117

G.—2

positions of the parties interested in the Horowhenua Block. On one hand stood Major Kemp. He had been since 1873 the sole certificated owner of the whole of the Horowhenua Block. To use Sir Walter Buller's language, as such he was " in fact and in law a trustee " for the whole 143 owners. And this opinion is substantially adopted by his Honour the Chief Justice. [Warena te Hakeke v. Kemp and Another, 14 N.Z. Law Eeports; Appellate Court minute-book, Vol. 32, page 172.] As such trustee, to use Major Kemp's own expression, he had the heads of the people under his hand : " Your heads have been in my hands ; my feet have been upon your bodies ; " and during the whole of the time from 1873 to 1886 he acted up to that expression in its entirety. He was, moreover, as this Court well knows, a chief of great mana —a man of surpassing bravery, a man acquainted with European ideas, and a man of extreme ability, and he would have held a prominent position in any tribe. How much more so in a tribe such as the Muaupoko—a tribe who had for decades been refugees, wanderers, and living on sufferance under the protection of others. These tribesmen were powerless before such a man. In support of this I will only quote what Eangimairehau, the chief of Kemp's followers, thought, what Major Kemp himself thought, and what Sir Walter Buller thought as to Kemp's position with regard to the tribe. [Quotes Appellate Court minute-book, Vol. 31, pages 106, 111, 112 (Eangimairehau) ; page 192 (Kemp). Horowhenua Commission, page 170, questions 11, 12, 45, 46; page 184 (Kemp). Appellate Court minute-book, Vol. 31, page 240 (Ru Reweti).] I say without hesitation that Major Kemp was at the time of the Subdivisional Court possessed of paramount authority and influence over the Muaupoko—that he was de facto in a position to dictate to the registered owners what he intended to do in regard to the subdivision of the Horowhenua Block, and that the tribesmen were not in a position to gainsay him, and dared not do so. Now, at that time who in law under the title were the tribesmen ? There were 143 names registered in the Court as the owners of the Horowhenua Block, including Major Kemp himself. These owners divide themselves into several distinct classes. In the first place, there were certain persons, members of tribes, who were regarded by the Muaupoko as outsiders, and who, the evidence clearly shows, were never summoned to take, and never did take, part in the partition of the block or in the meetings held in regard thereto. [Vide Appellate Court minute-book, Vol. 31, pages 106, 126, 288.] These were the members of the Rangitane, Ngatiapa, and Ngatikahungunu Tribes, amounting to some thirty persons. [Lists of Sections 4, 7, B.] The balance of the owners were considered as being Muaupoko proper —that is to say, Muaupoko residents of what was afterwards Block No. 11; but, with regard to them, a large number had died, and certain were for various reasons absent. Those who were present had come on a summons sent to Horowhenua by Major Kemp himself. No Panui or Gazette ever reached them, nor, it is fair to assume, any of the other owners. [Appellate Court minute-book, Vol. 31, page 122.] Major Kemp, being the sole certificated owner, would —I think lam correctly stating the Native Land Court procedure—be the only person to whom a Gazette or Panui would be sent. Besides these Muaupako people who were in the title, it would appear that there were a large number of Muaupoko proper who had been accidentally or purposely omitted from the list in 1873, and a great many of these persons were apparently present. There is one fact which I would just mention here in passing, as it is of importance later on. It seems that certain Muaupoko present were followers of Te Whiti, and as such abstained altogether from taking any part in any proceedings connected with the Courts. There is further evidence before the Court to show that some forty-one original owners were dead, and that with regard to upwards of thirty of these no successors had been appointed prior to the Court of 1886. It was, however, attempted to be shown by evidence that the whole of the persons who were since appointed successors to these then deceased owners were present at the meetings, and concurred in the proceedings. The evidence on this point was, I venture to state, exceedingly unsatisfactory, and I submit that the Court cannot attach much weight to it. Eangimairehau especially was unquestionably stating what was untrue when he stated that he remembered every single solitary one of these successors being present at the Court and at the meetings. [Vide Appellate Court minute-book, Vol. 31, page 288.] There is a further point to mark, and that is this: that a great many of the persons since appointed successors to deceased owners were at that time infants. When, therefore, this assemblage of the Muaupoko people took place at Palmerston in or about November, 1886, the owners present represented the mutilated body of 143 owners, after deducting all the Rangitane, Ngatiapa, and Ngatikahungunu, amounting to some thirty-eight persons, some six or seven of the then living Muaupoko who were absent at Parihaka and elsewhere, and some thirty deceased persons to whom no successors had been appointed. Now, the highest that the case can be put, the highest the case is put, for Major Kemp is that this fragment of the whole of the owners consented to the award of the original No. 14 to Major Kemp, and that such consent confirms to him as against all the owners another section —the present No. 14. To state the matter perfectly fairly, I repeat that it is alleged that there were also present certain persons, infants and others, who were among those who afterwards were, but who at that time had not been, appointed successors to certain of the deceased owners. That the number who were present were not by any means the whole of the Muaupoko is also clear from another fact. It is uncontradicted that all the persons who were present at the Court met —I think I am correct in stating, resided — together in a barn belonging to a Mr. Palmerson, a surveyor. The evidence before this Court shows that that barn was not a very large building, and it is impossible that the hundred and fifty or so persons who it is alleged were there could have been accommodated in such a building. No doubt a large proportion of the principal owners were present; that is the farthest that this Court can go upon that point having regard to the evidence. Now, how could those persons assent to an arrangement to give away other persons' rights apart from judicial decision ? For, as this Court knows, the claim set up is not by judicial decision,