New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Saturday, August 7, 1847.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 211, 7 August 1847, Page 2

New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Saturday, August 7, 1847.

The remarks which we made incidentally last Saturday on the former letter of our correspondent H., while , adverting to the discussions raised by our Auckland contemporaries on Lord Grey's recent instructions to the Governor of New Zealand respecting the waste lands, has called forth an elaborate reply in which our correspondent accuses us of having put an erroneous construction on his previous communication, and endestvours to show that he " has not used the word property in a different and more absolute sense than that in which the word p.h&-_ session is used in the Treaty of Waitangi, and the words possession or occupancy, da the law books — that he has contended iotno title to land on behalf of the aborigines but what the law, as interpreted by the jSu : , prerae Court gives them." From .the length of our correspondent's letter we shall endeavour to be as brief in our reply as* possible. u ~ When our correspondent H. in his fifst letter compares the right of property of "the, aborigines to the rights of property in Engr,; land and Ireland, we must infer fromithis and other passages, that an absolute rights of property on the part of the aborigme^jy^ the waste lands is contended for, and this was the impression generally produced, byj his letter. But the authorities adduced; fcy^ us on a-former occasion only go to establish * a qualified right of occupancy, " subordinate ) to the absolute ultimate title of the government of the European colonists." In the judgment of Mr. Justice Chapman,- in the 1 case of the Queen v. Symonds, to which otfr correspondent H. refers, it is stated that' " the existing rule contemplates the native t race as under a species of guardianship. Technically, it contemplates the native dominion over the soil as inferior to what-we call an estate in fee ; practically, it secures' to them all the enjoyment from the land which they had before our intercourse, and as much more as the opportunity of selling portions useless to themselves, affords," and throughout this judgment he carefully de--scribes the native title as " a modified dominion," a " qualified dominion," &c. ; and a similar view is taken by the Chief Jus tice who quotes the same passage of Kent's Commentaries which we had made use 1 of in support of our argument. When H. asserts that New Zealand has . been cultivated for ages by its inhabitants/^ and that not in a rude way, but- with great' care and attention, he commits the fallacy 1 of putting the whole for a part, and thereby* conveys a very erroneous impression of th£ nature and extent of the- native cultivations,; and the perfectly insignificant proportion-* they bear to the unoccupied and wastelands;' of the colony. Besides, the question is not as to right of the natives to their cultivated lands, of which Lord Grey admits it would be in the highest degree unjust to deprive them of, but their right to the unoccupied landS on which they had bestowed no labour. <;i In his present* communication our correP''; spondent H. asserts that Lord Grey"" hai£ drawn a distinction which does not exist,^ " between the titles of the aborigines to the^ lands which they cultivate, which he calls' ' proprietary,' and their title to wild land%{ which he calls ' possessory;'" but it wjUj scarcely be disputed that both in law and' equity the right of the natives to land which* they have reduced to individual possession" by cultivation is stronger than, their qualifi^ ed right of occupancy to the- district, they, inhabit. This distinction at all events has hot been introduced by Lord Grey, s but has^ been practically acted upon since the founV; dation< of the colony by the British GoverjeK' ment, who have iihiformly reffised to permifci the natives to be disturbed in the possession of their cultivated lands. , Our correspondent then contends ,on behalf of the aborigines, for "an actual and legal title to all lands," a position which neither the authorities adduced, nor- the judgments in the Supreme Court justify,

and after expending some criticism on our observations with regard to property in waste lands, appears to consider our assertion referring to the system acted upon by Great Britain in her colonies, as strange and " in direct opposition to the statementof the Judge," but if he had more carefully perused what we had written he would not have so thoroughly misunderstood our meaning, since in the very next sentence we explain this system to be the assertion of the right of the Crown in opposition to the qualified right of the natives, and the direction that the Crown's , right of pre-emption should at almost all hazards be strictly enforced. While' on this subject we may allude to a late article in the Nelson Lxaminer in which it is stated that we " misunderstood the nature of the rights of the natives in supposing they are entitled to waste lands subject only to the right of pre-emption of the Crown," and that 'f the Crown is the absolute owner of the waste lands without any purchase at all, and possesses the right of pre-emption with reference to such lands as the natives have reclaimed should they wish to sell them." The misapprehension exists on the part of our contemporary : what we asserted was " the qualified right, the right of occupancy which the aborigines possess to the country they inhabit," a position established by the legal authorities previously referred to, * and which is contemplated by Lord Grey in his instructions, for since the lands reclaimed by ■the natives are reserved for their subsistence, with room for shifting, if they had no other 'right, there would be no necessity for directing the pre-emptive" right of the Crown ; at' almost all hazards to be enforced.

The Ocean arrived on Wednesday from Massacre Bay with a cargo of coals. The following account of a severe storm which she experienced on the passage has been obligingly furnished us by Mr. Varnham :—: — "The Ocean left Massacre Bay July 23, with fine weather; towards evening the 'wind veered to S.E., and blew hard for seven days, with a heavy sea running on. On the afternoon, of tlie eighth day it became a perfect hurricane from E.S.E., with "a very heavy breaking sea running, from •which the vessel sustained a good deal of damage in her sails, rigging, and hull, and which obliged the master to throw overboard six tons of coals, The wind throughout kept much to the eastward, towards the latter part with a good deal of rain. The vessel was driven by the storm two hundred miles out of her course."

-The Katherine Johnstone arrived on Thursday from Taranaki. While lying off there Saturday last it came on to blow heavily sfrom the north-west, which obliged her to .put to sea, and ultimately to make for this port.

The Royal William arrived yesterday with "eleven head of cattle in splendid condition from Messrs. Deans' and Mr. G. Rhodes' stations' at Port Cooper. The whaling stations to the southward are reported to be going on favourably. 28 tuns were caught at Price's, 32 tuns at Wood's, and 28 tuns at Rhodes' station. The Wallaby, whaler, of Hobart Town, was in Port Levy, six months out with 50 barrels of oil. Two whales have been lately caught at Gillett's station at Kapiti.

The Thomas Lord arrived yesterday from Hobart Town, after 'a passage of fourteen days, with flour, and a general cargo. The -.Legislative Council assembled July 21, when Mr. Gregson and the other members were re-instated, subject to the Queen's ultimate approval and sanction. The latest papers received from England, spoke of the probability of a war with France.

Markets. — Hobakt Town, July 20. Wheat may be quoted at 4s. Bd. per bushel, ! although 500. bushels had been purchased for the Sydney markets at 55., and one of our principal holders had purchased a cargo at 4s. 9d. Launcbston, July 17. Wheat 4s. 3d. to- 4s. 6d,' Nothing doing. -

H. M. S. Calliope returned yesterday evenjng from Wanganui which, she left on Wedpesday nights The taua had dispersed and jgone up the river to their cultivations, but | were expected back again in the spring. fMajor Wyatt had taken the command of the I troops, Capt. Laye had resumed his duties as Resident Magistrate. Lieut. -Col. M'Cleverty, Mr. Courtenay, Staff- Surgeon, Ensign Master, Acting Brigade Major, Captain Hardy, and Lieut. Pedder have returned'to Wellington in the Calliope. Lieut. Holmes had also joined the Calliope,