No. 7.
Scheme for the Partition and Enfranchisement of Lands held under Native Tenure.
[F. D. Fenton's "Observations, 1859."]

Crown grants cannot, except in rare instances, be issued even in cases where sole and unencumbered ownership is clear and undisputed, for the Native owner will not accede to a proceeding which infers that his own title is imperfect. The instrument of primary assurance must therefore be in the nature of a certificate testifying that the parties named therein are the owners of the lands therein described. It is further premised that no certificate should be issued until due inquiry has made it clear that the right parties have been discovered, and that no adverse claims are outstanding.

Inasmuch as the dignity of the Crown will be as much concerned in defending the title under a certificate when issued by itself as under a Crown grant (if such could be made), time should elapse between the award of ownership made in pursuance of the inquiries hereafter explained, and the issue of the instrument which certifies to it, and during that interval certain acts of ownership should be done and committed. In the meantime the whole conduct of the investigations and the responsibilities of them, as well as the duty of maintaining the award, should be thrown upon the Maoris, so that the dignity of the Crown should in no case be compromised or its interference be needed. This principle has already been recognized by the Legislature in the recent measures for providing civil institutions—viz., "The Native Circuit Courts Act, 1858," and "The Native Districts Regulation Act, 1858." For this purpose and with this view the investigation must be purely local. Indeed, it is very questionable whether the suspicions of the people will allow them to permit the adjudication of their lands in purely European Courts, or otherwise by purely European machinery.

No machinery can be invented more admirably adapted for the performance of the duty of investigation of the ownership and the partition of the common lands of the country than the species of Court-Leet and Great Court-Baron recently created by "The Native Circuit Courts Act, 1858." The proceedings must be authoritative. Negotiation and diplomatism will have no force and no public support.

The process of legalizing tenure may be as follows: At each Courthouse established under the last-named Act will be deposited a book of record for the purpose of registering therein the names of owners who have been recognized, and the boundaries of the land of which they have been decreed the owners. Any tribe, subdivision of a tribe, or individual desiring to have their or his land defined by metes and bounds and registered in the Court-roll must give notice of such desire to the Native Magistrate (called in the Act a Native Assessor) of the locality, specifying in such notice the names of the claimants and the description of the land. If, after discussion between the European Magistrate and the Native Magistrate, there appears to be no matter in the claim likely to create political difficulties, the Resident Magistrate causes the claim to be entered on the Court-roll and affixed to the door of the Courthouse, and circulated in such other ways as will give publicity thereto, adding also a notice to the public that adverse claims must be immediately sent in to him, delivered to the Native Magistrate of the locality. If no adverse claims appear, or such only as admit of adjudication, notice is given to all the parties, and affixed to the door of the Courthouse, that on the day named in such notice the title to the land will be investigated. If, however, the adverse claims sent in appear likely to create undue excitement or insuperable difficulty, no immediate day of hearing will be fixed by the Resident Magistrate, but notice must be given that the matter is adjourned for the present. On the day of hearing (not being a Court day), the Resident Magistrate causes an uninterested jury to be summoned, after the manner of the constitution of a criminal jury in "The Native Circuit Courts Act, 1858." He, with the Native Magistrates of the locality (unless interested, when others must be sought), and the jury, hears the speakers or witnesses in the Courthouse, first of the claimants and then of the opponents, and in fact conducts the case as an inquiry before the Commissioners under an Act for enclosing lands of common would be conducted in England. At the conclusion the jury (assisted, if necessary, by the Resident Magistrate) gives a verdict that the claimant is entitled to the land, or otherwise, as the case may be, or that the land be divided among the contending claimants. In the latter case the Resident Magistrate and Native Magistrates, assisted by the jury, proceed to make partition of the land, and in any case cause all sufficient posts and boundary-marks to be set up. The proceedings and the verdict are entered on the Court-roll, signed by the Court and all the parties. A copy of this roll will be evidence of Native title, and will be the title-deed. In case a tribe, having had their land enrolled, desire that it be further divided amongst subdivisions, or again amongst individuals, the same process must be followed, and record similarly must be made. All subsequent alienations, or change of ownership by descent or otherwise, must be presented by a jury at a Court-Leet, and entered on the rolls, the previous copy being surrendered, and a fresh one issued. Thus will be established a very tractable tenure, resembling the copyhold or base tenure of England, each district of a Court representing a manor.

Whenever land is proposed to be alienated to a pakeha a certificate of title from the Crown can be issued with ease to the Native proprietor, whose name appears at the time on the rolls of the Court as the owner, all doubt as to title and boundaries having been removed by the foregoing operations. On the transfer of this certificate to the purchasing pakeha, and the issue of a Crown grant to such purchaser,page 11 must be paid the sum due to the Crown for the release of its right of pre-emption, a right which cannot at present be foregone, as by the recent Imperial Act the whole territorial revenue is mortgaged to the Crown. In case "The Native Territorial Rights Bill, 1858," receives the Royal assent; the payment for this release of the pre-emptive right must be at the rate of 10s. per acre, but for many reasons it appears to the writer that a sum calculated ad valorem on the purchase-money would be far preferable. The expense of the survey, which would on the occasion of this final extinction of Native rights become necessary, would be a simple matter of bargain between vendor and purchaser. It would, however, be far better if Native surveyors were educated in the manner proposed elsewhere, specially for the performance of the duty of surveying common Native lands. A class of educated Native surveyors would smooth away many difficulties.