The Pamphlet Collection of Sir Robert Stout: Volume 72
It may be assumed that the decision of the Cabinet to remove me from the Boll of Justices and cancel my License as Native Interpreter rests upon:—
1. The ground that I permitted Meringa to sign form E knowing it to contain a false statement.
2. That I did so with the full intent and desire to defraud the native and that the native was defrauded by my action.
It is of course impossible to imagine that the Government should desire to deprive me of my status as a Justice and Interpreter for a mere oversight nor for an imprudence on my part which had no effect whatever in injuring the native concerned. The admitted facts are that Meringa's son received £5 (on account of the sale at £40 by Meringa) with her knowledge and consent, that £15 was paid to Meringa personally at the time of signing the transfer and declaration and that with her knowledge and consent £20 was paid to Humphries, her agent, duly authorised to receive the same.
It is contended that the declaration should have deliberately omitted all reference to the £20 not received by Meringa or her son personally; and the charge against me is that I did not omit this other sum of £20, but included it in the amount declared to as received.page 8
I will now address myself to the first of the above paragraphs, To sustain this ground it must of course appear beyond the shadow of a doubt (a) that the declaration as sworn was false and (b) that I knew and believed it to be false and untruthful.
a. I respectfully submit that the declaration was not false but a literal fact. Had it contained a statement that £20 originally had been received by Meringa it would have been an obvious and undeniable perjury. The paragraph 4 in the declaration as to payment is intended to cover, and I venture with the utmost confidence to say will be admitted by any competent legal draftsman that these words as intended to cover, all payments made by the buyer to the seller or his or her agent. It is suggested that it does not, and that the intent and meaning of the words is to cover only payments made to the seller personally. Before going further I will draw attention to the curious inconsistency in the charge against me which passes over as properly included in the declaration the payment of £5 made to Meringa's son (which was not of course personally paid to her) and which in the same breath treats as improper the payment made in a precisely similar way to a duly authorised agent. What ground of distinction there is in matter of enormity between including the one payment and not including the other it passes my comprehension to imagine. Perhaps it can be explained. But I pass on. I will proceed to show that it is preposterous to contend that the paragraph is not devised to cover payments to an agent duly authorised. I will put a hypothetical case. A native sells a piece of land at £100 through an agent, who receives a deposit of £25 on account. Such sales have already been decided by the Supreme Court in more than one case to be binding and are known I believe to the legal profession to be perfectly regular and proper. The native sells as I have said at £100; the agent receives £25 deposit. The balance of £75 is paid to the native direct. Is it or is it not perjury for a native, or for that matter for a European, to make a declaration that he has only received £75 of the purchase money? Is the £25 paid to the agent to be included in the declaration or not? That is the whole question. I submit with the greatest respect that it would be wilful perjury to make such declaration, and clear subornation of perjury for any person to procure and induce a native or other seller to make the same. If it would be perjury for a native to make a declaration, which did not take into account this payment to the agent, how can it be suggested that it is perjury to make a declaration which does take such payment into account, That is really all that Meringa's declaration did. £20 had been (prior to and at the time of Meringa's declaration) paid to her: £20 had been paid to her agent. Why then was it false to state that she had received £40? Would it have been anything but a quibble to declare that she had not? Let me for a moment state the question from a different aspect. Supposing Meringa had sued the pur- page 9 chaser for the purchase money, £40, swearing she had received only £20, could it be contended for a moment that a Court of Justice would have permitted her to escape the penalty of perjury in so swearing, knowing as she did that her duly authorised agent had received £20 more on her behalf. Or even if she escaped prosecution, could it be seriously argued that the purchaser would not have a complete defence in the payment made by him to the agent of the balance of £20 due on account of the sale.
The reasoning above given indicates what is really the true object of the declaration known as Form E. It is to ascertain—though it is only one way of ascertaining—what money has been paid to the native vendor, or on his account, by the purchaser. I would draw Ministers' attention to the fact that none of the Frauds Prevention Acts contain any reference to or provide for payment to the native personally; nor do the Frauds Prevention Regulations; nor does the Declaration Form E. Why should they? There are many ways in which value may be given other than by paying in gold to the vendor himself what is due: and the Legislature anticipated this. What would have been easier than for the Acts to have stated specially that payment must be made to the vendor personally. A few words would have done it. But one may search the whole of the Legislation and every Rule made on the subject through, and find no syllable shewing this necessity. Section 6 of "The Native Lands Frauds Prevention Act, 1881," says "the Trust Commissioner shall satisfy himself that the consideration purporting to be paid or given has been paid or given." Section 4 of "The Native Lands Frauds Prevention Act, 1888," says that "the Trust Commissioner must be satisfied that the consideration purporting to be paid or given has been paid or given." Section 5 of "The Native Lands Frauds Prevention Amendment Act, 1889," says "He shall satisfy himself that the consideration purporting to be paid or given has been paid or given." The Rules of 1888 and 1890 are silent on the point. Where is there then any suggestion, much less a specific provision, that a payment to a Maori must be a personal one; and that, what every person of common sense would treat as a payment, and what is all over the world known as a payment to the principal, is not to be so treated in native matters. But quite apart from any reasoning, what is the actual practice of Trust Commissioners on the point? Do these officers, who are of course specially qualified judges in such matters—do they treat payment to an agent as not being payment to a principal? I ask Ministers to ascertain this point of practice at once: and I affirm with great confidence that it will be found on enquiry that many of these officers, of long experience and high standing, do not hesitate to accept the agent's receipt as a receipt of a principal in such cases; and that transactions are frequently passed by Trust Commissioners where the only payment proved is payment to the authorised agent. If I am correct in stating this, I may fairly sum up thus what page 10 my contention is under this head, viz.: That the law recognises and approves payment to the agent as payment to the principal, and that the officers specially appointed to construe and act upon this law do so understand it.
b. If the above argument is sound, it of course follows that the charge against me is disposed of. But even assuming that the law as it stands does provide that payment shall not be deemed payment Unless made to a Native personally, can it be reasonably contended that the Statutes or the forms are clearly against me? I submit that no impartial and competent person can be of this opinion. There again one must refer to specialists; and, in common fair play, I have a right to ask that their opinion shall be asked, Will Ministers do me the justice to ask the opinion of the law officers of the Crown upon this point, or the opinion of any leading barrister in the colony? I am quite confident of the result. Any leading counsel, I am convinced, will advise that neither the Acts, nor the forms, nor the rules, in clear terms prohibit or discountenance payment to an agent; and that if the prohibition is there at all, it is certainly veiled and ambiguous. Is it then fair and reasonable to treat the declaration as false, and false to my knowledge?
2. How it can be urged that I had any desire to defraud or injure anyone I cannot imagine. If I had been a person entirely unacquainted with the proceedings of the Trust Commissioners Courts, and especially of the Court presided over by Mr. Trust Commissioner Stuart, it is conceivable that I might have plotted a piece of abominable deceit in this fashion; but I am no neophyte in native matters, and I have some knowledge of the routine of Mr. Trust Commissioner Stuart's Court. I was fully aware that in most cases Mr. Stuart insisted upon witnesses attendance by the Native in Court. I was aware that he desired as a rule summonses to be issued to Natives to compel attendance. I was therefore perfectly well aware that there would be ample opportunity for the Native to attend, and contradict the gross untruth which, in the view of Ministers, I had been a party to. I knew also that Trust Commissioners generally do not rely exclusively upon these declarations, and that Mr. Stuart invariably insists upon corroborative evidence as to payment of purchase money. I was also aware that under Rules 4 and 5 of the Native Land Frauds Prevention Rules of January 23, 1890, though form E may be used as evidence, it is specially provided that the Trust Commissioner may call other evidence to support or contradict the declaration itself. It is of course obvious that this could be no excuse for the deliberate manufacture of a false statement in the declaration. Nothing could excuse that; but, in considering whether I had the matured design of manufacturing such a falsehood in order to mislead, it is only fair to consider whether I, or any other sane person, could have, or be supposed to imagine that there was, any reasonable prospect of accomplish. page 11 ing that object. With this knowledge of procedure before me, what a perfectly idle, futile, and I might add, childish, effort should I have been making in procuring the false declaration imputed to me. This brings me to the second portion of paragraph 2-namely the allegation that as a matter of fact the Native was defrauded or injured in some way, or the Trust Commissioner misled by the misstatement, if any contained in paragraph 4 of the declaration. As I of course knew must be the case, at the hearing at the Trust Commissioner's Court Mr. Stuart carried out his duty in all respects with his quite usual caution. Meringa was summoned to appear. Her son was in attendance on more than one occasion. Evidence of payment was asked, and given on oath by Mr. Humphries, clearly showing precisely how payment had been made and when. The Trust Commissioner was perfectly satisfied with that evidence, and none the less satisfied because the payment was proved as having been made to the agent in part. How, in the face of these facts, can it be suggested that the misstatement in the declaration, if it was one, was in any way material or that anyone was misled by it? I ask Ministers whether Mr. Stuart has reported, or can report, that he took paragraph 4 of the declaration, as signed, to be directly in conflict and inconsistent with the oral evidence taken by him on his enquiry. It would be impossible for him to do so. Let us see what were the two sets of facts—the one from written, the other from oral testimony, which were before him. The declaration states that £40 was paid Meringa. Mr. Humphries' evidence shows that £5 was paid to her son, £15 to Meringa on execution of the deed, and that the balance was held by her agent, Mr. Humphries, all with her knowledge and consent. Again I say where is the conflict, where is the inconsistency; or how can it be argued that the Commissioner was misled?
Here it is necessary to state, what is possibly not known to Ministers, that the case of Meringa v. Humphries not only did not arise out of the alleged misstatement in the declaration, but on the contrary actually proved by the verdict of the jury the propriety and correctness of the declaration. The jury found in substance—1. That Mr. Humphries was Meringa's agent; (2) that she received the £40, and (3) that she perfectly understood and approved of every step in the transaction from the beginning to the end, except, and this does not concern me in anyway, the overcharge found by the jury to have been made by Mr. Humphries for commission.
Now I here ask for a clear answer to a very simple question. Surely I have a right to an answer. What was the amount of money Meringa was cheated out of by my action? Is it true, or is it not true, that Meringa did not lose a sixpence thereby? The answer is inevitable, and must be in my favour.page 12
|The declaration was not false but a bona fide and truthful statement of actual facts.
|Those facts were known fully to the J. P. taking the declaration, to the vendor, the purchaser, and the vendor's agent.
|The facts were fully known to the Trust Commissioner and the transaction was passed with that knowledge.
|They were before a judge and jury at the trial of Meringa v, Humphries in December, 1893.
|Upon those facts the jury found that the statement in the declaration was true.
|Meringa was not at the loss of a farthing in consequence of my action.
I ought to add that I am placed at a great disadvantage in defending myself through not having been supplied with a copy of the official report containing the charge against me. It has been the invariable rule to supply accused persons with a copy of such charges, a rule I should say which obtains wherever the English spirit of fair play exists; and without which a person in my position, whom you propose to peremptorily degrade and dishonor, has no real opportunity of being heard.
I have to formally request you to supply me with a copy of any official report containing the charges against me.
Charles Brown.New Plymouth,
21st May, 1894.The Under Secretary, Department of Justice, Wellington.