E.—No. 3. SECTION I.

should so think fit, not to take steps in the matter until the Attorney-General shall return to Auckland, ■when the question can be reconsidered by him and the Government. I have, &c, Fkancis D. Fenton, Assistant Law Officer. The Under-Secretary.

EIGHT OF GOVEBNMENT TO TAKE LANDS IN NEW ZEALAND COMPULSOEILT FBOM ABOEIGINAL NATIVES. I am at a loss to conceive any reason why this should be deemed a question for the investigation and determination of which the ordinary laws or powers of making laws are not sufficient. It would, in my judgment, be contrary to all the principles on which the constitution and jurisprudence of the empire are founded, if it were necessary now to say that there is no authority or provision by which the relations of the Government to a British subject in respect to his rights of property can be ascertained and determined. In fact, it would seem to be an axiom, that in any organised state, power must reside somewhere to remedy every private wrong and remove every public inconvenience under the ordinary operation of law; or if a particular case arises, for which no previous provision has been made, power to provide the desideratum by making a new law. The question, as I take it, to be now considered in the case submitted is, Where is this power now existing, and how and by whom must it be exercised? I presume that by the word " Government" used in this case, Mr. Domett means the Governor or Executive Government of the colony. It will be well, however, to regard the question as applying to the Legislative as well as to the Administrative authorities. The views of the Imperial Parliament and of the Crown appear to have constantly varied with respect to the nature and extent of the rights or interests possessed by the Aborigines in the wild land of New Zealand. At first the Maoris were regarded by the Crown as an independent and organised state, capable of forming a treaty ; and a treaty was formed with them on the 16th February, 1840, by which they obtained " all the rights and privileges of British subjects," and a confirmation and guarantee of " the full, exclusive and undisturbed possession of the lands and estates, forests, fisheries, and other properties which they collectively or individually possessed, so long as they wished and desired to retain the same in their possession ;" and they yielded to the Crown right of pre-emption " over such lands as they might he disposed to alienate," and ceded as well " all the rights and powers of sovereignty possessed by themselves over their respective territories as sole sovereigns thereof." The question as to the nature of the rights of the Chiefs or the amount of territory over which they extended was not dealt with in this compact. Although there is no doubt that the conditions laid down, by Vattel and other writers on International Law were not fulfilled in the Treaty of Waitangi, yet as it has been acted upon for many years as of sufficient validity, and constitutes in fact the only foundation on which the English sovereignty in the Northern Island has been built up and is now sustained, it must be accepted as a valid treaty, forming part of the law. Although I think that attempts (such as occupied the commencement of a recent pamphlet) to assign to the Maori tenure of land fixed attributes known to the English law, as now existing, are useless for all practical purposes, and indeed are mischievous as being apt to mislead persons not intimately acquainted with the subject; yet it certainly is necessary to enquire what is the interpretation that has been, and is put, by the Crown on this treaty, as affecting its own territorial rights and those of the Natives. The Charter of 1840, erecting the colony of New Zealand, empowers the Governor to make and execute in Her Majesty's name and on her behalf, under the Public Seal of the Colony, grants of waste lands to her belonging within the same, " and provides that those ' Letters Patent' should not affect the " rights of any Aboriginal Natives of the colony to the actual occupation or enjoyment in their own " persons of any lands now actually occupied or enjoyed by such Natives." The idea hero seems to have been that the Governor might grant all lands except those actually occupied by Natives, and in accordance with this view he was instructed by the Crown in the same year " to cause a survey to be made of all the land within the colony, and to divide and apportion the whole of the said colony into counties." And Her Majesty declared " it to be her will and pleasure that all the waste and uncleared lands within the Colony belonging to and vested in Her Majesty, which should remain (after making certain reserves), should be sold and disposed of." At this time, then, all the waste lands were held to be in the Crown, with the exception of such land as might bo reserved for the uses and in manner specified, and such lands as were actually used by Natives. The Eoyal instructions of 1846, direct that such parts of the island of New Zealand as were or should be owned or lawfully occupied by persons of European birth or origin, should be divided into Municipal Districts, and with reference to " waste lands of the Crown," provide, that charts of the New Zealand islands should be prepared, and especially charts of all those parts " of the said islands over which either the Aboriginal Natives or the settlers of European birth and origin had established any valid titles whether of property or of occupancy," and natives, either as tribes or as individuals, claiming a proprietary or possessory title, were to send in claims and have them registered, and all lands not so claimed or registered should be considered as vested in Her Majesty, and as constituting her Demesne Lands in right of her Crown within the New Zealand islands, and finally, all doubt is removed by the provision that no Native claim should be recognised except for land occupied or used " by means of labour expended thereon." The character attached by the English authorities to the Wild Lands of the Colony up to this period seems to resemble very much that of the folcland or public land of the Saxons; and the above instructions appear to have provided for the conversion of this folcland into bocland or land of inheritance, the resemblance being continued in the process. All lands not appropriated were to be considered as Demesne Lands of the Crown, or Crown Lands (for the two phrases appear to mean the same thing.) Allen in his Inquiry into the Eoyal Prerogative on this subject says, " From these appropriations of the '■ public lands to the King as representative of the State, the word folcland fell into disuse, and gave place

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TO THE SECRETARY OF STATE.