The Anglo-Maori Warder. TUESDAY, JUNE 27, 1848.

Anglo-Maori Warder, Volume 1, Issue 10, 27 June 1848, Page 2

The Anglo-Maori Warder. TUESDAY, JUNE 27, 1848.

It is a long lane that has no turning. The persecution with which those unlucky Church Missionaries have so long been harrassed has received a check, as effectual as it was unexpected. On Saturday last, the Supreme Court gave judgment for defendant in the Queen against George Clarke. And this decision, it may he assumed, will rule the remaining Missionary cases. We regret much that it has been im possible, in spite of every exertion, to print both judgments, which are unusually lengthy, in the Warper of this day ; that of the Chief Justice, however, beyond comparison the more important, we have been able to give. We have seldom read any thing which afforded greater pleasure—it may even be said amusement—in following out his subtle and accurate analysts of the whole argument; even to the minor and collateral points that arose ; his gradual unravelling of the tangled skein, and his final clearing away of the difficulties that have so long and thickly beset this much mystified question. The judgment of Mr. Justice Chapman is much more simple. It is equally decisive, but much less instructive; and the substance of it may be condensed into a very small space.— He says the broad question for the Court to consider is this. Had his Excellency Governor Fitzßoy legal authority to execute a grant to a land claimant under the Ordinance (Sess. 1, No. 2) embracing a quantity of land exceeding the amount recommended by the Commissioners, as well as the amount prescribed by the Ordinance. He confines himself to this single point, because, if the Governor had such pouer, the second reference to the single Commissioner was wholly unnecessary ; and if the Governor had not such power, his wrongful act could not be cured by Mr. Commissioner Fitzgerald's recommendation, made, as it appears contrary to the express provisions of an ordinance (binding at all events on him) without being specially authorised by the Governor and Executive Council to make such recommendation. Mr. Chapman's opinion is, that such power was conferred upon the Governor by a clause of the Charter of 1840, under the great Seal ; which power could not, he contends, be limited by Royal Instructions, which are merely an Instrument under the signet and sign manual. To this point we may possibly have to letuin again. A very important question with regard to other titles, hinges upon the teal value of Royal Instructions, of which the Chief Justice, as appears by an observation contained in his Judgment in the Kawau case, seems to have formed a very different estimate. It is unnecessary to give an abstract of this portion of his argument, because although he thinks it necessary to make the enquiry, '"£ it is not pretended that this case is affected by any instructions." But as the whole of what directly affects the decision is condensed by himself, in the winding up the judgment, we give it in his own words. " The chain of principles by which, as it seems to me, this case must be governed, consists of these ■-— " I. The charter of IS4O places in the hands of the Governor (among other things) so much of the Royal prerogative as relates to the making of grants of waste land. " 2. That prerogative can only be taken away or restrained within the colony, by the express words of an ordinance (or statute). " The Land Claims Ordinance not only contains no such express words restraining the exercise of the prerogative, so vested in the Governor, but contains a. clause e.\preaaly saving the prerogative. " 4. Hence Governor Fuzßov—even if he departed from the spirit of the ordinance in making a giant of more than 2560 acres could (in the absence of any false suggestion by the grantee himself) legally make such a giant. ■' In conclu ion, although speaking technically, I think the defendant's plea bad on the third ground of demurrer at least. 1 am of opinion that he ought, nevertheless, to have judgment, inasmuch as the declaration, for the reasons I have given, discloses no sufficient ground for avoiding this grant." >~ ' _«___————__-