G—B

there shall be paid by the claimant for every acre of land so to be granted a sum not exceeding five shillings : Provided that the Commissioners may reduce the sum to be paid by any claimant to any sum not less than one shilling per acre, and in fixing the payment to be made by any claimant, they shall, as nearly as may be, fix the amount to be paid at one-fourth the estimated value of the land." Section 30 enacted that no grant was to be directed in respect of any such last-mentioned claim for more than 500 acres of land, provided that the Commissioners might in their discretion award and direct a grant to be made of an additional quantity of land by way of compensation for loss and damage sustained by reason of the non-settlement of such claim, but in no case was a larger extent of land to be granted as compensation than 500 acres, nor more than was comprised in the original claim. Section 31 enacted that in every case of compensation in land in respect of claims under the Proclamation of the 10th October, 1844, the claimants were to pay after a rate not exceeding £1 and not less than Is. per acre for all land to be granted to them as such compensation, and in fixing the payment to be made by any claimants, the Commissioners were, as nearly as may be, to fix the amount to be paid at one-fourth the estimated value of the land. 108. There is a large area in the aggregate (16,418 acres) of " surplus lands " arising from the purchases made under the penny-an-acre Proclamation. The surplus arises in this way ; a person would apply for what is called a waiver of pre-emption certificate, and, after inquiry, if his application were granted, it would be granted to the extent of the area mentioned in the certificate. In a large number of cases the holder of the certificate purchased an area, in some cases small, in others large, in excess of the permitted area, and the question is what, if any, are the rights of the Maori vendors in equity and good conscience in respect of these excess or surplus areas. The question is not a simple one and may be looked at from different angles. So far as the purchaser is concerned, his position is quite different from that of the purchaser in respect of the old land claims who made his purchase prior to the assumption of British sovereignty. The last-mentioned person acted in no way improperly, whether legally or otherwise. He had the right to purchase, but he ran the risk of the Crown, in the event of its obtaining sovereignty, refusing to recognize his title. The purchaser under a waiver of pre-emption certificate, however, was in a different position. He could hardly be blamed, either legally or morally, for making a purchase under a certificate which he would naturally assume to be regular and legal; indeed, that would have been the general view until it was held some years later by the Courts that the action of the Governor in issuing the Proclamation and the certificate was irregular and in excess of his authority. But the purchaser did know that his purchase must be limited to the area permitted by the certificate, and he knew that any purchase in excess of the certificate would be irregular. It is quite true that he paid the Maori for the excess area, but it is difficult to see how he can claim any right in equity and good conscience as flowing from something done by him which he knew he was legally prohibited from doing. The purchaser's position is dealt with by Mr. Commissioner Bell as follows : Then again the terms of the Proclamations themselves, and the regulations in the Gazette, were such as to make it in my opinion nearly impossible in most cases to comply with them. Governor Fitzroy published a notice condemning those who had made purchases prior to obtaining the waiver, and threatened to reject all applications where this had been done; but granted the waiver notwithstanding, in numerous cases after purchase. He said that only " a few hundred acres " were meant, and then granted applications for 1,000, 1,500, 2,000, and 3,000 acres. One thing, however, seems clear—no pre-emptive claimant could justly claim under any circumstances more land than his certificate entitled him to buy. If he had a certificate for 1,000 acres and bought 5,000 with it, he might have a just right to 1,000 acres, but under no interpretation could he have a just right to the excess. In this respect the pre-emptive claimant differs from the claimant under purchases made prior to the Queen's sovereignty ; but if in the latter class the principle be admitted that they should have all they bought, in the pre-emptive claims it should be admitted so far as that they should have all they bought up to the amount of their certificate ; and I hope nothing will be done which shall give any more land to one class and refuse it to the other."

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