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 to the benefit of the laws which affect all British subjects. He has obligations and rights both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony, he cannot be affected by those laws, for the laws of a colony cannot extend beyond its territorial limits."-See Craw v. Ramsay, 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 status, by the law of the colony: In re Adam, 1 Moore, P. C. 460.. When 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- Laws. visions 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: Cuvillier v. Aylwin, 2 Knapp, 72. The statute 6 Vict. c. 22, enacts that no law or ordinance 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 perjury, 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." Extent of jurisdiction of Colonial 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 be 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 letters 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. The jurisdiction of colonial legislatures extends to three miles from 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 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 Crown where 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. Legislatures consuetudo 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- Colonial 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 any legal analogy for the conduct of the other." The correctness of 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. Modes and dates of acquisition of Colonies. 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; Turk's Island, 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 CANADA: 31 Geo. 3, c. 31; 3 & 4 Vict. c. 35; 17 & 18 Vict. c. 118; 30 Vict. c. 3. 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 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: see In re The Lord |