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tion of the lands of a new country, it is plain that he
might, acting upon that right, proceed to form a co-
lony there. Now, the law of England denies to any
subject the right of forming a colony without the license
of the Crown. And when we consider the complicated
responsibilities which flow out of the existence of a
colony, and which may seriously affect the Power to
which the settlers owe allegiance, and from which they
expect to receive protection, and when we, also, esti
mate the means and appliances needed for successful
colonization, that denial can scarcely fail to appear
reasonable and necessary.

So soon, then, as the right of the native owner is
withdrawn, the soil vests entirely in the Crown for the
behoof of the nation. To borrow the words of a very
learned judgment recently pronounced by the Supreme
Court of New South Wales, (Attorney-General v. Brown,
Feb. 1847)." In a newly-discovered country, settled
by British subjects, the occupancy of the Crown with
respect to the waste lands of that colony is no fiction.
If, in one sense, these lands be the patrimony of the
nation, the sovereign is the representative and the exe-
cutive authority of the nation; the 'moral personality'
(as Vattel calls him, Law of Nations, bk. 1, chap. 4) by
whom the nation acts, and in whom, for such purposes,
its power resides. Here is a property depending for
support on no feudal notions or principle."

It is true that the colonization of New Zealand has
differed from the mode pursued in many of the older
colonies. As was said by the learned Attorney-
General, it has been distinguished by a practical ad-
vance of the doctrine that "Power has duties as well
as rights." But the adoption of a more righteous and a
wiser policy towards the native people, cannot furnish
any reason for relinquishing the exercise of a right
adapted to secure a general and national benefit. This
right of the Crown, as between the Crown and its British
subjects, is not derived from the Treaty of Waitangi; nor
could that Treaty alter it. Whether the assent of the
natives went to the full length of the principle, or (as is
contended) to a part only, yet the principle itself was
already established and in force between the Queen
and Her British subjects. The Treaty of Waitangi was
made in February, 1840. The Land Claims Ordinance,
on which I have already commented, was passed in
June of the same year. There is no indication, then,
of an abandonment of the principle.

This rule then does in substance and effect assert,
that whenever the original native right is ceded in re-
spect of any portion of the soil of these Islands, the
right which succeeds thereto is not the right of any in-
dividual subject of the Crown, not even of the person by
whom the cession was procured, but the right of the
Crown on behalf the whole nation, on behalf of the
whole body of subjects of the Crown:-that the land
becomes from the moment of cession not the pri-
vate property of one man, but the heritage of the whole
people:-that accordingly no private right shall be re-
cognized as interfering with the public and national
right:-that no single member of the nation shall have
any power to impede in any way the progress and work-
ing of the plan ordained by the Supreme Authority of
the nation for the nation's benefit. It is a rule which
excludes all private interest, in order to maintain and
vindicate a general and public good. It does not forbid
a careful and equitable regard to the circumstances of
particular cases, (as in the instance of the original
Land Claims), but it reserves the entire discretion to
the Sovereign Power. It says nothing of the fitness or
unfitness of the regulations or conditions under which
the state may from time to time allow this properry to
be distributed and appropriated to individual citizens,
but only that to the State shall belong the management
and responsibility of such distribution. In general, it
asserts nothing as to the course which shall be taken
for the guidance of colonization, but only that there
shall be one guiding Power.

The doctrine now laid down was not denied by the
learned counsel for the claimant: rather, by the inge-
nuity spent in endeavouring to trace an authority for
the issue of the pre-emption certificate, it appeared to
be indirectly admitted. Therefore, in what I have
said, I have gone beyond what it was strictly necessary
to say, but this I have done partly because the rule
appeared not to have been clearly understood, and
partly because a previous comprehension of its mean-
ing may be useful in the considerations to which we
now pass.

he claimant, McIntosh, acquired then no title by
the purchase alone? Did he acquire any by the pur-
chase in connexion with the certificate?

The claimant says he has purchased this land with the
Queen's authority; that he has expended his money
with her sanction; and, therefore, has a legal right to
have the land so purchased granted to him. This he
says, without alleging any objection to the grant, or to
the conduct of the grantee, without suggesting any il-
legality or irregularity at all. Leaving the Court to
assume (as in this state of things must be assumed)
that the grant is in itself good and unimpeachable, he
calls on the Court to set aside that grant upon such
grounds alone as are disclosed on this record. Now,
when any loss or injury has arisen to any subject from
any breach of any contract or undertaking on the part
of the Crown, the law prescribes a mode in which the
wrong done to the subject may be (not of course enforced
against the Crown) but brought under the consideration
of the Crown to the end that justice may be done. But
the claimant's proceeding is quite a different one. He
asks that the defendant's property, which (for all that
is now shown) has been rightfully acquired, be taken
from him.

Now, as the case stands, the defendant has the best
and highest title upon which a subject can rely, and
that wholly unimpeached. What is the title which Mr.
McIntosh opposes to this? It is the certificate set forth
upon the record. Now this certificate, though pur-
porting to convey a right or interest in respect of cer-
tain lands within the colony, is not only not under
the colonial seal, but it does even bear the signature
of the Governor. It is really a certificate by the Colo-
nial Secretary that the Governor had consented to waive
the Queen's right of pre-emption in respect of certain
lands. Strictly speaking, it is not a waiver, but only
evidence of a waiver having been made. It is quite
plain, that such a paper cannot convey anything which
can be called a legal right or title to the land mentioned
therein. Such a title did not arise by the purchase
alone, as we have seen; neither could it arise by virtue
of this certificate.

Here, then, the claimant's case fails. But as the
waiver is admitted to have been in fact the act of the
Governor, and as the remaining question is, in several
respects, an important one, I proceed to consider it.
Was there any authority in the Governor to make
such a waiver, so as to bind the Crown? This, indeed,
is the point on which the main stress of the argument
was laid.

I premise, that with the questions raised as to the
true meaning of the Treaty of Waitangi as it stands in
the native language-whether it does or does not speak
of "the exclusive right of pre-emption," or of "pre-
emption" at all, or only and simply of "purchase"-
we have obviously no concern. Nor, indeed, is it ma-
terial to inquire whether the word "pre-emption,"
which is found in the English copy, be used in the
sense now contended for-that is to say-as indicating
merely a prior right in the Crown upon the non-
exercise whereof a subsequent right would, as of course
and without anything further, accrue to the subjects of
the Crown; or whether it was intended to express that
superior right which the law recognizes in the Crown
overriding and controlling all purchases of native lands
by subjects of the Crown. For the plaintiff stands upon
the Crown's right as it is in the Crown, and upon no-
thing else. He bases his claim, not upon any right
accruing to himself subsequently to, or independently
of, that right, but upon a transfer of that very right to
himself. The certificate purports to be something more
than a mere waiver. A mere waiver or relinquishment
of a Crown-right would leave to all the Queen's subjects
equally whatever benefit might arise therefrom. Where-
as, this document purports to convey that right to one
individual to the exclusion of all others; and to him,
for a time undefined.

That there was no express authority for the issue of
certificates of this kind is acknowledged. If there was
an implied authority, it must be gathered from the acts
and dealings of the Crown, the laws which have been
made, and instructions which have been issued in re-
spect of this colony. Now, among the first instructions
given by one of Her Majesty's Principal Secretaries of
State to the first Governor of New Zealand, we find the
following passage:--"It is not, however, to the mere
recognition of the sovereign authority of the Queen that
your endeavours are to be confined, or your negotia-
tions directed. It is further necessary that the chiefs
should be induced, if possible, to contract with you, as
representing Her Majesty, that henceforward no lands
shall be ceded, either gratuitously or otherwise, except
to the Crown of Great Britain. Contemplating the fu-
ture growth and extension of a British colony in New
Zealand, it is an object of the first importance that the
alienation of the unsettled lands within its limits should
be conducted from its commencement upon that system
of sale of which experience has proved the wisdom, and