Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 68

Point Resolution Land Purchase Royal Commission

page break

Point Resolution Land Purchase Royal Commission.

Mr. Napier rose to address the Commission at 2 p.m. He said:

May it please the Commission; I have listened with perfect attention to the speeches of both my learned friends upon the subject of this enquiry, and while I am free to admit that both If them, from the standpoints from which they viewed this translation and the proceedings out of which it arose, have done their best for their respective clients, yet I must confess that it was with some surprise, not unmixed with regret, that I noticed that both of them studiously avoided or failed to appreciate any of the principles which were worthy of being' taken into consideration, and that are involved in this transaction—any of the principles, in short, underlying it, and on which it appeared to be based. Both of my learned friends laboured the question from the aspect of value and the view as to whether or not the cestui que trusts—the persons who were to be benefited by the conservation or injured by the deprivation of this trust—as to whether or not their interests have really been conserved, and as to whether a sufficient sum of money has been paid for the interests which they possessed in the land that was taken by the Government under the circumstances deposed to in the course of this enquiry. Now whilst I admit that that aspect of the case is entitled to some consideration, and whilst I shall myself devote some remarks it the beginning of my address to such consideration, yet at the same time, I contend that it is a matter of an entirely subordinate character—a matter which, compared with the other issues involved in this enquiry, with the facts which have been clearly and unmistakeably elicited here, and with the principles upon which those facts are founded,—I say that in comparison with them that question of value is altogether a very insignificant litter. First of all, then, I shall deal with the question of value for the purpose of dismissing it, not that I can say I view it in the same light as my learned friends, or that it is a matter with which this Commission ought to be very much concerned, but at the same time I shall devote some of my remarks to the question whether or not, even putting it on a simple arithmetical basis, (his trust has been fairly dealt with. Now, the whole of the evidence that has been adduced before the Commission goes to show this; that a calculation was made as to what the rental page 4 which the trustees were obtaining from this land would amount to in 48 years. That was the first element of the calculation that was entered into; and secondly, what amount of money receivable now would, if properly invested and carefully preserved, yield a sum of £6000 in 48 years from the time at which this money had been paid. But there seems to me—and I do not profess to be an actuary or a highly skilled arithmetician or anything of that kind—to be a fallacy underlying the whole of these calculations, and that is; they take the present value of a sum payable 48 years hence and they attempt to represent it as the existing value of the land. Now, this is a feature of the matter which appears to me to be not entirely undeserving of the consideration of this Commission. If the trustees are to share equitably in the advantages accruing from this sale their share ought to be a proper share of the money that would be paid 48 years hence. The question then arises, what their share under those circumstances would be? No doubt appears to have been entertained by the trustees themselves that their interest should have been the present value of whatever sum would be payable 48 years hence. Now, it must be manifest that unless the country is, for the next 48 years, to pass through a period of absolute stagnation in which no progress at all will be made, this sum of £6,000, which represented the value of the land in 1885, must necessarily be largely increased to represent the probable value of the land 48 years afterwards. Taking the most meagre view of the matter into consideration and eliminating everything that is mod favourable to the trust it is manifest that the sum of £6,000 does not fairly represent—unless, as I say, the country is to retrograde—the value of the property 48 years hence. Yet the calculation appears to have been: What is the trustees' share of such sum as will represent the present value of the land payable in 48 years time. That, to my mind, involves a fallacy. As to whether or not that is a correct view seems to be of very trifling importance. What we have to consider on the money question is—What is likely to be the unearned increment of this land in the future? And it is not a case in which the interests merely of private persons are involved; it is a case in which the members of a corporation are involved—a trust with permanent succession and not limited in its benefits to the neglected and destitute children of the present day or of any generation, but one designed for the benefit of neglected and destitute children of all generations for ever. The land was given to these trustees to be held in trust for ever for the neglected and destitute children of both races in this colony and other South Pacific Islands. It is therefore, I repeat, not merely a question of the interests of the children now in the custody of the trustees being benefited or properly conserved, but whether or not the permanent and unchangeable interests of the trust have been conserved or defrauded by the transaction that has page 5 taken place. That is the question, and we respectfully ask the Commission to consider first of all what were the objects of the grantor of this land—the objects for which this land was given him and accepted by the Bishop of New Zealand to whom it was granted, and to consider also in coming to a determination as to whether or not the trust has been benefited or otherwise, what has taken place in other countries, and what has been the history of similar institutions in other lands. Of course, this country being yet, so to speak, in its birth-throes, we can hardly look to it for illustrations, and therefore I submit we ought to see what has taken place in other countries, and of course the country to which we most naturally look is the one best known to us—our own mother-country. We find there that for a long period Of time—for many centuries, in fact—it has been the custom to endow with lands trusts of this nature devised for the purpose of relieving the general taxpayer. That was the practice that was adopted in the very earliest period of English history—at all events, after the country had become settled, and what are the results that have been achieved by it? I have been looking up these results and I find them positively astounding. I have found that institutions endowed a few years ago with a small piece of land in some town or country village are now the most powerful and wealthy in the land with revenues that are almost incalculable, amounting as they do to hundreds of thousands of pounds, to be devoted to the philanthropic objects for which the original endowment was made. And all this enormous increase of value has been the direct consequence of the growth of population and the advance of the country—an increase of value that must have been absolutely inconceivable to the persons who granted the land. Now this has occurred in some cases within the last century. There are cases dating from the last century where lands of no greater value than the property under our consideration—in fact less value than when it was taken by the Government—were granted to various trusts, companies, schools, and other institutions, and the result is that many thousands of pounds are now annually derivable as incomes from these lands which would not have been derivable if the original assistance had been granted in any other form. Indeed, it is a matter so notorious that it is not necessary to comment upon it at any length. I submit, therefore, that land is a security which is far more likely to achieve the ends which the grantors had in view than any other kind of security. In fact I submit that any other security is no security at all, if I may say so, as compared with land. In the first place take money. Money at best is but a changeable, Situating species of security. It is liable to be lost if it is placed in the hands of persons to invest who like all other individuals are subject to human infirmities, and who, therefore, may make away with it; and it is subject moreover to depreciation, whereas land preserved in a trust, as this land was intended to be, is entirely imperishable and unchangeable. And I submit page 6 that this is the reason why we see that in all ages and in all countries the greatest efforts are made by states and persons to endow with land either institutions, families, or individuals for whose permanent and abiding prosperity they are concerned And so prevalent is this feeling, not only among institutions but among persons, that to come down to this transaction which forms the subject of the present enquiry we shall find it explaining the reason why Mr. Kissling was so desirous of acquiring this freehold. Seeing that he had a lease of the land, for which he had merely to pay a trifling, a nominal rental of £17 a year, why otherwise was he so anxious to possess himself of the freehold? He was in undisputed possession for the rest of his life, and possibly also the lease would have extended over the lives of some of his children. I submit that the answer is obvious. It was the very reason which has actuated all men and from all time in endeavouring to acquire land, viz., that land is a commodity to which an adventitious and extraordinary value attaches not by reason of the exertions of the persons who own it, but by reason of the exertions of the whole community. Now, the value of money and its increase depend upon judicious investment, a great amount of foresight, and other considerations which do not exist in the case of land. Land acquires this value by the growth of population, the development of trade and commerce and the consequent increase of prosperity in the community and this is the reason why all persons struggle to acquire the freehold of land. This applies with even greater force in a young country like ours, because we know that as it is only sparsely settled at present there is bound to be a large increase of population, and that as a necessary consequence the value of land must inevitably be increased thereby, more especially when it happess to be in the neighbourhood of towns. I submit that it is not a question as to whether or not the children at present in these orphanages have benefited or otherwise but whether there has been a permanent benefit—whether the children who will of there for the future to all generations will benefit or otherwise by this transaction. I submit that if that view prevails with the Commisson they must necessarily come to the conclusion that this trust has been very materially injured, and that its permanent interests to an almost inconceivable extent—as in fact all the witnesses have said they could not conceive the value of the land 48 years hence—have been defrauded and injured. Take an illustration which was given by Mr. Dacre. Now, Mr. Dare, who is a gentleman acquainted with the current values of land and the ordinary accidents attaching to the value of land and its rise and fall as a commodity, says that this particular piece of land may be worth £12,000 18 years hence. That of course is only a surmise, but it becomes something stronger than a surmise when we consider that some 46 years ago there were no buildings on the site of this city—nothing but tents on the spot where we are now deliberating, and that all the value which it now page 7 possesses has accrued in consequence of the influx of people here. Let us also remember that this land into the purchase of which we are now enquiring is situated not much more than a mile distant in a direct line from Queen Street Wharf. Considering all that, then I ask the Commissioners again can we positively calculate how much that land is not likely to increase in value? It has been suggested of course that its value was only attributable to its advantages as a good site for marine residences. I submit, however, that that is a very far-fetched view of the case. That may be the case at the present time, but if Auckland is to continue to progress, as it undoubtedly will, that land by reason of the cutting down of the point, the reclamation of other lands in its vicinity, and other works similarly induced by the increase of population and the extension of trade, will be immensely increased in value—not as a site for marine residences, but as a site for the erection of shops, manufactories and other buildings, which give an immensely greater value to land than buildings which are merely built and occupied for the purpose of residence. We may take one instance of a similar character in the history of Auckland. I refer to the case of Fort Britomart. One of the witnesses said that the whole of the hill at Point Resolution would have to be cut away to make it available for other purposes, and that therefore it never would be cut away, while if the foreshore were reclaimed and a railway were taken round there the value of the land would deteriorate as a consequence. But the point is not so high as Fort Britomart was, and yet that has been cut away while the land there, which 15 or 20 years ago could have been bought for a comparatively nominal sum, now commands several scores of pounds a foot, thus showing that in so short a time an immense amount of money has been added to the value of that land. I submit, therefore, that in the deprivation of this trust of the unearned increment of the land there has been a very material injury done to the trust. In times past, as I have said, in England there have been great foundations where only a few acres of land were originally given. In cases where no greater extent of land than is comprehended by the property now under consideration was granted to particular schools those institutions at the present day have an income and revenue there from that may fitly be described as colossal. Take for instance the case of the foundations made by William of Wykeham and the early Edwards. Everyone knows that all these great schools were in the first place founded without the cost of a single farthing to the State, and that they are enabled by their landed endowments to carry on their operations without any assistance from the State. In one case a gentleman some centuries ago granted about twenty pounds worth of land at its then existing value towards the foundation of what is now a great institution, and the income which that institution enjoys at the present time amounts to many thousands of pounds per annum. Can it be said, for one moment, page 8 that if that £20 in money had been merely placed in a bank to the credit of the object for which it was given that that great institution would be in existence at the present day or that the magnificent results which it has achieved would have been compassed?

A contention of that sort would be manifestly preposterous It is well known, and the facts and experience of every-day life and the teaching of history confirm its truth, that a grant of land is the grant of something that is of indestructible value, and that the objects for which it is given are promoted and achieved by the enhanced value contributed by the labour and increasing wealth of the community, and not simply by the original munificence of the grantor. I submit, therefore, that taking merely the narrow, technical view of the matter the trust has not benefited by this transaction. It appears to me, however, that we have to take up a higher position, and that it is the principles which appear to enter into this transaction, the principles which govern the conduct of the parties and the principles upon which the matter has rested so far that are the most important features in the whole transaction, and it is these principles to which the Commission ought to devote the utmost amount of careful consideration. I regret that I cannot, with my learned friend Mr. Hesketh, say or rather follow him in saying that in my opinion all the parties involved in this transaction have come out of it, so to speak, with clean hands, that there can be no suggestion of impropriety or improper conduct and that as a matter of fact the Commission must wind up with the happy, all-round congratulation of "All's well, that ends well," and the assurance that everyone has acted in the best possible manner according to his lights. It seems to me that such a contention cannot be maintained for one moment, because if we view this transaction in the light of the evidence adduced before the Commission and by the light of the documents connected with it, I submit that we must come to the conclusion that the whole proceedings involve one of two things, either that the parties, or some of them concerned in the matter, exhibited an amount of ignorance that is positively inconceivable, and which could not be expected to be found in any person occupying a Government position, much less occupying the principal position in affairs of that character, or else that there was moral turpitude, and moral turpitude of the grossest kind. Now, I am loth to come to the latter conclusion, and I prefer that the matter should rest simply on that plea of ignorance which has been set up, and that Mr. Brewer, who took the most prominent part in the perpetration of this wrong—if there was any excuse for him—at all events should have his conduct taken into consideration in view of the fact that he was in absolute ignorance of the state of the law. It is difficult, as I have said, to conceive that, because we find that Mr. Brewer was an experienced land officer. We find that for a period of 15 years he had acted in a similar capacity to that in which he acted in this instance, that he page 9 had settled some hundreds of claims for compensation, and that he was thoroughly acquainted with the provisions of the law bearing on compensation cases. His own expression is: "I did know the law on the subject of compensation cases at the time I made the arrangement with Mr. Kissling." He knew the law therefore. That was only to be expected from him. As a matter of fact, the law on the subject up to that time was contained within the limits of the Act with which it was his special duty to make himself conversant. As a matter of fact he carried that Act in his pocket. I allude to the Public Works Act of 1882, and this Act became the Alpha and Omega of his professional existence, so to speak, for it was within its four corners that he found all his powers. And yet we find that on every specific point, with one exception, connected with the taking of land for public works and the awarding of compensation there for, Mr. Brewer was in a state of absolute and dark ignorance. Of course it is charitable to suppose that it was so, and that is all one can say about it, but in the light of some of the correspondence and of the telegrams to which I shall presently refer, it is difficult to come to that conclusion and accept Mr. Brewer's statement that he was entirely ignorant of the provisions of one statute and of the most important and vital principles of the other statute. Now, the position which I shall take up with regard to this matter is this: I shall first of all submit to the Commission, having already disposed of the question of value, that the whole of these proceedings are absolutely unlawful, that from their inception to their completion they were founded on falsehood, and that under no circumstances can they stand. The first matter to which I shall allude will be the dictum of a very learned writer with regard to the taking of land from a subject. I shall quote to you an English author and an American author with regard to the taking of land, and as to whether or not the Legislature even can take land from a subject except under special circumstances and conditions. It is laid down by Storey, an American writer, as follows:—"No rule or principle is known under which private property can be taken by the Government from one person and transferred to another for the private use and benefit of such person, whether by general law or special enactment, but that the purpose must be public and must have reference to the needs and convenience of the public." According to that writer, therefore, the Government or even Parliament by statute cannot take land from one individual or from a particular corporation and transfer it to another private individual, that is to say, with the intention at the time of taking of transferring it to such individual, for it is the intention that constitutes the gravamen of the whole thing. It is what was in the mind of the Crown at the time of the taking of the land. That is a point for which I ask Special attention, as upon it the legality of the proceedings turns, The only way by which in England under the Common page 10 Law the Crown can take land from a subject is by what is termed an "Inquisition of Office." This is laid down by Blackstone (Commentaries, the Eight Edition, by Stephen, vol. 3 page 666), and that Inquisition of Office provided that the Crown was to express a wish to acquire certain lands and that then the matter was to be decided by a Jury of the country, and then, if the jury upon the evidence submitted to them decided that the land could be taken, the Crown was to amply compensate the person from whom it was taken. Blackstone, in commenting on that right, makes this very significant remark:—"These inquisitions of office were devised by law as an authentic means to give the sovereign his right by solemn matter of record, for it is a part of the liberties of England and greatly for the safety of the subject that the sovereign may not enter upon or seize any man's possessions upon pure surmise without the intervention of a jury." I submit, therefore, that in the absence of any statutory authority the whole of these proceedings would be illegal, that the Government could not have taken the land, and that if they attempted to do so they would be trespassers. But the Government set up a statutory authority, and the statute under which they go is the "Public Works Act 1882 Amendment Act 1885." Now, I submit that that statute gives them no power whatever to take this land, and if they have exercised any such powers purporting to be by virtue of that statute the attempted exercise of such powers under that statute has been a mere brutum fulmen. I shall submit to you later on, and I think with justice and also with the authority of law, that the Government has not as a matter of fact ever taken this land and never handed it back. I allude to the three-and-a-half, acres. Now, I shall ask the attention! of the Commission—it has been read and re-read several times—I shall ask your attention specifically to the 3rd section of the Public Works Act 1882 Amendment Act 1885, by which you will see that the Legislature recognises the Common Law practice to which I have referred, and only provides that it is in cases, according to the words of Storey, of public need or public convenience that land may be taken from a subject. The 3rd section of the Act of 188 says:—"The Minister is hereby empowered on behalf of Her Majesty the Queen to take any lands that may be necessary for the construction of any public work and also to require that any lands shall be kept free from obstruction in respect of the use of any such work and from time to time to exercise all such powers and authorities as are contained in the said Act and this Act." The Commission will observe that the Legislature very stringently limits the power of the Minister to the least extent of land which may be necessary for the construction of public works, and that he may require certain portions of land which, he does not take to be kept free from obstruction. It is manifest that under that statute the Government can only take land for the construction of "public works," the application of which term has been page 11 extended by the Amendment Act of 1885 to mean and include ail fortifications and other works for defensive purposes, the original Act of 1882 not having included such works. I contend, therefore, that the Government had no power to take any land except that which they actually required for public works however set forth in their proclamation, and if they attempted to take more than was necessary for that purpose such an attempt was ultra vires of the Government and could not stand in law. But what do I find? Do they exercise any powers under the Act of 1885 or suggest that they could take those acres of land under that Act for the purpose of reconveying it to Mrs. Kissling?

They do not suggest that they could carry out this arrangement for the handing over the freehold of 3½ acres to Mrs Kiss-ling—an arrangement which was manifestly and notoriously outside the law, but throughout the whole of the papers there appears falsehood upon falsehood from the very beginning to the passing of the Enabling Act, which was made use of as a blind, and Governor, Legislature, and Minister were all deceived by a chain of palpable and connected falsehoods. I would direct attention to the very first memorial laid before the Governor, and which was necessary to enable him to exercise the powers which he possessed and which were vested in him under the Act of 1882. And from that memorial it will be seen that the whole of the land was taken for the express purpose of a "public work" (within the meaning of the Act of 1885), namely, a fortification. The following is the memorial which was laid before the Governor and by which I submit he was absolutely deceived:—"Memorial laid before his Excellency the Governor by the Minister of Public Works in compliance with the provisions of the Public Works Act, 188?, containing an accurate list of lands proposed to be taken for the purposes of defence in the Borough of Parnell, Suburbs of Auckland." Then follows the schedule: 4 acres 1 rood 17 perches, sub-divisions 17 and 18, lot No. 23, section No. 2; . . . . . . . . . . . . . . . . . . being in the Borough of Parnell, Suburbs of Auckland. That is the land which is the subject of this enquiry. The memorial concludes as follows:—"I, the undersigned, Edward Richardson, the Minister for Public Works, hereby certify that the above memorial is true and correct in the several particulars thereof."

Now, the law provides that such a memorial as that shall be laid before the Governor and certified to by the Minister of Public "Works, and it is upon that memorial that the Governor may issue the proclamation whereby an actual vesting of land in Her Majesty takes place. It is upon that memorial that the Crown exercises the powers conferred under the Act of 1882, and a similar memorial is required under the Act of 1885, so that the memorial in each case is precisely the same. Now, I submit to the Commission, and I do not think it will be denied, for one moment, that the statements in that memorial are false in fact. Four acres one rood and seventeen perches do not represent accurately the page 12 area of lands "taken for defence purposes in the Borough of Parnell, suburbs of Auckland," and the statement by the Minister that the memorial is "true and correct in the several particular thereof" is absolutely contrary to fact. Therefore the Governor has been deceived, and that alone is a sufficient reason why the proceedings should not stand but be set aside and the partial revert to their original positions Now, hero is the proclamation which the Governor issued, and which also I submit contains statements at variance with truth, although, of course, not so known to him. Upon the memorial laid before him by the Minister for Public Works his Excellency issues this proclamation. He heads it "Land taken for defence works in the! Borough of Parnell, suburbs of Auckland:—Whereas the land mentioned in the schedule hereto is required to be taken under; the Public "Works Act, 1882, for a certain work, to wit, the construction of works for the purposes of defence in the Borough] of Parnell, suburbs of Auckland, and whereas the Minister for Public Works has laid before the Governor a memorial accompanied by a map as required by the Act: Now, therefore, I William Francis Drummond Jervois, the Governor of the Colony of New Zealand, in exercise and pursuance of the powers and authorities in me vested by section 11 of the Public Works Act 1882 and of every other power and authority in anywise enabling me in that behalf, do hereby proclaim and declare that the land mentioned in the schedule hereto is hereby taken for works for the purposes of defence; and that from and after the day of the date hereto the land so mentioned shall be absolutely vested in fee simple in Her Majesty discharged from all mortgages, charges, claims, estates, or interests of what kind soever." Then there is the schedule setting forth the area of the land to be taken and its situation in the Borough of Parnell, suburbs of Auckland, and all that is given under the hand of the Govern. I submit that this proclamation contains statements which are not true in fact, and that therefore the Governor was misled, and that it was by falsehood that the proceedings were enabled to be adopted by which nominally at least this land became vested in Her Majesty before being transferred to Mrs. Kissling. That memorial and the proclamation were, as I have mentioned, laid before the Governor and issued under the Act of 1882. The memorial is the same under the Act of 1885, and a fresh proclamation was issued signed by the Hon. Mr. Buckley, who at the time was acting as Minister of Public "Works, and that proclamation, which is dated 8th January, 1886, contains statements which are not true in fact. It is as follows:—" Notice of intention to take land for the construction of defence works in the Borough of Parnell, suburbs of Auckland. Notice is hereby given that it is proposed under the provisions of the Public Works Act, 1882, and the Public Works Act, 1885, to execute a certain public work, to wit, the construction of works for the purpose of defence in the Borough of Parnell, suburbs of page 13 Auckland, and for the purposes of such public work, the lands described in the schedule hereto are required to be taken; and notice is further given that the plans of such works and of the lands so required to be taken are deposited in the Public Works Office at Auckland, and are there open for inspection: And notice is hereby given that all persons affected by the execution of such public work or by the taking of such land shall, if they have any well-grounded objections to the execution of such public work or to the taking of such lands, set forth the same in writing and send such writing within 40 days from the first publication of this notice to the Minister for Public Works, Wellington." That proclamation, I submit, contains several falsehoods. In the first place, it was never the intention of the Government to take for defence purposes the whole of this area of land, and they did not take the whole of the land for the purpose of executing certain public works, "to wit, the construction of works for the purpose of defence in the Borough of Parnell, suburbs of Auckland." I submit, therefore, that these proclamations show clearly that the Government, unconsciously apparently—certainly that the Governor unconsciously—lent their names and their acts to a proceeding which was conceived in falsehood, and which was carried out in direct violation and evasion of the plain law on the subject. It is perfectly apparent that under the statute of 1885 and in the exercise of the powers which are vested in the Governor by that statute by virtue of which the Government purported to take this land—that under these powers they could not take the land. As a matter of fact they have not taken it according to law—that is, the three-and-a-half acres—and therefore they have not taken it at all. This is a point which has not been brought forward before to-day, and which does not appear to have been brought under the notice of the House of Representatives. As to the legality of the proceeding, I submit that the Crown, as I have already mentioned, could only have taken this land for "public purposes." They knew well at the time that they did not require the whole of the land for public purposes. Mr. Brewer knew it. He, at any rate, appears never to have contemplated the taking of the whole of the land for public purposes, and it appears that months before it was contemplated to take the whole of the land Major Cautley had marked out the area that was actually required, and it was not suggested, as Mr. Brewer admits, at any time (except some rumours at an earlier stage of the proceedings) to take a greater area than that which Major Cautley had marked out. Major Cautley marked out a little over three-quarters of an acre, so that the Government knew they only required about three-quarters of an acre for defence purposes, and as a matter of fact they did only require that quantity of land. Therefore, I submit, in taking a greater area than they required, and notoriously and knowingly required, they committed an illegal act and their page 14 whole action was ultra vires. I submit that the Governor could not take more land than he was given power to take by the Statutes. The Government knew that they required only three-quarters of an acre; therefore they cannot suggest, for a moment, that they took more because they thought they might require more, it is notorious that according to the arrangement entered into they admit they knew that they only required three-quarters of an acre, and therefore, in attempting to take more they exercised a power which they did not possess, and in law their act has resulted in nothing. I ask the Commission to pay attention to this matter and to consider it, because questions of law and fact are to be equally considered by the Commission. I ask them to consider whether as a matter of law the Government did not act ultra vires and whether the state of things set forth in the proclamations really existed; also, whether they did not under the Special Powers and Contracts Act of 1886 get Parliament to grant a certificate of title under certain conditions which did not exist. I submit that the three and a-half acres of land were never taken by the Government because they deliberately and knowingly attempted to take and proclaimed more land than they required, and that that land which they did not require therefore in law belongs still to the Trust Board. Now, as to the manner in which this transaction has been carried out. The proceedings I submit, all shew that there has been a deliberate concealment of the real position of matters by Mr. Brewer, not only from the trustees, but also from the Government. I submit that however much we may be inclined to treat Mr. Brewer with the greatest clemency yet that when we bear in mind his telegrams and letters to the Government and his letter to the trustees, and consider at the same time the negotiations he was simultaneously carrying on with Mr. Kissling, we cannot acquit him of some desire—for what purpose he knows best himself—some intention to conceal from the Government and the trustees a number of facts which they had a right to know. Mr. Brewer says he did not act entirely on his own responsibility. He desired to be absolutely safe, and therefore he took the prudent course of despatching a telegram to the Government in order that the law officers of the Crown might advise him whether the proceeding was a right one. That reference was a most unfortunate one, because it is difficult to reconcile that telegram, read in the light of other facts, with an absolutely bona fide intention to do his duty without partiality, and faithfully and well, Mr. Brewer suggested to the Commission, when that telegram-was read, that the law officers of the Crown approved of the arrangement which he had made with Mr. Kissling, but of course the telegram does not contain anything at all which could justify such a construction, nor does Mr. Brewer's question which elicited it. It seems to me, too, to be a most artful question. First of all, having obtained from the Government permission to play a free hand—though why he should have page 15 carte blanche in this matter, and why it should have been wholly taken out of the Minister's hands, at Mr. Brewer's request, it is difficult to say—he next seeks authority from the Government to effect an arrangement. All Mr. Brewer asks in his telegram to the Defence Office, which is under date November 17, 1885, is whether the whole area of land occupied by Mr. Kissling can be taken "under the Act recently passed," meaning the Public Works Act Amendment Act, 1885. He does not ask if it can be taken for the purpose of bestowing the greater portion of it in fee simple upon Mrs. Kissling. He says if he can take the whole of the land he will be able to save the Government £500 or £750. He merely enquires whether or not he has the power to take the whole of the land, and he asks that question with the knowledge which he does not communicate in his telegram that only 3 roods and 13 perches had been entered upon by the Government, and in fact, that that area was all that was required for the fortification. But does Mr. Brewer tell the Government how he would save them the £500 or £750? He appears to have been in considerable doubt as to the legality of his proceedings, and therefore sought to fortify himself in the position he would occupy in taking the whole of the property for the purpose of handing over a portion to Mr. Kissling. He only asks half the question, however, and he would like the Commission to believe that the arrangement he made with Mr. Kissling was a legal one in the opinion of the law officers of the Crown, because of that telegram from the Defence Department. Now, Mr. Kissling's evidence is also strongly corroborative of the view that Mr. Brewer was not altogether free from doubt as to the legality of the position, but did consider it, and must have known what the provisions of the law were, although he might have thought the difficulty could be got over by Act of Parliament, because Mr. Kissling said that he and Mr. Brewer discussed the legality and propriety of the proceedings. It is true that he mixed up with the statement some comments on what took place afterwards. But there is a statement that antecedent to the time the arrangement was made they discussed the legality and propriety of the proceedings, and of course I submit that that is the obvious view every common-sense man must take. Is it Conceivable that Mr. Brewer came up here for the purpose of investigating and settling two or three hundred land claims; that he went to the Waikato for that purpose; that he came up here for the settlement of a claim which he characterised as "a very awkward claim," and in another telegram as "a very troublesome" one, and yet that in settling all these claims he was in actual ignorance of the principal profusions of the Public Works Act of 1882, as well as of the whole of the provisions of the Public Works Act Amendment Act of 1885? Mr. Brewer may say that it is so, but I prefer to remark with Horace "Credat Judatus." Now, Mr. Brewer, I submit, knew that while the Government could have taken this land, as page 16 apparently the law officers of the Crown did think at that time, yet that he must have known also of the procedure with regard to handing back the portion not required to the person or persons from whom it was taken. This proceeding was necessitated by reason of the law, which I have already quoted in the course of this enquiry, and I contend, moreover, that he was aware of the further provision declaring that in cases of persons refusing to accept the surplus land at the valuation of the Government, the property must either be offered to the adjoining owners or be put up to public auction. He must have known those provisions of the Statutes and that they were applicable in this case. It may be that he thought these sections, which require the Government to hand back an? surplus land taken for a public work under the powers given to them by the Public Works Acts, would not be applicable to the present case, because notoriously the Government knew and Mr. Brewer knew from the beginning that they took more land than they required. These sections would, perhaps, have applied, but it might have been a question if the trustees had really accepted the land back or it had been sold by public auction whether that proceeding would have been strictly legal, because the initial taking of the land was not legal seeing that the Government knew that they did not require it. They were never in the position that the Act contemplates—the position of finding in their possession more land than they required—more than the originally thought they required. These provisions were put into the Act of 1882 for the purpose of enabling the Government to get rid of land which they found they did not require and which had been taken under a misapprehension or through inadvertence and no doubt the Government would not be rigorously and too closely confined to the actual area required for their purposes. The section empowering the Government to take land for the construction of public works would no doubt be liberally construed by any Court, and therefore these provisions were put in the Act to meet cases where the Government found they had taken a greater area of land than they now found they required and to enable them to fairly and equitably dispose of the surplus and turn it into money so as not to be at a loss by reason of land which they did not require being left on their hands. But these provisions were not put in to enable the Government to take a larger area than they knew they required for the purpose of re-transferring it, or a part of it, to other persons. Such a thing, I submit, was never contemplated by the Legislature. The object was to enable the Government to re-convey land taken by inadvertence, and not to enable them to transfer lands which were knowingly and deliberately taken in excess of the area required. This view of the matter is a very reasonable one, and it may fairly be said to represent the view which Mr. Brewer, entertained at that time. "The Government does not require all this land, but only three-quarters of a acre, and therefore the provision about handing back a portion of it to the original page 17 owners does not apply" Here the Government distinctly knew at the outset that they only required three-quarters of an acre, and therefore it could not be said afterwards that they had only now found that they had taken more because they had thought they required more. Consequently, I submit Mr. Brewer's position at that time might very well be conceived in the light of that view of the case, and it would be a question of considerable doubt, even if the Government had properly exercised the powers conferred on them under those clauses of the Act, whether Mr. Kissling's case was one which could have been brought within the Statute at all. It would have been a question whether they had strictly carried out the law. I submit that in their attempted exercise of these powers, in the manner in which I have indicated, the Government have done a wrong, not only to the trustees in not offering them back the surplus land which they took from them, and of which from the first the Government intended to deprive the trustees, but that they also did a wrong to the public, who had an interest in these lands, by not allowing them the right conferred by Statute, of bidding for those lands at public auction. How do we know that at that time of inflated values for landed property these three and a-half acres of land with the house and its ornamental grounds might not have brought a higher price than Mr. Kissling was allowed to obtain it for? At that time, I say the prices of land were very much inflated, and what is known as a land "boom" was raging in Auckland. A large number of persons were speculating in land and prices were very much in excess of what they are now. Therefore, I repeat, how do we know that had the Government, in conformity with the law, submitted the surplus area to public auction it might not have brought much more than Mr. Kissling gave for it.

Therefore, I submit that an injustice was done to the public in that they were deprived of their right of bidding for the land it public auction; that a wrong was done the trustees in concealing from them the arrangement made with Mr. Kissling; that a further wrong was done the trustees in not offering them back the portion of the land which was not required. It has been said that Mr. Brewer—and he himself has sought to justify his action by setting up this plea—was entirely ignorant of both these statutes; but I would submit to the Commission that while of course that may be taken into consideration as a mitigating circumstance in the matter, yet it cannot be an excuse, or seriously intended to be an excuse for such a flagrant breach of the law as Mr. Brewer perpetrated in conjunction with Br. Kissling. Mr. Brewer must be presumed both from the position he occupied and from the experience he had had in these matters at that time to have been perfectly acquainted with the law. He says, "I was acquainted with these provisions," or at least "of the provision about handing back to the owners any surplus land which was page 18 not required, but I overlooked them, and I say now it was an oversight." Seeing, however, that Mr. Brewer had had numerous interviews with Mr. Kissling, that he had written and received many letters with regard to the matter, and that he had reported to the Government that it was a troublesome job, I ask, coupling these facts with his long experience as a land purchase officer, is it conceivable that he was as absolutely ignorant of the provisions of the law with respect to those matters as he professes to have been? Yet he tells us that he was entirely ignorant of the provisions of the Public Works Amendment Act of 1885, although that measure was passed to legalise the taking of this very land. But in his telegram to the Defence Office he suggests to the Government the very course which that Act was passed in August 1885, to sanction. And therefore I contend he must have been aware of such an Act having been passed, and consequently he must also have been aware that his action was to be based upon this special Act. If he chose to remain in absolute ignorance of its provisions while initiating an important purchase of this kind, which was the very foundation of this Act—an Act which was intended to stop legal proceedings commenced by the lessee in the Supreme Court—I say that under all these circumstances, and knowing all these facts, if he chose to remain in entire ignorance of the law he has only himself to blame, if at this day censure and not unmerited censure falls upon him. That this censure is deserved, and that it should fail upon his shoulders, must appear to any dispassionate and impartial mind. Either he was in entire ignorance of the law, as contained in the two statutes to which I have referred, and which it was his special business, to make himself master of, or a still more uncharitable inference is forced upon us. It has been suggested by my learned friend, Mr. Mahoney, that there is no evidence to justify the assumption that there was anything in the nature of a conspiracy between the parties to this transaction. Of course, "conspiracy" is a very strong word, and I did not think of using it in the course of these proceedings, but I submit that there is very strong evidence showing that a compact was made, and a compact which was illegal both in its inception and also in the manner in which it was carried out. I do not say, of course, that Mr. Kissling entered into this compact with a full knowledge of the Jaw, and that he intended to do something morally wrong. He is not a lawyer, and his action may be explained in a much better light than the action of Mr. Brewer. Mr. Brewer, from his experience, ought to have been more conversant with the laws and statutes bearing upon the matter than even a practising lawyer. I submit that he ought to be better up in these two particular statutes, which were the beginning and end of his business, than a practising lawyer. So what can be said as to knowledge of the law as far as Mr. Brewer is concerned does not perhaps apply with equal force to Mr. Kissling.

page 19

He looked after his own interest, and obtained from Mr. Brewer the most advantageous terms that it was possible for him to make. I submit, however, that it may be said to be really stretching strict business integrity too far when Mr. Kissling conceals—and I say so advisedly—from the trustees his negotiations with Mr. Brewer. Why was it that the trustees were kept in ignorance of the whole of this transaction? Mr. Brewer, of course, has said "I thought that as there were ten men on this Board of Trustees and a Secretary they were quite well enough able to take care of themselves, and my duty was to protect the interests of the Government. But I would point out that the interests of the Government even placing them on a low ground—the money one—could not be in any way prejudiced or jeopardised, because by the arrangement made with Mr. Kissling it was expressly provided that if the trustees were awarded by the Compensation Court a greater sum than £632, or if the Government had to pay a greater sum than that, it was not the Government but Mr. Kissling who had to pay the balance, thereby! shewing that it would have been in no way prejudicial to the pecuniary interests of the Government if Mr. Brewer in his letter of the 19th November to the trustees Bid stated fully, fairly, and explicitly what the actual facts wore. If he had stated "I offer you £632, that is upon the basis of £60,000, being the present value of the combined interests, and I have arranged with Mr. Kissling that he shall get back three and a half acres of the land in fee simple." That most important feature of the transaction, however, he deliberately withholds, and I submit, deliberately conceals. But what does Mr. Brewer further do for the purpose of justifying the course he took to the authorities at Wellington and of inducing the Government to consent to and ratify the arrangement he had made? He writes a letter to Mr. C. Y. O'Connor, dated 21st November, 1885, in which he makes a statement that cannot be explained away, or distorted, or made to bear any other meanly than its plain and simple signification: "Now the trustees cannot sell although they would like to." That, I submit, dearly and simply states that the trustees are willing to sell, and that therefore the trustees would be perfectly agreeable to join in the arrangement which Mr. Brewer sought to carry out with Mr Kissling. That is the natural interpretation to be put on the statement, and there is not a particle of foundation for that statement. You have heard the trustees one by one say that as far as they were concerned they were not willing to sell, and Mr. Bawer had no warrant or ground whatever for making that statement. I submit that it is a very important statement, and must have weighed with the Public Works Department and with the Minister in effectuating this arrangement, and that if they bad had any doubts as to its legality the assurance that all the parties interested were agreeable to it must have influenced them to seek special statutory power for carrying it out. The objec- page 20 tions I raise would not have so much weight or be applicable to the same extent if the whole of the parties had been consenting though there would have been much to be said even then on behalf of the cestui que trusts in condemnation of the transaction. But in joining in the arrangement the Government under the circumstances might have thought it was the only effectual mode of settling the complicated interests in the claim, and that seeing everybody was agreeable and going into the arrangement with his eyes open that perhaps no harm was likely to be done by it' although it might not be strictly within the limits of the law. Now, that statement in the letter shows that while Mr. Brewer up to that time was without any communication from the trustee! yet he seeks to impress the authorities in Wellington with the belief that the whole of the parties affected by the transaction were consenting to it and perfectly willing that it should be carried out. What are the excuses which Mr. Brewer gives for concealing the arrangement from the trustees? The first is that as the trustees comprised ten men and a secretary they were quite well enough able to look after themselves. The other is that Mr. Kissling had the greater interest in the property, and therefore was the proper person to negotiate with and with whom to effect an arrangement. But he forgets that in doing so he was going absolutely outside his duties as defined by statute, and that it was his duty to find out all the parties interested. Is it not a fact that the freeholder is of all persons the one who to be primarily regarded and who as regards his interest is to be sought out when the Government desire to take land. Naturally if the Government intend to take land under the Public Works Act they send notice of that intention to the freeholder in the first instance. They ascertain who he is by search in the proper office and send him notice, because in all cases the freeholder interest is paramount, so that that excuse is not sufficient to justify Mr. Brewer in the course he took when he assumed that the freeholders' interest was so trivial that they were not persons who ought to be consulted in the matter. And yet he writes to them or the 19th November, stating that the Government proposed to award them £632 for their interests. He does not ask them to negotiate or whether they consider that a fair price, but he uses a threat or what is practically a threat: "if you do not accept £632 the case will have to go to the Supreme Court." In the very first letter he writes to the trustees and the very first time he has any communication with them he offers £632 as a fair thing for their interests and then threatens recourse to the Court if they do not choose to accept it. This action might not have appeared so strange if it had followed some negotiations with the trustee! but in the first and only communication with them lie in effect says, "Take this, or there is an action at law for you." And naturally enough the trustees considered the offer in the light which they have explained to us in their evidence. They would say "No doubt the Government will treat us kindly." We have page 21 received this land from the Government for a special public purpose—the education of neglected and destitute children, now the same sovereign authority desires to have it back again for another public purpose, not unjustly, but after fair compensation is paid and therefore it is not our place to haggle for a higher price—to say "Oh, the price is too little" and probably thereby to wring another £10 or £20 from them. The Government require the land for a public emergency, for the country is thought to be in danger, and we shall be facilitating the operations of the Government by accepting their offer. That is the spirit by which they were animated-not a mere mercenary spirit, but a public and patriotic spirit. But had they known it was the intention of the Government not to take the land for public purposes but to take it nominally for public purposes and to re-convey to Mr. Kissling, why then, as Mr. Pierce has said he for one as a business man would have opened his mouth wider. The trustees would have said, "If you are going to give the land to private persons we shall want more money and we shall want a longer time to consider it, supposing you desire to sell it." It is absolutely untrue that any of the trustees expressed any desire to sell. On the contrary, they say that if they had known of this transaction they would absolutely have resisted it. They did not know that there was any arrangement to re-convey to Mrs. Kissling or they would undoubtedly have resisted the taking of the land because for many reasons, apart from anything mercenary, they desired to retain all these lands inviolable. Therefore they would not have sold even though they had been offered the full and adequate value of their interest in the land. At this point I shall also refer the commission to the letter of Mr. Schwartz Kissling to the trustees; I think it is dated the same day as Mr. Brewer's or the day before, I think the circumstances shew that that letter was written after the arrangement had been concluded with Mr. Brewer, and yet in it Mr. Kissling asks the trustees upon what basis they would like their interest in the land to be assessed. Of course the remarks I have applied to Mr. Brewer do not apply with nearly the same force to Mr. Kissling, but at the same time I cannot altogether acquit Mr. Kissling of some desire to drive a good bargain and to get as much from the trustees as he could by witholding information which should have been disclosed to them. That letter coupled with Mr. Brewer's was calculated to deceive the trustees. They were under the impression that the whole of the land was required for defence pur-poses. Mr. Kissling says in his letter "The Government have taken the whole of the land." He does not add "for defence purposes." Nor does he say the Government are to give back to me or my wife three and a half acres." Mr. Brewer writes simultaneously to the trustees and heads his letter "Re land taken for defence purposes at Point Resolution," and therefore as I say the trustees were deceived as to the actual facts attending the arrangement entered into at that time between Mr. Brewer and Mr. Kissling.

page 22
The whole of the proceedings seem to have been gone about with an amount of secrecy that it is difficult to reconcile with absolute good faith. Mr. Kissling says that it was common talk in the streets and at the clubs that he was going to get back part of the land. It is a very singular thing if the arrangement was so generally known and talked about that it never came to the care of the trustees, but that both they and their Secretary remained in complete ignorance of any such intention. Neither was there any mention of it in the public press although a great deal was written and published at the time about the entry of the Government on Mr. Kissling's land and the action he had taken; in the Supreme Court. If the intention had been known at that time or if there had even been a rumour abroad concerning it we all know from the zeal of the gentlemen of the press that it would have been given to the public. I say that there is no doubt whatever that if, as a matter of fact, it had even been rumoured that Mrs. Kissling was to get back this land it must have readied the newspapers or the trustees. But Mr. Kissling must only' have believed it was well-known because of the firm intention he had in his own mind to obtain the land. Rumours are generally attributable to something—some information or statement which is traceable to a source, but Mr. Kissling does not appear to have told anyone of the arrangement except his brother. Now, I ask the commission to consider whether Mr. Theophilus Kissling ought not to have disclosed the intention with regard to the land to the trustees seeing that he was one) of their number. At any rate Mr. G. S. Kissling does not appear to have disclosed to anyone but his brother that the intention was that the Government should take the land nominally for defence purposes, but, so that his wife might get back three and a half acres. I have already told the commission and shewn that the Governor was deceived in this matter by the memorial that was laid before him signed by the Minister for Public "Works, that the Minister himself was deceived, and that the authorities at Wellington were deceived, and now I submit that in passing the Special Powers and Contracts Act, 1886, the Legislature was deceived. The first column of the schedule to the Special Powers and Contracts Act of 1886 gives the reason why the Legislature empowers the District Land Registrar to issue a certificated title for this piece of land as follows:—

"The land described in the second column having inter alis been taken by Government for defence works at Point Resolution Auckland, by proclamation published in the New Zealand Gazette, No. 32 of 1885, and being in excess of the area now required for defence purposes it is desirable to sell it to Frances Catherine Kissling, wife of George Schwartz Kissling, of Auckland. The amount to be received for this portion of the land which was taken by proclamation to go in reduction of the amount which would otherwise be payable to Mrs. Kissling." That contains a statement which is absolutely false in fact. In the first place page 23 the land was never taken for defence works hut was taken for the purpose of effectuating this arrangement which was altogether outside the law; and then again it is not true that the Government now found they required for defence purposes a less quantity or area than they originally had taken. So I submit the Legislature was asked and was practically compelled on the good faith of the Government to place on the Statute Book of the colony a statement, not true in fact. The circumstances under which this Act passed into law also call for some attention and comment. You will see from the papers laid before you that this Act was passed at the close of the session—within the last day or two, I Sieve—and that absolutely no opportunity was given or adequate time for discussion or for the trustees or anyone else to raise objections or to place the real facts properly before Parliament.

Dr. Giles: There was a great deal of discussion before the Bill passed.

Mr. Napier: That was with regard to the general principle of the Bill itself, which embraced a large number of transactions, but I do not think there was a single allusion in either House to the particular schedule which validated this transaction.

Dr. Giles: I believe that is so.

Mr. Napier: As I say, it was the general principle of the measure that was discussed. It is well-known that the members passed the Bill on the good faith of the Government. There was no discussion on the details. I have a letter here from a member of the House—a gentleman who is by no means unfriendly to Mr. Kissling, in fact, I think one who exerted himself so that Mr. Kissling's interests might be adequately protected. I mean the member for Parnell. He distinctly says that the members of the House of Representatives know nothing of the arrangement that had been made with Mr. Kissling, that the Act was brought down at the last moment, and that in passing the House there was not a single enquiry about this matter, but that it passed wholly on the good faith of the Government. That is also abundantly manifest from the papers laid before the Commission. There is another matter, however, that I have not yet mentioned, and which perhaps I ought to have mentioned in an I earlier connection. I would like to ask why Mr. Brewer so Hgprly accepted the assessment by Mr. Kissling of £6000 as the value of the combined interests in the property? Now, Mr. Kissling, for the purpose of protecting Mr. Brewer and of extolling him as a most conscientious and painstaking public servant, paid in his evidence that Mr. Brewer seemed to him to be driving a very hard bargain for the Government. I ask the Commission to consider the nature of the bargain and how Mr. Brewer drove it. The first and only assessment placed before him by Mr. Kissling was that representing £6000 as the value of the joint interests. There does not appear to have been a single valuation page 24 outside of that, and it was for some time a mystery where that assessment was obtained. But now Mr. Kissling says he must have suggested it because he obtained a valuation of the whole property from a land agent, who set it down at £1250 per acre, and that as he regarded the improvements on the place as being worth £1000, he thought £6000 would be a fair price for the whole of the interests in the land. But does Mr. Brewer demur to this, or raise any question as to its being excessive or exorbitant? Not at all. He says he told Mr. Kissling he was asking too much, but for all that he accepts his very first offer, and this too without any local knowledge on his own part of the value of the land, as he himself admits—without any enquiry either, except such as he made from some intimate friend living in Conquest Place. He does not seek to ascertain what the value of the surrounding land is, and he does not seek to get the land at a less price for the Government, but at once accepts the amount of £6000 proposed by Mr. Kissling as the price to be paid. And now we find that actually even his counsel, Mr. Mahony—who, although he appears for Mr. Kissling, has devoted a considerable portion of his speech to justifying and almost eulogising Mr. Brewer's conduct—admits the valuation of £6000 to be a very high one, and one which to some extend must be taken as a prospective value. And he suggests that £6000 was not in fact, as the whole of the evidence states it was, the then present value of the land but the prospective value, because the price was unduly high. So that Mr. Brewer is in this position: He accepts as the price to be paid for the land as amount that is manifestly excessive according even to the; evidence as to values prevailing at the time, and he accepts that amount without question and without demur, and then effectuates this arrangement with Mr. Kissling whereby Mr. Kissling not only gets the freehold interest of the land but also; a large amount of money. It is true that for the portion of land transferred to Mrs. Kissling the Government obtained a proportionate return in the money payment, but that does not alter the fact that the money in fact was greater than should have been paid although the Government only took three-quarters of an acre. On this point Mr. Brewer's admissions are somewhat surprising He says that he was entirely unaware of the provisions of the Public Works Act Amendment Act of 1885 and especially with regard to sec. 6, which provides the manner in which compensation for land taken is to be determined. Now, of course, there may be some difference of opinion as to what is the true meaning of that section, what the Legislature intended it to mean, but it seems to me that it cannot be narrowed down to the insignificant proportions to which Mr. Kissling's counsel would narrow it down Its words are very comprehensive, "Compensation for the land taken or required to be kept free from obstruction shall be settled by a Compensation Court in the manner provided by Part III of the said Act; but no person shall have any claim to compensation page 25 by reason of the firing of artillery from any fortification or the use or working thereof or otherwise under this Act, except for land actually taken or required to be kept free from obstruction under the powers of this Act; but nothing in this Section shall be deemed to prevent any person suffering any damage to the materials of any house or building from pursuing any other remedy he may have at law." I submit that the obvious interpretation of that. Section is that a person would not have compensation at all by reason of the proximity of a fortification on land adjacent to his own but that he should only get compensation for the land actually taken and the additional land which must be kept free from obstruction in order to enable the fortification to be properly worked and the guns to be fired. It seems to me that that is the plain meaning of the section. And what is more, Mr. Brewer himself, on the premise that he was entirely unacquainted with that section—that he had not seen that section until he came into this room, admits that if he had seen it, the value of the land actually taken—that is for the combined freeholders' and leaseholder's interests would have been about half the amount at which it was assessed. Therefore, even if we look at the transaction from a money point of view, the Government sustained a loss by Mr. Brewer's ignorance of the provisions of an Act which was specially passed to enable him to obtain this land for public purposes. Why, however, did Mr. Brewer accept this large assessment, and that too without any question, and without seeking to obtain any outside opinions as to what would be a reasonable sum to pay. I do not attempt to submit any reasons to the Commission. It will suffice for me to say that if we are to entirely acquit Mr. Brewer of bad faith then we are driven to the conclusion that he displayed an amount of ignorance from the beginning; to the end of this transaction, which shews that he was not a competent officer to entrust with duties of this kind and an amount of ignorance to which cannot be excused for one moment. It has been said that Mr. Brewer is not the person to blame, but that it is the Government and the Department who are to blame. That is always the refuge and the cry of every officer in the public service who is discovered to have done something that he ought not to have done. In such cases he immediately blames the Department—a mere impersonal thing, and so he seeks to escape the consequences of his wrongdoing. A subterfuge of that kind however will not avail. Mr. Brewer was paid to act in the best interests of the Government and to carry out according to law the commission entrusted to him, and if a wrong has been done, then it is Mr. Brewer who is to blame and not the Government, for if they approved or adopted all his acts they did so in ignorance of the true facts. Of course it is always an unpleasant duty to have to censure persons who have carried out arrangements of this kind, even if a wrong has been discovered. You will remember that in England some time ago a Select Committee was appointed to investigate the conduct page 26 of certain officers connected with Her Majesty's service who had accepted from the contractors supplies of rotten bayonets, and that when called upon for an explanation the whole of these officers endeavoured to show that it was the Department that was to blame in allowing the bayonets to pass. They accepted none of the responsibility for themselves, but sought to cast the whole of it upon the Department and the system. They had allowed the orders for the worthless weapons to go on, and the Government was kept in ignorance because of an absurd departmental system. But, of course, no such excuse as that preferred by these officers would avail with any tribunal that desired to do its duty, and as a matter of fact it did not avail in that case, and will not, I hope, in this case either. While the Commission ought to point out that whatever were the reasons which actuated the authorities in causing this special Act to be passed it was entirely outside the law—that is to say, the arrangement effectuated by the Special Powers and Contracts Act of 1886—yet, the primary duty of the Commission is not to censure j Mr. Brewer, but to consider whether a wrong has not been done—whether or not this transaction which from its inception to its completion has been tainted with falsehood and illegality ought to be upheld—whether the Legislature should not be approached and asked to undo the wrong which has been done, for things of this kind set a bad example, and from their inherent injustice ought not under any circumstances to be allowed to stand. Therefore ask the Commission, in view of the manifest illegality of the whole proceedings, to recommend that they shall be annulled and that the parties shall revert to the positions they respectively held before the transaction was entered into. I submit that if! transactions of the nature of this one, which is absolutely illegal throughout, and as I say, founded on falsehood, are upheld, then none of our laws can be properly respected. There would be no safety in the law and no certainty that an Act passed by the Legislature avowedly for a certain purpose might not be wrested from that purpose for the compassing of illegal schemes and private ends. If it has been possible to deceive the Governor the Public Works Department, the Government, and the Legislature in this instance, to get proclamations issued on a presume! set of facts, which turned out not to exist, and to cause certain action to be taken on the strength of those representations, then I say it is the duty of this Commission to say that such a transaction ought to be nullified and undone. If it is allowed to stand, then I submit that no man's property in New Zealand is safe, but that he may be deprived of it at any time provided he gets its present value. He may be absolutely deprived of the great prospective value of his land and all the other advantages which the possession of land bestows upon the possessor, not for public reasons, but merely to enrich a favoured friend of the Government and that too, without any redress.

Therefore, I submit that the whole of these proceedings ought page 27 to be annulled on account of their illegality, and the parties placed in the position they occupied before the arrangement between Mr. Brewer and Mr. Kissling was entered into. I urge this on all the grounds I have mentioned, and especially on the: ground that no opportunity was afforded the parties for whom I primarily appear to place the Legislature in possession of the facts, or to make objections to the Bill which was brought before the House in 1886 to effectuate this transaction. And I will add that if that opportunity had been given, the Board of Trustees would not only have objected, but would have strenuously resisted the very great wrong which has been accomplished by this arrangement, a wrong happily unprecedented in the past history of this colony, and to which I trust future years will afford no parallel.

decorative feature

page break

Printed by Wm. McCullough, Hook and General Printer, High Street, Auckland.

* Specially reported by Mr. J. M. Geddis, "New Zealand Hansard" Staff.