(64)
course to the rules of prescription in the older colonies,)
that they cannot give effect to any title not derived from
the crown, (or from the representative of the crown,
duly authorised to make grants,) verified by letters pa-
tent. This mode of verification is nothing more than
a full adoption and affirmation by the colonial courts,
of the rule of English law; "that (as well for the pro-
tection of the crown, as for the security of the subjects,
and on account of the high consideration entertained by
the law towards Her Majesty,) no freehold, interest,
franchise, or liberty, can be transferred by the crown,
but by matter of record." [Viner Abr. Prerog.; Bac. Abr.
Prerog.]:-that is to say, by letters patent under the
great seal in England, or (what is equivalent thereto in
the colony,) under the public colonial seal. In the in-
struments delegating a portion of the royal authority to
the Governors of colonies, this state of the law is
without any exception, that I am aware of, universally
and necessarily recognised and acted upon. In some
cases the authority and powers of the Governor are set
out in his commissions; (Quebec Commissions by Ba-
ron Mazeres, 4to., 1772); but in this colony the Go-
vernor derives his authority partly from his commission,
and partly from the royal charter of the colony, (Parl.
paper, 11th May, 1841, p. 31), referred to in and made
part of such commission. In this charter, we find the
invariable and ancient practice followed: the Governor,
for the time being, being authorised to make and exe-
cute in her Majesty's name, and on her behalf, under
the public seal of the colony, grants of waste lands, &c.
In no other way, can any estate or interest in land,
whether immediate or prospective, be made to take
effect; and this court is precluded from taking notice of
any estate, interest, or claim, of whatsoever nature,
which is not conformable with this provision of the
charter; which in itself is only an expression of the
well ascertained and settled law of the land.

Here, under ordinary circumstances, I think we
might stop. On the one hand, the defendant has a
grant from his Excellency the Governor, complying
in all respects with the law, which grant is not im-
peached upon this record on any one of the grounds
upon which grants are liable to be repealed. There is
no allegation, on the part of the adverse claimant, of
any illegality, uncertainty, mistake, mis-description,
mis-information or deception, [2 Bl. Comm. 348, Co.
Lit. 5, 6, Gladstanes, v. the Earl of Sandwich, 4 Man,
and Gr. 995.] On the other hand, the claimant founds
his title on an instrument not under the seal of the
colony, having none of the features of a patent, and
therefore not complying either with the common law,
or with the charter of this colony, framed evidently
with especial reference thereto.

But the peculiar character of the instrument under
which Mr. M'Intosh claims, being the act of the late
Governor of the colony, whose acts ought to be sup-
ported, if not repugnant to the law of the land, and
issued in conformity with a proclamation, with which
it is admitted the claimant has faithfully complied, de-
mands that we should go further, and examine the va-
lidity of his claim upon its own intrinsie merits.

It seems to flow from the very terms in which the
principle that the Queen is the only source of title,
is expressed, that no subject can for himself acquire
new lands by any means whatsoever. Any acquisition
of territory by a subject, by conquest, discovery, oc-
cupation or purchase from native tribes, (however it may
entitle the subject, conqueror, discoverer, or purchaser,
to gracious consideration from the crown), can confer
no right on the subject. Territories therefore, ac-
quired by the subject in any way, vest at once in the
Crown. To state the Crown's right in the broadest
way; it enjoys the exclusive right of acquiring newly
found or conquered territory, and of extinguishing the
title of any aboriginal inhabitants to be found therean.
Anciently private war was not unusual. The history of
Sir Francis Drake is an instance of a subject acquiring
territory for the Queen, by a mixture of conquest and
discovery, without a commission. In like manner an
accidental discovery is taken possession of, not for the
benefit of the discoverer himself, but for that of the
Crown. The rule, therefore, adopted in our colonies,
"that the Queen has the exclusive right of extinguish-
ing the native title to land," is only one member of a
wider rule, that the Queen has the exclusive right of

acquiring new territory, and that whatsoever the sub-
ject may acquire, vests at once, as already stated, in the
Queen. And this, because in relation to the subjects,
the Queen is the only source of title.

As to the practical consequence that the Queen may
lawfully oust any subject who attempts to retain posses-
sion of any lands he has acquired, it is a power which
has often been exercised. The settlement of New Haven,
(now part of Connecticut) is an early case. Connecticut
had originally been colonized under a royal grant to
Lord Say and Sele. New Haven was settled by people
from Connecticut, who purchased from the Indians;
yet that title was not recognised, and a new charter was
obtained from Charles II., incorporating New Haven
with Connecticut. The early settlements of Port Phi-
lip are equally in point. The opinions of eminent
lawyers were without exception, against the claims of
the purchasers, and as in New Zealand, the claimants
were glad to take a crown grant of a portion of their
acquisitions, leaving a large portion of territory in the
hands of the crown. To say that such purchases are
absolutely null and void, however, is obviously going too
far. If care be taken to purchase of the true owners,
and to get in all outstanding claims, the purchases are
good as against the native seller, but not against the
Crown. In like manner, though discovery followed by
occupation, vests nothing in the subject, yet it is good
against all the world except the Queen who takes. All
that the law predicates of such acquisitions is that they
are null and void as against the crown: and why?
because, "the Queen is the exclusive source of title."

The practice of extinguishing native titles by fair
purchases is certainly more than two centuries old. It
has long been adopted by the government in our Ame-
rican colonies, and by that of the United States. It is
now part of the law of the land, and although the courts
of the United States, in suits between their own subjects
will not allow a grant to be impeached under pretext
that the native title has not been extinguished, yet they
would certainly not hesitate to do so in a suit by one
of the native Indians. In the case of the Cherokee na-
tion, v. the State of Georgia, the Supreme court threw
its protective decision over the plaintiff-nation, against
a gross attempt at spoliation; calling to its aid, through-
out every portion of its judgment the principles of the
common law as applied and adopted from the earliest
times by the colonial lawa [Kent's Comm, yol, iii.,
lecture 51.] Whatever may be the opinion of jurists as
to the strength or weakness of the native title, what-
soever may have been the past vague notions of the na-
tives of this country, whatever may be their present
clearer and still growing conception of their owu do-
minion over land, it cannot be too solemnly asserted
that it is entitled to be respected, that it cannot be
extinguished, (at least in times of peace), otherwise than
by the free consent of the native occupiers. But for
their protection, and for the sake of humanity, the go-
vernment is bound to maintain, and the courts to as-
sert, the Queen's exclusive right to extinguish it.

It follows, from what has been said, that in solemnly
guaranteeing the native title, and in securing what is
called the Queen's pre-emptive right, the Treaty of
Waitangi, confirmed by the charter of the colony, does
not assert either in doctrine or in practice, any thing
new and unsettled.

Mr. Bartley contends that all that the natives convey
to the Queen by the Treaty of Waitangi, is a right to
have the first offer of the land, or say in one word, the
refusal;-a conclusion which he draws from the etymo-
logical structure of the word pre-emption. There can
be no doubt that according to the strict meaning of the
word, the right of "buying before" others, connotes
the existence of a right residing in others, to buy after
refusal by him who has the pre-emptive right. But
the right which resides in the crown is, as we have seen,
the exclusive right of extinguishing the native title.

Mr. Bartley's criticism is therefore rather philological
than legal. It amounts to this, that the crown's right
is loosely named; that the word pre-emption is not
the one which ought to have been chosen. Be that as it
may, the court must look at the legal import of the
word, not at its etymology. The word used in the treaty
is not now used for the first time. If it were so, it
perhaps might be contended that a limited right being
expressed, the larger right is excluded. But the fta-