(68)

the disregard of which has been so fatal to the prospe... "The Lieutenant-Governor having laid on the
rity of other British settlements." [Parliamentary table a letter from Capt. Graham, the Senior
Papers, 1840, page 38.] Now, these directions Naval Officer, dated the 4th instant, communi-
appear to have been in no way confined to the cating to the Lieutenant-Governor the fact of
Governor to whom they were personally addressed. his baving received orders from His Excellency
They were clearly indicative of a policy to be steadily the Commander-in-Chief on this Station to pro-
pursued by successive Governors, whilst the coloniza- ceed to England immediately with Her Majesty's
tion of the country should be proceeding. These in- Ship under his command, it was resolved by the
structions were carried out first, by the Treaty of Wai- Lieutenant-Governor and Council that the fol-
tangi; and, afterwards, by the Land Claims Ordinance, lowing resolution should be recorded in the
upon which I have already commented. Moreover, in Minutes of Proceedings of the Executive Council.
respect of all lands which should in consequence vest
in and become disposable on behalf of the Crown, strict
rules were laid down; they were contained, at first, in
Royal instructions, and afterwards, embodied in an Act
of Parliament, which was in force at the date of this
certificate. Under either form, the rules were in sub-
stance the same. The two main points were common
to both: namely, the provisions for raising an emigra-
tion fund, and the provisions for securing fair compe-
tition among purchasers. Now, doubtless. we may
imply in the agent all authorities necessary for carrying
into execution these two expressed purposes of his
principal: but how can we imply an authority to do
acts which tend directly to defeat them?

I pass by various topics which were strongly urged by
Mr. Bartley, for two reasons, viz., because they cannot
be properly raised upon this record, which does not
contain one word referring to them; and, further, be-
cause they are directly negatived by the terms of the
Proclamation under which this certificate was issued.
In fact, Governor FitzRoy appears to have been careful
to put all persons who might be disposed to act under
that Proclamation upon their guard, and to give them
to understand that, if they purchased at all, they would
do so at their own risk. The concluding words of the
Proclamation are these-"The public are reminded
that no title to land in this colony, held or claimed by
any person not an aboriginal native of the same, is
valid in the eye of the law, or otherwise than null and
void, unless confirmed by a grant from the Crown."
These same words are found at the close both of the
earlier Proclamation of March, and the later one of
October, under which Mr. McIntosh claims.

Upon the whole, then, Mr. McIntosh is simply a pur-
chaser from the natives, without authority or confirm-
ation from the Crown. He cannot possibly stand in a
better position than did the original Land Claimants.
He cannot possess, any more than they did, a title
against the Crown or the Crown's grantee.

Of course, we, in this place, have nothing to do with
any question except the bare legal question of the ex-
istence or non-existence of a legal right and title in the
claimant.

It may also be proper to remark, that this Judgment
does not affirm the absolute validity of the grant to the
defendant. It decides this only, that that grant cannot
be set aside on the grounds which are set forth on the
Record.-Judgment for the Defendant.

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

HIS Excellency the Lieutenant-Governor
directs that the following Extract
from the Minutes of the Executive Council,
be published.

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

EXTRACT FROM THE MINUTES OF THE EXECUTIVE
COUNCIL OF NEW ZEALAND, HELD ON MONDAY,
THE 5TH JULY, 1847.

"His Excellency and the Members of the
Executive Council cannot allow Captain Graham
to leave this Colony without recording their
acknowledgments of his cordial and zealous
co-operation on all occasions when active opera-
tions were necessary for the purpose of quelling
rebellion, and of expressing the high sense they
entertain of the warm interest displayed by him
at all times in promoting the welfare of the
Colony and of its inhabitants, of both races; by
which he has not only greatly promoted the
interests of the European population, but has
also, in many instances, secured the confidence,
and confirmed the loyalty, of the natives.

"His Excellency and the Council avail them-
selves of this opportunity to request Captain
Graham to make known to the Officers and crew
of Her Majesty's Ship Castor the sense the Lieu-
tenant-Governor and Council entertain of their
gallantry and exemplary conduct upon all occa-
sions,-qualities which have gained for them
the gratitude and best wishes of the Colonial
Government and of the Colonists."

A true extract.

FREDERICK THATCHER,
Asst. Prvt. Sety.,
Acting as Clerk of Council.

CAUTION.

THE PUBLIC are hereby cautioned
against purchasing any of the under-
mentioned Properties, or from removing any
timber or other material from the same, they
having been purchased by the Undersigned
from the official assignee of James Stuart, of
George street, Sydney.

Claim-known as No. 218 (100 acres)
do. | do. 218 a (1850 acres)
do. | do. 218 b (10 acres)

GEORGE THORNE
(By his Attorney)
JNO. I. MONTEFIORE.

July 2nd, 1847.

Auckland :-Printed by JOHN WILLIAMSON, for the
New Zealand Government.