SUPREME COURT. Saturday, June 24, 1818.

New Zealander, Volume 4, Issue 217, 28 June 1848, Page 2

SUPREME COURT. Saturday, June 24, 1818.

The Chief Justice attended this morning;, and deliveied judgment as follows, in the cause

The Queen against George Clarke. This is a suit of sure facias to annul a grant tna<le, in the name oi the Crown, by Governor I'iiz Hoy to the Defendant. The grant is in the usual form, and comprises 4000 acres of land, of which the boundaries are set iorth in the grant. This piece of land was claimed by the defendant ao having been pm chased by him from certain of the natives ot this countiy before the pioclamalion of the Queen's sovereignty over these v lands. The claim was examined by Commissioners Godfrey and Richmond ; who reported upon the same, iccommending that a grant of 2569 acres should be made to the defendant. Their report was confirmed by the officer administering the government, and the confirmation was publicly notified in the Government Gazette of 21st June, 1843. Subsequently Governor Fitz Roy referred the defendant's claim to Mr. Commissioner FitzGerald, who reported upon the same on the 2nd of May, 1844, and recommended that the defendant should receive a crown grant to the full extent of his claim. In puisuance of Mr. Commissioner FitzGevald's report, this grant wris mode on the 16th of May, 1844. The question now befoic tlie Court is raised upon a demurrer to the defendant's pea. It is therefore incumbent upon the Court to examine the pleadings upon both sides, and to give judgment according to the right of the case, as it appears upon the whole record taken together. The objections, which are assigned as grounds of demurrer, correspond in substance with the objections stated at theclose of the t'eclaration. The only difference is this — that they are applied in the one case to the repoit ot Mr. CoininisEioner FitzGerald ; in the other, to the grant itselt. 'I Ins furnishes a natural and clear division of the whole matter. 1 will thercfoie foil ,c it, and consider, in the fir->t place, whether the report

was inec;<il o i 01 illcqnl ; and secondly, how far nny n regularity or illpp.ility in thnt rcpojr wonM affect Iho v ilidity of Uip "rani lo the defendant. Th> first nbicrtion. then, to the report is the following— " That the said Commissioner R. A. FitzGernld was not nor \va<! any single commissioner, authorised by the tirovisions of the Land Claims Amendment Oidinanrc fPess. 3, No. 3), to refterr claims or to reverse rcpoHs already duly heard, investigated, and reported upon bytwo eommissioneis, pursuant to provisions of llic Lanil Claims Ordinance, Sc«s 1 , No. 2." In order to estimate the foira of this objection, it is necessary to eonoMer the two ieport3 which a>c referred to in the plcidincr, md also to advert to certain facts, of which th ur h nnt stated on the record, the coutt is bound fct> take judicial notice. The first Land Ciai'Yis Ordinance (passed <hh June, 1811) direrts (Sec G) that <( the s\iil omnussioncrs shall in every cane inquire into, and set foitli, so far t)3 it shall be possible to ascertain the same, the price or valuable consideration, with. the stcilinE value thereof, paid for the lands claimed ;md bhi'l! nho inquire into, find pet forth the number of; acres which rucli payment would have been equivalent to, according to the ratfs fixed in a schedule annexed (o this ordunnce." That schedule, marked B, was framed to comprise all purchases made between Ist Januaiy, 1815, and 31st December, 1839; and the jates fixed therein ranged from 6d. an acre to Bs. an acte. It was further " provided that no grant of land shall be recommended by the said commissioners, which shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto bythe Governor, with the advice of the executive council." In thesecondsessionof thelcgislative council, another Land Claims Ordinance was passed (Sess. 2, No. 14). It enacted (s. 4) that " Whenever h shall he lepoiled by any commissioner or -commissioners oi lond claims that any person is entitled, under the provisions of the said ordinance (mean.ng the original Land Claims Ordinance) to a grant of land in respect of hia alleged purchase, such person shall, on the report being 1 confirmed by his Excellency the Governor, he 'entitled to a gran* from the Crown out of the land validly sold to surh pei son of four times as many acres as he shall be found to have expended pounds sterling, in manner and for the purposes hereinbefore mentioned." Those purposes included, not only the purchase of the land, but also various heads of expenditure, connected with the conveyance of emigrants to the land, and their settlement thereon. By this second ordinance so much of the foiiner ordinance as restricted the recommendations of the commissioners to 2560 acre*, and general y so much of that ordinance as was .inconsistent with the new arrangement, was repealed. This second ordinance was passed 251b February, 1842. It came into operation at once ; and whilst it continued in operation, Commissioners Godfrey and Richmond rcaie their report, dated 30th May, 1843. They reported that they wer<s of opinion that George Clarke made a bona fide purchase from the native chiefs on the 4th of March und the 2<Jth of September, 1836. They estimated the payment made for the land afc £476 18s. ; and they recommended that a grant for 250'Oacies, with certain exceptions, should be issued. It is to be observed, that there is nothing in the report to show that any monies had been expended by the defendant in the manner or for the purposes mentioued in the ordinance then in force, save only the purchase money given to the natives for the land itself* Now according to the new rate fixed by that ordinance, the defendant was entitled, in respect of that purchase money, to only 1908 acres ; and I see that, in the con-i firmation of the report referred <o by the record (Government Gazette, 21&t June, 1813), the quantity to be granted is stated accordingly at 1908 acres, with certain exception. It does not appear, then, in what way the Commissioners conceived the defendant to be entitled to 206t) acres, but it is important to bear in mind that the number of 25G0 -was not (Ked upon as being an absolute limit set by law. As the law then stood, thcie was no restriction at all upon the quantity which the commissioners might recommend to be granted, except so far as a resolution was implied in the rule that the claimant should receive, out of the hmd vilidly sold to him, a grant of four times as manyacres as he should hive expend 'd pounds sterling. By the Government Gazette of 6th September, 1843, it was notified to the public that the ordinance just mentioned hid tuen disallowed by her Majesty. The necessary consequence of this was the revival of the original ennctment of June, 1841 In the case, then, of this defendant a revision of the repoit made by Commissioners Godfrey and Richmond became necessary. The difference between the effects of lbs two oidinances was to him very considerable. Under ihe former ordinance (even supposing the calculation to be made in the manner least favourable to the defendant, by taking, in Schedule B, the highest sum per acre get against the year 183G, in which the defendants purchase was made — namely, 2s. per acre), tha consideration money \i ould have covered 47G9 acres, if the defendant's claim had included so many. Subsequently to the disal owance of the second Land Claims Ordinance, and on the 13th of January, 1544, a third ordinance was passed, intitnled "An Ordinance to amend the Land Claims Ordinance, Sess. 1, No. 2." This third ordinance, after lcciting the oiiginal ordinance, enacts as follows :— " AH the powers of hear» ing, examining, and reporting on claims to land, and all other the poweis and authorities given by the said recited ordinance to any two commissioners, may be exercised as fully and efi'uetuaUy by any single commissioner, as the sama have heretofore been exercised by two commissioners.'' Under this ordinance Mr. Fitzgerald was acting as a single commissioner when he made his report of 2d May, 1844. Of the three objections to this icport, the first, which 13 now under consideration, refeis to the nahire of the power exercised by tlie commissioner in this report. The objection is, that no single commissioner could *' rehear claims or revet se reports already duly heard, investigated and leported upon by two commissioners.'' As to the way in which this report did[interfere with or moJily that made by the two commissioners, the only evidence is the report itself. Now, upon mspection of the report, it is plain that more claims than one aie included theiein, and more grants than one are recommended ; but the report does not specify or distinguish the claims in detail. Grants to the amount of 5500 acres are recommended. Taking; the report as I find it, and combining with it the admitted fact that the grant now impeached was issued in pursuance of it, I infer that this report did not differ from that of the two commissioners in any other point than this, namely, thut Commissioner Fitzgerald recommended a grant of 4000 acres, in lieu of the 2560, recommended by the two commissioners. Now in this I see no ichearing or reversal of the former report. The commissioners, in calculating the number of acres to be recommended to ba granted, had pio« ceaded upon a rule which was then law, but was now no longer so. The restoration of the old rule had made it necessary to have those calculations reconsidered and revised, befoie grants coirM be issued. The single commissioner did nothing more than review a calculation, the principle of which, in all the reports made undei- the disallowed ordinance, was inconsistent with the revived law. Ido not see that the substance and incuts of the Minimi report were nftected; or that

an\ tiling 'herein was unsettled, which had been settled in" conformity with the law us it now stood. It apiicars to me 'hat (go far at ;iny rntc as this claim is concerned) Mr. Commissionci Fit^gcrihl did not, in lnaKiii'' this import, oxciviso a*iy powers out such as were given to him by the word'; of the ordinance unilci which he acted. I omc- now to the second ground of demurrer, which it in thus; "that the said Comilii'sioncr, R. A. Fit^uciald, was not, nor was any single commissioner, authouscd to leport unon claims to land under the Land Claims Ordinance [Session ], No. 2] which he had not lie.ird and examined in manner prescribed iby the saM ontinance." Tin's is an objection to the person ot the commissioner. It is contended (if I rightly apprehend the argument of the learned Attorney Gcncial) that no re,u>it could lawfully be made upon any claim except by the very commissioners who heard and examined the claim. The objection is grounded on the words of the Land Claims Oulinance, v\hieh ennc/s (section 3) that it shall be Jawful for flic Governor of the colony of New Zealand to appoint Commissioners, who shall have full power anil authority to hear, examine, and report on all claims to grants of land, &c. ; and in the Gth section, Hint " the said commissioners shall in every case inquire into and set forth, so far as it shall he possible to ascertain the same, the piice or valuable consideration, with the sterling value thereof, paid for the lands claimed — and shall also inquire 4hro and set forth the number of acres which such payment would be equivalent to, according to (he rates fixed in a schedule annexed to this ordinance, And if the said commisioners, or any of them, shall be satisfied that the person or person claiming such lands or any part thereof is or arc entitled according to the declaration ofller Gracious Majesty as aforsaid to hold the said lands or any p.irt thereof they the said commissioner's shall report the same and the grounds thereof to the said governor accordingly." Now it may be fairly conceded that it was the intention of the legislature that, as a general rule, the recommending commissioni'i's should be the hearing and examining commissioner-?. Such wou'd^be the natural and reasonable course But it is argued that the rule is absolute and imperative in all cases. Now, in the first place, no rule of law can be imperative, unless it be at the same time practicable. No act can be pronounced illegal on the ground of noncompliancc with a condition required by law, unless it appear that compliance wns possible. It could never be held that, if the commissioners died aftrr investigating the claim butbefoieany report had been made, no report at all should be made in such a case, Therefore, if this construction of the woids were clearly thettue one, it would be nccessaiy to show that it was practicable to icfer this particular claim back again to the commissioners who originally heard it for their revised and final repoit thereon. Dut on this record, there is no averment to that effect. For any thing which appears in this record, the original commissioners may have ceased to hold their office, may have become incompetent to perform the duties of it, or may have dird in the interval. But, ii such a restriction was ever intended, it was abandoned and repealed by the ordinance under which the single commissioner acted, winch j s.iys " all the powcis of hearing examining and reporting on claims to land, and all other the powers and authorities civen by the said recited oidinance to any i two commissioners may be exercised as fully and effectually by any single commissioner, ss the same have hitherto been exercised by two commissioners." Whatever power the word "said" may have to specify and to restrict, the word " any" seems to have equal power to gi ncrali«e and to extend. I consider therefore that this ground < f demurrer also is insufficient. I niocccd to the thhd and last ground " that it h not alleged in the said plea, that the said Commissioner, Robert A. htzGerald, was specially authorised by the governor in Council to iecommend a gi cater quantity than 2560 acres of land to be granted to the said defendant. Now it is admitted upon the record that " the lecomrrcndation of Mr. Commissioner Fi'zGerald in the pliadinp; motioned was not preceded by or made in pursuance of any sj eriai authouly given for that purpose by the Governor in Council as required by the Lund Chums Ordinance. The tetms ot the ordinance clearly lequire tha 1 ", before the commissioner shall iecommend an extended grant, he shall be n possession of a specnl auihonty enabling him thereto. The woida arc, " Provided that no grant of hind shall be recommended by the said commissoncrs, wh'ch shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto by the governor with the i-dvice ol the executive council." In tliib case, the commissioner, at the time of making the recommendation, had not leceived any such authority, lie assumed to cxoicua a power which the law had witholden from him- The recommendation then waa illegally made and the report was, so far at any rate, vitiated. It remains to consider the effect of this admitted illegality m the commissioner's report upon the grant subsequently made to the defendant in purs lance of that report. ; But hrßt, having noticed all the objections made to the commissioners rcporr, I pass to the reasons urged by the learned Attomey.Gencral for setting j aside the grant itself. The first is: "because the said grant was made contrary to the said commissioners repoit (meaning the report of Me^rs. Godfrey and ■Richmond) so made and confirmed as afoicsairt." This o! jeciion involves two ai»surnpliono : one of law, and the other of fact. The first is, that a Ciown Grant to a lan 1-cKucaunt made contrary to the Commissioners' Report upon the claim, the rcpoit having been confnmed, is necessarily void. The second assumption u> Unit, at the time of malting the Crown grant to the defendant, the Commissioner.]' Repoit was a Itcport " made and confnmed." The question of law resolves itself into the one mam question, lo which I shall address mytelf presently, namely, how far a Crown grunt is connected with or dependent upon, the Comjiiissioncrb' Report preceding H? But could the Report of Commissioners Godfrey and Richmond be regarded as being, in lact, a Keport " made arid confirmed," at any time after the disallowance of the oidinance upon which it was based ? Ceitainly it was once confirmed, but the disallowance of the ordinance necessarily (as it appears to me,) opened the case again, and did away with the confirmation. The claimants were remitted to thelaiger bounty and more hbeial scale of the fust ordinance and it was needful that every report which had been made upon the fooling of the 2nd ordinance, should be reconsidered and icviscd. The report had now lost its character of finality. It appears to me that no grant could in any wise be void for contrariety to a Keport ■which was based upon a principle that was itself in contrariety to the revived law. The other reason for annulling the grant is stated thus: *• Because no greater quantity than 2,5G0 acres of land could or can be yranted to any claimant under the provisions of the said Land Claims" Ordinance, except upon the reconi* aicudation ot the commissions s who heard and cxa mined the claim in manner prescribed by the said Ordinance, being specially authorized thereto by the Gcnernor, with the advice of the Executive Council." This leason comprises two distinct objections : the toryner derived fiom the fact that the icport in pursuance of which the grant was toned, was not made by theconi3mie°ioncis who originally examined the claim, the ktter from, the want of. le&ai authority iv the cummigßio-ner

who made that report. As to flic former, I have already indicated my opinion in the remarks whirh I have made upon the same objection when applied to the repoit itself. If i'ic rcpoit could not \vi pronounced illegal merely on this ground of a divei-ity in <lie pe#ons of the commission! s, still less could the Ctowa grant which followed it The latter objection icmnins. 'Hip commissioner no doubt exceeded his powers. The Land Claims' Oidinanrc imposed a cindKlon picccdcnt to the n commendation of nn extended t,rant, and that cond tion had not been fulfi.led when the recommendalion in this case v. as made. Tlte rccormncnd'ition tlr» b?infj illegal* ii the grant, nude in pursuance of that rorommeiuLtion, illegal also? Thus the one main question lecurs, upon which the Court has to dccidci and to which 1 now proceed Our first business h to look to the words of the Ordinance itself. Now there is ceitainly no cxpicss emcto ment in the ordinance that a grant such ps this shall be void by reason of its bcinq preceded ormade in pursuance I of an irregular or illegal recommendation. Of course I do not mean that express words of avoidance are necessary for the purpose of avoiding a grant, in any casp where j tho grant is plainly contraty to the meaning 'md intent 'of the law. For example, if the grant had laid down a positive and absolute limit to the number of acres to he granted in any ease wuhout saying moic, there would be no hiidship in holding n giant of a grcaW number of nc-ros void. For the grantee would be bound to take notice of the law, and a comparison of the terms of the law with tnc terms of the grant would h'ing home to him at once a knowledge of the illegality. But it is not contended that this grant purpoiis to convey more than under this oidmancc the grantee might lawfully receive. We have nothing lime to do with any question of mtiinsic illegality. There is in the whole ordinance no enactment avoiding any titles, except the general cnaciracnt (in session 2) that "all titles loland which are held or claimed by virtue of purchases from tho chiefs or other individuals of the aboriginal tiibcs, and which arc not, or may not hereafter be allowed by lvi Majesty, her heirs and successors, are and the sama shall be absolutely null and void ;" words which naturally suggest the inference that the legislature intended all titles so connived to stand good, unlesinderd the grants were in themselves contrary to lnw. 7he words relied on as having the effect of invalidating this grant refer (it will be seen) to the recommendations to be made by the commissioners, pntl not at oil to grants to be made by the Governor. The words are "Piovidcd that no grants if land nliall be rccommcadcd by the sa><( commissioner i, which shall exceed in extent 23G9 anes, viless specially authorised thereto by the Governor, with the advice of the executive council." Here is a direction given by the legislature to the commissioners, but none at all given to the Governor, nor is theie one word lcspcctingthe i making of a grant or the effect of a prant when made. Is this court, then, to imply an enactment not expiessly made ? Certainly the court is bound to do so, if thp intention of the legislature ha otherwise plain and beyond doubt. But it behoves the court to con- i sidcr well bclore it says what the legislating has not said. If an implication of law is to oust a man of his freehoU, it behoves that implication to be clear and inevitable. It is laid down amongst the rules to be observed in the construction of staUtea, that "a statute shall never have an equitable construction in ; order to overthrow an estate." [Bac. Ab. Statute I. 4GI ] And this, rule flows from the vciy nature of the lew, which has foi one of its man objects to give quiet to titles and permanence to j property. Mo3t ot all must it be the duly of the com t j t<> reject such an cqvUablc or extended consh notion, where the estate to be overthrown is founded upon a puicl)»3c for valuable considcialion. The Defuiunnt is a" initial to be a purchaser in good j faith and for valuable corsi teralio i. U is on this giound alone that he receives a giant Tne Crown Ins granted nothing to him but what he had prcvious'y acqu'ued for the Crown. It was by the act, and at the cost of the grantee, that the vc.y power of granting accrued to the Crown. It is laid down in G Bac. Ab., PicroyattiCy F. 516, " Tint when the king's g.ant', are upon a valuable consideration, they shell I>l> construed favourably /or the nalenlee. for the honour of the king." This maum is not, in its terms, precisely applicable to the present case : but it is on instance and illustration of a general and settled principle of law. Cut. over and above the geneul piinciple just stated, It "appears to me that there is enough in the ordinance itself to show that such an extended construction can have no place h"re ; and also that the distinction which I have adverted to, as appaicnt in the language of the ouhnance, between a recommendation by the commissioner and a grant by the Goveinor, is not a verbal distinction only, but a veiy substantial one. After a number of particu'ar reflations have ' been prescribed in the body of Hie (ilh section, for the guidance of the commissioners in framing their [ reports, the section concludes with the following words, "I'iovhicc l also that nothing heicin conta'ned t,hall be held to oblige the said governor to make and deliver any such grants as aforesaid, unless, his Excellency shall deem it pioper so to do." Theie is, lhcr\ so little necessary connection between a report from the commissioners ond a grant fiom the governor ut tlv ' lands recommended by the commissioners to be giantcd. that after due and full inquiry has been mr/: by the coniuiissioners, and alter a favourable repcil has been made, and that in the most exact cenformi' to the icgulations of the ordinance, yet it is, aluu all, left wholly in the disi-ietion of the governor, ' whether to issue a gia.it or not. The report however complete and legular, gives to the claimant in whose iavoui it is made no lejal light to a c,iant. This being so, — the claimant cleaving no legal benefit from tho report though made in most exact compliance ' with the loqairements of the Ordinance, can it be fairly held that a non-compliance with one of those re- ' quiicments shall operate not simply to his prejudice, j but to the defeating of his claim even after it has been j confirmed by a Crown giant ? I cannot think that the j Legislature intended to lay down a rule so gieatly wanting in mutuality, as between the Crown and the claimant, as that the connection between the leport and i the giant should bo broken ofY when it might operate in favoi of the claimant, and should subsist when it might operate against him. Ilithcito I have confined myself to these points ; fast, that crown giants aic not within the tvouls of the pioviso, or of any piohibitoiy enactment, in the Land Ctain.s Uidinancu; and,.2ndly, that this Comt cannot lawfully extend those words s^p as to include them. And those two considerations appear to me to constitute a complete answer to all the objections uiged against this gi ant. I wish however caielully to guai d myself against being understood to imply that ii Clown Giants had been within the wouls— if it had been expiessly piovided that no extended grant should be made without n special authouty h'om the Goveruoi and Executive Council — that tlieiefoie a >j-ian!, if it happened to be made without that special authority, would be void in the hands of the On the contiaiy (although j the question doc-> not ducetly ausc hcie) 1 conceive that, even then, it would be nccessaiy, in older to avoid the grant to shew that tho non-compliance with the io (jiiucmcnt of tho Oidinnnce was piocmcd by, oi at least knov.u to llie Guintcc. j

Fiom (lie notes collected by C.B. Comyns, of old cases in which the validity of crown grants came m question, it is plain that one chief test, by which it was derided whether error i, fals<! recitals or misdescriptions con lamed in n deed of f^rant were sufficient to avoid the deed, thlz :if they were such as to create .1 presumption that the King had been deceived by misrepresentation, or f<i!sc suggestion or concealment, on the part of the gi-nntec, tlien the deed was void : h\V otherwise, not— (Comyn'* Digpst, Grant. 6. 4—9.. and Hncon's Ab. Prcro»alivc—l<. 514.) And i" mP of the U\v modern enses in which (he «arne <]ucsli on _ " a<i aiisen, Tim'nl, Chicr Justice, in delivering 1h G ivi ud S" ment of the Couit, said—" We think the presc nt caC(J is to be governed by the piinciplc laid down in t' iecasc 7?p.r ct llrrr>na v. Kempe (1 Lord Raymond 40 ) y iat where the Kin* is not deceived in his consider 11 * 1011 ' nor otherwise to his prejudice, by .my fuif^cstion on the pill of the grantee, but the intent w^ t^ imss the interest expiessed in the grant, only <h" Kinc n^ been mistaken in the law, there he shall not be said to be deceived, to the avoidance of the grant." — [Glvililanpi v. Ea>l of Sandwich. — 4, Mann and Grantr, 1,029.) The same principle pervades the judgment of the Court of Common PlitH, in Alcock i>. Cool — sBingi3iG. H r. unneces c nry to trace this branch of the subject further. It suffices to observe, that on this recoid there is no averment that the defendant was party to, or cognizant of the illegality of the recommendation made by Mr. Commissioner FitzGemld. This remark applies equiilly to the other objections ursed against the grant. The same is to ba said of nearly all the remarks I have vrmteuinn the third obicction. In terms they areconfmed ( ithft, ns bcin^ the only one wh'ch appears to me of any weight, but, in substance, they extend equally fotheothers Loo 'inpf then at tlienholc case, 1 find on (he one hand '" •>! the Qiint is good in foim — that it purports to con"V to the defendant nothing but what the Governor in ; ,c name of the Crown, could lawfully convey to him— „ar it interferes not with any light of any subject of the 'rown — that there is no misrepresentation or miscon.u:ct of any kind imputed to the grantee ; on the othoi hand, I fin\l that, in a proceeding preliminary to tlic issuing of the giant, an act was illegally done by an afpnt, not of the grantee, but of the ci own — an act .lfTcctiner, not the gi'int itself, but a document distinct fiom the grant — and that the grantee is not alleged to have been connected in any way with tint act or even to have had any knowledge of it. Under these oircumand for the reasons ah endy stated, I am of opinion that this grant is good in law.

The Chief Justice then proceeded to read the judgment of Mr. Justice Chapman, as follows: Tin's is an action of srire far /ay ht ought far the purpose of trying the v ilidity of a deed of grant, marie by the Lite Governor, Captain Fitzllov, to the defendant, under the public seal of tbe colony, and bearing teste the 3Gth day of May 1844. The encumstances disclosed by the pleadings are these : Mr. Clarke was a claimant of a considerable paicel of hnd, as a puv* chaser from the aboriginal natives, before the establishmentof the Queen's autlioiily in these Islands. In due course, Mr. Clarke preferred his claim, which was referred 07 the then Governor, Captain [Jobson, to two commissioners under the provisions of the Land Claims' Ordinance (Session 1. No. '\) The oommiis oners reported in favour of a portion of Mr. Clarice's claim only, recommend nc; a grant of 2500 acres. This report was confirmed by Mr. Shortland, the officer administc'i'.ng the government at the time ; but notwithstanding such lepoit am! confirmation, a grant of 10TO acres was afterwards made to Mr. Clnrke by Captiin Fit/.llov. This grant tbo Attorney-General, i.i bis declaration, sty> is void on two erounds. 1st — because 'he grant itself u contraiy to the recommendation of the commissionns and ,2nd, the govci nor had no power to rnme than 2500 acres, except rfier a recommendation oftliecommi««opprs, specially ,I'Uhoiliedby the Governor, wiih the advice of the Executive Council. Mr. Clarkes pica is in substance : that aflci the making of the report by the commission ers. and before the issuing of the grant to him the defendant, his claim was lc'cncd, by* his Excellency the then Governor under tbe provisions of the Land C a ms amendment ordinance (Scss.iii. No. 3) to a single commissioner, who, on the 2n.l May, 1314, reporlpd, lecommenfling a grant of 5500 acres less certain exceptions. Tbe pica contains no averment that the recommendation was made in accordance with n special accordance w,th the governor. To this plea tbe Attorney-General demurs, assigning for causea of demurrer: lot, thnt the s,>id commissioner in tbe pica mentioned wis not authorised by the last recited Ordinance, to reverse a report already nude by two commissioners under the Land Claims' Ordinance (Session 1 No. 2.) 2ndly, that lie was not authou'spd to rrnort on rlaiois which he himself had not heard in tin rranncr prescribed by tbe said ordinance. Upo * the state of the pleadings tbe court iato consider i Ud whole record, not merely confirming itself to the noi l^ raised by the demurrer, and is to give judgment f or thcpn>iy, who upon tbe whole appears to be entitled to it [Bncon Abr : Pleas (A N 3.) Pelcrsd. Vol. 8. 12, and cases there collected.] The broad question for the court to deteimine'is this :— Hnd his Excellency Governor Pitzßoy le^al authority to execute a grant to a land cl.iimor.t under the ordinance (Session 1 No. 2), embracing -. quantity of land exceeding the amount recommended V the commissioners, as well as the ."mount prescribed by the ordinance. I confine myself to this simple point ; because, if the Govei nor bad such power, the second reference to the single commissioner was wholly unnecessary : and if the Governor had not such power, his wrongful act could not be cuted by Commissioner FitzGeiald'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." The learned Attorney General draws a distinction between "a grant made by tbe Crown itself" and " a grant made by the Go- I vernor in the name of the Crown:" which seems to me to be merely vctbal, and to I>b fraught with no legal consequences whatever ; and this I think will appear when we have ascertained thenatuie and extent of the power under which the Governor makes and executes giants of land. That portion of the Qieen's preio- ! gative winch relates to the making of grants of land, , is conferred upon the Governor by a clause of the j Charter of IS4O, under the Gieat Seal, and is couched in these words : — " And we do hereby give and grant to the Governor of our said colony of New Zpaland fnr the time being full power and authority in our name and on our behalf— but subject nevertheless to suoh provisions as may be in that respect contained in any instructions which may from time 10 time be addre«pd to him by us for tliat purpose— to make and execute in our name and on our behalf, under the public seal of Ihe said colony, grants of waste land to us^belonging within the same, to piivate persons, for their own us-c and benefit, or to any persons or bodies politic or coi - porate intrust foi the public uses of out subjects there lesident or any of them." It may seem that the Governor's legal power under this cluuse is lesirained and limited by the sentence relating to future insti actions. f am aware that some peraons'of learning and experience have adopted that view j but I conceive thnt

such an opinion involves a misapprehension ol the distinction between letters patent under the grear Son], an>J an instrument under the signet and sign manual. The lloyal Prerogative is of such a nature that af common law, no portion of it can be communicated or transferred except under the great Seal ; uor dons the 3 & A Vie. c. G2, under wh'ch the charter of 1840 was granted, break in upon th s nncient rule. Within the realm of England indeed, the prerogative is, for the most part, '■ incommunicable" (Uro. Abi. Patents) meaning of course in an evecutnry state; and it is a\\\f cv nccrsiitale that the power of delegation ti colonial Governors has thrown up. It is only by mittcr of iecord that the Queen can grant any fnnchise piivleg,* power, liomur, or dignity which slie bns au.'lionty to grant (Lane's case 2 Co. 16 b.) ; and it is even saM by Lord Coke (2 Inst. 18 b.) Hint the Qurcn being a body politic, can only command l>y nvitter of Mecoi A. It is, clear therefore that an Instrument under (he siftnet and sign manu.il is insufficient to create powers affecting; the prerogative. Royal instmotioiiq aifi undoubtedly morally bimlnj on Governors, a^ nn expression of the Royal Will ; to some extent they .nay also cieatc legil responsibility ; but an act of a Governor contraiy to such instructions is not absolutely void as regards the Queen's subjects, and 'soniy voidable where the Crown retains I lie power of di-al!o\v>i;ire. The true nature of ro\.il instruchons is that of pnvate directions to the Governors of colonies as to li, manner in which they ahull use and excicise the powers created by the moio solemn an>! binding instrument under the f>i eat seal. As Giich, they aie ent.t'ed to the highest lespcctand obedience; but to a ce.tiin extent they must be decmrd to be addressed to the discielion of Governors, and not as intended to takeaway any portion of ihe powcro once given under the grctf seal. I believe lam con ret in saying that in-« truction3 have not been rccoided in any colony : the.icharacter ns a private instrument be' ween the Cronn and the Governor being carpfully kept in view, tha Crown ret lining in its own hands flic sole rcrr\d\ r h tlie rare case of infraction. As such an instrument cannot create, so it cannot abridge or revoke powers once validly created by commission or charter under tha groat seal. The modifying or revoking instalment should be of at 1 -ast ns high and solemn a n,>turp ni the crefttin.» instrument In support of this view, I venture to cite the opinion of one of the ablest colonhi constitutional lawyeis among those by whom such subjects have been treated — the late Mr. Francis Maseres, the last of the cursitor Barons of th° Evchequer* and Attorney Gencial in Cainada after the conquest~(about 17G8-9) This opinion, although not a judicial decision, and therefore not of bin ling force, is neveitheless entitled to great reaped, as well on account of the writer's colonial experience, as fiom the many years he afterwards devoted to the invest-, gation and elucidation of such subjects. After having healed, at great length, of clauses in the Governo \ commissions under the Great Seal, similar to that in the cited passage of the Chafer of 1840 refening to royal instructions, he concludes in these words :— "Thus if the King in bis Commission under the great seal, gives the Governor a general power to grant any lands in the province upon the usual condition?, and in his private instructions under his signet and sign manual, diiect him to forbear making grants of sucli and such particular tracts of land which his M.ije-ity chooses to reserve to himself, and the Governor notwithstHiding such instructions makes a grant in tho said exempted tracts, such a grant is valid by virtue of the g-neral power of granting contained in llie commission uudcr the great seal, notwithstanding the evccption of those particular tracti of hnd comnined in the private instructions" (Canadian Freeholder Vol 2, 232) The view here taken of the superior binding force of the instrument under the Great Seal (whether coramiadon, or charter, or both) is strcngthnneil by the clause usually inserted in such instruments, but nevsr to bG found in royal instructions, to this effect, " And we do hereby require and command all ofiicers, civil and military and all otiier the inhabitants of our said colony of New Zealand to bs obedient, aiding, and insisting to you. the said A. 8., in the execution of this our commission, and of the powers and authorities herein contained." (Parl. Papers, May, IS II, p. 33.) Coinm ssions and charters hnve 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 time 3 that Uoynl Instiuctions have been permitted to meet the public eye at all. Moreover, the Act of 9 and 10 Vic, c. 103 'to make further provision for the government of the New Zealand Islands,' by enabling her Mnjesty to execute the powers contained in the act, and delegate the same to the Governor, not by letteis patent, but by royal instiuetions under the signet and sign manual, is pregnant with the admission that such an enabling d mse was necessary, that the power it conveys did not exist under the 3 and 4 Vic, G2, or at common law, and that it could not be exercised without an Act of Parliament. I think, then, that although a Governor be mot ally bound by Royal Instructions, yet bis legal power under the Charter of 1810 was saved whole. The proper legal view to take of his authority under the clause alieady cited is, that he was thereby endowed with so much of the royal prerogative as relates to the making and executing of grants of waste land within the colony of New Zealand, just as by another clause he was fully clothed with the preiogative of mercy within the same territorial limits. The deed of grant runs in the Queen's name. Within the colony it has the same force and effect as a grant under the Gn at Seal has in England. A Crown grant m "England is no doubt affee'ed by certain Statutes from which a colonial grant is free ; but, on the other hand, 11 Crown grant within the colony is affected by etrtain Statutes and Ordinances from which an EnglUh Crown grant is free. These, however, ronstilute a local law in nowite affecting the nature of the instrument, which is really and Uuly what it is commonly called, namely, a Cr wii giant ; concluding the Crown, at once, without fuilliei* conliimation by the Queen herself; and not subject to her Majesty's disallowance. Although it is not pretended that this case is nffected by any " instruction," I have nevertheless thought it necessary (on account of what has fallen from the learned Attorney Gdneiul, supported by other learned authority) to examine mil yie nature of the authority by which the Governor makes and executes giants of land. If the view I have taken be inrorrect in point oflaw — if we are not to treat Crown grants within the colony as proceeding from an exercise of tho Royal Preiogativs under Uio express words of the Cluilei, I know not in vrhdt light to view them ; nor do I Know of any eetta 11 rues of law to which re can resort in oidei lo direct us in construing and giving them efiVct. I assume it, therefore, js an indisputable principle, applicable to the colonial posiehbions ol the Crown, that m construing Crown giants under the colonial seal, the colonial con ts Hiv. bound to resoit to the law of England tLjrpl cable to grarUb of the Clown under the (.ire it heal, '* so far as the sime it applicable to the cucumttanres ot the colony." It may be laid down as a principle asserted in numerous cuscs, tint the Queen's preiogative s'lal! not be bound by a statute, except by express words naming Ihe Que?u (or Kipy). hi the Kmj v. the

Archbishop of Ainmgli (iep ned H JWou. V>). u was held lo be " clear that the Kin<; cannot be divested of any of his p -erojiativcs by gcnt'ial words in an Act of Paili.-men* ; but that there mi'sl be plan and esprrt': words for the put pom 1 . ; thouali nil his other rights be no more favorreJ m the law than ths rights of his subjects." The case of Magdalen college (11 Co. /6 b.) jjics further, and seems even ro protect rinlHs of the Crown, other than prerogative jigh's. But ceitalnly "ja the most minute c ses of the King's prerogative it cannot be taken away by general worJ-3 in an Act of Pt Luncnt.' 1 (Wicr citing the case of the College of Phy.ichns I Mod 14). An Oriiianiee of the Legislative Council of a colony, until disallowed by the Queen, has, within the colony, the Siirne force and effect as an Act of Parliament hath within theiejlm of England and \V..les, but it can hare no grcatei force Ilcnce, in o>-uer to deprive the Crown of any of thai poition of rhc pieror,ative which is wielded anJ exercised by the Governor by means of an Ordinance, such Ordinance mu-t rmploy vvords v?biph woulu b ; c Mifficien 1 " in nn Ac, ot I'jihament to bind the prerogative in England. That the wording of Acts o." Parliament winch have been held by the courts of l<i v to restrain oi limit the prerogative, is always procifo ai.o u lambi^uou*, tl'C cximphs I shall , ci'e will shew. The 1 Ana. (stot. I.) c- 7, enacts that i all and eveiy pr?nt * * w.iich sluill be granted by her Mnjcs'y. her heirs and Bucccisors ** * any person * * shall be utterly void and of no effect * * unless suc'i grunt, &c, be in»de for «ome tc-m not exceeding one end tl nty yean, or three livec." The opcrativo words of tbc Australian Land Sales' Act arc equally clear and express. " The waste lauus of the Crown in the Austral'jn colonies slrll r.f>t, save fs hereiniifter is f xceptcd, be conveyed or rlienated by her Majesty, or by any person or ; ersons act ng, on the behaU or under the authority of her M.ij^fv, unles, such conveyance or alienation )>a bv way ol bale." I! the fr<uneis of the Land Claims' '/rdm.mce 'it 'tid"d to restrain tl'e exercS3 of .nc pi-prjgativy by 'Le Govetnor, I am of opinion Hjc/ liiive ii"t ep'.plojedv/oids legally si flicii'nt j for that p'U'po-c. By Shut (»'' "anr >, the Governor is ar'ViifcCii to Tier cLub to comuiissioheia appoiuled under ilie autl.oi ">t7 ot the our'nance. The eomraisBioncrs are re'jtraini'd from lecommendiiig grants in *e7cral cbr's, and the restraining words which it is contended bear on this cose ure the^e : " that no grant shall be recommended by the said commissioners which stall exceed i'l extent 2jGO acres, unless specially aurhoii'-ed ihcicto by the Governor, with the advire of the Executive Council." In tins ordinance all words which could be construed in restraint of the prerogative »re avoided, as it seems, with studious care ; and afcer this strict abstinence from restraining words, assurance is repdered even more sure, or rather moie patent, by a clause expressly saving the Prerogative. The object of the ordinance seems to have been, to secure to the Crown full information as to all the circumstances of each claim, nnd to Igave it to the Governor to deal with each, accoidmo; fo the spirit of the ordinance, and according to har Majesty's instructions, in full faith that he would not lightly depart from either. The chain of piinciplen, then, by which, as it seems to me, this case mu c t be governed, consists of these: — 1. The chatter of 1810 places m the hands of tbe Governor (among other thiugs) so much of the Koyal I'reiogative as relives to the milking of grants of waste land 2. Th".t prerogative can only be taken away or restrained within the colony, by the express .■words of an ordinance (or statute). 3. The Land Ciaimo' Oidmancc not only contuins no such express words, resiraining the exerci'-e of the prerogative, so vested in the Governor, but contuinß a clause expressly • saving the prerogative. 4. Hence Governor Fitzßoy. even if he departed from the spWt of the oulinance in making ft grant of more than 23G') acres, could (in the absence of any fake suggestion by tbc grautec himself) legal/!/ make such a ft rant. In conclusion: Although, speaking technically, 1 think the defendant's plea bad on (he third grornd of demurrer at leaer, J nm of opinion that he ought, jh\ jrtheless, 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.