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Published online by Cambridge University Press: 24 January 2025
Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M’Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.
1 (1972) 5 F.L. Rev. 85. Dr Hookey replies to this article infra p. 174.
2 (1971) 17 F.L.R. 141.
3 (1972) 5 F.L. Rev. 85, 103.
4 Id. 102.
5 Id. 94.
6 Id. 103.
7 (1823) 8 Wheaton 543.
8 A short list is collected in argument in St Catherine's Milling and Lumber Company v. The Queen (1888) L.R. 14 A.C. 46, 48.
9 (9 July 1840) Parliamentary Papers, Correspondence Respecting the Colonisation of New Zealand 63-78.
10 (1847) N.Z. P.C.C. 387.
11 St Catherine's Milling case supra n. 8 Note in this case id. 58 the adoption of the phraseology of Johnson v. M'lntosh.
12 Id. 388.
13 (1823) 8 Wheaton 543, 574.
14 (1810) 6 Cranch 87.
15 8 Wheaton 543, 592.
16 (1832) 6 Peters 515.
17 (1971) 17 F.L.R. 141, 209.
18 Osgood, H. L. The American Colonies in the 17th Century (1907) iii, 25-52Google Scholar.
19 Stith, History of Virginia 104; Virginia Magazine vi, 214. (Further examples of such incidents are given in “Indian Policy of Colonial Virginia”, unpublished Doctoral Thesis of Walter Stitt Robinson, University of Virginia 1950, 15-22, hereinafter cited as Robinson.)
20 Tyler's Quarterly Historical & Genealogical Magazine iii, 262.
21 Kingsbury, Susan M. (ed.), The Records of the Virginia Company of London (1906 and 1933) ii, 94-95Google Scholar: N. M. Nugent, Cavaliers & Pioneers (1963) xviii. The Company acted on the basis that the Indians had no particular property in the land but only a general residence there. P. A. Bruce, Economic History of Virginia i, 489.
22 Alexander Brown, First Republic 464.
23 Robinson supra n. 19, 67.
24 W. W. Hening (ed.), Statutes at Large: being a collection of all the Laws of Virginia from the first session of the Legislature in the year 1619 (Richmond, 1819-1823) — cited hereafter as Hening.
25 Settlers were entitled to grants of land according to the number of persons they brought with them.
26 Hening i, 353-354.
27 Bening iii, 84-85, 220.
28 Bening i, 456, 457.
29 Id. 467, 468.
30 Hening ii, 13, 14.
31 Id. 14, 15.
32 Id. 34.
33 ld. 35.
34 Id. 36.
35 Id. 41.
36 Id. 138-143.
37 Id. 141.
38 Lord Culpeper's heir was his daughter who was the mother of the Lord Fairfax (circa 1698-1780) who moved to Virginia to set up his proprietary land office.
39 Hite v. Fairfax 8 Virginia Reports 42; J. P. Boyd (ed.), The Papers of Thomas Jefferson (1952) vi, appendix 3, 647-668, especially 659; W. 0. Grant and James Munroe (eds.), Acts of the Privy Council of England, Colonial Series (1910) iii, 388-391; Letter from George Mason to Edmund Randolph, 19 October 1782 in Rutland (ed.), The Papers of George Mason 1779-1786 (1970) ii, 746-755.
40 Fairfax's Devisee v. Hunter's Lessee (1813) 6 Cranch 602.
41 Virginia Magazine xiv, 289.
42 Hening iii, 464-466.
43 Robinson supra n. 19, 155.
44 Clark Whissler, Indians of the United States (1953) 111.
45 Virginia Magazine xiii, 141-142.
46 Virginia Historical Magazine xvi, 143.
47 It was this Proclamation which ten years later gave rise to Campbell v. Hall (1774) 1 Cowp, 204; 98 E.R. 1045 which became the foremost 18th century repository of the common law as it impinged upon English colonies. It was also later construed by the Privy Council in the St Catherine's Milling case (1888) L.R. 14 A.C. 46, 54-55,
48 The case of the Loyal & Greenbrier Companies (1783) Court of Appeal of Virginia, 1 Virginia Reports 21.
49 Hening 97-98.
50 Jefferson's Notes on Virginia, reprinted in Basic Writings of Jefferson 143.
51 Robinson supra n. 19, 79.
52 Leading politician and draftsman of Virginia Bill of Rights in 1776.
53 Letter of 19 October 1782 cited supra n. 39.
54 Boyd op. cit. 488 ff.
55 Id. 480.
56 Ibid.
57 (1823) 8 Wheaton 543.
58 A detailed account of this long drawnout case is to be found in J. H. Smith, Appeals to the Privy Council from the American Plantations (1950) 422-442.
59 Jackson v. Hudson 3 Johnson 375.
60 Flick, A. C. (ed.), The Papers of Sir William Johnson Albany (1925) iv, 818Google Scholar.
61 Goebel, J. and Naughton, T. Law Enforcement in Colonial New York (1944) 34, 35, 207-220Google Scholar.
62 Morison, S. E. (ed.), Sources and documents illustrating the American Revolution (1955), 231Google Scholar.
63 8 Virginia Reports 42.
64 Supra pp. 158-159.
65 (1791) 1 Kentucky Reports 77.
66 Id. 80-81.
67 Amercian State Papers Class VIII Public Lands 94-98.
68 Supra n. 39.
69 Supra p. 168.
70 (1823) 8 Wheaton 543, 579.
71 Id. 591.
72 Virginia Reports Colonial, 1728-1732, Introduction 160-162 (This is a 19th century edition of the Reports of Sir John Randolph & Edward Barradell.)
73 Washington, H. A. (ed.), The Writings of Thomas Jefferson (1856) ix, 485-486Google Scholar. Story on the Constitution (5th ed. 1891) i, 25.
74 (1971) 17 F.L.R. 141, 207.