New Zealand Colonist. FRIDAY, MARCH 17, 1843.

New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 66, 17 March 1843, Page 2

New Zealand Colonist. FRIDAY, MARCH 17, 1843.

By the Sir John Franklin, from Auckland, we learn 1 ' that the disputes at Tauranga, which called for the interf)6siflsn' of the Government, have been settled. It appears that the Natives have agreed to give up the boat which they had seized, with all (goods, and had, moreover, promised to make a payment not merely m compensation for the injury inflicted, but also as an acknowledgment of the breach of the law. In this matter, consequently, a timely interference on the part of the Government, made in the spirit of conciliation, but "accompanied by a display of .'forces' ,! ahd 'persevered in with firmness, has accomplished^all -that was Requisite. There are, however, not a few in the Colony, and we. regret to see the Editor of the Auckland Times among the number, who are always fcir the immediate application of the English law, with all its incidents, to the Native's; Jii W6' db ! h6t now refer to the extreme

impolicy v,pf ';such a procedure, though this it would be easy to demonstrate beyond the pos-

sibility of doubt or cavil. But it would be flagrantly Unjust. In England, every person has been brought np not. merely to a certain extent in the knowledge of the general principles and rules of law, but what is of far more importance, in those habits which the constant and universal operation of the law impresses upon the whole community ; yet even there it is felt that the effect of many legal maxims strictly interpreted does, work injustice. And although there the importance, above all things, of maintaining inviolate the law, generally prevails, yet these cases are felt to be oppressive, and the suffering party is sure to receive the benefit of any doubt in his favor. But in New Zealand, where the law itself has existed only for three years, and where with scarcely an exception, the whole native race is entirely ignorant of its nature; to bring them at once under its rule in the same manner as the English population would have all the hardships of an cx post facto law. There are certain offences which the feelings of all men agree in condemning —with regard to these no difficulty can exist. But with regard to those cases in which our mode of procedure has been recognized among the New Zealanders —very similar in many instances to practices sanctioned by the early English law, the injustice of which we speak would be committed, if the rules applicable to a community where centuries of progressive civilization have built up a highly artificial system, were to he applied without reserve or qualification.

This is a subject which we can now only hint at. We shall at intervals return to it, and develope more fully the principles which we imagine ought to prevail.

W.e can hardly say, whether in our contemporary’s recent exhibitions upon the Jury Law, we have been most struck by his singular notions of law and logic; or by the marvellous agility he has displayed in shifting his ground as each successive position has been discovered to be untenable ; or by the singular infelicity with which he has in each successive change contrived to occupy a position, if possible, even more indefensible than that which he has abandoned. At the risk of wearying our readers, we shall once, more, and we hope for the last time, revert to the subject; and in spite of the unpromising figure under which our contemporary has chosen to represent himself, that of a dull ass who will not mend his pace for beating, we trust to make the matter intelligible to him. In the last article of the Gazette it is not easy to understand whether the writer intends to represent the legal estate to the lands held under the Company as being in the Company or in the Settlers. We imagine that he means the former. But in either case, what has become of his last argument, that the legal estate was in the crown, who was a trustee for the benefit of the settlers ? This, at least, he has abandoned, and abandoned moreover because we called bis attention to facts which he had forgotten. But he is quite as much in error, whichever may be his meaning, in his present as in his former argument, as we shall proceed to shew.

The New Zealand Company purchased, or professed to purchase, certain tracts of land from the Natives of New Zealand. . This purchase, according to the law of England, founded upon the law of nations, is absolutely void as against the Government of any civilized nation subsequently taking possession of the country. If valid as against the Natives it enures to the benefit of the Crown, in whom the legal estate immediately vests. The title of the Company therefore is extinct. They have no claim to the land, legal or equitable, and whatever portion may be granted to them would have no possible relation to their original purchase, hut would he a pure act of grace on the part of the Crown. It is a necessary inference from this that the purchasers under the Company can have no title ; since those through whom they would be compelled to derive their title have none in themselves. As regards therefore, the purchase by the Company, and the purchase from the Company, no title or estate whatever, either of qnality or duration can arise out of them. •. ■ ■ • :

We trust, that our contemporary will not suppose that on this occasion we are arrogating to ourselves any legal knowledge. We have - taken the view of. the subject given above from the opinion of three gentlemen who may he supposed to know something on the subject, Mr. Sergeant Wilde, Mr. Charles Buller, and Mr. Buckle. If we are in error, it is by no blunder of our own that we have fallen into the mistake ; and when our contemporary convinces us that he knows the law better than these gentlemen, we shall feel no shame in acknowledging liis triumph.

Having thus, we trust, dispelled the delusion of our contemporary, that there was some estate (though whether it were an 'estate of quality or an estate of duration does not clearly appear) in the Company or in the settlers by virtue of the original purchase ; it only remains to consider whether the crown is a trustee for the purchasers of land under the Company. This we might suppose to be settled by the notable suggestion of our contemporary, that the crown might file a bill of interpleader until the adjustment of the claims between the natives and other claimants, and the landowners. If the legal estate were in the crown, this would imply that it was a question whether the Crown were a trustee for the Settlers, or for the natives and other claimants. But the truth is, that even here our contemporary has missed the point. In the first place, the question tried by the Court of Land Claims is whether the legal estate be in the Crown

under the purchase of the Company from the natives, or in the natives themselves. If the former, then the Crown under its arrangement with the New Zealand Company will, upon an adjudication in favor of its title, grant to the Company or to the settlers such portions of this land as the Company has agreed to sell. If the latter, the Company will proceed to acquire a title from the natives which will vest in the Crown, and under which these grants will be made.

But as the promise of the Crown to grant land is conditional upon proof of the extinction of the native title before a Commissioner appointed by itself for that purpose; until there is an adjudication of that Commissioner in favour of the Company’s purchase, neither the Company nor the Settlers have any claim against the Crown, nor any estate either of quality or duration in the land. They are simply tenants by sufferance; though they are in effect as secure of a grant of their land as though they had a legal claim against the Crown. In conclusion, we would suggest to the consideration of our contemporary whether it is always expedient to kick. With regard to mending his pace we say nothing, because that may not always be in his power. But kicks may often produce no other effect than to bring down a heavier shower of blows upon the loins and crupper of the unfortunate animal which he has selected as his emblem. Would it no} be more prudent to grin and bear it.

We understand that tli ePosthumous shipped 900 sheep only, (instead of 1,100, as stated by our contemporary), of which number 600 have died during the passage of 16 days. We are glad to perceive that the Maories of Petoni have brought over several tons of flax to Messrs. Waitt & Tyser’s store this week.