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J. Harding, Queen's Advocate, in Aug. 1854, on the question within what distance of the coasts of the Falkland Islands foreigners might be legally prevented from whale and seal fishing, he said : “Her Majesty's Government will be legally justified in preventing foreigners from whale and seal fishing within three marine miles (or a marine league) from the coasts, such being the distances to which, according to the modern interpretation and usage of nations, a cannon-shot is supposed to reach.”
The statute 23 & 24 Vict. c. 121, after reciting that divers of Her Power of Majesty's subjects have occupied, or may hereafter occupy, places being a
8 no Legislapossessions of Her Majesty, but in which no Government has been tures estaestablished by authority of Her Majesty, enacts that the provisions of blished. statute 6 & 7 Vict. c. 13, by which the Crown is empowered to establish by Order in Council laws, institutions, and ordinances for the government of Her Majesty's settlements on the coast of Africa and the Falkland Islands, shall extend to all possessions of Her Majesty not having been acquired by cession or conquest, nor, “ except in virtue of this Act,” being within the jurisdiction of the legislative authority of any of Her Majesty's possessions abroad. The statute 3 & 4 Will. 4, c. 93, empowers the Crown to appoint superintendents of trade in China, and by Order in Council to give them power and authority to make regulations for the government of British subjects in China, and to impose penalties, forfeitures, or imprisonment for the breach of such regulations. See on this Evans v. Hutton, 4 M. & G. 941.
In an opinion given by Sir A. Cockburn, A.G., and Sir R. Bethell, Power of S.G., Feb. 15, 1856, they said, that “the law and practice of Parlia- Colon
a Legislatures ment, as established in the United Kingdom, are not applicable to to commit. colonial legislative assemblies, nor does the rule of the one body furnish The lex et
e consuetudo any legal analogy for the conduct of the other.” The correctness of P
Parliamenti this opinion has been abundantly established by decided cases. It was does not held, indeed, in Beaumont v. Barrett, 1 Moore, P. C. 59, that the Legisla- apply. (1) tive Assembly of Jamaica had the power of imprisoning for contempt by the publication of a libel. But so far as that decision was founded upon the idea that every legislative body had the power of committing for contempt, it may be considered as overruled by Kielley v. Carson, 4 Moore, P.C. 63, where the Court decided that the House of Assembly in Newfoundland had no such power, saying: “They are a local legislature with every power reasonably necessary for the proper exercise of their functions and duties; but they have not what they have erroneously supposed themselves to possess—the same exclusive privileges which the ancient law of England has annexed to the House of Parliament.” But it may be inferred from what was said in that case that frequent usage of the power of committal by a colonial legislature,
(1) See an opinion by Mr. Hargrave, in 1793, on a commitment by the Irish House of Lords for contempt and breach of privilege : “ Jurisconsult Exercitations," i. 197.
and long acquiescence by the public with the sanction of the local tribunals, would raise a presumption that the power had been duly communicated by law. See also Fenton v. Hampton, 11 Moore, P. C. 347 ; Doyle v. Falconer, L. R., 1 P. C. 328. In the last case the Court said : “ The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of the lex et consuetudo Parliamenti, which is a law peculiar to and inherent in the two Houses of Parliament in the United Kingdom. It cannot therefore be inferred, from the possession of certain powers by the House of Commons by virtue of that ancient usage and prescription, that the like powers belong to the legislative assemblies of comparatively recent creation in the dependencies of the Crown. Again, there is no resemblance between a colonial House of Assembly, being a body which has no judicial functions, and a court of justice being a court of record. There is, therefore, no ground for saying that the power of punishing for contempt, because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other.” They added that in the case before them—that of the Legislature of Dominica—such a privilege might possibly have been granted by the instrument creating the Assembly, since Dominica was a conquered or ceded colony, and the introduction of the law of England seems to have been contemporaneous with the creation of the Assembly. It might be possible to enlarge the existing privileges of the Assembly by an Act of the local legislature passed with the consent of the Crown, since such an Act seems to be within the 3rd section of the statute 28 & 29 Vict., c. 63 (" An Act to remove doubts as to the validity of Colonial Laws"). That extraordinary privileges of this kind when regularly acquired would be duly recognised, had been shown by the case of Dill v. Murphy, 1 Moore, P. C. (N. S.) 487, in which it was held that the lex et consuetudo Parliamenti does not apply as part of the common law to the colonies. The House of Keys in the Isle of Man has not in its legislative capacity the power to commit for contempt: Re Brown, 33 L. J. (N. S.) Q. B. 193.
The following is a list of the British Colonies, with the modes and dates of acquisition :
By CAPTURE: Gibraltar, 1704 ; Malta, 1800.
By CAPITULATION : Jamaica, 1655; Ceylon, 1796 ; Cape of Good Hope, 1796 ; Trinidad, 1797; St. Lucia, 1803; British Guiana, 1803; Mauritius, 1810.
By CESSION : Honduras, 1670; Canada, 1763; Dominica, 1763 ; Grenada, 1763; St. Vincent, 1763–1783; Tobago, 1763; Bahamas, 1783. (It seems doubtful whether the Bahamas were acquired by cession or by conquest. See Clark's “ Colonial Law," p. 367.) Heligoland, 1814; Hong Kong, 1843; Labuan, 1846.
By SETTLEMENT: Newfoundland, 1497; New Brunswick and Nova Scotia, 1497 (now incorporated with Canada); Prince Edward's Island, 1497; Barbadoes, 1605 ; Bermuda, 1609; Nevis, 1628; Túrk's Island,
Modes and dates of acquisition of Colonies.
1629; Gambia, 1631 ; Antigua, 1632 ; Montserrat, 1632; St. Christopher, 1623-1650 ; St. Helena, 1661; Gold Coast, 1661; Virgin Islands, 1665; Sierra Leone, 1787; Australian colonies, from 1787 to 1859; Tasmania, 1803; New Zealand, 1814; Falkland Islands, 1765 and 1833 ; British Columbia, 1858.
The STRAITS SETTLEMENTS, comprising Singapore, Penang, and Malacca, were transferred from the Indian Government to the Colonial Office by Order in Council under the stat. 29 & 30 Vict: c. 115.
With respect to Constitutions, our colonies may be divided into Colonial two classes: 1, those which possess representative institutions which Constitutions. have been established either directly or indirectly under the authority of Acts of Parliament; and 2, those whose Constitutions have been established by local Acts, which have afterwards received the Royal assent.
In the first class are included
COLUMBIA : 29 & 30 Vict. c. 67 (repealing 21 & 22 Vict. c. 99).
NEW SOUTH WALES : 5 & 6 Vict. c. 76; 7 & 8 Vict. c. 74; 13 & 14
South AUSTRALIA: 5 & 6 Vict. c. 61; 13 & 14 Vict. c. 59 : 25 Vict. c. 11.
TASMANIA (Van Diemen's Land): 5 & 6 Vict. c. 76; 7 & 8 Vict, c. 74; 13 & 14 Vict. c. 59; 25 Vict. c. 11 ; 29 & 30 Vict. c. 74. In an Opinion given by Sir A. Cockburn, Attorney General, and Sir R. Bethell, Solicitor General, in June, 1855, they said : “ We are of opinion that the legal mode of effecting the proposed alteration in the name of the colony of Van Diemen's Land into Tasmania, is by an Order in Council, followed by the Queen's proclamation.”
QUEENSLAND: 24 & 25 Vict. c. 44.
New ZEALAND: 3 & 4 Vict. c. 62; 15 & 16 Vict. c. 72; 20 & 21 Vict. c. 53; 25 & 26 Vict. c. 48.
In the second class are included —
ANTIGUA: Colonial Act, No. 861, 1866; No. 4, 1867. Imperial Act, 22 & 23 Vict. c. 13 (authorizing the Crown to ratify a Colonial Act extending the operation of the laws of Antigua to the island of Barbadoes).
BARBADOES, 1666. See Clarke's “ Colonial Law,” p. 179.
CAPE OF Good HOPE: By letters patent, May, 1850, the Legislature of the Cape of Good Hope was empowered to pass ordinances establishing a representative government for the colony, and ordinances constituting a Council and House of Assembly were accordingly passed by the Legislature and confirmed by Her Majesty : seo In re The Lord
Bishop of Natal, 3 Moore, P. C. (N. S.) 118. The constitution of the
DOMINICA : Royal proclamation, 1775; Colonial Acts, 1863, 1865.
TOBAGO : Colonial Act, 1855. Colonial There is a class of colonies in which the legislative authority-geneby authority
his rally consisting of a governor and executive and legislative councils of the Crown. -has been constituted by charter or letters patent from the Crown,
or by virtue of commissions of governors, independently of Imperial or Colonial Acts. Amongst these are included BERMUDA, BRITISH GUIANA, BAHAMAS, Ceylon, GIBRALTAR, HELIGOLAND, Hong Kong, LABUAN, MALTA, MAURITIUS, NATAL, St. Kitts, Sr. LUCIA, TRINIDAD, Turk's ISLAND (separated from the Bahamas Government, and annexed to that of Jamaica, by Order in Council, 1848).
ST. HELENA is governed by Orders in Council, under the authority of stat. 3 & 4 Will. 4, c. 85, s. 112.
JAMAICA is in an exceptional position since the late insurrection ; for now, by 29 Vict. c. 12, the Queen is empowered to create and constitute a government in such form and with such powers as to Her Majesty may best seem fitting, and from time to time to alter or amend such government. The constitution is, in fact, abolished. And by 6 & 7 Vict. c. 13, Her Majesty is empowered to establish by Order in Council laws, institutions, and ordinances for the government of her SETTLEMENTS ON THE COAST OF AFRICA and the Falkland Islands. (A charter
was granted to the latter in June, 1843.) Cases relating The following are some of the principal decided cases which relate to the
to different British colonies :Colonies.
BARBADOES : Gill v. Barron, L. R. 2 P. C. 157.
Bermuda : Kennedy v. Trott, 6 Moore, P. C. 449 ; Ex parte Jenkins, L. R. 2 P. C. 258.
BRITISH GUIANA : Re M'Dermott, L. R. 1 P. C. 260.
CANADA : Macdonald v. Lambe, L. R. 1 P. C. 539; Renaud v. Tourangeau, L. R. 2 P. C. 4; Kierzkowski v, Dorion, L. R. 2 P. C. 291; (Nova Scotia) Re Island of Cape Breton, 5 Moore, P. C. 259; Wallace v. M'Sweeney, L. R. 2 P. C. 180.
CAPE OF Good HOPE : Ruding v. Smith, 2 Hagg. 371; Long v. Bishop
either a a the quest, Sir J. Rotthat th
of Capetown, 1 Moore, P. C. (N. S.) 411; Re Lord Bishop of Natal, 3 Moore, P. C. (N. S.) 125; Bishop of Natal v. Gladstone, L. R. 3 Eq.1; Murray v. Burgess, L. R. 1 P. C. 362.
CEYLON : Anstruther v. Arabin, 6 Moore, P. C. 286; Lindsay v. Duff, 15 Moore, P. C. 452.
DOMINICA : Doyle v. Falconer, L. R. 1 P. C. 328.
GIBRALTAR: Lubbock v. Potts, 7 East, 449; Jephson v. Riera, 3
GRENADA: Campbell v. Hall, Cowp. 204; 20 State Tr. 329.
HONDURAS: Hodge v. Attorney General of Honduras, 2 Moore, P. C. (N. S.) 325. In a case in 1851, where two persons had been tried and convicted of piracy on the high seas, at a commission court held at Honduras, an objection was taken that British Honduras did not come within the meaning of the 5th clause of the statute 12 & 13 Vict. c. 96, as being either a colony, island, plantation, dominion, fort, or factory of Her Majesty, and the question was referred to the Law Officers, Sir J. Dodson, Queen's Advocate, Sir J. Romilly, A.G., and Sir Alexander Cockburn, S.G., who were of opinion that the objection was not free from doubt; “but upon the whole, notwithstanding whatever may have been the original state of things in that settlement, we are disposed to think that at present it has become a part of the dominions of Her Majesty, and that consequently the objection is invalid.”
Hong Kong: Re Pollard, L. R. 2 P. C. 106.
JAMAICA : Campbell v. Hall, Cowp. 204; Beaumont v. Barrett, 1 Moore,
MAURITIUS: Re Adam, 1 Moore, P. C. 670; Rouchecouste v. Dupont, 2 Moore, P. C. (N. S.) 195; Sérandat v. Saïsse, L. R. 1 P. C. 152.
NATAL: Re Lord Bishop of Natal, 3 Moore, P. C. (N. S.) 115; Bishop of Natal v. Gladstone, L. R. 3 Eq.1; Natal Land Company v. Good, L. R. 1 P. C. 121.
NEW SOUTH WALES: Devine v. Holloway, 14 Moore, P. C. 290 ; Lang v. Purves, 15 Moore, P. C. 389; Graham v. Barry, 3 Moore, P. C. (N. S.) 207; The Queen v. Murphy, L. R. 2 P. C. 35.
NEWFOUNDLAND: Kielley v. Carron, 4 Moore, P. C. 63.
Victoria : Dill v. Murphy, 1 Moore, P. C. (N. S.) 487; The Queen v. Dallimore, L. R. 1 P. C. 13; Rolfe & Bank of Australia v. Flower, ib. 27; The Attorney General of Victoria, ib. 147.
Confirmation In every colony the Governor has authority either to give or to with- and disallowhold his assent to laws passed by the other branches or members of the ance of legislature, and until that assent is given no such law is binding or valid. Colonial Acts
" or Ordinances,