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Lcraqua le document est trop grand pour Atre reproduit en un seul clichA. ii est iWmi d partir de I'angle aupAriaur gauche, de gauche A droite, et de haut an bas, en prenant ie nombrb d'imaqes nAcessaira. Las diagrammes suivants illustrant la m^thodo. 1 2 3 4 5 6 1 ') 401 ON THE COMPETENCE OF COLONIAL LEGISLA- TURES TO ENArT LAWS IN PEROGATION OF COMMON LIABILITY OR COMMON RIGHT.- By Thomas Chisholm Anstey, Esq., Barrister. at. Law. [Read, 23rd Decemhev, 1868.] 1^ The "transmarine dominions" of this Crown include, or may include, foreign protectorates, possessions used merely as military or naval stations, and the jurisdictions, without possession, to which the Turkish capitulations and the Chinese treaties with Great Britain are her titles. The interests of those three classes of dominions are important, but they do not belong to the subject of ihe present paper. It is limited to the " colonies" of this Empire ; — a word which, now that India is under the direct rule of the Queer , I must consider, etymologically inaccurate as it may be, quite com- prehensive enough to include all the "transmarine do- " minions" of the Queen, except those of the three classes above specified. All British colonies, whether by plantation, cession, or conquest, now possess, in more or less fulness, the delegated right of legislation over themselves and their dependencies ; for they all claim to have dependencies ; and even the little islet of Hong-Kong, in her Legislative Acts and other State papers, prophetically asserts the same pretention. When the invaluable work of our learned colleague, Mr. Clark, upon Colonial Law, made its appearance,* and for long afterwards, that was still the distinctive character, as he very clearly * " Summary of Colonial law," etc, by Charles Clark, Esq. (1834.) pp. 4-8. G 2 402 COMPETENCE OF COLONIAL LE..iSi.VTLRE8 TO ENACT LA^^ .S Shewed, of one great divi.sion of the colonies. But that Is so no longer. All the colonies now possess that authority, in a greater or lesser degree, whether they came to us by planta- tion or by cession, or by conquest. Therefore, as to these whatever may become the case of future conquests or cessions of territory*, that exceptional power of the Sovereign to make laws^at his own pleasure, which was once the theme of so much controversy, has at all events now ceased to exist. It IS difficu t to conceive, how such a power can lawfully coexist with that immediate and entire naturalisation by act of law whereby, from the moment when the cession or conquest is consummated, there is conferred upon every inhabitant- whatever his origin, colour, or creed-all the liberties and rights, and even the legal designations, of - an Englishman" and a natural bom British subject."t But the question for the present at least, is without any practical value, p'tbe arbitrary power to legislate for British subjects of that kind ever belonged to the Crowu.J it can now no lonoer be exercised against any now within its allegiance. For when it created their present -Assemblies" or " Councils"-^^vhether of their representatives, or of its own nominees-and .-ave them to know that to those bodies was delegated the power of • As to which, however, Boe Mr. Baron Masercs' ar-r- ent, i„ note, to Campbell v. Hall, 2C IIow St Tr q-v^ -x-a i F T n , ,, ' ^ ^'"^ '■ ""^'^ ^^^ ^f"}or of Lyons v E. iCompany, 1 Moo. I. Ap. C. 280, 282, 2S4-G. t See, in Chalmers' " Opinions " (Edition of 1858) upon this point the fol lowing :-ras to "all the Plantations") of Trevor AG 1^ r i Trevor, C. J.. June 4, 1701, p. G44-(as to " Y^2 '') of \ves ) \ pp. 642, o43 ;-and (as to " Canada, Tlorida, and the ce le.l i 1 ; ' West Indies") of Norton, A.G., Jul, 27, ml, pp. JI7, C48 '" "" lJlT.''^Vr" T?"'"' '-^^'S"'"^"* "^' -'^>-'> and .'Canadian Free- Holder ; — Dialogue II., p. 297. IN- DEROGATION OF COMMON MABILITY. 403 legislation for the future, the Crown must necessarily, accord, ing to Lord Mansfield*-no cold or doubtful friend of Royal Prerogative— be deemed to have precluded itself from any exercise of its legislative authority over those colonies by virtue of its prerogative. -^ ' Over all these subordinate legislatures the Imperial Parli- ment is supreme. It possesses ijyso jure and in all its pleni. tude that legislative power, of which some of them possess more and others less, but none of them the entire fulness ; and which, so far as they have it at all, is derived to them by delegation only :— impossible as it may be in some cases, and difficult in all, to recall that delegation or reduce the powers conferred. For the considerations of policy, or even of right, which serve as restraints upon the Imperial Authority to legislate, afibrd no argument against the supremacy of that authority over all those derived authorities, according to the measure of the resei-vations made in the case of each particular delegation ; and there is not one instance— not even that of the *' Dominion of Canada," a dependency very near to independency, where some reservation at least has not been made of the supremacy of Imperial Parliament. A supra- macy ; — which it may not be always wise to exercise - r assert, but which is founded in reason and the common law ; — which was acknowledged throughout the long and changeful story of England's dominions beyond the "'Four Seas ;"t— and which has been declared by statute$to be a "full power and autho- * Campbell V. Hall, Cowp., pp. 201, 212, 213. ,S.C 20, How. St. Tr., pp. 327-329. Attorney-General v. Stewart, 2 Mer. IGO. t See for the foreign dominions of the Plantagenet awcl Tudor lines, Sir Francis Palgravc's "Original Authority of the King's Council," p. 3 ; I. Rot., Glaus. lutr., p. xxviij, and I. Pari. Writs, p. 155 (44), p. 160 (158), and for thj Thirteen Colonies, which afterwards became the United States of America. Story's " Commentaries on the Constitution of the United States," ss. 150— 164. (1st cd.), Vol. 1, pp. 134—172. % 6 Geo. III., c. 12. 404 COMPETENCE OF COLONIAL LEGISLATURES TO ENACT LAAVS "nty to bind the colonies and their people, subjects of tho " crown, in all cases whatever." I shall endeavour, hereafter, to shew how very reasonable It is that such a power should exist, even were the libortv of the subject the only sacred interest to be <,aiarded from hasty or oppressive legislation, by bodies of persons little likely to be unbiassed by local prej^'lice, and not always facile to be made to understaDd,* that good an.l true 'Maws are deep and not II vulgar : not made upon the spur of a particular occasion for II the present, but, out of providence for the future, to make the II estate of the people still more and more happy : after the -manner of the legislators in antieut and heroical times." But, quite independently of Parliament and its supremacy, there were other reservations, expressed or implied in every grant of legislative power to every colonial dependency ;— reservations of allegiance to the crown and the law, of pro- tection by the Crown and the law, of the king's prerocrative of ^le liberties of Englishmen, of Mmjna Carta, of the Petition of Bight, of the Habeas Corpus Act, and of the leading princi. pies of the Revolution of 1688 ;-and, in fine, of all the natural and common law elements and grounds of the EnoKsh Con- stitution itself. The "colonist " or -planter," Cas, before all and above all, an - English subject "-and his primordial, that is to say {Prima Veneziono, epoi Cristiano), his English rights and duties were paramount over all others. f The • Lord Bacon's History of King Henry VII., (edited by Spedding, Elli., and Heath.) Works, Vol. vi., p. 92. = ^ ^* t" Every colonist had the right to inhabit, if he pleased, in any other colony - and, as a British subject, ho was capable of inheriting land's bv descent in every other colony. The commercial intercourse of the colonies too was regulated by the general laws of the British Empire, and could not be "restricted or obstructed by colonial legislation." Story's Comme-.taries on the Constitution, etc., uU supra, sec. 178, pp. 1G4-5 citing (per Jay, C. J.) Chisholm .. The State of Georgia, 2, 47. 2 Ball. 470, 471. See also Storv uh supra, sees. 159-164, 185, pp. 148, 170-2, on the same subject. f T i m DEROGATION OF COMMON LIAHILITr. 405 1 former were deemed to belong to " the common law ;" and if, among the Acts passed by any local legislature, there v/aa any which could be said to be " repugnant " to the common law, (or to the statute law, if in force within the colony) in any par- ticular, it was deemed to be ultra vires and void. The merest "repugnancy " sufficed for this purpose ; and, on the other hand, there existed no power anywhere but in the Imperial Legislature to supply the defect of authority, and make valid the enactment, null and void ah initio. Neither a preceding nor a succeeding "assent," or " allowance," on the part of the Crown, much less on that of its Secretaries of State could effect that ; only an Act of Parliament could effect it.* Within the last four or five years, it has seemed good to Parliament to enlarge the powers of certain colonial legisla- tures in this particular. From the 29th June, 1865, any colo- nial legislative assembly— out of India— if possessing a moiety of elected representatives of the people, may lawfully enact any measure which is not repugnant to some act of Parliament in force within the colony : and mere "repugnancy" to the law, — other than statute law, — will not invalidate such enact- * Campbell u. Hall, Cowp. 204-209. Symons v. Morgan (Supreme Court of Van Diemen's Land, 29th Nov., 1847.) Pari Pa. (Comm. Ret. 5G6 of 1848, pp. 7(;-81, s.c, "Law Magazine and Review," (August 18G7) Vol. 23. (N. S.) pp. 280-28G. Clark's "Summary of Colonial Law ;" (1834) p. 8, note 4. Upon the same principle it was very justly considered that the privilege, which a few plantations undoubtedly had, of passing their own laws, without the condition of any reservation to the Sovereign of the power -of disallowing them when passed; did not impart any exemption what- soever from the consequences of any excess of their delegated powers. "AVe are of opinion that, by the said Charter, the general assembly of the ^'said province have a power of making laws which affect property ;—, apud Cbal-ners, uli supra, p. 350 : " Virginia " : Weit (afterwards Lord Chancellor of Ireland), Jan. 16, 1723. Ibid, pp. 439, 440. t " Jamaica " : Fane, March 3, 1725-0. Ibid, pp. 357, 359. J "Jamaica": Ryder, A. G. (afterwards Chief-Justice of England), and Murray, S.G. (after.vards Earl of Mansfield, C.J.), June 22, 1753. Ibid, p. 434. § " Massachusetts Bay " : Northey, A.G., April 21, 1703-4. Ibid, p. 195. "Barbados ": West (after\Yards Lord Chancellor of Ireland.) June 18, 1720. Ibid, pp. 19G-8. II "Jamaica": Eyre, S.G. (afterwards Chief-Justice of C.P.), May 12, 1710. Ibid, p. 491. % ''Barbados ": Northey, A.G., October 20, 1703. Ibid, p. 509. " Vir- giria": Northey, A.G., 1701. iiiW, p. 407. *♦ "Barbados": Eawlin, A.G., u6j<«jora. Ibid, 'p. 577. 410 COMPETENCE OF COLON'IAL LEGISLATURES TO ENACT LAWS case of a debtor in execution, or d/ il prisoner, and the liiring out the labour of such prisoner against his will.* They cannot impose a tax or duty on any importation of goods belonging to British subjects, iu the nature of a burthen upon trade. t Not only have they no power to pass Acts for creating a currency, or a paper credit, or changing or adding to the laws relating to either of those matters ;| but if they attempt it, their members, actually taking part in such attempt, incur the penalties of a high misdemer^nour, and the franchise itself, if holden under Royal grant, may be seized into the Queen's hands. § Lastly, matters cognisable in, or belonging to, 'he Admiralty jurisdiction, are beyond their own ; and all enactments of theirs relating thereto are ultra vires, and encroachments upon the prerogative, and the authority of Parliament, and must therefore be held to be contrary to law. II And greatly as the detestable institution of slavery, whilst recognised by English and British Acts, did, no doubt, qualify as between master and servant, the value of those safeguards, yet neither colour nor descent was ever suffered to make, amongst the free, any distinction whatsoever. " I ** agree," writes West, afterwards Lord Chancellor of Ire- land,1["that slaves are to be treated in such a manner as * "Bermuda": Havcourt, S.G. (afterwards L:^vd Chancellor.) Dec. C, 1703. /6u/, pp. 411, 412, 414. f "Carolina": Thompson, S.G. (afterwards Baron of Exchequer), April 5, 1718. Ibid, pp. 586, 587. X "All the Plantations" : Norther, A.G,, October 10, 1705. Ibid, p. Gil. "Pennsylvania": West, May 10, 1725. Ibid, pp. 441, 2. "Carolina": Sir M.Lamb, Dec, 14, 1748. Ibid, pp. 42G,428. "New Jersey": Ryder, A.G. (afterwards Chief-Justice of England), and Murray, S.G. Ibid, pp. 447-8. § " All the Plantations : " Northey, A. G., ubi supra. II "Barbados;" Northey, A.G., October 20, 1703. Ibid, p. 410. "All the Plantations : " West, June 20, 1720. Ibid, pp. 511-521. f " Virginia : " West, Jan. 16, 1723. Ibid, pp. 439, 440. t 1 IN DEROGATIOS OF COMMON LIAUILITT. 411 h 1 * * the proprietors of them (having a regard to their numher) "may think necessary for their security. Yet I cannot see *' why one freeman sliould be used worse than another, merely "upon account of his complextion It cannot "be just, by a general law, without any allegation of crime " or other demerit whatsoever, to strip all free persons of a " black complexion (some of whom may, perhaps, be of con- " siderable substance) from those rights which are so justly "valuable to a freeman." Of laie, however, there has been made a serious attempt to call in question the doctrine so laid down ; and with them the principles of law on which it is established, and the precedents which confirm and illustrate it. The objection, however, is not, so far as I can gather, founded upon anything beyond a fancied analogy between the attri- butes of the Imperial Parliament and those of each one of the colonial legislatures. However petty and insignificant the legislature or its subjects, still, they say, it is a legislature, and they are its subjects. What powers the Imperial legis- latare possesses, are, ex vi terming delegated to the local legislature, when constituted after its model. And the practice of the mimic parliaments can be shown to have, in many cases, been answerable to that general pretention. I believe that this is in substance what the objectors allege against the antient doctrine, which I have endeavoured to ex- plain and defend. The objection reposes upon t^Y0 false premisses — premisses which have been already shewn to be false: viz., first, that the model of any local legislature is in all respects the Imperial Parliament; and, secondly, that it has been so recognised in the practice.* i perceive that no authority is cited for the first proposition * With reference to both pohits, hut especially the first— the case of Kielley v. Carson, 4, Moo. Pr. C.C, C3, may be usefully considered. 412 COMPETKNOE OF COLOXIAL LEGISLATURES TO ENACT LAWS —it is an assumption, and nothing more. I shall, however, return to it presently. In the meantime the very ample and conclusive authority which I think to have produced already, should suffice. The second fallacy is one of language. It is not said what practice is meant: — that of lawyers and courts? or that of those colonial assemblies and councils, for which the objectors claim the supposed equality with Imperial Parliament ? But the whole course of English jurisprudence runs counter to the claim : and I have already shewn that the practice of English lawyers and English courts of law has been answerable. It should, therefore, be a matter of indifference, what the colonial practice may have been, whether in this colony or in that, or in all the colonies ; unless authorb?ed by the express letter of Act of Parliament, or otherwise capable of being recon- ciled with the law. But in truth, there is no allegation that any practice such as that asserted is, or has been, the general practice of colonial assemblies. The contention only goes to this, that a few qf them have asserted and exercised a power — but to what extent we are left in the dark— of "private legislation." In Jamaica* that has been done; * On the 29tli June, 1827, the Hoyal Commission of Enquiry into the Administration of Civil and Criminal Justice in the West Indies, presented the first of their second scries of Reports, in which (supplementing a scanty passage in page Gof their first Report fO.S.)onJamaica)theygivethe Attorney- General's written examination on the practice of private legislation. As this jejune passage, and that contained in my next note, are all the infor- mation which is contained, on the subject, in any of tlie reports of that learned Commission, I think it right to print them in full: "AH Private Acts, "except Acts granting manumission, and certain Public Acts, ha""- a sus- " pending clause, by which it is declared they are not in force imtil the " Royal Assent is given. . . . With respect to Private Acts, every " person is bound to take notice of it as a record. ... Of Private Acts '' the Court is not bound to take cognisance, unless they are pleaded or "given in evidence." — First Report; {Secord Series) Examination of the Attornfii/- General of Jamaica • pj). 1S2-3. I 1 IN DEROGATION OF COMMON LIABILITY. 413 and in the Bahamas ;* and there may be other instances not adduced. These " Private Acts " so passed have been invari- ably reserved for the sanction of the Sovereign. What answers such references have always elicited during the last eighty years— for, as I have already shewn, the cases upon the question contained in Chalmers' "Collection" are altogether against the pretention — I am unable to state. But the few which I have met with are quite in conformity with the former practice ; and I suppose that the same observation applies to those which I have not seen, especially since the contrary is not asserted. Yet, although the fact of the Royal assent being given to any such Acts be made — and it has not been made — to appear, that cannot, as I have shewn, affect the question as to the validity of the Act, — if made before, — for being ultra vires of the legislature which passed it. Neither that sanction, nor yet the lapse of time, nor length of user, nor acquiescence (unless by force of a statute), can cure the invalidity of the act, or impair the power of the courts to declare that invalidity. For more than forty years, a North Carolina act passed in 1715 had been in force and submitted to ; whereby was postponed the execution within that pro- vince of all judgments for " foreign" debts, and priority was given to all " country " debts. Nevertheless when, in 1747, it came under the consideration of the English Crown Law Officers, Sir Dudley Ryder, A.G., and Sir William Murray, S.G., it was incontinently disallowed ; as " contrary to reason, inconsistent " with the laws ; greatly prejudicial; and therefore '* unwarranted by the charter ; and consequently void."t * " With regard to Trivate Acts, as they coutaiu a chiuse suspending their " operation until the i)lcasure of His Majesty shall be signified, whenever *' the Governor receives ilis Majesty's consent to any Private Act (and "which consent is made known by an Onijr of the King in Council) he " promulgates such assent of His Majesty by publication in the Gazette of "the Colony." — Bahamas: Examinations of Public Functionaries. Jb.p. IIG. t " North Carolina." June 3rd, 17-47. Chalmers, p. 402. 414 COMPF.TKNCE OF COLONIAL LKQISLATURES TO ENACT LAWS I I tliink that it will be found that, by the term " Private ** Acts," the official witnesses, in their written examinations above cited, meant "Personal Acts" and " Estate Acts." Of both of these kinds I shall jiresently speak more at large. Of both of them I will content myself, for t!ie present, with observing that, whatever may have been the pretentions of West Indian legislatures in particular, or colonial legisla- tures in general, in those respects, they have never ventured — at least not during the last one hundred and fifty years — to claim to themselves the i:)ower to attaint, or to bastardise, or to divorce, on the one hand, or to legitimatise on the other,— or in any respect to change for better or worse the statun of a single free person being a natural born subject of the Crown.* Again, with respect to naturalisations, there was not the same hesitation to interfere. It was, for many reasons, impor- tant to ascertain and enforce a certain equality of burthens amongst the actual inhabitants, and also to allure new immi- grants, by the prospect of a corresponding equality of the advantages of inhabitancy. Accordingly, we find from time to time before the passing of the Aliens' Colonial Naturalisa- tion Actf a small number of references, from various parts of the British ColoL.ial Empire, to the Colonial Office, of acts for naturalising certain aliens, or all aliens, within the local limits of the particular colony, and reserved for the Royal assent. It appears to have been assumed that, in every colony or foreiun dominion whatsoever of the British Crown, the disa- bility of alienage was as much a part of the territorial law as it * Manumission acts formed no exception to this rule. Slaves Avcre cliattels of the master, not subjects of the Crown. Tlie master might manumit hy instrument, wlietlier in the form of a deed or of a private act. It took effect by virtue of Ids absolute will in either case ; i.e., his will as donor, or his will as party to a legislative contract. Sucli Act-;, therefore, were not reserved (in Janmica at least) for thclloyal assent (sn2)m, p, 412 ti.) If they had, they could have obtained but one answer. t 10 and 11, Vict., c. 83. IN I)] ROGATION' OF COMMON LIADILIIY. 415 undoubtedly was, until very lately, a part of the territorial law of England. But that fallacy, I apprehend, may now be con- sidered to have been for ever exploded, by the celebrated julg- ment of the Judicial Committee in the case of the Mayor cf Lyons V. the East India Company.* It was a statutory disability and nothing more, even in England. It was unknown here until the passing of the Statutitm de Prwrogativa Begis.f That Act, — limited in terms to the disabling aliens from taking lands in England by inheritance, but extended, by a liberal interpretation in the interest of the King's Fisc, to the disabling them from taking freeholds by purchase also, — was still further extended, by a series of later Acts, to the disabling them almost from breathing the breath of life. Those later Acts are now repealed,— some absolutely — others, I fear, very ineffectually, — by reason of certain novel reservations intro- duced of late into Acts for the repeal of Obsolete Statutes.^ But if the chapter in the Statutmn de Frwrogativa Regis which relates to aliens, remained in full force to this day in England, — according to a well recognised principle of juris- prudence, § nevertheless, — neither it nor any of those antient Acts was ever considered to be in force within the Enoiish * 1 Moo. Ind. App. Ca. pp. 272-287. t Statut. incert. temp., c. 14, in " Statutes of the Realm," Vol. I., p. 22G a.* 17 Edw. II., c. 12 of the common editions. J E. (J. 1, Ric. III., c. 0, " Statutes of the Realm," Vol. II., p. 492, repealed by 3 Geo. IV., c. 41 (s. 2). 32 Ilenr. VIII., c. IG, s. 4 (or s. 13 of common editions.) Id., Vol. III., p. 7G0, repealed (except as to " principles con- tained therein," and as to England only) hy 20 and 27 Vict., c. 125. Com- pare with the enactments against aliens the earlier records as .to particular cities and places; e.g., the ^^tofiiiuin de Civitate Londoniw, 13 Edw.. I. whereby ali.f- "Ooidents were not only allowed, but required to become free of that City ;— " Statutes of the Realm," Vol. I., p. 103. § Attorney General v. Stewart, 2 Mer. 159-lGl, 163-1G4. Mayor of Lyons v. East India Company, 1 Moo. Ind. Ap. Ca., pp. 272-287, 1 EL Gomm, Introd., S. 4, p. 100. 416 COMPETENCE OF COLONIAL LEGISLATURES TO ENACT LAWS colonies. There the old equality of the common law with respect, not only to tenure, but to personal, municipal, and political rights, still subsisted ; except so far as — witliin the North American colonies only — the jealousy of French encroachments in that quarter had, towards the middle of last century, and from thence down to the War of Indepen- dence, induced the Imperial Parliament to impose a number of vexatious and increasing restrictions upon colonial inter- course and trade, and amongst' others, some relatint; to that very question of local naturalisation.* It would be wonderful, indeed, if the Crown had allov ed those parlia- mentary fetters to be relaxed by colonial hands. Accord, ingly we find that, in all the colonies to which those statutes applied, every attempt to relieve from the incapacity which they created, by local legislation, was immediately met by disallowance ; whilst the other colonies, in which the liberty of the common law was not interfered with by those statutes, neither perceived any necessity for passing naturalisation acts, nor were prevented from extend- ing to their alien sojourners what hospitality they would. I ought to addj that this very obvious explanation of the indifference, with which the occasional attempts of the North American legislatures to admit aliens were received by the English Law Officers, before the passing of the Acts of the Second and Third Georges, has escaped Mr. Chalmers. His col- lection, notwithstanding, contains one opinion! in which that indifference is very apparent ; and it is the only one, on either side of that question, of earlier date than the first of those statutes. But the new constitutional principle which they in- troduced elicited very different opinions. The nullity of colonial *i Geo. II., c. 21, 13 Geo. II., c. 3 (s. 3) and c. 7 (s. 6) 20 Geo. II., c. ii (ss. 5 and G), 22 Geo. II., c. 45 (ss. 10 and 11), 2 Geo. III., c. 25, C^s. 2 and 3), 13 Geo. III., c. 21 (s. 2) and c. 25.^ t "New Jersey ;" Thompson, S. G.. March 5, 1718-19 ; Chalmers, p. 333. 1 IN DEROGATION OP CO?IMON LIABILITY. 417 naturalisations, even in the colonies where they were passed, was asserted by the highest authority :* and we read tliat, from the accession of George III. the Governors themselves had uni- formly refused to assent to any such Acts, in obedience to their " general instructions " received from that King.f But the practice did not rest there. I find traces of an occasional practice— of disallowing attempts from some of the other colonies to pass measures for the regulation of their own alien laws— although the practice was far from being uniform. Thus, whilst in 1835, the superfluous power to grant " Letters " of Dtnization " to aliens was allowed to be assumed by the legislature of Van Diemeu's Laud, J a sunilar assumption, twelve years later, on the part of the Hong-Kong legislature, of the same superfluous power §, received its disallowance. Never was a more signal proof afforded of the fidelity of the Home Authorities to that policy of which I have presented the main points. The Imperial Act, — for giving validity to every existing colonial naturalisation in every colony, and for empowering naturalisations by the local authorities in every colony for the future, — received the Royal assent on the 22nd of July,||, 1847 : — and, as it was to take immediate effect, it was at once signified to the Governors of the various colonies for their guidance. At that very time, there had been '* lying over,'* in the Colonial Office, for a year and a half past, the Hong- * "New Jersey :" Ryder, A. G., and Murray, S. G., July 21, 1741) Ibid. p. 448. t Chalmers, p. 661 ; compare Ibid, pp. 648, 665. X "An Act for enabling the Lientenant-Governor to grant Letters of " Denization in certain cases," 5 Will. IV. (" Acts of the Lieutenant- " Governor and Council of Van Diemen's Laud,") No. 4. § "An Ordinance for the Natunlisation of Aliens within the Colony of " Hong Kong and its Dependencies," 9 Vict., No. 10, of 1845 :— "Lj.«vs of th» •* Colony of Hong-Kong," p. 220. II "An Act for the Naturalisation of Aliens," 10 and 11 Vict., cap. 83» h2 418 COMPETENCK OF COLOMVI. LE(;iSLATl'RES TO KN.VCT LAWS Kong Ordinance in question ; passed on the 1st October, 1845, but subject to the Queen's pleasure. If it had not reserved Her Majesty's pleasure, that Ordinance would have been in force within Hong Kong from the time of its passing, and down to the time of the passing of the Imperial Act. In that case it would have had the benefit of the general provisions of that Act, whereby all then existing Acts of that kind passed by colonial legislatures were recognised and established.* The same consequence would have followed if, immediately before the passing of the Imperial Act, the Royal pleasure had been signified in that sense. That, however, was not done ; for that would have been to recognise the assumption of the Hong-Kong legislature to legislate at all in the matter. It was, therefore, signified to be the Queen's pleasure to disallow the local Act. But, along with that despatch, there was enclosed, for the guidance of the local legislature, a copy of the new Imperial Act, empowering them, if they pleased,t to pass their Act again, and give it the force of law. Both facts— the disallowance and the new statutory- powers,— were rotifiedby the same "Proclamation," of the 1st January, 1848, and recorded in the authorised collection of local laws-t But it was not until five years later that the local legislature was induced to exercise those new powers, by passing a new Ordinance (which is yet in force) '* for removing " doubts regarding the rights of aliens ;"§— doubts Avhich, I must repeat, had no countenance from the law, had never been regarded in practice, and ought not to have been raised. Upon the whole, therefore, I think that the particular case of Colonial Naturalisation Acts was no anomaly, nor yet unsus- * Id., S. 1. t/f/.,S.2. % Laws of the Colony of IIong-Kong (lS5r.,\ pp. 220, 228. § Ordinance No. 2 of 1853, " for the removal of doubts regarding the rights •' of aliens to hold and transfer property within the Colony of Houg-Kong." /i.W> pp. 389, 390. '^ ,*» nr DEiioGATioif or common liabilitt. 419 / ^1 ceptible of explanation. At any rate, it certainly neither deserves now, nor did it ever deserve, to be accounted an excep. tion to the universal incapacity of the local legislatures to deal with questions of personal status. That incapacity, so far as relates to certain American colonies, — (which, having outgrown colonial dependence, became, within the last two years,* "federally united into " one dominion, under the Crown of the United Kingdom of ''Great Britain and Ireland, with a constitution similar in *' principle to that of the United Kingdom,"! is now removed, but so far only as relates to the questions of status therein specified, and no other ; that is to say ** Indians ;" "Natura- lisation and Aliens ;" and '' Marriage and Divorce ;"t subject however (as to the latter) to an "exclusive" power of legislation reserved to each "provincial legislature," over "the solemnisation of marriage in the province ;"§ and also subject (as to all) either to the " Royal assent being with- held," in the case of Acts reserved for the Royal pleasure, or (in the case of Acts not so reserved) to their " being dis- allowed by the Q-^een in Council," within two years ''after receipt by the Secretary of State. || But, as to all other cases, the incapacity to affect the personal status oi 3. single colonist by its legislation, must be considered to be,— quite as much now as it was before the " dominion " began,— a condition in * " The British North American Act, 1867," (30 and 31 Vict., c. 3) re- ceived the Royal assent on the 2'Jth of March, 18G7, and was made execu- tory within those provinces (sec. 3) by lioyal ProcUvmation on the 2l8t of May following. For the powers of tlie Canadian Parliament before that period, see the 3 and 4 Vict., c. 35 ;- as amended by the 16 and 17 Vict., c. 21, the 17 and 18 Vict., c. 118, and tne 22 and 23 Vict, c. 110. t 30 and 31 Vict., c. 3 (Preamble). t Id. s. 91, el. 24, 25, 26. Is it meant that the same effect is to follow, in everj part of the world, upon Canadian Acts of these kinds, as if the Imperial Parliament had passed them ? It would so appear • (and compare s. 92.; § S. 92, cl. 11. the last note. \\ g. 55, 57, 90. J 420 COMPETENCE OF COLONIAL LEQISLATnBES TO ENACT LAWS restraint of the local power to legislate. £xcepilo prohat regularn , in casihus Tion excejitls. The general powers, which— Western Australia alone ex- cepted— allthe Australasian legislatures now possess,* are very similar to the general powers of the Canadian legislature ; only that, of the former, each possesses its own as representing a " colo; y," not a "dominion." But, with respect to the specific question'hcforo us, it is very clear that the ditfercnce between them' is very wide. The " colonies " of Australasia have re- ceived no delegation of such powers of personal legislation as was lately granted to the "dominion" of Canada. They remain, therefore, except so far as it is qualified by the express letter of our statutes, under the general rule of incapacity in that regard ; and 1 notice with pleasure more than one recent instance of their having had the good sen^e to confess it.j ** As to New South Wales, Victoria, South Austr^ha, Western Australia, Queensland, and Tasmania, see the "Act for the Better Government of Her Majesty's Australian Colonies," (13 and U Vict., c. 59), and the Acts 5 and G Vict c 7G, and 7 and S Vict., c. 74, therein recited; the Acts for explaining the same (25 and 2G Vict., c. 11, and 20 and 30 Vict., c 74); the "New South Wales Government Act," (18 and 19 Vict., c. 54) ; the "Victoria Government Act," (18 and 19 Vict., c. 55); the "Queensland Government Act," (24 and 25 Vict., c. 44); the "Act to Confirm Certaio Act8 of Colonial Legislatures" (2f> and 27 Vict., c. 84) ; and the " Act to Eemove Doubts as to the Validity of Colonial Laws " (28 and 29 Vict., c. G3). And as to New Zealand, see the "Act to Grant a Representative Constitu- tion 'to the Colony of New Zealand,^' (15 and 16 Vict., c. 72), as amem'ed by the 20 and 21 Vict., c. 53, the 25 and 2G Vict., c. 48, the 2G and 27 Vict., c. 84, and the 28 and 29 Vict., c. 63. t The legiilature of New Zealand, for example, has declined to bring into operation its recent Act relating to the Law of Divorce, before obtaining the opinion of the Crown Law officers here as to its being intra vires to legislate on that question. (Letter of 17th October, 18G7, from Wellington, New Zealand, in the Tmes newspaper of the 18th December, 18G7.) Yet the ledslation had been invited by Secretary Lord Stanley's Circular Dispatch cf 1858 The same legislature, and those of Australasia geueraiiy, nave 1 W DEBOOATION OP COMMON LIABri.ITT. 421 7 For it is not a little curious that the two latest recorded instances of insubordination to that general law, occurred not many years ago in an Australasian colony ; in one which was the least of the group ; in one which possessing no elcc. tive legislature, but only one nominated by the crown, could not have claimed the benefit of the very slight exemption after- wards accorded to some elective legislatures by the Act already cited of the 28th and 29th Vict., cap. 63 ; even if that Act had then been in existence. We are accustomed to look for such cases of insubordination in colonies possessinn- elective legislatures ; not in colonies governed by the Crown, with the help of a legislative council of its nommees. In Van Diemen's Land, the colony In question, our experience is exactly reversed. It is since the extention of free institu- tions to that island, in common with her more powerful ncio-h- bours, that her and their legislation, has been so remarkable for its entire conformity to the fundamental laws of the empire. It was whilst the legislative function was wholly in the hands of the Executive Goverament, that the previous attempts to usurp imperial power and proprietary rights were made ; the first of the two, by the colonial government actino- under the direct sanction of the Secretary of State ; the second by the former alone ; hut both alike defeated, by the only means which the subject there had of opposing the invasion of private right in those times,— recent as they are—enjoyed, — an English Bar and an English Supreme Court. I will state the main points of both cases very briefly. The records and docu- ments in the Colonial Ofi.ce and the proceedings of Parlia- ment contain very ample details i..., and are easily accessible. Questions of strictly legal and equitable jurisdiction con- refrained from authorising the naturalisation of aliens, except wit»'^ 'ho limits superfluously enacted by the 10 and 11 Vict., c. 83, elsewhere noticed.^ (Letter, etc, !/ii su/jra.) 422 COMPKTKNCE Ot' COLONIAL LEOISLATURES TO ENACT LAWS cerning iU ju'^ iJatrouattls io & church and glebe at Both- well, in Viin Dienien's Land, and even to the freehold of the «oil itself on which the Oiurch stood, and of which the glebe was parcel, were pending in 1840 between the following parties. (1) The Scottish Presbyterian Jhurch of the Island, who were in sole possession; who had been in sole possession from the beaiuning ; and who hadbeen recognised by Minutes ot Executive Council, and scheduled in the local Church Act of 1838* as such sole possessors. (2) The Protestant Episcopalian Church of the island ; one or two of whose ministers had occa- sionally beeuallowed by the Scots ministers to perform Anglican worship within the church there for the benefit ibe few Church of England men, no other suitable building m Both- W3ll being adapted for a place of worship. (3) The minority in question, who claimed no more than a joint right of user with the majority. And (4), a neighbouring proprietor, who claimed, by title paramount ; in respect of the soil bemg, as he alleged, within his boundaries, and not those of Bothwell township. Of these four claimants the last threatened to * "The Acts of the Lieutenant-Governor and Lc-islutive Council of Van '. Diemen's Land," Ilol.arton, IS-tO. " An Act to nmlce provision for the sup- "port of certain Ministers of the Christian Religion, and to promote the » erection of ph.ccs of Divine Worshi,.," 1 Vict, No. IG. By that Act (ss. 1, 2, la-l",) contributions out of the Colonial Treasury were to he made for the salaries of ministers, and for erecting places of ^vor.ship and ministers dwellings for all Christian Denominations, on certain cond-Mons as to their nunihe.^ respectively, and in certain stated propr-o.> .. - ■ contnlm ,.i^ sulxcrihed l.v the respective con^rregations : and provisions for the self- ..overnment of each denomination in respect of those endowments or gifts were made (ss, 3-11, 17). All ministers' glebo and salaries existing- at the passing of the Act, in respect of thcplaces of worsidp nan.ed m .he schedule, .s.r. saved and confirmed (s. 16). AH existing, an-l all future places of . ...Shi-, and ministers' dwellings, in erecting whicl- any puldic monies had been or should be raised, were to " be and continue to be for ever dedicated •' to the purposes, and holden solely for the uses, ard be appropriated to the «' service, of the particular religious denomination for which such buildings '• were erected originally " (s. 3). •I i. 1 lir I>EIlOr.ATION OF COMMON I.IAniUTY. 423 commence litigation ; the second and third ff)mially declined to commence it ; and the fiist, who stood upon actual posses. sion, ol course had no other position than that of defence, to take when attacked. The legislative council, under these circumstances, was suddenly convened by the Licutenant- 0^vernor to hear and consider a despatch, from Secretary Lord John Russell, and the draught of a Bill rscnting it ; whereby all and sundry, except th^ Anglican Church, were ^u bo divested of all claim to the proper ty in dispute ; and vesting it in the latter, subject only to a right ot lien for what sums could be ascertained to hr«ve been expended upon the fabric, by the Scots, in 1830-1831, when they, with some Govern- ment aid, erected it.* No consent was obtained, nor, I * The Bill, after reciting the third section of the " Chtircli Act," and the pending dis])iites, went on to recite us follows :— " And whereas His Excel- " lency, the Lieutenant-Governor of this Colony, has recently received a "dispatch from the Right IIonoural)le II.M.'s Trincipal Secretary of State " for the Colonial Deiiartnicnt in England, conveying Her Majesty's most " gracious will and pleasure that the said Church should he holdcn solely "for the uses, and be api)ropriated to the service, of the members of the " United Church of England ane of "th.- Dothwcil Ciuirch Bill," 22nd, 23rd, 24th, 25th, and 2fith, Sci)tcniber, 1840." Ordered by the Council to be printed, 2Gth September, 1840; pp. 1— 4G. ♦ " Protest to His Excellency in Coiv.icil, etc ;" ordered to be printed 24th September, 1840. Proceedings, etc., ubi supra. t Proceedings, etc., 23rd, 24th, 2")th, and 2Gth, September, 1S40, ubi supra, and " Evidence," etc., pp. 40 to the end. The votes were equal. I 1 IN DEROQA-TION OP COMMON LIABILITY 425 tions. Lord John Russell and the Colonial Department, after advice from the Attorney -General (Sir John Campbell), and the Solicitor-General (Sir Thomas Wilde), became aware of the necessity of staying their hands. The illegal proceedings were not resumed; and the Scottish settlers were left in possession. Indeed I believe that their possession to this hour remains undisturbed.* The other case is later in date, and of much graver interest : — On the 29th November, 1 M7, the same learned Chief. Justice, the late Sir John Lewes Pedder, and the late Mr. Justice Montagu, the other member of the Supreme Court of Van Diemen's Land, delivered their judgments, in Bank, upon an appealf against a conviction at sessions, for nonpayment of a tax or license duty imposed by an enactment of the local legislature upon owners of dogs.;}: The appellant's first and main ground of appeal was that " the Act of council was not **law ;" being " void, either as an excess of the powers o'iven "to the legislative council, or because it was directly re- " pugnant to the prnvi;-ions of the Act of Parliament§ con- *' ferring those powers. " The Supreme Court held it to be void upon both grounds, and for the following reasons :— The cited provisions of the Act of Parliament expressly provided, that no tax should be imposed, unless it should be found necessary for * A few further particulars of this case are to be found in "Van Diemen's *'Land under the Prison System," in the "Dublin Ileview," for November, 1841, Vol. XL, pp. 470—473. t Sec the judgments in Symons v. ^Morgan— Supreme Court, Ilobarton ;— as rci)orted by the judges themselves in the (Commons) Paper "relating to Van Diemen's Land "(Pari. Pa.nOOof 1848), pp. 75, 81: andsce the report of the same case in the ''Law Magazine and Review " (new series); Vol. XXIII., pp. 2S0-2S6. t " An Act to restrain the Increase of Dogs," 10 Vict., No. 5, of " Acts, Ac, oi Van Diemen's Land." § Geo. IV., c. 83, ss. 21, 25. 426 COMPETENCE OP COLONIAL LEGISLATURES TO ENACT LAWS some local purpose ; and that, if so imposed, the tax should he expressly appropriated to such purpose hy the very terms of the Taxation Act. In the case of the Dog Tax Act then m question, this express appropriation had not been made ; the only provision as to that being, that it should* " go and be " applied in aid of the ordinary revenue of the colony." It was true that the Court, albeit empowered to do so by the Act of Parliament,! had not suspended the enrolment of the Act ; by making, within the fourteen days after transmission for enrolment, the statutory representation to Government of the repugnancy and illegality in question ; those grave objec- tionsnot having at that time suggested themselves. But their omissions in that respect must not prejudice the subject, nor make valid an excess of powers, when committed by "an in- " ferior legislature," having no powers of its own, save^those which, under certain limitations and restrictions, were conferred by that imperial statute-t Even had their attention been called to that difficulty, and they had refused to enrol the Taxation Act, until it was removed,— that would not have prevented the Legislature from insisting on the enrolment :— the judicial power of remonstrance had the effect of suspending only pro hdc vice the enrolment ;— it could not be repeated ;— and, in the end, they would still have had to consider and enforce the crreat constitutional doctrine, that every condition, inseparably annexed to the delegation, must be strictly pursued by the de- positary of the delegated power to legislate, under that pain of nullity which it was the duty of the Queen's Courts to enforce in case of nonobservance.g And, although their Honours ad- mitted that " they had official notice by the Gazette, that Her ".\jajesty had approved of the Act of Council in question," yet they conceived that this made no difference whatever, as * Act of the 10 Vict. No. 5, s. 7. t 9, Geo. IV., c. 83, s. 22. t »»• 20, 21, 25. § Davison v. Gill, I, East, G3, and cases in Chalmers : ubi supra. IN DEROGATION OF COMMON LIAniLITT. to its validity or tlicir duties in regard to it. The Queen had no further powers of approval than wore expressly conferred by the Act. In cases not coming within the letter of those powers, the Royal approval was wholly without effect. The conviction was accordingly quashed. I presume that the advice, which the great law officers of the Queen gave Her Majesty, as to the course to be pursued by the Secretary of State under those circumstances, was strictly conformable with the judgments of the Hobar„on Supreme Court. The colonial authorities had proceeded to the length of calling the Chief- Justice and his colleague to shew cause — before the Governor in Executive Council — why they should not be suspended for their doctrine ; — and " cause," in the shape of the two written judgments embodying that doc- trine, was accordingly shown ;— and every offer of the local government to induce a compromise was honourably and in- flexibly declined.* The Secretary of State, therefore, found himself called upon for his opinion ; — and presently it became the concern of more than the Secretary of State. A petition, from 1570 colonists of Van Diemen's Land, emphatically adhering to the constitutional doctrine of their Supreme Court,t Avas graciously received ; — and a Parliamentary cen- sure was only averted by an unusually ample "communication of " the papers," and a promise, which was duly fulfilled, that the Governor should bo admonished, and that his obnoxious proceedings in the Executive Council should be stopped.^ I must repeat my opinion, that the true meaning of the action, thus taken by the home authorities, is to be found in the fact, that those most competent to decide the question of law had * Minutes of the Exectitive Council, ctc.'(30 Nov. 1847), in Commons" Paper (iibi supra), pp. 50, 58, 59, G2, C3, G5— 72. t /bid., p. 111. X See the "Law Magazine and Review" (new series). Vol. XXIII., pp. 285,286. I 428 COMPETENCE OF COLONIAL LEGISLATURES TO ENACT LAWS advisee"! them of their own entire concurrence with the Hobarton Supreme Court. Returning now to the ambiguous words of the West Indian Commissioners' Reports above referred to,-wbatvahie themen- tion of the Jamaica and Bahama practice in regard to " private Acts" may have, must appear very trifling. If I might hazard a mere conjecture, I woukl say that the only "private acts intended are either (1.) some antient naturalisation acts which 1 have already shown to be utterly superfluous, and therefore not ^vorth the trouble of disallowance ; or (2.) the ordinary estate acts-that is to say, acts for settlement or resettlement of limitations of estates,-freely consented to by the actual parties, and fully reserving every jus tertii whatsoever. If that be 'all that was meant, 1 need not linger over the Reports of that West Indian Commission. Bat if more were meant, then 1 venture to say, for the reasons already asserted, that, be the form or method of West Indian procedure what it may, all that further private legislation there was illegal, and those other - private acts " of the local legislatures were ultra vires and void I do not even think that they deserve to be taken mto account, even as evidencing a practice, at variance with the lon<^ and otherwise unbroken concurrence, of colonial opinion and colonial practice, with the judgment of authority, and with constitutional precedent. Still that practice may have existed. We know that many very deplorable and even shocking deviati.ms from duty, and encroachments upon the rights of the subject, the lawful pre- rooatives of the Crown, and the power of Parliament, are recorded in the two series of those learned Reports. But, except the peculiar case of the slave, I discover none which beloncr to my present subject, any further tlum as they serve to illustrate the unfitness of those local legislatures to deal with any constitutional questions, and the strong probability, that every instance of such legislation, unchecked by the Courts, IN DEROGATION CP COMMON LIABILITY. 429 ■will be drawD into precedent. Thus we find the assembly of the insignificant colony of Montserrat justifying one encroach- ment of the Constitution under—" the custom of the island — *' that venerable unwritten law," as it absurdly stiles what may have been a practice unhappily connived at by — or perhaps unknown to — the Home Government; and justifying another, by the astounding allegation that "civil justice was, by "common consent, fur a short time suspended."* In another West Indian colony, the example offered by the local legislation, as described in " the written answers of the " Magistrates and public officers," is still more striking. Tliey inform the Commissioners that, — whilst they do not deny that their settlement is governed by " the English common law " and the statutes declaratory thereof," — still, " in the event "of illegal imprisonment," the only remedy is " damages "; — (to be recovered, as it seems, by the Provost. Marshal-General), and that " the writ of Habeas Corpus is unknown, "f Wiih many such instances as these before us, it is very pos- sible that, amongst the very serious vices by which the old methods of West Indian legislation, in general, undoubtedly "was tainted, that enormity, against which my observations have been directed, is to be ranked. So far as their " Acts of Assembly " were accessible to the Commission of Enquiry, the provisions of those enactments were found, both in respect of letter, and spirit to be " crude and barbarous," or "other- *'wise highly censurable." Nor was the censure spared. J It * Reports of the Royal Commission of Enquiry into the Administration of Civil and Criminal Justice in the West Indies. First series, Third Report (1825), p. 36. f Id., Second Series ; First Report (1820), p. 4 (Honduras) and " Written " Answers," 20, 45, in appendix to same, pp. 84, 86. X See in particular Third Report, First Series (Tortola), pp. 81, et seq. At the close of the first series of Reports, the Commissioners, after referring to the whole series, and the annexes, — which contained " the examinations of " the chief persons administering the laws, and the returns of the public 430 COMPETEKCE OP COLONIAL LliGISLATURES TO KNACT LAWS further lamented that so many of those same enactments, albeit considered by the local authorities to be enforceable at pleasure, were almost inaccessible to the public. In some colonies all,* in all colonies many,— perhaps most-of the Acts Assembly, existed in manuscript only, if at all ; their places of custody were not certainly known; they were registered perhaps, but never indexed. Those things were especially recorded as to the legislative acts of Jamaica, the leadmg colony of that time amongst all the West Indian settlements. It may well be, therefore, that tliose unprinted collections-for I have no means of access to them-raay contain some speci- mens of the private legislation of the old plantation times ; and, if so, that the censures quoted from the learned reports of the Royll Commission mny be found peculiarly applicable to those acts, and especially to such as are Jamaican.f I presume them to be still remaining in manuscript. For it is not likely that, in the face of the strong and frequent condemna- tion of the general spirit of the West Indian Acts, printed andunprinted, as well as of their forms and modes of expression, which those Reports contained, the local authorities should have sinco then put themselves to the trouble and expense of com- "officers in the West ludicB gcucrully,-proceeded to submit, tlie following " —imono- other Results and General Conclusions-as to the actual state of "civil and criminal justice throughout the whole archipelago ;-viz., that " they had -rraduallv served to render the necessity for an extensive change " in the judrcial systems of thosecolonies suihciently apparent,"-and " thatas " far as related to the laws, there was. throughout the islands, a total want of " any fixed principles of colonial jurisprudence." U p. 07. * / the (jther and perhaps better definition, to be set down in the class of special enactments. With reference to the question' before us, the whole passage deserves our most careful and. anxious consideration.! " Private enactments are those which concern a particulai: "species, thing, or person, of which the j udges will not take ''notice without pleading thern ; namely, Acts relating to- ''the Bishops only; Acts for Toleration of Dissenters ; Acts " relating to any particular place ; or to divers particular "towns; or to one or divers particular counties; or to the ** colleges only in the universities " Viewed in the light of this latter definition, the power to pass "private Acts," with or without reservation of the Queen's allowance thereof, through a Secretary of State, is not one lightly to be entrusted to any provincial legislature ; nor at all, but by an express Act of Parliament. In point of capacity, information, and broadness of views, it is very rare to find in any colonial assembly anything to boast of ; and ifsO' much as mediocrity be attained, it is well. But, even were they * Per Lord Eklon C. in Blakemore v. Glamorganshire Canal Company, 1 M. & K. lOU-3 ; Same v. Same. 1 C. M. & R. 141 ; rritchard i-. Heywood, 8. T. E. 472 ; Rex v. Camberworth, 3 B. & Ad. 108. t Com. Dig. "Parliament." (R. 7.) I i2 4S4 COMrETKKCB Ob' COLCNIAf, I.KOI-LATI UKS TO K^ CT LAWS more forUmate in those respects, they are not the legislatures to whose good pleasure should be entrusted these authorities of excluding, by private enactment, from the pale of the constitu- tion or the law, whole classes of the Queen's natural born subjects, or of admitting within ^he same such as may happen to be for any reason by law excluded from those common rights, or of exercising those powers of enfranchisement or dis- franchisement upon places, as well as, or instead of, the pc-sons inhabiting the same, or of suppressing existing coiporations, or of recalling into vigour such as may, for any reason whatever, have forfeited their existence. If the (piestionable policy of privilcr/ium, questionable alike whether we regard it on the side of the interests which it fosters, or of those which it takes away,* were one which should be sanctioned at all within any of our colonies,— its introduction surely ought not to be loft to any meaner authority and re- sponsibility than those of the Imperial Parliament. There- fore, in point of political expediency alone— indepen- dently of higher considerations— a power to derogate from general rights or general liability, whether in favour or in prejudice of any one particular person or class of persons by private or special enactment, cannot be presumed or pre- supposed to have been conferred upon any of those inferior legislatures. Neither can it be said to have passed to any of them as one of the incidents of their delegation, it not being necessary thereto. Legal principle is here entirely in accord with the political fitness of things. It is vain for them to object examples of Imperial Legis- lation. There is no analogy whatsoever between Parliament and them. If Parliament has possessed— and unquestionably * Vetaut leges sacratrc ; vetant duocleciiu tal)ul;v, leges ]>vivatis homiui- bvis irrogari. Id euim est privilcgium, . . . Hoc pleliciscitum? hajc lex? ba;c rogatio est? hoc vos pati potestis? hoc fcrre civitas? ut singuli cives singulis versiculis e civitate toUentur ?— Ctcero, pro dumo sua, 17. IN DEnOQATION OF COMMON LIABILITY. ^ 48A I it has possessed from all time— that extraonliuary power, it ia simply because that power was origiually the highest of judi- cial powers, and therefore vested in the High Court of Parliameut.* Ofiione of the provincial legislatures can so much bo affirmed. Not one of them claims by impre'"''''p- tible right ; not one possesses an appellate jurisdiction ; to not one can the name of Judicature, or the name of Court ^ be attributed. There is then no analogy whatever, i. that respect, between their condition and that of Parliament. There was good constitutional reason why Parliament should bo invested with the power of special and particular legislation ; and why, in exceptional cases, exercise it. There is every reason in the v.urld, why no merely derivative and subordinate legislature should exercise it, or have it, or pretend to it.* * Voluntas univcrsorum ad singulos directa, boni jiiiblici intuitu, judicium est. ... Sic jiuliciorum non alia quam legum origo. . . . Quidquid respublica se velle siynijicavit id inter civessitir/uIosJHsest ;— differt hajc regula a priori; ["quidquid reapublica velle significa^it id in cives miversos jua est"], quod judiciuni a lege civiU ; est enini judicium lex ad factum sin- gulare aptata. " Ilugonis Grotii de jure rra:da; Conmientarius (Ex auctoria Codice descrii)sit, etc. II. G. Ilamaker, Litt. Dr. ; " Hagie Comitura, 1868.) Oap, II., pp. 23, 24. t "Their Lordships see no reason to think that, in the principle of the *' common law, any other powers arc given to them (the Newfoundland "legislature) than such as are necessary to the existence of such a body, " and the proper exercise of the functions which it is intended to execute. " • • • The argument from analogy (to the powers of Parliament) " would prove too much; since it would be equally available in favour of the " assumption, by the Council of the island, of the power of commitment, *' exercised by the House of Lords; as well as in support of the right of im- " peachment by the assembly— a claim for which there is not any colour of ^'foundation. . . . This assembly is no Court of llecord, nor has it any ''judicial functions whatever. . . . They are a local legislature, with "every power reasonably necessary for the proper exercise of theic "functions and duties. But they have not — what they have erroneously "supposed themselves to possess— the same extensive privileges which the "antient law of England has annexed to the Houses of Tarliament.* Kielley v. Carson, i Moo., Pr. C. C, 88, 89, 90, 92 ; overruling a d'lctum of Parke, B., ia Beaumont v. Barrett, 1, Moo., Pr. C. C. 00. "It caunoi be I 4 436 COMrETBNCE OP COLONIAL LEGISLATUnES TO ENACT LA.W8 But, wlillst this is truo of all exceptional powers of that kind, whether having respect to individual persons and tilings, or to classes of such, it is especially true of the latter. A " Private" Act proper never binds any, but the parties to it, or those who, according to the " Clauses' Acts," arc to bo deemed to be parties. It is a mere Parliamentary eontract, and, in the great majority of cases, one to which the parties bavG readily and willingly subscribeil, and rigidly excluding all. As to such Acts, cases where capacity or status may be affected, there seems uo reason but the principle of the thing for denying to the local legislature the power to legislate. But "Special" Acts are upon an entirely other footing. They bind the community. They require no consent of parties. They have, in short, nothing but their subject, matter and their name, to distinguish them from "Public General ' Acts : and the same rules of construction are appli- cable to the former which govern the latter. The various penal Acts against Nonconformists, for instance, which, as we have seen, certainly belong to Lord Coke's category of " Special " Acts have never, infavoremvitccetlihertatls,heenmterT[iY(ited to be distinguishable from "Public General" Acts; even where some of their provisions were certainly of the nature of "Private "or "Particular" enactments; and, upon prin- ciple, therefore, open to the same challenge with enactments of that kind when standing alone.* But the contrary was the "granted thcni, that they are capable to enact at their own will and " pleasure what they think lit. Tor tliey cannot, by a law, alter the common " law of England, and the settled course of proceedings thereon. They " cannot change the common securitieB of the kingdom. They cannot enact " anything against Her Majesty's (Queen Anne's) prerogative. They cannot "takeaway, by any Act they can establish, any authority vested in the «' Governors, by Her Majesty's commisMon, with many other things too " many to be here enumerated. And they cannot pretend to have an equal " pov :r with the Parliament of Eiigia.id." Kawlin, A.G. {Tempore Annx Hegin.) Chalmers' " Opinions," p. 27G (ed. of 1858.) • Earl of Leicester's Case. Plowd., 398. Ai IK nr.RoaATiOK oh commo.v liadilitv. 437 a: M opinion of tlu; Court. Thus, tho penerul provision of the thirteenth section of the •• Act to prevent and avoid dan-^or which may grow by Popish Recusants,"* in common with all tho other general provisions on tho samo subject,— viz., the forfeiture of real estate by Roman Catholics for refusing to take the oath of Spiritual Supremacy, and go to Cimrcli,— were holdeu to be of general obligation : whilst so much of the same section as regulated the distribution of the spoil, f was holden to be only "particular" or "private;" notwithstanding the juxtaposition with those of a public general character, and that they were, therefore, chaliengoable pro tanto by those having interest ; J that is to say, by all persons, not being the unhappy ex-proprietors themselves. Instances of that kind have, in modern times, somewhat obscured tho tradition— un'iterrupted, nevertheless, and con- stant—by which the authority of Parliament to legislate, for special or particular cases only, is asserted and justified upon the ground, that it belongs to the equitable jurisdiction of Parliament, considered as the highest Court of judicature. That " Parliament " and " Court of Chancery " were conver- tible terms, even in the modern days of Lord Holt, and were so used by Lord Holt himself, is certain. § That, in fact, the equitable jurisdiction of the Court of Chancery was derived solely from the High Court of Parliament, is also certain, || That * 3 Jac I., c. 5, s. 13, "Statutes of tlie Realm," Vol. IV.. pp. 1077, 1081 (or s. IS of the common editions). T These portions of Section 13 are numbered separately, in the common editions, as ss. It), 20, and 21. t Chancellor, etc., of Oxford's Case, lOUcp. 57, 6; Hex r. London, Skinu., 294. See 1 Douglas, 97, note. § King and Queen v. Lady Portington, 12 Mod. 31. Compare Croft v. Evetts, Sir F. Moore, 784. II Ilic est qui leges rcgni cancellat iniquas, Et mandata pii principis aqua facit. Johannes iSalisburimsis {tern, Henr. II.) 438 COMPETENCE OF COLONIAL LEGISI ATURES TO ENACT LAWS at least the jurisdiction was daily and actively exercised by the latter, from the earliest days of which we have any records of pro- cedure, is clear. But the same precedents, which abundantly shew these facts, also shew that the form, in which the High Court made its will known on all such occasions, was not that of a judgment at law — albeit sufficiently imderstood — nor yet of a decree in Chancery, for that was not yet come ; — but the same fnmiliar form which was then used in all Parliamentary pro- ceedings—the Petition of the Two Houses ; the " Response " of the King ; and the Entry upon the Roll of the result ; — in other words, the form of a "Statute." Deceived by the increase, in latter times, of the Entries upon the "Statute Roll," writers of the last century, and amongst them Mr. Reeve, have erroneously supposed that the form was first in those late times adopted ; that the earliest " Private Acts " which occurred were Attainder Acts ; and that the reign, of Richard III. furnished those first models of a new form of legis- lation ; which, they agree, was only a new form of adjudication, by Parliament, upon cases not falling under general and ordi- nary law\* But the " Statute Book" itself, and also the Rolls of Parliament, which contain hundreds of similar Acts not found upon the Statute Roll, shew^ the error and anachronism of their hypothesis. The first Attainder Acts in the Statute Bookf are older, by two centuries or more, than the reign of Richard the Third; and the constant and unbroken series, which the same collection presents, of Acts of that kind, as well as of Acts to repeal Attainder Acts, very abundantly she^vs, that, from the time of Edv>^ard the Second, at least, to the time when Richard the Third ascended the throne, it had remained * Kccvc'3 History of Er.n'Iisli Law, Vol. III., p. ;!70 ; Vol. IV., pp. 129-30. t AnionsTst these tlie " Exiliuin llngonis De Spniisei-ratris ctFilii," must certainly he rnnkefl. It was passed in tlu? 15 Edw. II., and is included amongst the statutes of that year. •' Statutes of the Realm," Vol. I., p. 181. M IN DEROGATION OP COMMON LIABILITY. 439 the well established practice.* The Rolls of Parliament, which contain many more examples, also shew that, whilst the particular case of attainder by statute was at least as antient as the reign of the Second Edward, the general practice of derogating from common right or common liability, whether by way of special legislation or by way of private legislation, properly so called, in all cases and chiefly in civil cases, w^as much more antient ; that it was perfectly understood and in full vigour from the very beginning of Parliaments ; and therefore that, far from its having been, as Reeve supposed, derived from,— it must have furnished precedents for— the particular practice in Attainder. J * The restitution of " the adherents to the quarrel of Thomas, Earl of Lan- " caster," was not made the subject of inferior judicial investigation, but was accomplislied by Parliamentary enactment. That of the deceased Earl him- self and his heirs was by a judicial procecdinrr in Error, the Record of which is extant (Ciaus.) ],Edw. III., m. 21, dorso. 11. Kot., Pari (No. 1,) f. 4 a 5 a. The enactment, for restoring his " adherents in terms provided . . .' " qe les Utlaguries et Bannissementz faitz per Cause de la Querele soient " reversoz ct ancntz, ct ceo que est arere des Ranceons aneutez . . . Quant "as Fins etc., suiont dainpncz . . . Quant as Fins et Ventes de Terre et " Dounes faitz per Force et Durite, etc.: soient defaites. Et qe de ce soit fait " Article de Statut." Claus. 1, Edw. III., P. i. membr, 23, dorso. II. Rot. Pari. (1, Edw. III. No. 2.) f. 5, b. It seems however to have been found that an entire restitution had become impossible, and that it was necessary to have regard to newly acquirc.l interests. So at least I explain the way in which the two " Articles," for carrying into effect the purposes of the legislature, were drawn nj) by the ju• ire, or indeed to any authority but Parliament. For it • . the equitable and transcendent jurisdiction of that High Court over all matters, civil and criminal, within the Crown's dominions. When it passes a Bill of Indemnity, for acts done or suffered before, the High Court exercises its own original jurisdiction, to which the modern jurisdiction of its antient adjunct the Court of Chancery in analogous cases can be traced. It is, so to speak, the Injunction or Interdict, to stay prosecution or suit, where to permit either would be perilous to order or contrary to nat-'-al right. But, if no such reasons exist, there is no pretention to any Indemnity ; aud therefore to pass an Act of Indemnity, in such a case, would be simply the doing of a wrong to ihe subject and also to the community. If this be not the solution, it is impossible to recognise the legitimacy of this kind of exceptional legislation, under any circumstances ; no, not even in the case of Imperial Parliament. It is deserving of remark, also, that, until comparatively modern times, the constitutional jealousy, which was excited by its first essays, and of which the same Statute Roll contains the record, was never altogether extinguished. Men could nevei" forget that, unlike the other kinds of exceptional leoislation, )|< (t r ■ 'The terms, ' ex post facto laws,' in a comprehensive sense, embrace all "retrospective laws, or laws governing or controlling past transactions, " whether they are of a civil or a criminal nature. In all such cases, the "legislature exercises the highest power of sovereignty, and what may be "properly deemed an undoubtedly despotic discretion." Story, ubi supra, 88. 1337-1339, vol.111, pp. 20U-212;-citing 2. Wooddeson's Lectures, pp! 621-4, -1 last. ff. 36, 37. IN DEROGATION OF COMMON LTABILITr. 445 this kinrl was not one to which they could not assign an origin —that the period of that origin was notoriously one of tumult and civil war, and the occasion a mutual craving for the means of agression or reprisal hy the one faction upon the other ;— and that, almost side by side with the first example of the prac- tice, the Rolls of Parliament also presented the record of the speedy, unqualified, and entire condemnation passed by the repentant Parliament upon its <..;;n work-expres^y because it was found to be contrary to reason, justice, and the chartered right of every Englishman to seek, in the proper (^ourt, his proper remedy for redress cf wrong. And, -if it be indeed true that Indemnity Acts are certain privileges which arc grantable at the mere pleasure of Parliament, and demand no such pre- cedmg deliberation and adjudication as in the cases of " Injunc- tion " or "Interdict " in ordinary courts are certainly essen- tial,— it is impossible to deny that the practice at large is equally open, with the particular instance in question, to the condenmation recorded in the Fifteenth year of Edward the Se.;-nd. In neither case, however, should any pretention to that authority be urged by any meaner legislature.* * The earliest example of an Indemnity Act, is perhaps the Statute or Ordinance of the 7 Edw. 11, "ne quis occasionetur pro reditu Petri de Gavestone." (" Statutes of the Realm," Vol. I., p. 170). Itwas not only re- pealed within the year, hut there was substituted for it the Statute or Ordi- nance of the same year " ne quis occasionetur pro siorte Petri de Gavestone-' which was, however, not so much an Indemnity Act, as an Act for removing doubts, as to the jurisdiction which had tried and condemned that favourite. Of the next precedent, and it occurred only eigh. years later, we can speak with less uncertainty; none of the records having been destroyed. In the 15 Edw. II , there was granted, by Statute, a general and particular indem- nity, upon the occasion of the passing of the Attainder Act already noted of the two Le Despensers. It was granted to all, " of whatsoever estate or con- dition," being actors in or privies to "the pursuing and destroying" of the two lords, and the Indemnity (applicable not only to the King's suit, but also to that of any private person,) was expressed to be against all " treasons," " felonies," or " trespasses " soever, done in the premises. The title of the Statute is "Ne quis occasionetur pro Felouiis seu Transgres- 446 COMPETENCE OF COLONIAL LEGISLATURES TO ENACT LAWS Tliis appears to have been the view taken of the matter by the Law Officer of the Crown, whenever called upon to report for or against the allowance, or it might be the disallowance, of any colonial Act. If it sounded in Indemnity, or Bar of Suit or Prosecution, they held it '• to fall under the rules of my Lord "Coke, of being impossible and inconvenient,"— and therefore void ;— " inconvenient;" because, to be debarred of remedy, was *• the highest injustice and the greatest of hardships ;"— and impossible ; ' ' because ' ' those things they took to be legally *' impopsible, and what no Act of the island could lawfully ''establish." For, whilst even a pardon was beyond their powers, that being a matter that must rest entirely in his Majesty's royal breast, weighing all the circumstances and «' sionibus factis i prosecutione II. le De Spenser, patris et filii "; 15 EdwII. ("Statutes of tlie llealm,' Vol I., pp. 185-C, and note (2) to p. 185). Later in the same year, the King summoned a new Parliament at York, which passed an Act (Id., p. 187, and Ibid., n. />.). f"'' repealing the Attainder Act above mentioned, and then took into consideration the Indemnity Act also, npon the complaints of the Despensers and their ad- herents, (Id. pp. 188-9) that, albeit " they ought to have their recovery " against them who did tiic said felonies and trespasses, namely, according to *' the laws and usages of the Eealm, to sue against all who upon them had " trespassed, as is aforesaid, sucli suit they will not he able duly to make, if " the said statute, purveyance, and acquittance of those felonies and tres- "passes, v/ere not repealed and amilled." The repeal was granted:— and the grounds expressed in the repealing Act itself were, that the Indemnity Act was, upon examination, " found to be against reason and common right, " against the King's Oath made at liis coronation, and against the tenor of the "Great Charter of the Franchises of Enghmd;— the which is affirmed l)y the "sentence of excommunication ; and in the which it is contained that the "King shall not deny, neither delay to none right nor justice ; " and, in fine " in offence of others' riglit, and so in prejudice of him and of his crown, and of "his royal dignity." Both of those repealing Acts were tliemselves repealed immediately after the iirst success of the revolution which raised his son to the throne ; 1 Edw. Ill , Stat. I., cc. 2, ,",, (« Statutes of the Kealm," Vol. I., pp. 252-3), and II. Hot. Pari., ff. 5 b., 420 a. b., to 424 «.; and in their stead a new Act of Indemnity was passed ; but for the very different purpose of protecting the new King, the Queen- Mother, and their adherents, ia : I\ HEROGATFOX OP COMJUTON LIABILITT. 447 .>» consequences that might be foreseen or apprehended,-au Indemnity was of far other consequence than a Pardon ;- -and II tliey did not see upon what reason it could be founded, that ^^ His Majesty's subjects, injured in their property, should be delayed in the recovery of that satisfaction which the law •gave them."* A not irrelevant example is to be found in the history of Hong-Kong;- which, although the youngest of all the British colonies, may perhaps claim the dubious distinction of havings duringits brief existence-furnished nearly as many examples of vitious legislation and administration as the whole body of British colomes, whether of antient or of modern times —the West Indies excepted. « An Ordin.once for better securing the Peace of the Colony/'f passed by the local legislature on the respect of all acts done by them, "from the day of the coming of the .said "faZ" 1 E^^TlTf '^T'' --^«^^-^^y"^«- said King's Coro- SC-oGG). In the foUowing reign, the Attainder Act was once more re- pealed; 21, Rie. II. Nos. G4-GG. Ill Rot. Pari., 3G6 L., 3G7 a.L, b "t e Indemnuy Acts were untouched; the bar, long since created by the effluxion o the statutory ..time," making any repeal quite fru tl.s,! Nor was the repeal of the Attainder cffectuaL In the next IW tT'l^i T' ^^^V7^"°"''" ^" ''' -cords and proceeding f o »t '°^''^ '^^' Parliament itself-were by the 1. Hen IV c 3. « Statutes of the Realm," Vol. II., p. n.O), '< .holly Lrsed. r " S' mtcd, broken, repealed, and annulled for ever ;" and .oon after tL revivor of the attam er of his house, the heir of LeDespenser was further ad udged to suffer he hke forfeiture, in respect of his own complicity in the proc^d- 'zx::z::^r-'^'^' ''-''- ^— o)>-rol 381 ".^r't'" ""TT' ^•''•' '""'• ^""^^- ^- Cl-l-ers, uli supra, pp. 380, Ben 1.7^"'' ""''"' ^•^- ^"'^^^"^'-'^ ^''^^ Chief-Justice o King's Bench, and Murray. S.G., afterwards Lord Mansfield. CJ.); July oj J' Idem, pp. 448, 449. " .y i, ±iiv. t "Ordinances by Sir John Eowring, Knight, LL.D., Governor and Commander-.n-Ch:ef of the Island of IIong-Kong and its Dependences ^et.. etc etc., with the advice of the Legislative Council of H Lg Kong ' 448 coMrETENCE OF COLONIAL legislatuhes to enact laws 6th January, 1857--a time no doubt of great panic and ex- citement, resulting from the state of war, so to call it, then existing between the local authorities and the Mandarins of the neighbouring coasts,— contained, amongst other exceptional provisions, one (s. 11) for empowering " any person, lawfully ** acting as a sentry or patrol," between 8 p.m. and sunrise, **to fire, with intent or effect to kill, upon any Chinaman, " whom he should meet with or discover abroad, and whom ** he should have reasonable ground to suspect of beinf so " abroad for an hnproper purpose, and who, he'mg challenged " by him, should neglect or refuse to make proper answer to *' his challenge." Another section provided (s. ] 3) that " no "act done or attempted ii; pursuance of that ordinance should "be questioned in any court." All the provisions of the ordinance were, by anot ler section, extended (s. 14) to all ** persons serving in the sea or land forces of Her Majesty, " or of her allies ;" and, in addition to the large powers thus conferred upon the British, French, and American forces- military and marine— at that time within the waters of Hono-- Kong,— it was also provided, by the same section, that all such "persons" should be "deemed and taken to have such ^'further and other powers and auth(n-ities, for the better " securing the public peace and order, as they would have had " if martial law had been proclaimed within that colony ," yet so as not to confer (s. 15) upon a court-martial any juris, diction over mere civilians. "Any Act done or attempted " in pursuance of such further or other powers or " authori- "ties" was cognisable by a court-myrtial only, and tliat too only " in the case of Her Majesty's said forces ;" and, with that solitary qualification, it was expressly enacted, — as to " all "persons serving in the sea or land forces of Her Majesty or " of her allies," that (s. 14) "it should not be lawful to try "or punish any such persons" for any such act or attempt. Finally, the whole of the provisions of that ordinance were t JX DEKOOATION OP COMMON LIABIUTF. 449 t i' made to apply (s. 10) to '' all acts done or attempted before •Hhe passing of that ordinance, and which would have "been lawful, if so done or attempted after the passing- I' thereof; and no man," it was added, "shall at any time '* hereafter be called in question, for or in respect of the same." The ordinance contained no suspensory clause, but only a clause empowering the Governor, if he pleased, to suspend it. Until then it was to have immediate effect ; and it contained no reservation of the Queen's pleasure. It was, however, too manifestly at variance, in many respects, with aU principles of jurisprudence and all notions of provincial subordination, to escape the condemnation of the proper advisers of the Crown. No sooner hud their opinion been taken than, as we learn from awernor Sir John Bowring's " Proclamation ' ' of the following 1 5th of July,* '-' the commands of the Secretary of State " to suspend its operation were despatched ; and, on the same day, "An amended ordinance for better securing the peace of the "colony," was passed through all its stages by the legislative council, and received the Governor's assent.f Besides contain, ing some important modifications, ordered by the Home Govern, ment of those other exceptional provisions to which I have referred only in general, the amended ordinance is noticeable, for the entire omission of all those which I have specif^-^' except only the last ; v/hereby, as we have seen, a retrospective operation had been given to the disallowed ordinance. That section was re-enacted, and is suction 12 of the amended ordinance. In that shape, however, the ordinance received the approval of the Crown through the Secretary of State, + * "Pro( knact laws not, as I believe, without .ome hesitation on his part, and ahnost on the eve of Uie retirement of the then Cabinet. It was probably thouoht that the retrospective effect of a temporary enactment, of that kind, was lilioly to be so inappreciably small, as to make it not worth while to send back the ordinance for a new amendment. Still the compliance IS to be disapproved. It will be used here after, ra/cai quantum, as an example of what other petty legislatures conceive themselves justiHcd in expecting? at the hands of a Secretary of State ; and, to that extent, it detracts from the usefulness of Secretary Mr, Labouchere's mercurial to the Governor and Legislative Council of Hong-Kong. It is true that the main purpose was fully answered, and especially so far as concerned the i)retention to a pov.er of passing Acts of Indemnity in favour of the wrongdoer or against his victim. Nevertheless, it should have been remembered that, not only m that form, but in any form, retrospective legislation is always dangerous, most frequently pernicious, and never unattended with serious consequences to particular rights vested and to particular liabilities incurred. Considerations such as these would have satisfied the minister, how impossible it was to acquiesce in the assumption of such a power, (;ven for a transitory purpose, by any authority, le^. than Pari ia- ment itself, or not having an express delegation from Parliament. In fact, if not in form also, it is equivalent to an assumption to legislate for particular classes or particular persons, and agamst others ; releasing the former from their civil and criminal responsibility, and burthening the latter with pains, penalties, and disabilities ; and yet leaving the general law in force, and the general body of subjects in subjection to it ; — a power with which, as we have seen, no such assembly has hitherto been invested but by Parliament, ncr yet by Parliament, except in the solitary and recent instance of the '* dominion " of Cnnada ;— and even there for some few specified cases only. IN nEROOATIOV Ol COMMON" MAIJILITY. 461 <( •' It Ls in the oencnil true," any the {luthorities,* " that m statute is to Jiave a retrospect heyontl the time of its com ■ " mencement. For the rule and law of ParUament is thai " nova v.onstitvtto futarh formam dehet hiqioacrc, non prcc- ''teritis." No doubt the sovereign will of Parliaiueut is always potent to make an exception to that general rule, in any particular case, by declaring its moaning' to be tliat tho Statute shall be retrospective. But the declaration must be clear and unequ.ivocal. Otherwise tho contrary presumption will obtain, and the general rule prevail in the construction ot the Statute, t Surely the same jealous vigilance ought to be observed in the construction of powers conferred by statute or charter, of which the donees claim to be thereby empowered to make enactments in derogation to that rule. Nor here again, are we without very high authority, in distinct confor- mity with principle and right reason. We arc told, by a very learned judgo+ that, " on the dis- " covery of some defalcations in the office of the Ecclesiastical "Registrar, at Calcutta, Mr. Bethune, the legislative member '' of council proposed to enact a retrospective bill of pains and " penalties; by which the defaulting member should be sub- ejected to transportation for fourteen years. The Marquess " of Dalhousie recorded the following Minute on the subject : " ' I am by no means confident that the power of the Council " ' of India to pass a retrospective Act, iniiicting punishment " 'on an individual, for conduct which the statute law of •"England had not recognised to be a crime, and thus '"exercising an authority which the Imperial Parliament '"itself does not put forth exc-pt on the rarest occasions, * Bacon's Abr. •' ytatute " (C.) and cases there collected, t Hitchcock i,'. Way, A. and E., 943. Moon v. Burden, 2 Excli. 22. J " Cases Illustrative of Oriental Life, and the application of English " Law to India, decided in H.M.'-s Supreme Court at Bomhav ;-by Sir Henrv " Erskinc Terry, lave Chief-Justice; "-(London, 1853.) "Law of Thisps " and Contracts," p. 223 note («). r 452 COMPETBNCE OP COLONIAL LEGISLATUKES TO ENACT LAWS and at distant intervals, would be received as indisputable, pither by legal authorities in England, or Y.j the Honour. able Court of Directors under whom we seiTe. The " 'Honourable Court has, of late, on more occasions than " 'one, evinced an indination to hold that the legislative powers of the council of India, on other points than those '^' I which are specially regulated by the Charter Act,* are anything but coextensive with the powers of other legis- 'y^^^^^^f^^ ' To this view 01 the Governor- General, Mr. Bethune thus replies, ' I hold the legislative |y^ power conferred by Parliament on the Governor-General II I in Council to be as large within the sphere of i+s operations II ' as that of Parliament itself for the whole of Her Majesty's dominions ; subject only to these express exceptions made II ' by the Act by which this power was created. And I think II 'it right to assert this opiniun as plainly and broadly as II I possible, when the observations of the Governor-General '"appear, in some degree, to countenance a different doc- " 'trine.'." There can be no doubt that the legal adviser of the Indian legislative council had not the best of the controversy. He failed to see, I think, the question which was raised ; namely, *Thc Charter Act in question was the 3 and 4 Will. IV., r 8-,— uul .section 43 of tliat Act conferred the legislative power, and defined its extent by exactly the same limits as those of the common Ian-. For thev reserved: 1. The Charter Act itself: 2. All Acts of Parliament relating to the army in India; 3. Parliamentary supremacy, Mhether legislative or general; 4. Royal Prerogative; 5. [which seemed to be reserved already! Uie con.,tuiuion or rights of the Indian Government; and, (5, "Thp Ux- ^^ WiaTXEN- L uv« or Constitution of the United Kingdom of Great Britain and Ireland; whereon may .lepend, in any degree, the allegiance of any person to the Crown of the United Kingdom, or the sovereigntv or do- nnnion of the Crown over any part of the sai.l territories." I hav^e set out the words themselves of this sixth reservation ; it being very evidently the only one upon which Lord Dalhousie's just and well-iounded doubt o' i own power to legislate in derogation of the Queen's '■ protection,"_that cor- relative of the subject's " allegiance ' -could have been founded. r IN DEROGATION OP COMMON LUBILITY. 453 are whether the case before him were not one of '' the express " exceptions made by the Act." There can be no hesitation in so considering that case. A more outrageous violation of all constitutional principle than the proposed bill would have effected I cannot imagine. But it was not suffered to pass. These, however, are not merely my views. I am happy to say that higher praise than mine has been bestowed upon the language and conduct of the Viceroy of India in that case. The Minute of the Marquess has had the honour of being referred to from the Bench, as a true exponent of the consti- tutional doctrine on this head. " I agree with the Governor- " General,"— are the words of the learned Chief- Justice of the Supreme Court of Bombay in delivering the judgment of the full court in one of the celebrated Opium Cases of 1849,*— "in some views of his which have been lately laid before " Parliament;— that it would savour of much impropriety, and "be opposed to all constitutional doctrines, for a body like the " logislative council, with its limited powers and very peculiar "composition, to attempt to give a retrospective operation to *' a statute of this kind." The very occasion of those remarks afforded another illustration of the same doctrine. In the preceding year, the legislative council of India, re-enacting for India the English Wagers' Act,t had varied the language of that Act so as to make it of retrospective operation. + To an action, § brought after the passing of the Indian Act, upon a wagering contract made before it, the defendant set up the statutory defence :— and he relied upon the variations introduced by the Indian legislature * Ramlal v. Dulubdas ; per Sir Erskine Peny, C. J., and Sir William Yardley, J., iu " Cases Illustrative," etc., iibi supra, p. 223. t 8 and 9 Vict., c. 109. X Acts of the Governor-General and Council of India ; No. xxi of 1848. § Ramlal v. Dulubdas, ubi supra, p. 221. '4- ■ 454 COMPETENCE Ol' COLONIAL LEGISLATURES TO J NACT LAWS into the language of the corresponding act of Parliament, as shewing the intention to give a retrospective effect to the Indian Act;— also citing Freeman v. Moyes;* and Towler v. Chatterton.f The cases were certainly in point;— if the parity of the inferior with the imperial legislature was not wanting. But that parity failed altogether :— and the Court, therefore, on a subsequent day, unanimously ** overruled the "new point,"— (as the Chief-Justice, m delivering the judgment of the court, styled the objection) +— " made in "the opium cases, that the act of the Indian legislature "had annulled all wagers in existence at the time of the "act's passing." It was true " that the Indian act departed "needlessly, and, as it turned out, mischievously, from "the language of the English statute." But it could not be, " without much impropriety and opposition to all constitu- " tional doctrines," interpreted to be the meaning of " a body "like the legislative council, to attempt to give a retrospective " operation to a statute of that kind." It was here that the Chief Justice took occasion to express, in the passage already cited by me in its proper place, the entire concurrence of the Supreme Court of Bombay in " the views " of the Governor- General on that subject, " which had been lately laid before ' ' Parliament. ' ' On appeal to the Privy Council, this judgment was affirmed ; without any expression of dissent on the part of the judicial committee from the ratio decidendi of the Supreme Court. § It is difficult to overrate the value of those Indian pre- cedents. The Legislative Council of India i)ossessed a delega- tion from Parliament itself. The limits, imposed by Parlia- ment, were in no respect more strict than any which fettered the exercise of the legislative authority of the freest of * 1, A. and E., 338. f G Bing. 258. X Ramlal v Dulubdas, ubi supra, p. 222. § Same «. same (ou Appeal), 5 Moo, lad, App. Ga., pp. 126-7. i f i :i IN DEROGATION OF C05IMON LIABILITF. 455 i colonial assemblies past or present. In some respects, the Indian legislature enjoyed a greater freedom than many colonial legislatures from imperial control. Amongst other immunities which it possessed, the exemption from all obliga. tion to reserve the pleasure of the Crown, and the exemption from all liability to disallowance in England, deserve espe- cially to be mentioned. Yet the constitutional incapacity of that legislature to make a law— even a public general law— which should operate ex post facto, was, on the first occasion, frankly suggested by the Viceroy himself, the principal estate in that legislature,— and solemnly declared, on the second occasion, by the supreme judicature, the "Charter Court" of the Queen. I need not speculate upon the view, which either authority would ha.ve taken, of the competence of the same legislature to ])ixss an ex post facto Act, for indemnifyino- a person or a class, against the natural and legal consequence's of acts done, or attempted, in violation of the general law in force within that community;— for, c' multo fortiori, that view must have been the same. The conclusion to which I have come is not at all affected by the extraordinary proceeding of Governor Eyre and the ci devcmt Jamaica Assembly, in sending up a bill for their own indemnity, nor the " Allowance," which Her Majesty was pleased to signify, of that measure. If the bill was ultra vires, the Royal ''Allowance" could not make it law.* It would be a novelty, but not a dangerous novelty ; an usur. pation, but not a dangerous usurpation; for a nullity, like that, can never be drawn into a precedent. My conclusion, therefore, is against the competence of that of any other derivative or subordinate legislature, not bemcx specially and expressly thereunto authorised by Imperial * SymoDs V. Morgan, Pari. Pa. {uhi supra), pp. 76, 81. Campbell v Hall, Cowp. 201-201). S.C. 20 Ho v/. St. Tr. 327-329. "Canadian rroe-' holder," hy Mr. Baron Maseres, p. 297. Ti 456 COMPETENCE OF COLONIAL J-EOISLATURES TO ENACT LAWS. statute, to bind the subject by any enactment derogating from common liability or common right ; — and I think that an Act of Indemnity cannot form any exception to that universal rule. NoTi;. — TIic judgment of the Court of Queen's Bench (on cross, demurrers to pleadings) in tiie still pending case of Phillips v. Eyre, Avas delivered on the 2!)th inst., after the above i.aper had gone to press. In that paper I had carefully forborne all allusion to the pingle question which those demurrers raised, and which, when I was preparing if, was awaiting the judgment now delivered. That question was whether the Jamaica Act of rndemnity, referred to elsewhere, would be pleadable in bar of an action in Westminster ]Iall, if pleadable in bar to an action in Jamaica. The leadings. For that, being in this country a question of foreign law, was a question of fact. There was no traverse of the averment in the declaration that " the Act «' had become part of the law of Jamaica ;"_and, for the purposes of the demurrer, that averment had to be taken as true. The Court held that, given the validity of the Act in Jamaica, as thus admitted by the ])laintift''8 demurrer, the Act ought to be taken as an equally good ground of defence in this country. I do not consider that the positions which I have defended are touched by that case.— T. C. A., 30th Jamumj, J8CD. A .l| M'Corquodftle m