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Colonial Cases

R v. Paxton [1858]

mining law - minerals, reservation

Supreme Court of South Australia

Cooper J., 28 July 1858

Source: Sydney Morning Herald, 17 August 1848, in N.S.W. Supreme Court Collection, Vol. 2, pp 104-107


From the great importance of the case recently decided in South Australia by Mr. Justice Cooper, we have copied His Honor's Judgment from the South Australian , which has evidently been furnished with a verbatim report. We would advise all interested in mines in this colony to preserve the paper for future reference; it may be useful.



The Queen, on the information of the Advocate-General v. Paxton and others (Directors of the Adelaide Mining Company).

His Honor delivered judgment in the following words:---

This is an information for the purpose of obtaining a discovery and account of all metals, and ores containing metals, raised and obtained from certain lands granted by his Excellency the Lieutenant-Governor, in her majesty's name and behalf, to Messrs. William Paxton and Henry Collier, wherein was a reservation to her Majesty of a seignorage or royalty of one-fifteenth of all metals, lying upon, in, or under the said lands, payable as therein mentioned.

The information begins by reciting the statute of the Imperial Parliament, passed in the session of the 5th and 6th of her Majesty's reign, entitled, "An Act to regulate the sale of Waste Lands belonging to the Crown in the Australian Colonies," and the power given to the Governor of each of the Australian colonies to convey and alienate in the name and on behalf of her Majesty, in fee simple, or for any less estate or interest, any waste lands of the Crown in any such colony. It then sets out certain regulations for the sale and disposal of the waste lands of the Crown in South Australia, made by his Excellency the present Lieutenant-Governor on the 3rd March, 1846, published in the Government Gazette of the 5th March, whereby it was proclaimed, that on all waste lands of the Crown, thereafter to be alienated or conveyed for any estate or interest, there would be reserved to her Majesty, her heirs, and successors, one-fifteenth of all metals and ores containing metals, lying upon, in, or under such lands, payable in kind at the mouth of the pit, shaft, gallery, or quarry from which they may be raised, and that this reservation, together with certain rights, which I do not think it necessary to set out, said to be necessary for the collection of such royalty, would be inserted in the deeds of the grant.

The information states that these regulations were established by virtue and in pursuance of her Majesty's authority, conveyed through the Right Honourable Lord Stanley, her Majesty's Secretary of State for the Colonies, by despatch addressed to his Excellency Governor Grey, dated the 18th September, 1845, and received her Majesty's royal confirmation through the Right Honourable Earl Grey, by despatch addressed to his Excellency the present Lieutenant-Governor, dated the 30th December, 1846, and published in theSouth Australian Government Gazette , the 6th May, 1847.

The information then sets out a proclamation dated the 17th, and published the 19th March, 1846, of an intended sale of certain portions of waste lands, subject to the reservation of the royalty above-mentioned; that her Majesty was seized in her demesne as of fee in right of her crown of such lands; that the said lands were offered for sale under and subject to the regulations and conditions before-mentioned, and were purchased by Messrs. William Paxton and Henry Collier, part thereof---namely, sections 5523, 5524, and 5526, for the sum of £1250; and the other parts thereof---namely, sections 5525, 5528, and 5529 for £1600 sterling. That such purchase was made by Paxton and Collier, in trust for themselves and other persons united in a Joint Stock Company, called "The Adelaide Mining Company." That a deposit of ten per cent. of the price was paid at the time of sale, and that the purchasers paid at the Colonial Treasury the balance of the price of part of the land purchased---namely, sections 5523, 5524, and 5526, and obtained, and accepted receipts from the Colonial Treasurer for the same, wherein the said purchase was declared to be subject to the aforesaid regulations of the 3rd March, 1846; and further that the purchasers obtained and accepted a grant by deed poll, under the hand and seal of the Lieutenant-Governor, (which deed poll is set out in the defendant's answer), conveying the said sections, subject to the said royalty, and that a memorial of the land grant was registered at the Registry Office, at Adelaide, pursuant to law; wherein it is described as Land Grant under regulations of 3rd March, 1846. The same facts are stated with respect to the other part of the land purchased, namely, sections 5525, 5528, and 5529.

That by indentures of lease and release, dated 24th and 25th November in the same year, all the defendants being parties to the deed of release, in the character either of Directors or Trustees of the Adelaide Mining Company, the estate and interest of the purchasers in the six sections of land were conveyed to Edward Klinginder to the use of the said Charles Beck, Phillip Levi, and William Paxton, in trust for the said Adelaide Mining Company.

The information then states that the purchasers were let into possession of the land under the said contract, and subject to the said tender of the royalty. That upon being let into possession, the defendants and others, members (and leaseholders) of the Adelaide Mining Company, proceeded to open mines in the said land, and to work the same, and to obtain, raise, and carry away, great quantities of ore and metallic minerals.

That agreements were entered into with miners for carrying on mining operations, wherein it was stipulated that one-fifteenth of all metals, and ores containing metals, raised and brought to grass, should be set apart as the Royalty due to her Majesty---in respect of which fifteenth no tribute or wages were to be payable by the Company to the miners. That a quantity of ore estimated to be a fifteenth of the ore raised, was from time to time set apart as aforesaid, but no notice was given to any one on behalf of her Majesty of the setting apart such ore, but that the same was removed by the Company indiscriminately with the other ores, and applied to their own use, and that the defendants have at length ceased to set apart any portion of the minerals, and that in answer to applications made to them, the defendants have refused to deliver, render, or reserve any portion of the minerals, or to account for the quantity raised, or to account for the produce thereof, or in any way to permit the collection of the royalty, and denying the right of her Majesty, &c.

That it being impossible to ascertain the quantities, produce, or value of ore raised, a discovery of them is indispensable.

The information then insists upon the obligation of the defendants to perform the conditions upon which they purchased, and upon her Majesty's title to a discovery.

The interrogatory part of the information follows the stating part, and the information concludes with a prayer for a discovery and account by the defendants of all metals and ores raised and obtained as aforesaid by them, and by any other persons with their privity, &c., and for the establishment of Her Majesty's seignorage or royalty, and general relief.

The answer of the defendants admits the passing of the statute 5 and 6 Victoria, c. 36, and refers to the 1st, 2nd, 3rd, 5th, and 6th sections, as the only material parts of it.

It admits the making of the regulations of the 3rd March, 1846, and the proclamation of the 17th March, and the putting up of the lands in question, subject to the reservation of the royalty mentioned in the regulations; but the defendant insists that the Act makes it compulsory on the Governor to hold sales of land by auction at least four times a-year; and when he does sell to alienate and convey in fee simple or for any less estate or interest, and by such forms of conveyance to be accompanied by such solemnities as Her Majesty may prescribe---and insists, that the Act does not authorise her Majesty to make any reservation or exception of metals, &c., or for any other part of the subject of such sale that the regulations imposing the royalty, and the proclamation of sale of lands subject to it, and the conditions imposed at the sale, contravene the provisions of the Act, and are void.

The answer then admits the purchase of the lands, the payment of the purchase money and receipts given, and the grant as stated in the information, and sets out the grant in the schedule to the answer; but insists, in effect, that the defendants having no control in performing the regulations, they had no alternative but to buy the land in the face of them, or lose their chance of purchase altogether, and were constrained ti take the same with the impositions, in the hope of being relieved by this Court. And it is then insisted, that the attempt to impose the reservation was an attempt to wrong the purchasers of waste land, and was the wrong of Her Majesty's Colonial Secretary, or of his Excellency the Lieutenant-Governor.

Then answer submits, whether the deed poll do not contain such a reservation as is insisted on.

It admits the registration of the memorials, but says that the defendants do not know whether the land grants are described as being under the regulations of the 3rd march, 1846.

It admits the indentures of lease and release referred to in the information, and the taking possession.

The answer then states in effect that it was known there would be an attempt to enforce a royalty, but that the defendants believing it to be contrary to law did not think the render of it could or would be compelled.

It denies that possession of the land was given subject to the reservation of the royalty.

It admits the working of mines and the raising ore; and refers to schedule four as containing the quantities, weight, measure, and value thereof.

It admits the making agreements with miners to leave at the mouth of the pit a fifteenth of all ore raised, to be delivered to the government if it could be proved that they could claim it: and that it not having been proved that the government could claim such fifteenth, the whole has been removed and appropriated, but the defendants deny the agreement with the miners as stated in the information, and they deny that any quantity of metals, &c., has been set apart as mentioned in the information.

The defendants admit not giving notice of setting apart or of removing metals, and they also admit their refusal to render the royalty, and the correspondence upon the subject mentioned in the information.

They also admit that they are not disposed to concur in any arrangement, and they deny the right of her Majesty under the said reservation.

The defendants refer to the fifth schedule to the answer, as containing the particulars of the books kept by the Company; and they admit that they refuse to render or deliver an account as in the information is alleged, and insist that they are not subject to the reservation.

On the hearing of the case Mr. Jickling opened and observed upon it on the part of the Crown. Mr. Fisher, Mr. Gwynne, and Mr. Hanson, followed on behalf of the defendants, and the Attorney-General replied.

Two preliminary objections were taken by Mr. Fisher. First, that there is no precedent for the filing an information by the Advocate-General; and secondly, that this is not a case in which an information for a discovery and account can be sustained.

On the first point, I am of opinion that as the Advocate-General has been always recognised as her Majesty's Law Officer, particularly in the Jury Ordinance (1843, No. 12), and as he is the only law officer of the Crown in the colony, I cannot properly reject an information filed by him on her Majesty's behalf.

On the second point, I think there is no doubt that a bill for the discovery would lie on a case like the present even between subject and subject.

As to the merits---Mr. Jickling made four divisions of the case in his argument, but as Mr. Fisher and the other counsel for the defendants made three divisions only of the subject, I think it convenient to follow this arrangement.

First.---Has her Majesty a right to make a reservation of the royalty reserved in the grant of land made to the defendants?

Secondly.---If her Majesty possesses such a right, has it been properly exercised in the present case, by making the regulations and the land grants in pursuance thereof?

Thirdly.---Supposing her Majesty to have no right to make such a reservation, or that it had not been properly made, have the defendants precluded themselves from objecting to the reservation by having purchased under the regulations set out in the information, and having done the several acts mentioned in the information and admitted by the Crown?

As to the first question---Her Majesty's right has been argued by her counsel on the ground of her prerogative, which it is said has not been affected by the passing of the Land Sales Act, 5 and 6 Vict., c. 36. It is said that her Majesty's estate in the unsold lands was entire up to the time of passing that Act; that neither the statute 4 and 5 Wm. IV., c. 95, the Act under the authority of which this province is established, nor the statute 5 and 6 Vic., c. 36, divested the estate of the Crown, in any lands until the sales thereof, and that neither of these statutes bound the Crown to part with all its land, with all above and all below the surface, and that the only change made by the statute last mentioned was in the mode of alienation---that her Majesty is not obliged by the Act to alienate in fee simple and may even alienate for a term. That the Crown has by virtue of its ultimate dominion in the soil, a right to make such a reservation as the one in question.

The arguments on the part of the Crown were fortified by reading from the South Australian Government Gazette of the 5th March, 1846, the opinion of Sir F. Thesiger, and Sir Fitzroy Kelly, her Majesty's late Attorney and Solicitor-General, given on the 28th August, 1845, in answer to a letter from Mr. Hope, the then Under-Secretary for the Colonies, wherein they say


"there is nothing incompatible with the provisions of the Act in the plan proposed (i.e. the reservation of a royalty), that the waste lands of the Crown if alienated and conveyed must be conveyed in the manner prescribed by the Act, but there is nothing in its provisions restrictive of the right which the Crown proposes to reserve to itself of any portion of its property and interests, or which makes it compulsory to part with them.["]

Reference was also made to grants of land, in the neighbouring colonies and in the early colonies of America, wherein divers reservations are made.

On the part of the defendants it was argued that the only reservations which could be lawfully made in land grants, were then for the purposes mentioned in sections 3 and 20.

That the whole tenor of the act shows that all is to be conveyed---and it was asked if minerals are excepted in the first instance how are they afterwards to be sold? At what upset price? And how are the proceeds to be appropriated? The appropriation of the proceeds of the sale of waste lands being provided for, but not the appropriation of the proceeds of minerals, by section 19 of the Act.

It was further argued that the prerogative of the Crown was divested by the Act of Parliament 4 and 5 Wm. IV., c. 36, that the Crown then gave of all pre-existing prerogative rights, and that the state of things continued until the passing of the 5 and 6 Vic., c. 36. The several sections of the Act were commented upon to show that no other reservations were contemplated than those specified therein.

One of the learned gentlemen, Mr. Hanson, dwelt more particularly on the argument than the main object of the act in question, was to secure an uniform system of disposing of the waste lands of the Crown, that the reservation of mineral rights must be considered part of the price, or part of the land not parted with, and if part of the price, the reservation necessarily interferes with the uniform upset price intended to be established; and he went through the several sections regulating the upset price, and the mode of payment of the purchase money, and the appropriation thereof; and urged that there is no security that the proceeds of the royalty reserved will be appropriated to the purposes prescribed by the act, with respect to the proceeds of the sales of land.

I am of opinion on this point that the estate of the Crown in the unsold portions of the waste land in this colony, has not been divested either by the statute of the 4th and 5th Will. IV., c. 95, or by the statute 5th and 6th Vic., c. 36, that under the former Act the Commissioners therein mentioned, had until its repeal, and the Governor for the time being has now, under the latter act, a mere power of sale and conveyance, and I can see nothing to prevent her Majesty from occupying any portion of the unsold lands, or from taking, and removing, any portion of the minerals, as her Majesty's servants in the province now do with respect to stone and timber for building purposes, but it does not seem necessarily to follow from this right of property that it would be competent to her Majesty to dispose of minerals while unreserved from, and forming part of the soil in any manner not authorised by the Act of Parliament under consideration with respect to land.

I agree in the opinion that there is nothing in the Act of Parliament which makes it compulsory on her Majesty to part with any portion, that is to say any specific portion of her property; although the act makes it the duty of her representative in the colony to sell land at the times and in the manner therein mentioned, and the exercise of this duty might in time deprive her Majesty of all the lands within its boundary. But it is objected that the particular kind of reservation made, viz., the imposition of a royalty on minerals raised from the land granted, interferes with the operation of the Act of Parliament, and if so, the real question appears to be, whether her Majesty can exercise her right of reservation in such a way as to interfere with the operation of an Act of Parliament to which she has been graciously pleased to give her Royal assent.

I will shortly consider the effect of the reservation with reference to two principal objects of the Act, viz., the establishing a uniform system of disposing of waste lands, and the appropriation of the proceeds of the sales of land.

The Act especially provides for an uniformity in the upset price of lands throughout the colony of the third class, of which class the lands in question are, and for the manner in which it may be raised, see sections 6, 7, 8, 9, 10, 11, and 14, and it is not permitted even to her Majesty, to lower the upset price to which lands may have been once raised, except in the manner and within the time mentioned in section 9. The power of raising the upset price in particular instances is provided for by section 11, with respect to "Special country lots," and the inconvenience which may be experienced from one uniform system throughout the colony is provided against by Section 1, by which power is given to the governor of any colony to divide it into territorial divisions, wherein different upset prices may exist contemporaneously. It appears to me that the imposition of the royalty, whether it is to be considered as an exception or a reservation, necessarily interferes with the operation of the Act as to the upset price. At the time of making the regulations referred to, the upset price of land was, as it is now, 20s. per acre, and the imposition of the royalty, whether it is considered an exception out of the land, or a reservation, had the effect of diminishing the value of each acre; and in effect raised the upset price of all lands in the third class; and such will be again the effect if the royalty should be raised from a fifteenth to a higher proportion---while a contrary effect will be produced by lowering the royalty. So that what cannot be done with the upset price directly, may be done indirectly by means of the royalty.

Again, supposing the Governor to have general discretionary powers entrusted to him by her Majesty to raise or lower the royalty---and the royalty being raised at any time, her Majesty should disapprove of it, there is no such means of adjustment as is given to purchasers by section 9, when her Majesty is pleased to disapprove of the raising the upset price by the Governor. Then it has been admitted to be at least doubtful, whether it would be competent to the Governor, under this Act, to grant land for a term of years, reserving a pecuniary rent as part of the consideration, and if the royalty be an impost, the rendering of which, although contingent on the working of mines, forms part of the consideration, is not its reservation objectionable, as being contrary to the directions of the act, with regard to the payment of the purchase money? See sections 12 and 13.

To put an extreme case:---could a grant of twenty acres of land, and the right of reserving (under a thousand acres) be lawfully granted for a consideration of £20 to be paid in money, and of a royalty to be had out of the minerals raised? It is obvious that in the supposed case, the royalty would be the principal consideration for the grant, and so it would probably be in all cases where land was bought for the sake of the minerals only.

The effect of the royalty in raising the upset price indirectly, is an objection which would not apply if it had been imposed either before or immediately after the coming of the act into operation, and had then been made a fixed invariable charge on all unsold lands in the colony. Whatever objection there might be to such a reservation, this objection would not exist. But, again, it has been objected that there is no security that the royalty may not be extended to a reservation of all metals beneath the surface, and that the proceeds arising from the sale of them may not be applied to purposes not contemplated by the act. It is answered that the regulations imposing the royalty give an assurance that the proceeds of it shall be applied to the same purposes as the proceeds of the sale of waste lands---but the reply urged by the defendants is, that the regulations do not give the security of an act of Parliament. I entertain no doubt of the assurance being fulfilled, but, in considering the legality of the imposition I think it must be considered as if no such assurance had been given.

I think it is obvious, from the preceding observations, that the imposition of the royalty does in some degree interfere with the operation of the act of Parliament; but does it so materially interfere with its operations as partially to defeat the purposes for which it was passed?---I think it has a tendency to do so, and upon the whole, the inclination of my opinion on the first point is, that the imposition of the royalty is not compatible with the provisions of the Act 5 and 6 Vict., c. 36, for regulating the sale of waste lands. My opinion mainly rests on the objection that the imposition of a royalty, which may be varied from time to time, tends to defeat the uniformity of the system of disposing of waste lands of the Crown which the Act or Parliament last mentioned was intended to establish; but in stating the inclination of my opinion, I think it right to repeat what I said immediately after the conclusion of the argument, that I do so with the greatest diffidence and doubt, not only because of the opinion expressed by her Majesty's law officers in England (whose opinion is not usually asked, as I have seen it hinted, to abet her Majesty's Government in any course which it thinks expedient to take, but to prevent its falling into involuntary violations of the law), but also to the maxim of law that the Queen's rights cannot be affected by any Act of Parliament to any greater extent than she has expressly assented to, is so established, and is so favourably considered by courts of law, as to raise doubts in my mind whether the provisions of the Act in question are sufficiently strong to prevent her Majesty from exercising a right which she could undoubtedly have exercised independent of that Act. Indeed, I should still hesitate in pronouncing my final opinion on this point if it were not that I have a clearer opinion on the second question, viz:---

2nd. If her Majesty possesses such a right, has it been properly exercised in the present case?

Before stating my opinion on this question, it is proper to say that it has been argued by the counsel on both sides that the documents contained in the list accompanying my written opinion, and some of which it will be necessary to refer to, are to be considered as in evidence in the same.

This question involves the inquiry whether his Excellency the Lieutenant-Governor was duly authorised to make the regulations of the 3rd March, 1846, for reserving the royalty, and whether he was authorised to insert the reservation on the land grants. It was argued generally on the part of the defendants that the only power of the Governor to grant land was derived from the Statute 5 and 6 Vict., c. 36, and that that statute gave him no power to make regulations, nor any power to convey except in the form prescribed by her Majesty. Reference was made to the instructions under the signet and sign-manual of her Majesty, dated 27th August, 1842, addressed to Governor Grey, and to the accompanying despatch of Lord Stanley and to the form of land grant then in use, to show that the grant to the defendants varied from the authorised form, and it was argued that if any power other than that given by the Act existed, it must be shown. On the other hand, it was sais by the Advocate-General that the regulations and land-grants were not made in the execution of a statutable power merely, but proceeded from the prerogative of the Crown, and that the Governor was especially authorised by Her Majesty to make the regulations in question. As to the form of the land-grant, he said that the instructions under the signet and sign-manual to Governor Grey only authorised the continuance of the same form and solemnities as heretofore in the conveyance or alienation of land, viz.---a grant by the Governor in name and on behalf of her Majesty, that minerals, timber, &c., were part of the estate granted, and the reservation with respect to them did not alter the form.

The objections were taken to the form of the grant, which I think were successfully answered by the Advocate-General.

With respect to the power of his Excellency to make the regulations of the 3rd March, 1846, I think the Advocate-General has failed to establish it.

The information commences by reciting the statute of the 5th and 6th of her Majesty's reign before referred to. It there sets out the regulations which are said to be made by the Lieutenant-Governor with the consent and advice of the Council of Government, i.e., the Executive Council. It then states that the said regulations were so established by virtue and in pursuance of her Majesty's authority, conveyed through Lord Stanley, her Majesty's Principal Secretary of State for the Colonies, by despatch to Governor Grey, dated the 18th September, 1845, and received her Majesty's royal confirmation through Earl Grey, her Majesty's then Principal Secretary of State for the Colonies, dated 30th December, 1846.

This is the only authority shown for making the regulations on the face of the information; but in the course of his argument, the learned Advocate referred to a Gazette notice of the 27th October, 1845, proclaiming that his Excellency Major Robe had been by warrant under her Majesty's royal signet and sign-manual appointed Lieutenant-Governor of her Majesty's province of South Australia,

"with such powers and authorities, and according to such directions, as are expressed in her Majesty's commission, dated 28th December, 1840, and addressed to George Grey, Esq., her Majesty's Governor and Commander-in-Chief in and over the province of South Australia, and the instructions under her Royal sign-manual and signet therein referred to, or according to such further powers, instructions, and authorities, as from time to time, and at any time thereafter, might be granted or appointed him under her Majesty's Royal signet and sign-manual, or by her Royal order in Privy Council, or by her Majesty through one of her Principal Secretaries of State."

This proclamation was put in to lay a foundation of authority for the Secretary of State to give instructions to the Lieutenant-Governor respecting sales of land, and to give effect to Lord Stanley's despatch of 18th September, 1843, but I think it fails; for, taking it for granted, that the Gazette notice is evidence, not only of his Excellency's appointment, but of the terms of it as far as they are stated, I think the instructions to proceed from the Secretary of State must have reference to the ordinary duties of a Governor as such, amongst which disposing of the lands of the Crown does not appear to be one. Indeed, as stated by Mr. Fisher, the circumstances of this colony show that this could not be part of his duty or powers, for, at the establishment of the colony, the disposal of the Crown lands was vested by 3 and 4 W. IV. c. 95, not in the Governor, but in a body of Commissioners in England, who delegated a part of their authority to a Commissioner resident in the colony. The offices of Governor and Commissioner were held by Colonel Gawler, and afterwards by Captain Grey, but the office of Commissioner of Public Lands was held by each by appointment from the Commissioners, and so it continued until the 23rd January, 1843, when the Land Sales Act, 5 and 6 Vict., c. 36, came into operation in the colony, and this seems to be the only authority under which the Governor now acts. This view of the matter is confirmed by a passage in the despatch of Lord Stanley to Governor Grey, dated 6th September, 1842, wherein he says:---

"The disposal of the waste lands of the colony will for the future be regulated by the recent Act 5 and 6 Vict., c. 36;"

And by the general tenor of his lordship's despatch to Governor Grey, dated the 15th September, 1842, although his lordship seems to have made a mistake in supposing that the Governor of this colony had previously acted in the disposal of waste lands under a Royal Commission and Royal Instructions, as was the case in New South Wales.

It is admitted by the form of conveyance in use at the time of the arrival here of the Waste Lands Act, all timber, minerals, and appurtenances were conveyed, and that this continued to be so up to the time of making the regulations of 3rd March, 1846---so that her Majesty was pleased to allow of sales of land under the Act for several years without any reservation. Supposing, then, her Majesty to have power to make the regulations in question herself here, has her power been delegated to the Lieutenant-Governor? Can it be delegated by a despatch from the Secretary of State? When a Governor acts under an Act of Parliament, or a Commission, giving him authority to act in a certain n manner, or in such other manner as may be contained in a despatch from her Majesty's Secretary of State, the power to act is in effect derived from the Act of Parliament or Commission, although the particular act described to be done is contained in a despatch. The learned Advocate seemed to think that some commission existed independently of Parliament, but none is referred to in the information, nor has any been shown on the hearing of the cause. It will be observed that the despatch of the 18th September, 1845, does not assume to have been written by her Majesty's express direction; and the power which it gives is not given absolutely---but with a reservation "to her Majesty's Government of full power to confirm, to disallow, or to modify any such regulations." His lordship says that in the event of his Excellency adopting a certain plan (which is not the one actually adopted) "I shall of course consider myself responsible for that decision." It is material that his Excellency, in making the regulations, does not assume to make them by the direction of her Majesty or of her Secretary of State. And although on the 30th December, 1846, Earl Grey, her Majesty's then Secretary of State for the Colonies, writes to the Lieutenant-Governor, conveying to him her Majesty's confirmation of the regulations, the question seems to me to be, whether his Excellency had power to make them on the 3rd March, 1846, or at the time of making the land grants to the defendants, and I am of opinion that no sufficient authority has been shown.

Then, as to the land-grant, I think the validity of the reservation of a royalty therein must on the first place depend on the authority of the Governor to make the regulations, and I have already expressed my opinion on this point; but there is a further question, whether Her Majesty, having in 1842 approved of the form of conveyance then in use, which contains a grant in express terms of all timber, minerals, and appurtenances, the reservation of a royalty on minerals, with divers provisions, deemed necessary for its collection, in the land grant made in 1846, can be supported without showing that it was inserted in the grant by her Majesty's direction, and I am inclined to think that it cannot. Moreover, the regulations not having been confirmed by her Majesty at the time of making the land-grant, the grant, founded on the regulations, was not at that time binding on her, and consequently not upon the grantees.

Lastly, supposing her Majesty to have no right to make such a reservation, or that it has not been properly made, have the defendants precluded themselves from objecting to the reservation by having purchased under the regulations set out in the information, and done the several acts mentioned in the information, and admitted by the answer? On this question, I am of opinion that the information must either stand or fall with the land-grant, and that, if it is bad, no prior or subsequent acts of the defendants will enable her Majesty to recover the royalty by means of this information, for it is upon the reservation in the land-grant that the information is founded.


His Honor observed that at the conclusion of the argument, he had expressed his willingness to hear the case re-argued. This was with a view to allowing the Advocate-General to discuss the question how far some of the clauses in the Waste Lands Act were to be taken as directory or imperative. If the former, it might not have followed that the land-grant was bad, although not in strict accordance with their provisions. This, however, was not perhaps, material, as his opinion had been so fully expressed on the other points. It had been a satisfaction to him to know that whichever way his decision were given, in this most important case, it would probably undergo review by the Privy Council, and this the more as he had no person with whom to advise, or who could set him right if he were wrong. Still, this consideration did not in anyway relieve him from his full responsibility. He would further observe that he might hardly perhaps have sufficiently set forth in his decision the arguments of counsel. Much profound legal knowledge had been shown, and he trusted he had in his own mind given every argument its due weight.

After a short paused, his Honor said---"This information must be dismissed."

Published by Centre for Comparative Law, History and Governance at Macquarie Law School