members of Assembly were elected under writs issued without seals, whether such defect renders the legislative Acts of the Governor and Assembly invalid?

We beg leave to state to your Lordship that we have fully considered the case submitted to us, together with the accompanying papers, and we are clearly of opinion that no informality in the issuing of the writs can affect the validity of the acts done by the legislative body.

The absence of the seal might perhaps have justified the Sheriff or other officers to whom it was directed in treating the instrument as a nullity, and consequently refusing to proceed to an election. But the elections were, in fact, made, and we are of opinion that no objection could afterwards be raised to the form of the instruments under which the returning officers acted so as to affect the legislative power of the persons returned. Being of opinion that the legislative competency of the Assembly would not be affected by the circumstance of all the writs having been unsealed, we feel it hardly necessary to add, that it could not be affected by the fact that two of the writs issued without a seal supposing the rest to have been duly sealed.

We beg leave to add that it will be expedient for the future that all writs for the election of members of Assembly should issue under the seal of the colony, all writs being in strictness instruments under seal.

Temple, October 17, 1837.

J. CAMPBELL.
R. M. ROLFE.

(10.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, as to power of the Queen in Council to make laws for South Australia. 1838.

MY LORD,—We have to acknowledge the receipt of a letter from your Lordship, of yesterday's date, transmitting to us the copy of a letter received at the Colonial Office, from the Chairman of the Colonization Commissioners for South Australia, calling your Lordship's attention to the effect which the statute of the late Session, cap. 60, may be supposed to have on the laws previously enacted in that province, and requesting us to report our opinion on the

following questions:-First, whether under the statute 1 & 2 Vict. c. 60, s. 1, Her Majesty in Council has the power both to make laws and to delegate a concurrent, power of legislature to persons resident and being within the province? Secondly, whether the laws made by the local legislature, appointed under 4 Will. 4, c. 95 (1), are repealed or have lost their authority by virtue of the 1 & 2 Vict. c. 60 (2)? And if so, then, Thirdly, whether it is competent to the Queen in Council to revive the authority of such repealed or abrogated laws?

We have now the honour to report to your Lordship, in answer to the first question, that, in our opinion, the Queen has the power, by Order in Council, to make laws for the Government of the province; and that she has, concurrently with that power, the power of appointing, by warrant under the sign-manual, any three or more persons resident and being in the province, who will have the power of making laws for the colony, subject to any restrictions which Her Majesty may think fit to impose.

In answer to the second and third questions, we are clearly of opinion that all laws made under the authority of the Act 4 Will. 4, c. 95, will remain in force notwithstanding the Act of 1 Vict. c. 60.

Temple, August 22, 1838.

J. CAMPBELL.

R. M. ROLFE.

(11.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, as to question of disqualification to sit in the House of Assembly in Newfoundland. 1837.

MY LORD,We have had the honour to receive your Lordship's letter of the 16th inst., transmitting to us certain papers respecting the ejectment from the House of Assembly of Newfoundland of Mr. Power, one of the members for Conception Bay, and requesting our opinion whether the proceedings of the Assembly in this matter were according to law, and whether the seat of Mr. Power was legally vacated by his acceptance of the office of stipendiary magistrate?

(1) & (2) Both these Acts are repealed by 5 & 6 Vict. c. 61.

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.

Temple, July 20, 1837.

J. CAMPBELL.

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.

J. CAMPBELL.
THOS. WILDE.

(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.

July, 1854.

A. E. COCKBURN.
RICHARD BEthell.

Colonies acquired by Conquest.

NOTES TO CHAPTER I.

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,