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SUPREME COURT. TUESDAY, MAY 4, 1847. IMPORTANT CASE. WAIVER OF THE CROWN'S RIGHT OF PREEMPTION—TREATY OF WAITANGI.

The Queen at the Suit of Charles Hunter Mclntosh v. John Jermyn Svmonds. For the Plaintiff, Mr. Hartley. — For the Defendant, the Attorney-General. The Attorney-General began by observing^ that he ro«e to address the Court on (he present occasion with no inconsiderable diffidence, arising, not from any difficulty in the nature of the case he had to advocate, or from any misgivings he entertained of its merits, but simply from the apprehension that he should not be able to bring the subject before the Court with that comprehensiveness and force which its importance undoubtedly demanded. The object of the present proceedings was to ascertain by a decision of the Supreme Court, whether or not the Right of Pre-emption acquired by the Crown of Great Britain by the Treaty of Waitangi over the Lands of the Natives of New Zealand could be transferred by the Governor of the Colony for the time being to a private individual for his own personal advantage.— ln the month of March, 18*4, Capt. Fitzßoy, then Governor of New Zealand, by Proclamation declared that "he would consent, on behalf of Her Majesty the Queen, to waive the right of Pre-emption over certain limited portions of land in New Zealand," on certain terms and conditions set forth in the Proclamation : the same Proclamation concluding with this caution, "And the public are reminded that no title to land in the colony held or claimed by any person not an aboriginal native of the same, is valid in the eye of the law, or otherwise than null and void, unless confirmed by a Grant from the Crown."— Subsequently, as appears from the New Zealand Government Gazette, Governor Fitzßoy did consent to waive this Right of Pre-emp-tion in favour of numerous individuals, over portions of land varying in extent from 2 or 3 acres to 2000 or 3000 acres. Most of these persons proceeded to exercise th^r supposed right by making purchases from the natives. Some of them really satisfied the true native owners, and, as far as it was possible for them to do so, extinguished the native title. Others again have satisfied tome of the native owners, but not the whole of them, and the native title in such cases has not been extinguished. The claimants, however, as a body, now set up a title and stand upon rights alleged to have been acquired by them by virtue of "Pre-emption Certificates" waiving in their favor, by Governor Fitzßoy, the Crown's Right of Pre-emption. «— In the month of December, 1 844, Governor Fitzßoy consented to waive the Crown's Right of Pre-emption over a certain Island in the Frith of the Thames, in favor of Plaintiff Mclntosh, who subsequently paid the true native owners, and extinguished the native title to the island. Subsequently to this, the Crown, by Deed of Grant, conveyed the island in question, not to the Plaintiff, but to a third party, the Defendant Symonds. And the Plaintiff now moves the Court to set aside the Grant to Symonds on the ground that it has been made to the prejudice of his (Defendant's) legal rights. Thus the point was raised,whether the Plaintiff in fact acquired any legal right to the Island in question by Governor Fitzßoy's waiving- in his favor the Queen's Right of Pre-emption over it The case now before the Court is one of the strongest: and it has been selected advisedly in order that the decision of a single case may thus rule the whole class. If the Court should decide that the Grant of the Island to J. J. Symonds ought to be set aside as prejudicial to the legal rights of Plaintiff Mclntosh : then, so many of the claimant* as stand in the same position as himself, will be decided, in fact, to have acquired legal rights as against the Crown by the act of Governor Fitzßoy in consenting to waive the Crown's Right of Pre-emption. If, on the other hand, the Court should refuse to set aside this Grant on such grounds, then it will have been decided by the Supreme Court of the country that these claimants have acquired no right or title whatsoever to the lands respectively claimed by them. The Plaintiff moves to have this Deed of Grant set aside on the ground that Governor Fitzßoy consented to waive the Crown's Right of Pre-emption over the Island in his favor, and that he subsequently purohased it from the native owners, and thereby acquired a legal right thereto. — Appearing for the Defendant in support of the Demurrer, he (the Attorney-General) contended that although Governor Fitzßoy did consent to waive the Crown's Right of Pre-emption in favor of Plaintiff Mclntosh ; and although the Plaintiff Mclntosh did in fact extinguish the native title to the said island, yet that, nevertheless, the Plaintiff Mclntosh did not in fact thereby acquire the Crown's Right of Pre-emption, over the Island, or any legal right or title to the same. The grounds on which he (the Attorney-General) would rely were these— 1. That the Governor of the Colony ex officio had not the power to waive the Right of Pre-emption acquired by the Crown in the Treaty of Waitangi. 2. That Governor Fitzßoy had no authority, express or implied, from the Crown, to waive the Crown's right. 3. That under the terms of the Treaty the Crown itself had not the power of transferring this right to a third party. 4. That (irrespective of the terms of the Treaty, &c.) by the law of the land, the sole and absolute right of pre-emption from the aboriginal inhabitants of New Zealand vests in, and can only be exercised by, Her Majesty, Her Heirs and Successors. Upon the first of these points, the Attorney- General would content himself with the simple assertion, as he did not think it would be controverted by his learned friend Mr. Bartley. Neither did he think that any attempt would be made by the other side to shew that an/ express authority was given on this subject by the Crown to Governor Fitzßoy. He (the Att.-General) was however prepared to go further, and to shew that Governor Fitzßoy had no implied authority from the Crown in this behalf; Anticipating that his learned friend would contend for such implied power in the Governor, it would be necessary for him (the Attorney* General) to enter at length into the consideration of the subject; and he felt little doubt that he should be able to satisfy the Court that, looking to the whole course of the colonization of this country, and to the principles uniformly avowed on this subject by the British Government and by Parliament, it would bn impossible to arrive at the conclusion that it was left within the power of the Governor of the Colony for the time being to allow native lands to come into the market in competition with the waste lands of the Crown. The colonization of New Zealand had been distinguished from that of most of our Colonies in this hemisphere in a manner strikingly showing the practical progress of the doctrine that "power has its duties as well as its rights." By the Minister who undertook the colonization of these Islands it was distinctly stated, that it was not for the purpose of territorial aggrandizement that such a measure was adopted, but "that the spirit of adventure having been effectually roused, it could no longer be doubted that an extensive settlement of British subjects would bt rapidly established in New Zealand, and that, unless protected and restrained by neoessary laws and institutions, they will repeat, unchecked, in that quarter of the globe the same process of war and spoliation under which uncivilised tribes have almost invariaWydiiappeared «s often as" they have been brpught in

, Sl c ? mmediate vicinity of emigrants from the nation* of Christendom." And by his Succeisor, now first Mister of the Crown, it had been no less emphatically declared, that "to rescue the Natives of New Zealand Irom the calamities of which the approach of civilised' man to barbarous tribes has hitherto been* the almost universal herald, is a duty too sacred and important tobe neglected, whatever may be the discouragements under which it may be undertaken." — Instead, therefore, ofseizmg upon the whole territory of the Islands of New Zealand, and governing them as part of the dominion of Great Britain, the Crown, through its Minister, declared lhat " the Queen in common with Her Majesty's immediate predecessor disclaimed for herself and her subjects every pietension to seize upon the Islands of New Zealand or to govern them aspart of thedominion of Great Britain, unless the free and intelligent consent of the natives should be first obtained." Captain Hobson was sent out, therefore, not to seize, but to treat with the Natives of New Zealand for the cession to Her Majesty of the Sovereignty and for the purchase of such lands as might be required for the purpose of colonization. It was at the same time foreseen that if the territorial rights of the natives as owners of the soil were thus to be recognised and respected, and if the Crown was to become the owner of a portion, only of the soil,, that there could be no security for the regular colonization of the country if private individual* could make purchases of native lands. For this reason a Right of Pre-emption was sought to be lecured to the Crown. Captain Hobson was accordingly instructed "that it was not to the mere recognition of "he Sovereign authority of the Queen that your endeavours are to be confinad, or your negociations directed. It is further necessary that the Chiefs should be induced, if possible, to contract with you as representing Her Majesty, that henceforward no lands shall be ceded either gratuitously or otherwise, except to the Crown of Great Britain." And he (the Attorney-General) would now direct the especial attention of the Court to what followed, for her© would be found the objects stated which were sought to be accomplished by the second article of the Treaty. "Contemplating,*' says Lord Normanby, "the future growth and extension of a British Colony in New Zealand, it is an object of the first importance that the alienation of the nnsettled lands within its limits should be conducted, from its commencement, upon that system of sale of which experience has proved the wisdom, and the disregard of which has been so fatal to the prosperity of other British settlements. With a view to "those interests it is obviously the same thing whether large tracts of land be acquired by the mere gift of the government, or by purchases effected on nominal con■ideralions from the aborigines.' On either supposition the land revenue must be wasted—the introduction of emigrants delayed or prevented — and the country parcelled out amongst large landholders, whose possessions must long remain an unprofitable or rather a ptrnicioiu waste. Indeed in the comparison of the two methods of acquiring land gratuitously, that of Grants from the Crown, mischievous as it is, would be the less inconvenient, as such Gr-nts must be made with, at least, some kind of system — with some degree of responsibility, subject to some conditions—and recorded for general information. But, in the case of purchases from the natives, even those securities against abuse must be omitted, and none could be substituted for them." And now he came to the Treaty of Waitangi. Acting on his instructions, Capt. Hobson entered into this Treaty, part of the second article of which was in the following terms : " The. Chiefs of the united Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Pre-emp-tion over such lands as they may be disposed to alienate.*' So much with a view to the regular disposal of the waste lands of the Colony. And, now, as to the particular system actually adopted. In answer to their application on this subject, the New ZeaUnd Company were informed officially, that "Her Majerty had in the most decided terms withheld from the Governor of New Zealand the power to grant any land in that colony, gratuitously, to any person whatever." And further, 11 that it was proposed that, with certain exceptions, all the lands of the colony should be sold progressively a* surveys should be completed, at one uniform price, which for the present was fixed at 20s. per acre." Capt Hobson was at the same time distinctly instructed to this effect by the Secretary of State, and by the Royal Instructions the most minute and specific regulation! were prescribed with a view to the same end : the main,,, object being, that the lands of the colony should be disposed systematically, and at such a price as would provide a fund for the introduction of immigrant* into the country. Then followed the "Australian Land Sales' Act," enacting in the most positive manner, and with every appearance of finality, that the waste lftnds of the Crown should be disposed of by auction, and not below a certain price. All this he, the Attorney-Ge-neral, cited, not with a view of confounding the waste lands of the Crown with the lands of the natives, or with any view of proving that the same rules and regulation* were applicable to them ; but to" shew that all lands at the disposal of the Crown were to be disposed of systematically, and so as to promote emigration to the colony by the creation of a land fund 5 and to shew further, that the public had b<?en induced to purchaie land at- the regulated price on the faith of the Government, that land in this colony was not be purchased at any time for a lower price. And thus to raise thii inference, which appeared to him, the Attorney- General, to be almost irresistible, that, after so solemnly pledgt ing themselves to this extent, the British Government [• did not leave it in the power of the Governor of the [ 1 colony, for the time being, to violate altogether every principle on which the colony had been founded, and to ruin every colonist who had relied on the faith of these principles, which they virtually would hav,e done, had it been left within the power of the Governor to abandon, the Crown's right of pre-emption, and to place native lands within the reach of private individuals. Conclusive as this inference really was, we were yet not left wholly to inference on the subject, the Colonial Minister in the year 1841, having distinctly declared that " Her Majesty in the Royal Instructions under the Sign Manual, has distinctly established the general principle that the territorial rights of the natives, as owners of the soil, must be recognized and respected; and that no purchases hereinafter to be made from them shall be valid, unless such purchases be effected by the Governor of > ? the Colony on Her Majesty's behatf." He, the Attorney" General, had then no difficulty in arriving at the conclusion, that there was no implied power in Governor Fitzßoy to waive the Crown's right of pre-emption in favor of the plaintiff, Mclntosh, or any other person whatever. We now came to the consideration of the third point Can the Queen Herself, under the terms of the Treaty of Waitangi, transfer the right of Pre-emp-tion acquired by Her Majesty under that Treaty in favor of a third person 1 And he, the Attorney-Gene« ral, felt himself bound to declare, that he believed that ; that right could not be so transferred- He was aware that he was now approaching what mighf be termed delioate ■ ground, and that he might be supposed to be seeking to narrow the powers and privileges of the Crown— a very I unusual course for Her Majesty's Attorney-General: I but he did not hesitate in the present oase to maintain, 1 that the Crownj and the Crown only, could exercise the ; right of Pro- emption secured to the Crown by the 1 Treaty of Waitangi. And he took this course the more ; boldly, because the Crown of Great Britain having - undertaken the guardianship of thiaptople, he believed it would tend mpre to the honor of the Crown that tfiia ' right should be exerciseable by the Crown 'alone, than (For continuation tee Supplement.)

that it should be transferable to any other person or power whatsoever. The lands of a British colony were not vested in, or held by, the Crown for the personal advantage of the Sovereign, but for the advantage of the natives at large. The people of Great Britain were directly interested in the judicious management of all territories in the power of the Crown, so far, at least, as that these territories should be so managed as to afford a field of emigration' for the surplus population of the parent state, and that the country be not parcelled out aniongst the few individuals who might happen to be upon the spot. And yet, what security would there be that the native lands of this country, over which the Crown had acquired the exclusive right of Pre-emption for the benefit of the nation at large, would afford such an emigration field, if the power of 'transferring this right could be exercised by the Governor of the colony ; and what security would there be for the interests ol the native owners themselves. So careful was the British Government upon this point, that Governor Hobson was instructed, in making purchases for the Crown, that " They must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves You will not, for example, purchase from them any territory the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence." Who could calculate how long the natives of this country would retain a foot of the soil, if, without restraint, private individuals could become purchasers of their lands 1 On every ground, then, it would tend to the honor of the Crown, and to the real benefit of the subject, that this right of Pre-emption should be the exclusive prerogative of the Crown 1 But what were the terms in which this right was conferred 1 " The Chiefs of the united Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as they may be disposed to alienate," &c. Could any doubt be entertained that, looking to the words themselves, and to the objects for which this article was inserted in the Treaty, viz., " that no lands should be ceded either gratuitously, or otheiwise, except to the Crown of Great Britain, 1 ' a subject could purchase direct from the natives for his own private advantage. It might, however, perhaps be said that if the Crown on iho one hand, and the native , owner on the other, should consent that his land should be sold to a private individual, that then such a sale Tvould be valid. But such a position could not be maintained : for if the Crown and the natives as a body had agreed that the Crown alone should purchase their lands generally, then no other power than the whole of the 'parties to the Treaty could conspnt that an individual native could sell his land to a third person. The 1 Crown alone, it was true, might abandon altogether this right— or all the parties might make a new Treaty : hut nothing less than all the parties could alter or vary the terms of this Treaty. But, under the teems of the Treaty as it stood, the Crown could not transfer tint right at pleasure. But, irrespective of the terms of the Treaty, he, the Attorney- General, would maintain that, by the law of the land, none but the Crown could exercise this right of pre-emption. Referring to the 41 Land Claims Ordinance," Session 1, No. 2, s. 2, it •would be found to be clearly declared, enacted, and ordained, that "the sole and absolute right of preemption from the said aboriginal inhabitants rests in, and can only be exercised by Her Majesty, Her Heirs, and Successors." If there were meaning in words, then, neither the plaintiff nor any other person could claim a title on the ground of having acquired and exercised the right of pre-emption. If such were the law, then no title to land founded on the alleged exercise of that right by a subject could be valid, but must be absolutely void and without foundation. He had now occupied the time of the Court at considerhble length, and with reference to the simple merits of the case, perhaps, at unnecessary length. It might have been sufficient to have quoted the terms of the Treaty, and the enactment of the "Land Claims Ordinance," alone, to prove that the plaintiff could have no legal claim to the land claimed by him But, on a subject of such great importance, he, the Atiorney-General, had thought it desirable to endeavour not only to show what was the law, but that there was reason in the law, and a reason for the law. "He could scarcely doubt what would be the decision of the Couit. If it should be in support of the demurrer, then it would be decided that a private individual could not acquire a legal title or interest in native lands. If, on the other hand, the judgment of tee Court should set aside lhe Deed of Grant to the defendant, on the ground that the plaintifFhad acquired a legal interest in the Island in question, by virtue of Governor Fitz Roy's consenting to waive the Crown's right of pre-emption over it in his, the plain tiff's favor, it would remain for a competent authority to determine whether such a power should continue any longer to exist. While such a power existed, it was evident that New Zealand might soon be lost to Great Biitain as a field of emigration for her surplus population. While such a power existed, the native inhabitants of the country, yielding to the temptations of the moment, might, at no distant period, be alto gether stripped of their territorial possessions, and be xcduced to a nation of turbulent beggars. While such a power existed, no man who had purchased Crown landy £ at the regulated price, could calculate, for a day, the ' value of his land : it would be in the power of a single in- 1 dividual, at the absolute will of the Governor alone by s a stroke of his pen, to reduce the value of such property j from a pound to a shilling. But, into the policy of these 1 measures tke Court could not enter ; it would be for the i Parliament to determine, looking to the honor of the I Crown, the welfare of this people, and the prosperity of • ] the colony, whether the right of pre-emption acquired i by the Crown, by the Treaty of Waitangi, could be ad- \ vantagcously vested and exercised otherwise than in and j by Her Majesty alone, for the benefit of all classes of \ Her Majesty's subjects. j Air. Bartley, in answer to the observations of lhe ' Attorney-General, as to the design ol the Crown in \ the formation of the Co.ony to raise from sale of ' lands a fund for emigration purposes, by fixing their i lowest pt ice at one pound per acre, and to prevent \ the alicnatiou of lands by natives to settlers, even in ' lhe etent of refusal by the Crown to purchase, argued ' hat such a prevention of sale by the natives was l jicvcr intended by the natives who formed a paity tv I iW Tit-alv of Waitaiiffi— and wouKl. if carried into {

r effect, operate injuriously to, rather than be promo* } the of, emigration. For what emigrant would go to 1 a colony where the owner of land could not sell it ? f and where he, the emigrant, would be precluded i from choice of location, where the Crown might not have the disposition, or from exhausted exchequer, as heretofore experienced, or from other cause, had not the ability to purchase land lor re-sale ; and where the native, as contended by the Atlorney-General, was unable by law to dispose of his own undisputed property, even though the Queen were willing to waive the right of pre-emption in favor of any one desirous to purchase—the Crown, as alleged by the Attorney-General, even if disposed, not possessing by law the power of waiver of right of pre-emption iv favor of settlers. The Treaty of Waitangi, from which alone the Crown's rights (whatever such rights might be) were derived, he (Mr. B.) contended had no such testrictive import against the natives' right ' of sale of their lands. In the translation of that Treaty, the words were—" The chiefs of the united tribes and the mdividnal chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf." In the Treaty signed by the natives in their own language, there was no such word as "exclusive." The word "anake," signifies '•only," or " exclusive—th ere is no such word in the original. Then, with regard to the right of pre-emption, these words mean nothing more than the right of first offer, or preference, to the Crown. Such was the etymological import of the word "pre-emption," and the sense which the natives attached to the corresponding word iv the Treaiy. If the words "exclusive right ot pre-emp-tion," meant (as was contended for defendant) " exclusive right of purchase," why was uot the indisputable and unequivocal word " purchase" used, and ; not "pie-emption," which admitted and bore a different meaning? The reason was obvious. The ■ word " pre-emption' 1 was used in, and intended to have, a different meaning from " purchase.' 1 The translator for the Crown having used the word "pre-emption," iv exclusion of the word "purchase," it must be construed in the strongest sense against the Crown, particularly as the natives have so understood its import from the corresponding word of ihe Treaty ; and as it was uot admitted by the learned . Aitorney-Gener il, for defendant, that the Queen was under obligation to purchase. If the natives were not allowed to sell, and Her Majesty the Queen had no power (as argued for defendant) to permit them to sell to sealers, or, in other words, to waive the right of pre-emption in favor of settlers, and was Herself under no obligation to purchase, the agreement or treaty of WaHtangi, according to legal principle would be invalid for want of mutuality, it being essential Jo the validity of a contract (except in the case of infancy where the infant may sue and not be sued, and a few other cases,) that thttre should be a reciprocity of obligation ; an agreement to sell on the one hand implied an agreement to buy on the other, which position might be illusratecl by the following familiar rase. A. promises B. not to mairy any one except B. Unless B. on the other hand be bound to marry A., the promise of A. is not binding, for this reason, that unless B. chose to marry A., A. could not marry at all— there was a want of mutuality of obligation. Now, as it was admitted on the oilier side, that the Queen was not under obligation to buy, it followed us a consequence that the Natives weie not bound to sell to her, and to her only, but simply to give her the first offer, or right of pre-emption, otherwise it would amount to a prohibition to the natives ever to sell lauds indisputably their own, as it would be in tiie power of the Queen and her Successois (from not requiring the lands, or Jrom other cause,) never to buy, and thus a perpetuity compulsory on the natives, or a kind of moittnain, would be created contrary to all legal and equitable principle, and inconsistent with •' the lights and privileges or British subjects," as imparted to the natives by the treaty nf Uaitangi. Such a construction, moreover, would place ihe Q'leen in a mjsl uuuimble position, as not herself purchasing, nor yet permitting the owner to sell. A^aiu, such a construction of the words "exclusive right of pre-emption,"' from there being no obligation to purchase, would operate iv restraint of trade, as laud, like everything else, ought to be a subject of sale and trade, ft' the Queen alone had the power to purchase and refused, and could not, with consent of natives wishing to sell, waive the right of pre emption in favor ot settlers desirous to purchase, the native would he precluded from deriving the means of tiaffie by sale of his land. He could never possess capital— could not become a trader, no one would trust him, or have dealings with him, as his property would not be liable to debts from its being unsaleable, he and his family must for ever remain in statu quo, must vegetate upon the same spot, — this could not be the rights contemplated in the wort's of the Treaty of Waitangi, "the Qiieen of England imparts 10 the natives ol New Zealand all the right* and privileges of British subjects." Such restrictions are not the rights and privileges of British subjects, and therefore cauuo be the meaning of the Treaty of Waitangi. Such results, however, and others equally injurious, would flow from construing the words " exclusive right ot pre-emption" to mean "exclusive right of purchase,'' and from maintaining that the Queen cannot, with the consent of the natives wishing to sell, waive her right of pie-emption. That the Queen cannot waive her right of pre emption is, notwithstanding, asserted ou behalf of defendant, but it is evident that she has the power, from the fact of no express restriction or prohibition being imposed upon her, either by Australian Land Sales Act, or by local Ordinance, Session 1, No. 2, relied on by the'learned Attorney- General, for the principle is indisputable, that the Queen cannot be bound unless by express words. I'here are no words rebtiaming her from the exercise of waiver of right of pic emption. She cauuot be bound by implication and, moreover, no Act or Uidinauce contrary to th

■ treaty of Waitangi could, or ought to, beoperativ > as being 1 against good faith : and the Queen woul< ' clearly not be bound in cases of pressing emergency 1 as stated by Blackstone, in Ist vol., under the heat t Prerogative. He (Mr. B.) read a passage fron s Blackstone, at some length. That such an einer t gency had arisen, would be made apparent under tin 5 next head of power of Governor. He (Mr. B.) thei , proceeded to contend, that the enactment that "uasti I lands." of the Crown in New Zealand, (which are de » fined by the "Australian Land Sales Act" to be land ' vested in Her Majesty, Her Heirs and Successors s and not granted by Her to any one in fee simple, &c* ' which definition was recognized by Lord Stanley ii his despatch, recognizing waiver of pre-emption oi the ten shilling au acre cases,) could not be sold fbi less than a pound an acre, did not apply, for the land now in dispute was not " waste land," never having been purchased by Her Majesty, (she being able tt acquire land by " purchase" only), and was not sold by the Queen to the plaintiff, but by the natives themselves, with the recognition and concurrence ol the Queen, through her representative the Governor. Tho Queen, by her representative, having not sold, but merely waived the right of pre-emption — from which right of waiver, as before argued, she was nowise precluded. With respect lo the argument ol his learned friend, the Attorney-General, that tht Quaen could not waive the " exclusive right of preemption" without the consent of the confederated chieftains, he (Mr. B.) stated, that the answer was very apparent, for in or by the treaty those chiefs acquired no right of pre emption— they acquired ih right in restriction of sale which they did not befon possess ; and it had not been contended for defendant, that before the treaty the natives individual!) or collectively were precluded from doing what the) pleased with their own. So, also, after the treaty the same rights existed, except so far as effected b) that treaty, which does not confer any new powers oi pnrcliasc or sale upon them, but imposes a restriction on themselves in favor of the Queen; therefole, tht Queen, aud the Queen alone, acquired a restrictive right, whatever its nature— whether right of preemption, or first oiler, or of exclusive purchase. A< it was her sole privilege, she alone could waive it, The natives neither could restrain her, nor were the) desirous of restraining her, from the exercise of any her rights and privileges, particularly as it was admitted on the other side, that the Queen was not bound to purchase. As regards the argument foi defendant, that the Queen cannot waive her right ol pre-emption in favor of another, he (Mr. B.) admitted that the Queen could not so waive it without consent of the native sellers ; but be maintained, that with such consent she could — the maxim, volenti not Jit injuria applied, and such consent was best evidenced by the natives being parties to the sale, ant by the sale itself. Then, again, with respect to tht other point made for defendant, that even admitting the Queen's right of waiver to exist, such right doe; not pertain to a Governor. By no means admitting that the Queen is not bound by the bonafide acts o her representative with a view to her interest, aud i; not identified therewith. He (Mr. B.) still contended, that viewing the Governor simply as ar agent, who even exceeded instructions, yet, if s pressing emergency could be shown, the Queen was bound, and the necessity of the case makes the act: of the Governor the acts of the Queen, aud render: them legal. That a pressing emergency had existed could hardly be denied, aud could be made apparent Many authorities could be adduced to prove thejiosition, that pressing emergency made that legal anc binding, which otherwise might not be so. A formci Governor of this colony, Sir G. Gipps, in a speed: made upon the very subject of lands in New Zealand, in answer to a gentleman who stated before tl)£ Council oF New South Wales, that " a proclamation could not have the force of law," denied such position, and maintained that though commonly nul possessing such force, yet iv the instance of extreme emeigiMiry, it did possess the force of, and become, law. This opinion of Sir G. Gipps, from his station aud from thn subject under discussion, was entitled to great respect. But the principle of obligation and legality, arising from extremo emergency, was not merely dependant upon opinion of individuals, but is fully sustained by legal authority. Judge Story, in his book upou Agency (a work of the highest charactet), iv many places maintains, that an extreme emergency will justify, aud render legal, acrs not otherwise binding as exceeding authority. He adduces various instances, aud amongst others a well known aud recognized instance, of a shipmaster throwing over board,part or the whole of a cargo for the safety of the vessel ~ud crew. Yet, the contract (and duty under ordinary circumstances) of the shipmaster was to carry aud safely deliver tuU very cargo. On what principle, then, is the shipmas ter justified aud his act rendered legal ? On the principle of pressing emergency —of urgent necessity. The same principle surely applies to the governor of a colony considered merely as an agent. Governor Fitzßoy actiug bona/ide, under an extreme emergency, a pres-ing necessity, waived the right of pre-emption, on condition of the purchasers from the natives paying, in the first instance, ten shillings to the crown, and subsequently on payment of a sum so small as to appear a mere ackowledgement of the right of waiver. The country was convulsed almost from one extremity to the other — the spirit of rebellion was extending on all sides. The uatives,ainongst other grounds of complaint, alleged that faith had not been kept with them ; that they were prohibited fioni the sale of their lauds; the crown would not or could not purchase, yet forbad sale to others. Government house was daily beset by tribes of discontented natives, likely, if not appeased, to join those already iv rebellion. The imminent danger was fully represented to the Governor by the Chief Protector of Aborigines, Mr. Clarke. (Mr. B. here read at some length a despatch ot Governor Fitzßoy to Lord Stauley, dated 14th. October, 1844, and also Mr. Clarkes letter ; likewise minutes of council, and opinions of the various members, who all appeared to concur in thinking that the delay arising from communication with England would materially iucreaso the extent

and intensity of the present dissdiisUcliou). The Governor was without troops— was powerless. He yielded to ihe storm,— and conceded to the natives what from that letter it was evident he thought (at least to some extent) in principle right, what without ruin to the colouy he was unable to withhold, what he thought uudcr the emergency as most expedient and moat beneficial to the state, and most to the ultimate benefit of Her Majesty. He threw oil on the troubled waters by waiviti<j the right of pre* emotion. This he did, nut acting solely upon hid own opinion. In his council there was no dissenting voice— no protest! He (Mr. B.) remarked, that his friend the Attorney-General must then have thought the waiver legal, as was evinced by his acquiescence and from his not protesting against the measure and alledging its illegality. He took no such ground. That the Attorney-General was not singular in thinking the waiver oi" the right of pre-emption not to be an illegal act, was proved by Lord Stanley's recognition of the waiver both as regards the 10s. an acre waiver and al9o the penny an acre waiver. He (Lord Stanley) the framer and maturer of the Lind Sales Act, with a full knowledge of its objects and of its imports, acting as a minister of state, and no doubt with the full concurrence of l Jer Majesty's legal advisers in England, recognized the acts of Governor Fitzßoy, and thereby admitted the legality of waiver of pre-emp • tion, not only as a general principle, but in these particular instances. It was true, Lord Stanley would have liked a little more money from the land, but Govetnor Fitzßoy had to deal with natives of New Zealand, who had their own way of arguing. Governor Grey, also, could not think the exercise of waiver of right of pre-emption by governors was illegal ; for by Gazette of 15th June, IB4ti, he, Governor Grey, announces that " all who have made purchases from the natives, under certificates waiving the Crown's right of pre-emption, issued under the terms of His Excellency Captain Fitz Roy's proclamation, dated 26th March, 1844, fixing the amount of fees at 10s. an acie, are required to send in on or before the 15th day of September next, (after which no claim will be received or allowed), all the papers connected with the alleged claims, whether deeds or surveys, for examination before such Commissioners are appointed. Parties desirous to have their confirmatory grants from the Crown, for their purchases, issued at an early date after the approval ot the deeds and surveys, should make application for this purpose in writing to the Surveyor-General." This annouueement he surely would not make if he considered the waiver illegal. But, further, Governor Grey has, himself, by proclamation in Gazette of 21st Feb., 1846, exercised the power of waiver of right of preemption in the following terms : "J, the LieutenantGovernor, do hereby proclaim that I will in favor of the New Zealand Company, and of no other person whatsoever, waive the right of pre-emption of Her Majesty, Her Heirs and Successors, within such portion of the Northern and Middle Islands as are commonly known as the Company's districts.'' Now, the law recognised no dictiuction between the New Zealand Company and piivate individuals. There was no exception in favor of the New Zealand Company, either iv Australian Land Sales Act, or local Ordinance, Scss. l, No. 2, quoted by the Attorney- General as authorities against the right of waiver; thcrefoie, Governor Grey must be added to the number of those who thiuk waiver of right of pre-emption a legal act. Thus there existed the btiongest possible authority, derived from the opinions of those who troin station, character, and kuowledge of the subject, are entitled to respect. Mill, the Attorney. General might argue that these are only opinions, however respectable, and cannot make '.hat aw which before was not law. Certainly, they could not, nor was such a doctrine contended for ; but they are amply suiiicieut to shew how the Attorney-General hiinselt, and the other authorities, interpreted an casting law. Lord Stanley's recognition and adoptiou of the waivers by Governor I'itxltoy, (Lord Stanley acting as minister ol the Crown, and, of course, with the full sanction of the law"ollicers of Her Majesty), made the acts of the Governor, the acts of the.Queen ; and, at all events, thus rendered the acts of Governor FitzKoy valid, as it had before been shewn that the Queen herself possessed the right of waiver. Under these circumstances, and for these reasons, his (Mr B.s) clieut (to whom not a shaaow of offence was interpreted, and who was on all hands admitted to be a most respectable man), was entitled both in law and equity to the Island over which tiie right of pre-emption was waived in his favor, but which had since been granted to the dclcndant ; and perfect confidence was felt, that the grant to deiendant would be annulled and set aside, on the grounds set lorth in plaintiff's memorial, in comphaucc with which the present scire facia s was issued. The Attorney-General in reply said, that having already occupied the time of the Court at considerable length in opening the case, he should content himself with replying brielly to the arguments of his learned friend. At ttic outset he felt himself bound to say that every thing that could be said in support of the Jflaintitt's case had been urged by his learned friend, But betore replying to bis arguments he (the AttorneyGeneral) must observe that, either by design or from forgetfulness, no attempt whatever had been made to meet one of the principal points on which he himself relied, viz., that by express enactment ot the '• Land Claims Ordinance," tlw right of pre-emption could only be exercised by Her Majesty, Her Heirs, and Successor-. He thought it therefore no unfair inference, that this position, not having been assailed, was unassailable. The giouuds mainly relied upon for the plaintiff were these — 1 . That the English version of the Treaty of Waitangi was not correctly translated — or did not agree with the Native version. 2. Ttiat the meaning of the terms " exclusive right ot pre-emption" according to the English version of the Treaty did not mean the sole right of buying, but the right of the first offtr only. 3. Tlut the « right of pre-emption," according to a strict intcrpietation of it, would be a nudum paclum ; for the Crown not being obliged to buy, it would be a onesided bargain. 4. That the lands of the natives were not "waste lands of the Crown" Within the meaning of the "Land Sales' Act. 5. r lhat Governor Grey had himself consented to waive the Crown's right of pre-emption in favor of the New Zealand Company. 6. That the Governor of the Colony for the time being would have the power of waiving the Crown's right of pre-emption under an emergency. To the first of these points he (the Attorney- General) without expressing any opinion as to the character ot the English version of the Treaty, would content himself with replying that it having been agreed to upon

the record that "on ttie argument on the Demurrer the Treaty of Wnitangi as translated in Papers relative to New Zealand, printed by order of the House of Commons, Ist May, 1841, shall be taken to be the true version of the said Treaty," the question raised by bis learned friend was altogether out of Court. To prove that "the sole right or buying" was secured to the Crown by the Treaty of Waitaugi, he (the AttorneyGeneral) would again call the attention of the Court to the objects the British Government .hail in view in directing Governor Hobsou to enter into a Treaty with the Chiefs, viz., that they should be induced, if possible, to contract, that henceforward no lands should be ceded, either gratuitously or otherwise, except to the crown of Great Britain: by the treaty actually entered into, the chiefs yield to Her Majesty the exclusive ri»ht of pre-emption : and the Queen, by her Minister, was declined by the Koynl Instruction;, under the sign manual to have established tlmt"«« purchases thereaftei to be made from the natives shall be vainly unless such .purchases be cifectcd by the Governor of the colony in •Her Majesty's be/talf Such being the objects ot" the treaty— -such being the terms of the treaty— and such ■being the intei pretation put upon it by the Minister ot •the Crown— who could doubt but that the hole right of >buying lauds Horn the natives hud been acquiied by the crown under the UTiiib of the treaty giving to Her Majesty the '•exclusive right of pre emptiou. But it whs contended Unit such an interpretation would render •that article of the treaty void, us being one sided only, and consequently iiudu'm/actum. But he (the AttorneyGeneral) cou tended that tiie treaty must be taken as a whole, and if so taken, that it was not one-sided, for it would be found that, expressly in consideration of what the chiefs of New Zealand had contracted to do, Her Majesty by the 3rd article ot the treaty conferred upon .the natives' all the rights of British subjects. He thought, too, that in attempting to maintain this position Ins learned friend was going too far, and was in i'act cutting the very gioiind trom under his own feet, .for if this article was void, what became of the plaintiff's title i for on referring to the Record it would be found that the plaintiff claimed title expressly on the ground ot his having acquired the Ciown's right of preemption bv virtue of Captain Fitzlloy's waiver of it in his favor. The Declaration ot the plaintiff on the Re•cord being in the following words; "And that by the said certiticate the said then Governor consented to -waive, and did waive in favor of the said C.H.Mclntosh (the Queen's right ot' pre-emption over a certain Island, Ac, and that by virtue of such waiver and of the said certificate the said C. H.Mclntosh acquired the right of pre-emption over the said Island, &c." If then this article in the treaty was void, the title of the plaintiff, being founded upon it, must fall to the ground. On •the fourth point relied upon, viz , that the lands of the natives were not crown lands within the meaning of the Land Sales Act, he entirely agreed with his learned friend, Mr. Baitley, and he had been careful in opening the case to show that he biul no intention to confound native lands with crown lands, or to prove that the rules and regulations prescribed for the latter were applicable to both. Upon this point, then, they were not at issue. Rut Governor Grey, it was said, had himhclf done what Governor Fitzßoy had done, and had waived the crown 'a right of pre-emption in favor of the New .Zealand Company. Without either admitting or denying what had been done by Governor Grey, his (the Att.-G.V)auswer would be very sitnule: If what was done by Governor Fitzßoy was invalid, then the same thing done by Governor Grey would be equally invalid. We now come to the last and main ground relied upon for the plaintiff, viz , That the Governor could waive the Crown's right of pre-emption under an emergency. Under this branch of the argument, his learned friend had commenced by citing the opinion of Sir George Gipps, as an authority that in times of danger and emergency, a Proclamation had the effect of a law. Now, he could not help thinking, that himself and his learned friend ought on that point to change sides ; at all events, it might some day be his,' the Attorney- General's fate, to come down to that Court in support of such a doctrine, and he should then be able to cite the authority of Sir George Gipps in his favor, with the sanction and after the example of his learned friend, Mr. Bartley, to whom, so far, he was thankful. His learned friend had then endeavoured to show that, in October, 1844, great excitement prevailed amongst the natives— that the times were disturbed — that threats and menaces had been used, and that Governor Fitzßoy had been compelled almost by force and violence to consent to waive the Crown's right of pre-emption ; in short, that there had been a revolution. Aud because Governor Fitz Roy had acted under these- circumstances, bonafidc, with a view to the benefit of the colony, it was contended that his nets ought to be adopted by the Crown ; and that Court was then asked to declare that to be legal which, it was contended, had been, in fact, the work of revolution. If Governor Fitzßoy had been upon his trial as between himself and the Crown, such an argument would have had great force : but with reference to the main point at issue, but without admitting the facts as stated, he, the Attorney General, would answer it not by argument, but analogy, briefly, but, he thought, conclusively, and would then sit down. A schoolmaster opens a school ; and he alone has the power of giving liolydays. Some day, iv the absence of the master, the boys become unruly, surround the usher, and by menaces and threats compel him to consent to give them a holyday : their play begins, when, by and bye, returns the master, armed with a rod, and with power to restore order- It is contended, however, for the boys, that they juo entitled to the remainder of their holyday ; because, the usher, under difficult circumstauces, acted bona fide, the master was bound by his asts. He, the At-torney-General, would leave it for the Court to determine whether, under such circumstances, the boys were really entitled to the remainder of their holyday ; or whether, under such circumstances, the master should .allow it them. Ilis Honor then informed Counsel that he should defer giving judgment, till he bad communicated with JMr. Justice Ciiapin.ui.

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Bibliographic details

SUPREME COURT. TUESDAY, MAY 4, 1847. IMPORTANT CASE. WAIVER OF THE CROWN'S RIGHT OF PREEMPTION—TREATY OF WAITANGI., New Zealander, Volume 2, Issue 101, 8 May 1847

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SUPREME COURT. TUESDAY, MAY 4, 1847. IMPORTANT CASE. WAIVER OF THE CROWN'S RIGHT OF PREEMPTION—TREATY OF WAITANGI. New Zealander, Volume 2, Issue 101, 8 May 1847

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