For an inferior Court to criticise the judgment of a superior Court which reversed its decision would be in general able unprofitable, and unseemly. But where the [unclear: decisi] of the in feriorCourt has been not only [unclear: reversed] has been reversed with contumely—where the [unclear: infer] Court has been taunted with want of independence and subservience to the Executive Government—it is right that the members of the Court who pronounced the decision in question should come forward and defend the honour of the Court they represent. In order that they may do so, it would become necessary [unclear: f] them to refer to their own decision, and also to criticise to [unclear: so] extent the decision of the superior Court. They would do [unclear: this] so much with a view of justifying their decision as to show that the aspersions cast upon them by the superior Court were [unclear: unjustifiab]. Arguments which might fall far short of showing that the [unclear: decis] of the superior Court was wrong might well be sufficient to show that the comments it made on the inferior tribunal were [unclear: unjust] unreasonable. The decision of the Court of Appeal of New Zealand in the case of the Solicitor-General v. Wallis (19, N.Z., 665) be recently been reversed by the Judicial Committee of the [unclear: Pri] Council. Their Lordships have thought proper, in the course if their judgment, to use language with reference to the Court of Appeal of a kind which has never been used by a superior Court with reference to an inferior Court in modern times. The [unclear: judgm] of their Lordships has been published and circulated throughout [unclear: ti] colony. The natural tendency of that judgment, emanating [unclear: as] does from so high a tribunal, is to create a distrust of this court and to weaken its authority among those who are subject to in jurisdiction. The Judges of the Court of Appeal of New Zealand who decided the case in question, have therefore thought it right that I, who was the Judge who presided on that occasion, should or their behalf protest publicly against the attack made on the [unclear: hon] of the Court they represent, and should endeavour to show the whether their judgment was right or wrong there is no ground whatever for the attack their Lordships have thought fit to [unclear: make]. that end I propose to refer to and comment on both the judgment at the Court of Appeal and the judgment of their Lordships. To [unclear: pro]perly appreciate these remarks, it would, however, be desirable from those who hear or read them to read carefully both of these judgments. The judgments start with a fundamental disagreement Their Lordships' judgment asserts that the Maoris were the [unclear: doo] of the land and the founders of the charity. Our judgment [unclear: aser] that the Crown was the donor and founder. Their Lordships say (speaking of the year 1848): "As the law then stood, under [unclear: image not readable] Treaty of Waitangi the chiefs and tribes of New Zealand, [unclear: and] page 21 respective families and individuals thereof, were guaranteed in the exclusive and undisturbed possession of their lands so long as they desired to possess them, And They were also Entitled to Dispose of Their Lands as They Pleased, Subject only to a Right of Preemption in the Crown. It was not until 1852 that it was made unlawful for any person ether than Her Majesty to acquire or accept land from the natives (15 and 16, Vict., c. 72, s. 72). The founders of the charity, therefore, were the native donors. All that was of value came from them." This statement of the law is a surprise, I and is, moreover, incorrect. It was certainly not the case that if the Crown did not wish to buy, the Maoris could sell their land to whom they pleased. Section 1 of the Native Land Purchase Ordinance, 1846, which was in force until 1865, is as follows: "If any person shall, after the passing of this Ordinance, purchase, or by writing or otherwise agree to purchase, any estate or interest in land from any person of the native race, or shall by writing or otherwise agree with any such person for the purchase of the right of cutting timber or other trees, or of the right of mining, or of the right of pasturage, or for the use and occupation of land; and also if any person who shall not hold a license from the Government for that purpose shall, after the passing of this Ordinance, be found using or occupying any land not comprised within a giant from the Crown either by depasturing any cattle thereon or by residing thereon, or by erecting any; house or "building thereon, or by clearing, enclosing, or cultivating any part thereof, or who shall be found, without such license as aforesaid, to have cut timber or other trees thereon, or to have gotten any mineral therefrom—every such person shall, upon conviction of any of the offences hereinbefore mentioned, forfeit and pay any sum not less than £5 nor more than £100, to be recovered in a summary way; provided that no person shall be convicted of any of the offences aforesaid, except on the information or complaint of the Surveyor-General or of some other officer duly authorised in that behalf by His Excellency the Governor." This Ordinance has evidently been overlooked by their Lordships. So also have they overlooked the Royal Instructions of 1846. Paragraph 11 of chapter 13 (Domett's Ordinances, page 62) is as follows:—"No conveyance, or agreement for the conveyance, of any of the lands of or belonging to any of the aboriginal natives, in common as tribes or as communities, whether in perpetuity or for any definite period, whether absolutely or conditionally, whether in property or by way of lease or occupancy which may be henceforth made, shall be of any validity or effect, unless the same be so made to or entered into with Us, our heirs, and; successors." In the case (Nireaha Tamaki v. Baker, 1891, A.C., p. 567) their Lordships say: "In the year 1852 New Zealand, which up to that time had been a part of New South Wales, received a Constitution as a self-governing colony." The statute 15 and 16, Vict. c. 72, was the Constitution Act. It was probably the erroneous page 22 impression that New Zealand remained a part of New South Wales till 1852, when a Constitution was granted that led to the omission to consider New Zealand legislation prior to that date In fact New Zealand became a separate colony in 1840. Their Lordships in the present case go on to say: "When the Government had [unclear: con] sanctioned their gift nothing remained to be done but to demarcate the land, and place on record the fact that the Crown had waived its right of pre-emption. That might have been effected in [unclear: vario] ways. The course adopted was to issue a Crown grant. That perhaps, was the simplest way, although the Crown had no [unclear: benefic] interest to pass. After all it was only a question of conveyancing as to which the native owners were possibly not consulted.' A part altogether from the above quoted Ordinance and Instructions of 1846, all these statements are at variance with the law as hither understood in New Zealand. Furthermore, they seem at [unclear: varian] with the law as laid down by their Lordships in the case of [unclear: Nireab] Tamaki v. Baker. Their Lordships there say (1901, A.C., p. 567) that the Lands Claims Ordinance of 1841 was a legislative recognition of the "rightful and necessary occupation of land by the [unclear: aborigi] inhabitants, confirmed and guaranteed by the Crown by the Treaty of Waitangi." They go on to say: "It would not of itself, however be sufficient to create a right in the native occupiers cognisable in a court of law." At the time of the transactions in question there was nothing else to create such a right. There were no statutes regulating the extinction of native title. The Native Rights An referred to in the case of Nireaha Tamaki v. Baker was not passed till 1865. If the native occupiers had no right cognisable in a Court of law, it is difficult to see how they could transfer such a right to the bishop. A man cannot give what he has not got. The case of Nireaha Tamaki v. Baker was decided by their Lordships shorty before our decision in the present case, but the judgment had not then reached the colony. In their judgment in that case their Lordships comment on the case of Wi Parata v. the Bishop of Wellington (3 N.Z. Jur., N.S.S.C., 72), and disagree with certain of the dicta contained in it. Their Lordships, however, go on to refer to it a follows:—"As applied to the case then before the Court, however their Lordships see no reason to doubt the correctness of the conclusion arrived at by the learned Judges." Now, the case of Wi Parata v. the Bishop of Wellington was decided in 1877 by Sir James Prendergast and the late Mr. Justice Richmond. It was an action brought by the chief of the Ngatitoa tribe to impeach the Crown grant to the bishop of this same land as being a fraud upon the native [unclear: don] and in contravention of the arrangement between the bishop and the natives. The case was decided against the plaintiff on [unclear: demurr] The learned Judges, in concluding their judgment, say: "Lastly we are of opinion that in law the Crown is to be regarded as the donor, and not the Ngatitoa tribe." The same view was taken by page 23 this Court in a case decided last year, after our decision in the present case. In Hopepa Wi Neera v. the Bishop of Wellington (21. N.Z., 655), a native again attempted to impeach the bishop's title. The present Chief Justice, in a judgment concurred in by Mr. Justice Edwards, gave a lucid historical exposition of the law as to the relations of the Crown and the natives, in respect to native lands, and the Court followed the decision in Wi Parata v. the Bishop of Wellington. Further, the trustees in their statement of claim in the present action rest their title as trustees not on any gift from the natives but on the Crown grant only. Whether, however, we were right or wrong, there was certainly an unbroken current of authority. First, that the native occupiers had no right to their land cognisable in a court of law, and that having no such right themselves they could not transfer any right to others. Secondly, that the Crown grant was not a mere piece of conveyancing, but was essential to create any right at all of which this Court could take notice, and that any such right was derived from the Crown grant, and by virtue of the grant, and from the grant alone. Thirdly, that as the natives never had any rights cognisable in a court of law they had no locus standi to impeach the grant, and were neither necessary nor proper parties in any proceedings between the Crown and its grantee in relation to the subject matter of the grant. We therefore held that the charity owed its existence to, and that the bishop derived his title to the land from the Crown grant alone, and that the intention of the Crown in making the grant, and the conditions on which the land was held by the grantee, were to be determined by the language of the grant without any reference to anything that had taken place between the grantee and the former native occupiers. Had we not so held we should not only have had to over-rule all previous decisions, but should have differed in opinion from every Judge who has ever sat in this court. Their Lordships, however, have taken the view that the natives were the donors of the land, and the founders of the charity, and that the Crown grant was merely used for conveyancing purposes, and might have been altogether dispensed with. Their Lordships' judgment seems to have been based in the main on this opinion. This Court, having come to the conclusion that the Crown grant was the foundation of the title, proceeded to endeavour to ascertain its meaning from the words used in it. The grant was dated the 28th of December, 1850, more than two years after the original transactions between the natives and Bishop Selwyn. It is important to observe that the terms of the grant show that the land was not given as a site for a school or to establish a school. The grant states that a school was about to be established at Porirua. This land, which is described as being in the neighborhood of the proposed school, was given for its maintenance and support. This Court came to the conclusion for the reasons given at length in our judgment (19, N.Z., page 24 p. 675). First, that the grant was made upon the representation and in anticipation that an institution was to be founded and for the sole purpose of assisting such institution, and that as no such institution had been founded the Crown had been misled, [unclear: or] legal language, deceived in its grant, although there was, of [unclear: cour] no suggestion of any intention to deceive or mislead. Secondly that as the grant was upon trust for the use and maintenance of the school so Long as religious education, industrial training, and forth should be given thereat, and as no education at all had been given, because no school had ever been established, the trust by its very terms had ceased to exist. Their Lordships suggest that the recital in the grant that a school is about to be established a Porirua under the superintendence of the Bishop of New Zealand is consistent with an intention on the part of the [unclear: Governor] establish the school by the aid of public money, or with an expectation on his part that the announcement in England of the generosity of the native donors would bring in ample funds for that object. The suggestion that there might have been an intestion on the part of the Governor to establish the school by [unclear: the] of public money is strange and novel. The evidence shows the it was intended to be established by the bishop. In interpreting the grant we did not consider it material to inquire into what was passing in the mind of the person who happened to be the Government of the colony at the time it was issued. We looked at the grant and found a statement in it that a school was about to be established under the [unclear: sup]intendence of the grantee. The statement, no doubt, was the statement of the Crown, but the Crown must have made the statement on the information of somebody, and it certainly did not seen open to the grantee to question the truth of the statement in the recitals to the grant. We thought that the words that the school was "about to be established "had their ordinary meaning viz., that it was going to be established in the near future-and we considered that the establishment of the school was in [unclear: eff] the consideration for the grant, and that the consideration had [unclear: had] been duly performed. Their Lordships suggest that the school might have been established if it had not been for the Maori [unclear: W] and the removal of Bishop Selwyn to an English See. This district was not affected by the Maori War, and Bishop Selwyn, an appears by the record, ceased to have anything to do with the trust in 1859. If we are to take judicial notice of movement of Bishop Selwyn of which there is no evidence on the record it will be found that the land ceased to be in his diocese in about 1851 and that he did not proceed to England till some ten years later If intentions are to be discovered from acts, the intention of establishing the school was completely abandoned. In our vise page 25 however, it was immaterial to consider why the school was not established. The material fact was that it had not been established. Further, if we could go behind the grant and take account of what took place between the bishop and the natives, and could treat the natives as donors, it is abundantly clear that the land was given by them on the faith that a college would be established on or near it. That is shown by Bishop Hadfield's affidavit. As their Lordships say, "no fixed or definite period of time" was mentioned either in the grant or in the transactions with the natives within which the college was to be established. But surely it would be implied that it was to be established within a reasonable time, and that the establishment was not to be deferred until after all the native donors had died and their children's children had come to maturity. A church obtains a gift of land from a semi-savage tribe on the understanding that the church will within some reasonable time, out of other funds, establish a college on or near the land for the education of the youth of the tribe. Fifty years pass, and the church has not established the college. A plain man would say that in such circumstances the church should hand back the land to the tribe. And the Crown represents the tribe for all legal purposes, and stands in its place. Their Lordships seem to make light of this lapse of time. But fifty years in New Zealand mean much more than fifty years in England. The changes political, social, and material that have taken place in New Zealand during the latter half of the nineteenth century are greater than those that have taken place in England from the time of the Tudors to the present day. All the cases cited where a fund was administered cy-pres seemed inapplicable. The gift was a gift "inter vivos." Whether the natives or the Crown were the donors, the gift was not to establish a charity, or simply to a charity. It was a gift in aid of a charity which was to be established from other sources by the donee. The intended establishment of that charity was the sole reason and consideration for the gift. If no such intention had ton stated, the gift would never have been made. The mode of the gift was of the substance of the gift. If a man gives a subscription towards the support of a school which the person to whom he gives it is going to establish, and that person never established the school, surely the giver can recover back his money from the person to whom he paid it. Is there any difference in substance between that case and the present? The second ground of our decision does not seem to have been pressed upon their Lordships in argument. Their Lordships observe that, as no school was ever established, the occasion on which we held the trust was to determine (viz., on education of the kinds mentioned in the grant ceasing to be given there) never arose. But it might be suggested that if the trust would have been determined if a school had been established, and the education specified had ceased to be given there, a fortiori it would determine page 26 if no school were established at all. Further, if the grant was in trust for the support of a particular school, not generally, but only so long as education of a specified kind was given there, the original contention of the Solicitor-General that the language of the grant negatives any intention on the part of the Crown to give the land in perpetuity for charitable purposes receives considerable support We therefore declined to sanction any scheme for the administratis of the trust, as we considered the trust had come to an end, and the trust property had reverted to the Crown, the donor. That was the extent of our decision. Their Lordships say that that decision would have been wrong even if the suit had been properly constituted, but that the suit was not properly constituted. The suit was by the trustees for the administration of the trust property cy-pres, and they suggested a scheme. The statement of [unclear: defen] alleged reasons why the property should not be administered cy-pres According to our procedure, that could be done without it being necessary for the defendant to counter-claim. No objection was taken before us that the question as to whether the trust property ought to be administered cy-pres was not properly raised on the pleadings. We decided, on the admitted facts, that it ought not and therefore declined to sanction any scheme. The legal result of our judgment was to dismiss the suit of the trustees asking for administration cy-pres. Their Lordships say: "It is contrary to the established practice of the Court to admit a defendant to as action for the administration of the trusts of a settlement not void on the face of it to impeach the settlement in his defence to that action." Here the grant is the settlement. But if it is shown upon any ground or for any reason that the trusts declared by the settlement have lapsed or been abandoned, and there is no general intention of charity, there is no need to impeach the settlement The trust then to be administered under the settlement is the resulting trust in favor of the settlor. We attemped to solve what appeared to us to be a somewhat complex legal problem. We are told not only that we solved it wrongly, but to our amazement it is broadly hinted that we determined it at the instance of the Executive to confiscate the property of a charity. The question seemed to us to be a purely legal one. Has the trust determined or has it not? We thought, for the reasons we have given, that it had. If it has, the trustees would have, of course, a claim on the fund for money expended in connection with the land. No private right would be disturbed. Their Lordships have thought fit to censure the Solicitor-General in no measured terms. It is not for us to defend the Solicitor-General except so far as the censure of him implies a censure on ourselves for not having kept him to his duty. No doubt it is the duty of the Solicitor-General to protect a charity. But if there is a charitable trust creatcd by the [unclear: cm] which the Solicitor-General honestly believes has determined, is it a page 27 departure from the "traditions of his high office" for him as an officer of the Crown to assert the rights of the Crown as against the trust i Has any case ever been known to have arisen where there was such a conflict of duties? If not, how can any "traditions" apply to it. After we had given our decision on the grounds above-mentioned, we made some remarks which were altogether independent of what we had decided. We indicated that there appeared to us in any case, and apart from our decision, to be some difficulty in administering the trust cy-pres, as the Crown by its counsel had asserted that it had duties towards the natives who ceded the land which could not be performed if the Court so administered it. We gave at length our reasons for the apparent difficulty, but expressly refrained from giving any decision on the question. It has always been held that any transactions between the Crown and the natives relating to their title by occupancy were a matter for the Executive Government, and one into which the Court had no jurisdiction to inquire. As was laid down in Wi Parata v. the Bishop of Wellington: "Transactions with the natives for the cession of their title to the Crown are to be regarded as acts of State, and therefore are not examinable in any Court." Our remarks did not in the least affect our judgment or the reasons for it. We were considering with hesitancy how far the above principle would have been applicable to the case before us. We considered, as every authority justified us in considering, that the root of all title was in the Crown. What the rights of any prior native occupiers might be, or whether they had any rights, was a matter entirely for the conscience of the Crown. In any case they had no rights cognisable in this Court. Nor could this Court examine in any way what their rights were. If the Crown by its representative asserted the existence of any duty to the natives, it seemed to us that the above principles might require the acceptance by the Court of the assertion, and so have placed us in the difficulty suggested.

Mr Justice Edwards then read the following protest:—

I have read and carefully considered the protest made by Mr Justice Williams, on behalf

Protest of Mr. Justice Edwards.

of the Judges of the Court of Appeal who decided the case of Wallis v. the Solicitor-General, against the remarks made by the Judicial Committee of the Privy Council in their judgment allowing the appeal in this case, and I desire to express by entire concurrence in that protest.