(65)

mers of the Treaty found the word in use with a-
eculiar and technical meaning, and as a short expres-
sion for what would otherwise have required a many-
worded explanation, they were justified by very general
Practice in adopting it. No one now thinks of object-
ing to the use of the word syco-phant, in its secondary
meaning, because its true meaning is a "shower of
figs."

The legal doctrine as to the exclusive right of the
Queen to extinguish the native title, though it operates
only as a restraint upon the purchasing capacity of the
Queen's European subjects, leaving the natives to deal
among themselves, as freely as before the commence-
ment of our intercourse with them, is no doubt incom-
patible with that full and absolute dominion over the
lands which they occupy, which we call an estate in fee.
But this necessarily arises out of our peculiar rela-
tions with the native race, and out of our obvious duty
of protecting them, to as great an extent as possible,
from the evil consequences of the intercourse to which
we have introduced them, or have imposed upon them.
To let in all purchasers, and to protect and enforce every
private purchase, would be virtually to confiscate the
lands of the natives in a very short time. The rule laid
down is, under the actual circumstances, the only one
calculated to give equal security to both races. Al-
though it may be apparently against what are called ab-
stract or speculative rights, yet it is founded on the
largest humanity; nor is it really against speculative
rights in a greater degree than the rule of English law
which avoids a conveyance to an alien. In this colony,
perhaps, a few better instructed natives might be found,
who have reduced land to individual possession, and are
quite capable of protecting their own true interest; but
the great mass of the natives, if sales were declared
open to them, would become the victims of an appa-
rently equitable rule; so true it is, that " it is possible
to oppress and destroy under a show of justice." (Haw-
tress.) The existing rule then contemplates the native
race as under a species of guardianship. Technically,
it contemplates the native dominion over the soil as in-
ferior to what we call an estate in fee: practically, it
secures to them all the enjoyments from the land which
they had before our intercourse, and as much more as
the opportunity of selling portions, useless to them-
selves, affords. From the protective character of the
rale then, it is entitled to respect on moral grounds,
no less than to judicial support on strictly legal grounds.

In order to enable the court to arrive at a correct
conclusion upon this record, I think it is not at all ne-
cessary to decide what estate the Queen has in the land
previous to the extinguishment of the native title. An-
ciently, it seems to have been assumed, that notwith-
standing the rights of the native race, and of course
subject to such rights, the crown, as against its own
subjects, had the full and absolute dominion over the
soil, as a necessary consequence of territorial jurisdis-
tion. Strictly speaking, this is perhaps deducible from
the principle of our law. The assertion of the Queen's
pre-emptive right, supposes only a modified dominion,
as residing in the natives. But it is also a principle
of our law that the freehold never can be in abeyance;
hence the full recognition of the modified title of the
natives, and its most careful protection, is not theoreti-
cally inconsistent with the Queen's seisin in fee as
against her European subjects. This technical seisin
against all the world except the natives, is the strongest
ground whereon the due protection of their qualified
dominion can be based. This extreme view has not
been judicially taken by any colonial court that I am
aware of, nor by any of the United States' courts, re-
cognizing the principles of the common law. But in
one case before the Supreme Court in the United States,
there was a mere naked declaration to that effect, by a
majority of the judges. One of the judges however,
differed from his brethren, he considering the natives as
absolute proprietors of the soil, with the single restric-
tion arising out of the incompetency of all but the so-
vereign power to buy, and he treated what is commonly
called the pre-emptive right as "a right to acquire the
fee simple by purchase when the proprietors should be
disposed to sell.

The Charters of the Stuarts certainly assumed the
fee to be in the Crown, and they were never impeached
on the ground that the King had conveyed a larger es-tate than he had in him, though attempts were often made
to get rid of them. In spite of this assumption, the na-
tive outstanding title was usually got in by purchase.
The charter to the New England Puritans in 1620, granted
the land in fee, leaving it to the grantees to extinguish
the native title. In the case of William Penn, usually
cited as a model of humanity and fair dealing, the char-
ter was granted in 1681; then Penn proceeded to settle
the land; and lastly "the settlers having made and im-
proved their plantation to good advantage, Penn, in
order to secure the plantation from the Indians, ap-
pointed commissioners to purchase the land, &c."
(Encyclop. Brit. article 'Penn.') It was not until 1683
that Penn reached the colony. Vattel sees no viola-
tion of law in this course. He and the writers be-
fore his time seem to have attached little weight to the
native title; and he cites the cases of Penn and the New
Englanders as evidence of their moderation-rather
than as fulfilling a condition necessary to the comple-
tion of their title and precedent to its full enjoyment.-
[Book 1, C. xviii, § 209.]

But for more than a century certainly, neither in the
British American colonies nor subsequently in the
United States, has it been the practice to permit any
patent to pass the public seal of the Colony or States
previous to the extinguishment of the native title [Col-
lection of Indian Treaties, Washington, 1837]: a prac-
tice certainly far more conducive to the security of na-
tive rights than the ancient practice. To part with the
Crown's interest during the existence of the native title,
leaving it to the grantee to acquire that title, is ob-
viously fraught with evil to both races, and with great
inconvenience and perplexity to the colonial govern-
ments.

Such are the principles in conformity with which, I
conceive, this court is bound to view the rights of the
Crown, the Queen's European subjects, and her Ma-
jesty's new subjects, respectively; and guided by their
light, we are enabled to decide the question raised upon
this record. Even abstaining from regarding the
Queen's territorial right, pending the title of the na-
tives as of so high a nature as an actual seisin in fee as
against her European subjects, and regarding it in the
view most favourable to the claimant's case, as the
weakest conceivable interest in the soil-a mere possi-
bility of seisin, I am of opinion that it is not a fit sub-
ject of Waiver either generally by proclamation, or spe-
cially by such a certificate as Mr. Mc Intosh holds.-
Both by the common law of England (now the law of
the colony in this behalf,) and by the express words of
the charter, such an interest can only be conveyed by
letters patent under the public seal of the colony.

I am also of opinion, after very carefully considering
the statement of Mr. Bartley, and the apparent admis-
sion of the Attorney General, that the want of compli-
ance with the Australian Waste Lands Act, until lately
in force in this colony, would, even in the absence of a
grant to the defendant, be a fatal defect in Mr. Mc-
Intosh's claim, and this on two grounds:-First, not-
withstanding the words "waste lands of the Crown"
may seem to import lands the title to which was com-
plete, I think the language of the 5th section extending
the formalities prescribed by the Act to "any less estate
or interest," would be sufficient to include that interest
which the Crown has in all the lands of the colony;
and that, consequently, a proclamation made in eva-
sion of the Act of parliament cannot legally be acted
upon: Secondly by Mr. McIntosh's purchase, (assu-
ming it to be a complete extinguishment of the title
of all native claimants,) the land vests in the Crown,
and so becomes part of the Waste Land of the Crown,
even in contemplation of the Attorney General's dis-
tinction; and as such could only be alienated (so long
as the 5 & 6 Vict. c. 36 was in force here) in strict
compliance with its provisions.

For these reasons. I think the Judgment of the
Court upon this record must be for the defendant.

His Honor the Chief Justice then proceeded to de-
liver his own Judgment as follows:-

THE QUEEN v. J. J. SYMONDS.

The facts admitted in this case are the following:
First, that a complete and honest purchase of the land
now in question was effected by the claimant, Mr.