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 any of the islands in the Channel :" per Lord Ellenborough, C.J., Lubbock v. Potts, 7 East, 455: see Rubichon v. Humble, 1 Dow. 191; Roberdean 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 supreme within the limits of the colony, for the government of its inhabitants :" Kielley v. Carson, 4 Moore, 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:" The 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 Cape of Good Hope between British subjects by the chaplain of the British forces occupying that settlement under capitulation, the judgment of Lord Stowell in Ruding v. Smith, 2 Hagg. Cons. R. 371; and see Burn v. Farrar, 2 Hagg. Cons. R. 369. The common law of England is the common law of the colonies, applicable to and 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 mentioned: 2 P. Will. 75; R. 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 be 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: R. v. Vaughan, 4 Burr. 2500-Statute of Frauds as to devise of lands: 2 P.

Statutes

the Colonies.

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 same 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 a colony, Rolfe 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. Ranee Surnomoye Dossee, 9 Moore, Ind. App. 387; see Bentinck v. Willink, 2 Hare (Ch.) 1.

Whether any particular statute has or has not force in a colony must therefore be determined by the proper tribunals-first, in the colony

c 2

Power of

of Settle

ments.

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 be 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 Crown in case 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.

Barbarous or infidel countries.

Foreign acquisition

vested in the Crown.

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. Ranee 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 the 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 case of The 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-Doris 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 W. 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.

paramount

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. subject to 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 the 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 his Charge to the Grand Jury in R. v. Eyre, in 1868, it was said 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 English law 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 Her 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

Colonies.

or amend all or any of such provisions, in like manner as if they had been originally enacted by such 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. Routledge, L. R. 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. 6), was entitled to copyright under 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 any 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. Routledge, ubi sup., it was insisted in argument that an aliens in the 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; Re 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