SUPREME COURT. Wednesday, Sept. 16, 1846. The Attorney General, v. Heale and Whitaker.

New Zealander, Volume 2, Issue 69, 26 September 1846, Page 3

SUPREME COURT. Wednesd ay, Sept. 16, 1846. The Attorney General, v. Heale and Whitaker.

Mr. Whitakbr, for the Defendants, in support of the Demurrer said — The Defendants rest their case on three grounds — Ist: that the Lieutenant Governor has no power to institute such a proceeding ; 2nd : that notwithstanding the Australian Land Sale's Act the Crown had a power to exchange ,— and 3rd : that the present case was within the exception of the 3rd clause of that act. Of the Ist and 3rd he should dispose in a few words. As to the Ist he would only say that he could find no kind of authority for such a proceeding ; and with respect to the last he would only ohserve that the exception in the act is very full, and open to argument, at least, whether it is not sufficiently so to include the •present case ; but his reasons for thus concisely disposing of these two points were that he was anxious for a decision on the main point, the 2nd, because it raised a question affecting a large portion of the community, which it would be desirable to set at rest, and he himself was interested in other Land, the title to which must stand or fall by the decision on that point. The simple question then was this — does the Australian Land Sale's Act, deprive the Crown of power of effecting exchanges which it previously possessed ? (The title and two first clauses of theact were here read). Now it was laid down in Bkckstone when noticing the rules ofconstruction of acts of Pailiament " that there are three points to be considered in the construction of remedial Statutes ; the old Law, 'the mischief and the remedy ;' that is how the common Law stood at the making of the act ; what the mischief was for which the common Law did not provide and what the remedy the parliament hath provided to cure the mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy." The instance given in Blackstone, the 13 Eliz. c. 10, is very similar to the present— that as well as this is a restraining as well as remedial Statute. The words of that act 13 Eliz. are " That from henceforth all leases, gifts, grants, feoftments, conveyances or estates to be made, had done or suffered by any master and fellows, bishops, &c, other than for the term of 21 years or 3 lives, shall be utterly void and of none effect to all intents, constructions, and purposes;" and yet because that statute was made for the benefit of successors it was held, that notwithstanding the clearness of the words, leases for any number of years were not void during the life of the maker. Now, with regard to the Australian Land Sales Act, let it be tried by this test The mischief was, that there were as many systems as Colonies for disposing of the Waste Lands of the Crown, and the remedy provided was the adoption of one uniform system, providing also for the mode of conducting the sales, and the application of the purchase money. Were exchanges such as the present case within the mischief? — it is not so recited nor could they be ; and if the words of the Statute of Eliz. be compared with the words of the Land bales Act, the former will -be found more full and extensive, and yet though sufficient to include the case excepted by the construction put on them they were not so extended because the mischief sought to be remedied did not so require it. If the case rested here it might be sufficient, but if any doubt exists the application of another rule of Law may clear it up. 111 1 is this that where any right prerogative of the Crown is sought to be adjudged it must be done by express words, and not by implication — rhis is unquestionable Law. Every authority goes this length. In the first vol. Black. Com. page 263, it is stated that the Crown cannot be bound by implication. Now the words of the Land Sales Act are general words ; what can be , more so than "disposed of," in the Ist clause and "alienated or conveyed," in the second; they are not general words as to person, but they are so as to the thing to be done. Blackstone's " any person or persons," &c, are given merely as an example of general words ; but to bind the Crown to deprive it of its prerogatives the word used must he express and explicit, whether they relate to the person or the thing to be done. The principle is, that nothing must be left to implication. The next authority is Chitty's work on prerogatives of the Crown; at page 382, it is said, that the King is not bound by Acts of Parliament, not particularly naming him. On this point one more authority will he sufficient, at least, to establish the position that the Crown can be bound by express words only, and not by implication. It is said in Plowden, page 333, and quoted by Lord Chief Baron Lyndhurst, in the case of the Attorney-General v. Parsons — that "it is most consonant that things appropriated to the Crown, —to the prerogative royal — should tarry with the Crown, and not be severed from it without special word." Such, then, is the Law; now where are the express, the "special words," in the Australian Land Sales Act ? The words there used are, as already shewn, most general. If it was intended to deprive the Crown of the right of Exchange, why was it not so said ? Why was that word not used ? Why was such an intention left to be implied ? If, then, this Act of Parliament be construed against the Grant under consideration, the Crown will, contrary to these authorities, and contrary to Law, be bound by implication. In the case of the Bank of England v. Anderson, (Hil.Term, 1837), Lord Chief Justice Tindal, in delivering the judgment of the Court of Common Pleas, on the construction of an Act of Parliament, says, "And if no other argument was brought i forward, we attribute great weight to the maxim of Law contemporanea, expoutio fortessima est Inlege." What, then, is the opinion of the author of the Land Sales Act, and of the Government under whose auspices it became Law 1 It so happens, that there is the best possible opportunity of obtaining the opinion wanted. In the New Zealand Government Gazette of the 26th March, 1844, a document, his learned friend, the Attorney- General, would surely admit to be of great authority, there is a despatch from Lord Stanley, remarkably clear and distinct on the subject, addressed to the Governor of this Colony, as follows : " Sir, — With reference to your Despatch, No. 20, of March last, 1 have to acquaint you, that Her Ma jesty's Government have resolved to allow to Settlers generally the opportunity of exchanging their Lands in the more' remote positions, for Grants nearer to the Town of Auckland. You are, therefore, authorized to allow to all claimants, who have established their titles to Land, the option of taking Land in Exchange for it in the unoccupied portions of the district in which Auckland is situated." Now it was Lord Stanley who introduced the Australian Land Sales Act into Parliament— he was, in fact, its parent, its originator, and under his guidance it became Law ; and here is not only his opinion, but the deliberate opinion of the Imperial Government, of which he was a member— that the Governor of New Zealand possessed the power of exchanging Crown Lands for others, and heie are positive instructions to act on that power. Guided also, it would appear by this authority, there is the practical exposition of the Local Government, for in the Gazette of the 7th May last, it is stated, that no fewer than 875 Grants have been issued where the consideration was Land given in B»

change, of which nearly 100 have been issued "by command" of His Excellency the*present Governor, under an authority which is now repudiated. The Australian Land Sales Act passed in June, 1842, and looking at the distance from England of the places to which its operation extends, it cannot be expected that any judicial decision can yet have been given in England on its provisions ; and, therefore, no authorities of this class can be produced. Next to direct authorities, the hest are cases of analogy. Many Statutes have, from time to time, been passed in England, abridging the Crown's rights and prerogatives, and these might be referred to see how general words, such as those of the Australian Land Sales Act havP been construed. There is one peculiarly in point, which will he sufficient for the present purpose; it relates to the Crown Lands of England. Previously to, and during, the reign of Wm. the 3rd, the Crown had been much impoverished by the alienation of great portions of its possessions, and on the first year of the reign of Queen Anne, c. 7, sec. 5, it was 1 enacted, " That all and every grant, lease, or other assurance, made or granted by Her Majesty, Her Heirs or Successors, of any manors, lands, &c, whereby any Estate or Interest whatsoever, in Law Or Equity, shall or: may pass from Her Majesty, Her Heirs or Successors, shall be utterly void, and of none effect." An Exchange is in Law denned to be "An assurance at common Law." Can any words apparently be stionger than these? Are those of the Australian Land bales Act even equally so ? Compare them ; give due effect to each word of each Act, and what result will appear? that the words of the statute of Anne are far stronger, far more explicit than those of the Australian .Land Sales Act; indeed, in the former it is difficult to give the word " assurance" any effect, if it did not extend to an Exchange. Yet, in Chitty's work on the prerogative of the Crown, page 204-, after noticing this statute of Anne, and some others, it is distinctly stated, and authorities are cited to shew, that these statutes do not take away the Crown's right of Exchange. Upon' these grounds, then, he (Mr. Whitaker) submitted that the Crown Grant in question in tills case was valid, and he asked for thejudgment of the Court in favor of thedefendants. The Attorney-General for the Crown commenced by stating that, this was a suit on behalf of the Crown, to set aside a certain Deed of Grant sealed with the Public seal of the Colony and executed by the then Governor of the Colony, Captain Fitzßoy, in the name of the Crown. The deed in question purported to convey to the defendants, Messrs. Whitaker and Heale, a piece of land in the parish of Kawau, in consideration, that by a deed of even date the defendants had conveyed to Her Majesty, Her Heirs, and Successors, a certain piece of land in the Town of Auckland, stated to be required for public purposes. Alter briefly adverting to the cuv,urn-> stances of the transaction, the Attorney- General said, that it had now become his duty to seek to set the Grant aside, on the ground that it was contrary to the provisions of the Act for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies." Sess. VI. Vic, c. 36 ; and^that it was invalid and contrary to Law. It was admitted on the pleadings on 'the part of the defendants, that the land comprised in the Grant was part of the waste lauds of the Crown — that the land had not heen sold to them hy public auctionthat it had in fact never been put Up for sale by auction and that the land had not been paid for in money. -But it was contended by them that the Governor of a Colonydoes not possess the prerogative power of the Crown to institute proceedings for setting aside a Grant from the Crown— that notwithstanding the Land Sales Act, the j Crown still retains the power of making an Exchange [ of Waste Lands, and that the Grant in question is a good Grant — and that even under the 3rd clause of the" Land Sales Act, the Grant was valid. His learned ' friend, Mr. Whitaker, had stated that he should not press the ist. and the 3rd. of these points, and had confined himself mainly to the 2nd, point, viz : — that notwithstanding the Land Sales Act, the Crown had still-the power of making Exchanges of Land, and that the Grant' m Exchange made by Governor Fitzßoy was a good and valid Grant. Assuming; for the sake of argument, that the Crown still possessed the power of an Exchange of Waste Lands in the Colony; > it by no means followed of course that an Exchange made by the Governor of the Colony was valid. <It would not be contended that the Governor of a Colony has any power Ez officio of disposing of Crown Lands ; his powers in relation to the disposal of land would be delegated to him either by the Crown — by Act of Parliament, or by other competent authority. In the Charter erecting New Zealand into a British Colony, it would be found, that express power had been given to the Governor by the Crown to execute Grants of Waste Lands, and in such manner and subject to such instructions as might he issued for the purpose. And by the Royal Instructions following the Charter, provision was made as to the manner in which these lands are to be sold or disposed of. This, he the Attorney- General quoted, not as proving that such were the regulations now in force, but in support of the position that the power of the Governor is derived from some higher authority, and that to maintain the Deed of Exchange then befoie the Court, it would be necessary to prove not only that the Crown had still the power of making an Exchange, but that that power had actually been delegated by the Crown to Governor Fitzßoy. Buthe the Attorney-General, contended that upon the consideration of the Land Sales Act, it would be found, whether looking to the general piovisions of the Act, or to its express terms, that it was the intention of that Act to take from the Crown the control and management of the Waste , Lands in the Colonies— to constitute the Crown in fact a Trustee of their lands for the benefit of the public and to furnish the truth on which these lands should be managed. His learned friend had contended that in construing Acts of Parliament, we must look to the mischiefs existing before passing of the Act, and to the remedy proposed to be applied. Before the passing of the Land Sales Act, it was well known that the Crown had the uncontrolled disposal and management of Waste Lands in the Australian Colonies — tnat in no two Colonies did the same system of disposal of Land prevail at the same time—that in 'no Colony was the same system long in operation — that in some Colonies land had been lavishly given away — in some, it had beon disposed of for an alnost nominal price — in others for a trifling quit rent ; and that in nonehad any system been found successful. With all this experience before them, the Government at length matured and passed the Act already so frequei tlyretered to. Mr. Whitaker had relied somewhat on the words of the Title of the Act, contending that it was nothing moie than an Act " for regulating fbe Sale of Waste Lands." No* he, the AttorneyGeneral admitted that if the Act had simply enacted and declared, that whenever there should be a Sale of Land in the Australian Colonies ; the sale should be conducted in a particular manner., it might well have been contended by his learned friend, that any powers then possessed by the Crown would be left untouched by such an Act. But on coming to the consideration ot the Land. Sales Act, it would be evident that its object was far more extensive ; for whether we considered its general provisions or its express language, it.was manifest that the object of the Act was not merely confined to prescribing the particular manner in v/hich the Sales of Land should be conducted. The Attorney- General then quoted several clauses of the Act, expressly giving: to the Crown, the power of reserving any land from sale that might be required for public purposes, or of granting in any manner, that might be deemed expedient to

third persons, any land for any such purposes— of disposing of Lands to Naval or military Settlers, in such manner as Her Majesty might by Her instructions direct—and also empowering Her Majesty to complete any Contracts that might have been made by Her Majesty, or on Her behalf, before the passing of the Act. These .provisions clearly negatived the then position that the Act had no other object than to prescribe the particular mode in which the Sale of Lands should^ be conducted, and confirmed the views maintained by him, the Attorney -General j that the object of the Act was in fact to provide generally for the management and disposal of the Waste Lands in the Australian Colonies. But on referring to the terms of the Act, this point would be still more apparent. The Preamble recites that it is expedient that a uniform system of disposing of the Waste Lands in the Colony should be established, not. it was to be observed, that a uniform system of seU ling Land should be established; the word disposing being the largest and most comprehensive word that could have been selected to express general management : the Ist Clause, too, concludes by enacting, that such Waste Lands shall be, not sold, be it observed, but disposed of in manner after described, and not otherwise. Again, by the 2nd clause it is enacted, in the most emphatic manner, and in the most comprehensive words of which the language is capable, that such Lands shall not, save as excepted, be conveyed or alienated, unless such conveyance or alienation be made by tuay of Sale, to be conducted in manner after described. But it was objected by his learned friend, that the Crowu was not. bum d by an Act of Parliament unless expressly named, and " Chitty, 1 ' on the Prerogative ot the Crown, had been quoted by him in support of that doctrine; but if" Chitty " was an authority for so much, he must be an equal authority ior the passage immediately following, but which his learned friend had not read, viz. — "lo thib rule there was an exception, and that the Crown was bound by implication, when the Act ot Parliament was passed for the public benefit, &c, &c": but he, the AttorneyGeneral, would not rely upon this point, because it would be proved, that the Cr^wu was expre*>s>ly warned in the provisions of the Act. The 2nd clause expressly enacting, that the Waste Lands of the Crown should not he 4 conveyed or alienated by Her Majesty, orpuy person on Her behalf, unless, &c, &c. For thess several reasons, it to be clear, that since the passing of the Land Sales Act, the Crown itself had no longer the power of dealing with the Waste Lands iv the Colony, except pursuant to the provisions of that Act, aud that the Act dtd not invest the Crown with the power of making an Exchange ; the Act having emphatically declared, that Waste Lauds should not be conveyed or alienated by Her Majesty, unless such conveyance or alienation be made by way of Sale. Assuming then that the Grant now before the Court could not be sustained as an Exchange, we come to this consideration— Can the Grant be maintained as a Sale under the provisions of the Act. The Attorney-General then quoted the 4tli, 6th, 12 h and 13th clauses to prove that all Sales were required to be by Public Auction, or that the Laud must previously have been offered for Sale by Auction, and that the consideration must m all cases be paid in money. And as it had beeu admitted, that in this case, the Land was uot sold to the Defendants by Auction— that it never had been put up to Auction — and that it was not paid for in Money, it was evident that the Grant in question could not be maintained at a Sale in accordance with the provisions of the Land Sales Act But it was not necessary for him, the Attorney-General, to express any opinion on the merits of the Auction system, but it clearly effected two important objects ; it secured to the public the full market price being obtained, and secured to the Landowner,, a fair opportunity of buying the Land in his own immediate neighbourhood. But great reliance had been placed on the doctrine, that in construing Acts of Parliament, regard was to be bad to the expression of contemporaneous opinions, and that the very Author of this Act had plainly expressed bis opinion that it had not taken from the Crown the power of making Exchanges, inasmuch as that from a Dispatch irom the secretary of State, Lord Stanley, to the then Governor, it appeared that Her Majesty's Government had distinctly in so many words authorised Exchanges to be made. Admitting the soundness oi his learned friend's doctrine, it was still to be observed that if not, before Law this expression of opinion could not make it so; and further that it was conceivable that ao Exchange might be made in a manner complying substantially with the provisions of the Laud Sales Act— «md also that the provisions given m the instance refered to was for Land claimants at a distance, to Exchange their land for land nearer Auckland j whereas, in the Grant to the Defendants, the case was exactly the reverse. Land at a distance having been given for Land in the Town. Under all the circumstances, and after a full and fair consideration of the case, it appeared to him the Attorney-General, that even if the Crown had still the power of making an Exchauge, such power could uot be exercised by the late Governor unless specially delegated to him by the Crown, ■which did not appear to have beeu the case ; but that in fact, no such power had been left in the Crown since the passing of the Land Claims Act— and that the Grant to the Defendants was not consistent with tbe provisions of that Act, and consequently that the Grant was invalid aud contrary to Law. Mr. Whitaker. replied.— -It appeared to him that the first objection made by the Attorney-General, was not within the issue. The question there raised was not whether the Governor, but whether the Crown possessed the power contended for. He did not, however, rely on this ; for the passage from the Charter of the Colony, read by the Attorney-General, gave to the Governor " lull power and authority" to make grants subject only to instructions, but otherwise without limit; and on reference to the instructions it would be lound, that they merely directed how sales should be made ; and which directions even were now, of course, superseded by the Laud Sales Act. His learned friend, the Attorney-General, had relied upon the large and comprehensive words of that Act —that was the very objection he (Mr. Whilaker) had made to them. He had stated that if the Crown was to be deprived of a prerogative right, that there must be special words to that effect — that general words, however large aud comprehensive, were not sufficient. With regard to the mischief which the Austra^an Land Skies Act was passed to remedy, his learned friend had fully described them, but had not evvn stated, much less shewn, that exchanges had been part of the mischief. The Act professed only "To regulate the sale of Waste Lands," and the preamble stated it to be expedient that there should be a uniform system. Leaving the power of Exchange untouched, it did not interfere with these objects. In answer to a passage from Chitty, read on Ihepartof Delendants, his learned friend had read another to the effect that tbe Crown was bound by implication, when the statute was passed for the public good. The Poor Laws, and Laws tor the advancement of learniug, and oihers are given by Chitty, as examples, but these Acts in no way abridged the Prerogatives of the Crown ; and if his learned friend, the Attorney-General, hid read the next paragraph, he would have found that "Acts of Parliament which

would divest or abridge the King uf his prerogatives, his iuterests, or his remedies, in the slightest degree, do not in general extend to, or bind, the King, unless there be express words that effect." The AttorneyGeneral had touched but very lightly the argument he (Mr. Whitaker) had founded on the Despatch of Lord Stanley, and well he might. It did appear that his learned friend was in an anomalous position, seeking to curtail and abridge the Crown's rights. It certainly was so far a most strange case, and if they were to change sides it would, at all events, look better. It would, perhaps, be less unbecoming in him, (Mr. Whitaker), than in the Attorney-Gene-ral, to endeavour to shew that Lord Stanley and Her Majesty's Imperial Government had directed an illegal act to be done; and that the Government of which his learned friend was a member, under three different Governors acting on those directions, had done those illegal acts. Some distinction had been drawn by the Attorney-General between the present case, and many of the other exchanges, because the latter had been effected in a somewhat different, manner ; but there was no real difference. In must instances, it was true, there had been an auction ; but what nearer did they get to the Law by that. After the Crown had given land, aud had taken other land in exchange, the consideia urn for all the Exchange Grants was land; whereas, the Act distinctly requires " ready money" only. If, then, all the Grants alluded to, in number nearly 900, were to be Jtetted by the Australian Laud Sales Act, they must fall. In all these instances that Act had not been complied with m several particulars, and under it, therefore, those Grants cannot claim to be good. It is only on the ground that the Governor had the power ot Exchanging that they can stand, and if the decision ot this Court be against Exchanges, every one must fall ; aud the Crown, after having received thousands of acres, has only in reality, given pieces of waste parchment in Exchange for them. But there is one important point in his (Mr. Whitaker'sJ argument that the Attorney-General had passed by, viz., that the Statute of Anne was passed expressly tor restraining the alienation of Crown Lands ; and, although much stronger words were used in that statute than in the Australian Land Sales Act, it was not construed to extend to Exchange. What answer, indeed, could have been given ? Upon the whole it appeared to him, that his (Mr. Whitaker's) argument had rather been strengthened than injured ; and when he told the Court that the Government of the Colony had taken possession of the defendant's land given in exchange, and now occupied it as the site of a fort; and that, in fact, in every exchange that had been made, the Government had received an equivalent, the Court would, he (Mr. Whitaker) was sure, see that not only Law, but Equity, and good conscience were in favor of the Exchange Grants.