TO HIS EXCELLENCY CAPTAIN HOBSON, R. N. &c.&c.&c.

New Zealand Herald and Auckland Gazette, Volume I, Issue 48, 2 February 1842, Page 2

TO HIS EXCELLENCY CAPTAIN HOBSON, R. N. &c.&c.&c.

[CONTINUED from our last.] As far as regards the second head, or the interests of the rest of the European population, lam quite willing to admit that it would be injurious to their interests that the old settlers should receive the whole of their lands, in so far as many of the mpst available tracts in the Middle Island are either claimed, or purchased by the old settlers, and which by keeping entirely in their own possession, or offering for sale at a high and unreasonable rate, might be the means of compelling the new settlers to locate themselves upon the inferior lands of the country, and thus prevent the cultivation of such lands as would give the largest returns for the money and labour expended on their improvement. In treating of the third head, or the interests of the Native population, the subject cannot be regarded in a mere pecuniary point of view : for in this respect they cannot suffer much by the possession or non-possession of the land bought from them by the original purchasers or any other person. Their cultivation grounds are alone of any real value to them ; and if their waste lands have been of late made to have acquired a value in their estimation, that must have arisen, in a great measure, if not entirely, from the circumstance of Europeans having settled in the country. As far as the Aboriginal inhabitants are concerned, the matter assumes a new aspect, and is only worthy of consideration in a moral light. It cannot be doubted for an instant that the circumstance of entirely disposessing the original settlers and purchasers of the soil, would be in itself a measure calculated to lower their estimation of our perception of right and wrong, and lead them to believe that our code of morality was, at least in this respect, far fnferior to their own. Ido not apprehend, however, that any such uahappy result would attend the surrender to Government of a portion of the lands of the original settler, more especially when it was clearly understood to have been given away with the owners full consent. How far the general improvement of the Native population may be affected by a more extensive settlement of Europeans in the country, it is almost impossible to foresee. From the past history of colonization, and the change which has already taken place in the character and condition of the Natives ofthis country, I fear much that the prospect of future moral improvement is rather dark and gloomy. But this being a subject not immediately connected with the object of my letter, I shall proceed to the consideration of the last head.

Were the Lands claimed in New Zealand a tenth or even a twentieth part of the quantity which they have been reported to be,both in England and New South Wales, and even in this same country, I should not hesitate in coming to the conclusion that the entire possession of such tracts of country by the original claimants, would be in the highest degree injurious to the future prosperity of the whole colony. But your Excellency must be well aware that, with the exception of the absurd claim of Mr. Wentworth, the Australian Patriot and Barrister, and that of the New Zealand Land Company, together with some others in the Middle Island, such as those of Weller, Jones, Williams, &c, by far the largest part of the best and most available land in the country is still held and claimed by the original owners of the soil. I have often regretted that the claims of the real settlers should have been mixed up with thuSe of Mr. Wentworth, or of any other person—the current of whose patriotism should run so high as to-induce him to set Her Majesty's expressed wish at open defiance, even though his legal knowledge had enabled him to perceive that a proclamation was not law, and could only be a declaration of what the existing law is,—or of an intention of enacting new laws. Mr. Went-

worth's object bad evidently nothing to do with the furtherance of the interests of the bona fide settlers of this colony : he wished for an opportunity of sparring with the Governor of New South Wales. His wish has been accomplished at a trifling expense to himself, although it has cost this colony the obnoxious Bill of Sir George Gipps. I am, however, decicedly of opinion that the speedy and equitable adjustment of the claims to land in New Zealand, would, in an eminent degree, tend to promote the future prosperity of our colony; and that, waiving the question of right of property altogether, it would be to the interest of the old settlers to make concessions to the Government even to the extent of giving up a part of the lands which they may have fairly purchased from the natives. By so doing they will place the Government in a position by which it may be enabled not only to give land to the new immigrants, but afford it the means of directing its energies to the general subject of immigration, by putting it in possession of the necessary funds for carrying on the same to a larger extent than has hitherto taken place.

After these rather long preliminary remarks, I will now bring before your Excellency's notice, the general principles which I adduce from them, and on which I imagine that, a Bill for the settlement of claims to land should be founded.

Ist,—Seeing that the purchases of lands in New Zealand, at least from the natives, have been made at a time when British authority was not established in the country, and when British laws were unknown to the natives, and imperfectly understood by the Europeans; the claims should, in every case, be determined on the principles of equity and justice between man and man, avoiding altogether the attempt of reconciling decisions with either the laws of England or New Zealand, taking for our guide, the general interpretation of the natural law of right and wrong. 2nd.—That whenever any doubts may arise in carrying out this principle, or in determining any point, the benefit should be given to the party likely to sustain the greatest injury.

3rd.—That while the general good of the whole community is consulted, no private rights should be unnecessarily violated.

4th.—That waste lands have no real value in themselves*

sth.—That the person who settles upon, and cultivates waste land, confers upon it any value of which it may be possessed. 6th.—That the crown, in di posing of waste land, should not anticipate the value which shall be given to such land by the settler, and compel him to pay according to that anticipated value, the instant he settles upon such land; seeing that it is the settler's deed, and not that of the crown which has conferred the value. 7th.—That it is unreasonable, and contrary to past experience, to suppose that either the current expenditure of the government, or the expenses of immigration can be defrayed froth the revenue arising from the sale of waste lands in an infant colony. Bth.—That in an old and established colony, it is a good plan to lay out the or greater part of the revenue from waste lands, in the introduction of fresh immigrants, for the purpose of reclaiming the remaining waste lands of such colony. 9th.- That so much of the new system of colonization as regards the disposal and sale of waste lands by lottery or chance, is bad in principle, and not in accordance with the law of England, 10th.—That the principle of concentrating the population of a colony, is in many respects good ; but that it is not of universal application, and cannot therefore become a general law of colonization.

11th.—That it should not be compulsory to concentrate, but optional, otherwise the attempt is sure to defeat its own object.

12. That it is at all times unwise to oppress the first settleis of a colony ; for the encouragement and promotion of emigration from the mother country, we must convince the intending emigrant, that it would be to his advantage to come to our colony, and this cannot be hetter accomplished than by being able to exhibit to him the great prosperity of the first settlers,

On these principles then, I would, with due deference to your Excellency's superior wisdom and experience, take up the Bill laid by your Excellency before the Legislative Council. In doing so,I would again beg to assure your Excellency of my conviction of your anxious desire to settle speedily and equitably, this most complicated question; and should I happen to differ with your Excellency in opinion, or disapprove of certain portions of this Bill, I do so, not with the view of assisting in giving any factious opposition to a measure of such importance to *he present and future welfare of the colony, but from a feeling, that having undertaken to communicate to your Excellency, not only my own, but the views of a large majority of the claimants to land in New Zealand, I should be wanting in respect towards your Excellency, and in duty to the other claimants, did I not undisguisedly express my sentiments upon this subject.

On comparing your Excellency's Bill with the Act passed by the Governor of New South Wales, I am happy to acknowledge that the " New Zealand Land Claims Bill'' is in many respects much more in accordance with justice and equity than the act mentioned. I fear, howiver, that my approbation may be deemed very much qualified from the fact of my being firmly persuaded that a measure more tyrannical in spirit, and more unjust in principle has never been submitted to a colonial legislature, than Sir George Gipps'Act. While I approve of the intention and spirit of your Excellency's Bill, and believe, that with certain modifications it might be made to meet the views and wishes of all parties, 1 cannot help stating my conviction, that like Sir George 3ipps' Act, it would in a great measure defeat its own and that it would be found utterly impracticable to carry it into operation in its present shape. After the most serious consideration andSmiruite examination, I cannot reconcile the Bill as a whole, with any of the general laws of equity and colonization.

That part of the Bill which declares that lands shall be awarded to the original settlers at the rate of four acres per pound for all the money either laid out in the purchase of the land, or in improvements, is, I am aware, the deed of the Home government; and however much at variance with several of the principles which I have laid down, would still, I have reason to believe, be acceded to by most of the claimants. While I say so, I am far from thinking that this plan is entirely in accordance with equity, that so much as I know, it is valuing the waste lands of this colony at too high a rate, and compelling the original owner to pay for his land at the improved value which has been given to it by the settlers own capital and exertions. It cannot be unknown to your Excellency, that the richest waste lands in the most desirable and improved portion of America can, at the present moment be purchased from the government for one • dollar per acre, and in British America, for half-a-crown per acre; and why the waste lands in this part of the world, where labour is much more expensive, and the difficulties of making them available, are much greater, should be valued at a higher rate, is a matter beyond my comprehension. The fact however is, that in America, the government justly allows the settler the full benefit arising from his own exertions and improvements: whereas, in this colony, the object appears to be to anticipate'this value, and to take to the government itself, the full benefit arising from them, endeavouring to strike the hardest possible bargain with the poor settler, and in this manner, removing every inducement to the exercise of industry or enterprise. Instead of attempting to cripple the exertions and energies of the first settlers, I imagine that the wisest and best policy on the part of the government, and that which in * the end would tend most to the prosperity of the

colony, would be to hold forth a premium to the v first and enterprising settlers, who have abandoned all the comforts of their native land, and risked liseir lives and property in forming settlements in a savage and barbarous country.

The next general feature in the Bill, of which I disapprove, is that which renders it compulsory on the settlers to ahandon their own lands, and to assist in concentrating the population of the Colony in the vicinity of the various towns, by submitting their fortunes to the chances of a lottery, where the blanks are in all probability much iriore numerous than the prizes. -

I have already stated, that I approve of the principle of concentration when it is made optional, and left to its own natural operation. Men will, of their own accord, act on this principle when they find it to be to their advantage. But when ic is made compulsory, it inevitably loses its charm, and assumes the appearance of bondage, which is not only repugnant to the feelings of free and enlightened men, but entirely at variance with the ideas of liberty entertained by Britishborn subjects. Your Excellency, lam sure, will allow, that it is natural for a man to give the preference to that object, in the selection of which he has depended upon his own judgment, and for the attainment of which, helms, it may be, suffered innumerable privations, as has been undoubtedly the case with many settlers in this country. To the plan of buying Land on chance, I must say that I am myself decidedly opposed on principle —-it is the offspring of the modern system of colonization ; and its ruinous effects are elready sufficiently exemplified in South Australia ; and shall, I fear much, be ere long, still more so in one of our own settlements. I am, notwithstanding this, of opinion, that to many persons in this Colony, it would be an advantage to be permitted to abandon their present possessions, for lands in the vicinity of the towns ; and on their account, I think it might be right to leave the matter optional. These are some of the general principles in which I consider the " Land Claims' Bill '\to be defective. But even if it had been in this respect, more in accordance with equity and the laws of colonization, it is still so very defective in its details, as to render it exceedingly objectionable. That this is the case will sufficiently appear from the following facts, viz,—

Ist. That it lays down no general principles whereby the Commissioner ,or Commissioners of Land Claims may be guided in determining the validity of the purchases of Lands made by the claimants from the Aboriginal inhabitants.

2nd. That it does not take into consideration the amount of fees (if any) which are to be charged for surveyifig, title deeds, the examination of witnesses, &c, &c. This is a most important point, in so far as if it be the intention to follow out the Act of Sir George Gipps in this respect, the amount of fees and expenses would be so heavy, that it were far better for the settlers at once to surrender the entire lands to the Government, and to make up their minds to sustain the first loss, however great, —rather than incur the second, which would certainly be still greater. 3rd. That it entirely overlooks scondary purchasers, or those persons who have bought Lauds from Europeans, either before or since Her Majesty's Proclamation. These are a very important class of claimants. They have, generally speaking, expended considerable property in the purchase of Land in New Zealand, with the view of becoming bona fide settlers; and would, on account of their respectability, influence, and -wealth, be a great acquisition to the Colony. Some of them are, however, absentees, and would doubtelss, on that very account be most willing to exchange their country Lands for Allotments in the neighbourhood of towns. Having thus adverted as briefly as the subject would admit, to the various points in which I consider the " Land Claims' Bill" tq.be defective, if not unjust, I shall conclude the subject by submitting to Your Excellency, a plan I which shall, I think, as far as possible, embrace | both the views of Your Excellency, and those of i* the greater portion of the claimants to Land in fcfcis Colony. That I may be the more clearly understood, I

shall arrange my ideas upon this subject under the following heads, viz.—

Ist. That twelve impartial and competent men be selected as Commissioners by His Excellency the Governor, to investigate all Claims to Land in New Zealand, or as many more or less as may be deemed sufficient by His Excellency for the accomplishment of this object within the next six months.

2nd. That whenever parties claiming Land may wish it, an appeal shall be allowed from the decision of each or any of the Commissioners, and that three of them shall be appointed to hear such appeal, from whose judgment the parties may finally appeal to His Excellency the'Governor. 3rd. That it may be optional with parties entitled to grants of Land, to receive the same out of the Lands which they themselves have bought from the Natives, or to avail themselves of the plan proposed in the " Land Claims' Bill," 4th. That the same parties, may also, if they choose, be permitted to take grants in part out of their original Land, and the remainder in the vicinity of the towns. sth. That in accepting of grants in the vicinity of towns, the parties shall not be restricted to a single district, but may be permitted to select in either.

6th. That parties accepting of Grants out of the Lands they have purchased from the Natives, may be permitted to select what portion they choose, provided always, that the same shall be in one continued block, with a due proportion of water frontage and back run, if on a river or near the sea. 7th. That parties entitled to receive Grants of Land, shall give intimation to the Governor before the expirv of three months after the extent of such Grants shall have been determined, of their intention to accept of the same out of their original Land, or in the vicinity of a certain town. Bth.—That all the] expenses of commissioners, surveyors, title deeds, and witnesses, be defrayed out of the general land revenue of the colony, or out of the proceeds of such lands as the claimants may have been deprived of by the government* 9tb.—That grants shall be given to the claimants of land, at the rate of four acres for every pound sterling, paid either in cash or goods for such lands.

10th. —That in determining the consideration paid for land, not only the original price paid to the natives shall be taken into account, but also all other expenses which can be fairly shown to have been incurred in making the original selection, in passage money to the colony, in the introduction of labourers and emigrants, in improvements upon the lands, together with such fair mercantile profit on the amount expended in this manner, as the party might have been expected to have made, had he invested such capital in any other speculation ; and that such mercantile profit or interest shall be reckoned from the time when every such outlay has been made, until the time when the commissioners shall have determined the title to such land.

] Ith. —Provided the parties claiming land shall have been found to have made their bargains for *uch lands with the natives prior to the issuing of Her Majesty's proclamation, or prior to the time when they could have ascertained that such proclamation had been issued, even if they should not have completed the purchase by paying the money in whole, or in part, to the natives ; that such purchases shall still be held good, and decided according to the general principle. 12th. —That all improvements upon such lands shall be reckoned and allowed from the date of purchase, until the claim shall be determined by the commissioners.

13th.—That the clause or clauses in the bill regarding headlands, promontaries, sites of towns, &c. &c, be entirely omitted. 14th.—That in order to satisfy the demands of some of the large claimants, they shall, over and above their first grants, be allowed, if they choose, the right of pre-emption over certain portions of their original land, at a fixed price, say five shillings (55.) per acre, according to the following or other reasonable scale, viz.:—For every purchase found to have been really made from the natives,' at whatever price, which shall contain fifty thou-

sand acres, or upwards, the party be entitled to the right of pre-emption over fifteen thousand acres, or any number below fifteen thousand acres the party may choose. For every claim not more than fifty thousand, nor less than thirty thousand acres, ten thousand. For not more than thirty thousand, nor less than twenty thousand acres, six thousand. For twenty thousand,-and not less than ten thousand acres, three thousand, and so forth.

15th.—That such parties shall not however be permitted to take lands in the vicinity of towns, in lieu of such secondary grants, but shall be compelled to take them in single blocks out of their own lands, wherever such lands may be situated, unless within ten miles of Auckland, or within five of any other large towa. 16th.—That, such right of pre-emption shall cease at the end of twelve months from the time when their claims to lands shall have been determined.

17th.—That secondary purchasers shall be entitled to receive grants to lands upon the same terms as the original purchasers, with the exception of the right of pre-emption; or at all events that they shall be placed in the situation of the primary claimants, from whom they may haverbought their lands.

18th.—That as it is more than likely that several mistakes may have been committed by Europeans, in the purchasing of land, without any intention of defrauding the natives, but merely from their ignorance of the native language, and the very great difficulty of ascertaining the rightful owners of the soil, no advantage shall be taken of such mistake, whether it shall happen that the purchaser has been found not to have satisfied alj the claims of the natives upon the land bought by him, or to have made the payment in part, or in whole, to the wrong natives, unless it shall appear he has done so with a fraudulent intention—he may be still at liberty to satisfy the demands of the natives, by making to them such further payment as the commissioner or commissioners may determine to be fair and equitable. But if the intention to commit a fraud be discovered, let his claim to the land be disallowed.

19th. —That whenever Natives shall be proved to have received from Europeans money or property, for land not their own, they shall be compelled to make restitution fur such money or property in land, if they possess any. 20th. —That wherever doubts may arise in the settlement of claims to Land, the party likely to sustain the greatest loss, shall enjoy the benefit of such doubt.

After three years deep and serious consideration given to this perplexing question, the above are the only terms upon which I am persuaded the settlers can, with any advantage to themselves, agree to its final settlement. Where the effecting a general good is concerned, concessions must doubtless be made on both sides. . The settlers are willing to concede as much as possible without involving themselves in ruin; and I am sure Your Excellency will not hesitate to meet their views as. far as it shall be consistent with Your Excellency's duty to the government you represent, and the general welfare of this colony—knowing, as I do, that you must feel that the speedy, equitable, and final arrangement of this measure, lies at the very root of its present and future prosperity. But while I feel that it will be for the general good, and ultimately of advantage to the claimants themselves, that every reasonable concession should be made on their part. I am still unchanged in the opinion, notwithstanding the New Zealand and New South Wales Bill, and the farfamed and sophistical speech of Sir George Gipps, that the claims of the original purchasers of land jn this country to the whole of their pos sessions, are good in law; knowing as I do, that the right of private property is the inherent and birth-right of every British subject—aright which is held so inviolate, that neither the government nor the sovereign of his country herself, can deprive him of. It is the glorious and the proudly distinguishing character of the British subject, that he is born and brought up in the firm assurance and belief that he is entitled to his personal freedom, and to the right of private property. I have, however, the greatest confidence

in the wisdom and judgment of your Excellency, and I feel assured, that you will not fail to use every possible effort to avoid the disastrous consequences which would inevitably ensue, if the settlers were again compelled to stand upon this ground, which they have not yet abandoned, although they are willing to waive the right of keeping it. Hoping that your Excellency will be pleased to forgive the freedom with which I have discussed this subject, and overlook the numerous errors, in style and manner, which want of time and the unavoidable length of this communication have prevented me from correcting. I have the honor to remain, With the utmost respect, Your Excellency's most obedient And most humble servant, S. M. D. MARTIN, M. D. Auckland, \ January 23, 1842.