SUPREME COURT. SEPTEMBER CIVIL SITTINGS. WHITE V. BUSBY. (Continued from Supplement of December 20.)

Daily Southern Cross, Volume XVII, Issue 1295, 10 February 1860, Page 2

SUPREME COURT. SEPTEMBER CIVIL SITTINGS. WHITE Y. BUSBY. (Continued from Supplement of December 20.)

The analogy supposed to exist, between the functions of the national legislature and those of the assembly of a colony, is altogether imaginary. The power of the one body is original; that of the other, derivative.' The parliament cannot limit its powers; the assembly cannot extend those wherewith it is invested, except it be thereunto expressly authorized. When the Queen convokes the Parliament, it is, according to the tenor of the wiits of summons, in order that her Majesty and the* two houses may deliberate and decree touching "certain arduous and urgent affairs, a 9 well 'concerning us, as the slate and defence of our kingdom and the church " All these matters are beyond the jurisdiction of an assembly, which is simply empowered, like the Municipal councils-, to make laws for the peace and good, government of its immediate locality. The Parliament represents the entire nation, wheresoever the members of the body politic may be, and binds them by its acts. It may change,, the established religion, alter the succession to the throne, or even extinguish the nation. But, with an assembly, the case is very different; it ha 3 no such power. Its members, or, at least, the major part of them, are appointed by the electors of certain districts, in manner prescribed by or under the constitutional act or charter for tho colony. They consider themselves tho representatives of those by whom they are so appointed; and they never fail to style those latter their constituents. Tho opinion is so prevalent amongst colonial politicians, that it would be deemed a paradox to call its correctness into question. And, nevertheless, there arc no grounds whatever to justify it. An elected house of assembly is, in no respect, the representative of the colony for which it has been appointed Tt derives all its powers, not from the colony, but from the cr.own or the parliament, as the case may be. THe colonists are not bound by its acts, except in those cases specified in tho colonial charter. If such body should pass an act altering the succession to the throne, or any other illegal ordinance, it would not be binding So far from that being the case, those obeying Such a law would be as liable to punishment as those who had passed it. When creating a local legislature,- the parliament mny itself nominate the members whereof such body is to consist, or it may delegate such power to one or more persons. Under tho 39th Viet, c, 62, the first legislature for New Zealand consisted of seven persons to be nominated by the Queen. It was invested with tho power of making law?. If could not bo sai 1 that these seven persons were the representatives of the Queen, or that ' her Majesty wa9 their constituent. Their legislative functions were conferred upon them by the parliament, and not by the Queen, who waa simply the donee of a parliamentary power The present legislature of New Zealand consists of the governor, the legislative council, and the house of representatives The governor is appointed by the Queen, the members of the council aro nominated by the governor, in the first place ; and the members of the other house are nominated by certain bodies of electors. The legislature was created and its powers were defined by tho 1 5 &1 6 Viet. c. 72 It would seem strange for the council to style its members, the representatives of the governor, because nominated by him. It is however, as reasonable for them to do so, as it is for the, house nominated by the electoral bodies, to ityle themselves the representatives of the colonists, and (what they aro very fond of doing in their addressee) '-her Majesty's commons of New Zealand," although they are but seven and thirty in number. I have already, more than once, laid down the proposition, that no portion of the National Code, whether the same be law by custom or by statute, can be altered save by the authority of Pmlinment The authorities and cases cited illustrate and support this fundamental principle. They siiew that the delegated power of making laws for the Government of a locality does not authorize, per se, the repeal of the National laws in forco there. And they establish beyond all manner of doubt, that where the assembly of a colony, simply empowered to make laws for its good Government, depiives v a subject of his life, liberty, or property, contrary to so much of the Common Law as is declared in the 29th section of Magna Charta, not only is suoh act unauthorized, but eveiy member of that bo rlyconcerned|injinnicting the injury, and all persons aiding "therein, are liable to be sued for the same, civilly or criminally according to thenatuie of tho offence: Property is the creature of law, which defiues its rights and the mode whereby it vests and may be devested. According to the Law of Nations and to our own municipal code, possession or occupancy gives a property, prima facie, in movcables and inunovcablcs. The property whereof a person is po-sessed continues his so long as he wishes to retain it, until some other can shew a better title thereto. The mode wherein that title is to be shewn is prescribed by law ; and unless and until it is asserted in that form, the propeity remains in the party so possessed Prior possession, however short, is a sufficient prima facie title in ejectment, against a wrong-doer, (per Lord Tenterden in Doe d Hughes v. Dyball, M. 8 M 846). E« en a tenant atsufferance, who is tinned out of possession by his landloid, without any demand of possession, may maintain trespass against the landlord for tho act, (Harrison v. Murrell, 8 Car 8 P.. 134); so sacred does the law regard the property that is acquired by mere possession.- Magna Charta is in most, if not all of its provisions declaratory of the Common Law. It is an act of Parliament, whereof the unrepealed provisions are as binding now, a* if enacted yesterday. The 29tb section has never been repealed. That clause ordains that no man shall be " disseised of his freehold or hbeities, or free customs" except (' by lawful judgment of his peers, or by the law of the land." These last words mean,'' 1 by verdict of his equals, or by the duo course and process of law." (2 Inst 46) The act of tho legislative Council of New Zealand declaring tho plaintiffs title to his lands void, is not a verdict of his equals. It is not a verdictat all ; nor is it a law or au ordinance. It is a sentence or decree respecting past transations, and wholly unwarranted by the act of Parliament, under which that Council was appointed If Her Majesty, or any other person claims the lands in possession of the plaintiff, the claimant is bound to institute proceedings for their recovery, in some duly-constituted Court of judicature. This has never been done on behalf of Her Majesty :it has been carefully avoided. Until the Queen's title tQ tho land is asserted in this manner, or by act of Parliament, Her Majesty can hare no estate therein, and she cannot, consequently, convey an estate therein to the defendant, or to to any other person. (Due d. Hayno t. Redfern, 12 East, 96). The law of the land having prescribed what person is to be deemed the owner of property, and how that property is t» be devested out of such person, I coutend that the local legislature of New Zealand had no power to repeal such laws, directly or indirectly. These laws have force in the colonies as national laws : they are not local ordinances Being pait of the national code in force in the colouics, they cannot be altered, but by tbo authority of Parliament, 39 already laid down. The delegated power of " making laws "and ordinances" for._-the.'governrnent of a community or province, oven without the' .addition of the restrictive clause of' repugnancy, docs not now, and never did, authorize the body upon whom it was conferred to repeal or alter any portion of the national code. When it is deemed necessary to give a local legislature tho power of altering or repealing one or more of the national laws, it is dgne by act of Parliament, and in .express terms; but no suoh power has been ever given to the New Zealand legislature. 10. A grant by tho Queen of lands whereof she was never seised or possessed, does not convey any estate or interest {herein to tho < grantee. Occupanoy is the true ground and foundation of all property, both as regards individuals and nations. " According to our code, property so acquired, remains in the occupant, during his life,-u'nlcss and until lie does some act shewing his intention of devesting himself thereof, or until tho same is taken from him by due course of law (2 81. 8, 839.) A mere prior occupancy of land, however recent, 'gives a, good title to the occupant, upon which ho may recover, as j plaintiff, against all the world,- except against such as can prove an solder and better title in themselves (Catteris v Cowper, 4 Taunt. 547.) The party Jf possession is considered the holder of the land for the time being. If a person hits once had possession, though but .fora moment, the law will regard him, as in possession, for twenty years- (hereafter, although he may not reside on the land, unless in trie moan time, the possession shall have passed from him, in some legal manner; such as sale and transfer &o. And if disseised, th< law will rogard him, not as having poue'stion, but as tuuing the righ\ to possession. ;. The mode by which thr Crown can acquire or convey lands, is )sxed by law,: U can only be done by matter of record (Finch, L. ■82.)" An instrument in writing, or one under teal, is not sufficient

if, must bo by some in«truincnfc enrolled in a court of record. Whora land is in die possessiou of a aubjeot, the King cannot enter upon of seize it, without tho intervention of a jury, even though ho should have an Undoubted right to the same. This is a part of the liberties of tho nation (Hob. 347.) An inquest of office must be firat holden to ascertain whether the King has a right to the land or not; and if the verdict of the jury should be in the affirmative, the King cannot execute a valid grant of the land, so long as tho party is in possession. It vrill be indispensable for the Grown to have the possession, first of all^ vested in it«elf, by Seire Facias proceedings, against tho tenant, for the finding of the jury, in such case, merely entitles the King to bring an action (Chitty, Pre. 247, 252.) By the 18th Henry 6. C. 6. passed to explain and amend the Bth Henry 6. 0. 6, it is enacted that in cases where the King's title to land doos not already appear by matter of record, no grant of lands, by the Crown, shall be valid, unless the King's title thereto shall have been previously found by an inquest of office, and such inquest returned into the chancery Exchequer, and unless the grant shall have been issuedafter the lapse of a month from the time of such return. Tho provisions of this statute are still in force. Brooke, citing 29 Hen. 8, expresses himself thus on the subject (office devant Escheator, pi. 56 ;)—".lf the King grant land for life, and afterwards the grantee die, yet the King cannot grant this over, until the death be found by office ; and this by tho statute 18 Hen. 6 " Even had the plaintiff ' conveyed the land in dispute to the Queen, by deed, the grant thereof issued to the Defendant would, be nevertheless, void, on the ground that the transfer was not by matter of record. The doctrine is thus illustrated by Jenkins in his reports (p. 123 ;) " A makes a feoffment to the King of certain land which is not recorded ; the King takes nothing by this deed. An exheator finds an office of this feoffment - made ut supra, and not recorded, and returns it so into chancery. If the land be in the King's hands the chancellor upon motion. wilt, by a tupersedeas, restore A, to the land; if tho King has granted it to another a Scire Facias shall be awarded against the patentee, and the chancellor shall restore A., for it appears in the chancery, that the said office, patent, and deed are void." In the reign of William and Mary, the Couitof Common Pleas laid down tho doctrine, in Woodward v. Fox (2 Ventris, 270,) that where a freehold is forfeited to the King by act of Parliament, an office is requisite to vest it in the King, notwithstanding. The whole doctrine relating to Crown grants was received and considered in Doe d. Haynd v. Redfer, reported 12 East, 96. The cause was tried at Derby in 1810. It was an action of ejectment brought by Hayne, the lessee of the Crown against Bedfern, a widow whose title to the land in dispute rested solely on prior possession. This land had been originally conveyed to one Johnston and a woman who resided with him and passed off as his wife, and to the heirs of Johnston The latter died.without heirs in 1740. After hia death, the, former continued possession until 1791, when she also died. A commissiou of exheat issued in 1791. The jury found the foregoing facts, and other ones not necessary to mention ; " but it was not found of what person or persons the premises were holden, nor by what services." "John Redfern, the late husband of the defendant, had received the rents of the premises from 1791, when the supposed wife of Johnston died, up to the tiire of the inquest holden. About 1807, the King, under the Exchequer seal, demised the land to one Hayne, for 81 years, at a certain' rent, under which demise, Elizabeth Hayne, widow and executive of the said leesee, claimed possession of the land. A verdict was found at the trial at Derby for the plaintiff, subject to a special case, which was afterwards argued before the Kings Bench.' Had the Escheator's jury found that the land had been holden of the King, no doubt the title of hisTMajosty would have been undoubted ; but as that had not been done the court ordered a verdict to be entered for the defendant, and held that the 18 Hen. 6, C. 6, applied to all cares wherein the King's title did not previously appear by matter of record. The letters patent were declared void, and the old principle of law reaffirmed, that prior possession gives a good title against all the world, except agaiust the person who can shew a better. I have already mentioned the proposition that the Crown cannot convey lands in its possession. To shew the great particularity of ' the law on this point, I will cite a case or two more. In Nichols v. Nichols (Plowdon, Rep 486,) it was holden by the Court of Common Pleas that where an act of attainder ordains that the person attainder shall foifeit all his lands to the King, the enactment is lot sufficient to vest " any freehold in deed or in law" in the King, uutil office found ; that the enactment is only sufficient to give the King a right or title. Brooke i«, if possible, still more explicit on the subject. He says {office devant Exealor pi 17,) "Note by them of the Exchequer, that where a man is attainted by Parliament and it is thereby ordainqd that all Ih3 lands shall bo forfeited, and it is not said that they &hall be in the King without office, there they shall not bo in tho seisin of the King to grant over without office, for it dqej-not** appear of record what lands they arc." The o'rdiaancc which declares the Plaintiff's title to his lands void, doeß not vest the lands in the Queen or in any one else; so that even if the local legislature possessed the power of passing such an act, the grant to the Defendant would be void on two grounds 1, the land was not vested in the Crown ; 2, no inquisition of office had found a title for the Queen. A third ground might be added, the Crown can only take by matter of record, which the ordinance of a local legislature is not. (Kielley v. Carson, 7 Jur. 140). As the Legislative Council was simply empowered to make laws it is evident it had no authority to administer law, as if it were a court of judicature. To declare law is an attribute of supreme power ' and can only be exercised by the High Court of Parliament. The power of repealing law would seem to be essential to its exercise. If ' the Parliament should declare that seven witnesses have ever been essential to the validity of a will, our courts would be bound to act on that declaration, although well aware of its being wholly unfounded. But if a local legislature simply empowered to male laws should make a similar declaration, no court would act on it, because it would be a repeal of certain of the National laws, and as such, an act ultra vires. It has been often remarked that when .cither house of Parliament comes to a resolution touching a point of law, it seldom does itself credit. If this happens in the case of bodies consisting, -for the most part, of highly educated men, what can we expect of a Colonial assembly, composed of very infeiior material. The ordinance declaring the Plaintiff's title void is almost a leprint of one passed in Sydney in 1840, which, it is said, was drawn by or u'uder the Supervision of one of the Judges there At all events, we may regard it as the production of the law Officers of New {jjouth Wales It is well known that all hona vacantia belong to the Ciown, by our code. Unappropriated lands are bona vacantia, and therefore belong to the 'Crown. The ordinanco of New Zealand, copied from that of New South Wales, in declaring law, promulgates a doctrine totally different. It declares that " all unappropriated lands within the said Colony oj! New Zealand, subject however to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said Colony, are and remain Crown, or domain lands of Her Majesty." A member of the Nation may have an absolute property in a chattel, such oi a chair, &c, He may use it, sell it, pawn it, take it out of the Country, or destroy it ; but he has no such property in land. He is not .absolute owner of the land in his seisin. He has but a qualified property therein.'; he is tenant thereof only. The largest estate in land which » subject can hold amounts to nothing more than a tenancy in fee simple. If it were physically possible for him to remove the land outof tho Country, or to destroy it, the law would not suffer him to do it, because it belongs to the nation, which has granted him the use of it only. # H has not dominium directum, but dominium utile The King is said to have the dominium directum, or absolutum of the soil, but that is merely a fiction of law; the King could not, any more than a subject, remove or destroy the National lands, if the same could be done. Thus, the use of, the land is the highest estate the subject can have in it. The declaration of law made by the New Zealand and the Now South Wales legislatures amounts to this— that the unappropriated lands belong, not to the Queen, but to the Maoris. This is the very reverse of what these bodies intended to declare. Unappropriated lands are those which are claimed by none — disclaimed by all. This oase shews what confusion would ensue in our jurisprudence [\t local legislatures were empowered to declare law. I have now noticed all the grounds of demurrer with the exception [ of the third one, which avers that tho Counoil exceeded its powers, t by providing, in the ordinance, for the ereotion of a Court of Claims, 1 and that the ordinance is not so divisible into distinct parts a* that L the legal provisions thereof, if any, oan be separated from sucH ai are s manifestly illegal. Where the legal parts of an. ordinance cannot he c separated from that part which is illegal, the whole is toid. This 4 doctrine is laid down by Comyns in his Digest (11. 309} • it u alto laid down in 8. P. R. 356. ' '