337444 AMERICAN AND BRITISH CLAIMS ARBITRATION. WILLIAM WEBSTER. Memorial of the United States in Support of the Claim. This claim is for damages resulting from the denial of title to and loss of possession of certain lands in the islands of New Zealand as the direct consequence of the unwarranted and unjustifiable acts of the British authorities after the annexation of the islands by the British Crown. The facts of the case are as follows: William Webster, a citizen of the United States and a native of the State of Maine,1 in 1835, went to New Zealand and engaged in a business of general merchandise, trading with the native population. His business was profitable, and in the years 1836 to 1839 he purchased from various chiefs of the native tribes and from the native tribes sundry tracts of land, paying there for large sums in money and merchandise.2 These purchases were made before any foreign government had acquired any territory in, or pretended to exercise any sovereignty over New Zealand. The islands were under the dominion of native tribes, which were to a great extent confederated. 3 On August 14, 1839, the Government of Great Britain appointed Captain William Hobson, R. N., as consul to New Zealand, and also commissioned him as lieutenant-governor. Under the same date he received from the Marquis of Normanby a letter of instructions containing, among other things, the following:* 1Appendix, pp. 26, 129. *Appendix, pp. 31, 32-33, 35. "I have already stated that we acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate, in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims, for herself and for her subjects, every pretension to seize on the islands of New Zealand, or to govern them as a part of the dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained. * "You will, therefore, immediately on your arrival, announce, by a proclamation addressed to all of the Queen's subjects in New Zealand, that Her Majesty will not acknowledge as valid any title to land which either has been, or shall hereafter be acquired, in that country which is not either derived from, or confirmed by, a grant to be made in Her Majesty's name, and on her behalf. You will, however, at the same time, take care to dispel any apprehensions which may be created in the minds of the settlers that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale which must be prejudicial to the latent interests of the community." 5 On January 14, 1840, and prior to the arrival of Captain Hobson in New Zealand, Sir George Gipps, Governor of New South Wales, issued two proclamations. In one of these he declared that Her Majesty had been pleased to extend the territory of New South Wales to include New Zealand. The other proclamation was as follows: "WHEREAS Her Majesty has been pleased, by instructions. under the hand of the Most Noble the Marquis of Normanby, one of Her Majesty's Principal Secretaries of State, and bearing date the 14th day of August, 1839, to command that it shall be announced to all Her Majesty's subjects in New Zealand that Her Majesty will not acknowledge as valid any title to land which either has been or shall be hereafter acquired in that country which is not either derived from or confirmed by a grant to be made in Her Majesty's name and on her behalf, "Appendix, pp. 355, 356. but that care shall be taken at the same time to dispel any apprehension that it is intended to dispossess the owners of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community, to be investigated and reported on by Commissioners to be appointed by me, with such powers as may be conferred upon them by an Act of the Governor and Council of New South Wales. "Now, I, the Captain-General and Governor-in-Chief aforesaid, do hereby proclaim and declare such to be Her Majesty's commands, for the information and guidance of all parties interested; and I do further proclaim and declare that all purchases of land in any part of New Zealand which may be made by any of Her Majesty's subjects from any of the Native chiefs er tribes of these islands after the date hereof will be considered as absolutely null and void, and neither confirmed nor in any way recognized by Her Majesty." On January 29, 1840, Captain Hobson arrived in New Zealand, and on the day following, he issued two proclamations. By the first of these he declared that on January 14, 1840, he had taken the oath as lieutenant-governor of the proposed territory of New Zealand, and further declared the extension of the boundaries of New South Wales to comprehend any part of New Zealand that is or may be acquired by Her Majesty; also that he had entered on the duties of his office of lieutenant-governor on the date of the proclamation. By the second proclamation, Captain Hobson declared: "*** to all Her Majesty's subjects that Her Majesty does not deem it expedient to recognize any titles to land in New Zealand which are not derived from or confirmed by Her Majesty as aforesaid. But in order to dispel any apprehension that it is intended to dispossess the owners of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community, I do hereby further proclaim and declare that Her Majesty has been pleased to direct that a commission shall be appointed with certain powers, to be derived from the governor and legislative council of New South Wales, to inquire into and report on all claims to such lands, and that all persons having any such claims will be required to prove the same before the said com "Appendix, pp. 61, 249, 250. mission when appointed. And I do further proclaim and declare that all purchases of land, in any part of New Zealand, which may be made from any of the chiefs or native tribes thereof after the date of these presents will be considered as absolutely null and void, and will not be confirmed or in any way recognized by Her Majesty." On February 6, 1840, Great Britain, by the Treaty of Waitangi, entered into with the native chiefs and tribes of New Zealand, acquired all of their sovereign rights to New Zealand.' The only property right granted was the exclusive right of pre-emption over such lands as the proprietors might be disposed to alienate, at prices to be agreed upon. Webster's titles were prior, in point of time, to any title of Great Britain, being derived from the same source and authority, that is to say, from the native chiefs and tribes, and were complete before Great Britain's right even to pre-emption had accrued to her. On August 4, 1840, the Act of New South Wales, 4 Victoria, - No. 7, was passed. This act provided for the extension of the laws of New South Wales to the colony of New Zealand and for the appointment of commissioners with certain powers to examine and report on claims to grants of land in New Zealand. Under this act, Sir George Gipps, Governor of New South Wales, appointed Colonel Godfrey and Captain M. Richmond, of H. M. 96th Regiment of Foot, to be commissioners." On June 9, 1841, an act was passed by the newly established colony of New Zealand, known as the New Zealand Land-Claimants Ordinance. 10 This act repealed, within the colony of New Zealand, the New South Wales Act just referred to, and provided for a commission to pass upon the validity of all land titles derived mediately or immediately from the aborigines of New Zealand; and it was provided that no grant should be recommended by the commission which should exceed in extent 2,560 acres, unless plainly authorized so to do by the governor and council. Upon the passing of this act, Governor Hobson renewed the appointment of Colonel Godfrey and Captain Richmond as commissioners to pass upon land titles. 11 11 On November 4, 1840, Webster addressed to J. H. Williams, Consul for the United States at Sydney, New South Wales, a letter12 setting forth the extent of his (Webster's) purchases in New Zealand, and requesting Mr. Williams to call to the attention of the United States Government the steps already taken by Great Britain and the probability of great detriment to American interests from further British acts, if the United States should not intervene. This letter set forth no claim, as Webster had then suffered no loss, but simply expressed his apprehension as to the future. It was not until February 23, 1841, that Consul Williams forwarded to the Department of State at Washington this letter of Webster's.13 On February 9, 1841, the British Lieutenant-Governor of New Zealand requested all persons, not subjects of Her Majesty, who had purchased lands from the aborigines prior to January 30, 1840, to forward a copy of their claims to the colonial secretary's office at Auckland, on or before June 1, 1841. To protect his interests, Mr. Webster considered it necessary to comply with this request, and he accordingly did so. 14 In the New Zealand Government Gazette of October 20, 1841,15 the Governor of New Zealand gave notification, "for the information of foreigners claiming land in New Zealand by purchase from the natives" prior to January 14, 1840, that "all claims, whether British or foreign, be investigated and disposed of by the commissioners appointed for that purpose. Such foreigners, therefore, as have not already forwarded the particulars of their claims to this Government are required to send them to this office without delay. "These particulars should set forth the precise situation of the land claimed, its extent and boundaries, and the names of the native sellers, and the consideration paid to them, and, in case of the claims being derivative, the names of the intermediate possessors of the land and of the original purchaser, and the consideration given by him to the natives." 11 Appendix, p. 135. 12 Appendix, pp. 252-254. 18 Appendix, p. 257. 14 Appendix, pp. 136-137. 15 Appendix, p. 137. |