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Power of Crown in case of Settle-' ments. i-'3
Barbarous or infidel countries.
Foreign acquisition vested in the Crown.
itself, and afterwards on appeal to the Queen in Council. All Acts which by reasonable construction must be-supposed to apply to the colonies, whether passed before or after the acquisition, will bo considered obligatory upon them. "The commercial intercourse of the colonies was regulated by the general laws of the British Empire, and could not be restrained or obstructed by colonial legislation :" Story, Comm. s. 178.
In the case of colonies by occupancy and settlement, the Crown alone cannot legislate, but it may by virtue of its prerogative appoint governors, and erect courts of justice, and give the power of summoning representative assemblies; in other words, may grant a constitution: Kielley v. Carson, 4 Moore, P. C. 85. An exception, however, in favour of the legislative power of the Crown has been made in the case of settlements on the coast of Africa and the Falkland Islands, where by statute 6 & 7 Vict, c . 13 the Queen in Council is empowered to establish laws, institutions, and ordinances; but all such Orders in Council are to be laid before Parliament.
When Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws but the sovereignty of their own State, and those who live amongst them, and become members of their community, become also partakers of, and subject to, the same laws: Advocate General of Bengal v. Banee Surnomoye Dossee, 2 Moore, P C. (N.S.) 59. As to the nature of the settlement made in the East Indies, see the same case, where the Court said: "If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories which they were permitted by tho ruling powers of India to establish; but this was not on the ground of general international law, or because the power of England or the laws of England had any proper authority in India, but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage of his judgment in the caso of Tlie Indian Chief, 3 Rob. Adm. 29." The passage here referred to is the following: "In the East from the oldest times an immiscible character has been kept up; foreigners are not admitted into the general body and among the society of the nation; they continue strangers and sojourners as all their fathers were—Dorix amara suam non intermiscuit undam: not acquiring any national character under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their present character from that of the association or factory under whose protection they live and carry on their trade."
British subjects cannot take possession in their own right of a foreign country, which, if acquired, becomes vested in the Crown. The statute 53 Geo. 3, c. 155, s. 95, declared the undoubted sovereignty of the Crown over the territorial acquisitions of the East India Company. "No point is more clearly settled in the courts of common law, than that a conquered country forms immediately part of the King's dominions:" per Sir VV. Scott, The Foltina, 1 Dods, 451; and see, per Lord Mansfield, Campbell v. Hall, 20 State Tr. 323. The mere possession of a territory by an enemy's force does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies : per cur. Cremidi v. Powell, 11 Moore, P. C. 101; and see The Manilla, 1 Edw. 3; Donaldson v. Thompson, 1 Camp. 429; Hagedorn v. Bell, 1 M. & S. 450.
Of course, all British colonies whatever are subject to the para- Colonies mount authority of Parliament: see statute 7 & 8 Will. 3, c. 22, s. 9. TM^*n^t In Campbell v. Hall, Cowp. 204, 20 State Tr. 304, Lord Mansfield said authority of that the power of giving a constitution by the Crown to a conquered Parliament. country is not exclusive of Parliament; "there cannot exist any power in the King exclusive of Parliament," and "a country conquered by the British arms becomes a dominion of the King in right of his crown, and therefore necessarily subject to tho legislative power of the Parliament of Great Britain."—Ibid. 324. This right of Parliament was expressly affirmed as to the American colonies by the statute 6 Geo. 3, c. 12, but afterwards as regards taxation renounced by statute 18 Geo. 3, c. 12. In bis Charge to the Grand Jury in B. v. Eyre, in 1808, it was 6aid by Blackburn, J.: "Although the general rule is that the legislative assembly has the sole right of imposing taxes on the colony, when the imperial legislature chooses to impose taxes, according to the rule of Englishlaw they have a right to do it." And again, "In the Navigation Laws there are express enactments that the colonists should not make laws to allow foreigners to trade with the colonies, and then they exercise the control which they had a right to exercise; and when that is done, no doubt the colonial legislature cannot make a law which would be binding in contradiction to the imperial legislature."—Ibid. See as to Canada, 14 Geo. 3, c. 83; 31 Geo. 3, c. 31; 3 & 4 Vict. c. 35. The statute 3 & 4 Will. 4, c. 59, s. 56, enacts that all laws in any of the British possessions in America repugnant to any Act of Parliament made or thereafter to be made, "so far as such Act shall relate and mention the said possessions," are, and shall be, null and void. The next section provides that no exemption from duty in any of the British possessions abroad contained in any Act of Parliament shall extend to any duty not imposed by Act of Parliament, unless and so far only as any duty not so imposed is expressly mentioned in such exemption. Statute 22 & 23 Vict. c. 12, enacts that it shall be lawful for the legislature or other legislative authority of any of Her Majesty's possessions abroad, to which any of the provisions of the statute 54 Geo. 3, c. 15 (" An Act for-the more easy Recovery of Debts in Tier Majesty's Colonies of New South Wales"),or certain sections of the statute 5 & 6 Will. 4, c. 62 (as to proof by declaration instead of oath), apply, to repeal, alter,
Status of aliens in the Colonies.
or amend all or any of such provisions, in like manner as if they bad been originally enacted by snch legislature or legislative authority. The Copyright Act (5 & 6 Vict. c. 45) says that the words " British dominions" in the Act shall include "all the colonies, settlements, and possessions of the Crown," and enacts that the Act shall extend to every part of the British dominions; and it was held in Low v. Boutledge, L. B. 1 Ch. App. 42, that an alien ami resident in Canada who had not complied with the provisions of the Canadian Copyright Act (4 & 5 Vict. c. C), was entitled to copyright tmder the Imperial Act. It was there contended that the general words " all colonies " did not include such colonies as have an independent legislature, and that the Imperial Act could not by a side-wind repeal the Canadian Act. But the Court said that the word " colonies " in the statute must extend to all colonies in the absence of a context to control it, and they could find no such context. The statute 26 & 27 Vict. c. 6, after reciting that Her Majesty has from time to time caused letters patent to be made under the great seal, intended to take effect within Her Majesty's colonies and possessions beyond the seas, enacts that no such letters patent shall (unless otherwise provided therein or by other lawful authority) take effect until the making of them has been signified therein by proclamation or other public notice.
The Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), provides that, subject to an}7 law that may be from time to time made by the legislature of any British colony or possessions, the Act shall be in force in every such colony and possession, and it is made to extend to the Channel Islands and the Indian territories of Her Majesty. And by statute 30 & 31 Vict. c. 45, s. 16, it is made lawful for Her Majesty to empower the Admiralty by commission under the great seal to establish Vice-Admiralty Courts in any British possession, notwithstanding that such possession may have previously acquired independent legislative powers. By statute 29 & 30 Vict. c. 65, Her Majesty may, by proclamation issued with the advice of the Privy Council, declare gold coins made at any colonial branch of the Royal Mint duly established by proclamation a legal tender within any part of the British dominions.
In Low v. Bouiledge, ubi sup., it was insisted in argument that an alien coming into Canada could only acquire such rights as are given by the law of Canada, and could not therefore be entitled to copyright; in support of which proposition the cases of Donegani v. Donegani, 3 Knapp. 63; Be Adam, 1 Moore, P. C. 460; Brook v. Brook, 3 Sm. & Giff. 481 ; 9 H. L. Ca. 193, S.C.; and Hope v. Hope, 8 D. M. & G. 731, were cited. But Turner, L.J., said : " On examining these_ cases they will be found to decide no more than this—that as to aliens coming within the British colonies, their civil rights within the colonies depend upon the colonial laws; they decide nothing as to the civil rights of aliens beyond the limits of the colonies. This argument on the part of the defendants is in truth founded on a confusion between the rights of an alien as a subject of a colony and his rights as a subject of the Crown. Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled tcTlhe benefit of the laws which affect all British subjects. fle~has obligations and rights both within and beyond the colony into Which he comes. As to his rights within the colony, ho may well be bound by its laws; but as to his rights beyond the colony, he cannot be affectecl by those laws, for the laws of a colony cannot extend beyond its territorial limits."—See Craw v. Bamsay, Vaugh. 274.
The status of a person domiciled in a colony must be determined by the law of England, but the rights and liabilities incident to such gtaitu, by the law of the colony: In re Adam, 1 Moore, P. C. 460.
hen an Act of Parliament declared that all laws passed by the Validity of legislature of a colony should be valid and binding within the colony, Colonial and that the colonial Court of Appeal should be subject to such pro- Lawsvisions as might be made by any Act of the colonial legislature, it was held that an Act having been passed by the colonial legislature limiting the right of appeal to causes where the sum in dispute was not less than a certain amount, a petition for leave to appeal in a case where the sum was of less amount could not be received by the King in Council, although there was a saving in the Colonial Act of the rights and prerogatives of the Crown: Guvillier v. Aylwin, 2 Knapp, 72. The statute 6 Vict. c. 22, enacls that no law or ordiuanco made by the legislature of any British colony for the admission of the evidence of persons " who, being destitute of the knowledge of God and of any religious belief, are incapable of giving evidence upon oath in any court of justice," shall be null and void or invalid by reason of any repugnancy to the law of England, but such law or ordinance shall be subject to the confirmation or disallowance of Her Majesty as any other law or ordinance of the colonial legislature. A question came before the Law Officers of the Crown, Sir R. Bethell, A. G., and Hon. J. S. Wortley, S. G., in 1857, as to the confirmation by Her Majesty of an ordinance passed by the Legislature of Hong Kong "for Amending the Law of Evidence in Trial by Jury;" and they said, in their Opinion: "The 6th Vict. c. 22 gives a power to the legislature of any British colony to make ordinances touching the admission of evidence in any judicial proceeding in such colony, although such ordinance may be repugnant to the law of England. This enactment is limited to the admission of evidence only, and the Act recognizes the obligation of Colonial Acts being in accordance with the law of England. But the 5th, 6th, 7th, and 8th enactments of the Hong Kong ordinance propose to alter most materially the established law of England in respect of the crime of perjuiy, and to make that punishable as perjury which by the laws of England does not amount to that offence. This is in our opinion illegal."
Recently, the powers of colonial legislatures have been enlarged and regulated by Acts of Parliament: see statute 26 & 27 Vict. c. 84. And by statute 28 & 29 Vict. c. 63, intituled "An Act to remove doubts as to the validity of Colonial Laws," it is enacted that any colonial law repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under the authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall bo read subject to such Act, order, or regulation, and shall to the extent of such repugnancy be void. But no colonial law shall be void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of such Act, order, or regulation; and no colonial law shall be void by reason only of any instructions with reference to such law, or the subject thereof, which may have been given to the Governor by Her Majesty, by an instrument other than the lotters patent or instrument authorizing him to assent to laws for the government of the colony. The colonial legislatures are also empowered to establish courts of judicature, and the representative legislatures (which are defined to be legislative bodies of which one half are elected by inhabitants of the colony) are empowered to make laws respecting their own constitution, powers, and procedure, provided that such laws shall have been passed in conformity with any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the colony. The term . "colony" in this Act includes all Her Majesty's possessions abroad in which there exists a legislature, except the Channel Islands, the Isle of Man, and British India. By stat. 28 & 29 Vict. c. 64, laws made by colonial legislatures for establishing the validity of marriages contracted in their respective colonies are to have the same force and effect within all parts of Her Majesty's dominions as they have within the colony for which such laws were made; but no effect or validity is given to any marriage unless both the parties were at the time of the marriage, according to the law of England, competent to contract the same. See as to the power of the Legislature of New South Wales to pass a particular Act, Bank of Australia v. Nias, 16 Q. B. 733; and see the powers of the old Irish Parliaments discussed in Craw v. Ramsay, Vaugh. 292.
Extent of The jurisdiction of colonial legislatures extends to three miles from
'Coloniali0" of the shore. In an opinion given by the Law Officers of the Crown—Sir Legislatures. J. Harding, Queen's Advocate; Sir A. E. Cockburn, Attorney General;
and Sir R. Bethell, Solicitor General—with reference to British Guiana, Feb. 1855, they said: "We conceive that the colonial legislature cannot legally exercise its jurisdiction beyond its territorial limits—-three miles from the shore—or, at the utmost, can only do this over persons domiciled in the colony who may offend against its ordinances even beyond those limits, but not over other persons." In an opinion given by Sir