1853 - Savage, H. Circular to the President, and all the Members of the Canterbury Association - SIR JOHN PAKINGTON'S SCOURGING DESPATCH p 22-24

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  1853 - Savage, H. Circular to the President, and all the Members of the Canterbury Association - SIR JOHN PAKINGTON'S SCOURGING DESPATCH p 22-24
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(From the "New Zealander" of 26th March, 1853.)

SIR,--I am directed by Secretary Sir John Pakington to acknowledge your two letters of the 31st of August, one providing certain correspondence with the New Zealand Company, the other stating that the Association had resolved on discontinuing operations in this country on and from the 30th ult., and on transferring, with the least possible delay, their powers and authorities to the colonists.

2. And that with reference to this intended step the Committee of Management suggest that instructions should be sent to the Governor of New Zealand, enabling him to stipulate on behalf of the New Zealand Company for such terms to secure their interests as her Majesty's government may think just and fair.

3. Sir John Pakington will not here enter on the question whether or not the contemplated cessation of proceedings by the Association, before any body is in existence to which the transfer of its functions can be made, is in legal accordance with the terms of the agreement and acts of parliament under which they subsist. He assumes that the Committee of Management have satisfied themselves and the Association on that point. But he is bound, on the part of her Majesty's government, to state that if legal, such a course of proceeding is by no means what was contemplated on their part; when, at the strong instance of parties representing the Association, this power of transfer was introduced into the recent act for the government of New Zealand, Sir John Pakington was fully under the impression that the power of transfer was intended to be exercised with due deliberation, and not until the body, to which it was to be made, was actually constituted, and its composition and character known. Had not such been his impression, it would have been impossible for him to consent to the introduction of such a power into the bill, least of all had he been aware that it would be exercised pending litigation with the New Zealand Company as to the extent of the Association's liability to that body.

4. It is, therefore, impossible for him now to make her Majesty's government parties to any such transfer, as they would become by issuing the instructions asked for to the Governor; but he is bound to state, in addition, that he does not believe such a course would be attended with any advantage. In the present state of affairs between the Company and the Association, it is very improbable that any terms insisted on by the Governor could be acceptable to all parties concerned, and certain that, by insisting on unacceptable terms, the local government would become involved in differences to which it is, in his opinion, very important that it should continue a stranger.

5. And, in the next place, it appears from the correspondence now before Sir John Pakington, that the directors of the Company have distinctly refused on their part to assent to any such transfer, unless certain specified liabilities are first discharged by the Association. Without prejudging the questions at

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issue between the Association and the Company, it appears to Sir John Pakington that it would not be just, on the part of her Majesty's government, to make themselves parties to a transfer which the latter regard as prejudicial to their interests as actual litigants.

6. Being therefore obliged to decline the proposal of the Committee, it becomes necessary for Sir John Pakington to state the course which her Majesty's government have to pursue.

7. That course was already indicated in Mr. Elliott's letter of the 11th ult., as correctly quoted in your present communication.

8. I am, therefore, to request that you will inform the Committee, that Sir John Pakington feels it necessary to call upon them for payment of the amount due to the Crown, in respect of the 1s. 6d. received by the Association on land sales. A formal notice to pay this sum by a specified time will be duly addressed to the Committee, and on failure to make such payment, Sir John Pakington will feel it his duty to exercise the power placed in his hands of putting a stop to the land-selling functions of the Association, or of its delegates in the colony, while it will be necessary, at the same time, for her Majesty's government to take such steps as they may be advised for the recovery of the debt.

9. I am to remind you, that this is a determination which Sir John Pakington is compelled to adopt, in consequence of the refusal of the Association to fulfil a condition of their constitution. Not being able to accede to the terms on which you propose to make the payment, he has no resource but to require it unconditionally. He has been advised by the present law-officers of the Crown--fully coinciding with their predecessors--that while the right of the Crown to this sum is undoubted, the Crown is equally bound to pay it over to the New Zealand Company as soon as received, in reduction of the debt created by the 10th and 11th of Victoria, chap. 112.

10. And this being the case, he must distinctly warn the Committee that if the result of these proceedings is the termination of their functions, this consequence is wholly attributable to themselves, and is not voluntarily brought on by her Majesty's government; to avert it, the Association having nothing to do but to make payment of a debt, which they have repeatedly acknowledged to be due. They do not contest the right of the Crown to the sum in question; they object only to the manner in which the Crown--acting under legal advice-- feels itself bound to apply it.

11. If, on the other hand, the Committee of Management make the payment in question, then, while they in no degree prejudice the alleged right of the Association in its present litigation with the New Zealand Company, the Committee will place it out of the power of her Majesty's government, as it is certainly against their inclination, to interfere with the Association's lawful proceedings. Sir John Pakington has already expressed his own opinion as to the time and circumstances under which the Committee of Management propose to make their intended transfer; it was necessary, for the purpose of this letter, that he should do so, but his disapproval could in no degree arrest the Association in taking the course which they consider right and expedient. It rests with themselves to say whether, by paying their admitted debt to the Crown, they will place themselves in a position to go on with a scheme which they appear to regard as so essential to the prosperity of the settlement under their charge.

12. If they should persist in their refusal to do so, it only remains for Sir John Pakington to state that although, under other circumstances, he could not but have greatly regretted the termination of a scheme in which so great an interest has been taken by eminent friends of New Zealand and promoters of British colonization, yet he will be better reconciled to it at present from his conviction of the great improbability of its long continuance, in combination with

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the powers intrusted to the general legislature of New Zealand over the public land of the colony at large.

13. Every attention will be paid, in the event of this termination, both to the interests and the convenience of parties engaged in land-purchasing negotiations with the Association, and Sir John Pakington will be obliged by any suggestions which may be made on this behalf in addition to those already convened by your letter of the 2nd ult.

I have, &c.,


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