POLICE COURT.

New Zealand Gazette and Wellington Spectator, Volume I, Issue 16, 25 July 1840, Page 2

POLICE COURT.

Before Willoughby Shortland, Esq., J.P., and H. D. Smart, Esq., J.P. July 13, 1840. — Queen v. Newell. — Assault, and breach of the peace, Fine ss. 16. — Queen v, Davis.-t-For having on the uniform of the 80th Regiment. Fined £5. 20. — Gomm v. Allen, Anderson, sen. and jun., Sutherland, and Brown. — Assault. Case dismissed. — Anderson, sen. and jun., Sutherland and Brown, v, Gomm.' — Bound over to keep the peaoe.

Union withT South Australia. — We advocate the policy of an amalgamation of interests with the colonists of South AuVt tralia, because we believe that such an union would be beneficial to both colonies, and chiefly so to. Port Philip, because this must eventually be fixed upon as the seat of Government. We would, however, equally readily lend our support to any scheme likely to relieve us from the thraldom in which we are kept by the Sydney Government. In a future number we purpose showing what sums the colonists of Port Philip have contributed to the land and ordinary revenues of

the colony, and what sums we have received by way of a per contra ; but our present object is, if possible, to stir up our apathetic settlers to a sense of what is due to themselves, by convincing them that to persevere in their present course of sluggish indifference, submitting without remonstrance or resistance to the yoke of the task-master, they tacitly invite fresh additions to the heavy burden they already have to bear. We may very safely venture to assert that there is not on record an instance of a colony springing into existence with such rapidity, or attaining to such a high station, under such disadvantages as Australia Felix. Four yeaTs ago the natives of the soil and the beasts of the forest held undivided and undisturbed possession of the land ; behold it now a flourishing town, the germ of a mighty city, and a country already teeming with flocks and herds. But, while the townsman has been in the pursuit of wealth, buying or selling town allotments, or following his business or calling, and while the settler has been occupied in tending his flocks and his herds in the bush, the labours of both tending to the same end — an increase of property, a subject- of vital importance to all, has been forgotten or neglected. The amount realized from the sale of Crown lands in this district has been furnished chiefly, if not wholly, by the settlers and inhabitants of the province, and assuredly they have a right to control the expenditure of the funds they furnish. This right it has been the policy of the Government to withhold, and as yet neither townsman nor settler has offered resistance, or attempted to remonstrate against the grossest misapplication of the funds they have themselves contributed. Now, it is evident that so long as this damning apathy to our political standing is evinced, so long shall we remain unnoticed and deservedly neglected. We cannot expect that if we tamely submit to be fleeced, Sir George Gipps will be in a hurry to withdraw his hand from our purse, or that he will be very clamorous inviting us to come and be relieved from the heavy burden with which we are laden. No ! Port Phillippians,

Know you not Who would be free, themselves must strike the blow;— take a lesson from Dwiel O' Cornell himself, — agitate — agitate — agitate, aud there may be some hope that you will eventually suceed. Again and again we have heard of meejtines to take place to petition against the application of the land revenue to purposes in no way 'beneficial to the province ; but it would seem that if the ilea has not altogether been abandoned, the progress towarls its acoompMshment is slow. Contrast this apathy with the excitement produced by the rival Auction Companies, and we fear we must come to the conclusion that the most paltry affair, in which the question of £ s. d. is involved, is considered of more importance, and is more eagerly contested, than a question involving not only our political status, but also the future welfare of the province. — Port Phillip Herat.d, A^ril 24, 1840.

The following opinions, ("copied from the " Australian," of June 20.) relative to the titles to land purchase \ from the native Chiefs of New Zealand, will be read with great interest by persons connected with this colony.

In perusing the documents which have been submitted to me in this case. T have been much surprise! at the inconsistences displayed in the language and conduct of the Home Government, which T can only account for by supposing that the fmrse intended to he pursued by the nresent Ministers towarls the inhabitants and landowners of New Zea^nd is at variance with the principles of the British constitution, and repugnant to common sense, and that no specious form of words can conceal its iniustice. The ground work of their operations is admitted by th»m to be the indisputable title of the New Zealand Chiefs to the sovereignty of their own soil : on which sovereignty, accompanied by a full and complete right of alienation, the British Government depends for a cession of territory in their favour, or rather a sale of ths laud and a cession of the rights of sovereignty hitherto excercised by those Chiefs over the land. By this process Her Majesty's representative is to acquire a locus standi in New Zealanl. The question then arises, what right of interference ras the British Government with British snbiects in lawful possession of lands in New Zealand by purchase from the Chiefs ? In order to answer this we must go further back and enquire, whether, by reason of their allegiance to their sovereign, or by law, British subjects are restrained from making such purchases, and what constitutional steps the Government can now take in its present position to dispossess them ? With respect to the right of the purchasers and vendors as between themselves to convey and purchase, I do not think that the Government by its own showing, and being in no way privy to these contracts, is

in a condition to raise any question, more, especially as it now pretends to adopt for its" own advantage the course which it denounces as illegal in others. Ido not find that it is any where laid down that a British subject may not lawfully purchase and hold lands in a foreign state, in amity with Great Britain, or that the allegiance which is due from the subject to the Queen is forfeited by so doing. I shall therefore assume that the mere fact of possessing land in New Zealand involves no breach of allegiance or law. Can the Government now annex any conditions to the holders of such land by the introduction of British law into New Zealand, except such as are raised by that law and prerogative of the Queen, "as head and chief of the commonwealth, and entrusted with the execution of the laws ?" 1 think not. To what extent then does the prerogative of the Queen affect the question ? She is entitled by virtue of h^r prerogative "to a right of universal occupancy, on the presumption that all property was origi tally in the Crown, but was partitioned out in large districts to the great men who had deserved well in war ; hence the Queen hath direct dominion over all lands, and all lauds are holden of the Crown." Cosit, 1 Dyer 15 t. " This prerogative however must be for the advantage and good of the people, or it is not " sustainable in Jaw." Moore t>/~2. 4 Uac. Abr. 149. In the absence of direct fraud or illegality in the acquisition of the land, I do not think that the extent of the grant from the chiefs affords any legal ground for interference on the part ot the Government. By illegality, I mean illegality in the transactions between the vendors and purchasers with reference to the laws of New Zealand at the time of the pur chases ; and I do not think that the conveyances being in the form prescribed by British law affects the question so long as the intentions of the vendors were carried into effect and no more. It seems to me that by recognising the rights of the New Zealand chiefs to convey their land, the title of bona fide purchasers claiming under those chiefs is virtually recognised. If, however, by any i arbitrary views of the Government, thid should be overlooked, I should say that, j from the moment that British law was proclaimed any investigation must be by consti- J tutioual and legal means, as by trial by Jury. 1 do not think that the authority of the Queen is commensurate with the terms and proclamation of her representative here, as it is a necessary ingredient that proclamations should be grounded on the laws of the realm ; and although with regard to purchasers of land hereafter from the Government, the Queen may impose such regulations as may seem expedient, still, I do *not think that such proclamations can have retrospective effect in direct violation of the Magna Charta, which insures to every one his lawfully acquired property and privilege of trial by Jury. It Co. 87. 12 Co. 75. The question of how far the course now adopted may be an infringment of the laws of nations is one of great difficulty, and need not here be entertained. It would appear from the language which has been made use of in the proclamation, and the correspondence which has taken place between the Colonial Secretary, Lord Normanby, and the Governor of this Colony, that there is an apprehension that the Queen's prerogative includes the right of pre-emption of lands from the native chiefs in New Zealand, thereby again recognising their title to convey, and putting Her Majesty's claim on a district ground from her right of universal occupancy. No such right of preemption however, exists, and the only right of pre-emption which ever did exist was a privilege allowed the King's purveyor to nave tlie buying of corn and other provisions before others of the King's house, and that trifling privilege was in the time of Charles 2nd declared unconstitutional, and taken away by 12 Car. 2. c, 24. I should have been glad, if an opportunity had been afforded to me to have given more time to the consideration of these questions. From such authorities, however, as I have had an opportunity of consulting, I am of opinion that the title to lands in New Zealand acquired bona fide according to the laws of that couutry by British subjects previous to the interference of the British Government, are good in law and equity. J. B. DARVALL. Sydney, June 11, 1840.

Query 1. — Whether the mere purchase and occupation in a Foreign State by a British subject is illegal ? A very broad ground might be occupied by the discussion of this question, for the solution of which I am not aware that any precedent can be found. Prim a facie, the mere act of purchase would seem tOs involve no illegality ; and I can discover, I -confess, nothing in the principles of the British Constitution, leading to a contrary conclusion. The only part of a subject's duty with

which such a purchase might be supposed to clash is his allegiance to the Sovereign of his own State. This, it is true, cannot "be dissolved but by some such mutual acts as occurred at "the treaty between Great Britain and the United States, declaring' the independence of the latter. It was held in reference to treaty in doe. dem. Thomas v. Acklam, 2 B & C, 779, that a subject of the United States, though previously to the treaty a natural-born British subject, became, after such treaty, an alien with regard to Great Britain. This was decided upon the terms of the treaty, but it was at the same time said by the Court, that if the language of the treaty had been doubtfnl, the inconvenience arising from citizens being subjects of two distinct and independent states at the same time, would have been sufficient reason for its coming to the same decision.

The inconvenience of a ' double allegiance was here alluded to, but it seemed to be admitted that such an allegiance, abstractedly considered, was nothing more than inconvenient, and in the arguments at the bar several authorities were cited to show that a man might be "ad fidem utuusque regis." (Calvin case, 7, Co. 1. Craw v. Ramsay, Vaug., 274, among others.) Blackstone is to the same effect. Indeed there is nothing necessarily repugnant in maintaining allegiance to two states, whilst their interests are not conflicting; upon the becoming so, the peril of the situation is at the risk of him who has chosen to incur it.

But, be this as it may, I am of opinion that the purchase of land by British subjects in a Foreign state is not, per se, illegal ; and as to the illegality of purchases in New Zealand, I am strougly inclined to think that the terms of the Queen's proclamation expressly, although conditionally recognising those purchases, amount to a declaration of their legality ; so far at least, as allegiance is involved.

Query 2. — As to this queiy, my opinion is in the affirmative. Treating New Zealand as an independent state acquired by cession, I apprehend that (unless otherwise stipulated) the laws immediately in force would be the laws of the country at the ti/ne of its cession. Even "in the case of an infidel country," as was said in Blankar.l v. Guldy, 2 Salk. 411, " their laws by conquest do not entirely cease, but only such as are against the laws of God.' 1 If there ;*& no law. the rule of natural equity is to prevail. See 4 Mod. Rep. 22-2,2 P. W. 75, and Campbell v. Hall, Cowper. 209.

Query 3. — As to the effect of the proclamation, &c. I apprehend it applies not -only to all lands now held by British subjects in New Zealand, but which may be acquired in any part of New Zealand over which the crown may acquire the right of sovereignly, and if the proclamation has any force in regard to the land already acquired (but which denied) A fortieri will it operate as to land acquired subsequently to the date of the proclamation.

Query 4. — Supposing the purchases to be legal, I am of opinion that they cannot be invalidated by the Queen's proclamation. Nothing is more clear than that the proclamation of the sovereign is not law, and cannot make law. Tiie legislature alone can do this.

Query 5. — As to the effect of the proclamation in legalizing the act of purchasing land in New Zealand. I have already expressed my opinion that it has such effect.

I am of opinion also that the passing of an act to declare ihese purchases void is contrary to British law, and to the principles of the British constitution. The deprivation of a man's life or property by any other means than the judgnent of his peers — in other words, by a jury of his country — is expressly provided against, by Magna Charta. It is monstrous to contend tint a colonial Council nominated by the Crown can legally pass an act to .deprive a subject of his property in the colonies. The British parliament might venture upon the passing of such an act, but even at their hands it would be most unjust. "

Upon the same principle it appears equally unconstitutional that the Crown should be its own arbiter as to the extent of of land which it will permit to be held by its subjects, after any extent has been once legally acquired. Admitting that the Crown has power to lessen such extent at all, on the pretence of advancing the interests of the community, a jury from that community, aud not of the Crown itself, ought to be the judges of the point to which such diminution, if any, ought to be carried.

These, however, and many other observations that might be made, are less expressive of my opinion on a particular point, than of the arguments which might be adduced in. support of a general view of the question — a question indeed, of the deepest importance, both as regards private and public right, and which cannot, within

the scope of a mere professional opinion, receive all the consideration which it deserves. My opinion on the points put to me I havebriefly stated, but the reasons and argu-. . ments in support of thatopin.on — involving, - as they do, the consideration of abstracts principles applied to no very defined, state - of facts — must be obviously too manifold and elaborate to be required or expected in this place. WILLIAM A'BECKETT. June 11, 1840.