THE NELSON EXAMINER. Nelson, September 20, 1845.

Nelson Examiner and New Zealand Chronicle, Volume IV, Issue 185, 20 September 1845, Page 114

THE NELSON EXAMINER. Nelson, September 20, 1845.

Journal* become more necessary m men become more •qual and individualism more to be feared. It would be to underrate their importance to suppose tbat they serve only to secure liberty : they maintain civilisation. Dx Tocqukvilli. Of Democracy in America, vol. iv., p. 302.

In our paper of last week we inserted a letter from " Vindex," in which our cor-respondent-suggests doubts as to there being any foundation for the charge of a breach of faith imputed by the Directors of the New Zealand Company to Lord Stanley in the House of Commons in March last. The charge was made by Mr. Aglionby and Mr. Mangles, the former of whom, if we lightly remember, went the length of saying that he considered Lord Stanley's conduct in the matter such as would preclude him from ever transacting any business with him again. Now Mr. Aglionby and Mr. Mangles are both gentlemen, whose characters as men of honour stand as high as ever Lord Stanley's did; they also both possess considerable knowledge of business, and have had some experience in political life. We should certainly then be very much surprised if Vindex were correct in thinking that the charge made by them against Lord Stanley in the face of the British Parliament, and with the presumed concurrence of all the Directors of the New Zealand Company, is a mere mare's nest with nothing in it.

In examining the question, Vindex appears to have taken into his consideration only the agreement between Lord Stanley and the Company, and the instructions to Captain Fitzßoy on which the charge is grounded. In order, however, fully to comprehend the subject, it is necessary to go further back, and to consider the whole case of the New Zealand Company, the discussion of which with the Colonial Office led to the agreement in question.

Until November, 1840, the Colonial Office would not recognise the New Zealand Company in any shape. It denied its right to colonise, repudiated its claims to land, and affected ignorance of its very existence. On the 18th of that month, Lord John Russell then Secretary of State for the Colonies, formally recognised the Company's claims and entered into an agreement with it, by which, in consideration of its great expenditure in the colonisation of these islands, he undertook on behalf of her Majesty to grant to the Company a certain number of acres (to be afterwards ascertained) within the districts alleged to have been purchased by the Company from the natives during the period antecedent to the interference of the British Government.

Very shortly after the date of this agreement, and before the promised grant had been made (though instructions to make it had been forwarded to and disregarded by the Local Government), Lord Stanley superseded Lord John Russell at the Colonial Office, and a question was raised as to the signification of the agreement of the latter with the Company. Lord Stanley contended that before, the Company was entitled to the promised grant, it was bound to prove " the validity of its purchases from the natives." The Company maintained that this was altogether unnecessary, and never contemplated by Lord John Russell ; that by the law of nations the British Government, on assuming the sovereignty of New Zealand, became entitled to all lands not actually occupied by the natives, and that it was out of this Crown estate that the Company was entitled to its grant, without any reference to the validity or invalidity of its purchases from the natives, all reliance upon which was understood to be expressly disclaimed by the Company in the agreement. The question was one of vital importance to the Company, because if their view was correct jjhey were entitled to an immediate and abftilute grant of the quantity of land

agreed upon, with secure possession thence--forward and fqr ever." , If,' however, Lord Stanley's view was correqt, the Company was ehtftied to nothing till' " the validity of their purchases from the natives" was proved in the Commissioner's Court (a proceeding involving some years' delay), and then entitled only to so much as they should strictly prove to have been purchased.

On these discrepant constructions of the agreement of 1840 a very long correspondence ensued between the Colonial Office and the Company ; commencing by a letter of Mr. Somes's, dated 24th October, 1842, and terminating with a letter of Mr. Hope's, of the 15th March, 1843, printed in the Company's Appendix to its Twelfth Report, pages 122 c to 186 c. Reference to this correspondence will show that the great anxiety of the Company was to establish its claim to a grant independently of " the validity of its purchases from the natives," and without being subjected to the delay and uncertainty of a long and tedious investigation before the Land Commissioner.

In March, 1843, the correspondence ceased, but was followed by certain interviews between the Colonial Office and some of the Directors of the Company, which resulted in an agreement, which was put in writing in the shape of a proposition made by the Company on the 3d May, 1843, and accepted by the Colonial Office on the 12th of the same month. Those two letters constitute the agreement (Mr. Hope will only allow it to be called " a promise "), with a departure from the spirit of which Lord Stanley is charged by the Directors, in having given certain instructions inconsistent with it to Captain Fitzßoy, and which were not communicated to the Company. The question is, whether the instructions do direct Captain Fitzßoy to pursue a course different from that to which Lord Stanley had pledged himself to the Company. If they do, he is guilty of a breach of faith with the Company, and merits the severest punishment which public opinion can inflict.

The words of the agreement, as far as it bears n the breach of faith, are these —

" For the purpose of effectually settling the question of the Company's titles, and of quieting the minds of their purchasers, they suggest that your lordship should forthwith direct his Excellency to make to the Company a conditional grant of the lands selected by their agents : the Company obtaining within the district so selected the whole title which the Crown may have the power to grant, and having the option, in the event of prior claims being set up, of either excluding from the selected lands such portions as may appear to be subject to such prior claims, and in that case receiving a corresponding number of acres in lieu ; or of including such portions subject to the prior title, but obtaining from the Crown in respect of them the exclusive right of pre-emption enjoyed by the Crown ; the Governor and Council being instructed as soon as practicable to establish some general rule for defining native titles, and settling the claims to land, and to do their best to aid the agents of the Company in effecting the necessary arrangements with the natives, either for the purchase of lands belonging to them, but unimproved, or for making on the part of the Company equitable compensation for the original value of the land which may have been occupied by themselves or their settlers without sufficient title, but in which they may have effected improvements."

It is a rule of law, as well as the common practice of daily life, that in construing an agreement the first thing to be considered is, what was the intention of the parties at the 'time they entered into it. It is also a rule that the construction should be liberal, and that doubtful expressions are to be construed most favourably for the party to be benefited by the agreement and most strongly against the party conferring the benefit. Now, in endeavouring to fix the meaning of this agreement between Lord Stanley and the Company, it must be borne in mind that it was the termination of a long dispute between those parties, the point in contention being whether proof of " the validity of the purchases " by the Company from the natives was a condition precedent to their obtaining a grant. It must be further remembered that this agreement was considered by the Company as highly satisfactory, and that they proclaimed it as a measure which abolished all uncertainty as to its title to the lands it had distributed to its purchasers, and the foundation of an amica-

ble footing between itself and the Government. It is clear, therefore, that the Com* pan y could not by possibility have considered it to involve the necessity of its establishing " the validity of its purchases from the natives," but must have regarded that question as disposed of in its favour, and set at rest for ever.

Nor do the terms of the agreement admit of any other construction. The " validity of the Company's purchase" is neither mentioned nor alluded to. Had the necessity of proving it in any way been contemplated, it could never have been passedUyer in silence in an agreement which conclude?? the correspondence referred to, of which it formed the principal subject of discussion. The sole condition to which the grant was to be subject by the terms of the agreement was this: that in case either natives i©r others should establish a claim to any portion of the land granted by Government to the Company out of the presumed Crown estate, the Company should either abandon such portion, or, at its option, compensate the claimant. So for all practical purposes the grant was to be absolute ; the Company was relieved from all apprehensions of a defect in its title by purchase from the natives; neither it nor its purchasers could ever be disturbed in their possession ; and it was freed from the delay, expense, and uncertainty of the Land Claims Conrt. That this is the correct construction of the agreement was decided by the fourth resolution of the Committee.

Now things being in this satisfactory position, somebody suggested to Captain Fitz Roy a doubt whether the agreement in question did not prescribe the very condition to exclude which we have shown it was entered into, namely, " the proof of the validity of the Company's purchase from the natives ;" and he writes to Lord Stanley to ask whether or not the Company is bound to establish such validity before obtaing a grant. "My view of the existing arrangements is," says he, " that out of a certain extent of land said to have been purchased by the New Zealand Company, the Government will confirm their title to as many acres, &c, provided that they prove the validity of their purchase." " The Company may take land without the districts now claimed in exchange for land within those districts, provided that their purchase be satisfactorily proved." " That the Company are to have £50,000 worth of land at Auckland in exchange for land to which it is assumed they can prove a valid purchase elsewhere." " And lastly, there is no reason for saying that the Government is indebted to the Company in so many acres, or that so many acres are due from the Government to the Company."

To this Lord Stanley replies that the principle of the agreement between himself and the Company was " to allow the Company a primd facie title to such lands, under the condition that the validity of their purchases shall not be impugned by other parties. Subject to this qualification, I concur in the view taken by you on this point."

That is to say, Lord Stanley tells Captain Fitzßoy that he is right in thinking that the Company's title does rest on the validity of its purchases from the natives, and not on the all-sufficiency of the Crown grant ; but that, by way of qualification, he may make them a primd facie grant, liable to become void in case such validity should be disproved by anybody, and which primd facie grant would therefore have been no better than so much waste paper.*

There is, in fact, all the difference in the world between a grant of lands out of the Crown estate, which insures absolute possession on condition of compensating any party who may prove a previous equitable claim, such r.s the Crown would have satisfied out of its own estate had

* This construction of Lord Stanley's qualifying clause differs from that which we put upon it in our previous article. The manner in which the word "under" it used admits of two constructions ; we now give that which is most favourable to his lordship, though either equally, in our eyes, involves a breach of faith.

not the Company's grant interfered, and a grant resting not on the Crown tide, but on the validity of certain assumed pi irchases from the natives, effected at a ti ne when they were supposed to be owners of all New Zealand, independently of Ihe British Crown, and which grant is to be void if the validity of those purchases is impugned by any one. The first is the grant evidently contemplated by the agrrement between Lord Stanley and the Company ; the latter the grant which, by 1 lis instructions to Captain Fitzßoy, concealed from the Company, he directs that officer to make.

The practical difference between the t 1 iro is this. If the Company's construction of the agreement had been carried out, it would have saved several thousand pounds paid as compensation to the natives to complete " the validity of its purchases ;" it would have been spared a large portion of the delay of the Land Claims Court ; and, as it ought never to have appeared in that court, would have been equitably entitled to the return of some thousand pounds' worth of fees paid on its claims being entered. The opposite course involves it in a heavy and unnecessary expense, in payments to natives who would have had difficulty enough in establishing a claim overriding the grant out of the Crown estate, they not actually occupying more than inconsiderable portions of it ; it involves it in the expenses of the Land Claims Court, and in the endless delays and uncertainties which yet entangle the whole subject.

Such is our view of the " breach of faith " question ; and with all deference to those who hold a contrary opinion, we think it is sufficiently flagrant and apparent. That Lord Stanley will be acquitted in the House of Commons by the ministerial majority, there can be little doubt ; it is too much to expect that members who are not particularly interested in the matter should bestow upon the voluminous documents affecting the question that study which is necessary to enable them to comprehend it; and a favourable verdict can always be ensured in a matter of this sort, when Ministers have so large and so compliant a majority as th at of Sir Robert Peel.

Since the above was written we have received a report of the debate on this subject,c t, which occurred when Mr. Hope offered his explanation in Lord Stanley's favour, which will be found in our paper of to-day. The Times has some observations upon it, : n which it inclines to the opinion that io direct breach of faith was proved, but th it it only amounted to a mistake, into whi( h a Minister having so much business and i o large a betting book as Lord Stanley might excusably fall. That the consequences <)f the mistake have been the same to tl ie Company as the consequences of a breach of faith would have been, that body has sensibly felt in the payments which Captain Fitzßoy has compelled it to make to complete its title, the validity of which it is now admitted it was not necessary for it to have proved. Whether the blame is chargeable on Lord Stanley or Captain Fitzßoy is of little real consequence to the Company, which stands in the position of the cook and the two thieves, one of whom denied having taken his meat, and the other denied having got it. " Gentlemen," said the cook, " which of you has taken and which of you has gotten it I cannot tell, but that there is a thief between you I am quite certain."

Importation of Sheep. — The Comet arrived here on Tuesday last, from Twofold Bay, with 380 ewes, having lost but two on the voyage. The whole landed were in first-rate condition, having suffered but little from the passage. There were also a few heifers and a horse put on board ; the latter died on the passage, the others were safely landed. :

In the Wellington Spectator of Saturday last it is stated that the Vesuvius w«t steamer, 280 horse power, is expected at Auckland with troops from England. The Vesuvius is 544 tons burden, and carries 4 guns.