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McINTOSH V. SYMONDS.

Though a considerable time has now elapsed since this caso was decided, and though tho decision has several times been alluded to by the public press, yet there are still some views involved in it which we have not seen I noticed, and as they appear to have an important bearing upon other interests than those more immediately concerned in it, we think it necessary again to bring it undor public notice. British authority has been established in New Zealand nearly seven years. During this period tho Government have been continually occupied in the investigation and decision of every variety of land claims. Surely, then, in that time the authorities ought to have acquired a perfect knowledge | of the subject ; and tho rights of the people, and the power and prerogative of the Crown should have been thoroughly understood. Strange to say, however, such is not the case. After draining the resources of tho old settlers by vexatious delays in the examination of their claims, and at length giving them — when utterly impoverished, and driven to tho verge of ruin, — grants to their lands under the public seal of the Colony ; after having raised np a fresh set of Claimants, and pledging the faith of the crown to grant titles to them also,f or the land which they encouraged them to purchase — 'tis passing stangc, wo say, that after having done all this, — negotiating, and cavilling with hundreds during seven long years, — effecting sales and exchanges, — granting titles to land, or incurring obligations to do so, — that the Government should now, for the first time, think of ascertaining the legality of their acts. What gross and reckless mismanagement on the part of the Government! What suffering, injustico and loss tQ the settlers ! What destruction to the permanent interests of the Colony does such a state of things, and such conduct imply ! { So it is, however. A trial has been lately got up by the Government, in order to ascertain the stato of the law relative to the disposal of the Lands of the Colony. Tho plaintiff in the case to which we allude, Mr. Mclntosh, purchased under tho Government regulations now well known as the penny-aii-acre proclamation. Lord Stanley, when in office, though opposed to the system, gave directions

that thoso pnrch.iscs which had been actually effected, should bo recognised. His Excellency Governor Grey, however, thought ! fit to disregard His Lord.-vhip's instructions, and to oppose, in every possible manner, tho pretensions of those who had made purchases under these proclamations. The case was therefore brought before tho Supreme Court, — not so much, apparently, with tno view of ascertaining the legal merits of the question, as with the hopo of findfng sufficient legal warrant to annull and repudiate thoso claims. It is necessary to keep this distinction m view as wo proceed, because it has an important bearing upon tho propriety and policy of tho Government in bringing this case before the Supremo Court, especially as by this procoduro a very heavy responsibility has been incurred — tho honor and good faith of the Crown havo been involved ; tho authority of the Governor, tho Crown's rcprescnta- J tive here, has been impeached, and the respect and odedience which the Colonists owe to him as such, undermined ; and, as tho decision has been fatal to tho titles of the claimants, tho most disastrous consequences may yet be entailed upon the community. Has justice boon tho object sought for ? In our opinion, a court of law was not tho proper tribunal. It was well known that almost all the acts of Government here, relative to land, as well as almost every thing clfo, wero irregular, and even illegal: but, as tho past could not bo recalled, a Bill of Indemnity, in tho shape of an Act of Parliament, (instead of a quibbling legal decision,) should have been applied for, to legalize tho past, and regulate the future. But this might have been done without, in the meantime, spreading confusion and dismay by invalidating tho present land titles, and thereby causing serious loss and inconvenienco to the public. Instead, however, of adopting such a course, as the desire of doing justico to all would have indicated, the harsh and imperious letter of tho law has been appealed to, and, we think, with tho very worst results. Allowing that tho elaborate decision of tho Judges has established the principle, that no title to land in this colony can bo legal unless derived from tho Crown ; and that according to tho strict interpretation of tho law, j all purchases effected by Europeans from tho natives, become at once waste lands of tho Crown, and so fall under tho operation of the Australian Land Sales Act. not to bo alienated but in conformity to its provisions, that Governor Fitz Roy's proclamations, and all that was transacted under their sanction was illegal — still, we cannot too strongly assort, that there is something more demanded at tho hands of the Government, botween Governors, and the governed, than specious tochnalitios, and legal , dry-bones. Justice is demanded, and must be dispensed : honor and honesty are expected, and must be maintained. All these fundamental principles are however, most strikingly violated by the proceedings of Government in tho present case. Not that we would insinuate that tho Judges wero influenced by improper motives in framing their decision, but that tho authorities acted most inconsiderately m bringing tho subject before them. Tho end for which tho proceedings wero instituted has certainly been attained, but at what a price ! Tho respect and affection of tho people havo been completely alienated, the honor of tho Crown has been sacrificed. Tho exhibition of this cause in tho Supreme Court, has done moro to degrade the character of the Government in tho eyes of tho people than any thing which has yet occurred in this colony. In the first place, the prerogative of tho Queen herself was questioned ! Her right to transfer tho privilege of pre-emption was impeached ! Wo must, however, do tho Attorney- General justico, and acknowledge that ho evinced symptoms of uneasiness at tho awkwardness of his position : and well indeed he might, after having some two years previously lent a helping hand in the formation and promulgation of tho very acts he was now endeavouring to destroy. Doubtless he was aware that ho was treading on " delicate ground," whilo attempting to curtail tho powers and privileges of Her Majesty. Nothing daunted, however, after despatching Her Majesty's prerogative, he rallied to attack tho functions of the Secretary of State, and feeling it to be necessary to his case to impugn the, authority of this high officer of the Crown, for allowing the proclamations, lie made short work of it by asserting that the Secretary's despatches were of no legal authority whatever. Next in order came the Governor. The legal sword of the Attorney General descended with fatal effect upon the audacity of Governor Fitzßoy for originating such illegal acts. But alas ! in giving this finishing stroke, he wounded unconsciously,

perhaps, the reputation of Governor Grey aL>o ; who, imitating Captain Fitz Roy, had waived (illegally it now appears) the Crown's right of pre-emption in favor of the New Zealand Company. And, lastly, when tho Attorney- General had "run through a troop," in order that not a link of his legal chain might bo wanting, ho was considerately reminded, that ho had " leaped over a wall," a pretty high ono j too : that he had 'forgotten to mention his own sanction and. authority given to all Governor Fitz Roy's proclamations. Vox faucibus hcesit. Strange necessity that impelled the Government to question their own powers ; and thus destroy tho confidence of the public in the good faith of their intentions, and legality of their actions ! All who heard this cause argued must havo felt, that tho plaintiff, Mclntosh, had a just and honorable claim upon tho Government for a Crown Grant for the land which tho representative of Her Majesty had authorised him to purchase. Had any private individual acted as tho Crown has dono in this case, ho would havo been scouted from society. We may, therefore, rest assured that tho decision is utterly at variance with tho principles of Justice, however much in accordance with tho strict letter of tho law. It is not by legal quibbling that the Government should seek to ovado tho fulfilment of its engagements. Tho few acres of land that may bo gained by such means, will bo but a sorry recompenso for tho indcliblo disgraco attached to a breach of faith. If tho laio now stands in tho way, no timo should bo lost in applying for the necessary authority to alter it, in order that justico may bo dono. And thcro is tho greater necessity for the adoption of this course, because the decision appears, as Justico Chapman anticipated, " to affect much larger interests than the Court was awaro of." Wo beg our readers to pay particular attention to tho following, among other points, now decided to bo tho law of this colony :—: — 1 st. The land must be obtained from the natives by fair purchase, "a practice more than two centuries old." — The nativo title " cannot be extinguished {at least in time of peace) otherwise than by the free consent of tho native occupiers." 2nd. That tho natives, as amongst themselves, can deal as freely as beforo our intercourse with them. 3rd. That on the extinction of tho native title, tho land becomes " waste land of the Crown ;" and as sucii, only bo alienated in conformity with the " Australian Laud Sales Act" during tho period that act was in force. Such arc the legal points now established by tho most careful and solemn affirmation of the Supremo Court of Judicature in this colony, and beforo wo express any opinion as to their bearing upon the particular case on which they were pronounced, we would direct attention to the serious consequences which they entail upon almost tho whole community. If the " Australian Land Sales Act" apply to M'lntosh's caso, and tho Supremo Court affirms that it docs, then of course not one of tho numerous titles which have been granted in contravention of its provisions, can be legal. And as public auction alone, is by that act pointed out as the authorized method of purchasing land, all land not so purchased, and all grants made therefor, are, by tho abovo decision, now declared illegal. Such being therefore tho law, wo need hardly say that thcro is scarcely a legal title in tho colony ; as wo know that very few of tho Crown Grants have been mado for land put up to auction in conformity with tho Land Sales Act. All tho grants mado to the old claimants being issued whilo it was in operation, aro obviously illegal, because that act mado no exception in. their favor, and tho land was not purchased at public auction, in conformity with its provisions. ThcTgrants for tho exchanged lands stand in no bettor position ; becauso though purchased at public auction, the exchange itself is unwarranted by the "act," and the grants therefore also become illegal. His honor the Judge himself, Mr. At-tornoy-General, and all the host of officials who selected their allotments, their grants aro also now declared illegal ; indeed three-fourths of the titles to land in this colony are invalidated and rendered null by the decision of tho Court that land could only bo alienated (so long as the 5 and G Vie. c. 36 was in force) in strict conformity with its provisions. Vast as is tho injury dono to the holders < of property here, and interminable as must bo the confusion and litigation resulting : from this decision, these evils seem, if that ■ wero possible, even greater to tho settlers ; in the southern part of the island, who i

derive -their titles through the New Zealand Company. For while the titles of tao northern claimants may bo easily legalized by an act of Parliament, it will bo next to impossible to do this for tho Company ; becauso, tho illegality of their present grants consists, not merely in tho fact of their having been obtained in contravention of tho Land Sales Act, but that tho naiive title has not been extinguished. And Judge Chapman has most clearly shown, in his elaborate decision, that the Native title must bo fairly extinguished before the Crown can grant a legal title. lie says, "the practice of extinguishing the Native Titles is more than two centuries old. It has long been adopted by tho Government in our American Colonies, and by that of the United States. It is now part of the law of tho land ; and although tho courts of tho United States in suits between their own subjects will not allow a grant to bo impeached under pretext that tho nativo title has not been extinguished, yet they would certainly not hesitate to do so in a suit by one of the native Indians." We think ho must have had tho Now Zealand Company in his cyo when ho penned tho following graphic illustration : " In the caso of tho Cherokee nation (for whom read, tho Nativo Tribes of Wanganui, Taranaki, and Port Nicholson) versus tho Stato of Georgia (New Zealand Company), tho Supremo Court throw its protective decision over tho plaintiff's nation against a gross attempt at spoliation, calling to its aid, throughout every portion of its judgment, the principles of tho Common Law, as applied and adopted, from tho earliest times, by tho Colonial Laws." (Kont's Com. Y. lee. 51.) "Whatever may bo tho opinion of tho Jurists," (Colonial Governor's, Secretaries of State, or Queen in Council,) "as to tho strength or weakness of tho Native Title — whatsoever may have been tho past vague notions of tho natives of this country — whatever may bo their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted, that it is entitled to be respected — that it cannot be extinguished (at least in time of peace) otherwise than by the free consent of the Native occupants. ' ' Thoso enlightened and humano sentiments must, we are confident, call forth the approbation of a great majority of tho settlers, and arc of groat valuo and weight at tho present momentous crisis. Backed by tho powerful voice of tho law, we shall feel greater confidenco in raising our feeble voice in behalf of tho Natives, and greater security in tho belief that their rights will bo fully recognised and respected, notwithstanding the attempts that may be made in certain quarters to deprive them of their birthright, whether it be under tho illusory plea of "waste lands" appropriation, "registry," "taxation," or by any other direct or indirect means. Great as aro our own hardships and losses, arising out of this sweeping decision of the Supreme Court, yet, we have still a heart and inclination to sympathise with our fellow-colonists at the South, who aro now placed in even a worso position than ourselves. It is not any longer to tho decision of a Land Commissioner that tho natives must bow : they aro now invested with a legal right to claim the protection of tho Court — nor will they ask in vain. The eifect of all this, however, cannot fail in producing great evils towards the unfortunate settlors. They can never bo snro of their title being secure while one nativo claimant remains unpaid. Had those obvious rights of the natives been recognised at an earlier period, a vast amount of suffering, and a great deal of bloodshed, originating in the pertinacious" attempts of tho Now Zealand Company to occupy land without paying for it — would havo been prevented. And it is deeply to be regretted that tho settlers, in an evil hour, should havo lent their countenance and assistance to the nefarious proceedings of the Company that had deceived them, instead of admitting at onco tho just claims of tho natives, and insisting upon their recognition. Tho prcsont position of our unfortunate friends affords a sad but striking illustration of tho maxim, that lloxesty is, always, under all circumstances, Tim best Policy. Under tho extraordinary confusion and distrust, which tho Government have now created among the land titles, we are curious to know when and what steps the same authority will take to rectify their own blunders — to establish the colonists in the peaceful occupation of their lands, and reassure them of the legality of those titles which tho gratuitous proceedings of the present Government has so unaccountably and. unnecessarily disturbed,

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Bibliographic details

McINTOSH Y. SYMONDS., Daily Southern Cross, Volume 3, Issue 110, 31 July 1847

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McINTOSH Y. SYMONDS. Daily Southern Cross, Volume 3, Issue 110, 31 July 1847

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