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Having taken these papers into consideration, we have to report to your Lordship, that, in our opinion, the seat of Mr. Power was not legally vacated by his acceptance of the office in question, and that the proceedings of the Assembly of Newfoundland in this matter were contrary to law.
We think it is impossible to contend that the statutable disqualifications as to sitting in the House of Commons of the United Kingdom apply to the Assembly of Newfoundland. These disqualifications are different as to members for different parts of the United Kingdom, and cannot be applied to the members of a colonial Assembly established like that of Newfoundland.
The British House of Commons has never claimed the right by its own authority of disqualifying any persons elected by the people and not disqualified by the common law.
J. CAMPBELL. Temple, July 20, 1837.
R. M. ROLFE.
(12.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and Sir THOMAS WILDE, on the appointment of Magistrates in the Mauritius. 1811.
My LORD,—We have the honour to acknowledge the receipt of Mr. Vernon Smith's letter of the 14th inst., transmitting to us, by your Lordship’s directions, copies of a correspondence between the Secretary of State and the Governor of Mauritius, together with an ordinance passed by the Governor in Council, providing for the appointment of Justices of the Peace to take cognizance of certain matters relative to merchant seamen, and requesting our opinion whether there is any objection to the confirmation by Her Majesty of the ordinance transmitted by the Governor ?
Having considered this ordinance, with the accompanying documents, we have to report to your Lordship that, in our humble opinion, there is no objection to its being confirmed by Her Majesty. Although Her Majesty in Council has legislative authority in this colony, a subordinate legislative authority is deputed to the Governor with the advice and consent of the Council of Government, whereby such an ordinance as the present may be passed subject to be confirmed or disallowed by Her Majesty.
Generally speaking, it belongs to the prerogative of the Crown to appoint magistrates, but there are many precedents for this power being modified and regulated by legislative enactment.
Temple, January 22, 1841.
(13.) JOINT OPINION of the Attorney and Solicitor General, SIR A. E. COCKBURN and SIR RICHARD BETHELL, on the power of the Legislature of St. Helena to pass an Ordinance conferring
on a foreigner power to hold land in St. Helena. 1854. We have had the honour of receiving Mr. Merivale's letter dated the 4th instant, stating that he was directed to ask whether, having regard to the constitution of the Island of St. Helena as described in the said letter, we were of opinion,
1. That it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty's Government) to pass an ordinance conferring on a foreigner power to hold and transfer land within the colony of St. Helena ?
2. That in the event of such a course being deemed more advisable) land might be purchased by a British subject or subjects in St. Helena, to hold it as a trustee or trustees for the French Government, or for any person or body authorized by the French Government, to do the necessary acts for keeping the land in a proper state for the purpose required; that purpose being, the fencing, watching, and protecting from injury, the spot occupied until recently by the remains of the Emperor Napoleon I. ?
We have taken the subject into our consideration, and beg to state that the difference between the island of St. Helena and the settlement of Hong Kong (to our opinion with respect to which latter place we are referred) lies in this: that Hong Kong is territory ceded by a foreign State, and therefore retaining its own laws, and not subject to English law, save so far as English law may be introduced and established by the authority of the Crown; whereas, according to the information given us by Mr. Merivale's letter, the island of St. Helena was “occupied” by British subjects in the year 1650, who therefore carried with them such of the then existing laws of England as were applicable to the condition of a new settlement, and in which the law prohibiting aliens to hold land may probably be deemed to be included. But whether this be so or not is, we think, immaterial, because we are clearly of opinion that, even if the law against aliens being owners of land, and also the law of mortmain, be considered as having been introduced into St. Helena, it is competent to the Legislature of St. Helena, under the authority of the Act 3 & 4 Will. 4, c. 85, s. 112, and the Order in Council of 1835, to alter those laws; and we therefore think that it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty's Government) to pass an ordinance conferring on a foreigner power to hold and transfer land within the colony of St. Helena.
2. We are also of opinion that the course pointed out in the second question might be adopted, but that in such a case, also, an ordinance of the legislature would be requisite, and we think the first course is to be preferred.
A. E. COCKBURN.
NOTES TO CHAPTER I.
Colonies acquired by Conquest.
In Blankard v. Galdy, 2 Salk. 411, it was held that in the case of an infidel country obtained by conquest, the laws do not entirely cease, but only such as are against the law of God; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. In Calvin's Case, 7 Rep. 17, the rule is stated much to the same effect-namely, that“ if a Christian King should conquer the kingdom of an infidel, and bring them under his subjection, then, ipso facto, the laws of the infidel are abrogated, for that they are not only against Christianity, but against the laws of God and of nature contained in the Decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such judges as he shall appoint, shall judge them and their cases according to natural equity. But if a king conquers a Christian kingdom, he may at his pleasure alter the laws of the kingdom, but until he does so, the ancient laws remain.” And see 2 P. Will. 75, Com. Dig. Ley (C). In Blankard v. Galdy, as reported in Comberbach, 228, the Court observed, “ where it is said in Calvin's case that the laws of a conquered country do immediately cease, that may be true of laws for religion, but it seems otherwise of laws touching the government.” In Campbell v. Hall, Cowp. 209, 20 State Tr. 239, Lord Mansfield said that the laws of a conquered country continue in force until they are altered by the conqueror, and he added, that the “absurd exceptions as to pagans mentioned in Calvin's case,” in all probability arose “ from the mad enthusiasm of the crusaders.” And he said also, addressing counsel, as reported in 20 State Tr. 294, “Don't quote the distinction for the honour of Lord Coke." But a distinction between Christian and non-Christian countries seems to be countenanced by a decision of the Judicial Committee in Papayanni v. Russian Steam Company, 2 Moore, P. C. (N. S.) 181, where it is said, that although between two Christian States all claims for jurisdiction must be founded upon treaty engagements of similar validity, the same strict rule as to precision of treaty obligations would not be required between a Christian and a non-Christian State; and they added, “Consent may be expressed in various ways-by constant usage per- ' mitted and acquiesced in by the authorities of the State, active assent, 2 or silent acquiescence where there must be full knowledge." Laws 3 contrary to the fundamental principles of the British Constitution cease at the moment of conquest. Thus torture as a punishment would no longer exist : “ The constitution of this country put an end to that idea :" per De Grey, C.J., Fabrigas v. Mostyn, 20 State Tr. 181. In Picton's Case, 30 State Tr. 742, Lord Ellenborough, C.J., said, “The laws that are repugnant to the rights of the conquering State cease, of course;" upon which Mr. Nolan, one of the counsel for the prosecution, observed : “ That position carried to its proper extent is all for which it is necessary that I should contend. By the laws respecting religion in the very country (Spain) from which this island (Trinidad) has been conquered, a heretic may be burned ; and by the laws of the same country, any person converting a Roman Catholic to the Protestant religion might be burned likewise. If, therefore, the chaplain of any one of his Majesty's regiments had converted this poor girl to the Protestant faith, General Picton would have had a right, nay, it would have been his duty, to have burned this reverend person upon the principle for which his counsel must contend to-day.” In Ruding v. Smith, 2 Hagg. Cons. R. 380, Lord Stowell said : “ It sometimes happens that the conquered are left in possession of their own laws—more frequently the laws of the conquerors are imposed upon them; and sometimes the conquerors, if they settle in the country, are content to adopt for their own use such part of the laws prevailing before the conquest as they may find convenient under the change of authority to retain. I presume that there is no legal difference between a conquered country and a conquered colony in this respect as far as general law is concerned; and I am yet to seek for any principle derivable from that law which bows the conquerors of a country to the legal institutions of the conquered. Such a principle may be attended with most severe inconvenience in its operation .... I am perfectly aware that it is laid down generally, in the authorities referred to, that the laws of a conquered country remain till altered by the new authority. I have
to observe, first, that the word remain has ex vi termini a reference to its obligation upon those in whose usage it already existed, and not to those who are entire strangers to it, in the whole of their preceding intercourse with each other. Even with respect to the ancient inbabitants, no small portion of the ancient law is unavoidably superseded by the revolution of government that has taken place :" see The Fama, 5 Rob. Adm. 106.
The old Hindoo law is thus stated in the Institutes of Menu, Art. 203: “Let him (the King) establish the laws of the conquered nations as declared in their books.” It is little to the credit of our legislature that the practice of suttee in the East Indies was sanctioned by Act of Parliament. The stat. 37 Geo. 3, c. 142, s. 12, provided that no act done in India in consequence of the rule or law of caste, so far as respected the members of the same family only, should be deemed a crime, although the same might not be justifiable by the laws of England. But by Regulation XVII. of 1829, passed by the GovernorGeneral in Council, the practice of suttee was declared illegal, and punishable by the criminal courts. All persons convicted of aiding and abetting in the sacrifice of a Hindoo widow were to be deemed guilty of culpable homicide. The preamble of this Regulation states that the practice of suttee was “revolting to the feelings of human nature,” and that in abrogating it the Governor-General in Council did not intend to depart “from one of the first and most important principles of the system of British Government in India, that all classes of the people be secure in the observance of their religious usages, so long as that system can be adhered to without violation of the paramount dictates of justice and humanity” (1).
Subject to the exceptions stated by Lord Mansfield in Campbell v. Hall, Cowp. 209, 20 State Tr. 323, that the Crown cannot make any change contrary to fundamental principles, such as exempting an inhabitant from the laws of trade or from the power of Parliament, or giving him privileges exclusive of other subjects, “and so on in many other instances which might be put,” the Queen in Council may impose upon a conquered country whatever laws she may think fit. “If the King refuses to grant a capitulation, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection, and grants them their property, he has a power to fix such terms and conditions as he thinks proper." - Campbell v. Hall, ubi sup.; and see Smith v. Brown, 2 Salk. 666.
In Jephson v. Riera, 3 Knapp, 130, it was contended that Acts of Parliament or Orders in Council were the only constitutional modes by which the laws of a conquered country could be changed. But the Court held that, “ as the charters of justice appeared to have been issued under the great seal, and therefore under the advice of a known responsible minister of the Crown, and as the language plainly and
(1) It is a remarkable fact that suttee is nowhere mentioned in the Vedas or in the Institutes of Menu, but by inveterate custom it had acquired the force of law.