dissatisfied had they been compelled to return to their homes without a Court. Mr. Fenton's arrangement had failed, and I had been distinctly told by Mr Dickey that he had no clerk or interpreter to send. I therefore made the arrangements I have mentioned, and opened the Court at 10.30 a.m.
"When I went to hold the Court at Opotiki, I did not get from the Chief Judge a clerk, or an interpreter, or any stationery for the purposes of the Court, nor had I a tithe of the necessary forms on which to record the decisions and recommendations of the Court, and I may add I had no money. I did not complain then, but I do complain now, of the action in respect to the vouchers under remark. It is an action which strikes at the root of the business confidence which is necessary to the holding of an imprest at all.
"J. A. Wilson, Judge."
In November, 1879, I was directed to preside at two Courts, one at Tauranga, the other at Galatea, that must necessarily sit concurrently. I opened that which was proclaimed to sit first, and went on with it. I then notified the Chief Judge that I was too engaged to hold the other Court; indeed, I could not have accepted the responsibility of sending all the litigants home with a case such as Rangiuru half finished before me. As the Chief Judge had no responsibility in the matter, he having no power to adjourn my Court or move me out of it, he should not have embarrassed me by directing me to preside in simultaneous Courts, nearly one hundred miles apart, and reporting me to Government for failing to attend the second; to which, had I gone, he would of course have reported me for not completing the first. Here I would observe that the fountain of power was with the Bench of Judges and Assessors, not with the Government. The Bench in August, 1874, delegated certain powers to the Chief Judge, re presiding Judges, and the Chief Judge, if he had a difficulty in working their rule, should have convened a meeting of the Judges and Assessors. This he dared not venture.
The Bench once assembled in meeting, as provided by law, its powers might be resumed or rules amended for better admininistration. The operation of the district clauses of the Act might have been revived, and the Governor-in-Council memorialised to proclaim rules for the localisation of the page 59 Court. In this instance the Minister (Mr. Bryce) referred to me for explanation; but in the following similar case, Mr. Rolleston being the Minister, it was not so. It was easier and safer for Judge Fenton to forward unverified complaints to a friendly Minister, when the innocent and unsuspecting knowing nothing, could not answer them, than to appeal to the source that had empowered him to nominate presiding Judges; where he would have been supported in meeting, and before the Governor, if necessary, all that was right; where falsehood might not have been revealed, where truth could not have been concealed, and where he would have been rendered harmless.
The second similar case is the following:—"On 10th May, 1880, while on sick leave, I was directed by letters in duplicate to hold a Court at Ohinemuri on 2nd June. My leave would expire 26th May." Now Ohinemuri was out of my district, and I could not go there without breach of agreement with the Native Minister (Mr. Sheehan). This Mr. Fenton knew perfectly. I replied on the 14th that I was unable to attend, as I had a Court to hold at Tauranga on the same day. To this I received the following answer:—
20th May, 1880."
Having reference to your letter of the 14th inst., in which you report that you are unable to preside at the Native Land Court at Ohinemuri, on the 2nd proximo, I have the honor to state that as the Court sitting at Maketu also on that day, may possibly be found more convenient in respect of proximity to your other business, I have assigned that Court to you in lieu of the one to be held at Ohinemuri.
F. D. Fenton, "Chief Judge. "J. A. Wilson, Esq., Judge Native Land Court, Auckland."
Maketu being in my district, I went there on the 1st June, and presided in the Land Court there until the 24th September following. My Commissioner's Court I adjourned to do this.
After this, by a paper numbered J. 80/2411, of the existence of which I was in ignorance, and had no suspicion until more than two years after, when I saw it handed by the page 60 Chief Judge to the Chairman of the Public Petitions Committee, on the 13th July, 1882 (this document, having been secretly prepared, tendered to, and accepted by the Minister of Justice, Mr. Rolleston, as an accusation against me on the part of the Chief Judge warranting my removal from the Bench), sets forth, among other things, that I had not attended the Court at Ohinemuri on the 2nd June, 1880, and omits all mention of my duty at Maketu in lieu of Ohinemuri, or indeed of my having presided at Maketu at all. Such was the character of the modus operandi of a Minister of Justice and a Chief Judge of the Colony of New Zealand, against one of her oldest colonists, who was a just and indefatigable Judge, whom they desired, for reasons best known to themselves, to deprive of his office, yet could not accuse him openly, because he was unblemished and known to be able to prove himself innocent of any charges that might be brought against him.
In 1880, I was embarassed at Maketu Court by a departure of the Chief Judge from the rule allowing a Judge to name the assessor to sit with him. To that Court the Chief Judge sent the assessor, and the Chief Clerk informed me to that effect on the 21st May in writing. Had I been disposed to work inharmoniously with the Chief Judge (as stated by Mr Rolleston) I should have demurred to this invasion of my right in a matter of some importance. The assessor had not sat more than a very few days when he had to be lifted into a vehicle and sent home. Then it transpired that he had been years subject to rheumatic gout, and had collapsed at other Courts. The Chief Judge knew this, and that the assessor had expostulated on the score of his health at being sent to Maketu in the depth of winter, but he had been told by the Chief Clerk that he must go. Moreover, it transpired in the Court that in reply to complaints at the simultaneous sittings of Maketu and Cambridge Courts, the Chief Judge had said that they had better attend at Cambridge, as nothing would be done at the Maketu Court; a remark, which, coupled with the sending of the invalid assessor contrary to rule, needs no comment.
However, I determined that the Maketu Court should not be stopped, notwithstanding the difficulty that the Chief Judge went out of his way to cast in my path. It re-opened presently with another assessor, whom I had summoned. On this the Chief Judge took upon himself to stop the funds, for payment of the current expenses of the Court, by minute page 61 upon the requisition that he refused to recommend them, thus running my Court into a debt of £175 through living on credit for nearly two months. On this I wrote to the Minister of Justice the memorandum of the 11th August, 1880, attached. Finding that even this obstruction did not cause me to close my Court, the Chief Judge went a step further and decided to stop me by telegraphing the following message, duly received by mo sitting in Court on the afternoon of 31st August, 1880:—
"J. Wilson, Esq.
"The new Act is assented to and your Commission annulled. Mr Munro or I will come and take up the case. Please leave all papers with the clerk.
F. D. Fenton, "Chief Judge."
Now, the new Act did not come into operation until the 1st October, 1880, and my commission was not annulled. The Chief Judge knew this when he telegraphed. The new Act was the keystone to his new arrangement with the Ministry—part of the modus operandi—and he had spent nearly four months at Wellington shepherding it through the Legislature, and no one knew better than he that the clause bringing it into operation on 1st October had passed both chambers without alteration. Vide following note kindly obtained for me by Major Harris, M.H.R., from the Clerk of Committees:—
"Native Land Court Act, 1880.—No such amendment was made. The Act was introduced into the House with the date 1st October in Clause 2.
This note was in reply to the query—"Was Clause 2 amended in passing through the Legislature (in the matter of date of the Act coming into operation) from the 1st September to the 1st of October?"
Meanwhile, from causes it is unnecessary to go into, the Chief Judge found himself obliged to retire from the false position he had taken up. This he effected under cover of another falsehood manufactured for the occasion, viz., that the Governor had altered the date of the Act coming into page 62 operation, and I received the following telegram on the same evening,:—
"Subsequent by Governor's amendment, Act does not come into force until October I. Please, therefore, complete Paengaroa, but commence nothing else. Give notice to this effect.
F. D. Fenton, "Chief Judge."
The Chief Judge's obstructions re Maketu Court all failed, Neither by the sick assessor, nor by the cutting off of supplies, nor by untrue intelligence, could that Court be topped, but his motive for this and other actions is explained by his paper J. 80/2411. I had been appointed in spite of his threat to resign, and now his friends were in power, he allowed nothing to stand in the way of the accomplishment of his desire to oust me from my office. To discredit me he employed obstruction, secret misrepresentation, and the suppression of my work (See J. SO/2411 and my reply)—et sequitur—and in one remarkable instance—Rangiuru—be even appropriated that work to the credit of himself and another Judge.
In November and December, 1879, I sat a month at Tauranga upon Rangiuru—a heavy case; there were eight separate parties, or hapus, to the suit, and my notes occupied 150 pages of foolscap. The property was said to be worth from £25,000 to £30,000. I gave judgment as between the parties, recording the same in the minutes of the Court, and then I settled the 242 names of the individuals whom I found comprised in the successful party. The case was completed and closed, requiring only a fair copy of the order under my hand and seal as presiding Judge. This was delayed by the indisposition I had asked sick leave for. Meanwhile, the Chief Judge came to Tauranga with Judge Symonds, called the case illegally when it was not for re-hearing, and added a name that I had rejected to the list. The natives interested being absent could not oppose, and after making a direct attack upon me from the Bench, adjourned all the other cases. Sitting in all but a few hours on the 4th February, and returning to Auckland forthwith, he gazetted Rangiuru as having been investigated and awarded by himself and Judge Symonds at a Court begun and holden and ended on the 4th February, 1880 (see page 63 "New Zealand Gazette," No. 31, page 423), thereby depriving me publicly of the credit of my labour, and improperly appropriating that credit to himself and his friend.
Again a native, Aperahama te Kotuku, whom my Court had imprisoned for violent outrage upon the Court, entering at the head of a band and tearing a witness from the bar of the Court, was released, without reference to myself as the presiding Judge, before his term had more than half expired. The spirit the native displayed when released, and the kind of terms he was upon with the Chief Judge, may be gathered from a passage in his letter to the latter, duly filed, of 3rd May, 1880. Speaking of myself he says, "A payment must also be asked for his wrong in sending me to gaol. He must yield a payment for me." Thus Te Kotuku was set free before his time, in a way to obtain credit for the action amongst the natives at my expense. I have never been officially informed by whose advice the native was released, but I have seen and noted the letter quoted.
I have said that the Chief Judge attacked me from the Bench on the 4th February, at Tauranga. This behaviour was the more unseemly as I am informed the attack was couched in unmeasured terms. I was not present, being ill from overwork. I was awiting Mr Bryce's reply to a medical certificate ordering rest.
The circumstances were the following:—A native, who oddly enough was shortly after appointed an assessor of the Land Court, applied for a rehearing of Rangiuru, alleging that the names of children had been included in my list of owners for Rangiuru. The Chief Judge used this matter as a peg to hang his remarks upon. Now the Native Land Court is a Court of Maori custom, and it is in accordance with native custom that children should sometimes be recognised as owners of the soil, and in some parts of New Zealand, for many years, children were commonly included in titles issued by the Native Land Court. European purchasers of native lands however complained of the anxiety and expense caused by minor owners, pressure was brought, and the Chief Judge cast his weight into the scale against the children. This influenced the Bench considerably, but the natives are attached to their children, and some tribes held out long against the new dictum. This was the case in my district. The practice I followed was to strike out children or minors unless the natives unanimously required them to be included. This course was followed by me at the hearing of Rangiuru page 64 in December, 1879, and the names of about sixty children were with some labor excised. Some of the minors were produced in Court in order that the Assessor and myself might judge of their age, and if children did creep into the lists, it is but what has happened generally in every large block throughout New Zealand that has been dealt with under the dictum; but that it was I who had adjudicated, and that Judge Fenton, in his desire to injure me, determined to make it appear necessary that my work should be done over again. Nothing would have been further from his thoughts then to recommend the Governor to grant a re-hearing of Rangiuru on that score. As well have two extra Judges per annum as to re-hear all block s known to have minor owners in them.
In this case, however, he sent an urgent telegram to the Native Minister, saying, "I respectfully recommend a rehearing. I sat myself at the conclusion of the case. I found an order made including about 50 minors whose parents were still alive. Our precedents all went in the contrary direction. I told the parents I would get the matter set right somehow, and on consideration can discover no authority except a rehearing." This is the order that he gazetted, in his own and his friend's name, in the "New Zealand Gazette" of the 1st April, 1880. As regards the passage in the urgent telegram, "All our precedents went in the contrary direction," the following, which appears in the evidence before the Public Petitions' Committee in my case, convicts Judge Fenton, out of his own mouth, of misleading the Government in using misrepresentation in favour of a rehearing.
Question to Mr. Fenton by Mr. Wilson—"Were you not then aware that other Judges had made a practice of including minors? "
Mr Fenton—"Yes, I was."
However, the upshot of the matter is in a nutshell. A year after Judge Fenton sat himself four days at Maketu to expunge the "50 minors" from my order (Gazetted in his own name, 1st April, 1880; page 423), and succeeded, after his labour, in reducing the number of names from 242 to 236. (Vide "New Zealand Gazette" of October 10, 1882; page 1447.) Moreover, he replaced 12 of my names as under age with 12 names that I had rejected as under age, so various are separate opinions sometimes when it becomes page 65 necessary to determine the ages of natives in the absence of registration.
If this kind of revision were necessary, why did it begin and end with the block I had adjudicated? On the East Coast prior to 1877 probably every child in the whole population was included somewhere in a memorial of ownership. Why were not these "set right?" Why? because there could be no setting right where there was no wrong to redress, and because it formed no part in the modus operandi re Fenton and another v. Wilson.
Had I given the two conflicting awards on the 5th November, 1878, and afterwards re Te Puke, what an outcry there would have been! As it was, the Government was left to special legislation to "set the matter right."