THE New Zealand Mail. PUBLISHED WEEKLY. THURSDAY, JUNE 11, 1896. THE REPORT OF THE HOROWHENUA COMMISSION.

New Zealand Mail, Issue 1267, 11 June 1896, Page 22

THE New Zealand Mail. PUBLISHED WEEKLY. THURSDAY, JUNE 11, 1896. THE REPORT OF THE HOROWHENUA COMMISSION.

From first to last there has been evoked much animated controversy, not a littlo strong language and perhaps somewhat of party fooling over the strange and curious transactions connected with tlio Horowhenua Block. Over and over again the air was lurid with electrical energy. Charges and countercharges wore plenty as blackberries regarding tlio tortuous ramifications which have marked the dealings with this large block of Native land, in all 52,000 acres. At last, after all the acrimonious discussion which last year witnessed, there is now what wo should imagine will bo deemed a satisfactory close to the subject. The report of the Royal Commissioners with its appended evidence forms a document of considerable volume, so large indeed that with the space at our disposal wo cannot publish it entire in our columns. There are, however, various points of interest the report discloses which show in the past an amazing laxity, not to say gross in justice,.in dealing with Native lands ; and, although the Commissioners are comparatively mild in their language in dealing with Sir Walter Duller, whose transactions with this land were very severely denounced in Parliament, there is no question as to their opinion respecting tlieso transactions. There was no need for either the claymore or the big boots, to which implements of discussion sundry orators and scribes are in the habit of referring as being employed by Minister? as against their assailants. Tlio Commissioners have made things very clear in calm and judicial language. Their findings and their opinions and their statements of facts, as the same were elicited after a patient enquiry, leave no doubt in (lie mind of the reader as to the methods on which Major Kemp and his confidential solicitor acted in their dealings. As briefly as possible wo shall endeavour, by quotations from the report, which speak for themselves with no uncertain sound, to furnish our readers with the leading points of the document. In the first place the Commissioners found tlio greatest difficulty in obtaining honest evidence from the Natives. Major Kemp repeatedly contradicted the evidence he formerly gave in the Native Lands Court, and admitted to the Commissioners that he had sworn falsely in 1873 “ when lie and lftinia were friends,” and lie further acknowledged that “a Native woman at his (Kemp’s) instigation gave false evidence,” and that from Kemp’s demeanour beforo them Ins evidence was not trustworthy. Another Native admitted to them that he had committed deliberate perjury. They declare that Kemp acted for the Natives in a “fiduciary capacity,” which is a relation of trust and confidence, a trust which he appears to have deliberately betrayed. It appears from the report that Sir Walter Duller valued the particular lauds at £2I per acre. Mr John .McDonald, a practical farmer, valued them at double t hat price, while an expert employed by the Commissioners set them down at £2(5 10s per acre. Kemp had received J2G210 in connection with subdivision 1 of tlio block, and of this money he professed to bo unable to give any account whatever. This tlio Commissioners hold to be “ simple nonsense,” and that “ Kemp has spoilt that money in a manner ho knows to bo unjustifiable, and gives no explanation, not because he cannot, but because he dare not do so,” and they further declare that with respect to other portions that Hunia, who sold or professed to sell to the Government in 1880 for £2OOOO, and for which ho got a payment of ,112000, “ was a trustee for the tribe, and that ho appropriated this payment to his own uses.” Kemp brought an action against Hunia in 1894, and Mr Edwards was retained but refused to act unless ho received .2500.

Sir Walter Buller supplied this money, and took from Kemp a mortgage, which, says the report, “ was not merely given for the advance of <£soo, which was the primary cause of its existence, nor even tho costs of the action, but to secure in addition tho balance duo upon the account current between the parties, and for moneys which might thereafter be advanced and owing, by the mortgagee to the mortgagor or otherwise, howsoever, at S per cent, per annum.” And Sir Walter Duller acted as solicitor and adviser of Mr Edwards in this action, which, say the Commissioners later on, cost .£992 10s—“ a litigation which would have been unnecessary had Kemp realised and acted up to his position as trustee.” Kemp received at least £112,000 in connection with the block, and will “give no account of what he has done with tho money, and is therefore chargeable with tli3 whole amount.”

“ Before us at Levin Sir Walter Buller said lie did not know what was owing under the mortgage,and that he would have to communicate with Kemp. A fortnight later he produced an account showing that exclusive of interest he claimed £22920 10s 7d to be secured under the mortgage.” Like Mr Mantalini, one is disposed to say the coppers “ bo dimmed.” The following is a brief summary of the transactions of Sir Walter Buller with Kemp:—May 20th, 1892, a transfer of land, also on same date a lease ; July 18th, 1892, a ro-loaso for Kemp and tribe; September 19th, 1892, a lease; October 19th, 1892, a release containing recital of trust; October 31st, 1892, transfer; same date, lease; October 9th, 1894, mortgage. “ Whether these leases and this mortgage,” the Commissioners say, “ would be upheld by a Court of Equity is a matter of latv which the Courts can alone decide. It seems to us a matter of great doubt whether the Courts would not hold, apart from any question as to whether Sir Walter Bailor had or had not notice that the property was trust property, that as Kemp had not independent legal advice, as the parties were not at arm’s length, as the rental is greatly under tho real annual value, and as the mortgage was given when Kemp was in a position which practically left him no option, and was given to secure unknown amounts, Sir Walter Duller’s position with Kemp was such that the leases and mortgage (oxcept as to tho £ISOO advanced when it was given) must he sel aside.”

Hero is another pregnant quotation from tho report: the italics are our own : “ Certain of tho Natives interested gave a deed of re-lease to Kemp in October, 1892. This deed forms one of tho exhibits to the evidence. It was prepared by Sir Walter Duller on Kemp’s behalf. The Natives had, no independent advice, and were not parlies to the prcjmralion of the deed. They were asked to meet and a considerable number did so, when Sir Walter Bailor explained the deed to them, and a number signed it. Other Natives subsequently signed it; hut we are satisfied that while the deed was truly road to them they were not aware what were their legal rights, and what were Kemp’s liabilities to them. Broughton, an educated and intelligent half-caste, tolls us that lie wis sont for, and came from his work, thinking he was about to sign a petition to Parliament. lie came to whore tho Natives wore and heard Sir Walter Duller road tho deed, and signed it when requested to do so. lie did not know its contents. After we adjourned a number of Natives came to us to repudiate their alleged signatures to the deed, and we J'eel confident that no Court would recognise this deed as a bar to any action for accounts by the Natives against Kemp.” As to what were Sir "Walter Buller’s transactions with regard to subdivision No. 14, the Commissioners say : —“ Wo think that at any rato as to some if not all of them he had express notice that the land was subject ton trust; and that oven, if he had not express notice, lie was, with regard to all transactions so far pul upon enquiry, that he had implied notice of the trust. lie had been Kemp’s solicitor since 1874, except when in England Sir Walter Buller enquired of tho tribe as to subdivisions Nos. 2, (5, 9, 11 and 12, but says lie made no enquiries as to subdivision No. 14. Tho following is part of his examination on this point : (.). “ What steps did you take to ascertain whether or not there was any question of trust as regards block 11 ?” A. “None whatever, beyond obtaining Major Kemp’s declaration, as required by law, fortlio time.” And later on “I was perfectly satisfied. T made no more enquiries than tlio Trust Commissioner.” Q. “ Notwithstanding the fact that you were aware a question of trust had been raised ? ” A. “ l presume I was aware, but I was not professionally concerned.” Not professionally concerned! And yet hero was a bill of costs of over £22900 (less £2500 to carry on action which he himself instigated), a bill of costs for tlio man whoso friend and legal adviser ho had been for more than twenty years ! "Wo shall close our extracts by tho following, for limits of space prevent any further quotation : —Again tlio italics are ours —“ Tho only conclusion we can come to (say the Commissioners) is that Sir Walter Buller knew, prior to his leaving in 18811 that I he whole block was held by Kemp uiuler one title in trust for the tribe, and that on his return to Now Zealand he without making enquiry to ascertain that the trust was extinguished, purchased part, and leased oilier parts of tlio trust property.” That will suffice. No amount of rliodomontade or Uowery oratory; no legal quibble, no lofty declaration of unselfish or guileless intentions can get over tho plain facts and straightforward conclusions which MrStipondiary Martin and his foilow-Commissioners sot down in tho calm unimpassiouod but telling phraseology

which characterises their report. There is, as we have said, much more, of a description similar to that we have narrated in this article, but meanwhile space forbids. And the subject is not over savoury.