LAND CLAIMS.

Daily Southern Cross, Volume 3, Issue 143, 18 March 1848, Page 2

LAND CLAIMS.

Sciue Facias — Queen v. Geo. Clarke. We briefly noticed, last week, the proceedings in this case before the Supremo Court, and thought wo were done with the subject, as nothing more seemed likely to be gained by further discussion of it here. The matter must bo .settled by the home government, who, we feel very sure, will look upon the excitement produced by the dishonorable attempt to repudiate the acts of Her Majesty's former Representative here, with the utmost displeasure ; and will yet visit with corresponding condemnation, the author of these proceedings, who, in an evil hour for his own fame and the prosperity of the Colony, made unfounded statements to excite the hostility of the home government against the claimants ; and at the same time had such perverted ideas on a subject of policy as to represent that tho Colony was to bo benefitted by seizing upon lauds already granted to individuals. — Careless of the effect to bo thereby produced on the natives — heedless of the injury which such lengthened agitation must necessarily cause to the progress of tho settlement — regardless at the same time of individual loss and hardship which must thereby be occasioned. As we have said, however, it was not our intention at present to have recurr%d to the subject, had not our attention been recalled to it by reading over the lengthened report (in the Neio-Zcalander) of the arguments of the Attorney-General in moving the Court to set aside the grant we havo referred to, — and seeing the pains which has been taken to elaborate the argument, we conclude it is to be taken as the neplvs ultra of the government side of the question. The learned gentleman lias doubtless put forth all his strength, ar,d brought all his store of legal arguments, to silence for over tho voice of dissent. But we still remain unconvinced — indeed we even think tho caso of the Land Claimants stronger than ever — and that the government in tho present instance have merely exposed their own weakness. Wo have hitherto relied more on the justice of tho caso of tho claimants than on their legal rights, as we feared that, on this slippery ground they could not hold their position. But tho Attorney- General's arguments have satisfied us of our mistake, and we now think their legal claims as strong as the justice of their cause, and are vain enough to think that we havo satisfactorily answered all the points and arguments brought forward by the •government. To do the AttorneyGeneral full justice, we have reprinted his speech entire, as it appeared in the columns of our contemporary, appending thereto our answers in the shape of Notes, in order that tho public may judge for themselves. We havo on a former occasion noticed the unseemly and even degrading position in which the Attorney-General is placed by being compelled to argue these cases. He has already sat in judgment on them in tho Executive Council — has recommended the very grant which he is nowcalled upon to exert his ingenuity to overthrow. We tell him candidly, therefore, that lie is lowering his own dignity and reputation by such an exhibition, and tho government insult both him and the public in putting him forward in such a cause. If the government have dirty work of this description to bo performed, let them employ some other legal gentleman to undertake it, who can do so with a, clear conscience. But no man can decide a case as a judge, and afterwards come forward and argue his own folly, or want of principle, by denying his former facts and re-

pudiating his former opinions ; or, if he does, ifc is at the sacrifice of his fair fame and reputation, and we maintain that tho public ought not to be insulted by sucli an iiuscemiug exhibition. We desire to sec those placed in authority over us respected; but they must act so as to deserve it. SUPREME COURT. Scire facias to set aside Croicn Grant. The Attorney-General, in support of the Demurrer, began by observing thut the object of the present proceedings was to try the legality of a certain Grant made by Governor Fitzßoy, in the name of the Crown, purporting to convey 4000 acres of land to the Defendant, Geo. Clarke, a claimant of land under the land claims ordinance, session 1, N0. 2. The question at issve being entirely a question of law, he i would confine himself us strictly as possible to the j point before the court. The grant in question, he would, in the first place observe, was not actually a grant from the crown, but a grant made in the name of the crown, by the governor of the colony for the J time being — an important distinction, but frequently lost sight of. (Note }.) The governor of a colony, it would be admitted, had no power ex-oificio to convey the lands of the crown to a subject : he commonly executed conveyance of crown lands, it wa< true: but always by an authority expressly delegated to him either by the crown, or by act of parliament. At the date of the grant in question, (16th May, 1814). he, the Attorney-General, contended that the Governor of New Zealand could only execute rated grants of crown land, either under the authority, and pursuant to the provisions of the Imperial Land Sales' act, 5 &6 Viet. 3s, or under the authority of the local Land Claims' ordinance, Session 1, No. 2. The grant before the court was cleaily not made under the authority of the former, but purported to be made under the provisions of the Land Claims' ordinance. — Was it then made in conformity with the provisions of that ordinance ? It was admitted by the defendant, on the record, that the defendant's J claim to land was duly refeired for investigation, pursuant to the provisions of the ordinance, to two commissioners (Messrs. Godfrey & Richmond), that these two commissioners duly heard and examined j the claim — and that on the3'Jth of May, 1843, they reported upon the same, for the information and guidance of the officer for the time being adminis- | tering the government of the colony — that in their j report the comraisbioners recommended a giant of , 2560 acres of land, only, to be made to the de- j fendant— that their report rec .mmending a grant of I 2560 acres, was confirmed by the acting governor, for whose information and guidance the report was j made— and that the confirrnaion of the said report was published in the Govei nment Gazette of the 21st I June, 1843. It was pleaded, however, by the defendant, that nearly a year afterwards, viz. early in j May, 1844, a succeeding governor, Robert Fitz- j Roy, Esq., referred this claim to a single commis- ! sioner, (Mr. FUzGerald,] who, under the authority as it was alleged of the Land Claims' Amendment ordinance, Session 3, No. 3, recommended that a grant of 5500 acres of land should be made to the defendant. This plea was demurred to on the part of the crown as heing insufficient in lav/. Ist. Because no single commissioner was authorised by the ordinance, Sess. 3, No. 3, to rehear any claim, or to reverse any report already duly made by two commi-sioners under the provisions of the Land Claims' ordinance, Sess. I, No. 2. 2nd. Because no commissioner could legally report upon any claim to land which he had not himself heard and examined in manner prescribed by that ordinance. And, 3rd, Because that in recommending a greater quantity than 2560 acres, viz. 5500 acres, the single commissioner was not authorised thereto by the Governor with the advice of the Executive Council. The point of the case then was this. Was a grant of land for upwards of 2560 acres valid, if made contrary to the report of two commissioners who had duly hpard and examiaed tha claims according to law, and resting upon ihe subsequent recommendation of a single commissioner, who had not heard and examined the claim, pursuant to the provisions of the Ordinance, and who had not been specially authorised by the Governor in Council to recommend a greater quantity than 25 C0 acres ? (Note 2.) The ground relied upon by the defendant was, that a Bingle Commissioner, under the Land Claims' Amendments ordinance, Sess. 3, No. 3, had recommended the extended grant. Now did that ordinance constitute a single commissioner, a Court of Appeal — or a Court ol Review, as to claims to land already heard and reported upon by two commissioners ? or did it give to a single commissioner a power of rehearing such claim ? Referring to that ordinance, it would be found that, after reciting that it is expedient that all the powers and authorities vested by the original Land Claims' ordinance in any two commissioners, should be vested in any single commissioner, it simply enacts, that "all the powers of hearing, examining and reporting on claims to land, and all other the powers and authorities given by the said recited ordinance to any two commissioners, may be exercised as fully and effectually by one single commissioner, as the same have heretofore been exercised by two commissioners." But not a word, it would be observed, about rehearing or reversing claims already heard by two commisisioneis. It might be convenient that the power of hearing such claims ah inilio should be given to a single commissioner instead of to two ; but would it huve been reasonable that one commissioner should have been invested with the power of reversing reports duly made by two commissioners ? Nay, could it be the intention of the original Ordinance that any claim after having been duly heard, examined, and reported upon, should be reopened and reheard by any number of commissioners ? For — was it not the obvious intention of the Land Claims' Ordinance ihat all claims to land should be disposed of and set at rest ? Was not the mode of proceeding with a view to that object, distinctly prescribed by the Ordinance ? Was it not reasonable that when this course of proceeding had been strictly followed to the end, that such proceeding should be final, and not open to a rehearing ? For if the proceedings prescribed by the Ordinance were held to be final at no stage whatever, we might see a claim going on for years as far from being settled as ever, Governor after Governor referring, and re- referring to all time. But if there was a stage at which these proceedings must be considered as brought to an end, as he (the Attorney-General contended there certainly must be, surely it must be after the cluim had been duly heard, examined, reported upon, and confirmed, and particularly when this confirmation bad, in the most authoritative manner, been communicated to

the public in the Government Gazette. Again, reverse the circumstances of the case. Suppose a c!ai:a to land to have been duly heard, examined, and reported upon by two commissioners : suppose these tivo commissioners to recommend a grant ol 200') acres ; suppose their recommendation to have been confirmed by the Governor for the time being — suppose that confirmation to have been proclaimed to the world by authority in the Government Gazette. Suppose that after the interval of a year a new Governor arrives ; suppose him to refer this claim, so already formally disposed of, to a new and single commissioner, who, instead of 2000 acres recommends that a grant of 200 acres only should be made to the claimant — is there, he (the AttorneyGeneral) would ask, a single individual to be found who would maintain that the second report set aside and ovtr-rode the first ? Until such a position was gravely maintained, he would offer no further argument to prove that in this case before the court, the recommendation of the single commissioner of 5500 acres did not render invalid that already made by two commissioners recommending 25G0 acres. But hs was further prepared to contend that no commissioner, nor indeed any number of commissioners, could make a valid report, under the Land Cairns' Ordinance on any claim which he had not himself heard and examined in the manner provided by that Ordinance. — The object ol that Ordinance was to respect purchases made on equitable terms from the native chiefs, and to allow giants of the land claimed to be made in a certain regulated proportion to the amount expended in the purchase. After reciting that it was expedient and necessary that "an inquiry be instituted into the mode in which such claims to land have been acquired — the circumstances under which such claims may be and are founded, and also to ascertain the extent and situation of the same," the Ordinance authorises the appointment of commissioners, and gives them "lull power and authority to hear, examine, and report on all claims to grants of land," and by the 4th section provides that the claims shall be referred to the commissioners, ''to the end that all such claims may be heard, examined and reported on for the information and guidance of the said Governor of New Zealand." And further, that " the said commissioners or any two cf them shall proceed to hear, examine, and report on such claims in manner thereinafter mentioned." And, as to the mode of proceeding, the 6th section, after directing that the commi^sioneiB shall ascertain the price paid — the time and manner of the payment — the circumstances under which tha payment was made — the number of acres to which the claimant would be entitled according to the scile annexed to the Ordinance, &c, lastly enacts that if the said commissioners, or any two of them, (surely the commissioners who heard the claim,) " shall be satisfied that the claimant is entitled to a grant," "they, the said commissioners,'" shall report the same to the Governor, and the grounds thereof, and the situation, boundaries and extent of land to be comprised in such grant. — Looking to the express terms of the Ordinance, or to its piobable intention, would any one maintain that one set of commissioners might hear and examine a claim, and that another set of commissioners, after the lapse of a year, (or seven years, for the principle was the same,) without examining and hearing, could , make a valid report upon it consistently with the piovisionsof the Land Claims' Ordinance? (Note 3.) But he, the Att. -General, was prepared to contest the validity of this Grant on grounds, if possible, still more conclusive. The Defendant it would be obseived, rested the validity of his Grant on the report of a Commissioner who had recommended a Grant of 5500 acres. Taking the Record as it then stood, it was admitted by the Defendant that the Commissioner was not authorised by the Governor with the advice of the Executive Council to recommend an extended grant. Now, what was the pro- | vision of the ordinance ? Why, the 6 s-ction after 1 providing as to the mode of the investigation and I the nature of the Report, concludes with this express proviso : " Piovided, however, that no Grant of land shall be recommended by the s^id Commis- ! sioners which shall exceed 2560 acres unless specially authorised thereto by the Governor with the advice of the Executive Council." If then, as it appeared, the recommendation of the Commissioner that 5,500 acres should be granted to the Claimant, was not authorised by the Governor in Council, it would seem to follow as of course that the recommendation was a nullity, and that the Grant before the Court purporting to rest upon that recommendation, could have no legal validity. Note 1. We do not see that this distinction, if it can be so called, has any bearing on tho point at issue. But if it has, we must plead our inability to appreciate it. On the contrary, wo affirm, that it is a complete fallacy. The crown grants, to all intents and purposes, are from the croicn, and not merely " in name of the croicn," as any one may prove to his satisfaction by reading over one of them. They begin, " Victoria by the grace of God, &c, &c." and proceed, "we do hereby give, grant, •fee, &c," and " in testimony whereof ive ; have caused this our grant to be scaled [with the seal of our territory" and tho Governor merely signs as a witness to the transaction." True, he may overstep his authority, but ho certainly pledges the good faith of the crown to maintain his acts. And Earl Grey expressly says in' reference to this very point (disp. 10 Feb. 1847,) " to refuse now to acknowledge tho claims of individuals founded upon acts done by him (Capt. Fitzßoy) while he was in the exercise of tho powers conferred upon him by her Majesty's commission, would be inexpedient, because it might very injuriously impair the authority of those who exercise tho powers of the crown in its distant colonial possessions, thus to establish the principle that their exceeding their authority, vitiated their acts, and that private individuals cannot saf.cly regulate their conduct upon the principle that whatever a Governor may do under his commission is to be assumed to be lawfully and properly done, until the contrary is declared by superior authority."

Note 2. Taking tho point at issue to be as hero stated, wo say that a single commissioner under tho amended Ordinance, Sess. 3, X o. 3, had all tho powers given to him that tho former two commissioners ])ossessed, and that the single commissioner could, therefore, legally do every act which the former two commissioners could have done. This, however, pre-supposes that the two commissioners could have revised their original award, if tho matter had been referred to them — and this question further depends upon whetlior tho original awards so made and confirmed could legally be opened up by any authority. — . Wo are aAvare that the Government have attempted to argue that such confirmed awards were final, and could not be opened up : but wo have certainly never hoard any reasonable grounds assigned for such opinion. Wo think they were not final, because in making these awards the commissioners merely gave an opinion or recommendation to the Government in accordance with the facts laid before them, and the first notice the claimant had of the matter, was a notice in the Gazette that a certain number of acres had been recommended, and had been confirmed. Upon this the claimant, in all fairness, was entitled to represent that ho ought to have a greater quantity, for reasons assigned by him, the more especially as the Ordinance did not preclude him under the circumstances. x\nd who was appointed tho Judge in such a case ? Was it not tho Governor — the Representative of Her Mojesty ? And if he thought proper to refer tho matter again to the commissioners, surely no one could prevent him. Upon this reasoning, therefore, we say the awards coidd bo, and in fact were opened up and revised. But wo will even suppose these reasons insufficient, and therefore rest upon other grounds. Under the original Land Claims' Ordinance, Sess. 1, No. 2, it is admitted the investigations took place, and by this Ordinance the whole matter must be regulated. It is well known to tho learned gentleman who conducted the present case for the crown, — though it did not suit his purpose to state — that another Ordinance was passed, Sess. 2, No. 14, repealing the Ordinance, Sess. 1, No. 2 ; and the investigations of the commissioners were therefore conducted under Sess. 2, No. 14, aud under this Ordinance tho commissioners reported on tho present case, and tho confirmation thereof was notified in the Gazette of June 21, 1843. Now, this Ordinance ivas disallotved by Her Majesty, and a notice to that effect was published in the Gazette of 6th September, 18-13, — consequently such report and confirmation were both illegal ; and, as a matter of necessity, tho same forms had to be gone over again under the Ordinance Sess. 1, No. 2, which on such disallowance again came into operation. But they never were again investigated by Godfrey and Richmond — nor could they bo after these gentlemen had loft their appointments — so that Mr. FifczGerald came legally into their position, and was fully authorised to act the same as they could have done. In arguing this point, perhaps it would not be too much to say that Mr. FitzGerald's award was more to bo depended on, and more in accordance with the law, than if the original two commissioners had made a revised report — as there is some reason to think that their proceedings were irregular from the beginning. — Captain Fitzßoy in his remarks to Earl Grey, — or Governor Grey's despatches, — says : "At my arrival in New Zealand, I discovered that the Commissioners of Land Claims had been acting in some respects at variance with the Ordinance under which alone they could have legal authority ; — that the first Governor had omitted to issue instructions to them, as he certainly intended, and reported to tho Secretary of State that he would — that they had continued to act partly according to Sir Geo. Gipps' Instructions, (though obsolete and of no legal validity after the separation of New Zealand from Now South Wales,) and partly in accordance with the local Ordinance, but not entirely in agreement with either ;— and that the officer who administered the government after Governor Hobson's decease (from September 1842 to December 1843) had not issued any crown grants for lo,nd claimed in respect of purchases made before the establishment of tho colony in 1840." — "Whether fresh commissions wore actually given to either of the Commissioners Godfrey or Richmond, as was absolutely necessary, I have doubt ; as I was informed that Governor Hobson's illness had interfered after he had prepared a despatch in which their names were included with those of other i officers who did receive commissions or warrants of appointment." It seems pretty clear, therefore, that the 'reports of Richmond and Godfrey were never quite free from suspicion, but — who-

ther well founded or not — it must bo obvious, from what avo have said, that we have satisfactorily proved our position that The award of Richmond & Godfrey, made under (<rdinancc Mess. 2, No. 14, not only could be re-opened, but of necessity must have been rc-oponcd — and that as Mr. FitzGerald was legally appointed with all their powers under Ordinance Session 3, No. 3, he had therefore full authority to act in the matter. Wo confidently put this forward as a full and complete Reply to the Ist ground upon which the Attorney-General rested the Demurrer in the present case. Note 3. Under tho second head of tho demurrer, viz., that no commissioner could legally report upon any claim to land which he had not himself heard and examined, the Attorney General gets very eloquent and lengthy, and ouy space being very limited, we cannot follow him at tho same pace, and must content ourselves by simply stating what we take to be the plain, rational, common sense, and honest meaning of the ordinance, viz., that evidence should be taken in each case, by commissioners legally appointed, and being so taken and committed to paper, that it does not signify one straw whether both actually heard the same, or not, and in point of fact, they did not both hear, though they both reported. In. short, this argument we take to be nothing better than a contemptible and unworthy pettifogging quibble, and that it is so, we shall convict Mr. Attorney General by his own actions at the present day. Under the recent fiery despatch of Earl Grey regarding the claimants, following the misrepresentations of Governor Grey, and by which the present arrangements arc mado with the 10s. and Id. an aero claimants Earl Grey orders every claimto bo referred " to the Attorney General for New Ulster, calling on him to report whether it is in exact conformity with tho proclamation under which it may be preferred." " It will further be necessary that before any crown grant be issued, the Attorney General should certify to you that the natives from whom the purchases may have been made were, according to native laws and customs, tho real and the solo owners of the land which they undertook to sell. It will be the business of parties claiming the benefit of such sales to produce such evidence as the Attorney General may consider to be required to enable him so to certify." But has tho Attorney General himself taken such evidence in any one case ? We believe he has not ; but has taken Major Matsons report of the evidence which he collected, a proceeding equally informal and objectionable, as that now argued against in the present case. It is even more so ; for Commissioners Godfrey and Richmond were legally authorised by an ordinance to take such evidence ; whereas Major Matson has not been so authorised to take evidence regarding the 10s. an acre purchasers. He acts altogether under a simple mandate of Governor Grey's, and if our next Governor should unhappily feel inclined to take advantago of wretched legal quibbles like the present, we should greatly fear the 10s. an acre claimants will stand but a poor chance. The third ground of the demurrer is i contested on what the Attorney General '• calls " grounds, if possible, still more conclusive," viz., that " in recommending a greater quantity than 2560 acres, viz., 5500, the single Commissioner was not authorised thereto by the Governor with the advice of the Executive Council." We think, in arguing this point, 'the Attorney General must have surely felt himself placed in a very painful, if not a humiliating position ; because, as he himself formed one of the said Executive Council, he necessarily included in his argument his own personal evidence and knowledge as a member of that Council, 1 along with his statements, as a mere advocate of the interests of the crown, with, the accustomed license of saying any thing,, right or wrong, true or false, to gain his purpose. However much we deprecate and despise this degrading morality, we have no more to say upon it just now, having touched upon this revolting feature of the case in another column, but we cannot so easily overlook the other point to which we have alluded. Docs the Attorney General really maintain that Mr. Clarkes case was not submitted to tho Executive Council before being laid before the Commissioner to recommend an extended award ? Jf he does so, we can only say that another member of that Council, Dr. Sinclair, the Colonial Secretary, contradicts him, as we find by his evidence in the Blue Book, wherein he says, " tho several cases (Mr. Clarkes being specially referred to as one of them) tvere first laid by Governor Fitz Roy before the Executive Council on application for that purpose by the claimants.

The consent of the Executive Council was a;ked for authority to be given to this resident Commissioner (Mr. Fitzgerald) to reexamine the cases, and should^ he think •proper, to recommend an extension^ of the former award. 17 This of course, is a flat and formal contradiction to the statement of the Attorney General, and the fact is the more worthy of notice and of condemnation, inasmuch as the denial of this is rested upon, as the most conclusive ground upon which to set aside Mr. Clarkes crown grant. We think we have given very satisfactory replies to the arguments used in support of the present case ; but we cannot conclude without expressing our strongest disapprobation of the contemptible reasonings and evasions, made use of on behalf of the crown, to repudiate one of its acts made, in good faith, by the representative of her Majesty, to one of her faithful and loyal subjects here ; and still worse, to find the case mainly rested upon a statement of a member of the Executive Council, when that statement is flatly contradicted by another, and equally credible member of the same council. This unfortunate government are tearing themselves to pieces, and rendering themselves contemptible in the eyes of the people. How can the colony be expected to progress, -when we find the managers of it thus contradicting each other. One Governor pulling his predecessor's acts to pieces, and employing the artifices of the law, to enable the crown to repudiate its acts, and oppress the people, " paying them out with laiv, and withholding justice— giving them stones for bread, and keeping them in idleness awhile.