SUPREME COURT.

Anglo-Maori Warder, Volume 1, Issue 11, 4 July 1848, Page 2

SUPREME COURT.

Saturday, June 24, 1848. The Queen against George Clarke. The Chief Justice then proceeded to read the judgment of Mr. Justice Chapman, as follows: This is an action of scire facias brought for the purpose of trying the validity of a deed of £ rant, made by the late Governor, Citprain Fitzßoy, to tueoVendant, under the public seal of the co'ony, and bearing teste the 16th day of May 1844. The ciroumnances disclosed by the pleadings are these : Mr. Clarke was a claimant of a considerable parcel of land, as a pur* chaser from the aboriginal natives, before the establishment of the Queen's authority in these Islands. In due course, Mr. Clarke preferred liis claim, which was referred by the then Governor, Captain Hobson, to two commissioners under the provisions of the Land Claims* Ordinance (Session 1. No. ?.) The commissioners reported in favour of a portion of Mr. Clarke's claim only, recommend ng a grant of 2500 acres. Tuts report was confirmed by Mr. Shortland, the officer admtnistei ',ng the government at the time; but notwithstanding such report and confirmation, a grant of 40 J 'o acres was afterwards made to Mr. Clarke by Captain Fitzßoy. This grant the Attorney-General, in his declaration, says is void on two grounds. Ist—because the grant itself is contrary to the recommendation of the commissioners: and,2ad,the governor had no power to grant more than 2500 acres, except after a recommendation of the commissioners, specialty authorised by the Governor, with the advice of the , Executive Council. Mr. Clarke's plea is in substance t that after the making of the report by the era, and before the issuing of the Kraut to him the defendant, his claim was referred, by his Excellency the then Governor under the provisions of the Land Cairns amendment ordinance(Sess.iii.No. 3) to a single commissioner, who, on the 2nd May, 1844, reported, recommending a grant of 5500 acres less certain exceptions. The plea contains no averment that the recommendation was made in accordance with a special accordance with the governor. To this plea the Attorney-General demurs, assigning for causes of demurrer: Ist, that the said commissioner in the plea mentioned was not authorised by the last recited Ordinance, to reverse a report already made by two i commissioners under the Land Claims* Ordinance ! (Session 1 No. 2.) 2ndly, that he wa« not authorised to rpport on claims which he himself bad not heard i n the manner prescribed by the said ordinance. Upo a the state of the pleadings the court is to consider i u » whole record, not merely confirming itself to the poi n & raised by the demurrer, and is to giv« judgment f°r the party, who upon the whole appears to lie entitled toil [Btcon Abr: Pleas (A N 3.) Petersd. Vol. 8. 12, and cases there collected.] The broad question for the court to determine 1 is this:—Had his Excellency Governor Fitzßoy legal authority to execute a grant to a land claimant under the ordinance (Session 1 No. 2), embracing a quantity of land exceeding the amount recommended hy the commissioners, as well as the amount prescribed by the ordinance. I confine myself to this simple poiut; because, if the Governor had such power, fhe second reference to the single commissioner was wholly unnecessary: and if the Governor had not such power,, his wrongful act could not he cured by Cotmiiseioner FitzGerald's recommendation, made, as it appears, contrary to the express provisions of an ordinance, ( binding at all events on him) without being "soecialty authorised hy the Governor and Executive Council to make such recommendation." The learned Attorney General draws a distinction between "a grant mnde by the Crown itself and *' a grant made by the Go* vernor in the name of the Crown:'' which seems to me to be merely verbal, and to be fraught with no Jeiral const quences whatever; and this I think will appeer when we have nFcertaincd the nature and extent of the power under which the Governor makes and executes grants of land. That portion of the Q leeu's prerogative which relates to the making of grants of land, is conferred upon the Governor by a clause of the Charter of IS4O, under the Great Sea), and is couched in ihese words:—" And we do hereby give and grant to the Governor of our said colony of New Zealand for the time being full power and authority in our name and on our behalf—but subject nevertheless to such provisions as tnav be in that respect contained in any instructions « hich may from time to time he addressed to him by us for that purpose—to make and execute in onr name and on our behalf, under the public seal of the said colony, grants of waste land to within the same, to private persons for their own use and benefit, or to any persons or bodies politic or corporate ia trust for the public uses of our subjects there resident or any of them." It may seem that the Governor's legal power under this clause is restrained and limited by the sentence relating to future instructions. 1 am aware that s>ome persons'of learning and experience have adopted that view; but I conceive that such an optuion involves a misapprehension of the distinction between tetters patent under the great Seal, and an instrument under the signet and sign manual. The Royal Prerogative is of such a nature that at common law, no portion of it can be communicated or transferred except under the great Seal; nor does the 3 & 4 Vic. c. G2, under which the charter of IS4O was granted, break in upon this ancient rale. Within the realm of England indeed, the prerogative is, for the most part, *• incommunicable" (Bro. Abr. Patents) meaning of course in an executory state; and it is only ex necessitate that the power of delegation to colonial Governors has grown up. It is only by matter of record that the Queen can grant any franchise privilege ~-\ power, honour, or dignity which she has authority grant (Lane's case 2 Co. 16 b.) ; and it is even saux by Lord Coke (2 Inst. 18 b.) that the Queen being a body politic, can only command by matter of Record. It is clear therefore that an Instrument under the signet and sign manual is insufficient to create powers affecting the prerogative. Royal instructions are undoubtedly morally binding on Governors, as an expression of the Royal Will; to some extent they may also create legal responsibility ; but an act of a Governor contrary to rach instructions is not absolutely void as regards the Queen's subjects, r.nd is only voidable where tbe Crown retains the power of disallowance; The true nature of royal instructions is that of private directions to the Governors of colonies as to the manner in which they shall use and exercise the powers created by the more solemn and binding instrument under the great seal. Ai such, they are entitled to the highest respect and obedience; but to a certain extent they must be deemed to be addressed to the discretion of Governors, and not as intended to take away any portion of the powers once given under the great seal. I believe lam correct in saying that ins* tractions have not been recorded In any colony; their character as a private instrument between the Crown and the Governor being carefully kept in view, the Crown retaining in its own hands the sole remedy in the rare case of infraction. As such au instrument cannot create, so it cannot abridge or revoke powers once validly created by commission or charter 'under the great seal. Too modifying or revoking instrument

should be of at least as high and solemn a nature as the creating instrument In support of mm view. I venture to cite the opinion of one of the ablest colonial constitutional lawyers among those by "hum such subjects have been treated—the late Mr. Francis Maseres, the last of the cursitor Barons of the fcxchequer, and Attornev General in Canada after the conquest-(about 1768-9 ) Ibis opinion, although not a judicial decision, and therefore not or binding force/is nevertheless entitled to great respect, as well on account of the writer's colonial experience, as from the many years he afterwards devoted to the investigation and elucidation of such subjects. After having treated, nt great length, of clauses mthe Governor's commissions under the Great Seal, similar to that in the cited pnssage of the Chaster of IS4O referring to royal instructions, he concedes in these words : "Thus if the King in his Commission under the great seal, gives the Governor a general power to Brant any lands in the province upon the usual conditions, and in his private instructions under his signet and sign manual t direct him to forbear making grants of such and such particular tracts of land which his Majesty choosfs to reserve to himself, and the Governor notwithstanding suc h instructions makes a grant in the said excfpted tracts, such a grant is valid by virtue of the general power of granting contained in the commisMon under the great seal, notwithstanding the exception of those particular tracts of land contained in Ihfi private instructions'* (Canadian Freeholder Vol. 2. 232) The viewheretakenofthesuperior binding force of the instrument under the Great Seal (whether commission, or charter, or both) is strengthened by the cl&use usually insetted in such instruments, but never ** to be found in royal instructions, to this effect, " And """* -q»3 do hereby require and command all officers, civil &Lri mihtarr, and atl other the inhabitants of our said i colony of New Zealand to be obedient, aiding, and assisting to you, the said A. 8., in the execution of this our commission, and of the powers and authorities herein contained." (Parir Papers, May, 1841, p. 33.) Comnvssions and charters have always been proclaimed and published In the official gazette, as well as recorded; whereas it is only under the more liberal and candid policy of recent times that Royal Instructions have been permitted to meet the public eye at all. Moreover, the Act of 9 and IT Vic., c. 103 * to make further provision for the government of the New Zealand Islands/ by enabling her Majesty to execute the powers contained in the act, and delegate the same to the Governor, not by letters patent, but by royal instructions under the signet and sign manna), Is pregnant with the admission that such an enabling clause was necessary* that the power it conveys did not exist under the 3 and 4 Vic. 62, or at common law, and that it could not be exercised without an Act of Parliament. I think, then, that although a Governor be morally hound by Royal Instructions, yet his legal power tinder the Charter of 1840 was saved whole. The proper legal view tn take of his authority under the clause already cited is, that he was thereby endowed with so much of the royal prerogative as relates to the making and executing of pran's of waste land within the colony of New Zealand, just as by another clause lie was fully clothed with the prerogative of mercy within the same territorial limits. The deed of grant runs ir. the Queen's name. Within the colony it has the same force and effect as a grant under the Great Seal has in England. A Crown grant in England is no doubt affec ed by certain Statutes from which a colonial pant is free: but. on the other hand, a Crown grant within the colony is effected by certain Statutes and Ordinances from which an English Crown gr*nt is free. These, however, constitute a local law in nowise affecting the nature of the instrument, which is really and truly what it is commonly called, name]/, a Cr vm grant ; concluding: the Crown, at once, without farther confirmation by the Queen herself; and not subject to her Majesty's disallowance. Althongh it is not pretended that this case is affected by any " instruction," 1 have nevertheless thought it necessary (on account of what has fallen from the learned Attorney Generel, supported by other learned authority) to examine into the nature of the authority by which the Governor makes and executes grants of land. If the view I have taken be incorrect in point of lawit we are not to treat Crown grants within the colony as proceeding from on exercise of the Royal Prerogative under the express words of the Charter, I know not in what light to view them ; nor do I know of any cctain rules of law to which we can lesort in order to direct us in construing and giving them effect. I assume it, therefore, as an indisputable principle, applicable to the colonial possessions of the Crown, that in constru. ing Crown grants under the colonial seal, the colonial courts are bound to resort to the law of England applicable to grants of the Crown under the Great Seal, ** so far as the same is applicable to the circumstances of the colony.*' It may be laid down as a principle asserted in numerous cases, that the Queen's prerogative shall not be hound by a statute, except by express words aming the Queen (or King). In the Kins v. the Archhishop of Armagh (reported 8 Mod, 8), it was held to be ** clear that the King cannot be divested of any of his prerogatives by general words in an Act of Parliament; but that there must be plain and express words for the purpose j though all his other rights be no more favoured in the Jaw than the rights of his subjects/' The case of Magdalen college (11 Co. 7G b.) goes further, and seems even to protect rights of the Crown, other than prerogative righ's. But certainly " in the most minute esses of the King's prerogative it cannot be taken away by general words in an Act of Parliament.*' (Viner ciiing of the College of Phywcians I Mod 14). An I *£ice of the Legislative Council of a colony, unti ' disavowed by the Queen, has, within the colony, the same force and effect as an Act of Parliament {bath within (he realm of England and iVales, but it can have no gtcater force Hence, in order to deprive the Crown of any of that portion of the prerogative which is wielded and exercised by the Governor by means of an Ordinance, such O.dinance must rmpfny words which would be sufficient in an Act of Parliament to bind the prerogative in England. That the wording of Acts of Parliament which have been held by the courts of law to restrain or limit the prerogative, is always precise and unambiguous, the examples I shall cite will shew. The 1 Ann. (stat. I.) c 7, enacts that all and every craut • » which shall be granted by her Majesty, her heirs and successors • * tu any person ♦ ♦ shall be utterly void and of no effect * * unless such grant, &c., be made f or some term not exceeding one and thirty years, or three lives." The operative words of the Australian Land Sales' Act are equally clear aud express. " The waste lands of the Crown in the Australian colonies shall not, save as hereinafter is excepted, be conveyed or alienated by her Majesty, or by any person or persons acting on the behalf or under the authority of her Majesty, unless such conveyance or alienation be by way of sale." If the framers of the Land Claims' Ordinance intended to restrain the exercise of the prerogative by the Governor, I am of opiniou they have not employed words legally sufficient for that purpose. By that ordinance the Governor is authorised to refer claims to commissioners appointed under the authority of the ordinance. The commis-

sioners are restrained from recommending grants m several cases, and the restraining words which it is contended bear on this case are these : " that no grant shall ba recommended by the said commissioners which shall exceed in extent 2560 acres, unless specially authorised thereto by the Governor, with the advice of the Executive Council." In this ordinance all words which could he construed in restraint of the prerogative are avoided, as it seems, with studious care; and after this strict abstinence from restraining words, assurance it rendered even more sure, or rather more patent, by a clause expressly saving the Prerogative. The object of the ordinance seems to have been, ti secure to the Crown full information a* to all the circumstances of each claim, and to leave it to the Governor to deal with each, according to the spirit of the ordinance, and according to her Majpsty's instructions, in full faith that he would not lightly depart from either. The chain of principles, then, by which, as it seemsiJto me, this case mutt be goverred, consists of these:—l. The charter of 1840 places in the hands of the Governor (among other things) so much of thf Royal Prerogative as relates to the making of grants oe waste land 2. That prerogative can only be taken away or restrained within the colony, by the express words of an ordinance (or statute). 3. The Land i Claims' Ordinance not only contains no such express 1 words, restraining the exercise of the prerogative, so vested in the Governor, but contains a clause expressly saving the prerogative. 4. Hence Governor Fitzßoy. even if he departed from the spirit of the ordinance in making a grant of more than 2560 acres, could (in the absence of any false suggestion by the grantee himself) legally make such a grant In conclusion: Although, speaking technically, I think the defendant's plea bad on the third ground of demurrer at least, I am of opinion that he ought, nevertheless, to have judgment; inasmuch as the declaration, for the reasons I have given, discloses no sufficient legal ground for avoiding; this grant. Judgment for Defendant.