The New-Zealander. SATURDAY, MAY 29, 1847.

New Zealander, Volume 2, Issue 104, 29 May 1847, Page 2

The New-Zealander. SATURDAY, MAY 29, 1847.

Ue just and fear not : Let all the ends thou aims't at, be thy Country's, Thy God's, and Truth's. McINTOSH V SYMONDS. We return once more to the case M'lntosh v. Symonds. the Judgment in which is expected withsuch anxious misgivings by all whom it concerns We return to it without scruple, or fear of wearying our readers, for the interest

of this subject lias absorbed that of all others ; like Aaron's rod, it has swallowed up all the other rods, and our colonists are now awaiting, in a state of most uneasy perturbation, its descent upon their shoulders. Speak to whom you may, "Crown's right of Waiver" is still ths talk ; enter upon what topic you will, the conversation is sure to work itself round to this at last . And such a Babel of opinionsloose, unconnected, fastened upon stray points —as might be collected on the merits of the case, would perhaps not easily be matched again. Sime find fault with the admission, on the plaintiff's part, that the English translation of tfie Treaty of Waitangi is faithful to the oiiginal. Some waste much good Latinity on the etymology of pre-emption, hunting down the poor scared word to the sense of its primitive root, but never stopping to consider whether that be likewise the usual sense. Some rest their hopes on Lord Stanley's supposed recognition of their titles ; while others, not without ingenuity, contend th<*t the true manner of raising the point in Court would have been to construct a somewhat different c.m\ in which a P«ikeha ami a Maori should have been the two champions engaged. In fact, there is just now a levee en masse of ratiocination throughout the country ; every man feels it his duty, so soon as he gets up in the morning, to shoulder hh argument, and to fire off his •* paper bullets of the brain" in all directions for the rest of the day ; whereupon we too now find ourselves minded to have our ciack along with the rest. It would be obviously in bad taste to offer any opinion in a public journal on a case not yet decided ; but it is equally obvious, that there can be no impropriety in attempting to clear away some of the mystification with which it h^s become obscured, or to suggest to those who are interested a mode of enquiry into its merits, that may enable them presently to understand and appreciate the Judgment of the Court. It appears to us that the mistake made by most of those whom we have heard reason on the subject, is this : that they begin at the wrong end. They begin at the Treaty of Waitangi, and draw conclusions downward; whereas they should rather begin with the last enactment, and work upwards. For there is much to be done before we reach the Treaty, and we may think ourselves in luck if we ever get so fir. It i» not the starting post, but the goal ; we are riding a steeple chase at it, and have a certain number of fences to jump before we can win ; too many, we- fear, to get over without a fall. Here and there we may find a gap ; but, for the most part, they are too well trimmed and pleached, leaving us no choice but to harden our hearts and go at them. The very first we meet is- a yawncr ; and, when we say a yawner, we speak advisedly, for it is nothing less than an act of Parliament. We allude, of course, to the Australian Land Sales Act. Unless we first get over that, we can go no faither. No matter what may have been the terms of the Treaty, no matter how the Maories may have understood ir, there stands the Act, barring the entertainment of any other question, — of treaties or of translations,— until it shall first have been itself avoided. And the question is now, can this be done ? In seeking to come to a conclusion on the subject, we should use an exhaustive process, narrowing the inquiry at each successive step we take. We must begin by asking, whether the £ueen be bound by that enactment at all ; ivhether she be able, notwithstanding the statute, to waive the right of Pre-emption >ver the Waste lands of the Crown. If she lo possess that power, we inquire whether the governor, under any circumstances, can likevise possess the same. But, if she do not >ossess it, if she herself be bound by the enictment, we are driven to ask the meaning of he words that bind her. What is Preemption ? Is it the right of irst refusal, or is it exclusive right of purihase ? If the former meaning be allowed, ye may suppose that no waiver is needed with egard to land that shall have been once reused. But, if the latter be put upon it, we nust proceed to ask, what is Waste Land of he Crown ? We refer to the local Ordinance v (Ses«s. l, 2.) in hopes of making it interpret the nterpretation Clause of the Imperial Act, and here fall in with a corresponding ambiguity. Che Waste Lands of one are probably the Jnappropriated Lands of the other ; but wheher these unappropriated lands be all such ands as the Crown itself may not have wanted away, or whether they be simply lands inclaimed, or unowned by the Aborigines, we ire left to guess. If, however, the latter conitruction be put upon the term, the conclusion s important. The appropriated lands, or lands iwned by the Aborigines, are not Waste liands, and, consequently, not affected by the >rovisions of the Act. Andeven if the Crown's ight of pre-emption be claimed over them by he local Ordinance, there is still nothing, that ye can see, in the Ordinance, to prevent Her tf.ijesty from waiving that right at pleasure. Next in order, should we succeed in shaking ff this leather-legged Act, stand certain un-

connected points for consideration— the existence of pressing emergencies— -the consent of the confederated chieftains — "loose shot,'* which, as they have already been delivered by counsel, it is unnecessary to touch upon here. Unluckily, the chances are too great against the inquiry ever arriving at this stage. Upon each several question raised, it may be cut short; nay, it is more than likely that the babe will die birth-strangled, in which case it is not impossible that a finger of it may form an ingredient in a certain cauldron of broth hereafter to be brewed " For a charm of powerful trouble." We are no alarmists ; far from it ; but must yet confess, that we cannot look upon the future with that perfect confidence and security which is professed, at least, by those who have the guidance of our affairs. With respect to the correctness of the English translation of the treaty, we do not clearly see how it affects the question. In the first place, we do not see why the English version shou'd be called a translation from the Maori, any more than the Maori from the English, but would rather be inclined to esteem both versions equi-pollent. In the next place, it is one thing to impugr a translation, in general terms, but anothei thing to shew distinctly where* the material inaccuracy lies. Now we have ourselves seen a new translation, upon which great stress is laid by some of those who impugn the old ; in which the difference appears to lie more in words than in substance. But what if not only the translation, but the very treaty itself, should have no bearing on the case ? What if the treaty should be no treaty at all ? What if the Queen, in the belief that she was treating with an independent nation, should all the while have been unwittingly negotiating with her own subjects 1 The supposition is startling, and the position of the Crown in the transaction somewhat laughable as well as anomalous ; but that a misunderstanding on the subject commonly prevails, is certain. In this nook-shotten isle, where references are hard to make, and where a man must trust for most of Ids knowledge to his memory, it is not easy to give with accuracy the details ol any transaction not recorded in the local Gazette. But we believe that we are substantially correct, when we say that long ago New Zealand was a Dependency of New South Wales, having been included in the commission of Gover nor Phi lip, and of every other governoi of New South Wales dowu to the time of Sir Thomas Brisbane, when it was omitted ; for what reason, or how the omission came about, we are at present unable to say. That some of the New Zealand Chiefs once declared their independence, is true enougli, but that there has been any formal and sufficient acknowledgment of their independence, we have yet to learn. As to the distiugu'shing flag which Her Majesty was graciously pleased to send them, for any thing their independence was concerned iv it, she might as well have sent them a colored pocket haudkerchief There has been but u tacit acknowledgment, at best; we likewise humbly conceive that it would require something more than a stroke of the pen by one of Her Majesty's Secretaries to sever a limb from the State : that it could no more give independence to New Zealand than to New South Wales itself, or any other territory that had been once annexed to the Crown. But we deem all this more a matter or curiosity than of consequence ; let us at once sup pose the decisiou of the Supreme Court counter to the wishes (we will hardly say to the hopes) of the colonists, and ask, what is to come of this sudden and enormous confiscation of property. For there is reason to expect that the judgment will be of more sweeping effect, o( more extensive application than was at first supposed ; much more, we feel convinced, than Captain Grey was aware of when he first set this stone a rolling. It is possible that it may affect all the Exchange Grants, in which Scrip was the consideration given, iv number, we believe, no fewer than 875 ; those wheie 10s, an acre was paid for waiver of the Crown's rights ; the leases granted by himself, and a portion of the purchases allowed to be made by the New Zealand Company, under his proclamation of the 2 1st of 1?. bruary, 1846, as well as that class of purchases concerning which the point has been more immediately raised, The evil is to be remedied only by an Act of Parliament, to legalise the Grants j a boon more easily asked for than obtained. From the confidence evidently placed in the Governor by the Authorities at home, we may conclude that much will depend upon his own inclination to recommend such an Act. But we have little reason to suppose it favorable ; the straws thrown up have been all wafted in an opposite direction. He seems to have taken no warning by the brilliaut fallacy of Captain Hobson's first laud sales, but still clings 10 his darling pound an acre with the unyielding claw of a cold blooded animal. We cannot but suppose him anxious for the prosperity of the colony committed to his care : but we believe him to be still more anxious about appear ances — about the present shew that his measures are to make at home. He knows well that revenue, (and not unfairly, if taken for a term of yean,) is assumed as the measure of

prosperity, and his object is, to produce an effect, by shewing a sudden increase, by contrasting the full collection of his own administration with the meagre returns of lhat which went before. And for that, he will leave a hard card to play for his successor. He is net here" for liie, and knows, that whether squeezed or raised, revenue shews alike upon paper. Me rips up without scruple the poor goose that lays the golden eggs, for ifr matters little to him how many are laid for those who shall succeed to his place. \Ye grant, that he performs this Cesarean operation in masterly style; with the keenest of knives, and the most delicate of hands j but id is not much less unpleasant to the patient on that account. Whatever may be his object in so disturbing the titles to two-thirds of the: land in the settlement, he has created a commotion to attain it, which will probably be remembered in the history of the colony by the name of the ° Governor's Earthquake."