Untitled

Lyttelton Times, Volume IV, Issue 205, 18 October 1854, Page 4

P.S. It may be convenient that I should refer your Grace to a printed statement relating to the matters to which I have referred, contained in a letter published in January last, addressed to roe by Mr. Selfe, a member of the Association. I take have, therefore, to enclose a copy of the pamphlet, and to repeat my conviction of the accuracy of the statements it contains. The facts relating to the appropriation of the Miscellaneous and Ecclesiastical Reserves, to the Association as Trustees, appear at pp. 30—33 of the pamphlet. At pp. 35—37 will be found a clear account of the mortgage of the Miscellaneous Reserves to the Ecclesiastical Trustees, and at pp. 80, 81, is a schedule of a portion of the Reserves so mortgaged.

And if the General Assembly be still, as we fear it is, deprived of the powers which the constitution act purported to give it, I ask your Grace at least to remedy the evil which in the present case results from this delaj', by instructing the Governor of New Zealand, that the Crown lays no claim to the lands in question, and will lend no assistance directly or indirectly to the contemplated act of spoliation. I have the honor to be, &c. Lyttelton.

T say —so far as lies in the Crown—for, i may observe in conclusion, that the matter affords additional ground for regret, that the period during which the temporary and pinvisional power of regulating the sale and disposal of waste lands in Few Zealand has been delegated by Her Majesty to the Governor, should be indefinitely prolonged. Sir G. Grey is prompt to assert that applications made to the Crown by settlers at Canterbury, to purchase lands which the Crown lias already sold, are made "under a right conferred on them by act of Parliament." His Excellency omits to notice, that by act of Paiiament, the tight to entertain such applications was conferred upon the General Assembly of the Colony. We should have been entirely content had this question been left to the decision of that body. For I may be allowed to express my conviction that if the control of the waste lands of New Zealand, had nut hitherto been withheld from those in whose hands the "eneruus confidence of the Crown and of the Legislature of Great Britain intended it should ba placed, any serious expression of so mischievous a doubt as that to which

the Governor has given countenance, would have been promptly met by a renunciation on the part of the General Assembly, or of the Provincial Council as its delegate, of any right nn their part to sell again what had once been paid for, or to deprive the public of the substantial benefits arising from that prior sale.

But without waiting for that opinion, I may suggest, that as the establishment of this socalled possible " right of the public"—in contravention of the real rights of the public, of which the Association is trustee, would "be, in truth, but a monopoly by a few individuals of valuable property, iv derogation as much of public interests as of the legal rights .of the Canterbury Association, for which the latter have paid to the Crown a valuable consideration, the Government of New Zealand, whether as representing the Crown or the public, should at least be directed to take no steps whatever to assist such an attempt to turn expenditure for general public objects into means of private gain. I may, indeed, go further. If the .vague doubts thrown out respecting a title to this property were well founded, instead of baseless, it would indeed be an illustration of the maxim— summumjus summa injuria. I believe I might in that case confidently appeal to the justice of Her Majesty's Government, looking to the facts I have enumerated, viz.: Ist. That the Crown has received pay men i for these lands; 2nd. That they are held in trust by us for public purposes; and 3rd. That they constitute the sole security for the Christchurob Bishopric Fund. I believe, I say, that I might confidently ask the Crown to confirm, so far as in it lies, the title of the Canterbury Association to these lands, and to renounce, on the part of the Crown, any claim whatever to them.

Besides the general points which I have hitherto dwelt upon, I must seriously complain of the Governor's prejudicing the case by an official expression of his opinion, on the receipt of a mere suggestion of a doubt from the Commissioner of Crown, Lands, unsupported by any legal authoiity, that the property in question was "probably not the property of the Association." And I must further complain of this, that whereas the doubt was suggested in July last, and the matter appears to have been referred to the Attorney-General of New Zealand early in October, no expression of the opinion of that functionary had been communicated to those most interested in the matter up to the commencement of January.

I will not stop to p lint out that even were the unknown objections to the Association's title as well-founded, us, if it .exist at all, we believe it will turn out to be frivolous, the unfortunate vesult of being compelled to <nve effect to it would he, to hand over to a few individuals for their private benefit, property held

by the Association in trust for objects of public utility, and upon which many thousand pounds of their corporate trust funds have been expended ; and that we could hardly have expected that the representative of the Crown which in 1851 received payment from the Association for the lands in question, would in 1853 be taking any steps to invalidate ihe transaction to which the Crown was so far a party. But this, at least, we have surely a right to demand, that our title, if impugned, shall be impugned by due process of law, not by the arbitrary seizure or fraudulent retention of our property. When, therefore, the Governor of New Zealand asks your Grace, " If the public have the right they claim, what steps are to be taken by the local Government," I trust he may be informed that until the suggested right of the public has been established by proper legal process, it will be unnecessai^ for the local Government to take any steps whatever,-except to direct their subordinate to give up possession to those from whem he receivef? it, of fhe property he now illegally retains, and to abstain from further aggression—-aggression which would be lawless even in a colony, if committed by a private individual, —which is not the less lawless because sanctioned by those who should be tb.3 most rigid observers of the law.

And this, my Lord Duke, is done in a British colony, which has nominally the benefit of a constitutional Government, and of courts of law. I trust your Grace will be of opinion that I do not use language too strong, when I repeat that this is an arbitrary violation of law and justice.

The Commissioner has not at the date of our last advices, Jan. 3rd, ventured to put in force the instructions of the Goverhoi1 relating to the other lands, the remaining miscellaneous reserves. But it seems by no means impossible he may attempt to seize the whole of this property whether vested in the Association, or in the Ecclesiastical Trustees* since it would appear from the Governor's despatch (Oct. sth) that his Excellency supposed the communication of the Crown Commissioner to refer to all "the funds devoted under the' Canterbury scheme to Church purposes "and his instructions to the Crown Commissioner, extend to all the lands &c. alluded to in your letter of the 15th July. There seems indeed no reason why one description of property should not be as much open as. the other to this arbitrary violation of law and right. Here was property, both real and personal, legally vested in the Association, an existing corporate body, for though the Commissioner of Crown Lands erroneously terms it the late Canterbury Association, I need not observe that the determination of their land-selling powers for the future, in no respect altered their rights of ownership in their corporate property, previously acquired. As regards the real property, there was tbis additional circumstance, that the Crown had been paid by the Association in 1851, its proportion of the purchase-money for it. The Association were in lawful and peaceable possession of this property, both real and personal. They held both, indeed, not for the benefit of members of their own body, but as trustees for the purposes for which they were incorporated. They have hitherto fulfilled their trusts to the best of their ability. They will continue to do so until legally discharged from them* Had they failed to perform their trusts, performance might have been enforced in due course of law. They allowed a servant of the local government, under a provisional agreement for tenancy entered into at his own request, "to obtain temporary possession of a portion of their land, and, with the view of facilitating public business, further allowed him gratuitously the temporary use of their personal property. In return for this, upon suggestions made without their knowledge to the Colonial Government, (the grounds of which are fcnot stated) —1. That the Association had no right to appropriate the property at all, aud 2, that the Association does not purpose to perform the trusts on which it holds it, the Governor, while referring what is stated to be " a purely legal question" for the opinion of his Attorney-Ge-neral, has thought proper, not only to anticipate the judgment of that functionary upon the ex parte case to be submitted to him, by the expression of his, the Governor's, opinion, that the lands, buildings, and articles alluded to, are " probably public property, and not the property of the Association," but also to instruct a Government office to violate the rule of law, which forbids a tenant to dispute his landlord's title, and further to take possession on behalf of the Crown of all the property now in the possession of the Association and their tenants.

Acting upon these instructions Mr. Brittnn, now Commissioner of Crown lands, refused (Dec. sth) to give up possession to the agent of the Association of the Land office, or of the property of the Association therein contained, claims on behalf of the general Government to be legally in possession of the building, and avows his intention to retain possession of it, pursuant to instructions received to that effect from the Governor-in-chief.

The following correspondence which has taken place between Lord Lyttelton and the Duke of Newcastle, on the subject of the Miscellaneous Reserves of the Canterbury Association, has been communicated to us for the information of the public. COPY OF A DESPATCH From Governor Sir George Grey to the Duke of Newcastle, sent by Mr. Frederick Peel by his Grace's direction to Lord Lyttelton (enclosing an extract from Mr. Brittan's letter to the Colonial Secretary, dated July 15,1853 ; Mr. Mathias's application to Mr. Britlan to purchase the Emigration Barracks,dated Julyll ; and Mr. Brittan's reply, dated July \4lh.) Wellington, sth Oct., 1853. My Lord Duke, —I think it right to apprise your Grace with as little delay as possible that the Commissioner of Crown Lands has? in a' letter, an extract from which, is enclosed Herein, informed me that applications are beiagrmade by the settlers at Canterbury to purchase, under a right conferred upon them by Act of Parliament, certain lands which are claimed by the Canterbury Association as Church Lands, on which they have effected a mortgage to secure j the interest and principal sum of £10,000 bor- j rowed by the xlssociation from the Chrislchurch Bishopric Fund. This question involves, lam j afraid, the fate of at least a considerable por- i tion of the Church Funds of the Canterbury Settlement, and if the public have the right they claim, I should be glad to be instructed what steps, if any, are to be taken by the Local Government to save, if possible, the funds deroted under the Canterbury scheme to church purposes. I am, &c, (Signed) ' • ..-/.: G. Geey.

Lohd Ltttelton to the Duke of. NEWCASTLE, IN ANSWEB 10 THE ABOVE. April 26, 1854. My Loed Dcke,—-I have the honor to acknowledge with thanks the receipt. from Mr. Peel of a copj'of a despatch from the Governor of New Zealand, (Oct. 5; 1853) enclosing an extract from a letter from the Commissioner of Crown Lands in the Canterbury District, loth July, 1853, with reference to applications said to be made by the Canterbury Settlers to purchase lands, which, as the Governor of New Zealand alleges, are claimed by the Association as church lands. I gladly avail myself of the opportunity afforded tome by your Grace to offer some remarks in connection with this subject. It would have been my duty to bring this lmitter before Her Majesty's Government more fully than has yet been done by the Governor of New Zealand, even if your Grace had not obligingly signified your readiness to receive the explanation which I desire to offer. By the' Canterbury Settlement Lands' Act, 13 and 14 Vie, c. 70, s. 2, the Canterbury Association had power to dispose of the lands described in the schedule to that Act, subject to certain conditions and to the terms of purchase then or at any time existing respecting the same. The first condition mentioned in the !' same section was that, with the exception of land selected by the agent of the Association for the site of the capital town, and of havbour, and • port towns, and of such lands as might be reserved by the Association for wants of public utility wider their terms of purchase, all the f lauds should be open for purchase as rural land. !"■ By the terms of purchase then existing,* No. ;-■ 30, the Association reserved to itself the right 1 of selecting and .appropriating all such lands in . the ports and harbours of the Settlement as \ _iriight be required for wharves, landing places, V jetties, or other objects of public utility and conx venience.

lii pursuance of these powers, the Association in 1850, selected and reserved certain lands, principally in the capital town of Christchurch, and the port town of Lyttelton, for wants of public utility, and laid out upon such lands n):iny thousand pounds; the sixth part of the funds received by the Association, and cimi-w-nily culied "The Miscellaneous Fund,"being a>> yotir Grace is aware properly applicable to expenditure of this kind. The lands so reserved were called " The Miscellaneous Reserves." Th.-y comprised among others, wharves, storeliir.ises, a^ejit's house, the emigration barracks in Port Lytteltoi), (which form the most iin- > mediate subject of the despatch from the Go-

vernor of New Zealand) and a building—the Land Office at Christchurch, to which I shall have to call the special attention of your Grace. In this Land Office, the valuable maps and surveys of the Association were contained, and the business connected with the sale of land was carried, on by them.

The fee simple in these Miscellaneous Reserves and the buildings thereon erected, remained in the Crown, subject to the temporary disposition over them conferred as above stated on the Association.

Under these circumstances, it occurred to the Association that if their powers of disposition over the,lands in the Canterbury district should from any cause cease, their object in reserving the lands and buildings in question for public purposes might possibly be defeated. For the 12th section of the Canterbury Settlement Lands' Act provided that in that event the lands remaining undisposed of by the Association— or, as the marginal note of the section expresses it—remaining unsold, should be at the disposal of Her Majesty in the same manner as other demesne lands of the Crown in New Zealand.

Accordingly, for the avowed purpose of permanently appropriating these Miscellaneous Reserves to the objects of public utility for which they were originally excepted from the right of purchase by private individuals, the Canterbury Association in 1851 sought for and obtained the powers given by the Act 14 and 15 Vie. c. 84, s. 8.

I pray the particular attention of your Grace to the provisions of that section. By it the Association are expressly authorised to appropriate, and by deed vest in themselves in trust for any purposes of the Act any lands previously unsold, charging to the fund, in respect of which such lands should be so appropriated, the price which an ordinary purchaser would pay for them. * And accordingly, the whole of these Miscellaneous Reserves were, in September, 1851, in strict accordance with the provisions of the Bth section above referred to, conveyed to, and they have ever since been legally vested in, the Association. The sum of £4271 17s. 4d., being the price which an ordinary purchaser would have paid for them, at the fixed price of £3 pe^ acre for rural land, and i£4B p^er acre for town landj was duly charged to the Miscellaneous Fund, in respect [of which such lands were appropriated, and the Association, as required by Act of Parliament, shortly afterwards paid to the Crown in respect of these appropriations £711 19s. 6d. one-sixth part of the said £4271 17s. 4d., the whole produce of these sales. I may add that the Association also paid to the New Zealand Company under their agreement to that effect £356, or one-twelfth of the same sum of £4271 17s. 4d. The accounts showing the whole transaction were examined in January, 1852, by the inspector appointed by the Board of Trade for that purpose,and received his distinct approval. The Association have from that time held their lands in trust for the purposes of the Act under which they were conveyed to them. Some of. the buildings, c. g., the Emigration Barracks, and the Land Office, they have continued themselves to occupy for public purposes: other portions, such as wharves, Agent's house, &c, &c , they, have let to tenants. But the rental received from the portions so let has been carried by the Association to the credit of the Miscellaneous Fund, and, like the Reserves themselves, held by the Association in trust for the purposes of that Fund. The rental now amounts to £1100 per annum: I take leave to enclose a schedule of a portion of the Miscellaneous Reserves, shewing the rental thereof in July, 1852. They are not Church Lands, and the Governor of New Zealand is mistaken in asserting that the Association " claims them as Church Lands." The letter from the Commissioner of Crown Lands, an extract from which is enclosed in the Governor's despatch, does not mention or refer to any lands "claimed as Church Lands," and the single application—not application.l! — (as stated by the Governor) made to the Commissioner of Crown Lands was to purchase the Emigration Barracks—which constitutes a portion— not of Church lands, but of these Miscellaneous Reserves. Indeed I may observe that the Association, as such, neither have nor claim to have, any Church Lands, excepting a comparatively small portion reserved under the terms of purchase as the sites

of Churches, Schools, Parsonages, and Cemeteries, and like the Miscellaneous Reserves, vei-' ted by deed in the Association in Sept. 1851, in> v trust for Ecclesiastical purposes. The bulk of/ the lands belonging to the church in the Canterbury Province, have been sold by the Association, not to them, and have been from the time of their appropriation vested in certain Ecclesiastical Trustees. On all such sales the Crown, (as in the case of the Miscellaneous Reserves above mentioned) has received one-sixth of the proceeds. But passing by this for the present, I am glad that the opportunity is afforded to me of correcting the inaccurate statement made' by the Governor of New Zealand, and at the sametime of affording to your Grace information which I regret has not been earlier laid distinctly before you. Your Grace is probably aware that in Auguit 1850, £10,000, (£9,000 of which was the proceeds of the land sales by the Association, applicable to Ecclesiastical purposes) was paid over by the Association to the Trustees of the Colonial Bishopric Fund, as the endowment for the see of Christchurch. This sum lay from August 1850 to-October 1851, comparatively unproductive in the Bank of England. The' Association finding that their outlay upon and in respect of their Miscellaneous Reserves was unavoidably exceeding and would continue to exceed their receipts applicable to such purposes,. were desirous of borrowing money upon mortgage of the property to which such over-expen-diture was giving value. Their Charter expressly gives the Association power to "sell, mortgage, charge, or otherwise dispose of their property as well real as personal, as they shall think proper." They proposed therefore to borrow this £10,000 —the Bishopric Endowment— upon the security of their Miscellaneous Reserves. Earl Grey, then Colonial Secretary, was apprised of the intended arrangement, and his consent was asked. In his reply, Earl Grey left us to do as we thought expedient. The Trustees of the Colonial Bishopric Fund (Miv Gladstone, Sir John Coleridge, and Mr. Hubbard) were applied to and the object explained to them. They disclaimed responsibility for the investment,but expressed no disapproval of the plan. A deed was accordingly executed bj-tthe^AecaaijLtioojjv. Sept. 1851, by which the Miscellaneous Reserves were mortgaged to certain Ecclesiastical Trustees to secure the £ 10,000 with 6- per cent interest. The schedule I have already referred to will show that the property in question is abuudant security for £10,000. The result is this. The Association who had the legal title to the lands in trust for the public purposes to which their Miscellaneous Fund was applicable, have for the furtherance of those purposes, ami under the express authority given by charter, mortgaged a portion of the lands to certain Ecclesiastical Trustees. They have the fullest assurance that no valid objection in law, equity, or honor, can be reasonably raised to any part of their proceedings in this matter. In this state of things, the New Zealand Constitution Act, 1852, having passed, giving power to the Canterbury Association to transfer their property and powers to the Provincial Council of the Canterbury Province, Mr. Sewell, the Deputy Chairman of the Canterbury Association proceeded to New Zealand for the purpose of arranging the terms of such transfer. One necessary condition of the transfer of "the Trust Property of the Association, to whomsoever made, will of course be the acceptance of the liabilities—e.g. the mortgage for £10,000 to the Ecclesiastical Trustees incurred in hirtherance of the ohjectsof the trust. The power of the Provincial Council to deal with this as "with many other (to them) all important interests is at present paralysed by the extraordinary delay-of the Governor, without any reason assigned, in calling- together the General Assembly, whose authority alone can legally delegate to the Provincial Council the control over the means of providing for the liabilities in question. Meanwhile however the land selling powers of the Association were determined by Secretary SirJ. Pakington in December, 1852. The unsold lauds in the Canterbury Province therefore ieverted to the Crown, and shortly after the receipt of intelligence to that effect by the Governor Sir-G; Grey, His Excellency appointed Mr. W. G. Brittan'manager of the Land and Survey Department in the Canterbury District. I come now more immediately to the subject mutter of the despatch of tbe "Governor which

your Grace has been good enough to transmit to iue, and I sincerely regret to state that the cause which his Excellency has thought proper to pursue, furnishes weighty, ground of complaint on the part both of the Canterbury Association and of the Canterbury settlers, involving, as the conduct of the Governor-in this matter seems to us to involve, an arbitrary violation^ law and justice, although professedly'dictated by regard for public rights, and accompanied by the expression of a desire "to save funds devoted to Church purposes." We are in possession of ranch fuller details of the correspondence which has taken place on tLis subject in the colony with the Colonial Government and its subordinates, than, as it would appeaiythe Governor of New Zealand has hitherto thought proper to communicate to your Grace. We will not, unless your Grace should desire it, trouble your; Grace with the whole of this correspondence which is long, but the facts are these: When intelligence arrived in the colony in June last that the land selling powers of the Association were at an end, Capt. Simeon, the Resident agent of the Association "was in complete and undisputed possession of the whole of the Miscellaneous Reserves including the Emigration Barracks at Port, and the Land Office at Christchurchj and the Maps and Surveys of the Association contained in the latter building;. Capt. S. at once resigned his office as agent of the Association, arid handed over possession of the whole of this property to Mr. Sewell. Mr. Sewell on the 6th'of July, 1853, was, as Capt. Simeon had been previously, in actual, legal and undisputed possession of the property above mentioned.

The best proof of this as regards the Land Office will be found in the fact that on the 10th of July^ a written agreement (a copy of which I enclose) was at the request of Mr. Brktan himself entered into between Mr. Sewell as agent of the Canterbury Association, and Mr. Brittan as representing the Local Government of New Zealand, by which the former agreed to let and the latter to rent, subject to the approval and confirmation of the Governor, the Land Office at Chrisichurch for one year commencing Ist July, 1853, at the rent of £ 100 payable quarterly.

Under this agreement Mr. Sewell let Mr. Brittan into possession of the land office, and at the same time gave directions to the Surveyor of the Association, Mr. Cass, who had the actual custody of the maps and surveys, to allow Mr. Brittan free access to and the use ot them for the purpose of his official business. Mr. Sewell in a letter to the Governor 27th July, states, "I have felt it my duty to do all in my power to facilitate the public business in the department of the land and survey office, now under Mr. Brittan's control, by affording that gentleman access to and the use of the land office, arid the maps and surveys belonging to the Association, and supplying him with all requisite information for the fulfilment of the duties of his office. In such provisional arrangements I shall of course be under the necessity of retaining the legal control of property which in list be held answerable for the Association's outstanding claims." „ Mr. Brittan, as representing the local Government, having been thus let into possession of these previously by the owners of it, forthwith proceeded July 15, —whether at the request of the local Government does not appear,—but certainly without communicating the fact to the .agent of the Association, whose tenant provisionally he was, to forward to the Governor of New Zealand a schedule of the furniture then in the Land office, and to state, " should his Excellency sanction the purchase of these articles, I should wish to be informed to whom payment for them is to be made," and then proceeded to state (in the letter enclosed in the Governor's despatch to your Grace)—lst That a feeling exists among a certain portion of the public "that the property of the Association is held in trust by them, for the benefit of the settlement, adding that in his opinion this is purely a legal question ; and 2ndly, That on the other hand an individual had applied to purchase the immigration .barracks, a portion of such property, for his private and personal benefit, on the ground, that it-was not held by the Association, nor by any one else for the public benefit, but is open to be 4 sold by the Crown, like any other waste and unappropriaied land. Governor Sir G. Grey, it would seem, has not communicated to your' Grace the answer which his Excellency, previously to the date of his despatch to your Grace, directed to be returned to this communication of Mr;. Brittan. i

I have the honor to enclose a copy of this reply, from which, it will appear that the Governor directed Mr. Brittan " to retain possession of all the lands, buildings, and articles alluded to in his letter of July 15th last, as being probably public property, arid not the property of the Association, until the opinion of the Attorney-General has been taken on the subject."