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Chapter XXI A few comments on legal procedure in the colonies

Once again I saw the crescent-shaped bay whose waters washed the feet of the fledgeling capital of Taranaki. Once again I had to endure the barrage of three ranks of surging waves which pounded into a surf at the very foundations of the littoral buildings. This time I returned to the town to become the centre of attention, and that within five minutes of setting foot on shore. My story of the Maori attack was received with great interest, but even greater was the interest which greeted my little story about the swindle.

Even before my return, the bubble of Mr Charles Schaeffer's new enterprise had burst. On the very day I left New Plymouth, shares in Starvegut Farm flooded on to the market. Mr Wittmore, my captain (who had sent me away), and all their friends got rid of their shares in the new venture.

The new shareholders went to look over their property to see for themselves how the work was progressing. They found rather more than a dozen wells, each about thirty feet deep and carefully boarded. Not one held even a sniff of oil. Naturally there was a tremendous uproar. Everyone immediately suspected a swindle. But because the lucky man who had first discovered the place and had been the moving spirit of the enterprise had not sold his shares, he could not be directly implicated. The new owners concluded that a trickle of oil must seep from a seam below the surface into the farm well, and that a search for a spring was therefore justified. Charles was assumed to be innocent of fraud—indeed, he was seen as a victim of his own credulity. Colonials too often accept a possibility for an indisputable fact, and risk money on speculations in which, even in the best conditions, they can only be guided by instinct. For the most significant omens on the surface are often no real guide to what lies beneath the earth's crust. They are accustomed to disappointment: they repair losses sustained from speculation in ten false mines by finding one that is genuine. They don't worry too much about their squandered money. As they see it, someone is bound to lose every page 238 day of the year. The discovery of a fraud only would cause their indignation against the person who had instigated a search for oil in a place where there was none.

Since Mr Schaeffer still owned shares in the company I was unable to charge him with fraud. His prudence greatly weakened my accusation. Half a day after I stepped ashore in New Plymouth for the second time, people were avoiding me. The public prosecutor accepted my statement only grudgingly.

The next day the Irishman, several of the workers at the field, and some of the shareholders were called before a Justice of the Peace. The Irishman denied everything. Mr Wittmore openly admitted that on the morning following my departure the commander of my unit had come to see him in his office (since the war had begun there were no civilian dignitaries in New Plymouth), and had spoken of the poor prospects of the oil speculation. He said that he had found no oil in any well he owned, and that the oil found in the garden well before Schaeffer purchased the farm, and what the drill nearest to the spring had since produced, must have come from a source with no commercial value. According to Mr Wittmore's testimony, when he heard this he decided that he needed the money he had invested for his other affairs. Since he was not very happy about the new oilfields and was also short of cash, he contacted Mr Schaeffer, the company's chief agent. Mr Schaeffer had laughed at what he called a fairy-story, had assured him that his own belief in the existence of the oil remained as strong as ever, and that he did not intend to sell his shares at any price. Nevertheless, to accommodate his friend, he found a purchaser for Mr Wittmore's holdings on very favourable terms. For this he received his usual commission. Many other shareholders must have smelt danger, for they also sold their property during that day. The sudden sale caused something approaching a panic. The company's affairs were thoroughly examined and it was decided not to continue speculation. Naturally, those who had bought their shares the previous day felt that they had been let down—and there were a number of them for, despite the limited time available, most of the original owners had withdrawn from the company with their fortunes practically unimpaired.

‘Did you sell your shares simply because someone not directly concerned with the company warned you to do so?’ the Justice of the Peace asked Mr Wittmore.

‘I sold them on the strength of my friend's warning. He had examined the wells and talked to the workers. My sale can't be termed dishonest. Nobody can accuse me of fraud: what I did was well page 239 within the law. And I don't believe that Mr Schaeffer would wilfully deceive anyone either.’

‘According to the law,’ said the justice, whose notions of business morality conformed exactly to colonial notions, ‘the affair was legally conducted. You can call it a trick, a clever one at that, and very well timed: but quite acceptable in the business world. The prospective buyers ought to have inspected the property they were buying, particularly when the oilfield is barely half an hour's walk from town. Did you describe the signs which led you to believe that oil was there?’

‘I didn't tell them anything except that I was in need of ready cash to finance my other affairs, which is true. I am about to charter a ship to go to Melbourne, and that's an expensive business.’

‘Did the purchasers ask the workers or the foreman what prospects there were of finding oil?’

‘They did.’

‘What did they reply?’

Counsel for the Crown intervened, saying that the workers' reply could only be repeated by the witness if he had heard it himself.

‘I heard it all right,’ replied the witness. ‘The foreman claimed that he expected to strike oil. I trusted him: he has a reputation for reliability. He has prospected for oil before and has found it in workable quantities. So everyone regarded him as an authority and trusted him accordingly.’

‘Did you surmise the foreman to be lying?’ asked Counsel.

‘I didn't try to make him lie and I don't need to say what I thought. I simply decided to get rid of my shares, and that's all. The people who bought from me ought to have guessed for themselves. In any case, the whole thing was legally conducted. I abused no one's trust,’ he added, looking round the court. ‘I doubt whether there's a man in New Plymouth who would have behaved any differently. When I learnt that the wells were unlikely to yield the dividend expected from them, I sold them. But I didn't guarantee their productivity.’

A murmur of approval which came even from those who had suffered losses, proved to me that business morality, in some colonial circles at any rate, was at a very low ebb. The assembled public fully demonstrated this. On the face of it, all those present would sell their shares to their own brothers if they suspected that they were valueless.

Mr Wittmore was allowed to stand down. Mr Stone, a physician, and the commander of my unit, took his place.

He also claimed that his information about the failure of the oil page 240 had come by word of mouth from one of the workers. He immediately instructed his broker to dispose of his stock. Founding mining companies, launching shares on the market, and selling them several times over during one week were all normal business transactions. He took advantage of the ease with which this kind of property could be disposed of and sold it—perhaps under rather dubious conditions. ‘Who here would have acted differently?’ he asked loudly. A hundred eyes from the public benches answered that no one would.

A murmur confirmed this silent assent.

‘What day was it that you visited the oilfield and discovered from your inspection, or conversation with the workers, that it was unlikely to succeed?’ asked the Crown prosecutor after a consultation with me.

‘I went there the day before I sold my shares.’

‘What date was that, and at what time did you go?’

This opened a long cross-examination. The witness evaded the question. He did not remember, he claimed, the day, hour, or place of his conversation with the worker or workers who had suggested that he should sell his share in the enterprise. Once he claimed that his visit had occurred on the fourth of April, later he changed the date to the third, and at last he swore that although he could not remember the date, he had certainly been there. His lawyer guessed that the prosecution hoped to prove he had never visited the oilfield, had never talked to the men there, and had sold his shares on the strength of a warning from a director of the company. If the justice could be convinced that the witness had trumped up his story of a casual visit to the oilfield, during which he had heard various conjectures from the workers on the spot, he would have to send the case for trial. He would then have reason to believe that Mr Stone and the others who had got rid of their shares in Starvegut Farm did so not on their own initiative or from instinctive caution but after consultation with one another. The Crown prosecutor tried hard to make the witness name the man who had warned him, and to be precise about the day and the place where the warning had been delivered. If he could then produce that worker in court, his evidence under cross-examination would contradict what the present witness affirmed. Such a contradiction would be incontrovertible proof of perjury and collusion. The lawyer for the defence used all his eloquence to protect his client from giving dates and names. He succeeded so well that the witness blamed his poor memory for the vague answers he gave, and did not mention a single name. As to the date, he swore he had visited the oilfield on either the third or page 241 the fourth of April. Several hours elapsed before he admitted even that.

‘Why did you go to the oilfield on that day?’

‘Pure chance. I went for a walk, and for some reason I chose that direction rather than another.’

‘Can you explain why this particular worker (or workers) selected you to be his confidant and told you what was happening while everyone else was lying about the wealth that could be expected from the oilfield?’

Here the defence lawyer stepped in again.

‘Mr Stone is not obliged to account for the motives of other witnesses. The workers are here, just outside the doors of the court. They should have been asked whether Mr Stone spoke to them, and what prompted them to tell him the truth.’

This marked the beginning of a second learned debate between the Crown prosecutor and the defence lawyer about the rules laid down for the examination of witnesses. In compliance with English court procedure they cited many famous precedents, fat volumes were consulted, and many previous judgments were read out. Mr Stone's confusion and the lawyer's determination to waste the rest of the day in pointless discussion showed me clearly enough that both gentlemen were desperately anxious to adjourn the proceedings. They probably planned during the night to prime the workers as to what they should say at the resumed inquiry the following day. The Crown prosecutor knew well enough what they were up to, but he could do nothing about it.

The case that evening was adjourned until the following week. It was Friday and the justice would not be available before Monday.

During Saturday and Sunday I did not rest on my laurels. I had roused too many antagonists to be left alone, and I feared that I would not come out of the affair without some harm being done to me. The workers would confirm that in talking to Mr Stone they had spoken carelessly. That would be a good enough explanation of why they had warned no one else about what was none of their business. The court and public opinion saw no harm in Mr Stone and his friends taking advantage of this careless talk to save themselves at other people's expense. In the settlers' opinion this would be a smart trick but certainly not a swindle. Only a plot by the management to warn some of the shareholders to the detriment of others would be counted as a crime.

I clearly saw the predicament I was in and went to consult my countryman. Major Tempaki immediately saw my problem. In the page 242 course of our conversation he expressed astonishment when I told him that Mr Stone claimed to have visited the oilfield on the thifd or the fourth of April.

‘I sent him to the camp on the third of April,’ he said. ‘And I know that before dawn on the fourth he went off to oversee his kauri diggers in the bush. He couldn't have got back before evening, and besides, he would have come from a different direction altogether.’

‘Major!’ I shouted jubilantly, cyou have put the perfect weapon into my hands. If he couldn't have gone to the oilfield when he says he did, and the workers swear he was there, perjury will be plain. Do you know how an oil well is dug out?’

‘No, I don't.’

‘A team of workers excavating a well numbers six, nine, or twelve men, depending on its size and how much room there is for them to manoeuvre. Here there are no more than six diggers to each well. They work in pairs and are relieved every eight hours so that the work is continuous. If you go to look at a well, you'll find only one worker at the surface, hauling up clay or water, while his comrade works at the bottom. So Mr Stone could only have met one man if, as he says, he visited one well. He hasn't mentioned any names but he certainly will on Monday and his witness will confirm what he has said. I've gone so far in this case that I must either prove that my opponents are swindlers or be called a slanderer, and the information you have given me will help me to clear my name and expose the true culprits.’

‘How helpful is this information, really?’

‘I'll find Mr Stone's kauri gum diggers, and I'll prove that he was in the bush with them on the fourth of April. Ergo, he couldn't have been at the oilfield. Another witness will prove that he was in camp on the third, and still others will say where he spent the second and first of April. In short, it will be plain that Mr Stone never saw the well nor spoke to the workers. I'll leave the Crown prosecutor to find other evidence to condemn him and his scheming friends.’

After I had made this explanation, I left the major and went to see the prosecutor. The next day, he and I and a police constable rode into the bush. We found the kauri diggers at work. They were prodding the ground around the kauri trees with iron spears in the same manner in which the nativis look for the precious resin—except that the Maoris search for gum left by trees burnt ages ago, whereas the pakehas look for the resin of living trees.

The bushmen, isolated in the wilderness miles from the town, had not been suborned. They accounted for every minute Mr Stone had spent with them. We made our way back through the camp and page 243 received a full report of his activities there. We learnt that Captain Stone (as he was in the military world) had passed the evening of the fourth of April in his tent About midnight, Second Lieutenant Schaeffer, accompanied by a third person, had called on him. Mr Schaeffer had requested that the captain be roused. Following their half-hour conversation, the captain gave orders to speed the departure of a detachment he had intended should go to Wanganui the following day, and to include me in their number.

The Crown prosecutor rubbed his hands in glee. He had been keeping his eye on Mr Stone for a long time. He surmised that he was an adventurer with no formal qualifications, who killed people right and left with impunity. To relieve the shortage of medical practitioners in Melbourne soon after gold had been discovered there, assistant surgeons were employed as fully-fledged physicians. In the lax conditions obtaining Mr Stone had continued to practise his ‘profession’, but he had activities on the side as well. Before the war he had smuggled brandy to the Maoris, and he was also greatly interested in kauri gum. The colonies are full of people who pursue such diverse occupations.

“He is what we commonly call a quack,” said the lawyer. ‘Granted he is a clever fellow and knows how to use his tongue. After all, they chose him to command an ambulance unit.’

I could not help wondering whether the quack might not be able to tell me some equally interesting snippet of scandal about the Crown prosecutor. The learned professions in this part of the world are often filled by people who not only have no degrees but even, sometimes, have no training or qualifications of any kind.

The Crown prosecutor asked me to keep quiet about our latest discoveries until the next session of the court.

‘On Monday I shall have all the witnesses in court. I'll account for every minute of his time, I'll show why he got rid of you and who persuaded him to do so, and who advised him to get rid of his shares. I'll show them that I don't let the grass grow under my feet. This trial will make my career…. Next year I'll be Superintendent of the province!’ he concluded, very pleased with himself.

Unfortunately Sunday morning showed that the opposition had not been idle either. The doctor had vanished without trace. He must have got wind that the Crown prosecutor meant business. This news became generally known in the camp and the town in no time at all. Going into the town I met Charles walking těte à těte with the lovely Arabella. They were so preoccupied with one another that they did not notice me. I spoke to them, and wished them good morning.

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He, quite unperturbed, asked me jeeringly whether I had heard that the doctor had left town.

‘No,’ I replied curtly.

‘Your calculations always misfire somehow. That's what usually happens to people who meddle in what's no concern of theirs. Who asked for your advice? Why should you take it on yourself to look after the welfare of the shareholders who lost their investment? Everyone should look after himself in business. You'll soon learn that you haven't been looking after your own affairs any too well. Mr Wittmore will send you packing from the commissariat tomorrow. You'll be put on detail with the mules.’

‘Are you sure about that?’

‘Quite certain.’

‘But. Charles!’ exclaimed his bewitching companion, ‘Father would never do that. You know this young gentleman acted in good faith. Even if he made a mistake, his intentions were very good.’

I gave her a grateful look as I walked away. She was a goodhearted girl, whose affections he had stolen just as he had stolen the affections of others. Truly, he had a rare talent for trapping honest flies in the cobweb of his charm.

I was indeed perplexed when I left the tender couple. I felt sure I would be dismissed from my post. Naturally I went to my protector to ask for help. ‘Major,’ I said, after I had greeted him, ‘they want to throw me out of my job.’ And I repeated what Charles had told me.

‘They can't touch you without consulting me,’ my compatriot assured me. ‘To be sure, I can't dictate to Mr Wittmore whom he should employ, but there are other military offices. I'll find a place for you. There's no question of your being transferred to mule duty. Because I respect your convictions I've managed to get a release for you—and of course we need people who have some knowledge of figures. In a few days—I'm telling you this in confidence—we'll march to the bush again to finish this war once and for all. Everything is ready. Cameron has quite lost his Indian reputation in these wretched forests. He would insist on vain pursuit of an invisible foe. We now have a new commander-in-chief. Reinforcements have arrived from England. Operations will start on the Waikato, on the Wanganui, in the bay of Tauranga, and around Mount Egmont—simultaneously. So we'll keep all the rebellious tribes busy and the northern Maoris won't be able to help their southern kinsmen. I don't want you wasting your time with us and so I have secured your release from the militia.’

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‘I am very grateful to you, sir. May God grant that one day I shall be able to repay your kindness.’

‘You are reluctant to help the stronger against the weaker. I don't agree with you on that issue. But I tolerate the views even of my fiercest opponents, and I've helped to free you from a service you dislike, although I hoped—other people considered it your duty—that you would join us. Perhaps my friends and I are wrong and have no right to judge you and your convictions. You have your own principles to guide you. In that, you and I are not like the majority of your compatriots. In some things we prefer to listen to what our consciences advise rather than to what people say. Your conscience condemns this war. We don't want you to help us against your better judgment any longer. You can stay here,’ he added, ‘to protect your dark-skinned friend. I met her doctor yesterday. He says that she will be about on crutches in a few weeks’ time, at the very latest. Mother Nature gives these children of hers stronger constitutions than ours. What would render us helpless for months afflicts them only for days or, at most, weeks. You can be her crutch. Apparently you already know her weight.’

The major's little pleasantry touched me on the raw.

‘If I feel sympathy for her, it's chiefly because of my dead friend. I should like to repay her for the service he did me.’

This turn in the conversation led us to talk about the relationship between Charles and Arabella. I told the major I was sorry for the girl who had, that very morning, given me an unmistakeable demonstration of her goodness of heart. ‘She is too good for that unprincipled man,’ I said. ‘Moreover, I doubt whether Williams and his daughter will stay quiet if they feel the friendship may end in matrimony. Their relationship puzzles me,’ I added. ‘Charles assured me there was nothing serious between them. According to him, he would never dream of marrying her. He soothed his betrayed mistress with a similar assurance. That was the condition on which she freed him from the promise he had given her and her father.’

‘Did he really deceive her to such an extent?’ asked the major with an angry frown.

‘He really did, sir.’

What villainy! exclaimed Tempski. ‘Why, the marriage was arranged long ago. In a month at the very latest Mr Wittmore's brig will sail to Melbourne. Charles, Arabella, and her mother will board it straight after the young couple's marriage.’

‘How do you know that?’

‘Mr Wittmore himself told me. He is very pleased with his future page 246 son-in-law. And although a romance with a Maori girl reflects discredit on nobody, and Mr and Mrs Wittmore know perfectly well what his relations with the wench were, they are nonetheless reluctant to expose their daughter to the jealousy of her coloured rival or their envious neighbours. But I don't know what they will say when they learn that Schaeffer not only deceives Maori girls but makes money by false pretences. Wittmore has hitherto believed that Schaeffer overplayed his hand in this oil business simply through imprudence. He feels grateful to Charles for helping him to dispose of his own shares. He won't easily swallow the fact that Charles involved him in the business simply to cover up his own swindles with the company—or that, having abused the wretched townsfolk as long as he could, he wilfully precipitated the catastrophe in order to profit by it.’

‘Does Mr Wittmore really consider the sale of his shares an honourable action?’

The major picked up a thread from a spider's web in the window. He put it on the table and answered: ‘This thread represents the borderline between what the colonials regard as honest, honourable trading acumen and what we call cheating. So long as Mr Wittmore acted on the strength of a friendly tip, based on a personal examination of the well, he stood on the right side of the thread. The sale of shares under those circumstances was legal, because the moving spirit in the enterprise, Schaeffer, believed—or pretended to believe—in the existence of underground wealth. He was best qualified to know whether the business was simply a gamble or a trap for the naive public set by some of the shareholders or the company's management.’

‘Did Mr Wittmore's conduct conform to the demands of the law and to local conceptions of the honourable conduct of business?’

“There's no doubt about that. He acted legally. In this country, what is legal is moral. Schaeffer's position is entirely different if he knew beforehand that the whole speculation arose from an accidental spill of oil and despite this persuaded a group of people to found a company in whose shares he traded, artificially increasing their value by spreading rumours about the great profit expected. Moreover, he acted as broker and was paid for it, and finally he kept his shares to disguise his part in the swindle. If that is really the case, then he has overstepped this thread and acted against the law.”

‘Illegal means immoral, is that so?’

‘According to local notions. The fact that he did something illegal is quite plain to me and to you and to the Crown prosecutor. But our law says that a man can only be condemned when his guilt has been proved beyond any doubt, and that the accusation must be supported page 247 by irrefutable evidence. You say that an unknown Irishman confessed his guilt to you. Who else heard his confession? The Irishman denies your statement: you have no other witnesses. Your words are no more than supposition. Suspicions are not enough to get a conviction: they won't condemn the accused in the eyes of the public. First you'll have to get legal proof—bring the Irishman before the court.’

‘And then you'll get the culprit locked up and deprive him of the right to marry a respectable woman. Mere suspicion doesn't limit his freedom or bar him from entering decent households.’

‘I can see you quite understand my exposition of the local precepts of good conduct, legality, and morality. All thanks to this spider's thread.’

‘Thanks to the thread! If I hadn't seen for myself how thin a line may divide two contradictory ideas, I would never have understood your differentiation between honesty and wickedness. Alas, I have no proof. Whatever I do, I can't transfer Master Charles across even so thin a thread. I don't know where the Irishman is, and even if I did I couldn't compel him to tell the truth.’

‘In that case, keep quiet. If that half-savage old man and his wholly savage daughter learn of the proposed marriage in time, they will become Schaeffer's judges and executioners. Local public opinion will justify that also. Nobody scorns a white man who has seduced a Maori woman. No jury would compute the harm she has suffered at more than twenty pounds. On the other hand I doubt whether the same jury would be very harsh towards her father if, let us say, he should tear the heart out of his daughter's seducer.’

‘What a confusion of ideas! How blind one must be not to see the line between good and evil! That's the result of racial prejudice. Assuredly, this world of yours is absolutely chaotic!’

‘How can it be anything else? This is a new world where everything is in a state of flux. If you tried to reconcile and explain all the contradictory customs which prevail here, you'd be building card houses. One theory would simply upset another. By our treatment of the Maori girl we stand convicted as libertines. Then if we acquit her father for murder we shall be considered too lenient towards wild young men. All this confusion is caused by the mixture of two races in the world—races with conflicting views of morality. But I won't keep you any longer. Before we part, remember for heaven's sake not to interfere in Mr Williams's family affairs, Mr Wittmore's, or those of any other colonial family. Laissez les faire. You are in no position to help them. You don't understand their motives or their morality, or their way of thinking.’