AFFAIRS OF NEW ZEALAND.   13

NEW ZEALAND.

parliamentary papers are certainly not evidence for the purpose. The governor has the sole custody of and control over instructions addressed to himself. Can we bring a governor into Court for the purpose? If once in Court, can we or any other Court compel him to disclose a state paper of this nature? (Wyatt v. Gore, Holt, N. P. C. 299; Cook v. Maxwell, 2 Stark, 183; Home v. Bentinck, 2 B. and B. 138; Anderson v. Hamilton, 2 B. and B. 156; and, as to the United States, see Greenleaf, Evid., 286). If we cannot aid a suitor against the Crown in this behalf, how can we make it available in the Crown's favour ?—in other words, would any one of the Courts of Westminster permit on one side, what it could not enforce on the other ? These and other questions which must occur to every lawyer shadow forth practical difficulties, apart from those substantive objections which arise from the legal character and force of the instrument. The whole question will merit the most scrupulous and careful investigation on principle and authority, whenever it may arise, and it is one on which it would be most useful to obtain the decision of the highest Court of Appeal.

The questions then to which we are confined, as being those alone which are raised upon the record, relate, 1st, to the power and authority of his Excellency Governor FitzRoy to execute a grant of the whole island of Kawau, containing 4,630 acres, to James Forbes Beattie, in July 1844, under the Charter of 1840, and the Land Claims' Ordinances ; and 2nd, supposing the grant to be within the governor's authority. does the misdescription of quantity vitiate it, either wholly or in part.

The narrowest interpretation of the governor's power and authority is that involved in the first issue, namely, that be had no power to make a grant which was not previously recommended by a commissioner ; in other words, that the governor is bound 'by the restrictions which the Land Claims' Ordinance imposes on the commissioners, and that the commissioner having reported that "no grant could be recommended," the governor's grant. contrary to that recommendation, ought to be annulled.

This view of the limited authority of the governor I think untenable in point of law, and for the reasons stated in " the Queen v. George Clarke." The granting power is part of the royal prerogative lawfully delegated to the governor. The office of governor is in principle precisely analogous to that of Lord Lieutenant of Ireland ; whose powers have always been regarded in that light.—(Jenk. 171.) So also have the powers of colonial governors.—(Chit. Prerog. Stokes, 195; Chalm. Opin. vol. i. 100, 233, 241, 316.) This is clearly the only ground on which the colonial Courts can examine any question affecting the governor's authority, or assert any one principle applicable thereto. The nature of the act (of pardoning, or granting land, for instance,) is in nowise changed by delegation. It seems formerly to have been considered that, within the realm of England, the power of executing any portion of the prerogative was incommunicable by the king to the subject. But this rule could never have been applied to any foreign possession of the Crown, or to distant places. In the case of ambassadors, a delegation of the prerogatives must have been necessary and in established practice, almost beyond the time of historical, not to say legal, memory. And when Ireland became annexed to the Crown we find the point early raised and decided, that as to certain prerogative powers. such as the power of pardoning even treasons, of making knights, &c., in the name of the king, there was a good delegation and exercise of the royal prerogative. "The distance of place and sudden occasion and the king's absence make all the difference," agreed by all the judges of England.—(Jenk. 171, pl. 36, citing Year Book 1, H. 7, 16).

Under the general rule, " that the colonies settled by British subjects are subject to the law of England, so far as the same may be applicable to their circumstances and condition," the prerogatives of the Queen as exercised by the governors of colonies are entitled to all those legal safeguards on the one hand, and subject to those restraints on the other, which the, common and statute law of England have gradually established. It is under this rule (which properly considered, is most beneficial to the subjects of Her Majesty) that this Court has invariably considered Crown grants within the colony. We acted upon this view in the case of the Queen v. Symonds, (M Intosh's case), May 1847, and again in the Queen v. George Clarke, June 1848. In the latter case it was considered that the prerogative of the Crown as exercised by the governors under the Charter, cannot be taken away or limited, except by the express words of an Ordinance or statute, It follows that the restrictions imposed on the commissioners, do not bind the governor, nor is the governor bound in any way by the commissioners' report. The whole language of the Ordinance goes to show that the inquiry before the commissioners bath no other object in view than to secure to the governor full information of all the circumstances of each claim. The commissioners am to "hear, examine, and report upon claims, &c.," and nothing more. On the one hand, " nothing in the said Ordinance contained shall be held to oblige the said governor to make and deliver any such grants as aforesaid (i.e. grants recommended by the commissioners), unless his Excellency shall deem it proper so to do."—(4 Vic. No. 2, sec. 6.) On the other hand, " nothing in this Ordinance contained shall be deemed in any way to affect any right or prerogative of Her Majesty, her heirs, or successors," (sec. 13) : and these words, being general, can only mean whether that prerogative be exercised by Her Majesty herself, under the great seal of Great Britain, or by the governor, by virtue of his delegated authority ; for it is a matter of notoriety that in the colony a direct exercise of the royal prerogative, either in granting land or otherwise, rarely takes place. That is almost invariably effected within the colony by letters patent in the Queen's name, under the colonial seal, witnessed by the governor, and duly recorded. The framers of the Ordinance would scarcely have deemed it necessary to save the prerogative in order to meet a case that can hardly ever occur. They clearly intended to leave, and the Ordinance does in fact leave to the governor a two-fold discretion—a discrction in both directions. He may, under section 5, withhold a grant recommended; and he may, under section 13, (and even without it, restraining words being absent,) make a grant without such