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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

Extracts from Despatch No. 41, dated "Downing Street, 10th February, 1847."

Extracts from Despatch No. 41, dated "Downing Street, 10th February, 1847."

Respecting Governor Fitzroy's Proclamation waiving the Right of Pre-emption.

The series of your despatches which I enumerate in the margin exhibit so clearly the injurious tendency of those measures, and the necessity of resorting to some prompt and effectual remedy, that I think it needless to enlarge on those topics. My immediate purpose is rather to satisfy to the utmost of my power the demand which you make for the support and assistance of Her Majesty's Government in arresting the progress of the danger which you anticipate from Governor's Eitzroy's decision on this subject.

The steps taken by yourself with this view appear to me to have been judicious. I approve of your determination to allow all claimants, binder the Proclamations of the 26th March and of the 10th October, 1844, or under the notice of the 7th December in the same year, to send in their claims within a prescribed period, on pain of the exclusion of them. I approve of your projected appointment of a Commission to report on every purchase, and your decision not to issue, except under very special circumstances, any grant to any such purchaser until you shall have received the further instructions of Her Majesty's Government.

These measures, however judicious in themselves, are, as you have pointed out, quite inadequate to encounter an evil of such magnitude. The effectual remedy must be of a different character, and must be taken under the immediate authority of Her Majesty's Government.

On referring to the official correspondence, I find that Governor Fitzroy's first Proclamation, waiving the Crown's right of pre-emption, was dated on the 26th March, 1844. It formed one of a great body of enclosures in his despatch of the 15th April in the same year. The effect of that Proclamation was to require the payment to the Crown of ten shillings in respect of every nine acres out of ten, of which the pre-emption should be so waived.

Six donths later, that is, on the 10th October, 1844, Governor Eitzroy issued a second Proclamation, reducing the payments to the Crown in those cases from ten shillings to one penny an acre. This last Proclamation was transmitted by the then Governor on the 14th of the same month of October, 1844.

Lord Stanley's despatch of the 30th November, 1844, though disapproving the first of these Proclamations, gave a distinct but reluctant sanction, to it. On the 27th June, 1845, his Lordship, in his despatch of that date to yourself, directed you to recognize any sales which Governor Eitzroy might have sanctioned under his second Proclamation. But his Lordship expressed his opinion that it was a most impolitic arrangement, and earnestly impressed upon you the inexpediency of allowing such purchases for the future. On the 14th August, 1845, Lord Stanley recurred, to the subject, and expressed his desire that the practice might be discontinued as soon as it could be safely done, and he explained that he had understood the first Proclamation as limited to a particular district which he proceeded to define, and he stated his earnest wish to revert to the original plan of prohibiting all direct purchases from the Natives.

The result therefore seems to be that the first, or (as it has been called) the "ten shillings an acre" Proclamation, has been sanctioned by Her Majesty's Government in reference to the particular district defined by Lord Stanley; that the "penny an acre" Proclamation (as it has been termed) has been sanctioned by Her Majesty's Government to this, extent—viz., that any sales which Governor Eitzroy might have sanctioned under it were to be recognized. To whatever extent the faith of the Crown is thus pledged to the purchasers it must be maintained inviolate, be the consequent inconvenience what it may. But, except to the extent to which any such pledge has been given, Her Majesty remains perfectly free to take such measures as the welfare of her subjects in New Zealand requires.

In assuming the right to issue any such Proclamation your predecessor was plainly exceeding his lawful authority. This must be perfectly obvious to any one who reads ths Royal Charter, Commission, and Instructions, which enacted and limited his powers. But though, Captain Eitzroy thus exceeded his authority in a manner which, even if there had been no other reasons for doing so, would have rendered it indispensable that he should be removed from the Government of New Zealand, to refuse now to acknowledge the claims of individuals, founded upon acts done by him while he was in the exercise of the powers conferred upon him by Her Majesty's Commission, would be inexpedient, since it might unjustly affect persons who have availed themselves of the Proclamation in ignorance of the defective authority on which they rested, and also because it might very injuriously impair the page 16authority of those who exercise the power of the Crown in its distant colonial possessions thus to establish the principle that their exceeding their authority vitiated their acts, and that private individuals cannot safely regulate their conduct upon the principle that whatever a Governor may do under his Commnission is to be assumed to be lawfully and properly done, until the contrary is declared by superior authority. While, therefore, on the ground of Captain Fitzroy's having disobeyed his Instructions, and also that of the manifest impolicy or the Proclamations of the 26th March, 1844, and of the 10th October, 1844, and of the notice of the 7th December, 1844, waiving the Crown's right of pre-emption, the Queen is pleased to disallow and annul those acts and each of them, Her Majesty is further pleased to declare that this order of disallowance shall not prejudice any acts which may have been done in strict pursuance of the Proclamation of the 26th March, 1844, antecedently to your receipt of this despatch, or any acts which, may have been done in strict pursuance of and under the authority of the Proclamation of the 10th October, 1844, antecedently to the receipt by the Governor of New Zealand of Lord Stanley's despatch of the 27th June, 1845. It is Her Majesty's further pleasure that all such acts so done before such respective periods shall be as valid and effectual as if the Proclamations under which respectively such acts may have been done had been confirmed and allowed by Her Majesty.

Having thus reconciled the observance of the faith of the Crown with the prospective abrogation of these unfortunate acts of your predecessor, it remains for me to observe that the claimants under these Proclamations have a title resting on no other ground but that of a strict and positive legal right, and that their titles have no support from justice, equity, or public policy. To whatever extent they can clearly bring their cases within the true meaning of Governor Fitzroy's Proclamations, to that extent their demands must be satisfied.

But it is not merely competent to you, but is your plain duty, to withhold any grant from the Crown, and any aid in any other form, from every purchaser under these Proclamations who shall not be able to prove, in the strictest manner that he has complied with and literally satisfied the requisitions of the Proclamations in every particular they contain.

You will therefore refer every such claim to the Attorney-General for New Ulster, calling on him to report whether it is in exact conformity with the Proclamation under which it may be preferred. And you will make no Crown grant to any such claimant without the previous certificate from the Attorney-General to that effect.

It will further be necessary, before any such Crown grant be issued, that the Attorney-General should certify to you that the Natives from whom the purchases may have been made were, according to the Native laws and customs, the real and the sole owners of the land that they undertook to sell. It will be the business of parties claiming the benefit of such sales to produce such evidence as the Attorney-General may consider to be required to enable him so to certify; and they must do this at their own charge without cost to the Colonial Treasury, Finally, in every grant which you may make in pursuance of these Proclamations, it must be expressly declared that Her Majesty enters into no guarantee or warranty of the title to the lands, save only so far as to engage that the grant shall be considered as barring the title of the Crown to such lands, and as transferring to the grantee any right to the lands which, at or previously to the, date of the grant, may have been vested in the Queen.

You will give immediate publicity to Her Majesty's decision, and to the motives of it as I have already explained them. I anticipate that the result will be that of the purchases made under Governor Fitzroy's Proclamations very few indeed will be sustained. I have no difficulty in avowing that it will be gratifying to me to learn that such is the result, for the whole transaction is one which it is impossible to contemplate without a lively regret that any persons should be benefited by it at the public expense, and an earnest desire to confine that benefit strictly within the limits which the Royal faith, as pledged by Lord Stanley's despatches, prescribes.

I have, &c.,

Grey.

To Governor Grey.