SOIT QUI-MA
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HETY MON
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NEW ZEALAND
GOVERNMENT GAZETTE.

Published by Authority

All Public Notifications which appear in this Gazette, with any Official Signature thereunto
annexed, are to be considered as Official Communications made to those Persons to whom they may
relate.

By His Excellency's Command,
ANDREW SINCLAIR, Colonial Secretary.

VOL. VII. AUCKLAND, TUESDAY, JULY 6, 1847. No. 11.

NOTICE.
Colonial Secretary's Office,
Auckland, 6th July, 1847

HIS Excellency the Lieutenant-Governor
has been pleased to give directions for
the publication of the following decision of
the Supreme Court, in the case of M'Intosh
v. Symonds, for general information.

By His Excellency's command,
ANDREW SINCLAIR,
Colonial Secretary.

JUDGMENT OF MR. JUSTICE CHAPMAN.

This case comes before the Court upon demurrer
to a declaration in a suit upon a writ of Scire Facias
—whereby the party suing out the writ seeks to set
aside a grant from the Crown, made under the public
seal of the colony to the defendant, on the ground that
the claimant has a prior valid title to the same land, by
virtue of a certain certificate, whereby it is alleged,
the late Governor waived, in the present claimant's
favour, the Queen's exclusive right of acquiring the
land in question from the natives.

The question which this Court has to determine is,
did the claimant Mr. C. Hunter M'Intosh acquire by
the certificate and his subsequent purchase (admitted
to have been in all respects fair and bona-fide,) such
an interest in the land, as against the Crown, as inva-
lidates a grant made to another, subsequently to the
certificate and purchase?

As this question involves principles of universal ap-
plication to the respective territorial rights of the
Crown, the aboriginal natives, and the European sub-
jects of the Queen; as moreover its decision may affect
larger interests than even this court is up to this mo-
ment aware of, I think it is incumbent on us to enun-
ciate the principles upon which our conclusion is based,
with more care and particularity than would, under
other circumstances, be necessary.

The intercourse of civilized nations, and especially
of Great Britain, with the aboriginal natives of Ame-
rica and other countries, during the last two centuries,
has gradually led to the adoption and affirmation by
the Colonial Courts, of certain established principles of
law, applicable to such intercourse. Although these
principles may at times have been lost sight of, yet
animated by the humane spirit of modern times, our
colonial courts, and the courts of such of the United
States of America, as have adopted the common law of
England, have invariably affirmed and supported them;
so that at this day, a line of judicial decision, the cur-
rent of legal opinion, and above all, the settled practice
of the colonial governments, have concurred to clothe
with certainty and precision, what would otherwise
have remained vague and unsettled. These principles are
not the new creation or invention of the colonial courts.
They flow not from what an American writer has cal-
led the "vice of judicial legislation." They are in fact
to be found among the earliest settled principles of
our law; and they are in part deduced from those
higher principles, from charters made in conformity
with them, acquiesced in even down to the charter of our
own colony; and from the letter of treaties with na-
tive tribes, wherein those principles have been asserted
and acted upon.

It is a fundamental maxim of our laws, springing no
doubt from the feudal origin and nature of our tenures,
that the King was the original proprietor of all the
lands in the kingdom, and consequently the only legal
source of private title, [2 Bl. Com. 51, Co. Litt. 65, a.]
In the language of the year book, [M. 24, Edw. III,]
"all was in him, and came from him at the beginning."

This principle has been imported, with the mass of the
common law, into all the colonies settled by Great
Britain; it pervades and animates the whole of our ju-
risprudence in relation to the tenure of land; and so
protective has it been found, that although strictly a pre-
rogative rule, the Republican States of America, at
least all those states which recognise the common law
as the origin and basis of their own municipal laws,
have found it expedient, if not necessary, to adopt it
into their jurisprudence. [Kent's Comm. vol. iii., part
vi., lecture 51.]

As a necessary corollary from the doctrine,—"that
the Queen is the exclusive source of private title,"
the colonial courts have invariably held (subject of