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explicitly declared the will of the King that the English law shall be the measure of justice in Gibraltar, the law of England has been lawfully substituted for the law of Spain." And in Cameron v. Kyte (ibid. 346), which was the case of a colony (Berbice) ceded by capitulation from the Dutch, and the question was as to the power of the Governor to alter the existing law, there being no such power contained in his commission, the Court said: ""We do not mean to say that this portion of the King's sovereign authority may not be exercised by other means than by the Order of his Majesty in Council; that it may not be given by a commission or instruction under the King's sign-manual and signet .... We do not say that the King's will, intimated by the Secretary of State for the Colonies, might not be operative." Also, "the King has the whole legislative authority in a conquered colony, in so far as he may not have parted with it by capitulation or by his own voluntary grant." And in Beaumont v. Barrett, 1 Moore, P. C. 75, with reference to Jamaica : " It appears that it was a conquered island ; and, as in other territories obtained by conquest, such laws are in force there as the King, by his supreme authority, may choose to direct." But we must always understand that this power of the Crown is subject to the exceptions already stated as laid down by Lord Mansfield. The King cannot change the laws of the land : Bro. Abr. Prerog. The King cannot by his grant alter the law in any respect: Com. Dig. Prerog. (D) (i). And whatever may be the theoretical power of the Crown over a conquered territory, it is not likely that public opinion would tolerate any harsh or exceptional exercise of the prerogative; so that, in point of fact, its situation under the Crown of England will be very much the same as that of a country acquired by settlement and occupancy. Lord Chief Justice Cockburn says, in a note to his published Charge to the Grand Jury in B. v. Eyre, in 1867, p. 19, that the question of the power to put martial law in force in Jamaica (as to which he had no doubt that it was entitled to the character of a settled colony—"the land was conquered, but the inhabitants by whom it was settled were not")—is not affected by the precedents of Demerara, Ceylon, or any other Crown colony, as in those the power of the Crown is absolute. In his Charge to the Grand Jury in another case of B. v. Eyre, in 1868, Blackburn, J., said : "When a colony is acquired by conquest, and when it had a foreign law in force .... I believe there is no doubt that the Crown has an option; and one of its powers in such a case is either to leave the law which was in force in the country at that time still in force ... or to change that law, to abolish it, and
(i) In old times the King claimed the right by his prerogative to disgavel lands, and change customary lands into military tenures. For instances see Elton's "Tenures of Kent :" London, 1867, pp. 368, 370. But it afterwards became settled law that nothing but an Act of Parliament could change a tenure inherent in the land itself. "If gavelkind lands escheat and come to the Crown by attainder, and be granted to be held by knight-service, or per baronium, the customary descent is not changed; neither can it be, but by Act of Parliament, for it is a custom fixed in the land."—Hale's Hint. Com. Law, p. 312.
Colonies acquired by Cession.
Where a Legislature has been granted.
to substitute the English law. Whether it could go further, and substitute the English law or not, is immaterial for us to consider at present, and I express no opinion upon it."
A country reconquered from an enemy reverts to the same state that it was in before its conquest. The second acquisition is, in fact, considered rather as a resumption than a conquest: Oumbes's Case, 2 Knapp, 369. In such a case the doctrine of Jus postliminii seems to apply.
The same rule of English law as to the power of the Crown to impose law applies equally to a country obtained by cession, except that, of course, the right of legislation may be regulated by the terms of the treaty with the ceding power; and those terms ought to be inviolably observed. Thus, in Be Adam, 1 Moore, P. C. 470, the Court said: "The Mauritius, before its surrender to Great Britain in 1810, was a French colony, and having been surrendered on the condition that the inhabitants should preserve their religious laws and customs, we must look to the law of France as established in the colony before that event."
The following Case and Opinion are taken from Chalmers's Opinions:—
Case.—" By the Treaty of Utrecht, the King of France gave up the French part of Newfoundland to Great Britain, but the French inhabitants were allowed to remain there and enjoy their estates and settlements, provided they qualified themselves to be subjects of Great Britain, and those who would not do it had leave to go elsewhere, and take with them their moveable effects. But by her late Majesty's letter, in consideration of the King of France releasing a number of Protestant slaves out of his galleys, she did permit the French inhabitants at Placentia in Newfoundland, who were not willing to become her subjects, to sell and dispose of their leases and lands there."
Quare.—" Whether the Queen by the said letter could dispose of lands granted to the Crown by treaty?"
Opinion.—" I am of opinion that the Queen could not by her letter dispose of lands granted to the Crown by treaty; but if she entered into any regular agreement with the Crown of France for that puipose, she was by the law of nations engaged to do everything in her power to enable the French to have the benefit of it; which might be done by her confirming the title to such of her subjects as should pay the French a consideration in money, or otherwise, for their lands or houses.
"March 10, 1719-20. "Bichd. West."
When the Crown has once granted a legislature to a conquered or ceded colony, it cannot afterwards exercise with respect to such colony its fonner power of legislation: Campbell v. Hall, Cowp. 204, 20 State Tr. 329, where Lord Mansfield said : "We therefore think by the two proclamations, and the commission to Governor Melville, the King had immediately and irrevocably granted to all who did or should inhabit, or who had or should have property in, the island of Grenada— in general to all whom it should concern—that the subordinate legislation over the island should be exercised by the Assembly, with the Governor and Council, in like manner as in the other provinces under the King" (i). "After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom:" Be Lord Bishop of Natal, 3 Moore, P. C. (N.S.) 148. And even if a constitution has not been given, but the laws of England have been granted by the Crown, it seems that its power to change them in the colony is gone. In Calvin's Case, 7 Rep. 14, the Court said: "And if a king took a Christian kingdom by conquest, as King Henry II. had Ireland, after King John had given unto them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without Parliament:" see Be The Island of Cape Breton, 5 Moore, P. C. 259. A question came before the Law Officers of the Crown and myself in 1867, as to whether the Indian Legislature, by virtue of the power inherent in sovereignty, irrespective of Acts of Parliament, could pass laws binding on native subjects out of British India; and we were of opinion that, having regard to the manner in which imperial legislation had been from time to time applied to the government of India, the extent of the powers of the Legislature of India depended upon the authority conferred upon it by Acts of Parliament, and we thought it unsafe to hold that the Indian Legislature had an inherent power to pass such laws. It is, however, right to mention that the then Queen's Advocate (Sir R. Philliniore) was of a different opinion.
With respect to colonies acquired by occupancy and settlement, which Colonies aoare in fact plantations in the original meaning of the word, the opinions Jjjjj^ ^ given in the text accurately express the law: see 2 P. Will. 75; UDancy Ft^-bes v. Cochrane, 2 B. & C. 463. "The common law is the inheritance of all the subjects of the realm; and therefore in the plantations or elsewhere, where colonies of English are settled, they are to be governed by tho laws of England. So if a foreign territory, not inhabited, be obtained by the Crown of England, all laws of England bind there:" Com. Dig. Ley (C). "The term 'plantations,' in its common known signification, is applicable only to colonies abroad, where things are grown, or which were .settled principally for the purpose of raising produce; and have never, in fact, been applied to a place like Gibraltar, which is a mere fortress and garrison, incapable of raising produce, but
(i) The island of Grenada had been taken by Great Britain in the Seven Years' War, and ceded to ns at the Peace of 1762. Tho King, by a proclamation issued in 1703. of his own authority imposed a tax of 4 per cent, on all exports ; and the action was brought in the Court of King's Bench in England by the plaintiff, a British subject, w ho had subsequently purchased an estate and settled in the island, to recover back the sum he had been compelled to pay under this tax, in order that he might have liberty to ship his sugars to London. He maintained that such a tax could only be imposed by the authority of Parliament.
supplied with it from other places. In truth, the term plantation in the sense used by the Navigation Laws has never been applied either in common understanding or in any Acts of Parliament (at least none such could be pointed out when demanded in the course of the argument) to any of the British dominions in Europe; not to Dunkirk, while that was in our possession, nor at the present day to Jersey, Guernsey, or anj' of the islands in the Channel:" per Lord Ellenborough, C.J., Lubbock v. Potts, 7 East, 455: see Bubichon v. Humble, 1 Dow. 191; Boberdean v. Rous, 1 Atk. 543. "Newfoundland is a settled, not a conquered colony, and to such colony there is no doubt that the settlers from the mother-country carried with them such portions of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have, on the other hand, the same laws and the same rights, unless they have been altered by Parliament. And, upon the other hand, the Crown possesses the same prerogatives and the same powers of government that it does over its other subjects. Nor has it been disputed that the Sovereign had the right of creating a local legislative assembly, with authority subordinate indeed to Parliament, but supremo within the limits of the colony, for the government of its inhabitants:" Kielley v. Carson, 4 Mooro, P. C. 84. "It is not disputed that the law prevailing in the Falkland Islands must be considered to be the common law of England, modified only by such statutes as apply to these islands:" Hie Falkland Islands Company v. The Queen, 2 Moore, P. C. (N.S.) 273. In R. v. Brampton, 10 East, 288, Lord Ellenborough, C.J., said: "In the absence of any evidence to the contrary, I may suppose that the law of England, ecclesiastical and civil, was recognised by subjects of England in a place occupied by the King's troops, who would impliedly carry that law with them." But this is too broadly stated, and is certainly not true as regards ecclesiastical law. See, as to the validity of a marriage celebrated at the Capo of Good Hope between British subjects by the chaplain of tho British forces occupying that settlement under capitulation, the judgment of Lord Stowell in Buding v. Smith, 2 Hagg. Cons. R. 371; and see Burn v. Farrar, 2 Hagg. Cons. R. 309. Statutes The common law of England is the common law of the colonies,
the^Coloifies' ani^ such statutes as have been passed in affirmance of the common law previous to their acquisition, are in force there; but no statutes afterwards passed are binding on their rulers, unless they are_particularly montioned: 2 I*. Will. 75; JR. v. Vaughan, 4 Burr. 2500. The question of whether a particular statute has been introduced into a colony seems to be one of fact, and may bo proved by evidence. It was so treated in Gardener v. Fell, 1 Jac. & "Walk. 22; and Freeman v. Fairlie, 1 Moore, Ind. App. 305. Amongst the statutes which have been held not to apply to the colonies are the Mortmain Acts: Attorney General v. Stewart, 2 Mer. 143—positive regulations of Police: B. v. Vaughan, 4 Burr. 2500—Statute of Frauds as to devise of lands: 2 P. Will. 75—Penal statutes: Blankard v. Galdy, 2 Salk. 402; Dawes v. Painter, Freeman, 175—the Alien Acts: Mayor of Lyons v. East India Company, 1 Moore, P. C. 175—the Marriage Acts: Lautour v. Teesdale, 8 Taunt. 836—the Bankrupt Acts: Clark v. Mullick, 3 Moore, P. C. 252. As to Statutes of Limitation, it has been held that 21 Jac. 1, c. 16, extends to the East Indies: East India Company v. Oditchurn Paul, 7 Moore, P. C. 85. In an opinion given by Sir. A. Cockburn, A.G., and Sir R. Bethell, S.G., August, 1854, they said that neither the 21st Jac. 1, c. 2, an Act to quiet title against the Crown, nor the 9th Geo. 3, c. 16, extending and amending that Act, applies to Prince Edward's Island; not the first of these statutes, because it only applies to lands which had been enjoyed for sixty years at the passing of the Act; nor the second, because at the time it passed Prince Edward's Island was part of the province of Nova Scotia, which had a legislative constitution of its own; and the Act not being extended to the colonies, it would not apply to Nova Scotia or Prince Edward's Island. The statute 9 Geo. 4, c: 83, s. 24, enacts that all laws and statutes within the realm of England at the time of the passing of that Act (not being inconsistent with any charter, or letters patent, or Order in Council, which might be issued in pursuance thereof), should be applied in the Courts of New South Wales and Van Diemen's Land, so far as the samo could be applied within the said colonies. And it provided that the governors of those colonies, with the advice of the Legislative Councils, might, by ordinances, declare whether any particular laws or statutes extended to such colonies; but before such ordinances were made, the Supreme Courts were to adjudge and decide as to their application. And it was held in Astley v. Fisher, 6 C. B. 572, that a plea of an attorney's lien on a deed for work done in the Supreme Court of New South Wales was bad, as it did not show that the law of New South Wales was not inconsistent with the lien claimed. There Maule, J., said, " The 9 Geo. 4, c. 83, does not import into the colony all the English law." It has been held that the rule of the English common law, that rent due is a debt which ranks in the administration of assets as a specialty debt, does not apply to Jamaica, nor to any lands out of the jurisdiction of the English courts: Vincent v. Godson, 24 L. J. (N.S.), (Ch.) 121. See as to land in India, Freeman v. Fairlie, 1 Moore, Ind. App. 305; and as to a rule of the English bankrupt law prevailing in it colony, Bolfe v. Flower, 3 Moore, P. C. (N.S.) 365. In Colonial Bank v. Warden, 5 Moore, P. C. 354, Parke, B., said: "The 78th section of 2 & 3 Vict. c. 41, says, 'all moveable estate and effects of the bankrupt, wherever situate;' that would include the colonies." The English law of felo de se, with consequent forfeiture, does not apply to the suicide of a Hindoo in India: Attorney General of Bengal v. Banee Surnomoye Dossee, 9 Moore, Ind. App. 387; see Berdinck v. Willink, 2 Hare (Ch.) 1.