G.—3

8

declare the Act unworkable, and close our doors. If Mr. Eees had carried our judgment of the 17th April, on the question of jurisdiction, to the Supreme Court, as Mr. Day originally proposed to do, the decision of that Court would either have stopped our proceedings or else cleared our path; for with the sanction of the highest Court we should no longer feel hesitation in compelling the words of the Act to fit purchases violating the statute of 1873 as well as other purchases. But Mr. Eees's clients have altered their tactics. Instead of taking the question of our jurisdiction to deal with purchases illegal under the Act of 1873 before the Supreme Court, they force from us our decision upon the delicate points that arise upon Mr. Tiffen's deeds and various purchases. The Supreme Court Judges, whose daily business it is to deal with such questions, are able to devote to the consideration of them the requisite time and thought. The Judges of the Native Land Court, to whose daily business this class of inquiry is entirely foreign (and who have this validation work thrust upon them in the midst of their usual work), have neither the leisure nor the facilities for considering abstruse questions and mastering legal authorities, as they must do if they are to give correct decisions under this Act. In this very judgment we shall have to deal with abstruse questions of English real property law—a law ruled by rigid precedent, the very antithesis of the " give and take " principle on which the Native Land Court acts in its ordinary work of apportioning land between Native tribes, or partitioning blocks between Native sellers and non-sellers. We therefore proposed that, instead of giving our decision upon these points of real property law, we should state cases for the Supreme Court, but Mr. Lysnar declined our proposal, and we have no right to force him to accept it. It must indeed be admitted that if the Judges of the Native Land Court were entitled to shift all their difficulties into the Supreme Court, it would virtually turn the Supreme Court into a Validation Court, whereas the Government and Legislature have placed these matters (proper only for the highest Court) in the hands of the Native Land Court, and, competent or incompetent, the Native Land Court must decide them. "When in our judgment of the 17th of April the Court declared that this peculiar statute required peculiar treatment, we assumed from the history of validation that the intention of the Legislature is that we shall recommend for validation all honest purchases, no matter what statute rendered them illegal. Mr. Day has ever since the delivery of that judgment been endeavouring to prove to us that such a construction raises insuperable difficulties in our way, and that, if the Court gives Mr. Tiffen a certificate, it must do so without the sanction of any clause in this Act, and even in actual violation of some of its clauses; and it may be asked us how under such circumstances we can possibly hold that the Act applies. But the Court must point out that Mr. Day's argument is only the same in principle as Mr. Eees's argument, founded on the general purview of the statute. If, as Mr. Eees contended, the general words of the statute fail to include purchases illegal under the Act of 1873, then the particular words of the several clauses will also necessarily appear to exclude them. If Mr. Eees's arguments be right, then we have no jurisdiction over such cases. If, on the other hand, we possess the jurisdiction we have declared ourselves to possess, then it follows that we must find the means of applying the statute to such cases; and Mr. Day's arguments to show the impossibility of so applying it must be erroneous. Our construction may be a bold one, but every one must see that if Mr. Tiffen's cases are properly before the Court, our business is to find the means of relieving them, be the language of the statute applicable to other classes of cases what it may. Mr. Day complains that by taking this course we pass out of our province as interpreters, and become legislators. I admit that if this statute were an ordinary statute, enabling us to confer rights or give a status, we should not dare to step beyond its literal words. But when we now step beyond the words we still keep within the directions given by the Legislature. Those directions are that we shall " inquire and report" to the Legislature itself what illegal transactions have been honest and straightforward in themselves, and whether they have been carried out in an honest and straightforward manner; therefore, if we are right in holding these " transactions" under the Act of 1873 to be within the statute, it is our duty to bend its provisions to meet the circumstances of such transactions. With these observations on Mr. Day's argument we will now proceed to the facts of the case. Mr. Tiffen has abandoned one of his purchases, and claims validation for the remaining thirtyfour. Mr. Day's objection to these thirty-four are of two classes. One class includes the whole thirty-four, the other class affects only nine and does not affect the remaining twenty-five. Mr. Day's first class is again divisible into two classes of objection. His first is: That as the Supreme Court decision of Poaka v. Ward has declared that purchases like these of Mr. Tiffen of undivided shares held under the Act of 1873 are unlawful, this Court must hold them to be still unlawful, there being no statutory provision authorising their validation. This argument is only another form of Mr. Eees's former argument, and would be just if it were this Court that had to validate the purchases; but this Court validates nothing : it is the Legislature, and not we, that will have to validate them, and in that fact lies the distinction. We simply recommend them as honest transactions which are therefore suitable for validation if the Legislature chooses to override Poaka v. Ward. It is urged that the Court should not ride roughshod over every sort of illegality and over all laws forbidding improper transactions, and I entirely concur in that. This judgment later on will show that we claim no such right. The second division of Mr. Day's first class of objections is more formidable. He has shown ua that since Mr. Tiffen's deeds of purchase were signed by the Maoris they have been altered in many material points. There is no doubt about this fact. It is admitted by Mr. Tiffen's counsel, but even if not admitted it is shown by the attested copies lodged in Mr. Justice Edwards's Court that the condition of the deeds when those copies were so lodged differed very materially from their present condition. Mr. Day contends that it is the settled policy of English Courts of Justice that if a suitor is shown to have altered in any material part a deed on which he relies he cannot enforce it against the opposing party, it being no longer the contract of that party, and Mr. Day says that this law has been based on an obvious ground of public policy to compel persons in possession of documents to refrain from tampering with them.