SUPREME COURT—AUCKLAND. Saturday, June 24,1848. (Concluded from No. 314) [From the New Zealander, June 28.]

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 321, 26 August 1848, Page 3

SUPREME COURT— AUCKLAND. Saturday, June 24, 1848. (Concluded from No. 314 ) [From the New Zealander, June 28.]

THE QUEEN Y. OEO. 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 Grant made by the late Governor, Captain Fitzroy, to the defendant, under the Public Seal of the Colony and bearing, teste the 16th day of May, 1844. The circumstances disclosed by the pleadings are these : Mr. Clarke was a claimant of a considerable parcel of land, as a purchaser from the aboriginal natives, before the establishment of the Queen's authority in these islands. In due course, Mr. Clarke preferred his claim, which was referred by the then Governor, Captain Hobson, to two Commissioners under the provisions of the Land Claims Ordinance (Session 1, No. 2.) The Commissioners reported in favour of a portion of Mr. Clarkes claim only, recommending a Grant of 2500 acres. This report was confirmed by Mr. Shortland, the officer administering the Government at the time ; but notwithstanding such report and confirmation, a Grant of 4000 acres was afterwards made to Mr. Clarke by Captain Fitzroy. This Grant the Attorney- General, in his .declaration, says is void on two groundss-r-Ist, Because the Grant itself is cohtnfay to i the recommendation of the Commissioners': and 2ndly, The Governor had no power to grant more than 2500 acres, except after a recommendation of the Commissioners, specially authorised by the Governor with the advice of the' Executive Council, "^Mr. Clarkes plea is in substance, , that after/the making of the report .by the Commissioners, and before the issuing of the Grant to him the defendant, his claim was referred, by his Excellency the then Governor, . imder the provisions of the Land Claims Araend.ment Ordinance (Session Hi., 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 authority from the Governor. To this plea the Attorney- General demurs, assigning for causes of demurrer ;—lst,; — 1st, That the said Commissioner in the plea mentioned was not authorised by the last recited Ordinance to reverse a Report already made by two Commissioners under the Land Claims Ordinance (Session i., No. 2) : 2ndly. That he was not authorised to report on claims which he himself had not heard in the manner prescribed by the said Ordinance : 3dly, That it is not averred in the said plea, that the Commissioner was specially authorised by the Governor to recommend a Grant exceeding ,2560 acres, according to the terms of the Ordinance. -Upon, the state of the pleadings the Court is to consider the whole record, not merely confining itself to the point raised by the demurrer, and is to give judgment for the party, who upon the whole^ appears to be entitled to it (Bacon Abr. Pleas (A. N. 3.) Petersd. Vol. 8. 12, and cases there collected.) The broad question for the Court to^determine is this : — Had his Excellency Governor Fitzroy legal authority to • execute a Grant to a Land Claimant, under the Ordinance (Session i., No. 2), embracing a quantity of land exceeding the amount recommended by the Commissioners, as well as the amount prescribed , by the Ordinance. I confine myself to this simple point ; because, if the Governor had 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 cured by ComraissionerFitzgerald'srecommendation,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 Coun--cii. to make ; such recommendation." The learned Attorney- General draws a distinction between "«, Grant made by the Crown itself and " a Grant made by the Governor

in the name of the Crown :" which seems to me to be merely verbal, and to be fraught with no legal consequences whatever ; and this I think will appear when we have ascertained the nature and extent of the power under which the Governor makes and executes Grants of land. That portion of the Queen's prerogative which relates to the making of Grants of land, is conferred upon the Governor by a clause of the Charter of 1840, under the Great Seal, and is couched in these 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 may be in that respect contained in any instructions which may from time to time be addressed to him by us for that purpose — to" make and execute in our name and on our behalf, under the Public Seal of the said Colony, Grants of waste land to us belonging within the same, to private persons for their own use and benefit, or to any persons ot bodies politic or corporate in 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. I am aware that some persons of learning and experience hare adopted that view ; but I conceive that such an opinion involves a mis- apprehension of the distinction between Letters 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 and 4 Vie. c. 62, under which the Charter of 1840 was granted, break in upon this ancient rule. 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 «an grant any franchise privilege, power, ■honour or dignity which She has authority to grant (Lane's Case, 2 Co. 16 b.), and it is even said 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 legai responsibility ; but an act of a: Governor contrary to such instruction, is not absolutely void as regards the Queen's -subjects, and is only voidable where the Crown retains the power of disallowance. 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. As 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 instructions 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 an instrument cannot create, so it cannot abridge or revoke powers once validly created by Commission or Charter un-der-the Great fecal. The modifying or re-, yoking instrument should be of at least as high and solemn a nature as the creating instrument. In support of this view I venture to cite the opinion •of one of the ablest Colonial constitutional lawyers among those by whom such subjects have been treated — the late Mr. Francis Maseres, the last of the Cursitor Barons of the' Exchequer, and Attorney-General in Canada after the conquest (about 1768-9). This opinion although not a judicial decision, and therefore not of 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, at great length, of clauses in the Governor's Commissions under the Great Seal, similar to th&t'inthe cited passage of the Charter of 1840, referring to Royal Instructions, he concludes in these words : — " Thus, if the King in his Commission under the Great Seal, giv.es the Governor a general power to grant any lands in the Province upon the usual conditions 5 ",* and in his private instructions under his Signet and Sign Manual; directs him to forbear making Grants of £ sueh r and such particular tracts of land

which his Majesty chooses to reserve to himself, and the Governor notwithstanding such instructions makes a Grant in the said excepted tracts, such a Grant is valid by virtue of the general power of granting contained in the Commission under the Great Seal, notwithstanding the exception of those particular tracts of land contained in the pri • vale instructions" (Canadian Freeholder, Vol. 2, 232). The view here taken of the superior binding force of the instrument under the Great Seal, (whether Commission, or Charter, or both) is strengthened by- the clause usually inserted in such instrument, but never to be found in Royal Instructions, to this effect, " And we do hereby require and command all officers, civil and military, and all other the inhabitants of our said Colony of New Zealand to be obedient, aiding and assisting to you, the said A. B. in the execution of this our Commission, and of the powers and authorities herein contained." (Parl. Papers, May 1841, p. 33.) Commissions 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 10 Vie. 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 Manual, 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 Vie. 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 bound by Royal Instructions, yet his legal power under the Charter of 1840 was saved whole. The proper legal view to take of his authority under the clause already cited is, that he was thereby endowed with so much of the Roj'al 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 prerogative 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 Great Seal has in England. A Crown Grant in England is no doubt affected by certain statutes, from which a Colonial Grant is free ; but, on the other hand, a Crown Grant within the Colony is affected by certain Statutes and Ordinances from which an English Crown Grant 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, namely; a Crown Grant ; concluding the Crown at once without further confirmation by the Queen herself; and not subject to her Majesty's disallowance. Although it is not pretended that this case is affected by any " instruction," I have nevertheless thought it necessary (on account of what has fallen from the learned Attorney- General 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 law — If we are not to treat Crown Grants within the Colony as proceeding from an 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 certain rules of law to which we can resort 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 construing 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 bound by a Statute except by express words naming the Queen (or King). In the King v. The Archbishop 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; though all his other rights be no more favoured in the law than the rights of his subjects." The case of Magdalen College (11. Co. 76 b.) goes further and seems even to protect rights of the Crown other than prerogative rights. But-cer-tainly ". in the most minute cases of the ! King's prerogative, it cannot be taken away 'by general words in an Act of Parliament." (Viner citing the case of the College of

Physicians, 1 Mod. 13). An Ordiriance of the Legislative Council of > a Colony, until disallowed by the Queen, has within the Colony the same force ■ and effect as an Act of Parliament hath within the realm of England and Wales, but it can have no greater 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 Ordinance roust employ 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 show. The 1 Ann, (Stat. 1.) c. 7, enacts " that all and- every Grant * * which shall be granted by her • Majesty, her heirs and successors * * to any person * * shall be utterly void and of no effect * * unless such- Grant, &c, be made for some term not exceeding one and thirty years, or three lives." The operative words of the Australian Land Sales Act are equally clear and express. "The waste lands of the Crown in the Australian Colonies shall not (save as hereinafter is excepted) be conveyed or alienated by her Maje&ty 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 opinion 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 Commissioners are restrained from recommending Grants in several cases, and the restraining words, which it is contended bear on this case, are these : " that no Grant shall be 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 be construed in restraint of the prerogative are avoided as it seems with studious care; and after this strict abstinence from restraining words, assurance is rendered even more sure or rather more 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 and to leave it to the Governor to deal with each according to the spirit of the Ordinance and according to her Majesty's Instructions, in full faith that he would not lightly depart from either. The chain of principles then by which, as it seems to me, this case must be governed, consists of these: — 1. The Charter of 1840 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). 3. 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 expressly saving the prerogative. 4. Hence Governor Fitzroy, 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 Gjrant. Judgment for defendant.