As mentioned before, Auckland had little to offer for many of those who had only their labour and no capital, but carpenters were reasonably well paid and, for a time, Ben was kept fully occupied working at this trade.
When the family arrived from Wellington on the Abercrombie, Auckland was a tiny settlement indeed; for it was only in July 1840 that Governor Hobson had chosen the site of the future Capital on the shores of the Waitemata. The Treaty of Waitangi had just been signed when he travelled in the Ranger from the Bay of Islands to view the land and talk with the Ngatiwhatua tribe, of whom Apihau te Kawau was the paramount Chief. Not long afterwards the Anna Watson sailed from Russell, with officials and their wives, cabin passengers and thirty-two workmen to establish the new settlement; and disappointed New Zealand Company immigrants, from Port Nicholson, arrived on the Platina. On 18 September 1840, Captain Symonds, for whom Symonds Street is named, had raised the flag and read the preliminary Agreement with the Ngatiwhatua tribe for the ceding of approximately three thousand acres to the Crown. Te Kawau signed the Agreement. He was to cede other lands and to have his tohutohu inscribed on the document for the sale of land to Benjamin Smith; but this was not to happen until 7 May 1845. It is interesting to note that in the Maori language version of the land Deed subsequently issued, Benjamin Smith’s name is rendered as Penehamini Mete.
The first sale of Crown Land was made in 1841 and other sales thereafter at regular intervals; by the end of the year there were some weatherboard houses, and though most people were living in whares or in tents, permanent settlement was proceeding rapidly. There were Government buildings being erected, and commercial buildings and churches, and also accommodation for anticipated immigrants at Mechanics Bay,.
The major event of the year was the arrival of the Jane Gifford and the Duchess of Argyle on 9 October with 560 immigrants predominantly Scottish. Immigrants meant new friends, but also the beginning of wider class distinctions. They meant greater prosperity for all: however as the flow became a flood, employment opportunities became less and by 1844 some families were facing poverty. Carpenters were not as badly off as persons in many other trades; for there were still buildings to be erected and there was a large number of sawmills; nevertheless, they were not at all prosperous. Of the sawmills one was owned by the Government at Mechanics Bay, others at Commercial Bay and at Onehunga, and it was at Onehunga that Ben found himself in considerable difficulty.
In 1835, Thomas Mitchell of Sydney had purchased the whole of the Tamaki Isthmus from the Ngatiwhatua tribe (Conveyance date 1 January 1836) and commenced shipping sawn timber to Sydney. He died in 1837 and his trustees sold the land to the Waitemata and Manukau Land Company; however as a result of the policy of the Secretary of State for colonies in the British Government, Lord Normanby, the ownership of this land was disallowed during the time of Governor Hobson and the land reverted to the Maori owners, te Kawau, Kawae and Tinana te Tamaki. At this time, the Crown had a prior right of ownership of all land offered for sale by the Maoris, which it then sold off after survey to the general public by way of auction at a fixed minimum price of 20 Shillings per acre. When Captain Fitzroy became Governor (1842 – 45) he waived the Crown’s right of pre-emption by the issue of a Proclamation which permitted some native land to be sold direct to the public provided the purchasers paid the government only 10 Shillings per acre. Because this was still considered a high price there were not many sales and so Fitzroy by a further Proclamation, on 10 October 1844, further reduced the amount due to the government and a land rush then occurred.
Among the purchasers of land direct from Maori owners was John Thomas Jackson who, in partnership with William Hobson (Wiremu Hopehona), bought land previously held by the Waitemata and Manukau Land Company. The Deed is No. 92 in Maori Deeds of Old Land Purchases in the North Island. In 1845, Mr Jackson purchased a further 1000 acres from Mohi, which Alexander Geddes bought in the next year for 1,970 pounds. On the original holding Mr Jackson ran a few cattle and he needed a house. He entered into an Agreement with Ben Smith on 9 August 1844 for the building of a four-roomed dwellinghouse. Ben was to supply all the materials and labour and Thomas Jackson was to give him in exchange a clear title to fifty-five acres. The small stone house completed in 1844 was later occupied by Mr Geddes. It cost 51 Pounds to build. All would probably have been well, and the Agreement honoured by Thomas Jackson, had not the Government had second thoughts about direct land purchase. The Land Commissioners refused to validate Thomas Jackson’s original purchase unless he complied with conditions which he was, at the time, unable to afford. He could not under the circumstances give a clear title to fifty-five acres. Ben Smith assumed there was no means of obtaining redress and wrote to the Colonial Secretary on 17 December 1844 as follows:
Benjamin Smith requesting Right of Pre-emption to be waived over land originally purchased from J T Jackson. Perceiving by the Government Gazette that the Crown’s right of Pre-emption over certain lands will only be waived on permission having been first granted to purchase, I beg most respectfully to lay the following statement before you, which I have the honour to request you will submit to his Excellency in the hope that he will be pleased to take a favourable view of my case and enable me to procure a Crown Title to my land, without which it will not only be useless, but will entail ruin on me and my family.
I am urged to adopt this course…. in consequence of the depression of the times I am unable to obtain work at my trade as a carpenter.
I now beg most respectfully to state my case.
J T Jackson purchased on the 11 June 1844 certain lands in the district of Manukau from the Native Chiefs and entered into an Agreement with me to build him a house at Onehunga, in consideration for which I was to have 55 acres of Land, forming part of the purchase and he then agreed to procure the Government Pre-emption Certificate in order to my obtaining legal title to the land. In this he has failed, as he will not apply in consequence of the recent Proclamation, he having purchased without having previously obtained the sanction of the Government.
I have the honour to enclose the original Agreement and other papers relating to the matter, which I beg most respectfully may be laid before His Excellency, as I am desirous of settling on the land and making it available as early as practicable.
It is a case of severe hardship p to me to be unable to have a clear Title to the land, and trust His Excellency will permit the Crown’s Right of Pre-emption to be waived as I am totally unable to pay the amount that will otherwise be due to the Crown before a Title can be granted.
Respectfully requesting an early communication addressed to me at Mr Nicholl’s Inn, Queen Street.
I have the honour to be Sir
Your most Obedient Servant
Benjamin Smith
Ben had some cause to be concerned, for he now had three sons – Ezra named after one of his brothers had been born in 1843, and Martha was expecting Walter, her fourth child. Nevertheless, he had done Mr Jackson an injustice, for Thomas Jackson had obtained the consent of the Crown for a waiver – Certificate No. 43 – but it was conditional that fees be paid and a survey carried out, so a position of stalemate had arisen. Ben again wrote to the Governor, on 11 February 1845, from his Albert Street address seeking an interview with Governor Fitzroy.
The outcome of this last appeal was that Ben could have the Crown’s Right of Pre-emption waived provided that he first approached the Native Chiefs and sought their consent for the sale to him – the sale to Jackson was officially considered void; and if they were willing to sell, that he then complete all other required formalities, pay the fees to the Crown and have the land surveyed. This he did and Pre-emption Certificate No. 182 was issued to him on 10 March 1845 by Andrew Sinclair, Colonial Secretary, on behalf of the Governor with the full consent of Thomas Jackson and Apihau te Kawau and his tribe. The certificate is interesting for its bare description of what is today a most valuable area of Real Estate,
Auckland, New Zealand, 10 March 1945.
I certify that His Excellency, the Governor, has consented – on behalf of Her Most Gracious Majesty the Queen – to waive the right of Pre-emption over not more than Fifty–five Acres of Land.
Situated at Onehunga, near Mount Smart adjoining Mr Donovan’s Farm.
The agreement made by the Native Chiefs for the sale of the land to Ben is in the Maori language; Mr C O Davies, the Official Interpreter, made a translation, and it reads thus:
7 May 1845
We the undersigned Native Chiefs of the Tribe Ngatiwhatua do fully consent this day to give, make over and sell to Benjamin Smith, his heirs after him and his assigns a portion of land situated on the left bank of the river Manukau; the said land to be disposed with all wood, water, and everything else upon the said land; we will not sell the said land to any other individual, but our claim to the said land is null and void, and we fully make over and sell the said land, with all things thereupon to Benjamin Smith, his heirs; and his assigns, to be held securely at this present time, after this, and for ever.
Boundaries. Bounded on the one side by land belonging to the natives and Mr Donovan – bounded on another side by land belonging to Mr Henry – bounded on another side by land belonging to Mr Jackson – and bounded on the other side by the river Manukau – We also assent to a road of thirty-three feet wide to come thro’ the land belonging to Mr Jackson, as a thorough-fare for Benjamin Smith his heirs, at the present time and forever.
Payment for the said land sixty-two pounds; one pound per acre. We fully assent to this document, and because we are all agreed thereto, we affix our names and marks on this day of February the twenty-eight in the year of our Lord, one thousand eight hundred and forty-five.
True Translation
C O Davies
The signatories to the original were te Kawai, te Keene, Matiu and Na te Hira, son of te Kawai; witnessed by Harehi Reweti at Kai-Whakamaori, Akarana. The European witness was William Hay, Gentleman, of Auckland
Because of the goodwill of the leading Chiefs of the Ngatiwhatua tribe, Ben was granted a clear Title, and was able to take possession the land. As a token of his gratitude he presented te Kawai with one pound – a substantial sum in those days – and a wooden box valued at ten shillings.
As the land represented payment for building materials and labour, he sold it on 28 May 1846 to David Arthur, a Ginger Beer Brewer of Onehunga. Arthur paid Sixty Pounds by way of consideration; but he in turn, was to have his difficulties because his application for the confirmation of the Deed of Conveyance issued by Benjamin Smith was refused by the Colonial Secretary’s Office. He therefore submitted a case to be heard before the Land Commissioners. On 16 September 1847, Ben Smith as a witness on Arthur’s behalf mentioned in evidence that the house he had built was a four-roomed cottage on land formerly owned by Mr Jackson; but now in the possession of Mr Geddes and occupied by him. The second witness, te Keene, stated that the land had originally belonged to te Kawau, the principal Chief who had authorised Matiu to dispose of it to Thomas Jackson and part of the consideration consisted of a silver watch, clothing, coats and trousers. He could not recollect the whole; though the full amount of the consideration had been received. He also confirmed that the Deed produced in evidence for the making of the land over to Benjamin Smith – the Maori version – was the original, and that the signatures were those of his own, te Hira, and Matiu. He also said: “I signed for te Kawau with his full consent as I have usually done” – an informative statement indeed!
David Arthur was eventually awarded a Crown grant; but he was required to comply with Clause 14 of the Land Claims Ordinance and give 11 acres 1 rood to become the Domain Land of the Crown. His troubles continued, for in the following year Governor George Grey, with Bishop Selwyn and Major Richmond, chose the site at Onehunga for the establishment of a military settlement, and it was Arthur’s misfortune that among the acreage chosen was not only the land purchased from Benjamin Smith but also a parcel he had bought from Thomas Jackson. He was however, eventually awarded compensation by the Commissioners of Sixty-six pounds, six shillings and two pence and also awarded five acres two roods being lot 24, Parish of Waitemata, County of Eden, situated near the village of Onehunga. This grant was made on 8 August 1851.
The house built by Benjamin Smith for Thomas Jackson appears in many old photographs and drawings of early Onehunga and is believed to be the first constructed at Onehunga.