(66)
Melatosh; and, secondly, that the purchase was made
under and in conformity with a certificate issued by
Governor Fitz Roy, as set forth on the Record. Upon
these two facts the claimant's case rests.

It may make the whole matter clearer to consider,
in the first place, the legal effect of such a purchase,
viewed by itself and apart from the certificate or al-
leged authority.

Now the general law of England, or rather of the
British colonial empire, in respect of the acquisition of
lands, such as those which are comprised within the
claimant's purchase and defendant's grant, has from
very early time stood as follows: Wherever, in any
country to which (as between England and the other
European nations) England had acquired a prior title
by discovery or otherwise, there were found land lying
waste and unoccupied, and the same came to be occu-
pied and appropriated by subjects of the British Crown
it was holden that such subjects did not and could not
thereby acquire any legal right to the soil as against
the Crown. And this rule was understood to apply
equally, whether the country was partially peopled or
wholly unpeopled and whether the settlers entered and
obtained possession with or without the consent of the
original inhabitants. Accordingly, colonial titles have
uniformly rested upon grants from the Crown. This
was the case in the oldest British colonies in America;
and it is notorious that the same rule has been acted
upon without deviation or exception in the more re-
cent colonization of Australia.

Nor is this the rule and practice of England only,
but of all the colonizing states of Europe, and (by de-
rivation from England) of the United States of Ame-
rica. The very full discussion of this subject in the
judgment of my learned brother, Mr. Justice Chap-
man, renders it superfluous for me to enter further upon
the question. I shall content myself with citing two
passages from the well known "Commentaries on Ame-
rican Law," by Mr. Chancellor Kent, of the State of
New York. I quote this book, not as an authority in
an English Court, but only as a sufficient testimony
that the principle contained in the rule of law above
laid down-and which same principle, with no other
change than the necessary one of form, is still recog-
nised and enforced in the courts of the American Uni-
on, is understood there to be derived by them from
the period when the present States were Colonies and
Dependencies of Great Britain. The European na-
tions, (says Mr. Chancellor Kent, Vol. 3, p. 379,)
which respectively established Colonies in America,
assumed the ultimate dominion to be in themselves,
and claimed the exclusive right to grant a title to the
soil, subject only to the Indian right of occupancy.
The natives were admitted to be the rightful occupants
of the soil, with a legal as well as just claim to re-
tain possession of it and to use it according to their
own discretion, though not to dispose of the soil at
their own will, except to the Government claiming the
right of pre-emption." Again in p. 385, after speaking
of the "several local governments both before and af-
ter" the American revolution, he says "Those govern-
ments asserted and enforced the exclusive right to
extinguish Indian titles to lands inclosed within the
exterior lines of their jurisdictions, by fair purchase,
under the sanction of treaties; and they held all in-
dividual purchases from the Indian, whether made
with them individually or collectively as tribes, to be
absolutely null and void. The only power that could
lawfully acquire the Indian title was the State, and a
government grant was the only lawful source of title
admitted in the courts of justice. The Colonial and
State governments, and the government of the United
States, uniformly dealt upon these principles with the
Indian nations dwelling within their territorial li-
mits."

Now, at the very commencement of the colonization
of this country, the same principle was distinctly enun-
ciated. The 2nd section of the Land Claims Ordinance
of June 1841 (Sess1, No.2) declares and enacts that "the
sole and absolute right of pre-emption from the abo-
riginal inhabitants vests in, and can only be exercised
by Her Majesty, her Heirs and Successors and that all
titles to land in the said colony of New Zealand which
are held or claimed by virtue of purchases or gifts or
pretended gifts, conveyances or pretended convey-
ances, leases or pretended leases, agreements or other
titles, either mediately or immediately from the chiefs
or other individuals or individual of the aboriginal
tribes inhabiting the said colony, and which are not
or may not hereafter be allowed by her Majesty, her
Heirs and Successors are, and the same shall be, ab-
solutely null and void:" and, as if to carry the prin-
ciple which I have mentioned to the extreme length,
it is by section 6, provided that even after the Commis-
sioners acting under that Ordinance, shall have re-
ported in favor of any claimant, yet "nothing herein
contained shall be held to oblige the said Governor
to make and deliver any such grants as aforesaid, un-
less his Excellency shall deem it proper so to do."

In fact, if we pass in review the various provisions of
the Ordinance, both as to the limitations and res-
trictions under which grants are to be made in any
case, and as to the express directions that lands of
certain descriptions shall not be proposed to be
granted to any claimant whatsoever, we see through-
out the Ordinance, a distinct recognition and asser-
tion of the doctrine just now stated. It is every where
assumed that where the native owners have fairly and
freely parted with their lands, the same at once
vest in the Crown, and become subject wholly to the
disposing power of the Crown. This ordinance whilst
it asserts the Crown's absolute right of control and
disposal over the purchased lands, and is careful to
show that the recognition of the claims was not to be
taken as an acknowledgment of any right in the pur-
chasers as against the Crown, does at the same time
clearly intimate the object with reference to which
that power of control and disposal is to be exercised.
It points to subjects of the Crown other than those pur-
chasers, and whose interests would likewise demand
consideration. The 3rd section recites that "Her Ma-
jesty hath been pleased to declare Her Majesty's gra-
cious intention to recognize claims to land, which
may have been obtained on equitable terms from the
chiefs or aboriginal inhabitants or inhabitant of the
said colony of New Zealand, and which may not be
prejudicial to the present or prospective interests of
such of Her Majesty's subjects who have already re-
sorted, or who may hereafter resort to and settle in
the said colony." Moreover, the Ordinance closes
with an express proviso that nothing in this Ordi-
nance contained shall be deemed in any way to affect
any Right or Prerogative of Her Majesty, Her Heir
or Successors."

It may well be presumed that a rule so strict and
apparently severe, and yet so generally received
must be founded on some principle of great and ge-
neral concernment. And this presumption would be
strengthened by observing, that not only in England
but also in the United States of America, not only
in a country which retains many traces of the old
feudalism, but also in a State which sways all thing
by the will of the majority of its individual citizens
and in which, too, the business of colonization-the
disposing of the public domain for the benefit of the
nation, is made a regular and distinct branch of
public Administration-this rule is yet most strongly
recognized and enforced.

The principle is apparently this; that colonization
is a work of national concernment-a work to be car-
ried on with reference to the interests of the nation
collectively; and therefore to be controlled and gui-
ded by the Supreme Power of the nation.

This rule may have had its origin in the feudal doc-
trine which vested the supreme dominion and ultimat
ownership of all land personally in the Sovereign; but
in modern times, and especially since the Domain o
the crown passed under the control of Parliament, i
has acquired an enlarged significancy and importance
It is now understood that the waste lands of the Crow
are to be administered for the national behoof upon ar
impartial and (so far as may be) a uniform system
This is expressed or implied in all the Statutes, Ordi-
nances, and Instructions which have had reference t
this colony. Now, the Sovereign right of contro
without which no uniform or general system woul
possible, is secured by this rule. If a subject o
Crown could by his own act, unauthorized by th
Crown, acquire against the Crown a right to any po