(93)

every grant which you may make in pursuance
of these Proclamations, it must be expressly de-
clared that Her Majesty enters into no guarantee
or warranty of the title to the lands, save only
so far as to engage that the grant shall be con-
sidered as barring the title of the Crown to such
lands, and as transferring to the Grantee any
right to the lands, which, at or previously to the
date of the Grant, may have been vested in the
Queen."

"You will give immediate publicity to Her
Majesty's decision, and to the motives of it, as I
have already explained them. I anticipate that
the result will be that of the purchases made
under Governor FitzRoy's Proclamations very
few indeed will be sustained. I have no diffi-
culty in avowing that it will be gratifying to me
to learn that such is the result, for the whole
transaction is one which it is impossible to con-
template without a lively regret that any persons
should be benefited by it at the public expense,
and an earnest desire to confine that benefit strict-
ly within the limits which the Royal faith as
pledged by Lord Stanley's despatches prescribes.

I am Sir, &c.
(Signed) GREY.

To Governor Grey.

ATTORNEY GENERAL'S REPORT.

On the course to be pursued under the terms
of Lord Grey's despatch on the subject of
Claims to Land, under Governor Fitzroy's
Proclamation; I have the honor to report, as
follows:—

The result appears to be this. That Governor
Fitzroy's Proclamations are declared to have
been issued by him without authority, and to
the null and void; but that the acts done under
them are to be recognised so far as they were
done in strict pursuance of them. That in order
to entitle any claim (whether under the first or
the second Proclamation,) to be entertained, two
things must be proved. 1st. That Governor
Fitzroy in waiving the right of pre-emption, did
so, in manner, within the extent, and according
to the terms of his own proclamation,—and
2ndly. That the claimant on his part, complied
strictly with the requisitions of the Proclama-
tion: in other words, that the proceedings were
throughout "in strict pursuance of," and "under
the authority of the Proclamation."

The Proclamations declared that the right of
pre-emption would be waived over "limited por-
tions of land," and in the notice of the 7th Dec.,
1844, Governor Fitzroy declared that by the
term "limited portion" was meant "a few
hundred acres."

In cases where the right was waived over a
greater quantity than a few hundred acres, the
act not being in strict pursuance of the Procla-
mation, the claim would by a rigid construc-
tion of Lord Grey's despatch, be out of Court.
But an interpretation more favourable to the
claimant might I think, be adopted, without a
violation of the fair spirit of the despatch, viz :
—That the mere fact of the waiver being ex-
cessive, shall not invalidate the claim, but that
if in other respects valid, the claimant may re-
ceive a grant not exceeding "a few hundred
acres," (say 500 acres.)

In no case whatever, can the claimant, accord-
ing to Lord Grey's despatch, receive an absolute
Crown Grant, in the usual form, but simply a
right which the Crown may have in the land.
The course to be pursued in the investigation
of a claim preferred under the Despatch would
be this:—

1st. It would be examined in order to ascer-
tain whether Governor Fitzroy's act in waiving
the right was in "strict pursuance" of the
Proclamation. If it should be found that the
right had been waived over land reserved by
the provisions of the Proclamation, or in any
other manner at variance with the terms of the
Proclamation, then, the claim would at once fall
to the ground.

If it should be found to be correct, so far as
Governor Fitzroy's acts were concerned, then
the inquiry would be:—Has the claimant on his
part complied strictly with the requisitions of
the Proclamation? If it should be found that
the claimant had purchased the land from the
natives before obtaining the waiver of the right
of pre-emption, or wilfully understated the
quantity of land, &c., &c., then the claim must
fall to the ground, by reason of the claimant
having on his part failed to comply strictly with
the requisitions of the Proclamation.

But assuming a claim to have passed the first
two stages of the enquiry, then would arise the
question of title. Was the land purchased from
the true native owner, or owners, according to
native law and custom? The necessary evi-
dence on this point is to be produced at the
expense of the claimant, and failing to be sa-
tisfactory, the claim would, after all the expense
and delay incurred in the course of the investi-
gation, fall to the ground.

But assuming the evidence to prove satisfac-
tory, then the claimant would be entitled to
receive a Deed releasing the Crown's right only;
and in no case for a greater quantity of land
than 500 acres; the remainder, if any, falling
to the Crown, as part of the Royal demesne.

Apart from its small intrinsic value, such
a title, differing so widely from the ordinary
absolute Crown Grant, would always be looked
upon with suspicion in the market. The claim-
ant under it would be liable at any time within
a certain number of years, to actions and claims
by native claimants, and would frequently for
the sake of quiet possession, have to buy off or
satisfy, native claims which had not been con-
sidered, when the purchase was originally made.

August 7, 1847.

W. SWAINSON,
Attorney-General.

GOVERNOR'S MINUTE.

GENTLEMEN OF THE LEGISLATIVE COUNCIL,

I think it right to lose no time in making you ac-
quainted with the nature of the instructions which I
have received from Her Majesty's Government, relative
to the mode in which the Claims to Land which have
originated under the ten shilling an acre and penny an
acre proclamations, are to be disposed of.

It will be seen from the annexed report of the At-
torney-General, on the course which would have to be
pursued under the terms of Lord Grey's despatch on
the subject of claims to land which have arisen under
my predecessor's proclamations, that by a rigid adhe-
rence to these instructions, a great number of the
claimants might fail to make good their claims,—that
they would all be subjected to much expense and delay,
and would in all instances receive a title which would
be comparatively worthless;—and, finally, the question
would be almost as far as ever removed from a complete