[168] The Bill was passed on August 4. It enacted that all titles to land in New Zealand were to be absolutely null and void except such as were, or might be, allowed by the Queen. The Governor was to appoint commissioners to examine and report on all claims to grants of land which might be referred to them by him. They were to be guided by the real justice and good conscience of the case. Certain lands, those reserved for the site of a town or village, for purposes of defence, or any other public purpose, were not to be recommended by the Commissioners for grants, but compensation in the shape of other lands might be arranged. The claimant had to prove that he had made a purchase, and there was to be some relation between the quantity of land granted and the sum expended on its purchase, but as a general rule no claimant was to receive more than 2560 acres.
[169] Mr. Busby laid off a portion of his property on the bank of the Waitangi River as a township, which he dignified by the name of Victoria. Here he marked off streets, squares, and reserves for public buildings, the lots being sold to Sydney speculators and settlers at Kororareka at the rate of from £100 to £400 per acre. Over seventy years have elapsed since then, but the great city which was to be is still unsubstantial, rude boulders are its cathedrals, and the cabbage palms wave over its empty market-place.
[170] Despatch to Lord John Russell, August 16, 1840.
[171] Amongst these was Tu Hawaiki, the Otago chief, who afterwards signed the treaty at the request of Major Bunbury.
[172] "In consequence of the animadversions made by me in Council on this proceeding of Mr. Wentworth, and particularly of my having said that he had, in my opinion, exposed himself to a prosecution for a conspiracy, Mr. Wentworth has thought proper to resign his commission as a Magistrate, and (to use his own expression) to separate himself entirely from any official connection with my Government."—Vide the above Despatch, August 16, 1840.
[173] "The more completely Lord Normanby admits the right of the chiefs to the sovereignty and soil of New Zealand the more fully must he rely on the third principle upon which I have said this Bill is founded, namely, that Englishmen cannot found colonies without the consent of the Crown, and can obtain no titles to lands in colonies but from the Crown."—Extract from Sir G. Gipps' speech.
[174] For a further exposition of this point the reader is referred to what has been called the "classic" judgment of the late Mr. Justice Chapman in Regina v. Symonds, 1847.
[175] In November 1840 Lord John Russell entered into an agreement with the Company, by which they were to become entitled to select out of the extensive domain claimed by them one acre for every 5s. they could prove they had expended upon colonisation in New Zealand. A Mr. Pennington, a London accountant, was appointed to discover what the Company's expenditure had been. He reported that they had expended, as far as could be ascertained, the sum of £200,000, which on the basis of the arrangement entered into would have entitled them to select, approximately, 1,000,000 acres. This the Company asserted to Lord Stanley was a final determination of their rights, and that they were ipso facto entitled to the land. Lord Stanley, however, held that the Company still had to show that they had lawfully and equitably extinguished the native title over this area, and that for this purpose their land must come under investigation by the Commission. The correspondence is embodied in the Parliamentary papers of the period.
[176] Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.
[177] In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."