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The Pamphlet Collection of Sir Robert Stout: Volume 73



I have seen Sir Robert Stout's memorandum of the 18th May last, also the report of the Select Committee, and the evidence upon which it is based. Whilst entirely exonerating Judge Fenton, the report adds: "Several serious charges have been made against Dr. Buller in the course of the inquiry, as to which, that gentleman being absent and unrepresented, the Committee offer no opinion." After careful perusal of all the papers I find that these "charges" resolve themselves into three. I shall take them in the order in which they arise.

1. The first and most offensive of these is a direct accusation of falsehood brought by Mr. Fenton himself. I quote from the printed evidence (page 3):—

"Mr. Bell: Go on to Dr. Buller's telegram of the 26th July, which is as follows: 'Wellington, 24th July, 1880.—Re Owhaoko. Please inform me by telegram of the names of the applicants for rehearing. The case has been adjourned sine die, and Mr. Fenton has advised Studholme to make terms with a view to withdrawal.—W. L. Buller.—A. J. Dickey, Esq., Native Land Court Auckland.' I call your attention to the last words—that is, 'Mr. Fenton' to the end. I ask you what you say to that?

"Mr. Fenton: I say this: that this is almost the only point—I will not say altogether, but it is the feature in this paper which I have a distinct recollection of. I remember it for this reason: that I saw this telegram months afterwards, in Auckland, when looking over the files for some other purpose, and I was very much annoyed at this—not so much that I should have minded making a suggestion to Mr. Stud-holme or any one else if I could fix up a quarrel; but because in this case I had not done so, and I thought it was an impertinence on the part of Dr. Buller, and I think so still."

"Sir R. Stout (page 5): I do not wish to jump at conclusions, as Mr. Fenton may have excuses to offer to my satisfaction. For instance, he says to-day Dr. Buller's statement in the telegram to Mr. Dickey is untrue. I assumed in my memorandum that what Dr. Buller said was true; but Mr. Fenton says it is not true. I have no prejudice or bias in the matter, and if Mr. Fenton can explain other things in the same way I shall be the first to acknowledge it. He says Dr. Buller stated what was untrue, and I shall believe him, and shall assume that Dr. Buller has wired to the Clerk of the Native Land Court an untruth."

The accusation here is clear and distinct; and Mr. Bell, in his address to the Committee, as Mr. Fenton's counsel (page 74), thus [unclear: apo] getically refers to what bad occurred: "[unclear: T] writer of the memorandum knew that Dr. Buller was absent from the colony; and the comment upon this telegram drove us into what has been a very unpleasant position—the contradiction of statements made by an absent man, who is not here to meet that contradiction."

The above evidence was given by Mr. Fenton on the 1st July. Seven days later—being still in attendance before the Committee—he [unclear: wro] (on the 8th July) a remarkable letter to Mr. Studholme (then in London), which is now is my possession. In this letter he says, "My object in writing to you is simply this: Don't you or Buller write or say anything to any body at present. I am doing the best I can for all of us, and you or B. might take a line which would destroy everything, and be extremely disastrous. You know Buller's impetuosity, and how he might be writing something which would put all the fat in the fire Pray see him at once, and tell him to write nothing. I can see what is best much better than you or he can, away from the place. So pray take some trouble in insisting that nothing shall be said or written by either of you. Conflict would be destruction. I think there is a disposition to protect the European interests. Stout, however, is mad on the subject of the Natives. You will understand, I hope, the importance of silence, at present, on the part of yourself and Buller."

Now, what does all this mean? I confess I cannot see that the silence so strictly enjoined was of "importance" to any one but Mr. Fenton himself. If the Committee had adopted Sir Robert Stout's suggestion to cable to me, "Is statement of 26th July true?" they would have received an immediate rejoinder in the affirmative, and there would then have been introduced into the evidence the "conflict" which Mr. Fenton so strongly deprecates. As it was, however, his evidence stood uncontradicted. He was exonerated, and the stigma of an alleged falsehood left upon me. Sir Robert Stout (page 8) says, "It was on the assumption that Dr. Buller's telegram was correct that I made that comment"; and Mr. Bell replies, "Yes, I suppose that is so—I accept that," being apparently only too ready to save his client at my expense.

Whilst vindicating me from the imputation of unprofessional conduct, as Mr. Fenton was of course bound to do, he formulates himself an odious charge never even suggested in Sir Robert Stout's memorandum; and this is what he calls "doing the best I can for all of us."

I would have been prepared at any time to give a circumstantial account of the whole matter, so far as I was concerned, and I am utterly at a loss to understand Mr. Fenton's dread of my "writing something that would put all the fat in the fire."

After receiving Mr. Fenton's printed evidence I appealed to Mr. Studholme for a verification of my telegram of the 26th July, 1880. I append my letter and his reply. It is perhaps only natural that, in the face of Mr. Fenton's page 19 emphatic denial, Mr. Studholme should, after a lapse of six years, hesitate about being "quite positive." But when Sir Robert Stout's memorandum arrived in London, some three months ago, I read it over with Mr. Studholme, and [unclear: he] not then take any exception to the accuracy of my statement in the telegram,

My own recollection of the matter is quite district; and had not such a communication been made to me by Mr. Studholme it would have been quite impossible for me to send the telegram in question. This I did in perfect good-faith, giving it as a reason why Mr. Dickey should supply the information asked for. Had I thought the statement untrue, this is about the last thing I should have done, knowing, as I did, that my telegram would sooner or later come under Mr. Fenton's eye. It seems to me the more likely that such advice was given by Mr. Fenton to Mr. Studholme, because he says himself there was no impropriety in his doing so His counsel, Mr. Bell, states it thus (page 54: "Mr. Fenton positively denies that he did give the advice which he is stated to have given by Dr. Buller's telegram of the 26th July, 1880, though he says frankly that he sees nothing improper in the course which is attributed to him by Dr. Buller, and that he should not consider it improper to advise litigants in his Court to see if they could not make terms among themselves."

Coupled with the suggestion as to making terms, there was (as I was informed) the assurance of Mr. Fenton—without which I would never have put my client to the cost of a special trip to Taupo—that, if the "signatures" proved be in the handwriting of one and the same person, he would recognise the same authority for withdrawal. Mr. Studholme does remember Mr. Fenton telling him this. There must, therefore, have been a conference or meeting between these gentlemen, although Mr. Fenton appears to have quite forgotten it, and now denies it altogether.

Mr. Fenton says (page 3) that he did not see my telegram for several months, and that when he did he was "very much annoyed." But he admits having left it on the official file without noting any contradiction or making any remark upon it. This is somewhat remarkable, because Mr. Fenton states that it was his invariable habit to minute every telegram and paper which came before him in his executive capacity. It is more remarkable still that, although I was in frequent communication with him for five years afterwards and on terms of friendship up to the time of my leaving the colony, he never memtioned the subject to me, or hinted in the remotest way that he believed me guilty of this deception.

Even Sir Robert Stout, in his second memorandum, commenting on the evidence (page 820, says, "Mr. Fenton saw that telegram on a file of the Native Land Court, and, though be considered the telegram impertinent, he took no means to do as Mr. Stewart suggested, to minute it as untrue, nor to complain to Dr. Bailer of his conduct in sending a telegram to the Clerk of the Native Land Court that was incorrect."

It may be objected that I ought not in this statement to have made use of Mr. Fenton's letter of the 8th July. It was sent to me by Mr. Studholme without any restriction, and it is not marked "Private"; but, even if it had been, I think I should have felt justified in using it in order to repel an accusation of falsehood.

2. The next charge is one made by a Native witness, Hiraka Te Rango, who, however, frankly admits that it is mere hearsay. He states that I induced the applicants to withdraw by paying a sum of £50 to Topia Turoa, and sums of £5 each to others. He honestly adds that I denied to him at the time having paid any money. In reference to this, I think it is only necessary to say that I did not pay, or promise to pay, a single shilling to any of the Natives who signed the withdrawal.

3. The third charge is one rather of implication than direct accusation in Sir Robert Stout's memorandum of the 18th May, 1886. He says (at page 14), "The impropriety of a solicitor or counsel accepting a retainer from both sides I need not point out." And again (at page 20), "I may further remark that, if the Native Land Court assumed that Dr. Buller was acting for Topia Turoa and Hohepa Tamamutu, then they knew a barrister or solicitor was appearing for what was practically both plaintiff and de fendant. I do not know whether this practice, condemned in all Courts in all civilised countries, has been usual in the Native Land Court. Further, it is plain that Dr. Buller was the Messrs. Studholme's solicitor as well."

The effect, as against myself, of these wholly unmerited remarks is thus epitomized in one of the local papers: "Thrice happy Dr. Buller, to be trebly retained and three times paid."

Although this memorandum impugned by implication my professional honour, Sir Robert Stout had not the courtesy to send me a copy. The Hon. Mr. Mantell kindly did so, with the characteristic note, "Fair-play requires that you should see this quamprimum."

Now, stated shortly, the facts were these:—
(1.)As Sir Robert Stout and every one else concerned appeared to have assumed, I had been for several years acting as Renata Kawepo's solicitor. The negotiation of the Owhaoko lease, however, and the completion of Mr. Studholme's title, were long prior to my being retained by Renata, and were matters in which I was in no way concerned.
(2.)At the time of the events forming the subject of Sir Robert Stout's comments, I was also Topia Turoa's solicitor, having some time previously received from him at Murimotu, a handsome retainer in money, together with the tribal club "Tumore," which is still in my possession.
(3.)So far as I am aware, Renata and Topia had not been, up to that time, in any way opposed to each other.
(4.)When the notice of rehearing appeared, Mr. John Studholme came to my office and instructed me to protect his interests as Renata's lessee; and I agreed to do my best to assist page 20 him, without making any stipulation as to costs or who should pay them.
(5.)After obtaining exact information as to what Natives were associated with Topia in the application, I proceeded to Napier to confer with Renata. It appeared to me that Topia was being made the "catspaw" of the Patea people, for I could not see what possible interest he or his tribe could set up in Owhaoko. Adopting my view of the case, Renata wrote a letter to Topia Turoa, in which he appealed to their long friendship and to their common interests, and urged him not to play into the hands of the enemy, but to withdraw the application for rehearing.
(6.)Armed with this letter I went to Taupo. Immediately on its perusal Topia agreed to with-draw. He said he had been led unwittingly into making the application, but that he was now determined to make common cause with Renata Kawepo. Hohepa was then sent for, and, on this being explained to him by Topia, he entirely concurred, and joined him in signing the withdrawal. He said that the other names had been put to the paper by himself, and he would now sign them again; and this was accordingly done. Mr. R. T. Warren, who has some knowledge of Maori, was present throughout the whole of the interview.
(7.)My costs in this matter were paid by Mr. Studholme, with the knowledge and consent of Renata and Topia, who paid me nothing.

Now as to what afterwards took place in Court.

Both Sir Robert Stout and Mr. Bell appear to have agreed that on this point Mr. Fenton was in a fog, Mr. Bell remarking, "I confess it seems to me a perfect muddle, and I did not understand Mr. Fenton's evidence on this point." Both Mr. Fenton's recollection and his notes are at fault as to the retainer having been handed in by me on the second day. The newspaper report is right. The retainer by Topia and Hohepa was produced on the first day of sitting, which took place in the old Council Chamber. The next day's sitting was held in the Supreme Courthouse, and it would appear that Mr. Fenton did not make a note of the retainer till then.

Mr. Bell seems to have had a clearer comprehension of what took place than either Sir R. Stout or Mr. Fenton. He says, in his address, "What did happen was this—and any one can see that this is the fact: Dr. Buller appeared for Topia and Hohepa, and put in an application for withdrawal; then, the next day, he appeared for Renata, and asked the Court to affirm the original order." That is exactly what did occur. But, even on Sir Robert Stout's assumption that I was appearing at one and the same time for Renata and Topia, Mr. Fenton, on being asked whether he would have allowed it, said (page 49), "I should in this case, because I do not think they were diverse claimants after Hohepa had withdrawn his claim. I did not think they were on opposite sides."

W. L. Buller.

52, Stanhope Gardens, London,