THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
BRITISH RULE AND
JURISDICTION
BEYOND THE SEAS
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
LONDON, EDINBURGH
NEW YORK
BEITISH EULE AND
JUEISDIOTION^
BEYOND THE SEAS
BY THE LATE
SIR HENRY JENKYNS, K.C.B.
AMTH A PREFACE BY
SIR COURTENAY ILBERT, K.C.S.I.
OXFORD
AT THE CLARENDON PRESS
1902
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY
i
ioc "
PREFACE
A pathetic interest attaches to this vohime. It
was to have been the firstfruits of its author's well-
earned leisure. Its completion was arrested by his
untimely death.
Henry Jenkyns was born at Durham on Septem-
ber 2, 1838, and was the eldest son of the Kev.
Henry Jenkyns, D.D. His father had been a
Fellow of Oriel in the time of Arnold, Copleston,
and Newman, and afterwards became Canon of
Durham and Professor of Divinity and Ecclesias-
tical Literature in the Durham University. His
mother was the eldest daughter of the Eight Hon.
Henry Hobhouse of Hadspen House, Somerset,
who was permanent Under Secretary of State for
the Home Department from 181 7 to 1827. He
was a nephew, on his father's side, of Richard
Jenkyns, the well-known Master of Balliol, and, on
his mother's side, of the present Lord Hobhouse.
Lord Thring, whose mother was an elder sister of
Canon Jenkyns, was his first cousin, though be-
longing to an older generation.
Henry Jenkyns was educated at Eton and Balliol.
He rowed in the Balliol boat when it was head of
the river in 1859, and was one of the three Balliol
men who monopolized the first class in Litcrac
Iltimaniores in the Easter Term of June, i860, the
718230
VI PREFACE
other two being Chaloner Chute and Lionel ToUe-
mache. After taking his degree he went up to
London to study for the bar, and began by reading
with a conveyancer at Lincoln's Inn. After spend-
ing six months or so in the chambers of Mr. John
Welch, the special pleader, at the Temple, he re-
turned to Lincoln's Inn and read with Mr. John
Wickens (afterwards Vice-Chancellor), whose pupil
he remained until he was called to the bar at
Lincoln's Inn in 1863. He had some practice as
a conveyancer, and occasionally went on circuit,
but he very soon left the highway of the legal
profession for that special branch of legal work
which was to be the occupation of his lifetime.
He was entrusted by the Statute Law Committee
with the duty of preparing a Chronological Table and
Index to the Statutes of the Eealm, a task which
involved enormous labour and the most minute
research into the contents of the statute-book.
The first edition of the work appeared in January,
1870. When the office of Parliamentary Counsel
to the Treasury was created in February, 1869,
with Mr. Thring as its head, Jenkyns was offered
and accepted the post of Assistant Parliamentary
Counsel. He held that office until Lord Thring's
retirement in July, 1886, when he succeeded his
former chief. He retired in February, 1899, after
thirty years' service under the Government. In 1877
he married Madalene Sabine Pasley, youngest daugh-
ter of Admiral Sir T. Sabine Pasley, Bart., K.C.B.
He was made a C.B. in 1882 under Mr. Gladstone's
government, and a K.C.B. in 1892 under the
PREFACE Vii
government of Lord Salisbury. He died, after a
brief and unexpected illness, on December lo, 1899,
within a year from his retirement.
Sir Henry Jenkjois was little known to the
world at large. The record of his work is in-
scribed on the arid, anonymous, and ungrateful
pages of the statute-book, and in the sixty and
more folio volumes of confidential papers — drafts,
notes, minutes, memoranda, and the like — which
testify to liis conscientious and unflagging in-
dustry.
The period which his official life covered was
one of great legislative activity in the British Par-
liament, and among the many important legislative
measures which he drafted, or helped to draft, may
be mentioned Mr. Forster's Education Act and
Ballot Act, the Army Act of 1881, Mr. Gladstone's
Irish Church Act, Irish Land Act and Home Rule
Bills, the Acts which transfoimed the system of
Local Government in England and Ireland, and
Sir William Harcoui-t's Finance Act. To make the
list complete would be to write the histoiy of Eng-
lish legislation for thirty years. It must not be
supposed, nor will it be supposed by any one who
is acquainted with the nature of English legislative
machinery, that work of this kind was of a mecha-
nical character, or even that it involved nothing
more than putting into shape the suggestions of
others. The sixty or seventy volumes to which
I have referred, if their confidential contents could
be disclosed, would tell a very different story. But,
from their nature, they cannot be used as materiiils
viii PREFACE
for a biography, nor will any biography be attempted
here. All that is attempted is to give the impres-
sion produced by a very remarkable man on some
of those who knew him best.
It was at the beginning of the year 1870 that
I was first brought into close relations with Jenkyns.
Mr. Henry Thring, as he then was, wanted a young
barrister to give him assistance at his oflSce, and at
the suggestion of Jenkyns, whom I knew slightly,
I undertook the work experimentally. The experi-
ment, in that particular form, only lasted six
months, but during the remainder of the twelve
years which elapsed before I went to India I con-
tinued to do a great deal of drafting work for the
Parliamentary Counsel's Office, and naturally had
much to do with the Assistant Parliamentary
Counsel. After my return from India in 1886
to take up the post which he had vacated, I was
intimately associated with him in all his official
work.
In personal appearance Sir Henry Jenkyns was
a noticeably handsome man, above the ordinary
stature, with a powerful frame, strong but clearly
chiselled features, and large, dark, expressive, brown
eyes. His manners were reserved and sometimes
brusque. He had a small circle of intimate friends
by whom he was regarded with deep affection.
To Ministers and ex-Ministers of the Crown, and
in the precincts of Parliament, he was a famiUar
figure. Among the heads of the Civil Service
there was no one who was more frequently con-
sulted, whose opinion carried greater weight, whose
PREFACE ix
character coninianded more sincere and affectionate
respect. But to the world at large he was little
known. For this there were many reasons. He
was constitutionally shy. He lived the quietest
of lives. Even his most intimate friends could
not pei'suade him to dine out. He abhorred
functions. He was the hardest and most indefati-
gable of workers, and found that he could not re-
concile the claims of public duty with the charms
of society. Social engagements were incompatible
mth his method of work, which was to take his
papers in the evening to his house in the country,
and think out, steadily and quietly, the conclusions
which he dictated next morning in the form of
memoranda, minutes, or Bills. And lastly, in spite
of liis robust physique, he had always, from his
college days, felt the importance of being careful
about his health. His favourite form of recreation
was a holiday in the Alps.
For his reluctance to attend public dinners and
similar gatherings there was another reason beside
that referred to above. He always maintained that
a civil servant, especially if engaged on confidential
work, should keep in the background, and that the
less he spoke in public and wrote for the press the
better. It was probably for tliis reason that during
his time of office he made no literary use of the vast
mass of materials which he had collected in the
course of his official labours. It may be that ho
was over strict in his self-imposed reticence. But
if he erred it was on the side of virtue. The rules
which ho laid down for his own guidance in these
X PREFACE
matters were the outcome of the stern, lofty, un-
swerving, austere conscientiousness which was the
keynote of his character. No one had a higher
standard of pubhc duty. No one lived so con-
scientiously up to his standard. Private interests,
amusements, convenience were, with him, always
subordinate and subservient to public duty. If he
had a complicated legislative task on hand it ab-
sorbed the whole of his time and energies, irrespec-
tively of office hours and vacations. And the level
of work wliich he expected from others never
equalled his own.
Probably the first thing that would strike any
one who was brought into contact with Sir Henry
Jenkyns in his official capacity would be the extent,
accuracy, and minuteness of his acquaintance with
legislative and administrative machinery. He knew
the macliine by heart. So far as this knowledge
was derived from book-learning it was to be ex-
plained by his habits of work. When he was called
upon to prepare a Bill on any important subject he
would begin by endeavouring to make himself a
complete master of the subject in all its bearings.
For this purpose he would spare himself no pains
in ransacking the contents of statutes, law reports,
text-books, blue-books, volumes of Hansard, and the
like. The results would be embodied in an ex-
haustive memorandum, which would describe the
existing state of the law, the mode in which, and
the sources from which, it had grown up, the autho-
rities by which it was administered, the difficulties
which had occurred in its administration, the
PREFACE xi
attempts which had been made, in Parliament and
elsewhere, to amend it, and the fate which these
attempts had encountered, and would end by sug-
gesting practical conclusions for adoption, and indi-
cating the arguments for and agiimst each alterna-
tive course. The Bill based on these materials
would 'be accompanied by full notes, showing the
mode in which, and the reasons for which, each
clause would alter the law, and the arguments
which might be used and would have to be met.
The folio volumes to wliich reference has been
made abound in memoranda and notes of this kind.
The number of legislative problems with which
Parliament has to deal, though great, is not infinite,
and the same problems are apt to recur in varying
forms. Under these circumstances his years of
patient, thorough, and methodical study made him
a walking encyclopaedia of legislative information,
and equipped liim for grappling, at a moment's
notice, with almost any subject on which
legislation might be required, and for offering
searching criticisms and useful suggestions on
almost any legislative topic. And his knowledge
was not derived from books alone. During his
long term of office he had mixed with the staff,
and become famihar with the actual working, of
all the great Government departments ; he had
enjoyed exceptional opportunities of studying from
the inside the ways of Ministers and of Parhament ;
he knew what legislative expeiiments had been tried
and suggested, why some of them had failed and
others had never come to the birth ; and he could
Xll PREFACE
often divine in what quarters, and on what grounds,
criticism and opposition might be expected. It
may be added that he was, in a small way, a land-
owner in two counties, and, as such, took a keen
interest, and a practical [part, in working out the
problems of rural administration. His practical
experience of these matters served him like Gibbon's
experience in the militia.
His knowledge of detail was only equalled by his
grasp of principle. As a constitutional lawyer he
ranked very high, for not only had he an exceptional
acquaintance with the actual working of the British
constitution, but he had carefully studied its his-
torical development, and made himself familiar
with the constitutions of foreign countries and of
other parts of the British Empire. And though
his practice at the bar had not been extensive, yet,
within the domain of private and criminal law, he
was a very sound lawyer, and had, what practising
lawyers do not always possess, a firm grasp and
clear appreciation of legal principles. This was due
to the habit of looking at legal questions not merely
from the legal, but from the legislative, point of
view, and of considering not merely what existing
legal rules are, as established by judicial decisions,
but how they might be and ought to be modified
and developed. And his mind, which was by
nature of a judicial cast, had been carefully trained
in the habit of weighing and balancing rival con-
siderations, and arriving at an impartial and prac-
tical conclusion.
These were the quahties which made his advice
PREFACE xiii
and criticism so useful to Ministers. A new post,
like that of Parliamentary Counsel to the Treasury,
is apt to be very much what the holder chooses to
make it. Jenkyns' view of his functions was that
he was not merely a draftsman, but counsel to the
Government in its legislative capacity, and that it
was his duty, as such, to bring forward and press
any considerations within his knowledge and experi-
ence which might assist a Minister in arriving at
a sound conclusion, always remembering that it was
for him merely to present arguments, and tliat the
responsibility for decision must rest with the
Minister himself. To perform this task with effi-
ciency and discretion is not easy. The adviser has
often to play the part of Devil's advocate, and to
insist on difficulties which the sanguine legislator
would prefer to ignore. It is easier to prophesy
smooth things, and sometimes more profitable.
Micaiah the son of Imlah was not popular in high
quarters. The extent and variety of Jenkyns' con-
stitutional knowledge and Parliamentary experience
made him a formidable critic of legislative proposals,
and the frankness and outspokenness with which he
expressed and supported his views, coupled with
a certain brusqueness of manner, sometimes gave
offence. But those whom his criticism irritated for
the moment were usually ready to acknowledge its
permanent value later on. And it was not a merely
negative and destructive criticism. He was always
eminently suggestive and resourceful. He pos-
sessed, what is perhaps the most valuable of all
qualities for legislative purposes, a constructive
xiv PREFACE
imagination. He saw administrative machinery in
the concrete. He knew not only the law which
would have to be applied, but the kind of men who
would have to work it, and the human weaknesses,
prejudices, and interests which it would bring into
play. Hence he could sketch out with great rapidity
the heads of a scheme which, though requiring
modification in details, would probably be found
workable in its main outlines. His feeling for
artistic form and hterary finish was not strong,
and his style was sometimes open to the charge of
being rugged and crabbed. But the machine which
he turned out, unless thrown out of gear during its
passage through Parliament, usually stood the test
of practice. The main object had been clearly con-
ceived, the details had been thought out, the parts
cohered, the joints were well morticed.
It need hardly be said that his zeal and energy
were bestowed irrespectively of political parties.
He laboured as indefatigably on Mr. Kitchie's Local
Government Bill for England and Mr. Gerald Bal-
four's Local Government Bill for Ireland as on
Mr. Gladstone's Home Eule Bills and Sir William
Harcourt's Finance Bill. And there are occupants
of the opposition Front Bench who can testify that
his criticisms of weak points in legislative proposals
were at least as unsparing during their period of
office as in the time of their successors.
What he was to his official superiors, that he was
to those who worked with him and under him.
They also can bear witness that, if he was the most
searching, he was also the most helpful and con-
PREFACE XV
siderate, of critics ; that while he was always anxious
to get to the bottom of tilings, he was never content
with merely finding fault and pointing out omissions,
but was unfaiUngly ready to bring to their assistance
his sound, sane, and upright judgement, and his
unrivalled store of knowledge and experience. To
co-operate with him in his work was a moral and
intellectual discipline of a very high order.
He has left his mark deeply and permanently
on the Victorian Statute Book. As a draftsman
he had to recognize and bow to the Parliamentary
exigencies which controlled his craft, but no one
ever struggled more conscientiously, more persis-
tently, or more effectually, to remove or minimize
the defects of form incidental to Parliamentary
legislation. He was substantially the author of the
Index which is an indispensable guide to the laby-
rinth of our statutes. He was the life and soul of
the Statute Law Committee, and lived to see the
completion of the work of expurgation and revision
which is represented by the Revised Edition of the
Statutes, and he was indefatigable in urging the
importance, and giving practical aid to, the work
of Statute Law ConsoHdation.
Of his private hfe this is not the place to speak.
His friends will remember him as a man of stain-
less honour, Justus et tenax, the most loyal, fearless,
and single-minded of public servants, the most con-
scientious but genuinely kind of friends.
I append to this imperfect sketch of an old
friend's character and career some appreciations
written after his death.
XVI PREFACE
Lord Thring has contributed the following note
on his early official career : —
In 1869, Mr. Lowe, then Chancellor of the Exchequer,
created the office of Parliamentary Counsel, and appointed
me to the post. Looking' about for assistance, I could think
of no one who would be of any possible use except Mr. Jenkyns.
Accordingly I informed Mr. Lowe that I should require an
assistant counsel, and that I should name Mr, Jenkyns,
adding that he was my first cousin, and that possibly his
nomination might be considered a job. To which Mr. Lowe
replied with characteristic quickness, ' I do not care whether
he is your first cousin or not; I am sure you would not
appoint an inefficient man.'
Thereupon Mr. Jenkyns was appointed, and worked as my
assistant till I resigned my office on being made a peer in
1886.
During the whole of those sixteen years I was in daily nay
hourly intercourse with Jenkyns. In his work he was most
accurate and industrious, never sparing his toil. His mind
was of the best legal type : he understood law profoundly,
forming a just opinion on any legislative difficulty which
might arise, but above all having the rare qualification of
a ready invention in devising means for surmounting each
difficulty instead of merely pointing out its existence — an
easy task within the capacity of many lawyers who lack
altogether the knowledge and ability necessary to suggest
a remedy.
Whilst I was head of the office, Jenkyns had not often an
opportunity of undertaking independently important measures,
but I recollect several notable exceptions. In 1870 Mr.
Forster, who was engaged in the preparation of the Elementary
Education Act, 1870, entrusted the Bill to Jenkyns; and accord-
ingly the whole of that most important measure, the foundation
of our system of elementary education, was entirely drawn by
him. The strain put on him was tremendous, and for a short
time his health broke down and he had to moderate his work
at the office.
Sir Henry James, now Lord James of Hereford, also selected
PREFACE
xvii
him to draw bis great measure for the Prevention of Corrupt
Practices at Parliamentary Elections (the Corrupt and Illegal
Practices Prevention Act, 1883), and formed the highest
opinion of his ability.
Sir William Harcourt also 'requisitioned' him for the
preparation of a Bill, in wbich he was much interested,
for the government of London.
Jenkyns bad a very just objection to civil servants en-
deavouring to procure credit for themselves by writing articles
on general subjects in magazines, or otherwise exhausting
their energies in tasks not incident to their professional duties.
On the other hand, he shrank from no labour which, though
not obligatory on the office, was conducive to the public good.
In July, 1879, Colonel Stanley, the Secretary of State for
War, requested the Parliamentary Counsel Office to prepare
rules of procedure under section 69 of the Army Discipline
and Regulation Act, 1879, and to superintend the preparation
of a Manual which should contain an edition of the Act and
of the rules with notes, and form a text book of INIilitary
Law.
To this book Jenkyns contributed four distinct chapters or
essays : i. 'On the History of the Military Forces of the Crown,'
requiring great research. 2. ' On Enlistment.' 3. ' On the
Condition of the ^Military Forces of the Crown.' 4. ' On the
Relations of Soldiers to Civil Life.' Besides this, he aided
the editor in the composition of several other chapters, and
rendered invaluable assistance in generally looking through
the work and revising its contents.
In the work of Legislative Reform he was indefatigable.
The Statute Law Revision Committee would have had great
difficulty in carrying out their labours had not Jenkyns con-
stantly assisted them by his advice, and managed the details
of their business.
He was also a member of the Committee appointed by
Lord Halsbury in 1885 to superintend an edition of the
Reports of State Trials, beginning with the year 1820 — the
date of the conclusion of Howell's well-known edition of State
Trials — and brought down nearly to the present time.
Here again he was the life and soul of the Committee, and
JENKYNS b
xviii PREFACE
undertook for the Committee that kind of practical business
which is too often, in spite of its great importance, delegated
to the secretary.
I mention these matters, as they display his character
before he became head of the office, and show his complete
indifference to self-glorification or any other motive save that
of doing his duty to the public.
As a subordinate he was most loyal to his chief : for
although of a resolute temper and firm in his own opinion, he
would when overruled endeavour to carry out his chief^s view
in the best way he could, without doing as so many men of
inferior mind do, sulking and endeavouring to persist in their
own way to the detriment of the head of the office, on whom
the responsibility rests.
As a friend he was steadfast and faithful, and at the close
of my long and laborious life I am proud (as an eminent
statesman justly said I ought to be proud) of having introduced
into the public service a man who devoted his whole life to
the performance of his duty, and when he became the head of
the office displayed the most conspicuous ability in the
management of the Government Parliamentary business.
I have only spoken of Jenkyns as he was when my assistant,
and when he had comparatively little opportunity of becoming
known to ministers or to the public. It is for others to tell
of the great influence he had on public affairs when he suc-
ceeded to my post and became the adviser of the Government
in respect of the measures passed from the year 1886 till the
year 1899, when he resigned his office.
THRING.
September 3, 1900.
The following are extracts from private letters : —
From Mr, John Morley \
I am heartily glad to learn that even a fragmentary
memorial of Jenkyns is to be given to the public.
It can furnish only a most inadequate idea of that remark-
able character, but it will be better than nothing, and perhaps
1 To C. p. Ilbert.
PREFACE xix
we can say no more, and not always as niueli, of ambitious
memorials in bronze and marble. As you know, it was my
fortune to be in close contact with him in several laborious
and difficult pieces of public business, and more especially in
the preparation and AAorking of the Irish Government Bill
of 1893. That project took us in greater or less degree over
the whole field, and there was no single point or part of it,
constitutional, financial, or administrative, where Jenkyns
failed to show liimself a consummate master of his trade.
His knowledge of administrative practice was never at fault ;
his store of case and precedent was of the richest ; in meeting
the endless a-opCai that rise in every large and comprehensive
bill he abounded in skill, in ingenuity, in resource. The
only man in my experience at all comparable to him in the
difficult art of rapidly devising the right words for the bare
rudiment and intention of a clause or an amendment was
Herschell, and Jenkj^ns was at least as clever in turning
a sharp corner. Again, while his vast experience had given
him an acute insight into the points that might be raised
against you, in the House or elsewhere, nobody that ever
lived can have had less in common with that most tiresome
variety of the human species w^hich delights in always starting
difficulties and parading objections. On the contrary he
started with the assumption once for all that the thing must
be done, and it was for him to heljJ in getting it efficiently
done. His thoroughgoing veracity and faithfulness, alike as
man and workman, prevented him from ever giving lazy or
compliant assents. I have seen him more than once stand
against all Mr. Gladstone's driving power (which was no
joke), and I have heard stories of his blunt speech in other
cases. Nobody that I have ever known was more absolutely
free from the faintest tinge of egotism or touchy self-con-
sciousness. I remember, in the case of some Irish land bill,
saying to him that I thought I would bring over a certain
Irish lawyer with much knowledge of such things to help us.
Jenkyns himself was a very old and skilful hand in that
entangled branch of legislative industry, but he cordially
agreed that a native expert might find out weak places, and
he welcomed him accordingly. He seemed never to think of
XX PREFACE
himself at all, any more than we can suppose a swift and
powerful locomotive to think of itself. To make the journey
as safely as the state of the road, the cabinet gradients, the
force and direction of the parliamentary wind, would allow —
this was all that concerned him. He struck me as thinking
praise and blame, appreciation of his work by others or dis-
appointment at it, really no concern of his. The work itself,
knowledge extended, duty done — that was what he cared
about. His power of work was immense, and his industry
unflagging. And work was no passive or receptive make-
believe j he was using an active, vigorous, and searching mind
all the time. I know that there are some who question the
superiority of new maxims of draftsmanship over the old,
but this is a quarrel into which I do not enter. I only wish
in all humility and sincerity to tell you some of the impres-
sions made upon me by the high qualities and rare attainments
of this zealous and altogether admirable public servant.
From Mr. Arthur Balfour \
... I have always admired the ability and zeal which he
brought to the discharge of public duties of a most difficult
and delicate nature. A most acute critic of other men^s
ideas, rich in suggestions of his own, with unrivalled experience
and great legal knowledge, he was possessed of the gifts
which go to make a public servant of rare excellence. I deeply
regretted his abandonment of public life. . . .
From Sir Francis Moivatt \
, . . We have lost in vour husband the most distinguished
civil servant of his time, and I declare to you that looking
back on forty-two years of a Treasury life, I know of no
man to whom the State owes a deeper debt of gratitude
than Sir Henry Jenkyns. . . .
From Sir E. Hamilton \
I was his colleague in the public service for nearly thirty
years : and I have often said, that if I were to classify in
^ To Lady Jenkyns.
PREFACE xxi
order of merit the many public servants with whom during that
period I have oome in close contact, I should unhesitatingly
place him at the top of the class. His grip of the difficult
and varied subjects with which he had to deal was imique :
and one always felt safe in his hands. . . . There could not be
a more pleasant or more considerate or more forbearing man
to do business with. . . .
From Lord Welhy ^
. . . For years he has been my beau ideal and type of the Civil
Service. Few civil servants could hope to rival his abilities.
... He knew exactly how to combine independence, and fear-
less expression of his opinion, with the due subordination
which a civil servant owes to his political chief. His ability
was daily impressed upon us, no less than his unfailing good
temper, openness of mind, and ripeness of judgement.
I used to wonder how a man who lived so little in the
world had become so complete a man of the world.
From Mr. James Bryce \
. . . the longer I knew him, the more I admired not only
his great abilities, perhaps unequalled in the whole Civil
Service, but his high sense of duty, his perfect truthfulness
and uprightness, his unfailing public spirit, his strong attach-
ment to all good causes and sound principles. It was an
unceasing pleasure to meet him and discuss any subject with
him ; one always came away knomng more, and having got
a better insight into the essence of a question. He used to
seem to me the most powerful arguer I knew ; and he never
argued but for trutli.
It remains to say a very few words about the
circumstances under which the following pages were
written.
Jenkyns had always intended to employ his
leisure after his retirement in giving shape and form
to some of the papers which he had written in the
* To Lady Jenkyns.
xxu
PREFACE
course of his official work. He began with some
notes on colonial questions, worked hard at them
for several months, and hoped and believed that
they would be ready for the press by the end of
1899. The nine chapters of which the book was
to consist were, in fact, complete at that time. But
they naturally required careful examination before
they could be safely entrusted to the printers, and
I undertook their revision, with the help of
Mr. Graham-Harrison, who had assisted Jenkyns
in their preparation. Whilst this work was in
progress the Act which estabUshed the Australian
Commonwealth became law. It seemed impossible
to ignore an event of such cardinal importance in
the colonial world, but any adequate reference to
it involved drastic alterations in the chapter on Self-
governing Colonies. The perspective had been
changed ; the proportions allotted to different parts
of the subject required shifting ; details about the
constitution of the Colonies which had now become
States of the new Commonwealth could be more
appropriately relegated to an appendix. This being
so, it was considered desirable to rewrite the chapter,
and this task was entrusted to Mr. J. A. Simon.
For Chapter IV in its present form he is ex-
clusively responsible, although it is partly based on
the materials supplied by Sir Henry Jenkyns. In
the other chapters I have made only such verbal
and formal alterations as would have been made
by the author, if he had had an opportunity of
revising his proof sheets. Such few additions as
I have made are indicated by square brackets.
PREFACE xxiii
The title of the book had not been settled, and
it was necessary to find something which would
include not only Colonies and Dependencies, but
Protectorates and the exercise of British Jurisdiction
in foreign countries. I hope that the title eventu-
ally selected sufficiently indicates the scope of the
work.
C. P. ILBERT.
3 Whitehall Gardens,
February, 1902.
CONTENTS
Chapter
I. Classes of Territories under British Juris
DICTION ......
II. Relations between Home Government and
Colonial Governments
III. British Possessions other than Colonies
IV. Self-Governing Colonies
V. Colonies not Self-governing
VI. Colonial Governors ....
VII. Extra-Territorial Jurisdiction .
VIII. Consular Jurisdiction ....
IX. Jurisdiction in British Protectorates and
THE Position of Foreign Subjects in them
PAGE
10
?>1
54
91
99
123
148
165
.\PPENDICES
I. Self-Goyeening Colonies
II. NON-SELr-GoVERNING CoLONIES
British North America Act, 1867, ss. 91-95
WITH SOME Judicial Decisions thereon
Governors^ Commissions
Colonial Laws Validity Act, 1865
Mr. Scott Hope's Memorandum on British
Jurisdiction in Foreign States
Foreign Jurisdiction Act, 1890 .
Early Constitutional History of the Aus-
tralian Colonies
III.
IV.
V.
VI.
VII.
VIII.
Between pp. 196-7
197
199
213
239
INDEX
24a
267
276
393
BRITISH EULE AND JURISDICTION
BEYOND THE SEAS
CHAPTEH I
CLASSES OF TERRITORIES UNDER BRITISH
JURISDICTION
The countries or communities outside the United Kingdom, Cit. i.
within which British jurisdiction is exercised, may be classed
, ^, , , Classes of
under three heads : areas.
(i) British possessions;
(2) British protectorates;
(3) Countries or communities outside those possessions and
protectorates.
What is now termed a sphere of influence is a portion of
a non-Christian or unciviUzed country, which is the subject
of diplomatic arrangements between European states, but has
not yet developed into a protectorate. It comes, therefore,
under the third head.
Countries or communities under the first two heads are
both in a sense dependencies of the United Kingdom, though
some of the self-governing colonies will hardly come within
the meaning of dependency as used by Sir George Cornewall
Lewis ^.
It is preferable, therefore, to use the popular, and to some
extent technical, expressions, 'British possession* and 'pro-
tectorate,* rather than an expression like dependency, to
which authors have hitherto attached different special
meanings.
^ Lewis, Gov. Dep. (ed. by Lucas), p. 4, and note A.
JENKYNS B
BRITISH RULE AND JURISDICTION
Ch. I.
British
posses-
sions.
Colonies.
Bound-
aries of
posses-
sions.
'British possession' is recognized by a recent Act^ as
being the technical legal term for every part of the King's
dominions outside of the United Kingdom, which forms
a separate community, and has a local legislature of its own,
but the Act goes on to explain that where several com-
munities, each of which has a local legislature of its own,
are under a common central legislature, the expression ' British
possession ' is to be treated as including all those communities
as if they were one community.
Thus a British possession may consist of a country which,
if it were not part of the British dominions, would be by
itself an empire with dependencies, such as British India, or
of a federation of states, such as the Dominion of Canada, the
Commonwealth of Australia and the Leeward Islands.
' Colony ' is now a term used, both technically in Acts of
Parhament^ and popularly, to include every British possession
except the Channel Islands, the Isle of Man, and British India.
It thus includes not merely communities formally declared to
be colonies, but those which used to be termed plantations,
islands, territories, settlements, dominions, forts, or factories,
and in fact, with the above exceptions, includes every
community outside the United Kingdom which is part of
the British dominions, whether acquired by settlement or by
conquest or cession.
As above pointed out, a country like Canada, which, if not
under the British Crown, would be a federation of states,
forms one single colony, just as does the little community of
the Falkland Islands 3. And the self-governing colonies, the
distinction of which from Crown colonies is pointed out below ^,
approach the position of independent states.
As a o<eneral rule, the British dominions cannot be added to
or diminished without the consent of the Crown. Whether
' Interpretation Act, 1889 (52 & 53 Vict. 0.63% s. 18.
' See ibi, s. 3.
3 As to the meaning and derivation of colony, see Lewis, Gov. Dep.,
pp. 114, 168 E, 174 ; Adam Smith, Bk. iii. ch. vii. part i.
* See pp. 7 seq., and ch. v. pp. 98, 99.
TERRITORIES UNDER BRITISH JURISDICTION 3
the Crowni can, except for the purpose of couckiding- a war, Ch. I.
surrender British territory without the consent of Parliament,
is a moot constitutional question ^ The answer would
depend largely upon the circumstances of the surrender,
but in this, as in most other constitutional questions, the
modern tendency is to consider that the Crown could not do
so important an act without the consent of Parliament'-.
In India, territory is not uufrequently annexed or sur-
rendered by the Governor-General 3. But the case of India,
with its dependent states, is exceptional, and can hardly be
cited as a precedent for the surrender of territory in other
cases.
In the case of other British possessions, the boundaries are
determined or altered by Order in Council or Letters Patent
under the Great Seal of the United Kingdom, and are
sometimes fixed by or under the direct authority of an
imperial Act.
Where an imperial Act has expressly defined the boundaries
of a colony or has bestowed a constitution on a colony within
certain boundaries, territory cannot be annexed to that colony
so as to be completely fused with it, as e.g. by being included
in a province or electoral division of it, without statutory
authority; because —
(a) Any such annexation would be altering an Act of
Parliament; and
(fj) Colonial legislation cannot operate beyond the colony,
and therefore cannot extend to the new territory until it
is by some means made part of the colony.
But the King, unless restrained by an imperial Act, can
give to any such colony as above mentioned, and the colony
can accept, the administration and government of any
territory; and the most solemn mode of such acceptance is
' See Forsyth, Cases and Opinions on Constitutional Law, p. 182.
* See tlio debates on tlio cession of Heligolnnd in 1890 (Hansard, cccxivii),
a. id the Anglo-German Agreement Act, 1890 ^53 & 54 Vict. c. 20).
' See Ilbei-t, Government 0/ India, p. 210.
B 2
BRITISH RULE AND JURISDICTION
Cii. I.
colonial legislation. In such a case the territory is not in-
corporated with, and does not become part of, the colony, but
is only administered by the same Government.
The same law appears to apply where the boundaries have
been fixed by Order in Council or Letters Patent issued in
pursuance of statutory authority ^ ; and where the boundaries
of a colony are altered by diminution. Where a colony,
whether self -governing" or not, has received a constitution
by Letters Patent or Order in Council without any imperial
Act, it is competent for His Majesty to grant, and for the
colony to accept, variations of the constitution, and, amongst
others, an enlargement or diminution of its territory. Of
such acceptance a colonial Act is the most solemn expression.
An annexation, even if irregular in the outset, may possibly,
if followed by a de facto incorporation for a long period of
time, acquire, like other constitutional changes, validity
through usage.
In other cases irregular annexations have been validated by
a resort to Parliament ^. In 1895 a general Act was passed "
enabling the Crown, by Order in Council or Letters Patent, to
alter the boundaries of any colony, but this power was limited
in the case of self-governing colonies by requiring the consent
of the colony.
The colonies differ according as they have been acquired
by settlement or by conquest or cession, and the courts of
law have sometimes been called upon to decide whether
quered or a colony was a settled or a conquered colony. The distinction
colonies, appears to depend upon whether at the time of the acquisition
of any territory there existed on that territory a civilized
* e. g. 5 & 6 Vict. c. 76 ; or Order in Council under 50 & 51 "Vict. c. 54,.
s. 2.
* See for example as to the boundaries of New South Wales and Victoria,
13 & 14 Vict. c. 59 ; 18 & 19 Vict. c. 54; 24 & 25 Vict. c. 44 : of Canada, 30
& 31 Vict. c. 3, s. 6 ; 34 & 35 Vict. c. 28.
' 58 & 59 Vict. c. 34. [This Act does not apply to the colonies which
are states of the Commonwealth of Australia, but the Commonwealth as
a whole is a self-governing colony within the meaning of the Act (63 & 64
Vict. c. 12, s. 8).]
Distinc-
tion
between
settled
and con-
TERRITORIES UNDER BRITISH JURISDICTION 5
society with civil institutions or laws, whether in fact there Cii. I.
existed anything' which could be called a lex loci^.
As regards a settled colony, the principle is well established Settled
• •ii--nvii J colonies,
that an Englishman carries with him iiiughsh law and
liberties into any unoccupied country where he settles, so far
as they are applicable to the situation having regard to all the
circumstances.
Consequently, apart from statute law, no legislature can be
established in a settled colony by the Crown, except one
which comprises a representative body having powers of
taxation. Nor can the Crown legislate for it by Order in
Council or otherwise -.
It was found necessary to alter this rule by statute, in cases
where the settlements are so small, or have so large a sub-
ject population, that the ordinary representative institutions
are unsuitable, and to give power to the Sovereign in Council
to legislate for the settlement, and to delegate the power of
legislation to three or more persons within the settlement.
This power was first given by an Act of 1 843 ^, with
reference to the settlements on the coast of Africa, and the
Falkland Islands, and was extended by an Act of i860* to
other British possessions. Owing to some doubts as to the
application of these Acts in certain cases they were repealed
and superseded by an Act of 1887 5. The provisions of
the Act of 1887 extend to every British possession not
acquired by cession or conquest, and not for the time being
within the jurisdiction of the legislature (constituted other-
wise than by virtue of the Act of 1887, or of either of the
two Acts which it repeals) of any British possession.
The Act allows the legislative power to be delegated cither
by an instrument under the Great Seal or by instructions under
» e. g. Jamaica and St. Helena, Ji. v. Vaughan, 4 Burr. 2494 ; and
Campbell v. Hull, 20 St. Tr. 239, 290, 301, 326, 330. See 2 Pccrc Williams
(1722;, i>. 75 ; Freeman v. Fairlie (1828,, i Moo. Ind. App. 305 ; and Tarring,
Law relating to the Colonies, p. 30.
* Campbell v. Hall, 20 St. Tr. 239, 292.
^ 6 & 7 Vict. c. 13. * 23 & 24 Vict. c. 121.
5 The British Settlements Act, 1887 (50 & 51 Vict. c. 54).
6 BRITISH RULE AND JURISDICTION
Ch. I. the Royal Sign Manual, and also allows civil or criminal
jurisdiction, original or appellate, respecting matters within
the settlement, to be vested in the court of some other British
possession.
As in the case of a settled colony the Englishman takes his
law with him, the fundamental law, or as English lawyers
would say, the common law, of every such colony is the English
law as existing at the date of the settlement, or as modified by
subseqiient legislation of the imperial Parliament, expressly or
by necessary implication extending to that colony. The date
at which the English law so applying is to be ascertained has
been in many cases fixed by local legislation. In other cases,
legal decisions have been given that English Acts or legal
rules are inapplicable under the circumstances of the colony^.
Law in In the case of a]^conquered or ceded colony, the Crown has
or ceded absolute power of legislation by Order in Council, but that
colony. power may be surrendered either by establishing or authorizing
a governor to establish a representative legislative assembly
or otherwise, or, if expressly reserved, may be exercised
concurrently.
In a conquered or ceded colony, the law existing before the
conquest or cession is usually presumed to continue until
altered^, and therefore forms the common law. But it is
necessarily affected by the introduction of the law of the
conqueror as regards administration, appellate jurisdiction,
matters connected wnth the exercise of the sovereignty, or
matters of universal policy, e.g. navigation or slave trade.
Moreover, any laws contrary to the fundamental principles of
English law, e.g. torture, banishment, or slavery, are ipso
facto abrogated ^.
^ See Acts and cases cited in Tarring, op. cit., pp. 6-11.
^ Campbell v. Hall, 20 St. Tr. 239, 323, 330. * The king's power is subject
to that of Parliament, and must be in accordance with fundamental
principles' (ibid.).
* See Fabrigas v. Moshjn, 20 St. Tr. 82, 181. See also Pari. P. as to
Hong Kong, C. 3185 of 1882 ; Pidoii's Case, 30 St. Tr. 225 ; Hill v. Bigge,
4 St. Tr., N. S. 723, and cases in Forsyth, Cases and Opinions on Constitutional
Law, eh. 3.
TERRITORIES UNDER BRITISH JURISDICTION 7
After the legislature is established, the Crown is in the Cir. I.
same position in respect of the colony as it is in the United
Kingdom ; and indeed, before that establishment, the CrovsTi
must follow English law, and therefore cannot create a court
with jurisdiction imknown to English law ^.
There is much variety in the instruments of constitution of Instni-
the colonies. Such instrument may be an imperial statute, constitu-
an Order in Council, Letters Patent, a colonial Act or ordin- *^°"*
ance, a governor''s commission, or a combination of all these ^.
There are many methods in which a colony or possession Modes of
may be retained in political connexion with the mother foloi^i^'^^
country.
At one end of the scale is absolute government, where
the chief executive officer is appointed by the mother
country, with or without councillors so appointed, and in which
the inhabitants are kept in subjection either by force, by
interest, or by the habit of submission. In such a case, the
mother country regulates all the domestic law and institutions.
At the other end is absolute freedom, where the mother
country regulates foreign affairs, but all domestic institutions,
civil, moral, and religious, are regulated by the inhabitants of
the colony itself.
Before the secession of the United States of America, a
system of representative government was commonly adopted.
The colonies were considered rather as helps to the trade of
England than in any other light. The governments were
distinguished indeed as being royal, proprietary, or chartered,
but in all three there was a House of Assembly elected by the
people, and a council locally appointed helped the Governor in
executive and judicial duties. The laws required the assent
of the Governor and ratification of the Crown in Council ;
but in practice the colonies were left, as regards domestic
matters, to govern and tax themselves. Representative
' Sec In re Bishop 0/ Natal, 3 Moo. P. C, N. S. 115.
' See Pari. P. 1889, No. 70 (vol. Iv. p. 71), and 1890, No. 194 (vol. xlix.
p. i) ; and Stat. R. & 0. Rev. viii, App. p. 380, and App. in Stat. R. & 0. 1894
and 1897, and ch. iv infra.
8 BRITISH RULE AND JURISDICTION
Ch. I. government was not usually granted in express terms, but
■""" was assumed by the colonists as a matter of right. England
merely regulated external commerce and external affairs. The
distinction between the three classes of government depended
upon whether the Governor was appointed by the Crown
• or by a proprietor (whether an individual or a company), or
was left to be elected by the representative assembly, the
government in such last case being a pure democracy^.
A departure from this system largely contributed to the
revolt of the thirteen American colonies, and after their com-
plete separation a change of opinion began. Nova Scotia
indeed had previously obtained a constitution, but the other
colonies had not. New Brunswick obtained one in 1785,
Upper and Lower Canada in 1791; but the constitutions so
granted reserved greater power to the Home Government than
did the old constitutions. In Australasia, colonies ^ have been
founded with prospective constitutions, i.e. constitutions to be
established hereafter.
Self- None of these constitutions made the colony self-governing
coloni^s?^ by giving responsible or ' cabinet ' government ; that is to say,
they did not leave the administration of the local government
io executive ministers, who are responsible to and dependent
oBT the confidence of the colonial legislature, but left it to
ministers responsible to and dependent on the will of the
Governor only.
Until 1846, no colony was a self-governing colony with
responsible government, though at that time the majority of
the colonies had legislatures, with an elective assembly having
taxing powers; but in all, the executive administration was
carried on by the Governor, with the aid of a council, the
members of which were nominated by and responsible to him
alone ^.
The change from that kind of government to responsible
' Merivale, Lectures on Colonization and Colonies, vol. i. p. 88.
* e. g. South Australia and New Zealand.
^ Merivale, C. & C. (1861 ed.) p. 636.
\ TERRITORIES UNDER BRITISH JURISDICTION 9
gt>vernment requires no legislative authorit}', as it depends Ch. I.
meiely upon instructions given to tlie Governor as respects the
clioiee of tlie executive ministers ^. Those instructions were
given, and responsible government was introduced into Canada
in 1846, and into the other North American colonies between
that date and 1855, Newfoundland being the last. '
But though responsible or cabinet government was then
introduced, the colony had not the same amount of inde-
pendent power which it possesses now. Sir George Cornewall
Lewis, in 1841 -, wrote that 'if the Government of the
dominant country substantially governs another country, the
representative of the latter country does not govern ' ; and that
*a self-governing dependency, supposing the dependency not
to be virtually independent, is a contradiction in terms.''
If Sir George Cornewall Lewis could now study the self-
governing colonies, he would not have made this statement,
or at any rate would not have made it in such a broad form.
Not only has each of the Australasian colonies obtained
responsible government, and become a self-governing colony,
but so also have Cape Colony and Natal, in each of which there
is a large coloured native population of an uncivilized character,
without votes.
The result is that the position of a self-governing colony
approximates more to that of the early American colonies ;
but its relation to the mother country is less of a protective
and more of a federative character. With colonies which are
not self-governing, the position is in no res2:)ect that of an
independent protected state, but varies from that of absolute
government by the mother country to relations approximating
to the federative character of the self-governing colonies.
Hardly any two colonies stand in the same relation to the
mother country. At one end are the self-governing colonies,
nearly independent ; at the other are the Crown colonics, in
the narrowest sense, entirely governed by a governor appointed
by the mother country.
* See below, cli. iv. p. 56. ' Gov. Dejp., p. 296.
CHAPTER II
RELATIONS BETWEEN HOME GOVERNMENT AND
COLONIAL GOVERNMENTS
Ch. II. The links wliicli unite every British possession to the
, mother country, and indeed to the rest of the British
between dominions, are two — the legislative link of the imperial
^untry I'arliament, consisting of the Crown, Lords, and Commons,
and and the executive and iudicial link of the Crown.
British . . ''
posses- The legislative supremacy of Parliament over the whole
of the British dominions is complete and undoubted in law ^,
ment. ' though for constitutional or practical reasons, Parliament
abstains from exercising that supreme legislative power.
Thus, as resj)ects taxation, Parliament expressly abandoned
the right to tax ' His Majesty^s colonies, provinces, and
plantations in North America and the West Indies,' except
for the regulation of commerce, the net produce in that case
to be applied for the use of the colony 2. And now it is
a recognized constitutional rule that Parliament will not
impose a tax on any British possession, and that the direct
control of the finances of a possession rests with the Govern-
ment of the possession ^. This doctrine is quite consistent
with the very effective indirect taxing power and financial
control which, as will be mentioned below, is exercised in
^ This was challenged in former days, see Lewis, Gov. Dep., pp. 92, 156,
348, and Sir S. Komilly quoted in Lewis, p. 240, but was declared by
6 Geo. III. c. 12, and is now unquestioned. Campbell v. Hall, 20 St. Tr.
239> 304* 323. But as to the Channel Islands, see below, ch. iii. p. 37.
* 18 Geo. III. c. 12 ; cf. Dicey, Laio of the Constitution, p. 63.
^ See, however, below, ch. iii. pp. 39 seq., as to the Isle of Man and
British India, and ch. v. p. 95, as to Malta.
HOME AND COLONIAL RELATIONS II
practice by the Home Government over British India and Ch. ti.
the Crown colonies. '
If Parliament were to violate the constitutional rule, and
impose a tax upon a colony, that tax would be valid in law,
and colonial and imperial courts would feel compelled to give
effect to it. And occasionally in some exceptional cases, such
as colonial lighthouses, a charge very similar to a tax is in
fact imposed by the authority of the imperial Parliament^,
and can thus extend to and be collected in British possessions.
Besides abstaining from taxation, the imperial Parliament,
for reasons partly practical - and partly constitutional, never
legislates for the internal government of a possession, except
where imperial policy is affected or imperial subjects are dealt
with, so that the legislative control over internal affairs rests
with the legislature of the possession.
Moreover, there is a constitutional understanding that any
imperial legislation which affects a self-governing colony,
shall, except where imperial subjects are concerned, be only
enacted after communication with the colonial Government^.
The local Government of a possession will in some instances
apply for imperial legislation, as for instance where the con-
stitution is regulated by imperial Act, and requires modification
or explanation, or where some doubt has arisen as to the
validity of colonial legislation, or where there is need for a law
extending to more than one colony ■*.
' i8 & 19 Vict. c. 91, ss. 2-6, re-enacted in 57 & 58 Vict. c. 60, s. 670 ;
and as to Basses light in Ceylon, 35 & 36 Vict. c. 55.
" See Lewis, Gov. Dep., pp. 82, 198, 240, 348.
" Thus, for instance, when the Colonial Courts of Admiralty Act, 1890
(53 & 54 Vict. c. 27), was enacted, the colonies of New South Wales and
Victoria were excepted because they had not assented.
' e, g., the British North America Act of 1867, and amendments of it
in 1871, 1875, 1886, and 1895 ; the confirmation of Canadian Acts in 1875
(38 & 39 Vict. cc. 38 & 53) ; tlio confirmation of Australasian Acts in 1894
(56 & 57 Vict. c. 72) ; tlio provision as to boiindarios of colonies in 1895
(58 & 59 Vict. c. 34) ; [the Commonwealth of Australia Constitution Act
(63 & 64 Vict. c. 12)]. The Ministry of Victoria onco sugscstod a resort to
Parliament to override the opp(jsitic)n of the Legislative Council to
reform, Pari P. 1878, C. 2217, pp. 20, 64.
12 BRITISH RULE AND JURISDICTION
Ch. II. The imperial Parliament must also be resorted to where
legislation is required to take effect beyond the territory of
the possession, as e. g. in matters connected with extradition,
bankruptcy, bigamy, offences committed at sea, or wholly or
in part outside the territory of the possession, or criminals
sent from one colony to another to undergo their sentence.
For, excei)t where express power is conferred by the imperial
Parliament '^, a law of the local legislature of a possession
operates only within the territorial limits of that possession ^.
In the statement of constitutional rules it must be
recollected that any emergencies may cause them to be
broken. Improper action by the colonists or a particular
party of them might compel Parliament to legislate in disregard
of the ordinary maxims of policy.
(h) Crown. The Crown has the supreme executive power in every British
possession. The Governor is appointed by the King; and
all administrative and judicial acts are done in the name of
the King or of the Governor as his representative. Thus the
King is a more prominent link than Parliament between the
United Kingdom and the British possession.
But the Crown as the executive power in a possession must
be distinguished from the Crown -as chief executive power in
the United Kingdom or the whole eminre.
Whether administrative acts in a possession are done in
the name of the Governor or of the King, they are done
upon the advice of different ministers from those on whose
advice the King acts in the United Kingdom. The acts
^ See as to British India, 32 & 33 Yict. c. 98, and other enactments
referred to in Ilbert, Govt, cf India, pp. 201-209; aud s* to other British
possessions, the Federal Council of Australasia Act, 1885 (48 & 49 Vict.
c. 60) [now repealed by the Commonwealth of Australia Constitution
Act] ; the Extradition Act, 1870 (33 & 34 Vict. c. 52, s. 18) ; the Fugitive
Offenders Act, 1881 (44 & 45 Vict. c. 69) ; the Colonial Prisoners Removal
Act, 1884 (47 & 48 Vict. c. 31). Extradition from the Straits Settlements
is regulated by Orders in Council {Stat. E. & 0. Ikv. vol. vi. p. 436) made
under 29 & 30 Vict. c. 115.
- It is doubtful how far, since the passing of the Territorial Waters
Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), a law passed by a colonial
legislature operates within the territorial waters of the colony.
HOME AND COLONIAL RELATIONS 13
done by the Govei'nor or his ministers, i.e. by the local Ch.il
Government of the possession, must be disting-uished from
those done by the imperial or Home Government, that is, by
the King acting on the advice of the ministers of the United
Kingdom or by those ministers.
The Crown has also in many possessions a legislative power.
The Home Government, apart from what may be done b}- Home
Govei
raent.
the imperial Parliament, acts in different ways, either by order ^°"''^^''^'
of the King in Council, by Letters Patent under the Great
Seal, by a document passed under the Royal Sign Manual, or
by orders or directions of a Secretary of State.
Acts of a legislative character are usually done by the
King in Council, that is, by an order made by the King
sitting in Council. Such a council is attended, not by all
the members of the Privy Council, but only by those who are
summoned. The present practice is to summon very few,
usually from among the cabinet ministers of the day.
The Lord President of the Council has under him a depart-
ment, manned by permanent civil servants, which ascertains
that the draft of every order submitted to the King in
Council has been previously approved by one of the cabinet
ministers as head of a public department, or by the law
officers of the Crown ; so that practically the passing of an
Order in Council is the last formal act ratifying what has
been previously settled by the cabinet ministers of the day.
Legislative acts are also done by Letters Patent under the
Great Seal; indeed the establishment of the legislatures of
various colonies has been effected in this method. Such Letters
Patent are only passed upon a warrant signed by the King,
and countersigned by one of the cabinet ministers of the day,
who thus becomes responsible for the propriety of the Letters
Patent, Similarly an order under the Royal Sign Manual is
also countersigned by one of these ministers.
The responsibility for all such acts in whatever form they
are done rests constitutionally with those minibters of the
Crown who for the time being form what is commonly called
«i
14 BRITISH RULE AND JURISDICTION
Ch. II. the ' cabinet/ conduct the government of the United Kingdom,
are responsible to Parliament, and practically depend for
holding office upon the support of the majority of the House
of Commons. But the special responsibility for each par-
ticular act depends upon the minister who gives his counter-
signature or authorizes the submission to the King of an
order as above mentioned.
This special responsibility for the government of British
possessions belongs to the ancient office of Secretary of State.
The duties of this office are distributed between five principal
Secretaries of State, who are always privy councillors and
members of the cabinet. One of them (commonly called the
Home Secretary) is specially responsible for the Channel
Islands and the Isle of Man ; another (commonly called the
Secretary for India) is specially responsible for India; a third
(commonly called the Colonial Secretary) is responsible for
all other British possessions ; while a fourth is responsible
for foreign affairs, and a fifth for military matters. Each
secretary is aided by a department of permanent civil
servants, and can do many acts by his own authority
without obtaining the signature of the King. It is his
duty to countersign documents which are signed by the
King, and relate to the British possessions under his charge,
and, if an Order in Council is made, he is charged with the
execution of the Order ^.
Governor. In a British possession the Governor is appointed by the
Home Government, and represents it. With the aid of
ministers appointed by himself he conducts the administra-
tion of the possession and forms the local Government ; and
administrative acts done in the possession, even though in-
fluenced or ordered by the Home Government, are actually
done by the local and not by the Home Government.
Local The Crown in a British possession forms part of a different
ture. legislature from that of the United Kingdom. In some
' As to the Privy Council and Secretaries of State, see Anson, Laiu and
Custom of the Constitution, part ii. ch. 4.
HOME AND COLONIAL RELATIONS 15
possessions no doubt laws are enacted by the Governor and Ch. II.
the legislative council ^ ; but in others, including- almost all
the self-governing colonies ^^ and some, but not all, of the
Canadian Provinces, they are enacted by the King, by and
with the advice and authority of the two Houses of the local
legislature ^.
The assent of the Crown to a Bill * for any law is given by
the Governor on behalf of the Crowm, and if the Bill purports
to be enacted by the King is given in his name. A law,
though thus assented to by the Governor, can be disallowed
by the King in Council within two years after a copy of it
reaches the Home Government, and if so disallowed is void.
Also the Governor may be, and in some cases is, required by
his instructions from the Home Government to reserve the
Bill for the King's pleasure. When a Bill is so reserved it
has no force until assented to by the King himself, i. e. by (in
effect though not in form) the Home Government.
The old practice of a law having no effect until confirmed
by the Crown has ceased except in Gibraltar,
In assenting to laws the Governor, according to the cha-
racter of the possession, or the nature of the legislation, acts
either on his own responsibility or in obedience to instructions
from the Home Government, or on the advice of the ministers
of the possession.
In the case of the reserved Bills and of the disallowance
or the refraining from disallowance of Bills assented to by
' E.specially in colonies not liaving any representative assembly. In
India tliey are enacted by the Governor-General in Council. For the
form of West Indian taxing Acts in the i8th century, see Campbell v. IMl,
20 St. Tr. 239, 249, 529.
* See p. 77 infra.
^ As to the constitution of the legislative and executive authorities,
see Pad. P. 1889, No. 70, and 1890, No. 194.
* ' Bill ' is the usual term for a proposed law before it receives the
Koyal Assent. When it is assented to, and therefore passed,fit becomes
in the United King<lom and most, if not all, colonies with representative
legislatures an 'Act'; in other colonies it becomes an 'Ordinance' ; in
those the Bill may bo called a draft Ordinance, see Colonial Oflice Rules
and Regulations, 54.
l6 BRITISH RULE AND JURISDICTION
Ch, II. the Governor, the Crown acts on the advice of the home
ministers, who are responsible to the imperial Parliament.
The constitutional understanding in the case of self-
governing colonies is, that disallowance shall only be resorted
to for the purpose of protecting imperial interests, or of
carrying into effect a policy of general observance throughout
the empire. The inconveniences attending its use are so great
that it cannot often be used.
But it is not unusual to point out to the Government of
a possession objections to proposed legislation, and to suggest
either an alteration of the proposed law, or the suspension of
its operation until opportunity has been given for the Home
Government to reconsider the matter ^.
The legislature of every colony is subordinate to the
imperial Parliament, and, in colonies where the Crown can
legislate, to the Crown. And, as above mentioned, the legis-
lation of the colonial legislature has of itself no effect beyond
the territory of the colony. Even the King in Council,
when legislating in that capacity for a colony, is a local and
subordinate legislature, and the legislation has no greater
territorial effect than if it were enacted by the ordinary legis-
lature of the colony. In both cases the legislation may be
challenged in a court of law as ultra vires.
But the powers of a colonial legislature are plenary and
not delegated powers ; such a legislature is not a delegate or
agent of the imperial Parliament. Therefore the principle of
delegatus delegare non potest does not apply, and although the
limits of legislation are prescribed, yet within these limits the
right of legislation is absolute, and the colonial legislature
is supreme, and has the same authority as the imperial Par-
liament to confer powers on other bodies and persons, as for
instance to give a municipal body power to make by-laws ^.
^ See below, ch. vi. pp. 117 seq. For list of Acts disallowed or not
assented to, see Pari. P., 1894, No. 196.
"^ This was decided by the Judicial Committee : see cases quoted
in Appendix III, and especially, Poicdl v. Apollo Candle Co., L. E. 10
A. C. 282.
HOME AND COLONIAL RELATIONS 17
At common law the Sovereign has the sole power of Ch. II.
raising and regulating forces by sea and land^ This was
,j •11 Naval and
declared after the Restoration by the preamble to the Act military
13 Car. II. Stat. I. c. vi, and by subsequent Acts. orces.
The power as regards naval forces is now exercised through
the Lords Commissioners of the Admii-alty, who are commis-
sioners to exercise the ancient office of Lord High Admiral.
The Royal Navy is raised and governed by them, partly in
accordance with Acts of Parliament, and partly in accordance
with regulations made by the Sovereign.
In 1865 an Act was passed^ under which the legislature of
a colony, with the approval of the King in Council, may provide,
at the expense of the colony, for maintaining vessels of war,
and raising seamen for such vessels and volunteers for general
service in the Royal Navy, and for appointing officers to train
and command these men, and for enforcing order and dis-
cipline among them, whether ashore or afloat, and whether
wathin the limits of the colony or elsewhere. These pro-
visions are, however, to be subject to such conditions, and
the vessels are to be for such purposes, as the King in Council
from time to time approves.
Some of the Australasian colonies have availed themselves
of this power, but latterly have made an arrangement by
which they contribute money towards the equipment and
maintenance of certain vessels in the Royal Navy for service
in the waters of the Australian station ^.
Canada maintains cutters for police and revenue pur-
poses, and Ceylon maintains vessels for police and light-
house purposes, e. g. for regulating the police of the pearl
fisheries, but the vessels so maintained are hardly to bo
considered as part of a naval force.
The Indian Government maintains an Indian marine ser-
vice for the transport of troops, the guarding of convict
settlements, the suppression of piracy, and purposes of survey
' Blackbtone, Bk. i. ch. vii. '•* 28 & 29 Vict. c. 14.
' 51 & 5a Vict. c. 32.
C
JENKVNS
l8 BRITISH RULE AND JURISDICTION
Ch. II. and lighthouses ; and power to govern and maintain the
" diseipHne of the ships belonging to this service was given by
an imperial Act of 1884^. Under that Act the King in
Council in case of war may direct that any vessel belonging to
the service shall be under the command of the senior officer of
the Royal Navy upon the station where the ship may be, and
shall for that time be deemed a vessel of the Royal Navy.
As respects land forces, the powers of the Sovereign are
exercised through a commander-in-chief, and general and
other officers holding commissions from the Sovereign for the
purpose.
What are termed the 'regular forces' are raised by the
Crown in the United Kingdom, are bound to serve in any
part of the world, and are governed by the imperial Army
Act, formerly called the Mutiny Act, which is annually passed
by Parliament. On the other hand the militia and volunteer
forces raised in the United Kingdom are only bound to serve
in the kingdom '^.
The Sovereign has not constitutionally any power to raise
a military force without the consent of Parliament; but
when a force is raised with that consent can, subject to any
enactment, regulate it in any manner that appears good. The
same constitutional rule applies to a colony, but in the case of
colonial forces the consent is given by the colonial legislature
instead of by the imperial Parliament. The existence of such
a force is distinctly recognized by s. 177 of the Army Act^,
although that section appears to contemplate volunteers or
militia rather than a permanent force. That section, how-
ever, enables a colonial force to serve outside the colony by
providing for the discipline of it when so serving*. This
provision is made, first by extending the colonial Act to the
' 47 & 48 Vict. c. 38. See Ilbert, op. cit., p. 208.
^ Their members may volunteer for service elsewhere. See as to the
Militia, 45 & 46 Vict. c. 49, s. 12, as amended by 61 & 62 Vict. c. 9, s. 2.
' 44 & 45 Vict. c. 58.
* It will be remembered that several colonies sent contingents to serve
in South Africa in 1899 and subsequent years.
HOME AND COLONIAL RELATIONS 19
military force wherever it may be, and secondly, by extending Ch. II.
to the force when serving* with the regular forces the Army
Act, with certain modifications.
In most of the colonies the forces raised are militia or
volunteers, serving only within the colony, but in others, e.g.
New South Wales, colonial Acts have been passed authorizing
the raising of forces of a rather different character.
A New South "Wales Act ^ authorizes the Governor on
behalf of the Crown to engage such number of men as the
New South Wales Parliament from time to time provides for.
Each man so engaged is to bind himself to serve for a number
of years, and is to be subject to the imperial Army Act in force
for the time being, and to the King's regulations for governing
the army. The command-iu-chief in the Sovereign^'s name is
vested in the Governor, who is empowered to appoint the
officers and issue commissions under his hand and the seal of
the colony, and to convene, and to delegate the power of
convening, a court-martial ^.
^ [In Canada the militia consists, according to the Militia
Act of 1886 ^, of all the male inhabitants of the age of eighteen
years and upwards, and under sixty — not exempted or dis-
qualified by law, and being British subjects by birth or
naturalization; but His Majesty may require all the male
inhabitants of Canada, capable of bearing arms, to serve in
case of a levee en masse. The militia — or any part thereof —
may be called out for active service either within or without
Canada at any time when it appears advisable so to do by
reason of war, invasion, or insurrection, or danger of any of
them. In time of peace, 45,000 militia may be trained
' No. 19 of 1871.
^ [As to the control of the Crown in militaiy and naval matters in the
colonies, see Todd, Parliamentary Gwernmentin the Colonies, and ed., ch. xii,
and, in particular, the proceedings fully described in that chapter as to
the dismissal of Mr. Molteno by Sir Bartlc Frero in 1877.]
^ [I have added here some information supplied to me by the Colonial
Office as to the militia and similar forces in Canada, the Capo, and the
Australasian colonies. C. P. L]
* 49 Vict. c. II ; Revised Statutes of Canada, cli. 41.
C 2
20 BRITISH RULE AND JURISDICTION
Ch. II. annually for a period not exceeding- sixteen days or less than
eight days in each year. The several corps are subject to such
inspections from time to time as His Majesty may direct.
In the Cape Colony the Burgher Force and Levies Act ^
provides for all males between the ages of eighteen and fifty,
with certain exemptions, being* placed on a burgher list, and
for the Governor assembling" the men on this list or such of
them as may to him appear expedient for inspection, or for
inspection and rifle practice, when and where, within their
respective divisions, he may direct. The Governor may, when-
ever it is necessary for the defence of the colony or any part
thereof, call out the whole or part of the burgher force or levies
for service within the colony or beyond the borders thereof.
In South Australia the Defences Act of 1895^ makes all
British male inhabitants between the ages of eighteen and
forty-five liable, with certain exemptions, to military service
in any part of Australia or Tasmania, but not elsewhere, in
ease of actual invasion or the imminent prospect thereof, and
to continue to serve until the Governor proclaims that the
invasion or prospect thereof has ceased. The Governor is
empowered to appoint officers to keep up a roll of persons
liable to serve.
The defence force in Queensland ^ consists of all male
inhabitants, with certain exemptions, between the ag-es of
eighteen and sixty, who are British subjects, and a roll of
these inhabitants is required to be kept up. They can be
called out to complete establishments which cannot be filled
by volunteering, in case of war or invasion or imminent danger
thereof, for service in any part of the Australian colonies.
In Tasmania the Defence Act * constitutes a defence force
consisting of all male inhabitants, with certain exemptions,
between the ages of eighteen and fifty-five, being British
subjects, and provides for a roll of these inhabitants being
kept up. They can be called out for service in the colony at
1 No. 7 of 1878. * Act No. 643.
3 Defence Act, 1884, 48 Vict. No. 27. * 49 Vict. No. 16 (1885),
HOME AND COLONIAL RELATIONS 21
any time, to complete establishments which cannot be filled Cii. II.
by volunteering-, and are liable to serve in peace for three
years, dm-mg which they may be trained for a period of not
more than sixteen or less than five days in a year.
In New Zealand, according to the Defence Act ^, the
militia consists of all male inhabitants, with certain exemp-
tions, between the ages of seventeen and fifty-five, and a
roll of such inhabitants is required to be kept up. The
whole of the militia or any part thereof is to be trained as a
military force for service in the colony, but no man is to be
compelled to train more than seven days in the year.
The compulsory powers contained in these Acts are not
now actually enforced, and similar powers are not given by
the military Acts of Natal, Western Australia, Victoria, and
New South Wales.]
Any colonial force of the kind described above would be
a force such as is referred to in s. 177 of the imperial Army
Act, and even though the men in it have engaged to serve in
any part of the world, would not be part of the regular forces,
but a distinct force. Consequently an officer of the regular forces
would not, as such, have any command over the officers and
men of the colonial force, nor would an officer or man of the
colonial force have, as such, any command over an officer or
soldier of the regular forces.
And if the King were to grant commissions giving- com-
mands to officers of the regular forces over officers and men
of a colonial force, this might be considered to be an increase
of the regular forces made without the consent of Parliament.
Portions of the regular forces of the United Kingdom were
formerly maintained in several of the colonies, but since 1870
the troops have been gradually withdrawn, except so far as
garrisons are required for certain naval stations, such as
Halifax, or Simon's Bay in the Cape'. The fortifications
' No. 17 of 1886.
^ [The present situation in Routli Africa had n<it arisen when this
chapter was written.]
22
BRITISH RULE AND JURISDICTION
Ch. II.
Subjects
for exer-
cise of
imperial
authority.
Head (a).
Inter-
national
relations.
which had been erected by the Home Government or obtained
by conquest, have also of late yeai's been transferred to the
colonies in which they are situate, a transfer authorized by
an imperial Act ^.
The land defence of every colony was thus left to the colonial
Government, but undoubtedly if war should arise the Home
Government would, to the extent of its ability, defend the
colony by land as well as by sea, unless indeed the quarrel
were one entered into by the colony against the will of the
Home Government.
The Home Government has pressed several colonies to erect
fortifications for their own defence, and in some instances,
where the fortifications were of general benefit to the empire
for the purpose of naval defence, has made a contribution
towards the expense of them.
The various subjects in respect of which the authority of
Parliament and the Crown can be exercised in a British
possession may be summarized under the following heads : —
(«) The relations of the British possession with other com-
munities, whether part of the British dominions or of
foreign countries, including the defence of the British
possession against foreign foes.
(6) The external affairs of the British possession, such
for instance as trade, shipping, or matters of law and
policy affecting the whole empire, and including the
rights and duties of the inhabitants of the possession
when outside that possession ^.
(c) The judicial arrangements of the possession.
(d) The supreme executive government of the possession.
(e) The internal government of the possession, i. e. its
domestic institutions, civil, moral, and religious, and the
administration of the government, including finance.
As regards head (a), from an international point of view
^ 40 & 41 Vict. c. 23.
2 [I have not ventured to alter the arrangement, but heads (a) and (b)
seem to overlap each other. C. P. I.]
HOME AND COLONIAL RELATIONS 23
tlie British possessions are not independent political societies^ Cn. II.
but are part of the British Empire, though in the case of the
self-governing colonies and British India, their position has
gradually assumed that of members of a federation rather than
that of an integral part of a single dominion.
Imperial federation is in a strict sense a contradiction in
terms. The imperial Parliament and the Home Government,
i.e. the King as advised by the ministers of the United
Kingdom, form the supreme power of the empire. In that
supreme power the people and Government of a British
possession have no direct share. They ai-e not directly
represented in Parliament, and therefore have no direct in-
fluence in the selection of the ministers, or the adoption of any
particular j)olicy.
British possessions are therefore subordinate members or •
dependencies of an empire, and not members of a federation ;
because each member of a federation has a share in the central
supreme power of the federation. But according to con-
stitutional practice the self-governing colonies, and to some
extent British India, are treated as members of a federation
rather than as subordinate dependencies.
British possessions are all bound by treaty made by the
Home Government with foreign countries ; and the local
Governments of those possessions have no direct commmiica-
tion with any foreign Government. Any such communication
must pass through diplomatic representatives appointed by
and acting under the direction of the Home Government.
But it is now the constitutional practice to exclude every
self-governing colony from any treaty which affects the in-
ternal law of the colony unless the colonial Government
assents to its inclusion ; and a right is reserved to denounce
the treaty for each such colony separately ^. Also in some
international conferences the self-governing colonies and
• See for example the Berne Copyright Convention, 1885, and the
Conventions for the Postal Union and the Postal Convention with Franco
of 1890, as to which see the Mail Ships Act, i8gi (54 & 55 Vict, c, 31).
24 BRITISH RULE AND JURISDICTION
Ch.il British India have been represented by separate delegates,
and representatives of the colonies have been associated with
the appointees of the Home Government in negotiations with
a foreign state or in a joint commission ^.
Every treaty, however, which affects a possession, binds the
local Government of the possession, whether it has or has not
assented. But a treaty is not law, and if a change of law is
necessary to give effect to the treaty, legislation is required.
That legislation may no doubt be effected by an Act of the
imperial Parliament, if the local Parliament refuses to pass
it, and would then bind all the courts and persons in the
possession. But the administrative measures required for
enforcing the treaty might give rise to difficulties. Practically,
the Government of the possession cannot be compelled to take
■ such measures against their will, and if they refuse to take
them, the Home Government may be embarrassed by a demand
from the foreign state for the enforcement of the treaty^.
In 1 89 1 a Bill for enforcing in Newfoundland the Treaty
of Utrecht with France passed the House of Lords, and
was only withdrawn in the House of Commons because the
Newfoundland Legislature passed a similar measure. In that
ease the Act could have been enforced on the sparsely
populated ^ French shore '' of Newfoundland by British men-
of-war.
Instances have occurred of a foreign state complaining to
the Home Government of the legislation of a British posses-
sion, because it is contrary to a treaty, or is inconsistent with
peaceful relations with that state ^.
* As, for example, in the Postal and Telegraphic Conferences, and the
Bi-metallic Conference at Brussels, and in the Joint Commission and
Conference with the United States.
^ A difficulty of this kind arose between the United States and Italy
when some Italian subjects were killed in Louisiana, and redress could
not be obtained in the Louisiana courts. See also Lewis, Gov. Dep., p. 296,
On the question whether a treatj-- can alter the rights of private persons,
see Walker V. Baird, L. E. [1892] A. C. 491.
' For instance, China, on account of New South Wales and Victorian
Acts excluding Chinamen ; and Japan, on account of British Columbian
legislation excluding Japanese. As to the latter case, see below, p. 1 19.
HOME AND COLONIAL RELATIONS 25
Any complaint may usually be met by the power of the Ch. IL
King to disallow the Act complained of, but the legislation
may drive the Home Government to denounce the treaty \
And undoubtedly the Home Government may find itself
involved in international difficulties, and possibly in war,
owing to acts of the Government of a British possession for
which the Home Government are internationally responsible,
although practically unable to control or remedy them ^.
British possessions, though bound by the treaties of the
Home Government, have the correlative right to the pro-
tection of that Government, both in a diplomatic and in
a military sense. They are protected by the British navy
and army against foreign and often against internal foes ;
their ships carry the British flag, and obtain all the protection
and advantages which the British flag enjoys throughout the
world; and the individual inhabitants obtain in all foreign
countries the protection and assistance of British diplomatists
and consuls. For this protection and these advantages the
British possessions until recently made no pecuniary con-
tribution, though latterly the colonies in Australia and the
Cape have made a contribution towards naval expenses ; and
British India and New South Wales, and still more recently
others of the self-governing colonies, have sent military forces
to aid the imperial forces in Malta and Africa. This aid
from the self-governing colonies has been voluntarily given
with the patriotic object of supporting the British Empire,
and proving their fellowship in it. It does not alter the
constitutional point of view that there is no legal obligation
to render such aid. And it is open to any colony which
disapproves of or is not interested in the object of a war to
refuse the aid. Indeed writers in at least one of the colonies
have challenged the expediency of giving such aid, on the
^ For instance, the Canadian fiscal legislation in 1898 led the Homo
Government to denounce the Gorman Commercial Treaty.
' Tlie hihtory of British India, events in South Africa, and the seal
question in the Behring Sea, are illustrations.
26
BRITISH RULE AND JURISDICTION
Inter-
colonial
relations.
Head (b),
Extei-nal
affairs.
Cn. II. ground that the colony has no voice in the question of peace
or war.
In the relations of one British possession to another the
Crown is the connexion between them. All formal com-
munications pass through the Home Government^ and that
Government is the arbiter in all serious disputes, whether
arising from frontier difficulties, as e. g. between New South
Wales and Victoria, or from the treatment by one possession
of the inhabitants or ships of another, as e. g. in the case of
British Indians in Natal, or of refusal of entry to a colonial
ship on the grounds of there being infectious disease on
board.
As regards head (b), i. e. the external affairs of a British
possession, it is obvious that all legislative or administrative
action respecting the relations under this head must be that
of the imperial Parhament or the Home Government.
Imperial Acts give effect to treaties, as for instance those
relating to seal hunting in the Behring Sea, or international
copyright; provide (by the Foreign Enlistment Act) for
the maintenance of neutrahty in wars between foreign coun-
tries; and regulate the prosecution of crimes committed by
foreigners on board foreign ships within the territorial
waters of a British possession. The administration of these
Acts is largely left to the Home Government, or to the
colonial Governor acting as the representative of that Govern-
ment.
The extradition of criminals, whether to a foreign state
under treaty, or to another part of the British dominions, is
also provided for by imperial Acts, though these Acts enable
effect to be given to the legislation of a possession on the
subject ^.
The necessity for imperial legislation to provide for extra-
dition between different possessions arises from the inability
of a legislature of a possession to legislate for matters beyond
^ As to foreign states, 33 & 34 Vict. c. 52 ; 36 & 37 Vict. c. 60 ; 58 & 59
Vict. c. 33. As to British dominions, 44 & 45 Vict. c. 69.
HOiME AND COLONIAL RELATIONS 27
the boundary of the possession-. Legislation on extradition Ch. ir.
by such a legislature was considered to be ultra vires as being '
extra-territorial, and for this reason the Federal Council of
Australasia Act, 1885 2, gave express powers to the Federal
Council to legislate on the subject.
The same inability renders it necessary for the imperial
Parhament to legislatCj or to give express power to a colonial
legislature to legislate, for the punishment in a possession of
crimes committed outside (e. g. on the high seas), or for the
removal out of the possession of convicted prisoners to undergo
their punishment elsewhere ^.
It is only an imperial Act that can give effect outside
a possession to an enactment of that possession vesting a
bankrupt's whole property in a trustee for his creditors, or
can confer on an author of a book, by the mere fact of his
publishing the book in the possession, copyright in every part
of the British dominions.
In England the regulation of the general commercial policy
of a possession was in former days universally recognized as
a proper attribute of the Home Government*; but, as regards
the self-governing colonies at least, not only has this doctrine
been abandoned ^, but the Home Government has acquiesced
in colonies imposing protective duties on the importation of
manufactures of the United Kingdom. A sm-vival of the
older system of regulation is still to be found in the pro-
hibition of the importation into British possessions of unlaw-
' [See In re Gleich : Olivier, Bell & Fitzgerald's Reports, New Zealand
[Supreme Court, p. 39], and cf. p. 70 infra.]
* 48 «& 49 Vict. c. 60 [repealed and superseded by 63 & 64 Vict. c. 12].
^ As to offences at sea, 12 & 13 Vict. c. 96 ; 23 & 24 Vict. c. 122 ; 37 & 38
Vict. c. 27. As to the removal of prisoners, 32 & 33 Vict. c. 10 ; 44 & 45
Vict. c. 69 ; 47 & 48 Vict. c. 31. The jurisdiction of a colonial court to
try and punish for bigamy an inhabitant of the colony who mariiod
his second wife outside the colony, depends on the imperial Act, 9 Geo. IV.
c. 31, though that Act has been repealed as respects the United Kingdom.
A colonial law cannot give the jurisdiction, as it is extra-toiTitorial. [See
MacLeod v. Attf/rnnj-General for New S(Ailh Wales, L. R. [1891] A. C. 455.]
* Lewis, Gor. Z)ep.,pp. 82, 139, 158,240,348; Merivale, op.cit., pp. 192,622.
' See 29 & 30 Vict. c. 74 ; 58 & 59 Vict. c. 3.
28 BRITISH RULE AND JURISDICTION
Ch. II. fully printed copies of copyright books. The regulation of
* the coasting trade was expressly abandoned in 1869 by an
imperial Act which enabled the legislatures of British pos-
sessions to legislate on the subject^.
The slave trade is prohibited by an imperial Act through-
out the British Empire as a part of general imperial policy ^.
But the maintenance of the general principles of English law
in British possessions is usually effected rather by disallowance
of legislation contrary to those principles^, than by positive
legislation of the imperial Parliament.
Merchant shipping is regulated mainly by imperial Acts.
But by these Acts the legislatures of British possessions are
expressly authorized to legislate for their own coasting trade,
and the King in Council is empowered to allow provision to
be made for certain local matters by local legislation in sub-
stitution for the provisions of the imperial Act. The reasons
for this kind of regulation are, partly the need for extra-
territorial legislation, partly the fact that foreign countries
are concerned, and partly the importance of maintaining
a uniform law for all vessels which enjoy the protection of
the British flag.
Coinage should also be mentioned in this connection, be-
cause a coin coined in a British possession cannot ii)so facto
be a legal tender in any other part of the British dominions,
unless so made by imperial authority or by special legislation
in each such part. The regulation of the coinage is one of
the ancient prerogatives of the Crown, and has remained so
in British possessions ; and is there exercised either by an
Order in Council of a legislative character, or by a proclama-
tion of the King in Council. This prerogative has, in nearly
all British possessions except India and Canada, been converted
^ 32 & 33 Vict. c. ir, repealed by and re-enacted in 57 & 58 Vict. c. 60,
s. 736.
'^ 5 Geo. IV. c. 113.
^ e. g. Acts authorizing marriage with a deceased wife's sister were
formerly repeatedly disallowed, but have in recent years been allowed.
HOME AND COLONIAL RELATIONS 29
into statutory power by the Coinage Act, 1870, and Orders in Cu. II,
Council made under it ^.
In many British possessions the coinage has been regulated
by local legislation, and in a few by imperial Acts.
In British India, the East India Company, under power
given by early charters from the Cro^\Ti established mints,
which have continued ever since, and are regulated by
Indian legislation-. Coins minted there were, by Order
in Council, made legal tender in Ceylon and other eastern
British possessions ^. But the recent introduction of a gold
standard, with the sovereign as legal tender, has led to pro-
posals for the establishment of a branch of the royal mint
for the coinage of sovereigns in India.
Except in India the only coins lawfully issued in the
British Empire are coined by or under the direction of the
Royal Mint in England, of which the Chancellor of the
Exchequer is master, and a civil servant is deputy master.
Branches of that mint, under deputy masters appointed by
the Home Government, have been established in three of the
Australasian colonies *, and the expenses are defrayed and the
receipts received by the colonial Governments. But in law,
the deputy master in the colony and his oflScers are officers of
the Royal Mint in England, and coins which are coined in
a branch mint are treated as coined by the Royal Mint, and
have currency accordingly in other parts of the empu-e, not
only where the current coins are of the same denomination as
' 33 & 34 Vict. c. 10. The Orders in Council extending the Act to
British possessions are published in Stat. E. d 0. Bev,, vol. i. pp. 627-30 ;
Sta'. R. & 0., 1896, p. 13 ; 1898, pp. 13, 22.
^ Ilbert, op. cit., pp. 20, 22, 123, 222. The GoTernor-General in
Council alone, and not the local Indian legislatures, can regulate the
coinage.
^ See Stat, E. & 0., 1896, p. 840, British dollars have been coined in
India for the sole purpose of circulation in Hong-Kong and Labuan, Stal.
E. d 0., 1895, pp. 708, 764, 769. [The silver rupee of Britisli India has
been made the standard coin of the East African Protectorate, Stat.
E. d 0., 1898, p. 376.]
* At Sydney, Melbourne, and Perth. [Sco Stat. E. & 0. Ecv., vol. viii.
pp. 627-41 ; Stat. E. & 0., 1894, p. 33 ; 1896, p. 13 ; 1900, p. ar.]
30 BRITISH RULE AND JURISDICTION
Cu. II. those of the United Kingdom, but in parts like Canada, where
' dollars are in use.
Hitherto, gold coins alone have been coined in the colonial
branch mints. If silver coins were coined there, the imperial
control would be clearly necessary in order to prevent an
excessive coinage, because the silver coins are only token coins ;
and a difficulty might arise from one colony taking the profit
when the coins are largely used in another colony, and the
profits of such coinage are large.
For Canada and other British possessions which use coins
of different denominations from the British pound and shilling,
dollars and other coins are coined at the Royal Mint in England,
and the possession pays the expenses or receives the profit ^.
As respects private law, each British possession is a
separate country, just as Scotland or Ireland is a separate
country from England. Thus there may be a conflict of laws
between a British possession and England, or between two
British possessions, just as there maybe between Scotland and
England. The supremacy of the imperial Parliament may limit
this conflict, as above pointed out, in cases of general imperial
policy, or cases like bankniptcy; but the proposals in this
direction, made at the colonial conference in 1887, did not lead
to much, the net result being an Act for resealing in England
probates of wills obtained in a possession ^.
More effect in this direction is obtained from the tendency
of British possessions to make their private law agree with
English law, particularly in commercial matters, such as those
relating to joint stock companies ^ or merchandise marks * ; and
^ The history and condition of colonial currency are exhaustively
treated in the book entitled Colonial Currency, by Robert Chalmers.
^ 55 & 56 Vict. c. 6.
' Companies incorporated by charter, e. g. banking companies, have
asserted that their charter exempts them from colonial law ; but recent
practice in both charters and imperial Acts of a local character con-
ferring powers on a company is to declare expressly that the company
shall not be so exempt.
* In 1887 the imperial Merchandise Marks Act of that year was sent
to each British possession with an invitation to enact a similar law.
HOME AND COLONIAL RELATIONS 31
from the supervision over local legislation which is exercised by Ch. il.
the Home Government to a greater or less extent, according to
the character of the possession.
The inhabitant of a British possession when outside the
British dominions remains, equally with an Englishman,
within the allegiance of the King, and is therefore subject
in many respects to British law ; but the law to which he is
so subject is (apart from questions, such as succession, which
depend on domicile) English and not colonial law. If he is
on board a ship of his own possession he carries with him, by
virtue of the Merchant Shipping Act^, the law of that
possession in all matters to which that Act does not apply ;
but if he is on board any other sliip, or dwells in (say)
China or Turkey, he carries with him, and is subject to,
English law.
As regards head (c), judicial matters, all writs run and pro- Head (c),
ceedings are carried on in the name of the Crown ^. In most arrange-
British possessions the courts were established by charter ^^^^^'
under the Great Seal of the United Kingdom. In some cases
their establishment was authorized by imperial Acts, but since
1865^ the intervention of the Home Government is not so
much required for the establishment of courts.
Except in the self-governing colonies, the judges are
appointed by the Home Government ; and in every British
possession they can be removed by the Governor and council of
the possession for absence without reasonable cause, neglect.
' 57 and 58 Vict. c. 60, s. 265.
* Professor Dicey (Law Const., p. 10) calls tlie doctrine that all jurisdic-
tion of the courts is derived from the Crown an unreality and a fiction.
But the doctrine is true historically, though the dovclopniont of law in
England may conceal the truth. Even in England the King may still cieato
a prize court, and until 1891 the Crown was perhaps the sole authority
for creating such a court. See 54 & 55 Vict. c. 53, s. 4 ; 57 & 58 Vict.
c. 39. The truth of the doctrine clearly appears in the judicial history
of British possessions, and it still has substantial reality in tho less
developed communities outside the United Kingdom.
' The date of tho passing of the Colonial Laws Validity Act, 1865 (a8&
29 Vict. c. 63), printed in App. V infra. See also 50 & 51 Vict, c. 54.
32 BRITISH RULE AND JURISDICTION
Ch. II, or raisbeliaviourj subject to an appeal to the King in
Council ^.
An appeal lies to the King- in Council from the decision of
every court in a British possession 2. In most cases this appeal
is of rig-ht, in others leave to appeal has to be obtained from
the King in Council. Thus a person convicted of murder or
of any other offence can and occasionally does petition the
King for leave to appeal, although in England there is no
such appeal by a person convicted. But partly by rule,
partly by practice, and partly by colonial legislation, the
appeals are so limited as to prevent any great delay or in-
convenience in the administration of justice. Thus a person
convicted by a jury only obtains leave to appeal if there is
substantial ground for believing that there has been a grave
miscarriage of justice ^. And a civil suitor is refused leave to
appeal to the King until he has exhausted his rights of appeal
in the colony.
The petition for leave to appeal, and the appeal, are made to
the King, and the order upon the petition or appeal is made
by the King in Council. But every petition or appeal is
referred to a committee of the Privy Council called the Judicial
Committee, and is heard by that committee, and the order of
the King in Council is always made in accordance with the
advice of the committee, the purport of which is stated in
a single judgement read in open court.
Constitutional questions of great importance to a colony
have been referred by the Sovereign to the Judicial Committee,
such as the powers of the legislative council of Queensland in
respect of money Bills, and the validity of Protestant marriages
^ By Burke's Act, 22 Geo. III. c. 75 : see Willis v. Gipps, 5 Moo. 379 ;
Montague v. Lieut. -Governor of Van Biemen^s Land, 6 Moo. 489. See also
memorandum as to removal of colonial judges in 6 Moo. N. S., Appendix
IX, set out in Tarring, Laio relating to the Colonies, p. 162.
^ See, however, as to appeals from the Federal Court of Australia, s. 74
of the Commonwealth Constitution in 63 & 64 Vict. c. 12, and p. 89 infra.
' [See Ex parte Deeming, L. R. [1892] A. C. 422 ; Kops v. the Queen, L. R.
[1894] A. C. 650.]
HOME AND COLONIAL RELATIONS 33
in ^Malta, and upon their report have been decided by the Cn. II.
Sovereign in Council \
The Judicial Committee consists of the most eminent judges
in the United Kingdom ; and to them have been added, since
1895, certain eminent colonial judges-.
The jurisdiction of a court in a British possession is limited
to the possession and its territorial waters, except so far as
a wider jui'isdietion is conferred by an imperial Act ^.
In criminal matters this jurisdiction has been conferred in
most cases where similar jurisdiction is exercised by English
courts. In civil matters, the most important branch of extra-
territorial jurisdiction, that of the Admiralty Court, was,
until 1890, mainly exercised by Vice-Admiralty Courts
established by an instrument under the seal of the office of
admiralty, issued in pursuance of authority given to the
Commissioners of the Admii-alty in England by a commission
under the Great Seal of the United Kingdom. In practice,
a judge of the Superior Court of the possession was always
made judge of the Vice-Admiralty Court ; but he held that
office by virtue of an appointment from the British Admiralty,
and not by virtue of his position as judge of the possession.
His jurisdiction therefore was vested in him personally, and
not in the colonial court ; and if he was incapacitated, could
not be exercised by his brother judges.
In 1890, the Superior Court itself was in most of the British
possessions made an Admiralty Court, subject to rules to be
made by Order in Council ; but the power of the King to set
up Vice- Admiralty Courts is reserved^.
* See Pari. P., 1894, No. 214 ; 1896, C. 7982.
^ Under the Act 58 & 59 Vict, c 44 any one wlio is or has been
a judge of a Superior Court in Canada, any Australasian colony, the
Cape or Natal, or of any other Superior Court of the British dnniiniona
named by the King in Council, should, if a Privy Councillor, be a member
of the Judicial Committeo. As the King can appoint any person to be
a Privy Councillor, this in effect enables him to appoint any of these judges
to be members of the Judicial Committee.
^ [Sec, however, p. 12, note 2, supra.]
< The imperial Act, 53 &. 54 Viot. c. 27, empowered the legislature of
JENKVNS D
Governor.
34 BRITISH RULE AND JURISDICTIOxN
Ch. II. The King can also appoint a vice-admiral in any British
possession, and if none is so appointed, the Governor of the
possession is viee-admiraP. He has practically no powers,
except in connection with prize courts.
Prize courts are international courts, and exist only in time
of war; but in 1894, to meet the exigencies created by
telegraphs and other conditions of modern warfare, power was
given to the Crown to issue for prize courts in British posses-
sions dormant commissions, which become effective upon a
proclamation by the vice-admiral that war has broken out".
The commission may be given to the colonial Court of
Admiralty; but the court when acting as a prize court is
an imperial court, and not a court of the possession. Appeals
from colonial Courts of Admiralty and prize courts lie, as do
those from Vice- Admiralty Courts, to the King in Council ^.
Head (d). As regards head (r/), the supreme executive government of
a British possession is vested in the Governor, aided (with two
or three exceptions) by local ministers ; and many, if not all,
administrative acts are done in the name of the Governor or
his ministers, and not of the King.
The powers of the Governor, and his relations to his ministers
and to the Home Government, vary so much that little is
common to all British possessions, except the existence of the
Governor, and his responsibility to the courts in England and
the possession, a responsibility which extends to any other
officers appointed by the Home Government*.
a possession to declare any court of unlimited jurisdiction to be a colonial
Court of Admiralty. Any law affecting a colonial Court of Admiralty,
unless previously approved by the Home Government, must be reserved,
or contain a suspending clause. New South Wales, Victoria, St. Helena,
British Honduras, and the Channel Islands, were excepted from the Act
until it was applied by Order in Council. The two first colonies did not
assent to the application of the Act.
' 55 "fc 56 Vict. c. 27, s. 10.
* The Supreme Court of the United States is, under the Constitution,
a dormant prize court.
^ 53 & 54 Vict. c. 27, s. 6 ; 57 & 58 Vict. c. 39.
* The powers and position of the Governor are dealt with more fully
in chapter vi. The title of Governor given to the chief executive officer
HOME AND COLONIAL RELATIONS
35
The Governor of a British possession and any other officers Cu. n.
appointed by the Home Government to hold office in the pos-
session are amenable to the High Court in England in respect
of their acts done in the possession. They are liable to civil
actions brought in that court by individuals, whether inhabit-
ants of the possession or of the United Kingdom, for the
recovery of damages for any injury caused by their action,
and cannot escape liability because their action was an Act of
State or ordered by the Home Government ^
They are further liable in a criminal court in England to
prosecution for offences committed in the possession '^. Both
the civil and criminal proceedings are in the ordinary courts,
and not before a special tribunal for government officials.
Judges of the Supreme Court of any possession can also be
removed by Order of the King in Council ^, and this power
of removal is in addition to the power of removal by the
Governor and his council ^, and to any power of removal
provided by the law of the possession. The law of the posses-
sion usually follows the law of England, i. e. that a judge can
of each state in the United States appears to be a survival from the time
when the state was a colony of England with the Governor appointed by
the Crown.
^ An action was brought against the Governor of Gibraltar for assault
and false imprisonment, Glyn v. Iloustoun, 2 M. & G. 337, and for an illegal
court-martial, Conner v. Sabine (cited in Fahrigas v. Muatyn) ; against the
Governor of Minorca for assault and false imprisonment, Fahrigas v.
Mosiyn, 20 St. Tr. 81, see pp. 218, 228, 232 ; against the Governor of Jamaica,
Phillips v. Eyre, L. R. 4 Q. B. 225, 6 Q. B. i. See also Co. Litt. 391 (a) Ilar-
graves' note ; Tarring, Law Col., p. 51 ; Smith's Leading Cases, 7th ed., vol. i.
pp. 670, 679.
- Under 11 Will. III. c. 12, as to governors, which was extended to all
persons in the service of the Crown by 42 Geo. III. c. 85, General Picton
was tried for illegally ordering torture wliilo Governor of Trinidad, but
judgement was never given, 30 St. Tr. 225, 955. See also li. v. Eyre, L. R.
3 Q. B. 487. Tlie Act does not apply to felonies ; but under the Act
relating to the trial of murders committed abroad Governor Wall was
convicted in England and lianged for murder committed by him when
Governor at Goree in West Africa by excessive Hogging of a soldier :
28 St. Tr. 51.
' See memorandum by Privy Council, 6 Moo. P. C, N. S., Appendix IX ;
Tarring, Law Col., p. 162.
* Under Burke's Act, 22 Geo. III. <•• 75.
D H
36
BRITISH RULE AND JURISDICTION
Ch.II
Head (e).
Internal
govern-
ment.
be removed by the Crown on the address of the two Houses
of the legislature^ but not otherwise.
As respects head (e), the internal government of a British
possession is left almost entirely to the local government
except so far as it is affected by its relation to imperial policy
or external affairs. Except in those cases the imperial Parlia-
ment never interferes ; but the position of the possession as
member of the empire, and the influence of the Home Govern-
ment, w^hether by control over the legislation of the possession,
or by advice or direct administrative interference, have more
or less influence on the internal government. The extent
of that influence, and in particular the financial control, vary
so much, that they must be dealt with among the differences
between, rather than among matters common to, all British
possessions.
CHAPTER III
BRITISH POSSESSIONS OTHER THAN COLONIES
The general relations between tlie Home Government and Ch. III.
all British jDossessions have been stated in the last chapter.
It now falls to state the differences between various classes sions *
of British possessions, and for that purpose to state in more ^^^°^ ^®
or less detail their constitution and position in relation to the colonies.
United Kingdom.
The British possessions which are not colonies, namely the
Channel Islands, Isle of Man, and British India, will be first
dealt with.
The Channel Islands and the Isle of Man, which, together
with the United Kingdom, are frequently called the British
Islands ^ are the oldest of the British possessions.
The Channel Islands indeed claim to have conquered Channel
England, and are the sole fragments of the dukedom of
Kormandy which still continue attached to the British
Crown. For this reason, in these islands alone of all British
possessions, does any doubt arise as to whether an Act of
the imperial Parliament is of its own force binding law. In
practice, when an Act is intended to apply to them, a section
is inserted authorizing the King in Council to issue an
Order for the application of the Act to these islands, and
requiring the registration of that Order in the islands
and the Order in Council is made by the King and regis-
tered by the States accordingly.
' This description is recognized and authorized liy the Interpretation
Act, 1889 (52 & 53 Vict. c. 63), B. 18 (3).
38 BRITISH RULE AND JURISDICTION
Ch. U I. Guernsey and Jersey have their own legislatures and execu-
tives. The legislature consists in each case of a quasi-repre-
sentative body called the States^ with certain legislative and
administrative powers. Sark and Alderney are in the baili-
wick of Guernsey. The body called the States is composed
partly of nominees of the Crown and partly of officers elected^
some for life^ others for a short term of years, by the richer
ratepayers.
The States of Jersey, with the consent of the Governor,
can pass a law without the King's consent to last for three
years only, but except in that case a law passed by the States
either of Guernsey or Jersey requires the assent of the King
in Council.
Alderney has a separate court and States of its own ; but
there is an appeal to the Royal Court of Guernsey, and the
States of Guernsey legislate for Alderney.
The King in Council can also legislate for the islands, but
whether that power to legislate can be exercised without the
consent of the States is a moot question, which has been
twice argued before the Judicial Committee of the Privy
Council, but not decided ^
The Royal Courts in each island, consisting of the BailifE
nominated by the Crown and twelve Jurats elected for life by
the richer ratepayers, have judicial, and in Guernsey, some
minor legislative functions.
The Governors of Guernsey and Jersey are appointed by
the King on the advice of the Home Secretary.
Each island has its own special laws, resting largely on the
old Coutume cle Norma7idie, and its ovra. customs duties, or
rather absence of duties. Until some time after the begin-
ning of the nineteenth century, the islands formed the base
* See the cases of Re States of Jersey, 9 Moo. P. C. 185, and Jersey Prison
Board, 8 St. Tr. N. S. 286, where some of the information collected for the
argument is given. App. C in 8 St. Tr. 1127 contains a reprint of the
report of the Eoyal Commission of 1846, -which gives a full account of
the law and institutions of the Channel Islands. See also Anson, L. & C,
pt. 2, ch. V, and Fallev. Goclfray, L. R. 14 A. C. 70.
BRITISH POSSESSIONS OTHER THAN COLONIES 39
from which a large amount of smugg-ling was carried on Ch. III.
into the United Kingdom,
The islands make no contribution towards the British
na\y or army, the maintenance of the Crown, the di^Dlomatic
service, or the National Debt, and indeed have raised diffi-
culties about placing their militia in an efficient state.
The Isle of Man is in a different position. The lordship Isle of
of the island was granted by the English Crown to a noble,
and was eventually repurchased by it from his descendants
in 1765 1.
The island has a legislature of its own — the Court of
Tynwald — consisting of two branches, the Council and the
House of Kevs.
The Council consists of the Governor, the Bishop (who is
the sole representative of the old barons), the Attorney-General,
the Clerk of the Rolls, the two Deemsters (i.e. judges), the
Archdeacon, the Receiver- General, and the Vicar-General. Of
these all are nominated by the Crown, except the Vicar-
General, who is appointed by the Bishop.
The House of Keys consists of twenty-four members, who
were formerly co-opted with the approval of the Governor,
but are now elected by popular election.
When a law has been passed by each branch separately,
it is signed at a meeting of the two branches held under
the presidency of the Governor, and must be signed by a
majority of the House of Keys. It is then sent to the Home
Secretary for the Royal Assent, which is given by the King
in Council. It does not, however, become law until pro-
mulgated at the Tynwald Court, held usually on July 5
(Tynwald Day) with ancient ceremonies on a particular hill.
The Governor, as representing the Sovereign in his capacity
of Lord of Man, was until recently the sole judge in the isle,
» Under 5 Geo. III. c. 26. See also 45 Geo. III. c. 123 and Pari. P., 1805,
vol. ix. 3. The Land of lloum Hide, by Sir S. Walpolf, K.C.B., sometimo
Governor of the Lslo of Man, gives au interesting account of the history
nd present condition of the island.
40 BRITISH RULE AND JURISDICTION
Ch. III. and the only person capable of issuing a warrant of arrest.
The ordinary judges are called Deemsters, and, when there
was an appeal, sat w4th the Governor to hear the appeal.
But they were assessors only, not judges, so that if the
Governor differed from the two Deemsters his judgement
prevailed.
The Governor also personally administers the government
of the island without the aid of any ministers, but is under
the control of the Home Secretary with respect to ordinary
administration, and of the imperial Treasury wath respect to
finance ^.
The Isle of ]\Ian was for many years a base for smuggling
into England, and continued to be so long after the customs
were taken under the control of the customs service of the
United Kingdom.
The imperial Parliament in 1767, immediately after the
purchase, in order to stop smuggling passed an Act fixing
the customs duties for .the isle, and requiring them to be
collected by imperial officers. This system has continued, but
now under a recent Act the imposition, variation, or abolition
of any customs duty fixed by the Court of Tynwald, with the
approval of the imperial Treasury, comes into force at once
for six months, but requires for its permanency confirmation
by a subsequent Act of the imperial Parliament ^.
In other respects the taxation of the island is quite in-
dependent of the taxation of the United Kingdom. No
contribution is made by the island towards the army, navy,
or militia, the maintenance of the Crown, the diplomatic
service, or the National Debt ; but the island has now a force
of Volunteers which it in part maintains.
Until 1 866 the surplus revenue of the island was paid into
the imperial Exchequer, but in that year an agreement was
made by which payment of £io,oco a year should be made
out of the surplus revenue to that Exchequer, which sum
• See Walpole, op. cit., pp. 270-9 - 50 & 51 Vict. c. 5.
BRITISH POSSESSIONS OTHER THAN COLONIES 41
may be treated either as interest on the purchase money paid Ch. III.
for the island, or as representing the surphis income of the
island before 1866, while the rest of the surplus is applied
for the benefit of the island^. The general result is that,
though the imperial Treasury still controls the finances of the
island, the Tynwald is practically left to manage them in its
own way, so long as the customs duties are not such as to lead
to smuggling into the United Kingdom.
Like the Channel Islands, the Isle of Man is not bound
by an Act of Parliament unless the Act is expressly, or by
necessary implication, extended to it.
Eritish India is in no sense a colony, even with the exten- British
sion commonly given to that word, but is a dependency
acquired partly by conquest, partly by cession.
It is beyond the scope of this work to give a history of the
various stages by which the present government of India was
reached. That history is full of practical lessons in the
government of dependencies with an oriental population,
lessons both from failure and from success 2.
It is only by a study of that history that much in the Outline of
present position of the Indian Government can be fully under-
stood; a meagre outline can alone be given here^.
In the beginning the East India Company, chartered by
the Crown with a monopoly of trade, received power to govern
the members of the Company who engaged in the trade and
their employees, to make by-laws for them and punish a breach
of the by-laws by line and imprisonment. Then, when the
Company established factories, the Governor and council of
the factory received power to judge all persons in the factory
in civil and criminal cases.
' 29 & 30 Vict. c. 23,
- The liistory of British India iHustrates the doctrine that no subject
of the Crown can acquire dominion except on behalf of the Crown, soo
Campbell v. IIoU, 20 St. Tr, 239 ; preamble to 53 Geo. III. c. 155 ; and
resolution of House of Commons of May 10, 1773, quoted by Ilbert, op. cit.,
p. 53, note 4.
'•' For a short summary of tlie hi-,lory of the government, see ibid.,
cli. i.
42
BRITISH RULE AND JURISDICTION
Ch. III.
Home
Govern-
ment of
British
India.
Power was tlien given to the Company to raise land and
naval forces and to govern them by martial law, to coin
money, to create municipal bodies, and (in effect) to make war
and peace.
Next the Company took over powers of government from
the ruling powers in India, and became in practice territorial
sovereigns, though the sovereign power continued to be exer-
cised in the name of the Indian ruler. Thus the Company
held courts deriving authority from the native Indian rulers,
and not from the British Crown.
The courts established by the Company under the royal
charter were largely superseded by the courts for exercising
jurisdiction over Europeans, which were established under
imperial Acts with judges appointed by the Crown.
Parliament also authorized the Company to raise a Euro-
pean army, and passed a Mutiny Act for the government of
that army.
The factories developed into presidencies, each with its own
governor and council, while after a time the Governor of the
Presidency of Bengal and his council developed into a
Go vei'nor- General and council, with control over the other
presidencies and over the relations with native Indian states.
Legislative powers were conferred by Parliament on the
Governor-General in Council over all British India and over
the servants of the Company everywhere, subject to dis-
allowance of any ordinance by the Court of Directors of the
Company. In 1833 one member, and in 1853 several mem-
bers, were added to the Council for legislative purposes, so as
to make the Legislative Council of the Governor-General
a body larger than and therefore different from his Executive
Council. [The constitution of the Legislative Council was
further altered in 1892.]
In 1784 a special department of the King's Government,
called the Board of Control, was established to attend to
Indian affairs and to control the Court of Directors of the
East India Company. The government of British India, so
BRITISH POSSESSIONS OTHER THAN COLONIES 43
far as it was exercised in England, was thus of a dual Cii. III.
character, resting- partly with the Company and Coui't of
Directors and partly with the Crown acting through the
Board of Control. It would, perhaps, be more correct to say
that the establishment of the Board of Control emphasized
and organized the dual character rather than created it, as for
many years previously the Crown, either through the Ministers
of State or through Parliament, had exercised control over
the Indian Government.
In 1813 the trade monopoly of the East India Company
was abolished, and Europeans were allowed to settle in India
under license. In 1833 the license system was abolished, the
right to trade and settle in India was made free to every one,
and the Company was prohibited from trading and became
solely a body for the internal government of India.
Finally, in 1858, after the suppression of the great mutiny
of the native army. Parliament abolished the Company and
vested in the Ci'own the sovereignty and direct government
of British India ^ ; and it is now governed in the name of the
King.
An additional Secretary of State was appointed to take
charge of the internal government. He is aided by a Council
of India, of from ten to fifteen members appointed by him,
who hold office for ten years, and of whom nine must have
served or resided in British India for at least ten years". He
is also aided by a staff of permanent officers similar to those
of the British Civil Service.
The relations between the Secretary of State and the
Council of India are intricate, but in substance the Council
are only a consultative body, while the power and respon-
sibility rest with the Secretary of State. He has to sign
every order or communication sent to the local government of
' 21 & 22 Vict. c. 106.
ibid, ss. 7-13; 32 & 33 Vict. c. 97 ; 52 & 53 Vict. v. 65. The siiliirios
of tlic Secretary of State and Council and of llin suhordinatc staff at tho
India Office are paid out of tho revenues of British India.
44
BRITISH RULE AND JURISDICTION
Local
govern-
ment of
British
India.
Ch. III. India 'j and is responsible to Parliament for all his acts and
orders.
' British India ' must be carefully distinguished from
' India/ The former includes onl}'- places in the King's
dominions, while ' India ' includes, besides British India, the
territories of any native prince or chief under the suzerainty
of His Majesty exercised through the Governor- General of
India or tkrough any governor or officer subordinate to that
Governor-GeneraP. The position of these latter territories
will be noticed elsewhere.
By reason of these dependencies British India would, as
before observed, be itself an empire if it were not a de-
pendency of the British Crown. This imperial position was
recognized in the title of Empress of India (translated in
India into Kaiser-i-Hind), assumed by Queen Victoria in
18753.
Further, apart from its dependencies, the local government
of British India is of the federal type^ that is to say, it has
a central legislature and executive, while in sundry portions
of it there are local legislatures and executives. Consequently
the legislative and administrative powers are distributed
between the central and the local governments.
The central government consists of the Governor-Genei'al in
Council, in whom is vested, both by the terms of his com-
mission and by imperial Act, the superintendence, direction,
and control of the civil and military government of India*.
Governor- The Governor-General, who is appointed by the King under
India. Royal Sign Manual to hold office durmg pleasure, is thus, what
no governor of any other British possession is, a Viceroy^.
But he is bound, both by his commission and by imperial Act,
to pay due obedience to all such orders as he may receive from
' 21 & 22 Vict. c. 106, s. 19.
- See Interpretation Act, 1889 (52 «& 53 Vict. c. 63), s. 18 (5).
' Under the Act 39 & 40 Vict. c. 10 : see the London Gazette, April 28,
1876. * 21 & 22 Vict. c. 106, s. 29.
* See ch. vi, p. 102, infra ; 13 Geo. III. c. 63, s. 9 ; 3 & 4 Will. IV. c. 85,
s. 39 ; and Commission of Governor-General in Appendix IV, p. 232, infra.
BRITISH POSSESSIONS OTHER THAN COLONIES 45
the Secretary of State, and must keep the Secretary of State Cir. III.
constantly informed of all matters relating to India. He is
also subject to various restrictions contained in divers imperial
Acts^, and in particular is prohibited from engaging in war
or making a treaty for guaranteeing the possessions of any
state, except by the express command of the Secretary of State
or for purposes of defence.
The Governor- General cannot as a rule act ae:ainst the
advice of the majority of his council. The ordinary members
of this council, five or six in number, are appointed by the
Home Government, and three of them must have served
the Crown in India for at least ten years. The commander-
in-chief of the military forces in India, who is appointed by
the Home Government, may be, and usually is, appointed an
extraordinary member of the council ; and if the council were
to sit (which it never does) in the Presidency of Bombay or
^Madras, the Governor of the Presidency would become an
extraordinary member of the council^.
The Governor-General and his council hold executive and Central
legislative meetings ^, but at the latter the council is enlarged ture of
by the addition of the Lieutenant-Governor or Chief Com- Ii^*^!^'
missioner of the province in which the meeting is held, and
of from ten to sixteen nominees of the Governor- General who
hold office for two years, and of whom half at least must
not be in the service of the Crown in India. Five of these
nominees are appointed on unofficial recommendations, namely,
one on the recommendation of the unofficial members of each
of the councils of Madras, Bombay, Bengal, and the North-
Western Provinces, and one on that of the Calcutta Chamber
of Commerce *.
' These Acts were passed with reference to the old dual government of
the East India Company and the Crown, but, though hirgcily inapplicable
to the present constitutional relations of the Governor-CJeneral and the
Secretary of State, remain unrepeahd.
' 24 & 25 Vict. c. 67, ss. 3, g.
' In the colonial constitutions of tlie i8lh century the governor's
council often acted in both an executive and Icgislativt^ eliaracter.
' 24 & 35 Vict. c. 67, hs. 911 ; 33 & 34 Vict. c. 3, s. 3 ; 55 & 56 Vict. c. 14,
•t
46
BRITISH RULE AND JURISDICTION
Ch. III.
Local
Govern-
ments in
India.
The legislative power of the Governor-General in Council
depends on imperial Acts, and has been extended, beyond the
territorial limits of British India, to all British subjects, and
servants of the Government of British India in any part of
India (in the wide sense of the term), and to native Indian
subjects (i. e. natives of British India) in any part of the
world, and to the Indian marine service; but the power is
limited so as to exclude legislation altering the constitution
of the Indian Government, or authorizing loans to be raised
in the United Kingdom ^.
The Governor- General's sanction is required for the pro-
posal of legislation touching finance, religion, military and
naval forces, or the relations of the Government with foreign
princes or states. Nothing but legislative business can be
transacted at legislative meetings of the Governor-General in
Council except that rules of the Governor- General, approved
by the Secretary of State, may authorize a discussion of the
annual financial statement of the Governor- General, and the
asking of questions ".
Passing to the local Governments, they vary according to
the provinces. In the Presidencies of Madras and Bombay,
there is a Governor appointed by the Home Government,
and a council of two members appointed also by the Home
Government from among Indian officials ^.
The Governor cannot, as a rule, act against the advice of
s. I ; and Regulations of the Governor-General made under the latter Act,
and printed in Ilbert, Govt. India, p. 337.
* See 3 & 4 Will. IV. c. 85 ; 24& 25 Vict. c. 67, s. 22 ; 28 & 29 Vict. c. 17;
32 & 33 Vict. c. 98 ; 33 & 34 Vict. c. 3 ; 47 & 48 Vict. c. 38, ss. 2-5 ; 55 & 56
Vict. c. 14, s. 3. The power to legislate for native Indian subjects when out-
side India is a larger extra-territorial power than is possessed by the legis-
lature of any other British possession.
The Governor-General alone, in cases of emergency, has the same legis-
lative power as the Governor-General in Council, but a law so made by
him lasts for six months only (24 & 25 Vict. c. 67, s. 23).
^ 24 & 25 Vict. c. 67, s, 10 ; 55 & 56 Vict. c. 14, s. 2. The present rules
are printed in Ilbert, op. cit., p. 348.
^ The appointment is by warrant under the Eoyal Sign Manual,
countersigned by the Secretary of State ; the number may be fixed by
the Secretary of State, but is not to exceed three.
^
BRITISH POSSESSIONS OTHER THAN COLONIES 47
the majority of the council. The Governor and council hold Ch. III.
both executive and legislative meetings, but at the latter the
council is enlarged by the addition of from eight to twenty
nominees of the Governor, of whom at least one-half must not
hold office under the Crown in India.
The other provinces are under either Lieutenant-Governors
or Chief Commissioners, who are appointed by the Governor-
General from among Indian officials, and act without any
executive council.
For each province under a Lieutenant-Governor there is a
legislative council consisting of the Lieutenant-Governor and
not more than twenty persons nominated by the Lieutenant-
Governor, with the approval of the Governor- General ^.
An Act passed by a local legislature can be vetoed by the
Governor, or Lieutenant-Governor, but even if assented to by
him does not become law until assented to by the Governor-
General; and when so assented to can be disallowed by the
Home Government like a law passed by the Governor-General
in Council.
A local legislature cannot alter an imperial Act, nor (with-
out the previous consent of the Governor-General) an Act of
the Governor-General in Council, nor affect the customs or
general revenue of British India, or currency, post office, penal
code, religion, patents, copyrights, naval and military forces,
or the relations with foreign states; but otherwise has full
legislative power ^.
A province under a Chief Commissioner is administered by
the Commissioner without any council, and for such a province
the Governor-General in Council in legislative session is the
legislative authority.
To the more backward .parts of India the ordinary law and
the ordinary methods of legislation are unsuitable. Special
» 24 & 25 Vict, c, 67, ss. 44, 48 ; 55 & 56 Vict. c. 14, s. i, wliicli autho-
rized the Governor-General in Council, with tJie approval of a Secretary
of State, to create new Lieutenant-Governors ; but it has been questioned
whether this power is not exhausted.
'^ 24 & 25 Vict. c. 67, S.S. 42-8 ; 55 & 56 Vict. c. 14, s. 5.
48 BRITISH RULE AND JURISDICTION
Ch. III. provision has therefore been made for any part of India to
~ which the Secretary of State and Council of India declare
such provision to be applicable. As respects any such part
the chief executive officer of the province, whether Governor,
Lieutenant-Governor, or Chief Commissioner, may propose, and
the Governor- General in Council in executive session may
approve, a law for that part ; and the law so approved has
the same force, and is subject to the same disallowance as if
it were a law passed in legislative session ^.
Com- The government of British India cannot properly be com-
between pared with that of any other British possession, as the con-
mentTof ^^^^^^^^ are so widely different.
British jsj'ot only do the area and population exceed those of any
India and "^ . ....
of other other possession, but in British India there are found ancient
sions. civilizations and religions, highly organized, as well as bar-
barous communities, and a large number of different languages
and customs; while in areas intermixed with British India
there are native sovereigns of very ancient descent still ruling
under British suzerainty many millions of people.
The central executive and legislature of British India have,
therefore, in some respects larger powers than those of any
other British possession. The executive has, as the paramount
authority in India, powers outside the British dominions,
powers of making treaties and acquiring territory, and prac-
tically of making war and peace. It also has powers derived,
not from the British Crown, but by succession from the
Indian sovereigns whom the Company and the British Crown
have displaced^.
The wide extra-territorial powers of the central legislature
have been already noticed. There are no elective and there-
fore truly representative members of any of the legislatures :
all the members are nominees of the Home Government or the
Governor-General ^.
* 33 & 34 Vict. c. 3. ^ See Ilbert, op. cit., p. 179,
^ In some of the legislatures tl
recommendation of elective bodies,
^ In some of the legislatures there are members nominated on the
BRITISH POSSESSIONS OTHER THAN COLONIES 49
On the other hand, the government of India is much more Cii. III.
regulated, and its executive and legislative powers are more
11- • 1 4 J ji 1 i fi ii Control of
restricted by imperial Acts, than the government or other govern-
British possessions. The restrictions enacted for the East j^^{^j^*^
India Company and their governors and officers apply to the
Secretary of State and to the Governor-General and gover-
nors appointed by the Crown/ Thus the King on the advice
of a Secretary of State can remove any officer of the Crown
in India.
The finances of India are directly controlled by the Secre-
tary of State, and no appropriation of money out of the
revenues of India can be made without his permission and
the concurrence of a majority of the Council of India.
The accounts of the Indian finances have to be laid before
Parliament^ and there is an annual debate upon them. A loan
cannot be borrowed in the United Kingdom without the con-
sent of Parliament, nor can money be spent on military
operations beyond the frontiers of British India without that
consent.
In practice the Home Government, whether through Par-
liament or the Secretary of State, exercises much more control
over the details of the government of British India than it
does in the case of a self-governing colony ; although the
local Government of the latter has in many respects less
power than that of British India.
"While the government of British India continued in the Courts of
East India Company there were, as before mentioned, two sets india.
of courts. The one set consisted of courts of the Comi^any
held partly under charter, partly under their powers as collectors
of revenue and territorial sovereigns derived from native Indian
rulers. The other set comprised courts held under charters is-
sued by the Crown in pursuance of an imperial Act of 1773 ^'
Speaking broadly, the Company's courts exercised juris-
diction civil and criminal over the natives, the Crown courts
over Europeans.
* 13 Geo. III. c. 63.
JRNKVNS E
5© BRITISH RULE AND JURISDICTION
Ch. III. After the assumption by the Crown in 1858 of the whole
government of British India, charters issued by the Queen
under the authority of an imperial Act established in the
towns of Calcutta, Madras, and Bombay, High Courts for
the provinces of Bengal, Madras, and Bombay, and amal-
gamated the two sets of courts. Subsequently a fourth
High Court for the North-Western Provinces was established
at Allahabad.
The other courts in British India are established by the
local Governments under Indian Acts ; in these the judges
are members of the Indian civil service, who may be, but
usually are not, natives of India.
The judges of the High Courts are appointed by and hold
office during the pleasure of the Home Government, which
also fixes their number, salaries, furloughs, and pensions^.
The jurisdiction of these High Courts is in the main fixed
by the charters ; and an appeal lies from them to the King
in Council.
They have original civil and criminal jurisdiction within
the limits of the provinces for which they are appointed, and
in certain cases outside those limits ; they have also a general
superintendence of the local courts and are courts of appeal
from them.
Until 1873 a European British subject could only be tried
before a High Court ; and though he can now be tried before
a district judge, if a European he has still certain privi-
leges as regards jury and otherwise which native Indians
have not ^.
' This tenure of high court judges during pleasure is contrary to the
principles of English law (see 12 & 13 Will. III. c. 2, Act of Settlement),
which are generally followed in the British possessions. In practice,
however, the judges hold during good behaviour. One-third of the
judges of each high court must be barristers or advocates of the United
Kingdom of not less than five years' standing, and one-third must be
Indian officials of not less than ten years' standing, and with not less
than three years' experience as district judges. The total number is
limited to fifteen for each court, 24 & 25 Vict. c. 104, ss. 2, 19.
- Strachey, India, pp. 155 seq.
BRITISH POSSESSIONS OTHER THAN COLONIES 51
The extent to which, and the time at which, English law Ch. IIL
has been introduced in British India have been the subject
■of controversy and legal decision \ but the matter is now
largely settled by the enactment of the Indian codes ^.
But in civil matters, particularly inheritance; succession to
lands or goods, marriage, and to some extent, even in ordi-
nary contracts, the local or personal law or custom remains,
and the personal law or custom applied is, if both parties are
not under the same law or custom, that of the defendant.
One very important part of the central government which Military
. . forces in
does not exist, at least to the same extent, in any other India.
British possession, is the army, which consists partly of British
troops, sent from England, partly of native troops raised in
India, but officered in part by British officers. The British
troops are a part of the ^regular forces,^ and remain under
the government of the imperial Army Act. The native
troops are governed by Indian law. The whole of them are
under the command of a commander-in-chief appointed by
the King under the Royal Sign Manual, and in the main
are governed by him independently. The commander-in-
jchief has to comply with the instructions given by the
Governor- General in Council, just as a general in England
has to comply with the instructions given him by the Crown
through a Secretary of State ; but in purely military matters
he is independent of the Governor-General and is responsible
to the Home Government only ^. Many of the native Indian
' Mayor of Lyons v. East India Company, i Moo. P. C. 176, 3 St. Tr. N. S.
647 (see notes in latter report) ; Freeman v. Fairlle, i Moo. Ind. App. 305,
2 St. Tr. N. S. 1000 ; Sir J. Stephen's Nuncomar and Itnpey, vol. ii. p. 18 ;
Ilbert, op. cit., p. 34.
* The Penal Code, the Code of Criminal Procedure, the Code of Civil Pro-
cedure, and the Indian Contract Act. The Succession Act of 1865 applies
almost exclusively to Europeans. [For an account of codification in India,
see Ilbert, Legislative Methods and Forms, pp. 129-55.]
^ The Indian Government cannot raise a separate army of Europeans,
23 & 24 Vict. c. 100. The Governor-General cannot issue a military com-
mission, Ilhort, Clort. India, pp. 271-5. Lord Elk^nborough, when Govi'rnor-
General, asked for the ri;^lit to have the command of the army, but was
refused. Lord Hardinge had the right given him, and at one time took
52
BRITISH RULE AND JURISDICTION
Indian
Civil
Service,
Cn. III. rulers maintain military forces, under certain restrictions as
■ to numbers and arms imposed by the Governor-General.
Some of them maintain a force better armed and available
for service under the orders of the Governor- General for
places outside the limits of the native state in which they
are raised.
British India has another peculiarity in having the go-
vernment administered by a highly organized permanent
civil service which consists (roughly) of two divisions, the
' civil service ' formerly called the ' covenanted service ^/ and
the ' provincial service ' corresponding to what was called
the ' uncovenanted service.^ All the more important posts
in the old ^regulations provinces are reserved by imperial
Act to the civil service except under very special circum-
stances ^. In the ^ non -regulation'' provinces all offices are
open alike to native Indians, to military officers who are mem-
bers of the staff corps, and to members of the civil service.
Mem^bers of the civil service are appointed by the Secre-
tary of State from among those who succeed in a public
literary examination, held annually in London^ and open to
all natural born British subjects under the age of twenty-
four. The candidates selected at this examination afterwards
pass a probationary year, and comply with certain require-
ments, such as learning to ride on horseback,
Indian law •'^.
and learninCT"
over the command of the army from Lord Gough, but this was by
virtue of liis military rank and length of service ; see Life of Peel, vol. ii.
PI"). 20, 300.
The independent commanders-in-chief in Madras and Bombay were
abolished in 1893 by 56 & 57 Vict. c. 62.
^ ' Covenanted service ' is a term derived from the covenant entered
into by the appointees, formerly with the East India Company, and now
with the Secretary of State, not to trade, not to receive presents, to
subscribe for pensions, &c. Strachey, India, p. 257, n. 3. See form of
covenant, Ilbert, oji. cit., p. 593.
* 24 & 25 Vict. c. 54. The ' regulation ' provinces are Bengal, North-
Western Provinces, Madras, and Bombay, Strachey, j). 145 ; Ilbert, op. cit,,
pp. 105, 135, 277.
^ 21 & 22 Vict. c. 106, s. 32, and rules made under it by the Secretary
of State in Council of India.
BRITISH POSSESSIONS OTHER THAN COLONIES 53
When once appointed, they rise partly by seniority and Ch. Ill
partly by promotion, until they can, after twenty-five years'
service, retire with a pension. They practically hold during
good behaviour, though any of them can be removed at will
by the Home Government. They can be suspended by the
local Government of India, but cannot be removed without
the approbation of the Home Government.
Although in i S^;^ ^ Parliament declared that a native of
India should not by reason of his religion, descent, place of
birth, or otherwise, be disqualified for office, yet the cove-
nanted service continued in fact to be filled wholly by Euro-
pean British subjects.
Even after Parliament in 1853 - threw open the covenanted
service to public competition, only a few natives, owing to
the examination being held in London, succeeded in the com-
petition. Parliament in 1870 passed an Act ^ for facilitating
the employment of Indian natives. Under that Act rules for
the purpose were made in 1879, and, on their failure, also in
1889. Under the latter rules the provincial sei-vice consists
almost entirely in each province of natives of the province
selected in a manner suitable to local circumstances.
Of the total number of civil employees in India, ninety per
cent, are natives. The ofiices held by the ' civil service ' are
under 1,000, and if these posts (which are mostly the higher
posts) are excluded, there are nearly 3,000 superior admini-
strative and judicial oflSces, most of which are held by
natives of India. The ofiicers of the army, whether Euro-
pean or native, are not included in these figures.
The population thus governed is about 221 millions in
British India, besides 67 millions in the native states, in
which some of the officers composing the staff are employed ^.
1 3 & 4 Will. IV. c. 85. 2 16 & 17 Vict. c. 95.
^ 33 & 34 Vict. c. 3. For the iiilcs under it, see Strachey, op. cit.,
p. 258; IlVjfcrt, op. cit., p. 127.
* See Strachey, op. cit., p. 285 ; Ilbcrt, op. cit., p. 128; India Office List.
CHAPTER IV
SELF-GOVERNING COLONIES
Ch. IV. The constitutions of the self-governing colonies differ
amongst themselves in many points of detail, but vastly
problem of more important than any analysis of differences is the
self-^'^ examination of those common principles which underlie the
govern- structure of all alike. The problem of colonial self-g-overn-
ment. . . . . ^ . ,
ment is the problem of reconciling local parliamentary insti-
tutions framed after the English model with the supremacy
of a Parliament at home in which the colony has no voice.
To appreciate the difficulties of the problem and the form
which its solution takes it is necessary to bear steadily in mind
that feature of the English Constitution on which Professor
Dicey has laid such stress — the essential supremacy of the
legislature in our system, with the two results, (i) that the
English executive is responsible to the legislature, and de-
pendent on the will of the majority in the popularly elected
House ; (2) that the English judiciary has merely to interpret
and apply legislative enactments, never to declare them invalid
or beyond the competence of the legislatm-e to enact. The
second of these results is due to the fact that the sphere of legis-
lative power in the English Parliament is unlimited in extent
and undisputed by any rival law-making authority — that Par-
liament is a sovereign law-making body, in fact — and there-
fore obviously cannot be reproduced in a self-governing colony,
where legislative powers are limited and Imperial statutes of
superior force. Consequently the courts of a self-governing
colony have of necessity a function not found in their proto-
SELF-GOVERNING COLONIES 55
type, the function of deciding on the validity as well as the Ch. IV.
meaning of colonial statutes.
But the first of the two results above indicated, namely, the
dependence of the executive on Parliament, is perfectly con-
sistent with a restricted range of legislative power, and there-
fore is reproduced in a self-governing colony without difficulty.
Such a colony has more than representative government; its
characteristic feature is not merely a control of local taxation
and an influence over local legislation exercised by a popularly
elected Chamber. Such a colony has also responsible govern-
ment : i. e. the heads of administrative departments form
a ministry which continues in office only so long as it <>
commands the confidence of the legislature.
It is this dependence of the colonial Executive on the Meaning
of rcsDOii
colonial Parliament which constitutes at once the essential sible
resemblance between the constitutions of our self-governing ^J^™'
colonies and that of the mother country, and the essential
divergence between the constitutions of our self-governing
colonies and all foreign systems. From this point of view,
at any rate, the charge of 'official mendacity' brought by
a learned writer ^ against the preamble of the British North
America Act, 1867^ (because it recites the wish of the
Canadian provinces to be federally united into one Dominion
' with a constitution similar in principle to that of the United
Kingdom ') cannot be sustained. His criticism that this state-
ment would only be true if ' United States ' were substituted
for ' United Kingdom ' ignores a distinction far more signifi-
cant than any analogies based on features common to all
* Dicey's Law of the Constitution, ist ed., p. 153. In tlie 4th ed., p. 156,
tho expresHion is clianged to 'diplomatic inaccuracy/ tliough tho autlicr
still maintains that ' it is clear that the Constitution of the Dominion is
in its essential features modelled on that of tho Union,' explaining that
he is regarding the Dominion solely from the federal point of view. But
even if we shut our eyes to the crucial distinction between parliamentary
government and presidential government, the points of rosomblanco
between Canada and tho United States are not nearly so remarkable, it is
submitted, as the points of difference. As to this, soo below, p. 90.
" 30 Vict. c. 3.
56
BRITISH RULE AND JURISDICTION
Ch. IV.
Informal
origin of
respon-
sible
govern-
ment.
federal constitutions. In the Dominion of Canada, no less
than in every other self-governing- colony in the empire, the
system of government is that of responsible, or what has been
termed ' parliamentary ' or ' cabinet ' government, just as in
the United Kingdom. The executive power is vested in the
Crown, but is wielded by ministers who, though appointed by
the Governor- General as delegate of the Crown, necessarily
require the support and confidence of a majority of a popularly
elected assembly, and are consequently responsible to that
assembly. In the United States, on the other hand, the
executive is in no sense dependent on the legislature. The
President is elected by the people, and appoints for the
administration of government ministers who are never mem-
bers of the legislature, who need not enjoy the confidence of
the majority of the legislature, and who are responsible to the
President alone, and not to the legislature.
It is the more important to insist on this fundamental
characteristic of the self-governing colonies, because it is
not to be discovered by an examination of their ' instruments
of constitution.'' Whatever be the form which these docu-
ments assume ^, they will be found in every case to concern
themselves mainly with the establishment of colonial legis-
latiires, and to be silent, or almost silent, as to the relations
between legislature and executive. The circumstance is highly
significant of the vogue, in the self-governing colonies no less
than in England, of what has been termed the ' rule of law.'
Just as in England parliamentary government arose, without
any formal constitutional change, from William Ill's recog-
nition of the necessity of choosing ministers of homogeneous
opinions, able to command the support of a parliamentary
majority, so in the self-governing colonies the change from
merely representative to fully responsible government is due,
not to imperial legislation or formal prerogative orders, but to
private instructions from the Colonial Office to the Governor,
directing him to select his ministers from the predominant
' See Appendix I.
SELF-GOVERNING COLONIES ' 57
party in the legislature, on the understanding that they will Ch. IV.
give way to their successors when they lose the parliamentary
support which pointed them out for office ^
Thus the date of the introduction of responsible government Origin of
into a colony is not as a rule to be discovered in Acts of gibie
Parliament or Orders in Council. To take the earliest so'^^f^'
ment in
instance, Lord Durham^s famous report, the result of his Canada,
appointment as Governor- General and High Commissioner
after the Canadian rebellion of 1837-8 and the suspension
of the Constitution of Lower Canada^, was presented to
Parliament in 1839, and recommended — (i) the union of the
two provinces, and (2) the introduction of resjoonsible govern-
ment. The Union Act introduced by Lord John Russell,
setting up one nominated legislative council and one elected
legislative assembly for the whole colony, became law in
1840 ^, and this therefore is the date of representative institu-
tions in the reunited province. But the legislative machine
was at work for some years before responsible government
began. 'Up to July, 1846/ wrote the statesman to whom
self-governing colonies chiefly owe their autonomy, ' the
problem of bringing into satisfactory operation this system
of administration had certainly not been solved ''*. Section 45
of the Union Act of 1840 (the only section in an instrument
of constitution of sixty-two clauses which deals with the
colonial Executive) merely refers to ' such executive council . . .
as may be appointed by Her Majesty for the affairs of the
Province of Canada,' and is silent as to the principle on which
^ Cf. C. O. R. 57, and 2>. 92 infi'. In the two self-governing colonies
of South Africa the introduction of responsible government may be
referred to a colonial statute — in Cape Colony to Act No. i of 1872,
amending the Constitution Ordinance of 1852, and in Natal to the
Constitution Act, No, 14 of 1893. But even in these cases tho enact-
ments only hint faintly at the parliamentary control of administration.
See below, p. 63.
* I & 2 Vict. c. 9.
' 3 & 4 Vict. c. 35. From 1791 to 1837 each of tho two provinces enjoyed
the separate representative institutions conferred by. 31 Geo. III. c. 31.
* Earl Gi'ey's Colonial Policy 0/ Lord John liusscU's Admini^tralion^ vol. i.
P- 203.
58 BRITISH RULE AND JURISDICTION
CH. IV. appointments are to be made. In 1841 Lord Jolm Russell
instructed the Governor-General to call to his councils ^ those
persons who by their position and character have obtained
the general confidence and esteem of the inhabitants of the
province/ and it was not till 1847 that Lord Elgin was
expressly instructed ' to act generally on the advice of the
executive council, and to receive as members of that body
those persons who might be pointed out to him as entitled to
be so by their possessing the confidence of the Assembly 'i.
In the North American colonies, therefore, representative
institutions, dating back in the case of the old provinces of
Canada to 1791 2, and in the case of Newfoundland to 1832,
were silently transformed, without formal constitutional
change, in the decade 1846 to 1855 into a system of respon-
sible government. Even so late as 1867, though the British
North America Act ^ recites that ' it is expedient, not only
^ Quoted by Miinro, Constitution of Canada, p. 20. An even more in-
structive instance of the adaptation of parliamentary government to
a colony which had already received representative institutions is fur-
nished by Earl Grey's dispatch, dated Nov. 3, 1846, to Sir John Harvey,
Lieutenant-Governor of Nova Scotia (House of Commons Sessional Paper,
No. 621 of 1848, p. 8, set out in Earl Grey's Colonial Policy, vol. i. pp. 209-
213). Sir John had reported that there were vacancies on his Executive
Council, but that he was urged by members of the opposition to dissolve
the assembly and hold a general election. Grey directed him, however,
to fill up the vacancies by calling upon 'the members of your present
Executive Council to propose to you the names of the gentlemen whom
they would recommend.' If they fail to form a complete council, the
Governor is to apply to the opposite party, and only if the opposition also
fail to form a satisfactory council is he, on their advice, to dissolve the
assembly. * The object with which I recommend j^ou this course,' the
Colonial Secretary goes on, ' is that of making it apparent that any
transfer which may take place of political power from the hands of one
party in the Province to those of another is the result, not of any act
of yours, but of the wishes of the people themselves, as shown by the
difficulty experienced by the retiring party in carrying on the govern-
ment of the Province according to the form of the Constitution. To this
I attach great imijortance ; I have therefore to instruct you to abstain from
changing your Executive Council until it shall become xierfectly clear that they are
nnable, with such fair support from yourself as they have a right to
expect, to carry on the government of the Province satisfactorily, and
command tJie confidence of the Legislature,'
^ 31 Geo. III. c. 31. ' 30 Vict. c. 3.
SELF-GOVERNING COLONIES 59
that the constitution of the Legislative Authority in the Ch. IV.
Dominion be provided for, hut also that the Nature of the
Executive Government therein he declared^ yet Parliament was
content to provide ^ that there should be a Privy Council for
Canada, consisting of members ' from time to time chosen
and summoned by the Governor-General/ and left unexpressed
the fundamental requirement that the Governor-General
should select ministers from the party in the majority in
the Lower House.
Much therefore that is at the very root of the constitutions Unwritten
1 • • •, ,1 ^ •!_ • constitu-
ot our selr-governing colonies is unwritten, though it is none tional
the less constitutional because its origin lies in a practice 'l^li^
which is nowhere formally recorded, and which develops new colonies.
rules in the course of years. The genius of Earl Grey not
only devised for the greater colonies a system of government
which reproduced as nearly as possible the external features of
our own, but (in spite of the restrictions which a written
constitution tends to impose) breathed into the copy the inner
essence of the original — the possibility of silent constitutional
growth. And while colonial instruments of constitution lay
down in express terms many rules (especially in connexion
with legislative practice) which in England are unwritten, yet
much of the autonomous system of government in the colonies
remains based, as in England, on unenacted custom, and some
unwritten conventions have been developed in the colonies
which are hardening into constitutional rules without a
counterpart in this country.
As an example of the reproduction of the unwritten consti- Some con-
tutional conventions of England in the form of enacted rules of the
of a colonial constitution, the provisions of the British North ^J^^^j.^^/^,
America Act regarding money Bills may be noted. The rule tion re-
• • -1 1 1 1 i 1 appear as
that a money Bill must originate in the popularly-elected enacted
law in the
colonies.
* Sect. ir. Cf. the provision in clause 62 of the Constitution of the
Australian Conimonwealtli, 63 & 64 Vict. c. 12. On the other hand, there
is no mention of an Exec-utivo at all in the New Zealand Constitution
(15 & 16 Vict. c. 72). See below, i>, 62.
6o
BRITISH RULE AND JURISDICTION
(i) Rules
as to
money
Bills.
Ch. IV. House, and the rule that such legislation must be preceded
by a recommendation from the Crown, are both specifically
enacted \ On the other hand, a third rule — that every money
Bill must begin in a committee of the whole House — is an
unenacted convention, prescribed by nothing but long custom
and a Standing Order, at Westminster and Ottawa alike ^.
Similarly, the Commonwealth of Australia Constitution Act ^
provides that money Bills shall not originate in the Senate *,
and that the Governor-General's recommendation is necessary ^j
but it adds two further rules not expressed in the Canadian
Constitution, namely, that the Senate may not amend money
Bills ^, and that laws imposing taxation shall not deal with
any other subject matter'^. In the New Zealand Constitution
of 1852 the only rule regarding money Bills which is ex-
pressly enacted is the requirement of the Governor's recom-
mendation to the House of Bepresentatives ^. In New South
Wales both this rule and the rule that Taxation and Appro-
priation Bills must originate in the Legislative Assembly are
laid down in the constitution scheduled to the imperial Act
* 30 Vict. c. 3, ss. 54 and 55 ; and cf. s. 90. The only written security
for the observance of the second of these rules by the imperial Par-
liament is Standing Order 57. The first may be read in a resolution of
the Commons of 1678, 9 Com. J. 509. But the real basis of both is
of course unwritten ; and, what is not the same thing but more important,
neither rule is in England a ' law ' in the sense that an English court
would recognize its validity, whereas in Canada both rules are ' laws ' in
the strictest sense.
- The Standing Order of the imperial Parliament was agreed to in
1707. See Anson, L. and C, vol. i. p. 257. The Canadian Standing Order
is No. 88. Cf. Munro, Constitution of Canada, p. 153.
^ 63 & 64 Vict. c. 12.
* Clause 53 of the Constitution (which is set out in s. 9 of the Act).
^ Clause 56 of the Constitution.
^ Clause 53 of the Constitution. The clause does not prohibit the Senate
from rejecting a money Bill, though it was the exercise of this power
by the House of Lords in i860, which necessitated Mr. Gladstone's three
resolutions. The section concludes with a provision which has no
counterpart in English practice — that the Senate may at any stage return
a money Bill to the House of Representatives, with a request for omission
or amendment of any items or provisions therein.
' Clause 55 of the Constitution.
^ 15 & 16 Vict. c. 72, s. 54 ; cf. s. 25.
SELF-GOVERNING COLONIES 6l
of 1 855 ^ j while tlie Victorian Constitution, similarly scheduled Ch. IV.
to an imperial Act which received the Royal Assent on the very
same day-, specifically incorporates three rules relating to
money Bills — the two just mentioned, and also the rule that
such Bills ' may be rejected but not altered by the CouneiP^.
But perhaps the Colonial Constitution which most openly
acknowledges the desire to incorporate the unwritten rules of
"Westminster as to Money Bills into its enacted code, is the
Cape Colony Constitution Ordinance of 1853 ^ which, besides
requiring the i*ecommendation of the Governor for such legis-
lation ^, describes the Bills which must originate in the House
of Assembly as ' of such a nature that if bills similar to them
should be proposed to the Imperial Parliament of Great
Britain and Ireland such bills would, hy the laio and custom of
Farliamenf, he required to orirjinate in the House of Commons' ^ .
Another instructive set of instances of the inclusion of our (2) Statu-
un written constitutional understandings in written instru- ^IJ^^ ^^ '^^'
ments of constitutional law for the colonies is furnished by position
*' orexecu-
an occasional reference to the Executive in these documents, tive.
In England the position of the Executive is hardly defined by
statute at all, and, as has been above pointed out, even the
framers of colonial constitutions have not attempted to reduce
to writing the real relations of executive to legislature. Yet
' 18 & 19 Vict. c. 54* Sclied. I. The rules are in clauses i and 54 of the
Constitution. The reference in the former to ' the limitation contained
in clause sixty-two ' is apparently intended as a reference to the latter.
The same two rules are enacted in the Western Austi-alian Constitution,
ss. 66 and 67, scheduled to 53 & 54 Vict. c. 26, and in the Queensland Act,
No. 38 of 31 Vict., ss. 2 and 18.
* 18 & 19 Vict. c. 55, Schcd. I. These three iiilcs also appear in the
Natal Constitution Act, No. 14 of 1893, ss. 48 to 50.
^ Clauses 56 and 57.
* Scheduled to Order in Council of March 11, 1853.
5 Sect. 80.
' Sect. 88. The section concludes witli a proviso giving the Legislative
Council and the Governor full power to amend a money Bill and to
return the Bill so amended for reconsideration. This departure from
English practice is apparently to be explained (like the milder proviso in
the Commonwealth of Australia Constitution, s. 53) by the fact that the
Upper House is elective.
62 BRITISH RULE AND JURISDICTION
Ch. IV. a comparison of the instruments of constitution of the self-
governing colonies, in order of date, shows that during the last
half-century the tendency has been growing to express in the
form of written law some part at any rate of the administrative
understandings on which responsible government is based.
In the earlier instruments there is nothing whatever to sug-
gest that colonial Ministers of State should not hold office
during good behaviour ^, or indeed that the administration of
government is to be conducted on the advice of parliamentary
chiefs at all. Thus the New Zealand Constitution of 1852
concerns itself solely with legislative and judicial organization :
the relations between legislature and executive are not even
faintly indicated, and cabinet government is as much outside
the law as it is in England itself ^. The two instruments of
constitution which date from 1855, those of New South
Wales and Victoria^, contain the first inkling of a parlia-
mentary executive in a phrase common to both, and referring
to ' the appointments of the officers liable to retire from office
on iwlitlcal g)-02mds.' In 1867 Parliament inserted into the
British North America Act, by way of partial fulfilment of
the recital that it was expedient to declare ' the nature of the
executive government/ the provision^ that there should be
* In October, 1839, Lord John Russell found it necessary, in a dispatch
to Mr. Poulett Thomson (House of Commons Sessional Paper, No. 621 of
1848), to explain that for the future Canadian administrators would not
hold ofiice during good behaviour, but would be liable to be called on to
retire whenever motives of policy rendered it expedient.
^ 15 & 16 Vict. c. 72. When the General Assembly first met in 1854
a deadlock resulted, as the ofiSce-holders of the old regime were determined
to remain as the Executive. Finally it was resolved to apply for an English
Act to establish responsible government, but the Colonial Office intimated
that no enactment was necessary, as the practice rested upon usage.
Consequently, after another general election, the New Zealand legislature
in 1856 passed a Pensions Bill for the benefit of existing ministers, and
ministerial responsibility then began. Cf. Coghlan, Seven Colonies of
Australasia, 1899-1900, p. 199. The Executive Council is constituted
under Letters Patent to the Governor, dated February 22, 1879.
^ 18 & 19 Vict. cc. 54 and 55. The phrase referred to occurs in s. 37
of the respective scheduled constitutions. Cf. Anson, L. and C, vol. ii,
p. 270.
* 30 Vict. c. 3, s. II. Professor Dicey has pointed out that there is in
SELF-GOVERNING COLONIES 63
' a Council to aid and advise in tlie Government of Canada/ to Ch. IV.
be styled the ' Queen's Privy Council for Canada/ and that
its members should be appointed and might be removed by the
Governor- General. The word ' cabinet ' does not appear,
though the term is commonly applied to the body of acting
ministers. In 1872 the legislature of the Cape Colony
passed a 'Constitution Ordinance Amendment Act \' which
recited as its object ''the introduction of the system of
executive administration, commonly called Responsible
Government/ but the Act leaves the essence of that system
to be understood, and contents itself with providing that the
five chiefs of departments mai/ ^ be members of the legislature,
and that the existing administrative heads when they retire
from office ' on political grounds ' shall be pensioned. The
AVestern Australia Constitution Act, 1890, goes a step further,
for besides providing that the ' five principal executive offices
of the Government liable to be vacated on political grounds '
may be held by members of the legislature, it expressly enacts
that one of the five ' shall always be held by a member of the
Legislative Council ^.' Three years later ' may ' has changed
to 'must,^and the Natal Constitution Act of 1893* enacts
that ' every minister shall be, or shall within four months
from the date of his appointment become, a member of the
Legislative Council or of the Legislative Assembly, but not
more than two Ministers may be members of the Legislative
Council.' The example of putting down in black and white
the rule that ministers must sit in Parliament is followed in the
Constitution of the Australian Commonwealth, which provides
federal constitutions a tendency to define the division of powers even
beyond what federalism necessitates {Laio of the Constitution, p. 142). It is
all the more remarkable, therefore, that so little is thought sufficient
here.
' No. I of 1872.
' Sect. 3. Similarly in 1884 the Queensland legislature was content
to enact the eligibility of ministers (No. 29 of 48 Vict. s. i).
' Sect. 6 of the Constitution Act, which is scheduled to 53 & 54 Vict.
c. 26 ; cf. also s. 28.
* No. 14 of 1893, s, 9.
64 BRITISH RULE AND JURISDICTION
.Ch. IV. for ' a Federal Executive Council to advise the Governor-
General in the government of the Commonwealth/ and enacts
that ' the members of the Council shall be chosen and sum-
moned by the Governor-General and sworn as Executive Coun-
cillors, and shall hold office during his pleasure ^.' Moreover,
the officers appointed by the Governor- General to administer
during his pleasure the departments of State ' shall be members
of the Federal Executive Council, and shall be the Queen^s
Ministers of State for the Commonwealth. After the first
general election no Minister of State shall hold office for a
longer period than three months unless he is or becomes a senator
or a member of the House of Representatives^' Thus at last
the constitutional understanding which associates political office
with membership of Parliament ^ has become enshrined in the
enacted law of a colonial constitution. But the selection and
function of a premier, the collective responsibility of a cabinet,
the merely nominal activity of ex-cabinet ministers in the
executive council, and the dependence of the administration
on a majority in the legislature — all these are as far from
finding expression even in the latest of colonial constitutions
as in the Bill of Bights or the Act of Settlement.
One colonial legislature has indeed gone further in the
direction of expressing the truth that departmental chiefs
must resign their positions if they have not a majority of the
legislature behind them. This is the legislature of South
Australia, a colony whose constitutional enactments are espe-
cially well worth study for the sake of their boldness and
ingenuity in other respects *. The South Australian Con-
^ Clause 62. - Clause 64.
^ This constitutional understanding has occasionally suffered a tem-
porary breach in England. From December, 1845, to July, 1846, Mr. Glad-
stone was Seci'etary for the Colonies without a seat in the House of
Commons ; Mr. Goschen became Chancellor of the Exchequer in January,
1887, but did not succeed in getting returned to Parliament till February;
and Mr. Horace Plunkett, though losing his seat in the General Election
of September, 1900, still (Jan. 1902) holds the office of President of the
Irish Department of Agriculture.
e.g. see s. 16 of South Australia Act, No. 236 of 1881, providing alter-
1
SELF-GOVERNING COLONIES 65
stitution Act o£ 1 855-6 not only requires the five Ministers Ch. IV.
of State to be members of Parliament, and makes them
ex-ofiicio members of the Executive Council^ (in fact, of course,
they are the only effective members of that. body), but openly
admits the fact that they are ' liable to loss of office by reason
of their inability to become members of the said Parliament
or to command the support of a maprity of the memhers thereof
or upon other grounds without any misconduct or incapacity ' ^,
and therefore provides for a retiring allowance to existing
chiefs of departments, who entered on their offices with no
fears of the fickleness of the legislature.
The result is that the nature and functions of the execu- The execu-
tive in a self-governing colony are, for the most part, but not geif.
so completely as in England, based on a mere constitutional governing
^ o ' colonies.
understanding, the observance of which a parliamentary
majority can always enforce. In essentials the parallel be-
tween such a colonial Executive and the Executive at home
is as complete as the difference between imperial and colonial
government allows. But there are variations of detail. Thus,
the governor presides over formal meetings of the executive
council in a self-governing colony, whereas the Sovereign has
not been present at deliberations of an English Cabinet since
the death of Anne. Again, the cabinet and the ministry in
most of the self-governing colonies are coterminous, though
in some, as in Canada, subordinate ministers, such as the
soHcitor-general, are commonly members of the administration
without being members of the cabinet. On a change of govern-
ment, members of the superseded cabinet in some colonies
remain part of the executive council and retain their title of
' Honourable ' — just as ex-Cabinet Ministers continue to be
Privy Councillors in England — but of course they take no
effective share in the counsels of the new administration.
native methods for dealing with a deadlock between the two Chambers
of the legislature.
* Sect. 32 of No. 2 of 1855-6 of the colony.
* Sect. 39.
JENKYNS F
66
BRITISH RULE AND JURISDICTION
The legis
lature in
self-
governinj
colonies.
(i) The
upper
house.
Ch. rv. Colonial constitutions not infrequently declare the number of
ministers who may remain members of parliament ^, and thus
in effect fix the size of the cabinet.
A reference to Appendix I will show that the legislatures
of the self-governing colonies which are there analysed, all
follow the imperial pattern in consisting of two houses, though
of the seven provinces of Canada, Quebec and Nova Scotia
alone preserve an upper chamber. In the federal legislatures
of Canada and Australia, the upper house is called a Senate :
in the unitary legislatures it is called a Legislative Council.
In Canada, New South Wales, and Queensland, it consists
of members nominated for life by the governor on the advice
of his ministry. In Newfoundland legislative councillors
are appointed for life by the Crown under the sign manual
and signet. In New Zealand and Natal the members of
the legislative council are nominated for a term of years.
In the other self-governing colonies they are elected : in
Victoria, Western Australia, Tasmania, and the Common-
wealth of Australia for six years, in the Cape Colony for
seven, and in South Australia for nine ^. In nearly all
cases the size of the upper chamber, even when a nomi-
nated body, is precisely defined by legislation; but where
it is not (as in New South Wales, where a minimum limit
of twenty-one is the only restriction imposed) the Govern-
ment of the day might be tempted to swamp opposition in the
' Cf. s. 3 of Law No. i of 1872 of Cape Colony ; s. 8 of Law No. 14 of
1893 of Natal ; s. 32 of No. 2 of 1855-6 of South Australia.
^ In South Australia the governor's power of dissolving the house of
assembly 'whenever he may deem it expedient' does not extend to
the legislative council (s. 2 of No, 2 of 1855-6), which therefore has a
continuous existence, one-third of its members surrendering their places
to newly elected substitutes every three years. The only case in which
the legislative council can be dissolved arises, after a deadlock between
the houses, imder s. 16 of Act 236 of 1881. A similar arrangement has
been adopted in the Australian Commonwealth. See below, p. 87. The
governor has no power to dissolve the council in Victoria. In the Cape
he can dissolve both houses together, or he may dissolve the assembly
without the council. (Const. Ordinance of 1852, s. 74 ; cf. Law No. 9 of
1897.)
SELF-GOVERNING COLONIES 67
non-elective liouseby the sudden creation of additional members, Ch. IV.
as was done in England in 1712, and threatened in 1832.
This method was on one occasion adopted in New South
Wales, during one of the premierships of Sir Charles Cowper,
but the home authorities rebuked the governor, Sir John
Young, for lending himself to the scheme, and the principle
was laid down that the number of legislative councillors
should be limited to what is convenient, and ' that no nomina-
tions should ever be made merely for the purpose of strengthen-
ing the party which happens to be in power' ^.
The lower house in all the self-ffoverning- colonies is elected (2) The
. ? . lower
by the people upon a wide franchise, which gives a vote to house.
nearly every man, or rather to every white man ^. In South
Australia and New Zealand women vote as well as men, and
a Female Franchise Bill has also passed the lower house in
New South "Wales. Only in the Dominion of Canada has
the title of ' House of Commons ' been conferred on the
popular branch of the legislature; in New Zealand and in
the Australian Commonwealth it is called the ' House of
Representatives'; in Newfoundland, South Australia, Tas-
mania, and the Cape Colony the ' House of Assembly ' ; and
in the other self-governing colonies (as also in all the Canadian
provinces) the ' Legislative Assembly.' The duration of the
lower house varies in different colonies from five to three
years, and it is noteworthy that although recent colonial
legislation shows a tendency to shorten the period, 'annual
Parliaments ' have in no case been established. Amon^
"a
^ Return from New South Wales at p. 43 oi Pari. P., i88g, No, 70.
^ In New Zealand the legislative council includes two members of the
aboriginal native race, and there are four Maori electoral districts each
returning one member to the house of representatives. In the Cape
Colony the franchise is, nominally, open to men of all colours possessing
the necessary qualifications, but persons whose only qualification is a
share in tribal occupancy are excluded from voting (No. 41 of 1887), and
the Ballot and Franchise Act, 1892 requires every voter to sign his namo
and write his address and occupation. In Canada there is a special
franchise for Indians. In Western Australia aboriginal natives of
Australia, Asia, or Africa, can only vote in respect of a freehold qualifica-
tion (57 Vict. No. 14, 88. 13, 21).
F 2
68 BRITISH RULE AND JURISDICTION
Ch. IV. other points of difference between the legislatures of the self-
governing colonies and their prototype at Westminster, the
following may be noted : —
Differ- h) Members of a colonial lower house are, in every case
ences
between except one ^, paid from public funds. In several of the
Parfia-'^ colonies ^ members of the upper house are also paid.
ment and f^) Some of the colonies ^ have adopted the continental
legisla- ^ ' _ _ _ _ ^
tures of plan of giving ministers audience in both houses, though
S6lf-
governin<» they only vote in the house to which they belong.
colonies. ^^^ rpj^^ special rules as to money Bills, which in Eng-
land are at best mere conventions, reappear, more or less
exhaustively, in the colonies as a part of their statute
law*.
(4) The rule that Parliament shall meet every year — the
observance of which, in England, is secured only by the
necessity of appropriating supplies and of providing for the
discipline of the army annually — is reduced to writing, and
usually appears as one of the clauses of the instrument of
constitution in the self-governing colonies ^.
(5) It is commonly provided in colonial constitutions that
a member of the legislature vacates his seat by prolonged
absence. Failure of attendance for one whole session is the
usual disqualifying period ^.
^ In Western Australia the members of both houses sei-ve gratui-
tously. In Natal members are not paid a salary, but those residing
more than two miles fi-om the seat of government receive £1 a day
as travelling allowance ; cf. the provisions of the Caj)e Act No. 16 of
1888.
" Members of the upper house are not paid in Queensland, Victoria,
N. S. Wales, and Western Australia.
* e. g. Natal, the Cape Colony. A Bill for this purpose is now under
consideration in South Australia.
* supra, p. 60.
* e.g. s. 77 of the Constitution Ordinance of 1852 runs: 'And be it
enacted that there shall be a session of the Parliament of the Cape of
Good Hope once at least in every year, so that a period of twelve calendar
months shall not intervene between the last sitting of the said Parliament
in one session and its first sitting at next session.' Believers in an
unwx'itten constitution will not fail to note that this explicit provision
did not prevent a breach in 190T.
* In South Australia a member loses his seat by absence for two con-
SELF-GOVERNING COLONIES 69
(6) A colonial member, unlike a member at Westminster, Ch. IV.
can resign his seat by written notice, without having" recourse
to our antiquated method of nominal appointment to disquali-
fying office.
(7) Ministers are not in some colonies required to submit
themselves for re-election upon their acceptance of office.
The sphere of a self-governing colony's legislative activity Limits to
is limited by two considerations : first, by the restriction la^ve^^^'
imposed by its instrument of constitution, which defines the Power of
self-
power thereby conferred as a power to ' make laws for the governing
peace, order, and good government of the colony '' ; secondly^
by the superior authority of imperial legislation extending to
the colony. In other words, an enactment of a colonial legis-
lature may be treated, even by the courts of the colony, as of
no effect either because it is beyond the competence of the
legislature to enact, or because, though within the competence
of that legislature, it is repugnant to an imperial statute
which ajiplies to the colony. These two limitations to the
effectiveness of colonial enactments must now be considered
in detail.
The power to make laws for the ^ peace, order, and good (i) Colo-
government of the colony ' confines colonial legislation to lat'iou °^^*
the territorial limits of the colony. Colonial legislatures are {f "^* ^^*
* local and territorial legislatures ' not merely in the sense in territorial,
which every legislature is practically limited by the impossi-
bility of making its legislation effective in alien jurisdictions,
but in the sense that even within their own jurisdiction the
municipal courts of a colony treat its extra-territorial legisla-
tion as a nullity \ An English court treats every Act of
Parliament, whatever its scope, as valid ; the rules limiting
its application to England, to the United Kingdom, or to
sccutive months of a session, without tho leave of the house to which he
belongs (ss. 12, 25 of No. 2 of 1885-6), This rule has been adopted in the
Australian Commonwealth (cc. 20, 38 of the Constitution, 63 & 64 Vict,
c. 12, s. 9).
' Cf. Harrison Moore on 'The Sources of the Laws of the Colonies' in
Jaurnal o/Soc. of Comp. Leg,, Aug. 1900.
70 BRITISH RULE AND JURISDICTION
Ch. IV. British territory ^, are mere prima facie rules of interpreta-
tion ; only foreign courts can disregard (in virtue of inter-
national principles) the enactment of a sovereign law-making
body, on the ground that it professes to be in force where the
law-maker cannot enforce it. But a colonial court does not
hesitate to disregard colonial acts, if it considers that they
are tilira vires because extra-territorial. Thus, in 1879, the
Supreme Court of New Zealand held that the Foreign
Offenders Apprehension Act, 1863, of that colony, which
authorizes the deportation of persons charged with indictable
misdemeanours in other colonies, was beyond the competence
of the New Zealand legislature, for it involved detention on
the high seas, which the legislature could not authorize, as it
could legislate only for peace, order, and good government
within the limits of the colony ^.
While this is the general limitation set to the powers of
colonial legislatures, imperial Acts have in exceptional cases
conferred an extended power of legislation. Sometimes the
imperial Act authorizes a colonial legislature to make laws on
a specified subject with extra-territorial operation ^ ; sometimes
an act of the colonial legislature is given (usually by Order in
Council, authorized by imperial statute) the force of law
throughout British dominions*.
Questions might be raised as to whether, apart from im-
perial statutes extending to the colony, there are not restric-
tions on the power of a ( olonial legislature to enact within
territorial limits what laws it pleases. It might be contended
that there are some subjects of internal legislation which,
though clearly not extra-territorial, are yet so far matters of
imperial concern that a colonial legislature has no power to
deal with them ^. Previous to 10 & 11 Vict. c. 83, colonial
legislation for the naturalization of aliens was sometimes so
* See iJegr. v. Jameson [1896], 2 Q. B. 425, per Lord Eussell, L.C.J., at
p. 430, and Ilbert, op. cit., pp. 406-8.
2 In re Gleich, Ollivier Bell and Fitzgerald's N. Z. Reports, S. C, p. 39.
^ e. g. Merchant Shipping Act, 1894, ss. 478, 736.
* e, g. 28 & 29 Vict. c. 64. ^ Cf. Harrison Moore, op. cit.
SELF-GOVERNING COLONIES 7I
regarded. Finance and shipping are other subjects which Ch. IV.
have raised this difficulty ; the former because it used to be
supposed that imperial fiscal policy was of paramount obliga-
tion^ the latter because it threatened to overstep territorial
limits. But a broader view of the powers of colonial self-
government combined with the conferment of special powers
of legislation have probably met, or might be made to meet,
all the cases that are likely to arise. Were a colonial legis-
lature to raise the question by passing a Bill dealing with such
subjects, even if the Bill were not vetoed or disallowed the
practical difficulty would probably be met by an overriding
imperial statute. It is easy, however, to imagine a case which
would raise difficult questions of theory ; e. g. would it be
beyond the powers of a colonial legislature to enact that
within the limits of the colony the subjects of a foreign power
with whom this country was at war should not be treated as
alien enemies ?
The second condition to be fulfilled by every colonial law (2) Colo-
before it can have any effective operation is that it should not lation
be ' repugnant to the laws of England.'' In most cases this jj^"^* ^°*
condition is left to be understood, but in the instruments of nant.
constitution of some of the colonies ^ it is expressly laid down.
The meaning of ' repugnancy ■* has been much discussed ; the
view which finally prevailed is embodied in 'an Act to remove
doubts as to the validity of colonial laws,^ known as the
Colonial Laws Validity Act, 1865 ^.
This view is that a colonial law is void for repugnancy Meaning
only if it conflicts with an ' Act of Parliament extending to nant.'
the colony,' i. e. an Act by which Parliament intends to bind
the colony. A colonial legislature has therefore full power
to alter what is sometimes termed the ' common law of the
colony ' — an expression which in ' settled ' colonies includes
the whole law of England, statute law as well as common
' e. g. New Zoalan'l. See the proviso at the end of s. 53 of 15 & 16 Vict.
c, 72. Cf. 5 & 6 Vict. c. 76, s. 29, and 13 & 14 Vict. c. 59, s. 14.
'•' 28 & 29 Vict. c. 63. Tho Act is set out in full in Appendix V.
JW
72 BRITISH RULE AND JURISDICTION
Ch. IV. law, so far as applicable to the colony at the date of settle-
ment ^. It is not, therefore, a complete statement to say that
a colonial legislature ' may make laws opposed to the English
common law ^ ', for it may also make laws opposed to an Eng-
lish statute which, in the absence of such colonial legislation,
would be in operation in the colony, not because made appli-
cable to the colony, but merely as part of its ' common law.'
For instance, the Caroline Statutes of Distribution, governing
the descent on intestacy of personal property, operate in the
Australian colonies ^ save so far as they may be varied by
colonial Acts.
In practice the conflict between colonial and imperial law,
on the ground of the f ormer^s repugnancy to the latter, rarely
arises *, because where it is threatened either the colonial Bill
is disallowed, or, if the imperial Government is willing to
make the colonial law effective, they procure for it the
sanction of an imperial Act.
Powers of The powers of internal legislation which have been de-
tures of scribed include, with certain exceptions now to be noted, the
^®^^" . power of constitutional change. Professor Dicey has ex-
governing ' o J
colonies pressed this feature by saying that colonial parliaments,
changes though non-sovereign, are commonly both legislative and
^ onsUtu- ' constituent ' assembhes ^. This power to vary the provi-
tion. sions of the instruments of constitution by which they are
created appears in different forms and subject to different
conditions in the early statutes setting up the various colonial
legislatures ^. But these detailed regulations are largely
^ See p. 5, supra. ^ Dicey, Law of the Constitution, p. loi.
3 All the Australian colonies are ' settled.' See Cooper v. Stuart, L. R.
14 A. C. 286, especially at p. 291.
* For a case where it was discussed, see RoUnson v. Reynolds, Macassey's
N.Z. Eeports, p. 562, where a New Zealand court laid it down that
a statute of the General Assembly is not void for repugnancy to the law
of England unless it is opposed to some Act of the imperial Parliament
made expressly binding upon and applicable to the colony.
' Dicey, L. C. p. 104. Cf. Bryce's Studies in History and Jurisprudence, ii.
p. 199.
See Appendix VIII : ' Early Constitutional Histoiy of the Australian
Colonies.'
SELF-GOVERNING COLONIES 73
superseded by an enactment of general application con- Ch. IV.
tained in sect. 5 of the Colonial Laws Validity Act,
1865':-
' Every colonial legislature shall have, and be deemed
at all times to have had, full power within its jurisdic-
tion to establish Courts of Judicature, and to abolish
and reconstitute the same, and to alter the constitution
thereof, and to make provision for the administration
of justice therein ; and eve7y representalive leffisiaiure '
(i.e. by sect, i, every colonial legislature which com-
prises a legislative body of which one-half are elected
by the inhabitants of the colony) ' shall in reqied of the
Colony have, and he deemed at all times to have had, full
2)otcer to make laws respecting the constitution^ powers, and
jnocedure of such legislature, provided that such laws
shall have been passed in such manner and form as may
from time to time be required by any Act of Parliament,
letters patent, order in council, or colonial law for the
time being in force in the said Colony.'
The proviso appears to mean that if any Act, imperial or Powers of
colonial, requires Bills varying the constitution of a colonial tional
legislature to be specially reserved for the Royal Assent, or to f^^P ^"
be passed by any particular majority, such requirements must tralian
still be observed; but that if no such requirements exist, a
colonial legislature may alter its constitution by ordinary
enactment.
Thus, the New South Wales legislature may 'alter the
provisions or laws for the time being in force . . . concerning
the Legislative Council,' provided that every such Bill * shall
be reserved for the signification of Her Majesty's pleasure
thereon, and a copy of such Bill shall be laid before both
houses of the imperial Parliament for the period of thirty
days at the least before Her Majesty's pleasure thereon shall
be signified ^.'
* 28 & 29 Vict. c. 63.
' S. 36 of the Constitutional Act, scheduled to 18 & 19 Vict. c. 54. The
74
BRITISH RULE AND JURISDICTION
Ch. IV.
Power of
consti-
tutional
change
in New
Zealand ;
The Victorian legislature may modify the constitution of
either house (or the official salaries and pensions included in
Schedule D of the Constitution Act) only by Bill which (i)
passes its second and third readings in both houses by an
absolute majority in each, and (a) is then reserved for the
royal pleasure ^.
This requirement of absolute majorities for any Bill
effecting a change in the legislature also obtains in Western
Australia 2.
In South Australia, Bills which alter the constitution of
legislative council or house of assembly must be passed by
an absolute majority in both houses and reserved ^.
In Queensland^ the constitution of the legislative as-
sembly may be varied by ordinary Bill ; but any alteration
in the legislative council must be by a Bill which passes
its second and third readings in both houses by a two-tJiirds
majority, and the Bill must be reserved and laid on the table
of the House of Commons for thirty days *.
In Tasmania, Newfoundland, the Cape Colony, and Natal
there appear to be no special statutory conditions for Bills
involving constitutional change.
New Zealand stands in a curious position. The Constitu-
tion Act of 1853^ requires the reservation of Bills altering its
provisions concerning elections, the salary of the governor,
provincial councils, and certain other matters. But section 2
of 20 & 21 Vict. c. ^^ empowers the General Assembly of
New Zealand ' to alter, suspend, or repeal all or any of the
provisions of the said Act ^ (viz. the Constitution of 185a}
^ except such as are hereinafter specified ' ; and then follows
a list of the provisions of the Constitution Act which the
requirement of unusual majorities in this section and in s. 15 has been
repealed by a New South Wales statute of 1857 (20 Vict. No. 10).
^ S. 60 of the Constitution Act, scheduled to 18 & 19 Vict. c. 55.
* S. 73 of the Constitution, scheduled to 53 & 54 Vict. c. 26.
^ S. 34 of South Australia Act No. 2 of 1855-6.
* Constitution Act of 1867, 31 Vict. No. 38 of the colony, ss. 9 and 10.
^ 15 & 16 Vict. c. 72.
SELF-GOVERNING COLONIES 75
New Zealand Legislature cannot alter. Included in these Ch. IV.
unalterable provisions are the section declaring the New
Zealand Parliament to be bi-cameral ^, and the sections pre-
scribing the form of oath or affirmation to be taken by
members 2. The question therefore arises, whether the Colo-
nial Laws Validity Act (which is subsequent in date to 20 &
21 Viet. c. ^-^ gives to the New Zealand Legislature the
power to amend its constitution in those particulars which
the Act of 1857 declares to be beyond its power to change.
It is submitted that it does not. The Colonial Laws Validity
Act is an Act to remove doubts, not to make changes, and it
follows that there are some things in the New Zealand Con-
stitution of 1852 which the General Assembly cannot alter
at all ', others which it can alter only by reserved Bill ; and
yet others which it may alter by ordinary enactment.
The two federations of Canada and Australia are also in
imaffected by section 5 of the Colonial Laws Validity Act, '
although both are self-governing colonies in the sense of
58 & 59 Vict. c. 34 ^ The powers of the Dominion Parlia-
ment to amend the constitution are limited to changes of
small importance : it can only (i) vary the qiiorum for the
senate ^ ; (2) regulate electoral machinery ^ ; (3) vary the
franchise*'; (4) vary provisions to meet the case of the
Speaker's absence ''; (5) increase the number of members,
but only if the proportionate representation of the provinces
is preserved - ; (6) fix judicial salaries ^ ; (7) establish a general
court of appeal and additional courts ^"; (8) alter the salary of
the governor-general^^; and (9) establish a new province in
any territories of the dominion not included in an existing
province ^". In fact, the provincial legislatures have within
their limits a greater power of constitutional change than the
* S. 32 of 15 & 16 Vict. c. 72. ^ Ss. 46 and 47.
= Cf. 63& 64 Vict. c. 2, s. 8.
* 30 Vict. c. 3, s. 35 ; but not for the House of Commons, s. 48.
"8.40. 68.41. '8.47.
« S. 52. » 8. 100. »» 8. loi.
" 8. 10 '^ 34 Vict. c. 28, s. 2.
76 BRITISH RULE AND JURISDICTION
Ch. IV. Dominion Parliament. To alter the senate, to alter the seat
of government, to abolish either house, to alter the propor-
tionate representation o£ the provinces, an imperial Act would
be necessary. On the other hand, the provincial legislatures
can amend the constitution of the province, except as regards
the office of lieutenant-governor ^.
and in the Clause 128 o£ the constitution of the Australian Common-
Common- wealth^ prescribes the mode in which that constitution can
wealth. i^Q altered. Any Bill which provides for such alteration must
first pass in each house by an absolute majority, and must
secondly be submitted, not less than two nor more than six
months afterwards, to the electors in each state who are
qualified to vote for the house of representatives. Its fate
then depends on the result of this referendum.
It will be noticed that the power of constitutional change
conferred on representative legislatures by section 5 of the
Colonial Laws Validity Act is a power to make laws respect-
ing the constitution, powers, and procedure of the legislature.
An earlier part of the same section confers not only on every
representative legislature, but on all colonial legislatures, a
retrospective power to alter the constitution of the colonial
Can judiciary. But a power to vary the constitution of the
legisla^ colonial executive is neither explicitly created nor explicitly
tures vary limited or taken away. Such an omission is characteristic
tneconsti- ^ "^
tution of the prominence given to the legislature as distinguished
executive? fi'oni the administration in British instruments of constitu-
tion. They set forth the rej)resentative system explicitly
and in detail, but they leave the position and powers of
responsible ministers to be determined by constitutional
usage. It is obvious that there are some matters of ad-
ministration, e.g. the position of the governor, which, though
arising wholly within the colony, are beyond the power of
the colonial legislature to affect ; but it is not altogether easy
to draw the line which bounds the right of the colonial legis-
lature to affect the exercise of the prerogative of the Crown
'■ 30 Vict. c. 3, s. 92. 2 63 & 64 Vict. c. 12, s. 9.
SELF-GOVERNING COLONIES 77
within the colony. For instance, could such a legislature Ch. IV.
enact that a colonial bishopric should be filled only by colonial-
bom clerg-jTnen? Or that the governor should exercise his
power of pardon only in accordance with a popular plebiscite ?
Such h}'pothetical enactments cannot be said to be extra-
territorial, and there can be no question that the imperial
Parliament could make them.
In nearly all the self-governing colonies laws purport to be The posi-
made, not by the governor, but by the Crown ^, ' by and with the Crown
the advice and consent ■" of the two houses. But in New ]^ colonial
legisla-
Zealand Acts are expressed to be made ' by the General tion.
Assembly of New Zealand in Parliament assembled,' and
Newfoundland statutes are passed 'by the Governor, the
Legislative Council, and the House of Assembly in legisla-
tive session convened.^
A Bill after it has passed the two houses is, it is true,
presented to the governor of the colony, but it is so presented
for His Majesty's assent. Three courses are then open to the
governor : —
(i) He may assent to the Bill in His Majesty's name. In The
this case the Bill (unless it contains a suspending clause re- f sJeut*^^
quiring the special confirmation of the Crown) becomes law
from the date of his signification of assent, or from the date
of commencement specified in the Bill itself. It is the duty,
however, of the governor to transmit to the Colonial Office
a copy of the Act in order that the Crown may have an
opportunity of exercising its power of disallowance. The
instruments of constitution of some colonies prescribe that
this power of disallowance, if exercised at all, must be exer-
cised within two years ^. The Crown's disallowance takes
^ The enactments of some of the Canadian provinces, however (like the
ordinances of colonies without representative assemblies), are not pro-
faced with the name of the King. In Nova Scotia statutes are expressed
to be made by the lieutenant-governor, council, and assembly ; and in
New Brunswick, Prince Edward Island, and North-West Territories by the
lieutenant-governor and assembly. On the other hand, in Ontario,
Quebec, Manitoba, and British Columbia the regular form is adopted.
^ c. g. Canada (30 Vict. c. 3, s. 57).
78
BRITISH RULE AND JURISDICTION
Ch. IV.
The
governor's
veto.
Reserva-
tion.
Reserva-
tion and
disallovr-
ance con-
trasted.
the form of an Order in Council, and is signified by the
governor in speech or message to the legislature, or by
other official notification, and the Act becomes void from
that time forward.
(2) He may withhold His Majesty's assent, i. e. veto the
Bill in His Majesty's name. The Bill is then as absolutely
lost as would be a Bill of the imperial Parliament, were the
Crown to exercise its obsolete power of veto over imperial
legislation. The governor's veto is exercised, like his power
of reservation, in accordance with instructions from home.
These instructions may be in general terms or in reference
to a particular measure; they may owe their origin to the
forethought and experience of the Colonial Office, or they
may be in answer to a request of the governor for advice
in view of apprehended damage to imperial interests. Failing
such instructions, the governor of a self-governing colony
now exercises his veto only on the advice of his ministers
and not according to his own personal discretion ^.
(3) He may reserve the Bill for the signification of His
Majesty's pleasure. Some Bills are so reserved in conse-
quence of provisions in instruments of constitution requiring
reservation for measures of their class ^ ; others in consequence
of a provision in the Bill itself; others in consequence of the
governor's instructions from home ^. A reserved Bill is of no
effect until the Crown assents to it. Such assent is by Order
in Council, and must be signified by the governor, in a manner
similar to that in which the Crown's disallowance is signified,
within two years from the day on which the Bill was presented
to the governor for His Majesty's assent.
It will be noticed that a reserved Bill to which the Crown
fails to assent within two years never has any legislative force
at all, whereas the disallowance of a measure to which the
governor has assented only operates' to deprive of further
* For a full discussion of the question, see chap. vi.
* See above, pp. 73, 74.
^ Cf. par. 10 of Old Instructions, and par. 8 of Present Instructions in
Appendix IV [New South Wales (iii) and (iv)].
SELF-GOVERNING COLONIES 79
effect an Act whicli is actually in force until disallowed. Ch. IV.
The two years' interval within which the Crown's assent to
reserved Bills must be signified is still invariably retained :
it is a survival from the old inile which was enacted for the
Australian colonies by the still existing imperial Act of 1842^.
The period seems absm*dly long in the case of Canada, though
not too long sixty years ago for communication with Australia.
On the other hand, the requirement that the Crown's prero-
gative of disallowance should be exercised within two years
only appears in the instruments of constitution of some of the
seK-governing colonies ; in others, no limit of time is imposed ;
while clause 59 of 'the Constitution of the Australian Com-
monwealth ^ provides that the Crown may disallow any law
within one year from the governor-general's assent.
The extent to which imperial control over colonial legis- Practical
lation, by way of governor's veto or subsequent disallow- imperial"
ance, is in fact exercised, is discussed elsewhere ^. On the one control
over
hand, so long as points of contact between imperial and colonial
colonial interests continue to arise, it is impossible for the ^Q^^
Crown's veto on colonial legislation to become a dead letter :
on the other hand, not only has a constitutional understanding
grown up as to the cases in which the wishes of colonial legis-
latures may be overruled, but these cases are becoming steadily
more rare. Two illustrations, separated by just half a cen-
tury, will show the narrowing of the field for imperial
interference. In 1849, ^^ ^^^ of the legislature of New
Brunswick granting a bounty for the cultivation of hemp
within the colony was made the text of a dispatch from the
Colonial Office to the lieutenant-governor, directing him in
future to veto such measures *. On the other hand, the
British Investors in New Zealand Government Securities Act,
1900^, contains a provision (section 5) which runs : —
' 5 & 6 Vict. c. 76. ^ 63 & 64 Vict. c. 12, s. 9.
= Cliap. vi ; cf. Dicey, X. C. p. iii ; Todd's Pari. Govt, in British Colonies,
pp. 130 seq.
* Grey on Colonial Policy, vol. i. p. 279.
* 64 Vict. No. 9 of New Zealand.
8o BRITISH RULE AND JURISDICTION
Ch. IV. ' If at any time hereafter any Act of the G-eneral As-
sembly is passed which in the opinion of the imperial
Government in any way injuriously affects the rights
or remedies of the holders of New Zealand Government
securities, or alters the terms of the contract under which
such securities were created or issued, t/ien. that Act may
properly he clisalloioecl hy Her Majesty?
Earl Grey would indeed have been astonished at a colonial
legislature attempting to prescribe in what circumstances the
Crown might exercise its power of disallowance. The truth
is that the home authorities will now interfere only in two
cases : (i) where, in the opinion of the law oflBcers of the
Crown, a colonial enactment is ultra vires; and (2) where,
if a colonial enactment stands, imperial interests would be
directly prejudiced. The section from the New Zealand
statute above quoted was inserted in return for an imperial
Act, authorizing English trustees to invest in colonial securi-
ties^, in order to preserve intact the rights of investors in
those securities ; but the provision is none the less significant
because it suggests the view that colonial consent is desirable
where imperial disallowance cannot be justified on either of
these two grounds.
Federa- The federal constitutions within the empire — the Dominion
within the of Canada and the Commonwealth of Australia^ — require in
empire, gome respects separate treatment. These two federations are
necessarily alike in exhibiting the essential characteristic
of federalism, viz. the distribution of powers between the
federal government and its constituent states; but if this
inevitable point of resemblance is set aside, the contrasts
between these two federations are more remarkable than the
similarities. Before attempting a comparison, each federation
will be considered separately.
^ The Colonial Stock Act, 1900 (63 & 64 Vict. e. 62), s. 2.
"^ In addition to these, the Leeward Islands form a federation of
non-self-governing colonies ; see below, chap, v, p. 97. The federation
of South Africa was provided for, but never carried out under an Act of
1877.
SELF-GOVERNING COLONIES 8l
In 1866, the colonies of Canada (consisting then of Uppei' Ch. IV.
and Lower Canada), New Brunswick, and Nova Scotia agreed
to a federal union ; and this agreement, which was carried into luinion of
effect by the imperial Act known as the British North ^'^'^^^'J-
America Act, 1867^, united these colonies into one colony,
under the name of Hhe Dominion of Canada,^ with four pro-
vinces. Upper Canada becoming the province of Ontario, and
Lower Canada the province of Quebec.
Provision was made for subsequently including Newfound-
land, Prince Edward Island, British Columbia, Rupert's Land,
and the North-Western Territory. Prince Edward Island and
British Columbia joined almost immediately, and became
separate provinces. Newfoundland has not joined. Out of
Rupert's Land and the North-Western Territory have been
formed the province of Manitoba, and various districts which
together form the North-Western Territories ^.
The Act expressly declares that the executive power and the
command of the naval and military forces are vested in the
Crown, and the executive government is to be carried on
through a governor-general on behalf of and in the name
of the Queen, but with the aid and advice of a Privy
Council.
The Privy Council consists not only of the cabinet ministers
in office but also of ex-cabinet ministers, who remain honorary
members of it. The Cabinet, in fact, is a committee of the
Privy Council, and powers given to the Governor-General in
Council are exercised by the governor-general acting with the
advice of his cabinet ministers.
The legislative power in tbe Dominion of Canada is given
to a Parliament, which is required to meet annually, and
consists of two houses, a Senate and a House of Commons.
The senators are nominated by the governor-general for
life, but must be selected from residents in the different
^ 30 & 31 Vict. o. 3.
^ All British possessions in North America, other than Nowfoundland,
■wore annexed to Canada l>y Order in Council of July 31, 1880, Stat. K. & 0.
Rev. vol. viii. p. 408.
JENKYNS G
82 BRITISH RULE AND JURISDICTION
€h. IV. provinces, so that Ontario and Quebec shall be each repre-
sented by twenty-four senators; and in Quebec one senator
mentof niust reside in each electoral division, while the maritime
Canada, provinces, i. e. Nova Scotia, New Brunswick, and Prince
Edward Island, are represented by twenty-four senators, ten
for Nova Scotia, ten for New Brunswick, and four for Prince
Edward Island.
The number of senators to represent any new provinces
depends upon the terms of admission, which are settled by an
address of the houses of the Parliament of Canada, approved
by the Crown, and carried into effect by order of the Sovereign
in Council. But the maximum of senators cannot, unless
upon the admission of Newfoundland, be increased above
seventy-two, except by the admission of extraordinary mem-
bers. On the recommendation of the governor-general the
Crown may add either three or six extraordinary members to
the Senate, but they must represent equally Ontario, Quebec,
and the maritime provinces.
The House of Commons is elected by the people in electoral
districts specified in the Act, and unalterable by the Parlia-
ment of Canada. The franchise and the qualification of the
members and the mode of election were made the same as
before 1867, but can be settled from time to time by the
Parliament of Canada. The franchise is a wide one.
The representation of the four provinces is to be readjusted
by the Parliament of Canada after the completion of each
decennial census, on the principle that Quebec is to have
sixty-five members, and the other provinces a number pro-
portionate to their population, and that the number of members
of each province is not to be reduced unless its proportion of
population is reduced by one-twentieth^.
The result of these provisions is that each province has
a fixed number of representatives in the Senate, but that the
representation in the House of Commons is in proj)ortion to
* This readjustment seems to imply a corresiDonding power to alter
the electoral districts.
SELF-GOVERNING COLONIES 83
population, the principle being thus similar to that of the ^h. rv.
United States Congress. Each House o£ Commons is to last
five years, unless sooner dissolved by the governor-general.
The Act of 1867 (ss. 91-5) distributes the powers between
the Parliament of Canada and the provincial legislatures ^, but
reserves to the former all powers not expressly given to the
latter, the reverse of the provision in the United States
constitution, and (as we shall see) in that of the Australian
Commonwealth.
In the Canadian provinces the executive power is vested in Govern-
a lieutenant-governor, appointed by the Governor-General provinces
in Council (i.e. by the central executive) and paid out of the"
funds of the central Government. He is aided by an execu-
tive council, consisting of certain ministers who are appointed
by him, but who in effect must have the confidence of the
legislative body. The number of these ministers is fixed in
the case of Ontario and Quebec by the British North America
Act of 1867, and in the case of Nova Scotia and New Bruns-
wick by the previous law, but is in every case alterable by
the provincial legislature.
The provincial legislature consists , of the lieutenant-
governor and house of elected representatives, called 'the
legislative assembly/ to which in Quebec and Nova Scotia
there is added a second house, called ' the legislative council,'
consisting of members appointed for life by the lieutenant-
governor, one of whom in Quebec is to represent each of the
twenty-four electoral divisions of Quebec existing in 1867.
The form of the enacting clause, as we have seen ^, varies.
In Ontario and Quebec the electoral divisions for the house
of assembly were fixed by the Act of 1867, but made alter-
able by the provincial legislature, with a restriction in the
case of Quebec as to the majority by which the Act is to be
passed. The franchise, the qualifications for members, and
the method of election to the house of assembly, until
' Set out in App. Ill, with an abstract of cases illustrating the effost
of the sections. - Supra, p. 77, note i.
G 2
84 BRITISH RULE AND JURISDICTION
Ch. IV. altered by the provincial legislature in eacli case, were to
continue the same as in the former colony of Canada ; but the
legislative assembly was to continue only for four years,
unless sooner dissolved.
The constitution of each of the provincial legislatures of
Nova Scotia and New Brunswick was left as before the Act,
until altered by that legislature.
Each provincial legislature, as respects taxes, money Bills,
and the assent to Bills, was placed in the same position as the
Parliament of Canada except in one important point. The
lieutenant-governor and not the Crown forms part of the
legislature, and the instructions of the lieutenant-governor,
subject to which he is to act, are given by the governor-
general, on the advice of his Canadian ministers, and not by
a Secretary of State on behalf of the King.
The disallowance also of a Bill passed by the provincial
legislature is by the governor-general, and such a Bill, if
reserved, is reserved for the signification of the pleasure of the
governor-general. The governor-general acts according to
the advice of the Canadian ministers, and consequently the
Home Government has no direct control over legislation by
the provincial legislatures in Canada.
Australian Proposals for the constitution of a central authority for
tion. tli6 Australian colonies were made by Lord Grey as long ago
as 1856, but the proposals then made were premature, and
met with no general support. The establishment of the
Dominion Parliament of Canada in 1867, suggested to
Sir Henry Parkes the expediency of following the Canadian
example, but the movement for federation still stagnated for
several years. An Australian conference, summoned at the
instance of Sir Henry Parkes in 1883, led to the passing by
the imperial Parliament of the Federal Council of Australasia
Act, 1885 ^ ; which authorized a federation of the Australasian
colonies, by creating a council of two membei's, subsequently
increased to five members, from each colony. This council
1 48 & 49 Viet. c. 60.
SELF-GOVERNING COLONIES 85
was given power to legislate on various subjects, such as the Ch. iv.
relations of the colonies with the Pacific Islands, fisheries in
Australasian waters beyond territorial limits, the enforcement
of civil and criminal process beyond the limits of each colony,
the extradition of offenders, and the custody of offenders on
board ships belonging to the colonial Governments beyond
territorial limits. The council could also legislate on any
matters referred to it by Order of the Queen in Council,
made on the request of the colonial legislatures. The legisla-
ture of any two or more colonies might also refer to the
council for legislation, questions of defence, quarantine,
patents, copyrights, bills of exchange, recognition of marriage
and divorce, naturalization, joint stock companies, and other
matters of general Australasian interest. But the legislation
on a subject so referred, was to extend only to the colonies
referring it, and such other colonies as might afterwards adopt
the legislation.
The council met on various occasions, but the several
colonies were not fully represented at the different meetings ;
the legislation passed was not extensive, and the scheme
cannot be considered to have been a success ^.
Negotiations for a closer union between the different
Australian colonies still '^'ent on, and a convention which
met at Sydney in 1 89 1 produced the draft of a Commonwealth
Bill, which became the basis of all subsequent discussions.
In 1895 the premiers of the Australian colonies agreed to
bring forward enabling Bills in their several parliaments for
providing a convention of delegates which should be instructed
and empowered to frame a constitution. This constitution,
after consideration by the several parliaments, and recon-
sideration by the convention, was finally [to be submitted to
the people of the several states under a general referendum.
In these circumstances, the Bill to constitute the Common-
wealth of Australia was formally framed by the convention
which sat in Adelaide in 1897, and in Sydney and Melbourne in
• See particulars in Colonial Office List under ' Victoria.'
86
BRITISH RULE AND JURISDICTION
Ch. IV.
The
Common-
wealth of
Australia
(Constitu-
tion) Act.
1898, was amended by the conference of premiers at Melbourne
in 1899, was adopted on a referendum to the electors of the
colonies of New South Wales^ Victoria, Queensland, South
Australia, and Tasmania, in 1899, and was in that year
transmitted to England on addresses to the Queen from
both houses of parliament in each of the five colonies,
praying- that it might be passed into law by the imperial
Parliament.
The Bill thus sent to England was introduced by Mr.
Chamberlain as a Bill to the imperial Parliament on May 14,
1900^5 and received the Royal Assent as an imperial Act on
July 9 of the same year ^.
The Act vests the legislative power of the commonwealth
in a federal parliament, consisting of the Crown, the senate,
and the house of representatives.
The senate consists of senators for each state, directly
chosen by the people of the state. There are six senators
for each of the original states, that is to say, for each of the
states which are part of the commonwealth at its establish-
ment. These numbers may be altered by federal legislation,
but equal representation of the several original states is to be
maintained, and no original state is to have less than six
senators. The senators hold office 'for six years.
The house of representatives is composed of members
directly chosen by the people of the commonwealth, and the
number of these members is to be, as nearly as practicable,
twice the number of the senators. The number of members
to be chosen in each state at the first election is fixed by the
Act, but may be altered for a subsequent election, according
to an ingenious system of calculation based on the principle
of making the number of members chosen in the several states
bear proportion to the respective numbers of their people.
' Mr. Chamberlain's speech on the introduction of the Bill gives
a succinct account of the circumstances which led to the preparation
and passing of the measure ; Hansard (Fourth Series), vol. Ixxxiii, p. 46.,
' Under the title of the Commonwealth of Australia (Constitution) Act
(63 & 64 Vict. c. 12).
SELF-GOVERNING COLONIES 87
The house of representatives sits for tliree years unless Ch. IV.
sooner dissolved. The qualifications of electors of senators
and of members of the house of representatives are to be the
same. Elaborate provision is made for the contingency of
disagreement between the senate and the house of repre-
sentatives. If, after certain other stages they fail to agree on
a proposed law, there is to be a joint sitting of the two houses,
and the law may be passed by an absolute majority of the total
number of the members of both houses.
The legislative powers of the parliament extend to the
making of laws for the peace, order, and good government
of the commonwealth, with respect to a long list of specified
subjects. The several states retain their powers of legislation ;
but if the law of a state is inconsistent with the law of the
commonwealth, the latter is to prevail, and the former is, to
the extent of the inconsistency, to be invalid.
The governor-general is the Sovereign's representative, and
is advised by a federal executive council. As representative
of the Crown, he has the command-in-chief of the naval and
military forces of the commonwealth.
There is a federal supreme court, which is to be called
' the High Court of Australia,' and consists of a chief justice
and so many other justices, not less than two, as the parlia-
ment prescribes. Justices of the high court are appointed
by the Governor-General in Council, and are not removable
except by the Governor-General in Council on an address
from both houses of parliament in the same session, praying
for such removal on the ground of proved misbehaviour or
incapacity.
Provisions are made for the relations of the commonwealth
to the several states in matters of finance and trade, and in
particular for the imposition of uniform duties of customs
throughout the commonwealth within two years after its
establishment.
The constitutions of the several states and the powers of
their parliaments remain as before, except as exj)ressly altered
88 BRITISH RULE AND JURISDICTION
Ch. IV. by or under the constitution of the commonwealth. There
will continue to be governors o£ the several states appointed
by the King, not lieutenant-governors as in the Dominion
of Canada.
Provision is made for the admission of new states, and
for the seat of Government, which is eventually to be in the
state of New South Wales.
Any alteration of the constitution requires an absolute
majority of the two houses of the federal parliament, and
involves a referendum.
The Bill as passed by the imperial Parliament was on
almost all points identical with the draft Bill sent to England
from Australia. Provision was made for the admission of
Western Australia as an original state, and certain words
which had raised doubts as to the applicability of the Colonial
Laws Validity Act were struck out. But the only question
on which any substantial difference of opinion arose between
the imperial Government and the colonial representatives
related to the question of appeals from the new federal high
court.
The provision on this subject which appeared in the draft
Bill as sent to England, and which became widely known as
' Article 74,'' was the result of a compromise between those who
wished to retain the existing right of appeal to the Queen in
Council and those who wished to abolish it altogether, and \
ran as follows : —
Appeals No appeal shall be permitted to the Queen in Council in any
from the matter involving the interpretation of this Constitution or of the
Court of Constitution of a State, unless the public interests of some part
Australia, of Her Majesty's Dominions, other than the Commonwealth or
a State, are involved.
Except as provided in this section, this Constitution shall not
impair any right which the Queen may be pleased to exercise,
by virtue of Her Royal Prerogative, to grant special leave of
appeal from the High Coiut to Her Majesty in Council. But the
Parliament may make laws limiting the matters in which such
leave may be asked.
This change was objected to by Her Majesty's Govern-
SELF-GOVERNING COLONIES 89
nient, and the Bill as introduced into the House of Commons cir. iv.
provided that —
Notwithstanding anything in the Constitution set forth in the
Schedule to this Act, the prerogative of Her Majesty to grant
special leave to ajipeal to Her Majesty in Council may be exer-
cised -with respect to any judgement or order of the High Coiu't
of the Commonwealth, or of the Supreme Court of any State,
After long- negotiations and several attempts to effect Aitiele 74.
an arrangement between divergent views, Article 74 was
eventually settled as follows: —
No appeal shall be permitted to the Queen in Council from
a decision of the High Court upon any question howsoever arising
as to the limits inter se of the Constitutional powers of the
Commonwealth and those of any State or States, or as to the
limits inter se of the Constitutional jjowers of any two or more
States, unless the High Com-t shall certify that the question is one
which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special
reason the certificate should be granted, and thereu2:)on an appeal
shall lie to Her Majesty in Council on the question without
further leave.
Except as provided in this section, this Constitution shall not
impair any right which the Queen may be pleased to exercise by
virtue of Her Royal Prerogative to grant special leave of appeal
from the High Court to Her Majesty in Council. The Parliament
may make laws limiting the matters in which such leave may be
asked, but proposed laws containing any such limitation shall be
reserved by the Governor- General for Her Majesty's pleasure.
The chief constitutional difference between the federations The
of Canada and Australia arises from the circumstance that in ^jQ^g ^f
Australia the federal legislature has only those powers which t'anada
are expressly conferred upon it, whereas in Canada it is the Australia
provincial legislatures which are limited to the exercise of trasted.
powers specifically delegated to them, the Dominion Parliament
being left with the residue. Connected with this is the dis-
tinction that the constituent parts of the federation in Canada
are ' provinces ^ : whatever their status before 1 867 they are
not self-governing colonies after it ; while the six ' states '
of which the Commonwealth of Australia is composed are
and remain self-governing colonies, while at the same time
combining in federation to form a larger wliole. Each of
90 BRITISH RULE AND JURISDICTION
Ch. IV, the Australian ' states ' retains its colonial governor, who con-
tinues to be appointed by and responsible to the Crown,
whereas in Canada the provincial lieutenant-governors are,
as we have seen, appointed and dismissed ^ by, and liable as
regards their assent to provincial legislation to be overruled
by, the Governor-General in Council.
While, however, in the matter of distribution of legislative
power the constitution of Australia approximates more nearly
to the United States constitution than does the constitution
of Canada, in neither of the colonial federations does the
resemblance with the American scheme extend much beyond
what is common to all federal forms of government. Apart
from the fundamental distinction, already pointed out, which
is based on our conception of ' responsible government,' the
points of difference are numerous and important. Thus in
the United States the governor of each state is elected by the
people of the state ; and the federal government has no con-
trol over the governor or legislature of a state, or over the
internal administration of the state, except for the purpose
of enforcing the laws of the federation, governing the militia,
and suppressing insurrection. In fact, apart from the division
of powers which is necessary in every federation and the fixed
proportion of the number of senators from each province, it
is difficult to specify any point of resemblance between the
Government of Canada and that of the United States which
is not also a point of resemblance between the former and the
Government of the United Kingdom. One other point of
resemblance with the United States must be conceded in the
case of Australia — viz. the leaving to constituent states of
the residue of legislative power — but apart from this the
points of resemblance between the federal constitutions of
Australia and the United States are equally few.
^ Cf. the case of Mr. Letellier, lieutenant-governor of Quebec, who
was dismissed by Lord Dufiferin, the governor-general, upon the advice
of Dominion ministers, although his continuance in office was desired by
a majority of the Quebec legislature.
CHAPTER V
COLONIES NOT SELF-GOVERNING
The colonies which are without responsible government, Ch. V.
and therefore not self-governing ^, may be divided into two
classes, those which have and those which have not repre- classes of
sentative institutions. governing
The latter may be divided into those which have a council polonies :
'' (i I those
and those which have no council. with,
The second class are Crown colonies strictly so called, without
though that term is frequently applied also to the first atfve insti-
class. tutions.
The colonies of both classes have certain general points of Relation
resemblance. Their connexion with the United Kingdom is Home
much closer than that of the self-governing colonies, and has j^^g^T*^'
more of a subordinate, and less of a federative, character.
A much larger portion of the local government is carried on
under the direction of the Home Government.
The constitutional authority of the imperial Parliament
is greater, as it is the practice for Parliament to legis-
late for a Crown colony of either class in cases where it
would not legislate for a self-governing colony, or at any
rate would not do so without previously consulting the
colony 2.
But it would be contrary to constitutional practice that
' For a list of these, see App. II.
'•' Thus the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27^
was applied to almost all the Crown colonies without consulting them,
whereas it was expressly excluded from applying to Now South Wales
and Victoria, because those colonies had not assented. See also the
Mail Ships Act, 1891 (54 & 55 Vict. c. 31).
colony.
92 BRITISH RULE AND JURISDICTION
Ch. V. Parliament should tax the colony, or should alter its consti-
tution, except with its own consent \
The legis- ipj^g legislature of the colony is, when acting- within its
lature in '^ j ^ o
a Crown powers, svipreme. But the control exercisable by the Home
Government over the legislation of the colony is very much
greater, because the governor acts directly upon the instruc-
tions of the Home Government, and is not tied by the advice
of ministers who are responsible to, and dependent on the
support of, a majority of the local legislature. In Crown
colonies proper, and in some of the other colonies that are not
self-governing, the governor has the sole initiative in
legislation.
^i^'
'^'^^ Even where there is a representative assembly the executive
executive.
ministers are appointed by the governor independently of that
assembly, and do not depend for holding office upon retaining
the confidence of the assembly.
As the executive ministers in all colonies, self-governing as
well as others, are appointed by the governor and hold office
during his pleasure, they are legally all in the same position.
But constitutionally, in the self-governing colonies the
ministers can only hold office if they retain the confidence of
the representative legislative body, while in the other colonies
the ministers are independent of the legislative body, even
though it may be a representative assembly. The change
from the latter to the former position of ministers requires, as
before observed, no legislative alteration, but merely instruc-
tions to the governor who is responsible for the selection
of his ministers ^. But the practical and constitutional effect
^ This view was not always accepted. In 1838 the constitution of
Lower Canada was suspended. The proposal of Lord Melbourne's
Government to suspend the Jamaica constitution in 1839 without con-
sulting the colony was opposed by Sir E. Peel, and led to the resignation
of the Government. See Sir Robert Peel's speech on the Jamaica
Government Bill, PeeVs Speeches, iii. 623. The old constitution of Jamaica
was abolished in 1866, but only after the colonial legislature had passed
an Act for the purpose ; and the same course was adopted iri the case
of other West Indian islands. If an emergency arose the ordinary rule
might again be disregarded.
= See Merivale, p. 636 ; C. O. R 57.
COLONIES NOT SELF-GOVERNING 93
of this change is immense. The colony is converted into Ch. v.
a self-governing colony.
Where the ministers are not responsible to a local legislative
body, the governor is an absolute, not a constitutional, sove-
reign ; he governs and does not merely reign ; it is his duty
to regulate, and he has power to regulate, the local adminis-
tration ; and he is responsible for that administration to the
Home Government. In a self-governing colony these duties,
powers, and resj)onsibilities are vested in the ministers. When
the colony is not self-governing the governor, although he
may be bound to act on the advice of his ministers, can
change those ministers without regard to the views of the
local legislative body. But he is necessarily subject to the
practical limitations that government can only be carried on,
at any rate where an English population is concerned, with
the general assent of at least a large portion of the population,
and that government upon English principles cannot be
carried on against strong public opinion of the locality.
As the governor is the nominee of the Home Government,
this additional power and responsibility of the governor in
a colony which is not self-governing means additional power
and responsibility on the part of the Home Government.
That Government has thus a responsibility for good local
administration, which is upon a colony becoming self-govern-
ing transferred to the colonial ministers.
In a Crown colony, within the strictest sense of the term,
the Home Government — that is to say, either the King by
a document countersigned by the Secretary of State, or the
Secretary of State in his name — nominates the judges,
appoints or approves the appointment of all public officers,
approves of the budget, controls the public works and the
loans and general finance of the colony, requires legislation for
certain objects, and interferes more or less in the colonial
legislation and in the details of colonial administration^.
In a colony which, though not self-governing, has a repre-
^ See C. 0. R. , cli. iv.
94
BRITISH RULE AND JURISDICTION
Ch.V.
Relations
of the
represen-
tative
body to
the local
govern-
ment.
Conflict
between
legisla-
ture and
executive
in Malta.
sentative assembly, the control is less direct. It may be that
tbe governor has not the sole right of initiating legislation,
and that the budget has to be accepted by the assembly.
But the Home Government may require the governor to dismiss
ministers for refusing to initiate legislation desired by the
Home Government, or for submitting a budget disapproved
by that Government, and may require him to veto an Act of
which the Home Government disapprove.
In colonies of this class conflicts of opinion and authority
are very apt to arise between the governor or his nominee
ministers and the representative assembly. These conflicts
have led on the one side to the establishment of a self-
governing colony where there was an active white popula-
tion, either without, or with only a few, coloured voters,
and on the other side to the abolition of the representative
assembly where a tropical climate enervates the activity of
the white population, or where coloured voters are numerous ^.
The Cape and Natal have an active white population and
a very large coloured population; but the members of the
latter have not in practice the franchise, and therefore do not
constitute a political force in the representative legislature,
though they seriously complicate the questions to be dealt
with. These colonies have been made self-governing, though
a large part, perhaps the majority, of the white population
are not of British descent, while little if any security has
been taken for the proper treatment of the coloured popu-
lation.
In Malta the majority of the legislative council consists of
persons who are elected on a franchise which excludes many
persons, or represents special interests, such as the ecclesiastics
or nobles. It has been found necessary to use the legislative
power of the Crown to override opposition by this council to
measures which the Home Government considered to be
required in the interests of the majority of the population;
^ Several West Indian islands have recently surrendered their
representative legislatures.
COLONIES NOT SELF-GOVERNING 95
and this power has been used even to impose a tax for the Cii. v.
expenses of sanitary works ^.
The differences between the Crown colonies proper are
broadly as follows :
In some the Crown has retained the power of legislating Legisla-
for the colony, whether by Order in Council or by Letters of tlie*^^^*^^
Patent. In others this power has been abandoned-. Crown.
The King's Bench decided in 1774^ that where the Crown
granted a representative legislatm*e to a conquered colony,
without reserving the legislative power, the original power of
the Crown to legislate was surrendered. And that power is
not considered to have revived although the representative
legislature has been abolished.
In a settled colony that power never arose except under the
British Settlements Acts *.
In one or two cases (e.g. the Straits Settlements) an
imperial Act gives general power to the Queen in Council to
legislate for the colony ^.
The legislative power of the Crown is but rarely exercised,
except in Crown colonies within the strictest sense of that
term. The exercise of it is usually for the purpose of dealing
with what, in the case of a colony with responsible govern-
ment, would be considered an imperial subject, or for purpose
of coinage, which may be considered also an imperial subject.
It might also be used in a fortress like Gibraltar or Malta for
aiding the defence of the fortress. Where there is a repre-
sentative legislative body the exercise of the Crown's legislative
power is more unusual than where there is only a nominee
council or no council at all.
In such a case, however, it may be exercised (as mentioned
above in the case of Malta) in the interests of the majority of
* Pari, p., 1899, No. 287 ; and 0. in C. of July 14, 1899.
' See the list of such colonies in App. II.
' Campbell v. Hall, 20 St. Tr. 239.
* 50 & 51 Vict. c. 54, and the enactments repealed by that Act.
* 29 & 30 Vict. c. 115. Cp. also Jamaica, 29 & 30 Vict. c. 12; and
Grenada, 39 & 40 Vict. c. 47.
96
BRITISH RULE AND JURISDICTION
Ch. V.
Forms of
constitu-
tions in
Crown
colonies.
the population, as ag-ainst certain powerful interests, who
control the legislative body.
The power is used as a means of inducing a legislative
body to pass a particular measure. In the case of Malta the
threat of its use did not avail.
The colonies with representative institutions differ : in
some cases the legislature consists of two chambers, in others
of only one.
In some West Indian islands the old English model of
a colonial constitution still survives, that is to say, a legisla-
ture of the two Houses, one elected by the people, the other
nominated by the Crown. The latter often forms the execu-
tive council of the governor, and sometimes sits as a court of
appeal.
This form of the constitution was, in the early part of the
eighteenth century, considered to be so much a matter of
course that it was granted almost immediately after the con-
quest of a conquered country ; but it was found unsuitable
to the circumstances of a colony where a large number of the
voters consisted of negroes or half-castes, who, after the i
abolition of slavery, had acquired political rights, but not I
the political genius necessary for representative institutions.^
For this reason it has been abolished in some of the West
Indian colonies ^. The abolition was effected by a law
passed by the legislature, with a request to the Crown to
create a new constitution or (as in Honduras) with an addi-
tion of an enactment of the new constitution.
In other colonies the legislature consists of one chamber,
some only of the members being elected by the people, and
others nominated by the Crown.
In some of these colonies the number of the elective mem-
bers is fixed below that of the nominee members, in other
cases it is fixed so as to give the elective members the ma-
jority. In the latter case the governor, and consequently
/ \
^ e. g. Jamaica, Grenada, St. Vincent, Tobago, Honduras. In 1884,
however, Jamaica again obtained a repi-esentative legislature.
Colony.
Canada .
Ontario .
Quebec
Nova Scotia .
New Brunswick
Manitoba
British Columbia
Prince Edward Isle
N.W. Territories
Newfoundland
New South Wales .
Victoria
• •
South Australia .
Queensland
Western Australia
Tasmania
New Zealand .
The Cape Colony
Natal
Commonwealth of
Australia
Instrument of Constitution.
Imperial Act, 30 Vict. c. 3 [1867]
Note. — The provinces of the Canadian
Federation are not self-governing
colonies, and these details are here
inserted only for convenience of refer-
ence. On the other hand, the states
constituting the Australian Common-
wealth are, no less than the Common-
wealth itself, self-governing colonies.
See schedule to 58 & 59 Vict. c. 34 ; cf.
63 & 64 Vict. 0. 12, s. 8.
\
Commission to Governor of March 2, 1832 ;
cf. Letters Patent of March 28, 1876,
St. R. 4' 0. Eev. vol. iii. p. 571
Colonial Bill scheduled to Imperial Act,
18 & 19 Vict. c. 54
Colonial Bill scheduled to Imperial Act,
18 & 19 Vict. c. 55
Colonial Act, No. 2 of 1855-6, passed in
virtue of 13 & 14 Vict. c. 59
O. in C. of June 6, 1859, confirmed by
24 & 25 Vict. c. 44, § 3, and amended
by Colonial Act, 31 Vict. No, 38
Colonial Bill scheduled to Imperial Act,
53 & 54 Vict. c. 26
Colonial Act, 18 Vict. No. 17, passed in
virtue of 13 & 14 Vict. c. 59
Imperial Act, 15 & 16 Vict. c. 72 [1852]
Colonial Ordinance, confirmed by 0. in C.
of March 11, 1853, and amended by
Colonial Act, No. i of 1872
Eoyal Charter of July 15, 1856, amended
by Colonial Act, No. 14 of 1893
Imperial Act, 63 & 64 Vict. c. 12 [1900]
APPE
SELF-GOVERIs
Senate of 81 mem
(No Upper
Legislative Council c
Legislative Council (
(Upper House abo
(Upper House abo
(Upper House a
Legislative Counn
ceeding 15 (e
Legislative Counc ii
than 21 (no"w
Legislative Counc
Legislative Counc
Legislative Counc
Legislative Coun'
Legislative Coun*
Legislative Coun* i
Legislative Coum
Legislative Counc
Senate of 36 (6 fo
{Between pp. 196 and ig-j]
JENKYNS
DIX I
G COLONIES
>per House.
I? . . Nominated for life
se — B. N. A. Act, sect. 69)
Nominated for life
I . . Nominated for life
d by Colonial Act, 54 Vict. c. 9)
;d by Colonial Act, 39 Vict. c. 28)
Upper House)
'hed by Colonial Act, 56 Vict.)
Upper House)
not ex- Nominated for life
'f5)
iQotless Nominated for life
i 48 , Elected for 6 years
524 . Elected for 9 years
B42 . Nominated for life
196^
30
Elected for 6 years
^ 19 . Elected for 6
years
H5 • Nominated for 7 yrs.
f 23 . Elected for 7 yeai-s
i 12
1 1 .state)
Nominated for 10
years
Elected for 6 years
Lower House.
J House of Commons
( of 213 members
Legislative Assembly of 94
Legislative Assembly of 74
Legislative Assembly of 38
Legislative Assembly of 46
Legislative Assembly of 40
Legislative Assembly of 38
Legislative Assembly of 30
Legislative Assembly of 31
House of Assembly of 36
Elected for
5 years.
4 years.
5 years.
5 years.
4 yrs. 2 mth s.
4 years.
4 years.
4 years.
4 years.
4 years.
Legislative Assembly of 125 . 3 years.
Legislative Assembly of 95 . 3 years.
House of Assembly of 54 . . 3 years.
Legislative Assembly of 72 .3 years.
Legislative Assembly of 50 .3 years.
House of Assembly of 38 . . 3 years.
House of Eepresentatives of 74 3 years.
House of Assembly of 95 . . 5 years.
Legislative Assembly of 39
4 years.
House of Representatives of 75 3 years.
COLONIES NOT SELF-GOVERNING 97
the Home Government, have obviously much less power than Ch. V.
they have where the nominee members are in the majority.
Even where the council consists wholly of nominee mem-
bers, a difference arises, as in some cases all the members of
the council are officials, in other cases they are partly official
and partly unofficial. In some instances the number of official
members, in others that of imofficial members, is the larger ^.
Where the Home Government insists on a measure being-
passed by the legislative council, the official members are
bound to vote for it. A measure is sometimes so insisted on,
either for imperial purposes or to give effect to a treaty ^, or
for local purposes, where the measure is for the general
benefit, but is objected to by the influential classes from
which the members of the council are drawn.
Where there is no representative body, the initiation of all
legislation, including that for taxes, rests with the governor,
and even where there is a representative body, the general rule
is that no money shall be appropriated, and no tax imposed,
except on the recommendation of the governor. This rule is
strictly in accordance with that of the United Kingdom, but
has a different effect in consequence of the governor acting
on his own motion, and not on the advice of persons having
the confidence of the representative body.
The West Indian colonies have shown a disposition to unite Federa-
tion in the
SO as to reduce the expenses of government. West
Under an imperial Act of 1861^ the colonies of Antigua, ^^^'
St. Kitts, Nevis, Dominica, Montserrat, and the Virgin
Islands were combined into a single colony under the name
of ' the Leeward Islands/ with six presidencies.
There are a governor and executive and legislative council
for the whole colony, and a president and executive and legis-
lative council for each presidency. The Act fixes the powers
to be exercised by the federal legislature.
• For the composition of the various councils, see Pari. P., 1889, No. 70,
and 1890, No. 194.
2 e. g. tlio treaty vvitli France of 1854 respecting mail ships.
^ 34 & 35 Vict. c. 107.
JENKYNS tt
98 BRITISH RULE AND JURISDICTION
Ch. V. The Islands of Grenada^ St. Lucia, and St. Vincent are
under one governor-in-cliief, the Governor of the Windward
Islands, but there is no central executive or legislative council :
each island has its own council, and a resident administrator
who acts as the deputy of the governor.
Another of the Windward Islands, Tobago, has been an-
nexed to Trinidad under the imperial Act of 1887 ^.
On the other hand the West African colonies, after being
under a single governor for some years, were again divided
into separate colonies. And the Seychelles have been severed
from Mauritius^.
In some of the West Indian colonies the Council, with the
Governor, acts as a court of appeal.
^ 50 & 51 Vict, c. 44. ^ Stat. K. and 0., 1897, p. 676.
CHAPTER VI
COLONIAL GOVERNORS
In every British possession the Governor is appointed by Ch. VI.
the Crown, and is the representative of the Crown in the
possession ; but there the resemblance between the governors m^nt and
of different classes of British possessions ceases. The position ^["^"^^i'^-
and powers of the governor of a colony differ from those of
the governor of a British possession which is not a colony,
and the position and powers of the governor of a self-govern-
ing colony differ from those of the governor of a Crown colony.
The present chapter will treat of colonial governors, that
is to say, of governors of colonies, whether self-governing
or not.
Every governor holds during the pleasure of the King, but
the usual term of office is six years. Formerly each governor
was appointed and commissioned by Letters Patent, under the
Great Seal of the United Kingdom ; but since 1875 the prac-
tice has been to create the office of governor in each colony
by Letters Patent, and then to make each appointment to the
office by commission under the Royal Sign Manual, and to
give to the governor so aj)pointed instructions in a uniform
shape under the Royal Sign Manual. The commission is
countersigned by a Secretary of State. The instructions are
often approved by Order in Council ^, and are all issued under
the Royal Sign Manual with the * signet' attached by the
Secretary of State, but without his counter-signature ; subse-
quent special instructions are given to the governor through
the Secretary of State. The Letters Patent, commission,
* See Stat. R. and 0., 1895, pp. 739 seq.
Jl 2
lOO BRITISH RULE AND JURISDICTION
Ch. VI. appointment, and instructions, are commonly, for tlie sake
of brevity, referred to as ' the governor's commission ^/
Besides these instructions the Secretary of State issues
from time to time circulars which are practically instructions
to the governors, such as those relating to martial law in
1867, and to pardons in 1877. Some of these are, with other
rules, put together into what are known as ' the Colonial
Regulations/ for the information and guidance of governors
and all officers appointed by the Home Government ^.
Dignities The constitutional rule is that the Crown is the sole foun-
honours. tain of honour in the British Empire. A colonial governor
has no power to confer any dignity or honour except by
express warrant from the Crown under the sign manual, and
the grant of honours by the King is no interference with the
rights of a colonial legislature.
The Governor- General of Canada (and not the provincial
Lieutenant-Governor) has the right to appoint King's counsel
for all courts in the dominion, but a provincial legislature can
confer on the Lieutenant-Governor of the province power to
appoint King's counsel for courts within the province, because
it can determine by what officers the Crown, or in other words
the executive government of the province, is to be represented
in its courts of law or elsewhere ^.
Military It will be observed that the governor's commission contains
command. , . . . . ^^ -^•L tn j. -l -u-
only a provision requiring all military officers to obey him,
and does not confer on him military command. Even though
the constitution gives him, as it in some cases does, the title
of captain -general or commander-in-chief, he does not
thereby obtain military command unless it is given him by
* The forms now in use are printed in Appendix IV. See also Stat. R.
and 0. Eev., vol. viii, Appendix of Prerogative Orders.
* These are printed in the annual Colonial Office List, and referred to
herein as ' C. O. R.'
' Attorney-General for Dominion of Canada v. Attorney-General for Province of
Ontario, L. R. [1898] A. C. 247. This overrules the decision of the Supreme
Court of Canada in Lenoir v. Ritchie (quoted in Todd, Col. Govt., and ed.,
P- 336), which was to the contrary effect, and was based on the ground
that the Queen was not part of the provincial legislature.
COLONIAL GOVERNORS loi
special appointment from the Crown. He is not, therefore, Ch. VI.
invested with the command of any part of the regular forces,
that is to say, any part of the British regular forces
which is in the colony ^. He is not therefore entitled, even
though he is the military officer of highest rank in the
colony, to take the immediate direction of any military opera-
tions, or, except in the case of urgent necessity, to communi-
cate officially with subordinate military officers without the
concurrence of the officer in command of the regular forces in
the colony.
If military operations are rendered necessary, either by
invasion or assault of a foreign enemy or by domestic strife,
the officer in chief command of that portion of the regular
forces which is in the colony assumes the entire military
authority, and is responsible for the details of military opera-
tions.
It is, however, for the governor to determine the objects
with which, and the extent to which, the King's troops are
to be employed, and to give general directions as to their
distribution and employment.
The governor on the one hand, and the military officer on
the other, are bound to consult together as to the matters
within each other's province ^.
In a colony where no portion of the regular forces is stationed,
the military command of the colonial forces depends on the
legislation of the colony.
As regards Canada, by s. 15 of the British North America
Act ^, the command-in-chief of the land and naval militia, and
of all naval and military forces, of and in Canada was declared
to continue and be vested in the Queen. In accordance with
that section, the Canadian Militia Act of 1868 provides that
' the command-in-chief of the land and naval militia and of
all naval and military forces of and in Canada is vested in
the Queen, and shall be exercised and administered by Iler
* C. 0. R., cli. ii. s. 2. As to India, see above, ch. iii. p. 51.
» C. 0. R. 12 A. ^ 30 & 31 Vict. c. 3.
I02 BRITISH RULE AND JURISDICTION
Ch. VI. Majesty personally or by the governor as her representative.'
But the commission of the governor does not give him more
military power than that of any other governor.
In Canada, those matters which are of imperial direction,
and concern the regular army and navy, are subject to the
control of the Home Government, while those which concern
the disposition and management of local forces are regulated
by the local government ^.
Statutory rpj^g imperial Acts relating to the constitution of the
power ot _ ^ °
governor, colonies give no general, as distinct from specific, powers
to a governor, and are as a rule silent about his position and
powers, except as regards his consent to legislation.
Thus the British North America Act ^ is silent as to the
powers of the Governor-General of Canada and the Lieutenant-
Governors of the provinces, except so far as it transfers to
these officers statutory powers existing under other imperial
or colonial Acts. The Act, like the Acts relating to the
Australasian colonies, treats the governor as a well-known
officer. The explanation of the silence of these Acts is that
the powers of a governor depend primarily not upon the Acts,
but upon his commission from the Crown and his position as
representing the Crown in the colony, i. e. as the supreme
executive of the colony.
Various Acts dealing with imperial subjects or otherwise
applying to the colonies give specific powers to the governor,
as in the case of extradition, territorial waters or merchant
shipping
ig-
Governor The position of a colonial governor has been considered in
viceroy, more than one case ^ by the Judicial Committee of the Privy
Council. The Judicial Committee have laid down that the
governor cannot be considered as being a quasi-sovereign or
viceroy, i. e. as having all the prerogatives of the Crown
* Todd, Col. Govt, (and ed.), p. 377.
* 30 & 31 Viet. c. 3, ss. 12, 65.
' Cameron y. Kyte (1835), 3 State Trials, N. S. 607, see 616-8; Hill v.
Bigge (1841), 4 State Trials, N. S. 723, see 731, 732 ; Musgrave v. Piilido (1879),
L. R. 5 A. C. 102, III.
COLONIAL GOVERNORS I03
or having the whole sovereignty of the colony delegated to Cit. vi.
him, unless it is expressly given him by the commission. "
Consequently, the powers of the governor must depend upon
his commission in each case, and he is only an officer to
act within the scope of his commission and to execute
the powers which that commission expressly and impHedly
gives him; and it has been further laid down that there
exists in the case of a governor no such necessity, as Lord
Stowell said might exist in the case of a naval commander,
for the exercise of powers of sovereignty out of the ordinary
and usual course.
The commission gives, it will be observed, very little express Power
power. In a characteristically English way, it defines but governor's
little, and bv authorizins: the governor to do and execute all commis-
things that belong to the office, incorporates the practice
without stating it. This provision of the commission and
the dependence of the powers of the governor upon his com-
mission, give great elasticity. Practice and custom give more
power in one colony and less in another, according to local
circumstances; and thus in former days immediately after
the conquest of a colony the governor was able to exercise
powers which had been previously vested in the government
superseded by the conquest.
The commission also can always be varied to meet local
circumstances. It may confer on the governor, as it has in
India, the whole prerogative of the Crown, even as regards
dealings with foreign powers ; or it may give him the chief
command of the troops. On the other hand, it may restrict
his powers if circumstances make it desirable to do so.
Notwithstanding legal decisions of the Judicial Commit-
tee as to the limitations on a governor's powers, there can
be little doubt that a governor will always be held to have
had all the power necessary for meeting any emergency which
may have required him to take immediate action for the safety
of the colony. If he acts in good faith, and, having regard to
the circumstances, reasonably, he will be held harmless. In tlie
I04 BRITISH RULE AND JURISDICTION
Ch. VI. last resort the colonial legislature or the imperial Parliament
will intervene to indemnify him ^.
The Mr. Todd ^ asserts tliis ' reserve power ' of the governor in
''reserve very wide terms. He says^ ' Nevertheless there is a general
power.' devolution to every colonial governor of so much of the
authority of the Crown as may be necessary for the purpose
of administering the government of the colony over which he
is placed by the sovereign, whose office and authority he
represents. . . , The office of governor is as much a con-
stituent of the constitution in every colony as is that of either
of the other branches of the local legislature. A constitutional
governor is not merely the source and warrant of all executive
authority within his jiirisdiction : he is also the pledge and
safeguard against all abuse of power, by whomsoever it may
be proposed or manifested.^
With respect to this ' reserve power ' reference may be made
to the Colonial Regulations ^ and to the opinion of WiUes, J.,
in delivering the judgement of the Exchequer Chamber, in
Governor Eyre^s case *. After referring to a charge of
Tindal, C. J., as to the obligation of every citizen to endeavour
to suppress a riot, the judge continued^ ' This perilous duty,
shared by the governor with all the Queen's subjects, whether
civil or military, is in an especial degree incumbent upon him as
being entrusted with the powers of government for preserving
the lives and property of the people and the authority of the
Crown, and if such duty exists as to tumultuous assemblies of
a dangerous character, the duty and responsibility in case
of open rebellion are heightened by the consideration that the
existence of law itself is threatened by force of arms and a state
of war against the Crown established for the time.'
^ The Jamaica legishiture passed an Act of indemnity for Governor
Eyre, which indemnified him against actions for damages brought in
England. Phillips v. Etjre, L. R. 6 Q. B. i.
^ Parliamentary Government in the British Colonies (2nd ed.), p. 36, a book
of which much use has been made in this chapter.
» C.O.R.34,35.
* Phillips V. Eyre, L. R. 6 Q. B. i, at p. 16. Tindal's charge will be
found in the Bristol Riots case, 3 St. Tr. N. S. i.
COLONIAL GOVERNORS 105
This judgement had reference to a colony which was not Ch. VI.
self-governing'. In a self-governing colony, the ministers
are responsible to the colonial legislature for maintaining between
the peace and good order of the colony, and it rests with them ^f ^ggj^^^^
and not with the g^overnor to take the steps necessary for that governing
* , ^ / iind other
purpose. The governor has thus in a self-governing colony colonies.
less responsibility, and therefore in a sense less ^reserve
power/ than he has in a colony where he is responsible to
the Home Government for maintaining the peace and good
order of the colony, has full liberty to choose his ministers
and advisers, and aj)point such officers as he thinks proper
for the purpose, and cannot throw any part of the re-
sponsibility on the colonial legislature or local ministers or
officers.
This is only one, though a very important, instance of the
wide distinction as regards position and power between
the governor of a self-governing colony and the governor
of any other colony, whether with or without a representative
assembly.
An examination of colonial history during the past thirty
or forty years shows that there has been a gradual change in
the position of the governor; that in the self-governing
colonies he has gradually become more of a constitutional
sovereign and less of an actual governor. He ' reigns ' more
and 'governs' less. In other words, he acts less upon his
personal opinion and more upon the advice of his ministers.
A colonial governor is under the control of the Crown, Acts as
exercised through a Secretary of State, and acts in two andlocal
capacities ; namely, (a) as an imperial officer, and {b) as a local -*:'^*^.?£:
officer.
Mr. Herman Merivale, for twelve years Under Secretary of
State for the Colonies, thus states ^ the position of a governor
of a self-governing colony : — ' So far as regards the internal
administration of his Government he is merely a constitu-
tional sovereign, acting through his advisers, interfering with
' Merivale, CoL and C, pp. 649, 666.
I06 BRITISH RULE AND JURISDICTION
Ch. VT. their policy or their patronage, if at all^ only as a friend and
important councillor ; but whenever a question is agitated
touching the interests of the mother country, such for instance
as the imposition of customs duties or the public defence,
his functions as an independent officer are called at once
into play; he must see that the mother country receives no
detriment. In this duty he cannot count on aid from his
advisers ; they will consult the interests either of the colony
or of their own popularity; he may often have to act in
opposition to them, either by interposing his veto on enact-
ments, or by referring those enactments for the decision of the
Home Government; but for these purposes the constitution
furnishes him with no public officers to assist him in counsel
or execution, or to share his responsibility. The Home Govern-
ment looks to him alone. ... In Crown colonies, he (the
governor) is without check in executive affairs, and in the
distribution of patronage, except such as may be administered
from home. In the old representative colonies his acts are
subject to the indirect check which may be given by the
disapproval of the legislature, and the refusal of supplies, but
to no direct interference. But under responsible government
he becomes the image, in little, of a constitutional king. . . ,
Even in the domestic politics of the colony, his influence as
a mediator between extreme parties, and controller of extreme
resolutions, as an independent and dispassionate adviser, is
far from inconsiderable, however cautiously it may be exercised.
But the really onerous part of his duty consists in his watch-
ing that portion of colonial politics which touches on the
connexion with the mother country. Here he has to reconcile,
as well as he can, his double function as governor responsible
to the Crown, and as a constitutional head of an executive
controlled by his advisers. . . . And this duty of peculiar
nicety he must perform alone.''
Mr. Merivale's statement is still to a very large extent
true, except as regards customs duties \
^ See ch. ii. p. lo.
COLONIAL GOVERNORS 107
There is also an increasing tendency to regard the governor Ch. VI.
as a social head, and the patron of interests not connected '
with politics, rather than as concerned in the political of trover-
government. "^^•
The influence which a governor enjoys as social head of
the commnnity is very great. He is able to present to the
inhabitants of the colony wider views and higher aims in
political matters than might otherwise prevail in a small
community, namely, the views and aims of the best men
in the British Empire as contrasted with those of men who
are versed only in local politics. He can promote the interests
of education, science, art, commerce, and humanity outside the
domain of party politics ^.
In quiet times and with certain governors this part of the
governor's function is the most prominent. But even in quiet
times the ad\ace of a governor of ability and of experience in
a wider sphere than that of the colony, is so valuable that he
can greatly influence the government. And when a critical
time comes, whether caused by the fierce conflicts of political
parties or by outside circiunstances, the governor, as the
arbiter in those conflicts, or as representative of the Home
Government, appears openly as a person of great political
importance. It is with him in a small sphere as it is with
the occupant of the throne of the United Kingdom in a larger
sphere.
A governor's relations to his ministers and his duties vary Eolations
according as he acts as an imperial or local officer. j.gj.g^
Thus, on March 26, 1862, the Secretary of State for the
Colonies (the Duke of Newcastle) wrote as follows to the
Governor of Queensland (Sir G. F. Bowen) : —
' The general principle by which the governor of a colony
possessing responsible government is to be guided is this : that
when imperial interests are concerned, he is to consider himself
the guardian of those interests ; but in matters of purely local
^ See as to tliis Lord Elgin in Walrond's Life, pp. 124-8, and Todd (and
ed.), pp. 809-12.
Io8 BRITISH RULE AND JURISDICTION
Ch. VI. politics he is bound, except in extreme cases, to follow the
advice o£ a ministry which appears to possess the confidence
of the legislature. But extreme cases are those which cannot
be reduced to any recognized principle, arising in circum-
stances which it is impossible or unwise to anticipate, and of
which the full force can, in general, be estimated only by
persons in immediate contact with them.^
The Duke of Newcastle, however, defined the 'extreme
cases ' referred to by him as ' such extreme and exceptional
circumstances as would warrant a military or naval officer in
taking some critical step against or beyond his orders. Like
such an officer, the governor, who took so unusual a course in
the absence of instructions from home, would not be necessarily
wrong, but he would necessarily act at his own peril. If the
question were one in which imperial interests were concerned,
it would be for the Home Government to consider whether his
exceptional measure had been right and prudent. If the
question were one in which colonial interests were alone or
principally concerned, he would also make himself, in a certain
sense, responsible to the colonists, who might justify the
course he had taken, and even prove their gratitude to him
for taking it by supporting him against the ministers
whose advice he had rejected, but who, on the other hand,
if they perseveringly supported those ministers, might
ultimately succeed in making it impossible for him to
carry on the government, and thus, perhaps, necessitate his
recall '^.'
Rule ^"j of the Colonial Regulations directs that : —
'In colonies possessing what is called responsible govern-
ment, the governor is empowered by his instructions to appoint
and remove members of the executive council, it being under-
stood that councillors who have lost the confidence of the local
legislatures will tender their resignation to the governor or
d.iscontinue the practical exercise of their functions in analogy
with the usage prevailing in the United Kingdom.'
^ Pari. Papers, 1878, C. 2173, p. 70.
COLONIAL GOVERNORS 109
The insti'uctioiis to the governor are as follows ^ : — Ch. VI.
' In the execution of the powers and authorities vested in
him, the governor shall be guided by the advice of the execu-
tive council ; but if in any case he shall see sufficient cause to
dissent from the opinion of the said council, he may act
in the exercise of his said powers and authorities in opposition
to the opinion of the council, reporting the matter to us
without delay, with the reasons for his so acting.
* In any such case it shall be competent to any member of
the said council to require that there be recorded upon the
minutes of the council the grounds of any advice or opinion
that he may give upon the question/
This paragraph is now (with several others) omitted from
the instructions to the Governor- General of Canada, not as
being contrary to practice, but as unnecessary, because the
constitutional practice is sufficient.
The governor is responsible solely to the Crown, and this
responsibility creates a difference between his position as
a constitutional sovereign and that of the sovereign in the
United Kingdom.
His ministers, on the other hand, in a self-governing colony
are, as in the United Kingdom, responsible to the colonial
legislature, and especially to the popular chamber.
In matters for which the ministers are responsible, the
governor should, as a rule, follow their advice, whether it is
or is not in accordance with his own opinion.
The distinction between imperial matters and local matters
is the same in the main as that between matters which are
not and matters which are within the competence of the local
legislature. It is in respect of matters of the latter class that
colonial ministers are responsible to that legislature. In con-
stitutional practice their advice must be followed in matter
as to which they are, and need not be followed in matters as
to which they are not, so responsible.
When the governor acts as an impei-ial officer, his duty
* See Appendix IV, p. 230,
no BRITISH RULE AND JURISDICTION
Ch. VI. appears to be to consult his ministers before he acts, although
he does not take their advice ^.
But the obligation of the governor to act on the advice of
the ministers in local matters is subject to the exceptions that
he cannot be asked either to disobey the law or to act contrary
to his instructions from the Crown, and that he is at liberty
to dismiss his ministers.
This power of dismissal is a reserve power which should
only be used in extreme cases. The governor is a con-
stitutional sovereign, and the duty of a constitutional sovereign
is, as a rule, to take the advice of his ministers on local
matters, even though he does not agree with it.
Power of In exercising the Crown's prerogative of pardon, which is
delegated to him by his instructions, the governor acts largely
as an independent officer.
In regard to the pardon or reprieve of offenders, the present
instructions ^ to the Governor-General of Canada require the
governor-general to receive advice in capital cases from all,
and in other cases from one, of his ministers; but ^in any
case in which such pardon or reprieve might directly affect
the interests of our empire, or of any country or place
beyond the jurisdiction of the Government of our said
Dominion,' he is, before deciding, to 'take those interests
specially into his own personal consideration in conjunction
with such advice as aforesaid.''
In the correspondence between Canada and the imperial
Government prior to the issue of these instructions, it was
understood that in all cases of a merely local nature the
governor-general should act on the advice of his ministers.
Before the issue of the new instructions, the governor-
general had felt himself at liberty to disregard the advice
of his ministers, and that with the approval of the Home
Government.
As respects New South Wales ^ and other colonies with
' See Pari. Papers, 1890, vol. xlix, No. 194.
* See App. IV, p. 219. s gg^ App. IV, p. 231.
COLONIAL GOVERNORS ill
responsible government, the present instructions are the same Ch. vl
as those for Canada quoted above.
The former instructions to the governor (e. g. of New South
Wales in 1879 ^) required him to consult the executive council,
but to pardon or not ' according to his own deliberate judge-
ment, whether the members of the executive council concur
therein or otherwise/
The question as to the governor's powers and duties with
respect to pardons was much discussed in New South Wales,
the result being that all apj)lications for pardon are to be
submitted to the governor through the intervention of a
responsible minister, whose opinion is specified in writing- upon
the papers, thus leaving the responsibility for the exercise of
the prerogative solely with the governor.
Lord Carnarvon approved of this arrangement, and justified
leaving the ultimate decision to the governor on the ground
that ' the effect upon neighbouring colonies, the empire
generally, and foreign countries, of letting loose a highly
criminal or dangerous felon to reside in any part of the world
. . , was a step which might clearly and not unreasonably
give rise to complaints from without the colony,^
Similar questions have arisen also in Tasmania and in
Canada, and particularly in reference to the wider question of
a general amnesty or pardon. The power to grant this is not
given to a governor by his commission. But the governor, if
so instructed by the Home Government, can, with the assent
of his ministers, proclaim that no prosecution shall be insti-
tuted for certain offences ; and that has the same practical
effect as an amnesty for them.
A question in which a governor may frequently have to act r<^wcr (f
•-. ii-i-i--- dissolu-
independently of, or even contrary to, the advice of his minis- tion.
ters for the time beinff is that of the dissolution of the colonial
legislature, or of that branch of it which is elected by the
people.
The constitutional rule is that the exercise of, or the refusal
1 Seo App. IV, p. 227.
112 BRITISH RULE AND JURISDICTION
Ch. VI. to exercise, the power of dissolution must be approved by
a minister of the Crown directly responsible to the popular
branch of the legislature.
But, nevertheless, in granting or refusing a dissolution the
governor should by no means be a passive instrument in
the hands of his ministers. It is his duty to exercise his
judgement on the advice that may be tendered to him.
In considering the matter, he should inform himself as to
the probable result of a dissolution and new election_, having
regard to the state of opinion in the colony and the im-
portance of the issue. Thus he should take into consideration
whether the ministers against whom an adverse vote has been
carried have not already appealed to the country ; whether
there are reasonable grounds for believing that the adverse
vote would be reversed after a new election; under what
circumstances the existing legislature was elected, and how
long a period has elapsed since the last election ; whether the
majority against the ministers is such as to make it probable
that a sufficiently strong Government can, if there is no
dissolution, be formed by the Opposition ; and whether there
is any great question of public policy which the country ought
to decide.
Various cases have arisen in the colonies in which a governor
has refused to grant a dissolution upon the advice of his
ministers : those ministers have thereupon resigned, and new
ministers have been summoned who have carried on the
government.
The principle to be gathered from these instances appears
to be that, constitutionally, the discretion of the governor is
in every case unfettered, and that he is not bound by any pre-
cedent. Each case must be decided according to the circum-
stances. It is his duty to consider the question of dissolution in
reference solely to the general interests of the people and not
to the interests of the party in power, which he is under no
obligation to sustain. He is therefore justified in withholding
a dissolution requested by his ministers, when he is of opinion
COLONIAL GOVERNORS II3
that the object of the request is merely to strengthen their Ch. VI.
party and not to ascertain the public sentiment upon any
disputed question of pubHc policy. If he believes that a strong*
administration can be formed, commanding the confidence of
the existing legislatui'e, he is free, instead of granting a disso-
lution to his ministers, to accept the alternative of their
resignation and try if such an administration can be formed.
One very important matter in which the question arises Eoyal
as to the obligation of a governor to take the advice of his or dis- '
ministers is the exercise of the prerogative of living or with- allowance
i- o fc> o of, logisla-
holding the assent of the Crown to an Act passed by the local tion.
legislature.
The universal rule in colonies with representative legis-
latures, i.e. with legislatures consisting wholly or partly of
elected representatives, is that when the legislature has passed
a Bill the governor of the colony has power either to give or
to withhold the King's assent, or to reserve the Bill for the
signification of the King's pleasure.
Further, if he gives assent, he must send a copy to the
Secretary of State for the Colonies, and, within two years
afterwards, the King in Council can disallow the Bill ^.
A reserved Bill which is not, within two years, assented to
by the King in Council is, ipso facto, dropped.
In some cases the Bill contains a clause commonly known
as ' a suspending clause,' providing that the Bill shall not take
effect until the Sovereign's assent has been signified in the
colony, and some imperial Acts ^ provide that an Act of the
colonial legislature on some particular subject shall not be
valid unless it contains such a suspending clause.
It will be observed that the withholding of assent, i. e.
veto, is distinct from disallowance.
According to the old practice, the formal instructions by
* See above, ch. iv, and, jus regards tho Australasian colonies, 5 & 6
Vict. c. 76, S8. 31-3 ; 7 & 8 Vict. c. 74, s. 7, applied I>y 13 & 14 Vict.
c. .59. «s- 32,33; 18 & 19 Vict. c. 54, s. 3; c. 55, s. 3. As to Canada,
30 & 31 Vict. c. 3, Hs. 55-7 ; as to other colonies, C. O. II.
^ See 32 & 33 Vict. c. 1 1, s. 4 ; 48 & 49 Vict. c. 7, s. 4.
JCNKYNS I
114 BRITISH RULE AND JURISDICTION
Cu. VI. Letters Patent^ or under the Q,ueen''s Sign Manual ^, given to
a governor in all colonies included provisions as to assent-
ing to Bills, and expressly required him to reserve for the
signification of the Queen's ^pleasure certain classes of Bills,
unless they contain a suspending clause. As regards the
Australasian colonies, the imperial Acts expressly authorized
the Queen to give these instructions, and required the governor
to comply with them ^.
As regards Canada, the British North America Act, 1867 ^,
provided (s. ^^) that the governor should, in his discretion,
subject to Her Majesty's instructions, assent to, or withhold
assent to, or reserve, the Bill.
Considerable discussion has arisen in the case of the Aus-
tralasian and Canadian colonies, as to whether the governor, in
exercising these powers of assenting to, vetoing, or reserving
Bills, ought to act vmder the advice of his colonial ministers.
The old doctrine was that the governor was bound to exer-
cise his discretion upon his own responsibility as an imperial
officer, unfettered by the advice of his ministers, but in ac-
cordance with the instructions of the Crown and after con-
sultation with his ministers and (in case of assent) satisfying
himself by legal advice that no legal objection exists to his
assenting.
This is still the case in colonies not self-governing. But
in self-governing colonies the doctrine is, especially in the
ease of Canada, that the governor must act as a constitu-
tional sovereign, that is to say, act on the advice of his
ministers, unless he is prepared to dismiss or accept the re-
signation of those ministers, and to obtain other ministers
to carry into effect his policy ; and, as pointed out above, the
dismissal or enforced resignation of ministers is a reserve
power which should be rarely exercised. In fact, the frequent
^ See App. IV, p. 226.
* 5 & 6 Vict. c. 76, s. 40, which was expressly applied to New South
Wales by 18 & 19 Vict. c. 54, s. 3, and to Victorian Bills by 18 & 19
Vict. c. 55, 3. 3.
' 30 & 31 Vict. c. 3.
COLONIAL GOVERNORS 115
exercise of the power would practically make it impossible to Ch. VI.
carry on the government.
In consequence of the acceptance of this doctrine, all pro-
visions as to vetoing or reserving Bills have, since 1878, been
struck out of the formal instructions given under the Royal
Sign Manual to the Governor-General of Canada, and any
veto by the governor on imperial grounds must be given
either under less formal directions from a Secretary of State,
or on his own responsibility.
The practical result is that in Canada the power of the
imperial Government is merely that of disallowing an Act
which has been passed, and not that of vetoing a Bill before
it becomes an Act.
In the case of the Australasian colonies, though royal in-
structions are still given to the governors to reserve certain
classes of Bills for the signification of the King's pleasure,
the number of these classes has been reduced so that they
relate almost exclusively to imperial matters, and thus in all
matters of local concern the governor is not bound by his
instructions to interfere, and ought to be guided by the advice
of his ministers as to the action he takes on any Bill.
But, as before pointed out, the governor is not the mere
mouthpiece of ministers, he is responsible to the Crown for
the proper administration of the colony; and thus even in
a matter of purely local concern, he may be able by discussion
And persuasion to lead his ministers to advise or at least
acquiesce in a course of action different from that which they
had previously advised. Todd mentions a case in which the
governor persuaded his ministers to countersign the royal
assent to a Bill to which they had previously requested him to
refuse the Queen's assent ^.
A governor also is bound to protect imperial interests,
and is not bound to act against the law, nor, therefore, to
assent to a Bill which is 'ultra vires. In such a case he may
have to refuse his assent, notwithstanding the advice of his
1 Todd (and ed.), p. 664.
I 2
ii6
BRITISH RULE AND JURISDICTION
Oh. VI. ministers. He therefore stipulates for an assurance on proper
authority that the Bill is within the competency of the legis-
lature, and is not one which he is required by his instructions
to reserve. This assurance is usually g-iven by the colonial
minister of justice, or attorney-general, or other law officer of
the Crown in the colony^ who reports to the governor whether
any legal objection exists to the governor assenting to the
Bill, or whether it is his duty as representative of the Crown
to withhold assent to or to reserve the Bill ^.
If the governor is not satisfied, and the matter is not one
of purely local concern, he can take further counsel from the
law officers in England through the Secretary of State. But
if the question is one of purely local concern, it is not regular
for him in a self-governing colony to take formal and official
advice from any authority other than the law officers of the
colony ; and if he does so on a grave emergency he must per-
sonally take the risk, as he cannot shelter himself behind
advice obtained from outside his ministry.
Even where the governor has given the royal assent to an
Act of a colonial legislature, the Act can be disallowed by
the King in Council.
The Act comes into operation at once (unless it contains
a clause suspending its operation until the assent of the
Crown is proclaimed, or some other act is done), but the
governor transmits a copy to the Secretary of State for the
Colonies, and the Act may be disallowed by the King in
Council within two years after it is received.
Colonial Acts are, when necessary, referred by the Secre-
tary of State to the law officers of the Crown for the purpose
of ascertaining their legality ; and if they relate to matters
within the cognizance of another public department are re-
ferred to that department. Thus Acts relating to commercial
questions are referred to the Board of Trade.
Disallow
ance by
Crown.
' See Governor Manners Sutton's Dispatch, Pari. P., 1867-8, vol. xlviii.
p. 701. Lord Dufferin's Dispatch, Pari. P., 1874, vol. xlv [C. 911], p. 28.
C. 0. E., ch. iii. s. i, Pari. P., 1878.
COLONIAL GOVERNORS II7
111 the case of the Australian Commonwealth and Canada, Ch. VI.
the power of disallowance is statutory, as it was in the case of
the Australasian colonies ; but in the case of other colonies the
power rests on the charter, Order in Council, or other instru-
ment regulating" the constitution of the colony. Some of the
charters in the eighteenth centuiy required every law passed by
the colonial legislature to be sent home for the approbation of
the Crown, and the law, if not so approved was void, even though
it purported to be enacted by the government and the as-
sembly of the colony, and had been assented to by the governor.
But this provision has disappeared except in Gibraltar ^.
Acts passed by the legislature of a self-governing colony
have from time to time been disallowed on the ground that
they are idtra vires, or (as in the case of Acts relating to
marriage with a deceased wife's sister) on the ground of
general public policy.
Sometimes the Home Government cautions the colonial
Government as to the exercise of powers conferred by an Act,
or as to the mode of administering an Act, and on receiving
assurances in those respects from the colony does not disallow
the Act.
In other cases objections to an Act are pointed out, and if
they are removed by the colonial legislature within two years
no disallowance takes place.
Not infrequently, also, the Home Government points out to
the colonial Government, before a Bill proposed by them
is passed into an Act, that the Bill will interfere with
general imperial policy or interests, and suggests that it
should be altered to remove those objections, or that its
operation should be suspended until opportunity has been
given to the Home Government to reconsider the objections
in the light of the arguments of the colonial Government.
The colonial legislature usually amends the Bill, and the
necessity of disallowance is avoided 2.
* Cp. the case of tho Isle of Man, ch. ii.
2 For instance, a Copyright Act passed in 1889 by the Canadian
Il8 BRITISH RULE AND JURISDICTION
Ch. VI. In the case of Canada in 1873, an Act relating to oatlis,
and in 1878 one relating to merchant shipping were disallowed
as being ultra vires ^.
In 1874 an Act relating to copyright was disallowed on
the ground that it was in conflict with imperial legislation.
In 1875 the ministers were informed that if a Bill establish-
ing a supreme court in Canada did not preserve to the Crown
its right to hear the appeals of all British subjects who
desired to appeal, the Bill would be disallowed, and conse-
quently a saving clause was inserted in the Bill, and it re-
ceived the royal assent.
In 1876-7 a Queensland Act respecting Chinese immi-
gration was reserved by the governor for the Queen's assent,
and that assent was refused.
Within the last ten years there have been disallowed Acts
of the Australasian colonies relating to merchant shipping
(load line), to marriage with a deceased wife's sister, and to
other matters, while a criminal code has been amended so as
to avoid disallowance.
Where a colony is itself in the nature of a federation, the
Crown may not have the same direct control over the legisla-
tion of the local legislature as it has over that of the central
legislature.
In Canada. Thus in Canada the British North America Act, 1867^,
placed the provinces, in relation to the dominion, in a position
analogous to that in which colonies stand to the United
Kingdom.
It provided (s. 90) that the provisions of the Act respecting
the assent to Bills, the disallowance of Acts, and the signifi-
Parliament provided that it should not come into operation until
proclaimed by the governor-general ovring to objections by the Home
Government, and that proclamation has never been made. See also the
statement by Lord Knutsford, formerly Secretary of State for the Colonies,
in the report of the House of Lords Committee on Copyright, Farl P.,
1898, vol. ix. No. 393, p. 231, Q. 769. See also Todd (2nd ed.), pp. 157, 158.
* See return of Acts not assented to or disallowed, Farl. P., 1894, vol. xi.
No. 196.
* 30 & 31 Vict. c. 3.
COLONIAL GOVERNORS 119
cation o£ pleasure on Bills reserved, should extend to provin- Ch. vi.
cial legislatures as if they were re-enacted for the respective
provinces, with the substitution of the Lieutenant-Governor
for the Governor, and of the Governor- General for the Queen,
and of one year for two years.
The effect of this is (see ss. ^^, ^6, 57, and 66) that the
Lieutenant-Governor of a province assents to, vetoes, or
reserves, a Bill by the advice of his provincial ministers. If
a Bill is reserved, it is for the Governor-General to give assent
to it by the advice of the dominion ministers.
Further, within twelve months after an Act has been
assented to by the Lieutenant-Governor, the Governor-General
can disallow it.
A controversy arose between the Canadian ministers and the
Secretary of State, whether in this disallowance the Governor-
General was to act on the advice of liis ministers or in-
dependently.
The result may be said to be, that in the view of the
Canadian ministers, the Governor- General must act solely on
their advice ; while the view of the Home Government was that
the Governor- General, while bound to consult his ministers,
need not precisely follow their advice, but had a right to act
independently ^
The Canadian view can only apply to Acts of local concern.
If a provincial Act contains such provisions as would, if they
were contained in an Act of the Dominion Parliament, justify
the Governor-General in acting as an imperial officer, and
either refusing assent or reserving the Act for the King's
assent, even against the advice of his ministers ; or if the Home
Government informed him that the Act would, if it were an
Act of the Dominion Parliament, be disallowed, the Governor-
General ought to act as an imjierial officer, and to disallow it
even against the advice of his ministers.
Thus, if an Act like the recent Act of British Columbia
respecting the immigration of Japanese is contrary to treaties
' Pari, r., 1878-9, C. 2445, p. 109.
I20 BRITISH RULE AND JURISDICTION
Cn. VI. with Japan, it may become necessary for imperial reasons that
the Act should be disallowed, although the Canadian ministers
may be imable, having regard to public opinion in Canada, to
advise the disallowance.
It is, however, worthy of note that the Crown has not quite
the same power over the legislation of the local and sub-
ordinate legislature as it has over that of the central and
superior legislature.
Todd^ states the principles followed as respects the dis-.
allowance of provincial Acts in Canada. He says that the
Governor- General has in fact always acted on the advice of
his ministers, and that disallowance has been freely exercised,
but on the same principles as those observed by the Crown
in relation to the colonies, namely, ' that no mere calculation
of political expediency or difference of opinion as to a colonial
enactment would suffice to induce the Crown to veto the same,
provided only it was within the legislative competency of the
colony, and did not injuriously affect the interests of other
parts of the empire.'
The British North America Act, 1867, guarantees to every
province the right of local self-government in cases within
the competency of the provincial authorities, and therefore
does not contemplate any interference with the exclusive powers
of the provincial legislatures, except in regard to Acts wliich
are beyond ' provincial jurisdiction, or which assert a principle,
or prefer a claim that might injuriously affect the interests
of any portion of the dominion, or in the case of Acts which
diminish rights of minorities,' as regards education, which are
saved by s. 95 of the above Act.
The practice is for the minister of justice to report upon any
provincial Acts which he considers open to objection, as being
illegal, wholly or in part, or, in case of concurrent jurisdiction,
as clashing with the dominion legislation, or as affecting the
interests of the dominion generally.
No instructions have been given to the Lieutenant-Governors
' Pari. Gov. Col. (2nd ed.), pp. 521-5.
COLONIAL GOVERNORS 121
as respects tLe reservation of Bills, but they have in repeated Ch- VI.
eases resei-ved for the consideration of the Governor-General
Bills which appeared to them to contain doubtful or objection-
able provisions.
The power of disallowance, though for the most part only-
exercised in cases where the Acts were ultra vires, has been
sometimes invoked with respect to Acts ' which contain pro-
visions that were deemed to be contrary to sound principles of
legislation, and therefore likely to prove injurious to the
interests or welfare of the dominion."
On the other hand, provincial Acts have in some cases not Acts tiktm
been disallowed, though containing provisions regarded as necessari-
ultra vires. They are left to take the chance of being declared v ^^i^'
invalid by the courts, or of being amended by the provincial
legislature.
The cases before the Judicial Committee of the Privy
Council show that this course has been not unfrequently
adopted, as the question often has been whether a provincial
Act was or was not intra vires, and this question has been
argued on behalf of the attorney-general for the dominion on
the one side and of the attorney-general for the province on
the other. And the Judicial Committee has pointed out that
though a provincial Act is void if repugnant to a dominion
Act, which is within the powers of the Dominion Parliament,
yet that repugnancy must be settled by the courts of law, and
cannot be settled by the Dominion Parliament itself by a
repeal of the provincial Act ^.
It is also to be observed that the question of the validity
of either a dominion or provincial Act can be referred by the
Governor-General, or in the case of a provincial Act by the
Lieutenant-Governor, to the Supreme Court of Canada or
the province as the case may be ; and the decision upon that
reference is subject to an appeal to the King in Council, and
is heard by the Judicial Committee, just like any other appeal
* Ailomey-General f(yr Ontario v. Attorney-General for the Dominion of Canada,
L. R. [1896], A. C. 348.
122 BRITISH RULE AND JURISDICTION
Ch, VI, between private parties, and not as a non-judicial reference to
the Committee. In the United States the question of the
validity of legislation can only be tried in a case instituted for
determining the rights of private parties.
Tlie In a colony which is not self-governing, the governor is not
governor . . ' . ,
in a non- a constitutional sovereign, but the actual ruler. He, and not
"^overnino^ his ministers, is responsible for the conduct of the local affairs
colony. of the colony. He is responsible to the Home Government,
while his ministers are responsible to him, and not as in
a self-governing colony to the local legislature. Where the
local legislature comprises a representative assembly, the
governor and his ministers must so act as to avoid, as far as
possible, a deadlock by reason of the assembly refusing sup-
plies or otherwise creating great difficulties in administration.
But the ministers depend solely on the governor and not on the
assembly for their continual ce in office.
The governor in many such colonies has the sole initiative
for legislation, and, subject to the control of the Home Govern-
ment, appoints and dismisses the officers, and regulates the
finance and the details of the government of the colony.
But, on the other hand, in the exercise of these powers he
is, far more than the governor of a self-governing colony,
imder the control of the Home Government. The Colonial
Office Rules and Regulations show how small is his freedom
of action. While the most important officers are appointed
by the Home Government, he has to obtain sanction for the
appointment and dismissal of all but the humblest of the other
/ officers, to report on the officers^ conduct and efficiency, to
submit all important questions to the Home Government, and
obtain their sanction for new expenses and for the annual
budget, and he must teep the Home Government informed on
all the details of the administration.
CHAPTER VII
EXTRA-TERmTORIAL JURISDICTION
' The essence of political sovereignty is that it is legally Ch. VII.
omnipotent within its own territory, but that it is legally '
powerless within the territory of another state ' ^. . roignty
The principle thus laid down has been recognized by the V,™.'.*f *^ **^
Judicial Committee of the Privy Council^, and is also ex-
pressed in the maxim of the civil law, extra terntorium ius
dicenii imj)une haucl paretw. The application of the principle
differs as between civil and criminal proceedings.
With respect to civil proceedings the maxim actor sequitur Civiljuris-
J'oncm rei which is usually followed in countries governed by Eno^lish
Roman law, is not recognized by English law, and an English ^^''^''t^-
civil court has an almost unlimited jurisdiction to decide any
matter which may be brought before it, without reference to
the nationality or domicile of the litigants, or to the place ■»
where the cause of action arose.
In practice, however, English courts usually decline to exer-
cise their civil jurisdiction where the person on whom or pro-
perty on which the order of the court would operate is beyond
the reach of the court, so that the court would only stultify
itself by asserting jurisdiction, or where for any reason the
court is of opinion that the proceedings might with more
propriety have been taken elsewhere.
If, however, a ship comes within the jurisdiction of the
High Court of England, the court will under its powers as an
* Lewis, Foreifjn Junsdklion, p. i. Sco also p. 8.
^ Papayanni v. Uussian Steam Navig, Company {The Laconia), 2 Moore P. C.
(N. S.) i6r.
124 BRITISH RULE AND JURISDICTION
Ch. VII. Admiralty Courts arrest the ship so as to secure the execu-
tion of its orders.
The High Court in England can, upon cause shown, order
the defendant in an action to be arrested and to give security
not to leave England without leave of the court i. This
provision was substituted for the old law of arrest upon
mesne process, under which the first proceeding in every
action was to arrest a defendant and require him to give
security.
An instance will show more clearly the effect of the juris-
diction of English courts.
A foreign ship manned by foreigners is driven by stress of
weather into Falmouth ; one seaman may sue for his wages in
the Admiralty Division of the High Court; another may sue
the mate in the King^s Bench Division of the High Court for
damages for an assault ; a third, who has been mutinous and
put in irons by the master, may first get his release by habeas
corpus, and then bring an action in the King's Bench Divi-
sion for false imprisonment.
In the admiralty proceedings the ship might be arrested by
the court, and in the other proceedings the mate and master
might be arrested and required to give security not to leave
r England.
The master, on the other hand, cannot, until he returns to
his own country, take any proceedings to punish the seaman
for his mutiny or disobedience of orders, nor even for a crime
recognized as such by the laws of both countries, e. g. assault
with intent to murder, if it was committed on board the ship
beyond the three mile limit.
British ships, especially those which frequent American
waters, have been often detained by actions brought, for the
sake of extortion, against the ship or her officers on the eve
of her departure, by low crimps or their attorneys in the name
of some seaman of the ship. These actions usually take the
form of actions for wages or assault or false imprisonment,
' 32 & 33 Vict. c. 62.
EXTRA-TERRITORIAL JURISDICTION I25
and as there is usually some process similar to the English Ch. VII.
one by which either the ship or the master can be arrested
and required to give security, the master^ to avoid the deten-
tion of the ship, is obliged to yield.
Similar cases might arise in England, but in fact rarely
do so, because of the practice of the court which is stated
in the judgement of the Judicial Committee of the Privy
Council^ as follows: —
' Their lordships are of opinion that in the case of a suit
for wages by seamen for service on board a foreign vessel, the
Court of Admiralty has jurisdiction, but that it will not exer-
cise it without first giving notice to the consul of the nation
to which the foreign vessel belongs, and that if the foreign
consul by protest objects to the prosecution of the suit, the
court will determine according to its discretion judicially
exercised, whether, having regard to the reasons advanced
by the consul, and the answers to them offered on the part
of the plaintiff, it is fit and proper that the suit should pro-
ceed or be stayed/
In the case of a collision at sea between two ships, of which
one is a British ship, and even in some cases where both are
foreign ships, the British Court of Admiralty exercises juris-
diction if either ship has come within the territorial jurisdic-
tion of the court.
The application, however, of the principles and maxims
stated above to civil proceedings belongs to what is called
private international law, and is a matter of private rather
than of public interest, as it mainly affects the private
interests of the persons concerned.
The application of the same principles and maxims to Criminal
criminal proceedings raises questions of jurisdiction of more tioiTof
general public importance, especially as the above-quoted l^"S_li«h
maxim as to sovereignty is only in part true. Owing to local,
the increase of commerce and of communication in different
countries the citizens of one country travel and reside to
' Tlie Nina, L. R. 2 P. C. 38.
126 BRITISH RULE AND JURISDICTION
Ch. VII. a constantly increasing* extent in the country of another^ and
the question of the criminal jurisdiction of a state over its
subjects when outside its territory has become of considerable
importance.
The civil law maxim has in respect of criminal proceedings
its counterpart in English law, under which the jurisdiction
to try for crime is purely local.
Under the old English law a man could only be placed on
his trial for a crime by the finding of an indictment or accu-
sation on oath against him by a grand jury, i. e. a jury of the
freeholders of the county in which the crime was committed,
and he was then tried upon the accusation by a petty jury of
the inhabitants of the county before the coiu't of assize for
the county. And this, notwithstanding various modifications
made in modern times, still remains the basis of the English
criminal law.
Under that law an English criminal court has a local and
not a personal jurisdiction ; i. e. it has jurisdiction over
offences committed within the limits of the locality where it
has jurisdiction, but not over persons who have committed
offences outside those limits. The procedure for trial by
a grand jury and petty jury is based on this conception of
criminal jurisdiction; and the exceptions which have been
made to it have had to provide that the jurisdiction shall
attach as if the offence had been committed within the local
limits.
The Royal Commissions issued periodically under the Great
Seal for constituting the courts of oyer and terminer and of
gaol delivery (which together are commonly called the court
of assize), direct the judges to inquire of and try in each
county the offences committed there, and those courts can
only try persons indicted by the grand jury of that county ;
and the grand jury of a county cannot at common law inquire
into or indict a person for any offence committed out of the
county. The statement of the proper county, the vetiue as it
is termed, forms part of every indictment.
EXTRA-TERRITORIAL JURISDICTION 127
Still less then was it possible for the court of assize to try Ch. vii.
a person for an offence out of the British dominions. And
the ancient expression still used in every indictment^ though
no longer essential to its validity, that the crime is committed
against the peace of our Sovereign Lord the King, his Crown
and dignity, is an expression of the doctrine that the offence
must be committed within the King's dominions.
The trial, therefore, of British subjects in a British court
for offences committed outside of the King's dominions is
contrary to the procedure and practice, and to some extent to
the theory, of English common law.
There are various objections in principle to the trial of Trial of
persons for offences at a distance from the locality in which locality of
the offences are alleged to have been committed. At the ^"'^^•
locality the witnesses are usually on the spot, and although
the prosecution, with public money at its back, may be
able to obtain the presence of those witnesses at a dis-
tance from the spot, the person charged is much less able
to do so.
Much also of English liberty is due to the fact that a
person charged with an offence can only be tried by his
neighbours, and when he has the sympathy of those neigh-
bours he can act in politics and oppose the Crown, or the
ministers of State, with much more boldness than if he could
be tried amongst strangers.
Again, the removal of an accused person from the spot
where the offence was committed may in itself be a very
great hardship. Persons at a distance may often take a dif-
ferent view of the nature of the offence from those who are on
the spot.
The sound principle is that crime should be tried by the
authority which has jurisdiction at the spot where the crime
was committed*.
* See Lewis, For. Jur,, pp. 29, 30. Compare on these points Trevelyan's
American Rnolution, pj). 116, 146. In Ireland, to take a Protestant from
Antrim and try liim hy a Koman Catholic jury in Cork for an offonco
which aroused religious feeling, or vice versa, might be grossly imjust.
128 BRITISH RULE AND JURISDICTION
Ch. VII. There is indeed a grave practical difficulty in effectively
trying British subjects for offences committed out of the
British dominions, namely the difficulty of witnesses.
An English jury, and it is believed a colonial jury also,
will hardly ever convict upon purely written evidence, and it
is not only with juries, but wath judges, that this difficulty
arises. Thus the late Mr. Justice Coleridge, in a judgement,
said : —
' The most careful note must often fail to convey the evi-
dence fully in some of its most important elements — those for
which the open oral examination of the witness, in presence
of prisoner, judge, and jury, is so justly prized. It cannot
give the look or manner of the witness, his hesitation, his
doubt, or variations of language, his confidence or precipit-
ancy, his calmness or consideration ; it cannot give the man-
ner of the prisoner, when that has been important upon the
statement of anything of particular moment. Nor could the
judge properly take on him to supply any of these defects,
w^ho, indeed, will not necessarily be the same on both trials.
It is, in short, or it may be, the dead body of the evidence,
without its spirit, which is supplied, when given openly and
orally, by the ear and eye of those who receive it ; ' and other
judges have taken the same view.
The provision of the Merchant Shipping Act ^, that depo-
sitions taken before a justice or British consular officer ma}^
be used as evidence, has been nearly useless for the purpose of
obtaining convictions for offences.
This difficulty of obtaining a conviction without oral evi-
dence is a difficulty which does not, it is believed, exist, at
any rate to such a serious extent, in the case of foreign courts
in Europe, though no doubt it would arise in courts in the
United States.
Excep- There were two exceptions from the old English law. The
case of one was that in case of offences committed within military
crimes jj^^^g abroad : the Court of the Earl Marshal, now obsolete, had
com- ' '
mittetl 1 57 & 58 Vict. c. 60, s. 691, re-enacting s. 270 of 17 & 18 Vict. c. 104.
EXTRA-TERRITORIAL JURISDICTION 129
jurisdiction and tried the crime according to the law of Ch. VII.
that court, and not according to the course of the com-
^ in military
mon law. lines
The other was an exception which^ owing to the necessity l^t ^^.^
of the case applies universally in all countries, namely, where
the offence was committed at sea. In that case the Lord High
Admiral had jurisdiction to try the offence in his own court,
known as the Admiralty Court.
A ship is for most purposes of jurisdiction treated as part
of the territory of the nation to which it belongs, and though
English writers deny the soundness of the doctrine that a ship
is a continuation of the territory, yet in practice the conse-
quences of that doctrine largely prevail in England.
The Admiralty Court tried, according to the course of the
civil law, all offences committed on the high seas, which in
England means the sea below low-water mark, and in tidal
rivers up to the first bridged The trial by civil law is de-
clared in the preamble of the Act of 1536 ^ to be of the nature
that before any judgement of death, can be given against the
offenders they must plainly confess their offences (which they
will never do without torture), or else their offences must be
proved by eye-witnesses, who can seldom be got, because they
are often murdered by the offenders, and also, being mariners
and shipmen, often depart without long tarrying to the great
cost of the King as well as of those who would pursue the
offenders. The Act for this reason proceeded to give to a
special commission of oyer and terminer under the Great
Seal power to try persons who had committed treason, felony,
robbery, or conspiracy at sea, according to the course of the
common law, in any part of the kingdom directed by the
commission, as if the offence had been committed there.
In 1699 ^ power was given to the commission to try in the
' See 15 Rich. II, c. 3, an Act passed to restrict the encroachments of
the admiral on tlie jurisdiction of the county authorities.
^ 28 Hen. VIII. c. 15.
^11 Will. III. c. 7, which recites that in consequence of a8 Hon. VIII.
c. 15 trials before the admiral were disused.
JENKYNS K
130 BRITISH RULE AND JURISDICTION
Ch. VII. colonies or at sea piracies and robberies committed at sea, and
in 1 806 the two Acts were extended to all offences committed
at sea ^. Subsequent legislation has extended this law both
as regards the offences and the person by whom they are com-
mitted, so as to include persons who belong or have recently
belonged to British ships, even though they are not British
subjects. The flag is thus presumed to bring them within
British municipal law.
Existing The present law is as follows : —
trial of Any British subject who commits any offence on board
committed ^ British sliip on the high seas or in any foreign port or on
at sea. board a foreign ship to which he does not belong, can be
tried and punished in any British court which would have
cognizance of the offence if committed on board a British
ship wdthin the ordinary jurisdiction of the court ^.
Any person who commits an offence against property or
person at any place ashore or afloat, and is at that time, or
within three months previously has been, employed in any
British ship, can be tried and punished by the same court,
and in the same place, as if the offence had been committed
within the jurisdiction of the Admiralty of England ^.
Any person who, not being a British subject, commits an
offence on board a British ship on the high seas, and is found
within the jurisdiction of any court in the British dominions
which would have cognizance of the offence if committed
within the ordinary jurisdiction of that court, can be tried
and punished by that court *.
All offences against English law committed within the
jurisdiction of the admiralty can now be tried by the or-
dinary criminal coui'ts in England, and in some cases in the
colonies.
The English Criminal Acts of 1861 provide that any offences
' 46 Geo. III. c. 54.
' 57 & 58 Vict. c. 60, s. 686, re-enacting 18 & 19 Vict. c. 91, s. 22, and
30*& 31 Vict. c. 124, s. II.
' 57°& 58 Vict, c. 60, s. 687, re-enacting s. 267 of 17 & 18 Vict, c. 104.
^ 57 & 58 Vict. c. 60, s, 686, re-enacting s. 21 of 18 & 19 Vict. c. 91.
EXTRA-TERRITORIAL JURISDICTION 131
under them, i£ committed at sea, may be tried by the ordinary Ch. VII.
criminal courts in England ^.
But there is no power to try an offence committed on board
a foreign ship on the high seas by a British subject who
belongs to that ship.
The law on this subject, and on the position of persons Existing
detained on board a foreign merchant ship in an English port, j.'espects
is touched on in the following extracts. The law on the latter fletention
° of prison-
topic is not very clear. Halleck, in his International Law 2, ers on
states as follows : — foreign
' The rule of law, and the comity and practice of nations, ^ ^^^'
go much farther than these cases of necessity, and allow a
merchant vessel of one state, coming into an open port of
another voluntarily, for the purposes of lawful trade, to bring
with her, and keep over her, to a very considerable extent,
the jurisdiction and authority of the laws of her own country,
excluding, to this extent, by consequence, the jurisdiction of
the local law. This jurisdiction of a nation over its vessels,
while lying in the port of another, is wholly exclusive. Por
any unlawful acts done by her while thus lying in the port
of another state, and for all contracts entered into while
there, by her masters or owners, she is made answerable to
the laws of the place. Nor, if her master or crew, while on
board in such port, break the peace of the community by the
commission of crimes, can exemption from the local laws be
claimed for them. But the comity and practice of nations
have established the rule of international law, that such
vessel, so situated, is, for the general purpose of governing
and regulating the rights, duties, and obligations of those on
board, to be considered as a part of the territory of the nation
' 4 & 5 Will. IV. c. 36, s. 22 ; 24 & 25 Vict. cc. 94 and 96-100 ; and as to
the colonies 12 & 13 Vict. c. 96. As to the jurisdiction of the admiral
and its application to foreign ships in territorial waters, see the Fnuiconia
case, R. v. Keyn, L. R. 2 Ex. D. 63, and 4 1 & 42 Vict. c. 73, passed in
consequence of the decision in that case.
^ Sir S. Baker's cd., vol. i. p. 230. See also Wheaton, International Law
(8th ed.), ss. J02, 103.
K 2
132 BRITISH RULE AND JURISDICTION
Ch. VII. to which she belongs. The local authorities^ there£ore_, have
a right to enter on hoard a foreign merchantman in port^ for
the purpose of inquiry universally, but for the purpose of
arrest only in matters within their ascertained jurisdiction.
' It therefore follows, that, with respect to facts happening
on board which do not concern the tranquillity of the port, or
persons foreign to the crew, or acts committed on board while
such vessel was on the high seas, they are not amenable to the
territorial justice, and that all such matters are justiciable only
by the courts of the country to which the vessel belongs. So
firmly is this doctrine incorporated into the practice of nations
that the French regard it as a positive rule of international
law, and the French laws do not hesitate to prescribe that,
when crimes are committed on board a French vessel in a
foreign port by one of the crew against another of the same
crew, the French consul is to resist the application of the local
authority to the case.'
In 1856, the United States Attorney-General gave an
opinion ^ on the following case : —
An American merchant ship, the Atalanta, was on a voyage
to New York, and on the high seas a mutiny occurred, and
the ship put into Marseilles. On arrival, the mutineers, on
the application of the American consul, were imprisoned on
shore by the local authorities. Some of them were afterwards
placed on board the Afalanta for convej'^ance to the United
States on a charge of crime. Then the French local authori-
ties went on board the Atalanta, and, in spite of the remon-
strances of the American consul, forcibly resumed possession
of the prisoners, and replaced them in confinement on shore.
The United States Attorney- General advised as follows : —
' In my opinion, when the Atalanta arrived at Marseilles, the
master of that ship had lawful x:)0'\ver, with aid of the consul,
if requu'ed, to retain these men on board. Though not citizens
of the United States, they were American seamen under voluntary
contract for a voyage to New York, whom the local authorities
had no power to discharge from their contract.
^ Quoted in Forsyth, Constit, Law, p. 407.
EXTRA-TERRITORIAL JURISDICTION 133
' The consideration that they had committed crimes on board Ch. VII.
the ship, but not within the local jurisdiction, for which crimes
they were liable to be punished on her reaching New York, did
not give to the local authorities any just right to interfere. If
crime had been committed while the ship lay in the territorial
waters, then the local authorities, and they alone, would have had
jurisdiction, and might have gone on board to seize the prisoners
by force, but not when no act had been done by them to give
jurisdiction of the case to France.
' I transfer the question to the United States, and proceed to
suppose that a French merchant ship on her way to Marseilles
puts into New York in distress, having at the time mutinous
members of her crew confined on board. Could such persons in
such a case be lawfully taken away from the custody of the
master by the local authorities, Avith instrumentality of the writ
of habeas corpus or otherwise ? I think not.'
• •••••
' My conviction is clear that the local authority, even if it may
refuse to aid, cannot lawfully interijose to defeat, the lawful
confinement of any members of the crew by the master on board
the ship, with advice and approbation of the consul.'
• . • • • • •
(After stating the French view of the law as given above.)
' We do not go so far in this as France. I admit, as already
stated, the local authority in regard to crimes committed on
board a merchantman in the territorial Avaters ; but I deny that
the local authority has any right to interfere with persons law-
fully detained on board the ship by the laws of the country to
which she belongs, as for a crime committed on the high seas
among members of the crew, and not justiciable by the foreign
jurisdiction. France, at least, cannot deny to us, it would seem,
this exception, when she herself claims to extend it so much
further, and make it comprehend occurrences internal to the
crew, even though happening in port.
' The doctrine of the public law of Europe on this point is Avell
stated by Riquelme, as follows : " Crimes committed on the high
seas, whether on board ships of war or merchantmen, are con-
sidered as committed in the territory of the State to which the
ship belongs, because only the laws of the latter are infringed,
and consequently only the jurisdiction of the same is called upon
to adjudicate, whether the accused be of the nationality of the
ship or a foreigner, and whether the crime were committed against
a fellow countryman, or between foreign i)assengers.
' " If the ship on board of which the crime has been committed
arrives then at a ])ort, the jurisdictional right of the territory to
which the ship belongs over the accuseil does not on that account
cease. So that if one of these were a foreign subject to which the
poll at which the ship stops belongs, even in that case it is
the right of the captain to detain him on board, that he may
134 BRITISH RULE AND JURISDICTION
Ch. VII. be judged by the tribunals of the ship's country. And if this
passenger should get on shore, and should institute before the
tribunals of his country proceedings against the captain, the local
authority will be incompetent to judge the foreign captain, because
the fact in question occurred in a foreign country — that is, on
board a foreign merchantman on the high seas — and because, by
embarking in that ship, the party is presumed to have submitted
himself to the laws of the foreign territory of which the ship
constitutes a part."
' I confess myself wholly at a loss, therefore, to see on what
assignable ground of strict international right it was that the
local authority at Marseilles proceeded in withdrawing these
parties from their lawful confinement on board the Atalanta.
' If, indeed, it were the intention of France to try these men
for their crime, and it had been committed in the territorial
waters so as to be capable of being tried there, then, indeed, we
might see cause for withdrawing them from the custody of the
ship or consul. But no such thing is proj)osed in the despatch
of M. Baroche.
* If the legality of what has been done be admitted, then
municipal crimes perpetrated on the high seas will much of the
time escape unpunished. One term of every voyage is a foreign
port. If a crime other than piracy be committed while on the
way thither, and the criminal be detained on board the ship or
on shore, subject to the discretion of the consul, he cannot be
tried ; for the local authority cannot tiy him, and if he is to be
withdrawn from the custody of the ship he cannot be tried in the
country to which she belongs, and which alone has jurisdiction.
' Thus, the effect of the course entered upon by the local
authority at Marseilles, if it should be sanctioned by the
Emperor's Government, and admitted by the United States, would
be to discharge these criminals without punishment, to set the
example of immunity of crime in all such cases for the future,
and tend to the most calamitous consequences as respects the
safety of the commercial marine of both France and the United
States.'
• •••••
' Permit me to add that the United States, while recognizing
the local authority generally in the case of merchant ships, have
never claimed nor conceded it as to things not appertaining to
the territorial jurisdiction. We have constantly affirmed our
right to detain on board our ships, even in a foreign port, persons
held to such detention by the laws of the United States '.'
Phillimore^ says that the masters and crews of ships are
' The A.-G. referred to Mr. Legare's opinion of July 20, 1842, and to
Wheaton's Elements. See 2nd ed., by Lawrence, \>. 207, note ; and Hall,
International Law, part ii. ch. iv. §§ 58-60.
' International Law, vol. iii. p. 603.
EXTRA-TERRITORIAL JURISDICTION 135
deemed to possess the national character of the ships to which Ch. VII.
they belong during the time of their employment, and refers
to the case of the EndraugJit ^.
The following cases illustrate the difficulties which arise
with respect to offences at sea : —
Case a. — Three seamen on board a Swedish brig, committed lHustra-
,,., ^ .. -r.-! *^i^® cases,
murder and mutmy on the high seas. On arriving at Brisbane
they were handed over to the local police; and then their
extradition was demanded by the Swedish consul.
One of the men^ a Swede, was surrendered under the
Extradition Act, but two of the three men were British
subjects, and, though they could not be tried in Queensland,
their extradition could not be legally granted because the
extradition treaty does not allow the surrender of nationals.
Nor could they be delivered under the Foreign Deserters Act,
1 853 2, because that Act applies only to the delivery of
deserters, and not to the surrender of men for the pui'pose
of being tried for crime.
If the men, instead of being handed to the local police, had
been kept in custody on board the Swedish ship with a view
to being taken back to Sweden, and had sued out a habeas
corjjus, the question would have arisen whether they were in
legal custody while the ship was in port.
Case h. — An Englishman, one of the crew of a German
ship, while on the high seas, murdered another member of
the crew, also an Englishman, and was put in irons. On
the ship arriving at Table Bay in the Cape Colony, the
murderer, instead of being kept on board ship, was allowed
to land and go free. The authorities of the colony were
unable, when the captain of the ship applied to them, either
to try the man for the murder, or to detain him with a view
to extradition.
If the murderer had not been allowed to go free, and had
applied for a habeas corpus, the question would have arisen
■ I Rob., p. 23.
• 15 & 16 Vict. c. 26, now re-enacted iii 57 & 58 Vict. c. 60, s. 238.
136 BRITISH RULE AND JURISDICTION
Ch. VII. as in the last case, whether he was detained in legal custody
on board the German ship while in colonial waters at Table
Bay.
Case c. — The crew of an Uruguayan ship committed mutiny
and mm'der on the high seas, the culprits being two Englishmen
and an American, Avhile the murdered man was a Russian.
The ship was boarded by a French transport, and the culprits
were brought to Brest.
The French courts had no jurisdiction, as the crime was
committed by aliens on board a foreign ship.
The English courts had no jurisdiction, because the offence
was committed on board a foreign ship by Englishmen
belonging to that ship.
The Uruguayan Government declined to take any steps in
the matter.
Trial of As respects offences on land, legislation has made excep-
committed tions from the law of local jurisdiction to try them when
on land committed outside the British dominions, in the following
out of
British cases : —
nions. («) Treason;
[h) Murder and manslaughter;
(c) Offences against the Explosives Act, 1883 ;
(d) Slave trade offences ;
(e) Bigamy, when the first marriage was in the British
dominions ;
( /) Offences such as forgery or perjury committed abroad
with reference to proceedings in some English court;
[g) Possession of goods stolen abroad.
In cases {a) and [d), and sometimes in cases [e) and {/), the
offences can be tried in any British possession. In the other
cases the offences can be tried only in England.
The exceptions are defended on the ground that every British
subject, wherever he may be, continues to owe allegiance to
the Crown, and therefore to be subject for certain purposes
to English municipal law, and that consequently if he does
anything contrary to that allegiance or law he is liable, if
EXTRA-TERRITORIAL JURISDICTION 137
found within the jurisdiction of an Enghsh court, to be Ch. VII.
punished as if he had committed the offence \^ithin the
dominions of the Crown.
This doctrine would justify an Act enabling a British subject
to be punished not merely for the offences above mentioned,
but for all offences. It involves not merely the right to try
a British subject, but the duty of the British subject to obey
English municipal law. This doctrine of obedience is com-
paratively simple in the case of offences like murder, which are
considered to be offences by the law of every civilized country,
but would lead to extraordinary complications if it were
extended to all the numerous minor offences which may be
committed under English law. Practically, the doctrine must
be limited to the common crimes recognized as such by all
civilized peoples.
The doctrine is fully recognized by international law and Foreign
by the law of foreign countries. In, it is believed, all foreign
countries (except the United States, where the English common
law prevails), criminal jurisdiction is considered to be personal
and not local, so that the subjects of a state are liable to be
punished for crimes committed abroad^.
The French law was amended in 1 866, and provides for the
trial of every French subject accused of ' crimes ' abroad, thus
excluding ' contraventions ■* and ' debts.''
In England, the tendency has been rather to surrender
British subjects for trial abroad under the Extradition Acts
than to provide for their trial in England. The Extradition
Act, 1870, was so framed as to authorize the surrender of
them, though most treaties have been so drawn as to pre-
clude it^.
As respects offences committed on land abroad, the first
Act allowing them to be tried according to the course of the
^ Lewis, For. Jur., pp. 18-20. [See, however, Holland, Jurisprudence,
8th od., pp. 374-7.] Tlio priiiciplo of personal jurisdiction is recognized
in tlio Indian Code of Criminal Procedure (v. of 1898), s. 188.
* 33 & 34 Vict. c. 52. See li. v. Wilson, L. R. 3 Q. B. D. 42.
138
BRITISH RULE AND JURISDICTION
English
statute
law
relating
to these
offences.
Ch. VII. common law ^, was ^^ Hen. VIII. c. 23, which provided that i£
a person, being examined by the King's council or any three
of them on a charge of treason or murder, confessed the offence,
or was thought by the council to be vehemently suspected
of the offence, a commission of oyer and terminer might be
issued into such county as should be appointed by the King,
with power to inquire of, hear, and determine such offence in
whatever place, within the King's dominions or without, it had
been committed.
The Act was repealed as respects treasons in i554^' ^^^
rest of the Act, and the subsequent amending Acts, are now
replaced by the provisions of the Act of 1861 ^, under which
no examination of the Privy Council or special commission of
oyer and terminer is required, and any person charged with
murder or manslaughter on land, either within British
dominions or without, can be tried in any part of England
in which he is found.
The next general Act was in 1699*, and provides that if
any governor or commander-in-cliief, &c., of any plantation
or colony within His Majesty's dominions shall be guilty of
oppressing any of His Majesty's subjects within his govern-
ment or command, or shall be guilty of any other crime or
offence contrary to the laws of this realm that are in force
within his government or command, such oppression, crime,
and offence shall be inquired of, heard, and determined in the
King's Bench, or before such commissioners in such county of
this realm as shall be assigned by His Majesty's commission.
This was amended in 1803 by the Criminal Jurisdiction
Act of that year ^, which recites that persons holding employ-
ments out of Great Britain often escape punishment for
^ As to offences committed within military lines or at sea, see above,
pp. 128, 129. It was by a special commission under 33 Hen. VIII. c. 23
that Governor Wall was tried and convicted for murdering a negro twenty
years previously by illegal flogging while Governor of Goree, in West
Africa, 28 St. Tr. 51.
2 I & 2 Philip & Mary, c. 10. ' 24 & 25 Vict. c. 100.
* II Will. III. c. 12. 5 42 Geo. III. c. 85.
EXTRA-TERRITORIAL JURISDICTION 139
offences committed by them for want o£ courts having sufficient Ch. VII.
jurisdiction, and that such persons cannot be tried in Great
Britain, and that it is therefore expedient that the like pro-
visions to those contained in the Acts above mentioned should
be extended to the punishment of such offenders. It then
enacts that if any person employed by or in the service of
His Majesty in any civil or military station, oflBce, or
capacity out of Great Britain, or holding- or exercising any
public station, office, capacity, or employment out of Great
Britain, shall be guilty of any crime, misdemeanour, or offence
in the execution or under colour or in the exercise of any
such station, office, capacity, or employment, the crime,
offence, and misdemeanour may be inquired of, heard, and
determined in the King's Bench, either upon information or
upon indictment.
These Acts are still in force, though the High Court has
absorbed the King's Bench. Under them it has been held,
first, that the Act of 1699 only applied to misdemeanours, and
afterwards that the Act of 1802 also only applied to
misdemeanours, because it recited the Act of 1699 and
did not itself contain any express mention of felony, and
referred to proceedings by information as well as by indict-
ment ^ The Acts have been applied in fact to offences
committed outside the British dominions.
Similar provisions are to be found in several enactments
relating to India ^.
The Acts directing persons to be tried in England for
offences committed outside England involve the assumption
that English officials carry with them the obligation to obey
English municipal law, and that they will be punished
criminally if they fail to do so.
The Acts relating to India provide for Indian judges taking
evidence upon a mandamus from the King's Bench, if required
' R. V. Shawe, 5 Maule & Selwyn, 403.
" 10 Geo. III. c. 47 ; 13 Geo. III. c. 63, ss. 39-45 ; 24 Goo. III. sess. 2,
c. 25 ; 26 Geo. III. c. 57. Of these, 13 Geo. III. c. 63 extends to felonies :
see s. 45.
140
BRITISH RULE AND JURISDICTION
Ch. VII, for the purpose of a criminal prosecution in England under
the Acts, and upon a warrant from the Lord Chancellor
or the Speaker if required in the House of Lords or in the
House of Commons. The defendant in any such case
was to be allowed to cross-examine, and the depositions were
to be iised as evidence in England as if the witnesses were
present.
The Act of 1 802 ^ contained similar provisions as to evidence
in the case of prosecutions under that Act or under the Act
of 1699. It referred to taking evidence in capital cases,
which at that date might be assumed to include all felonies,
but, as above mentioned, the Act did not itself provide for
the trial of felonies. The Act was made use of in one well-
known case, that of General Picton, who was afterwards killed
at Waterloo ^.
It will be observed that none of these Acts make any
provision for trying a British subject for an offence com-
mitted on board a foreign ship to which he belongs. The
reasons for this provision not being made are as follows : —
A British sailor serving on board a foreign ship acquires for
some purposes the national character of the ship ^. He ceases
for the time to be subject to English municipal law, and
has contracted to be subject to the municipal law of the
foreign country to which the ship belongs so far as such law
affects seamen, and therefore to submit to the punishment for
mutiny or other offences against that municipal law. But he
has not submitted to be tried by British courts for offences
against the foreign municipal law ; and if he can be so tried,
and the rest of the crew cannot, justice may not be done,
especially as offences on board ship are often much mixed up
with questions of civil right.
No power
to try for
offence on
board a
foreign
ship to
which
British
subject
belongs.
' 42 Geo. Ill, c. 85,
" 30 State Trials, 225. As regards taking evidence in one part of the
British dominions for use in another, see also 6 & 7 Vict. c. 98, s. 4 ;
22 Vict. c. 20 ; and 48 & 49 Vict. c. 74.
•' See the quotation of United States Attorney-General's opinion above,
p. 132, and Phillimore, International Law, vol. i. p. 487.
EXTRA-TERRITORIAL JURISDICTION I41
The same argument does not quite apply to the case of Ch. Yll.
a British subject in a foreign colony on land, for not only are
the powers of the captain of a ship and his relations to the
crew of a special character, but if the British subject is on
land in a foreign country he is naturally amenable to the
courts of that country, whereas if he is on board a foreign
ship which puts into an English port, he comes within the
jurisdiction of a British court before he reaches the foreign
country.
Where the offence is, like murder or manslaughter, an
offence against all civilized law as well as against English
municipal law, the objection to trying the British sailor for
the offence is not quite so strong ; but those offences, when
committed on board ship, are often only the conclusion of
a series of acts connected with the civil rights or with the
discipline of the ship, and therefore closely connected with
the enforcement of the foreign municipal law as respects
merchant shipping.
Suppose, for instance, that a British seaman, being one of
the crew of a Swedish merchant ship, in the course of a dispute
about wages or food, commits some offence against the
Swedish merchant shipping law for which the master can
under Swedish law punish him. The seaman denies the
alleged offence and resists his punishment and kills the
master.
The seaman may wish to be tried by his own countrymen,
in the hope that a jury may believe that the foreigner had
bullied him. The Swedes, on the other hand, may wish, in
the interests of the discipline of their own merchant ships, to
try the man by their own law.
To allow the authorities in a British port into which the
Swedish ship put to try the man according to English law
would be inconsistent with the i-ule of international law,
whether as adopted by the French or as adopted by the
opinion of the United States Attorney-General ^
• Seo above, p. 132. Cp. also the Franconia case, R.v. Keyn, L. R. a Ex. D.
142
BRITISH RULE AND JURISDICTION
Ch. VII.
Offences
on land
in non-
Christian
or barbar-
ous coun-
tries.
Trial of
offences
by British
subjects in
special
areas.
(a) New-
found-
land.
The foregoing considerations do not apply to offences
committed on land. Wherever there is a civilized, or perhaps
it might be said an organized, Government there are local
coui'ts and local officials capable of dealing with such offences.
But where the Government of the locality is a Mahommedan
or other non-Christian Government, whose social organization
and views of justice differ widely from those of European or
Christian Governments, or where the territory is under a
barbarous Government, it is impossible to submit British
subjects to non-Christian law or to trust to the justice of local
courts, and therefore either crimes committed by British
subjects must be left unpunished or power must be taken for
the British Government to punish them. Hence arose what
are known as the capitulations, and consular jurisdiction.
Before the great extension in recent years of this jurisdic-
tion it had for the same reasons as those above mentioned
been found necessary to jirovide for the punishment of crimes
committed by British subjects in certain special areas in dif-
ferent parts of the world, which were not under any organized
government and to which these subjects resorted for fishing
and trade.
Thus as early as 1699 an Act, after reciting that thefts,
robberies, murders, and other felonies upon the land in New-
foundland and the islands adjacent thereto often escaped
unpunished because the trial of such offenders had hitherto
been ordered and adjudged in no other court of justice
but before the Lord High Constable and Earl Marshal in
England, enacted that all such offences might be tried
in any county in England by virtue of the King's commission
of oyer and terminer and gaol delivery^, as if committed
within the realm. This Act was repealed when an organized
Government was established in Newfoundland in 1832.
In 1 8 1 7 the settlement in the Bay of Honduras was in the
63. Piracy, being an offence against all nations, can be tried by any
court independently of the nationality of the offenders or their ship.
' 10 & II Will. III. c. 25, s. 13.
EXTRA-TERRITORIAL JURISDICTION 143
possession and under the protection of the Britisli Crown, but Ch. VII.
not within the dominions of the Crown, and offences com-
mitted there and also in the South Pacific, both on the high dm-as,
seas and on land outside the dominions of the Crown, by the Zealand
masters and crews of British ships and other persons who had Otaheite
for the most part deserted from them or left their ships and Pacific,
continued to reside in the islands, went unpunished, so that
great scandal was raised against the character of British and
other Em-opean traders. Consequently an imperial Act was
passed to provide that murders and manslaughters committed
on land at the settlement in Honduras by any person within
the settlement, or committed in the islands of New Zealand
and Otaheite, or within any other islands or places not within
the British dominions nor subject to any European state or
power, nor within the territory of the United States of America,
by any person sailing in or belonging to a British ship, or
who had sailed in or belonged to and had quitted any British
ship to live in any such island or place, might be tried and
punished in any part of the dominions of the Crown under the
Act^. The Act has been repealed as to Honduras, New
Zealand, and Otaheite, but is still in force for other islands
and places.
In 1828 the Act 2 which authorized the establishment of
courts of judicature in New South Wales and Van Dieman^s
Land authorized those courts to try all offences of whatever
nature committed on the sea or where the admiral hath juris-
diction, or committed in the Pacific Ocean by any such persons
as are specified in the foregoing provisions of the Act of
1817.
In 1836 it was found that as the inhabitants of the terri- (c) Cape,
tories adjacent to the colony of the Cape of Good Hope and
south of the twenty-fifth degree of south latitude were in an
uncivilized state, offences against their persons and property
' 57 Geo. III. c. 53. Sec also 46 Geo. III. c. 54, which was one of tho
Acts amending the Act 33 Hen. VIII. c. 23, before mentioned.
- 9 Geo. IV. c. 83.
144 BRITISH RULE AND JURISDICTION
Ch. VII. were frequently committed by British subjects with impunity.
Therefore an Act ^ was passed extending to all British subjects
within the above-mentioned territories the laws in force in the
colony for the punishment of crime, and providing that they
should be tried and punished as if they had been committed in
the colony. The Act also authorized the issue of commissions
to British subjects in these territories conferring on them the
powers of a magistrate for the purpose of arrest, committing
to custody, and bringing to trial all persons charged with
such offences^.
This Act was in 1 863 ^ repealed and re-enacted, with two
additions, the effect of which was
(i) to exclude places within the jurisdiction of any civilized
government ; and
(2) to give the courts of the colony of Natal concurrent
jurisdiction to try the cases.
(d) Sierra Provision similar to that made for the Cape was made in
1 861 for the territories adjacent to the colony of Sierra
Leone, extending five hundred miles east of that colony
as well as a considerable distance both north and south
of it 4.
(e) China. In 1 833 powers for the regulation of trade were vested in
certain officers called ' superintendents of the China trade,^ and
on the constitution of the colony of Hong-Kong the governor
of that colony was made chief superintendent of the China
trade. And in 1843 the Crown was authorized by a commis-
sion under the Great Seal to empower the chief superintendent
of the China trade, as long as he is also governor of Hong-
Kong, to legislate for the peace, order, and good government
of Her Majesty^s subjects being within the dominions of the
' 6 & 7 Will. IV. c. 57.
^ The Act contained an express saving that nothing in any commission
should be construed as investing the Crown with any claim to dominion
or sovereignty over the territories, or should derogate from the rights
of the tribes and people inhabiting the territories or their chiefs or
rulers to such sovereignty.
^ By 26 & 27 Vict. c. 35, now superseded by 53 & 54 Vict. c. 37.
* 24 & 25 Vict. c. 31, now superseded by 53 & 54 Vict. c. 37.
EXTRA-TERRITORIAL JURISDICTION 145
Emperor of China, or being- in any ship or vessel at a distance Ch. VII.
of not more than one hundred miles from the coast of China,
and to enforce such legislation by penalties and forfeitures.
Power was also given to the Queen in Council to make for
the government of Her Majesty^s subjects within these limits
any ordinance which she could make for the government of
the island of Hong-Kong^.
The Act of 1843 was repealed by the Foreign Jurisdiction
Act, 1878 -J which however reproduced the power of the
Crown to legislate for British subjects in vessels within one
hundred miles of the Chinese coast.
The provisions of the Acts of 181 7 and 1828 ^ for the trial (/) Paci-
fic,
of murders committed in the Pacific Ocean were not found
sufficient, and two Acts of 1872 and 1875 "* further dealt
with the matter, by creating certain offences connected with
the kidnapping of natives and by taking power to seize
vessels, and provision was made for the trial of offenders
under the Acts.
The Act of 1872 assumed that the offenders were to be .
tried in the courts of one of the Australasian colonies, and only
made provision for obtaining evidence beyond the jurisdiction
of those colonies. The Act of 1875 went further. It gave
jurisdiction to all Vice-Admiralty Courts as well as the High
Court of Admiralty of England to try and condemn the ships
seized, and also gave the Queen power to exercise jurisdiction
over British subjects within any islands in the Pacific Ocean,
not being within Her Majesty's dominions nor within the
jurisdiction of any civilized power, in the same manner as if
the jurisdiction had been acquired by the cession or conquest
of territory.
It also authorized the Queen : —
(a) To create the office of high commissioner for these
' 3 & 4 Will. IV. c. 93 ; 6 & 7 Vict. c. 80.
241 & 42 Vict. <;. 67, H. 6, now superseded by 53 & 54 Vict. c. 37,
s. 14.
^ See above, p. 143.
* 35 & 36 Vict, c. 19 ; 38 & 39 Vict. c. 51.
JESKYNS L
146 BRITISH RULE AND JURISDICTION
Ch. VII. islands, or some of them, and to confer on him power to make
regulation for the government of British subjects there ;
(b) To create a court of justice with civil and admiralty
jurisdiction over all British subjects within the islands to
which the authority of the high commissioner extended, with
power to try crimes either there or on the high seas ; and
(c) To legislate for British subjects in the islands.
The Act contained a provision saving native customs and
negativing any presumption of sovereignty, similar to that in
the Cape Act of 1836. The Act, though not repealed, is in
part made unnecessary by the Foreign Jurisdiction Act, 1890 ^,
the enactments of which are wider. Under the Acts of 1872
and 1875 a high commissioner has been constituted and courts
set up. In March, 1893, an Order in Council^ was passed
under the Act of 1890 continuing the high commissioner and
authorizing the appointment of a special commissioner and
also of an assistant commissioner, who is in effect a judicial
officer and head of the court.
The Order was declared to apply to persons who were British
subjects, and to natives and foreigners in so far as by reason
of being or having been on board a British ship or otherwise
they had come under the duty of allegiance to Her Majesty.
Crimes committed by any such persons against natives or
foreigners are to be tried as if they were committed against
British subjects.
But in civil suits the consent of the Government of the
foreigner has to be given, as in the case of other orders under
the Foreign Jurisdiction Acts ^.
Power is given to the high commissioner to legislate. In
practice the high commissioner is also governor of the colony
of Fiji.
In all three cases the Acts and Orders in Council have
a double aspect, that of making British subjects justiciable
for acts done out of the British dominions, and that of apply-
^ 53 & 54 Vict. c. 37, set out in App. VII.
* Stat. R. & 0., 1893, p. 312. ' Ibid. p. 347 ; and see ch. viii. p. 156,
EXTRA-TERRITORIAL JURISDICTION 147
ing to them British municipal law, either by implication, or Cii. VII
by express application of English or colonial law, or by giving
power to legislate for them.
No mention has been made above of extra-territorial iuris- Jurisdic-
tion to
diction exercised at sea in the case of sea fisheries, and for prevent
the protection of the revenue. The reason for the omission is and pro-
that such jurisdiction is rather a local extension of territorial *®*;* ^*r^
*" fisheries.
jurisdiction than a true exti-a-territorial jurisdiction. The
right to stop ships on the high seas for the purpose of pre-
venting smug'gling has been acquiesced in by different nations,
and therefore may be treated as having been recognized by
international law as an exercise of territorial jurisdiction ^.
The same is the case with some fisheries. In the case of
other fisheries, treaties have been made providing for the
regulation of the fisheries by the different states whose sub-
jects fish there. The question was much discussed in the
arbitration proceedings about the Behring Sea fur seals ^.
The extent to which British jurisdiction can and cannot be
exercised over foreigners in territorial waters ^ is also rather
a question of the limits of territorial than of extra-territorial
jurisdiction.
' Hall, International Law, part ii. c. 4. § 59 ; For. Jur., part iii. c. 4. § io3.
' Pari. P., 1893, United States, No. 3 (ch. vi) ; R. v. Keyn, L. R. a Ex.
I>- 63-
^ See Hall, For. Jur., pai-t iii. c. 4. § 107. The question was argued
in R. V. Keyn, ubi supra.
h 2
CHAPTER VIII
CONSULAR JURISDICTION
Ch. VIII. Consuls are appointed by the Crown in European and
other Christian states, and receive an exequatur from, and
civilized are recognized as British officials by, the Governments of
states. those states. But they perform merely ministerial acts, and
have no judicial power or coercive jurisdiction.
They may act as arbitrators between British subjects, and
they perform various duties under the Merchant Shipping-
Acts in respect of the documents which ships have to carry,
the transfer of ships, sending home destitute seamen, and
other matters. They also take affidavits and perform notarial
acts.
They may be authorized to solemnize marriages where one
of the parties is a British subject, but this authority can
only be given if the state in which the consul acts consents
to or acquiesces in its exercise. The Government of the
German Empire objects to the solemnization of marriages by
consuls, and consequently authority for this purpose is now
never given to consuls in Germany.
But in Mahommedan and other non-Christian states, whose
social system and habits and views of morality and justice
differ widely from those which prevail in Christian countries,
the consuls, though appointed and receiving an exequatur in
the same manner, exercise judicial and coercive jurisdiction.
This jurisdiction is exercised in Turkey under what are known
as the Capitulations, the origin of which, and indeed of con-
sular jurisdiction in general, goes far back into history.
Owing to historical reasons — partly to the Roman system
CONSULAR JURISDICTION I49
of leaving the coloniae under their local law and introducing Ch. Vlll.
the Roman law only for the purpose of Roman citizens, and ~
partly to other causes — it became a familiar practice to have tulations.
dwelling in a territory a body of persons having an internal
form of government different from that of the territory.
Cornewall Lewis observes that one form of extra-territorial
jvu-isdiction, which has existed from the earliest times, is
that of factories established for commercial purposes by a
more civilized, in the territory of a less civilized, nation,
with the consent of the latter : and that factories have
always been allowed to appoint magistrates of their own and
to exercise an independent jurisdiction, from the Greek fac-
tory of Naucratis in ancient Eg3'pt and the factories of the
Genoese and Venetians in the Levant in the middle ages to
those of the English East India Company in Hindostan ^.
The Hanseatic merchants had what was equivalent to a
factory in the Steelyard in London, which was known as the
GuUclhalla Ttidonicornm, had privileges granted to them under
Letters Patent, and were under an alderman appointed by
themselves ^.
England also had factories in the Levant under the Levant
Company, and in Russia. The Russia Company is virtually
extinct, but traces of it remain on the statute-book in the
provision of the Marriage Act as to marriages in a Russian
factoiy ^. The Levant Company was extinguished in 1835 *,
and its extinction led to the enactments relating to foreign
jurisdiction, the history of which is stated in the Laconia
case ^ and in the learned and interesting memorandum of the
late INIr. Hope Scott, printed in Appendix VI.
' Lewis on For. Jur., pp. 93, 141. See also Rashdall, Universities of Europe
in the Middle Ages, i. 153, 178.
* See Loftie, Hist, of London, vol. i. p. 172 ; and the Acts, 4 Edw. IV.
c. 5 ; 19 Hen. VII. c. 23.
■' 4 Geo. IV. c. 91, now repealed by 55 & 56 Vict. c. 23.
* By 6 Geo. IV. c. 33, which transferred the jurisdiction of the consuls
of the company to the consuls appointed by the Crown.
'■" Reportotl ;is I'upayanni v. The llussiun titeam Navigation and 'Trading
Company, 2 Moore, P. C. (N. S.) 161.
150 BRITISH RULE AND JURISDICTION
Ch. VIII. Briefly, the Capitulations were treaties with the British
Crown made by the Sultan of Turkey with respect to the
whole of the Ottoman dominions, directing disputes, civil
or criminal, between British subjects to be left to the decision
of the ambassador or consul according to custom, and pro-
viding that if a British subject is accused of crime or is sued
civilly by an Ottoman subject the case shall not proceed
unless some British official is present in court.
They also gave certain exemptions to the persons, houses,
and property of British subjects with respect to arrest,
entry, and taxation. They did not surrender the right to
punish British subjects for offences against the local law.
They did not in terms confer upon the British Crown or the
consul jurisdiction to try British subjects for offences, or to
determine disputes arising between British subjects ^,
Similar treaties Avere made from time to time by the
Sultan with other European nations. The jurisdiction under
them had been exercised for many years, and customs had
grown up under them by which the jurisdiction had been in
practice extended beyond the original grant.
These Capitulations were prima facie protective, i. e. were
for the protection of the British or other European subjects
against oppression by the Turkish authorities. The protec-
tive character of them is dwelt upon by Mr, Hall ^. The pri-
vileges granted were treated as involving an implied obligation
on the part of the British Crown to provide against the
concession of them injuring the Turkish sovereign, and there-
fore to maintain order among British subjects and repress
and punish crime ^.
In considering these Capitulations the international must be
distinguished from the municipal aspect.
Internationally, the Capitulations are made with the CroAvn,
^ See Capitulations of 1675 confirmed by the Treaty of the Dardanelles,
1809 (Hertslet, Commercial Treaties, ii. p. 346).
- For. Jur., part iii. ch. ii. § 65.
' See circular after passing of Act of 1843, Pari. P., 1845, vol. lii^
No. 127.
CONSULAR JURISDICTION 151
and the jurisdiction under them is to be exercised under the Ch. VIIL
authority of the Crown by officei-s called consuls.
The method in which the Crown exercises that jurisdiction
is a matter for mimicipal law. Practically until 1825 it was
exercised by the Levant Company and by the consuls of that
Company.
The abolition of the Company in 1835 g^-ve rise to the
difficulties specified in j\Ir. Hope-Scott^s memorandum ^. But
these difficulties arose out of defects in the municipal law,
and not out of any international complications.
The Foreign Jurisdiction Act of 1 843 ^ was passed in accor- The
dance with the recommendations in Mr. Hope-Scott's memo- juHsI^c-
randum. The Act recited that by treaty, capitulation, grant, ^'^^^ ^^^^t^,
1843-1890.
usage, sufferance, and other lawful means Her Majesty had
power and jurisdiction within divers countries and places out
of Her Majesty's dominions; and that doubts having arisen
how far the exercise of such power and jurisdiction was con-
trolled by and dependent on the laws and customs of this
realm, it was expedient that the doubts should be removed.
It then authorized the Queen to hold, exercise, and enjoy any
power or jurisdiction which Her Majesty might at any time
have within any place out of Her Majesty's dominions in the
same and as ample a manner as if Her Majesty had acquired
such power or jurisdiction by the cession or conquest of terri-
tory. It went on to enact that everything done in pursuance
of the power and jurisdiction should be treated as valid and
effectual as though the same had been done according to the
local law then in force in such place.
Consequently every Order in Council made for the purpose
of the exercise of jurisdiction takes effect only as a local law,
and therefore does not operate beyond the territorial limits of
the territory. It cannot therefore, without express power
from Parliament, authorize anything to be done outside the
territory, such as sending persons, whether convicted of or
charged with offences outside the territory, to a colony either
App VI " 6 & 7 Vict. c. 94.
152 BRITISH RULE AND JURISDICTION
Ch. VIII. to be tried or to undergo their sentence. Still less can it
authorize the deportation of persons for the purpose of pre-
venting them from either committing- offences or being an
annoyance to the sovereign of the territory.
Power of r^i^Q provisions of the Act of 1 843 included a power to send
tion. offenders convicted of offences to a colony to undergo their
sentence, and also to send them for trial to a British colony,
but not a power to deport them by way either of punishment
or prevention.
The power of deportation had been exercised for many
years before 1843, and continued to be so exercised after the
Act of 1843 came into operation^. After some years its
legality was challenged on the ground of its being an extra-
territorial power. It was then legalized by an Act of 1875 -.
An Act of 1878^ was also passed to give power to the
Crown to extend to any place where the Crown exercised foreign
jurisdiction certain imperial Acts dealing with extra-territorial
matters.
The same Act also enlarged the power of the Crown by
Order in Council to confer jurisdiction on colonial courts in
respect of matters, civil or criminal, arising within the territory
under the Foreign Jurisdiction Act.
It also provided that where a foreign country was not subject
to any Government from whom Her Majesty the Queen might
obtain jurisdiction, as recited in the Act of 1843, the Queen
should by virtue of the Act have jurisdiction over Her subjects
for the time being resident in or resorting to that country.
The object of this enactment was to enable British subjects
in uncivilized territories which were not under any protec-
torate or any civilized Government to be punished for offences
committed there. At the time when it was passed, British
subjects on the river Congo and in other parts of Africa had
committed heinous offences for which there was no power to
try and punish them.
* See ParL P., 1845, vol. lii, No. 127. - 38 & 39 Vict. c. 85.
^ 41 & 42 Vict. C.67.
CONSULAR JURISDICTION 153
The Act of 1 843 and all the amending- Acts were consoli- Ch. Vlli.
dated in 1890^.
In considering' the Orders in Council issued under the Acts The na-
it must be recollected that in any legal proceeding, civil or jurisdic-
criminal, the validity of any Order can be challenged on the ^q'".^",'
g-round that it is iiUra vires, as, for instance, that it dealt Acts.
with jurisdiction which the Crown did not possess or pur-
ported to confer powers in excess of the jurisdiction possessed
by the Crown.
The Acts provide that any court may refer to a Secretary
of State a question respecting- the existence and extent of
any power or jurisdiction of the Crown in any foreign country,
and the answer of the Secretary of State is final - ; but not
only would the answer of the Secretary of State be merely to
the question of fact as to what jurisdiction had been in an
intei-national sense acquired by the Crown, but it would be for
the court to draw the inference from the facts stated by the
Secretary of State, and that inference might be adverse to the
Order in Council.
The British Crown is by English law recognized as having-
comjilete power to govern and legislate for any country acquired
by conquest or cession. Consequently the effect of the Act
of 1843 was to confer on the Crown the same power of
administration and legislation in any foreign country so far
as the jurisdiction or power there acquired extends, even though
the Crown did not possess territorial sovereignty. It therefore
recognized the fact that sovereignty might exist without
territorial dominion. The sovereignty, however, which is con-
ferred may be considered part of the sovereignty naturally
belonging to the sovereign of the territory, and either delegated
or transferred by the territorial sovereign to the British Cro\vn.
But in some of the treaties there is no express delegation or
transfer. The jurisdiction in such eases is only implied, and
may therefore be considered to have been acquired by usage or
sufferance.
' 53 & 54 Vict. c. 37. '•' Section 4 (i) of 53 & 54 Vict. c. 37.
154 BRITISH RULE AND JURISDICTION
Ch. VIII, The Act of 1 843 does not confer territorial, or indeed any
jurisdiction on the Crown, but facilitates the exercise by the
Crown and its officers of the jurisdiction acquired ah extra.
The extent of the jurisdiction depends, therefore, on the
treaty or usage, and not upon the Act ^. Also the Act does
not expressly apply to cases where jurisdiction is acquired by
conquest or where sovereignty is acquired by cession, and it
may be doubted whether the words ' or other lawful means *
can be held to apply in either of these cases -.
The jurisdiction acquired has two aspects : —
(i) the administration of the law by British officers within
the dominions of another sovereign ; and
(2) the law which is applicable to British subjects for whom
law is to be so administered.
In either case it is assumed that if the Order in Council
with respect to the jurisdiction in any territory is silent,
English law applies to all British subjects within the territory,
but frequently the Order in Council legislates for those
subjects. It has been already seen that such legislation
cannot of itself extend beyond the territorial limits within
which the jurisdiction may be exercised. Hence the necessity
of expressly authorizing the Crown to apply the Acts dealing
with offences at sea or with fugitive offenders^ or other
matters beyond the territorial limits.
What per- In speaking of British subjects, difficulties may often arise
subject to ^^ ^^ y^^Q are the British subjects who arc entitled to the
the juris- protection and subject to the jurisdiction. Thus, for instance,
and what a question may arise whether the class would include an alien
plicable. naturalized in a British possession or the grandson born in
a foreign country of a British subject resident there, who is
only entitled to be deemed a British subject by virtue of the
* See r/te Imperial Japanese Govt. v. Peninsular and Oriental Steam Navigation
Company, L. R. (i895\ A. C. 644.
^ Hall, For. Jur., part iii. ch. ii. §80, considers that extradition implies
territorial sovereignty. It is in fact exercised under the Imperial Act
by British consuls.
^ 53& 54 Vict. c. 37, s. 5.
CONSULAR JURISDICTION 155
special statutes ^. It has also been the practice for a British Ch. Vlll.
consul to grant protection to divers persons who are sometimes
even natives of the foreign country in which he exercises
jurisdiction. These persons are called British protected
persons. The practice of granting this protection has of late
years been exercised very sparingly by British officials, but is
still exercised freely by the officials of other European coimtries.
The treaties usually refer only to British subjects.
The subjects of Indian native states under the protection of
the British Crown have been expressly directed by an imperial
Act to be treated in the same manner as British protected
persons under the Foreign Jurisdiction Acts ^, and the natives
of other British protected states may no doubt justly claim to
be treated as British protected persons for the piu-pose of foreign
jurisdiction.
By English law, a direction to a court to administer a par-
ticular law is considered to be an application of that law to
the persons to whom that law is to be administered. Con-
sequently a direction by an Order in Council to a consular
court to administer the law of England is prima facie an
application of the law of England to all British persons within
the jurisdiction of the court.
This application is natural enough as regards British
subjects who, as stated above ^, are as a rule;, when outside
the British dominions, subject to English law. But the
application of English law is not so obviously right in the
ease of British protected persons, especially where they are
subjects of a state which, though under the protection, is not
part of the dominions, of the British Crown, and for whom no
British legislature legislates, such, for instance, as the natives
of Indian or Malay protected states. In their case, however,
the sovereign of the protected state ought to delegate the
power to the British Crown to legislate for his subjects ; and
if there is no express delegation, such a delegation might
• This subject is dealt with in Hall, For. Jar., pp. 123-31.
* 53 &^ 54 Vict. c. 37, s. 15. ' Cli. vii. p. 137.
156 BRITISH RULE AND JURISDICTION
Ch. VIII. perhaps be implied by the fact of the protection as regards
the subjects when outside the territorial limits of the pro-
tected state. It might also be argued that if such a subject
accepts the protection of the British Crown in a foreign
country, he must also accept the burden of obedience to
English law and submit to the jurisdiction of the British
consul. In either case English law can only be applied as
in the case of a new British settlement, so far as it is
applicable ^.
In the case of foreigners, that is to say persons who are
not British subjects or British protected persons, there cannot
ordinarily without delegation from their own sovereign be an
obligation on their part to obey English law, nor any jm*is-
diction in a British court over them.
In a civil case a man may be justiciable in a court held by
authority of a sovereign who did not make the law applicable
to that man. The law so applicable may depend upon his
status or domicile, and what law is so applicable may in some
cases be a matter of great doubt -. But there is no reason
why such a foreigner should not sue a British subject in a
court of the British consul in accordance with the general
maxim actor sequitur forum rel. The foreigner in that case
-only accepts the jurisdiction j)ro ianto, just as where a foreign
sovereign sues an Englishman in England.
In a criminal case it is different. A man is, as a rule, only
liable to a criminal proceeding in any court where he is bound
to obey the law administered by the court. But here again
there seems no reason why a foreigner not subject to the juris-
diction of the court should not prosecute criminally a person
who, by reason of his British nationality, is subject to that
jurisdiction.
In the Ottoman dominions the custom had grown up before
1 843 of the courts dealing freely with all suits brought before
^ In the case of succession or marriage, or any otlier matter dependent
on a person's status or domicile, the law applicable to him would
usually not be English law.
" See Hall, For. Jur., p. 162.
CONSULAR JURISDICTION 157
them, at least in civil cases, whatever the nationality of the Ch. VIII.
parties ^ ; and even though the Ottoman Government did not
surrender the right of arresting and prosecuting a British
subject for crime, the custom had grown up of the prosecution
being frequently conducted in the consular court.
The first Orders in Council with reference both to civil and
criminal jurisdiction issued under the Act of 1843 directed the
consuls to continue to exercise all such power and jurisdiction
as had theretofore been customarily exercised by them or their
predecessors in office ; and the Order in Council issued in
June, 1844, gave the consuls the necessary power to try all
crimes and offences committed by British subjects within
the Ottoman dominions over which Her Majesty had juris-
diction.
In 1863 a case arose of cross suits between British subjects
and a Russian company, and the Judicial Committee of the
Privy Council decided that a British court could not exercise
any jurisdiction over a foreigner unless the foreign state
to which he belonged had consented to the exercise of that
jurisdiction^. It is probably due to this decision that the
provisions of the Orders in Council requiring the consent of
the Government of a foreigner who sued in the court or
prosecuted a criminal in the court were inserted.
The Ottoman dominions included Egypt, Tunis, Tripoli, In what
and Cyprus, in each of which there were local courts subject capituia-
to the Supreme Court of Constantinople. But the courts in ^^'^"^ ^*^^*'
Egypt are suspended as to mixed suits by an Oi'der in Council
of February, 1876^, so long as the international courts con-
tinue. Those in Tunis were abolished in 1889 as respects
all matters within the jurisdiction of the French courts
established there "* ; while the courts in Cyprus were super-
' Sec Pari. P., 1845, vol. lii, No. 127, which shows various stiits against
foreign defendants, and whicJi contains circulars issued after the passing
of the Act of 1843.
- The Laconifi, 2 Moo. P. C. (N. P.) 161.
' Staf. li. Jc 0. licv. , vol. iii. p. 690.
' Ibid. p. 697.
158 BRITISH RULE AND JURISDICTION
Ch. VIII. seded on Great Britain undertaking the administration of
Cyprus in 1878^.
The system of capitulations originally established for the
Ottoman dominions was extended to other Mahommedan and
eastern countries^ namely, Morocco, Muscat, Persia, including
the Persian coast and islands -, China, Corea, Japan, and
Siam.
The same system was also extended to Madagascar until
it became part of France in 1896, and to Zanzibar, which is
now a protectorate. But as regards these other countries
there is no ancient custom to justify anything done imder
the Order. The jurisdiction of the Crown depends upon the
treaty made in each case, and upon any practice which has
subsequently arisen, and which may be held to amount to
usage.
The treaties were not quite the same in all cases, and, as
mentioned before, did not in all cases delegate jurisdiction ^.
Abnormal In the treaty of December, 1884, with the King of the
jurisdic- Belgians, acting as founder of and in the name of the Inter-
British national Association for the Congo, power is given to the
Consuls in British Crown to appoint consuls to reside in the free states
the Congo
Free Under the Association. The Association undertakes to protect
these consuls, and there is a provision that every British
consul may hold his consular court for the district assigned to
him, and shall exercise sole and exclusive jurisdiction, both
civil and criminal, over the persons and property of British
subjects within the same in accordance with British law.
British subjects, however, are to obey the laws of the free
states applicable to foreigners, but infractions of them are
only to be justiciable by a British consular court.
This exclusive jurisdiction over British subjects seems very
exceptional. Nor is it quite consistent with the provision,
* Stat E. d: 0. Rev., p. 396.
^ A separate Order in Council has been issued for the Persian coast
and islands, but only applies to places within the Persian dominions
{Stat. R. & 0. Rev. , vol. iii. p. 796).
^ See the comments on these points in Hall, For. Jur., p. 149.
CONSULAR JURISDICTION 159
which appears to have been copied from the treaty with China Cii. VIII.
and Siam, directing the consul on complaint against a British
subject by an inhabitant to decide the matter amicably, and
if he cannot do so to request the assistance of the authorities
to decide it ^.
The Order for the Ottoman dominions of 187^ '^ contains a The
complete law for the administration of the Foreign Jurisdiction Dominions
Act in the Ottoman dominions. Order.
It pro^^des that the civil and criminal jurisdiction shall be
r administered according to English law for the time being,
and according to the procedure and practice of English courts,
but saves any reasonable custom existing in the Ottoman
dominions except where that custom is contrary to some
specific provision of the Order. The Order established a
Supreme Consular Court for the Ottoman dominions^ consisting
of a judge appointed by the Queen under Her Sign Manual,
who must have been an English or Irish barrister or a
Scotch advocate of not less than seven years' standing in
each case, and an additional judge appointed by a Secretary
of State, who must have been a judge of a British possession
or Cyprus, or such a barrister or advocate as above men-
tioned.
The judge and additional judge form the court of appeal
from the court for Egypt.
There is a chief consular coui't for Egypt, to which judges
are appointed by separate warrant under the King's Sign
^Manual.
Every commissioned consular officer, with such exceptions
as a Secretary of State makes, forms for his own consular
district a provincial consular court, and an uncommissioned
consular officer, with such exceptions as the Supreme Court
makes, also forms a provincial court.
All resident British subjects, except native Indians, are
required to register themselves at the consulate, and on
failure to recrister are not entitled to be considered British
-t>'
* Slata Pajpers, vol. Ixxv. p. 29. ^ Stat. E. <£• 0. Rev., vol. iii. p. 587.
l6o BRITISH RULE AND JURISDICTION
Ch. VIII. subjects^ and are liable to a fine and are amenable to the
criminal jurisdiction of the court. A native Indian subject
may or may not register himself^ but i£ unregistered is not
entitled to protection and is not within the jurisdiction of the
consular court.
The Supreme Court ordinarily sits at Constantinople^ and
has an original jurisdiction concurrent with the court of
Egypt and the provincial courts. The judge can visit in
a magisterial or judicial capacity any place in the Ottoman
dominions and there try any case, civil or criminal. The
rules of procedure for the court, the fees to be taken, and
the provisions as to summoning witnesses are contained in
the Order. Certain cases are tried either by a jury or with
assessors.
Where an Ottoman subject or a foreigner desires to insti-
tute in any of these courts a suit against a British subject,
or a British subject desires to institute a suit of a civil nature
against an Ottoman subject or a foreigner, the court may
determine it, provided that the subject or foreigner first
obtains and files in the court the consent in writing of the
competent authority on behalf of the Ottoman Porte or of
his own nation to his submitting and does submit to the
jurisdiction of the court, and if required gives security to
abide the decision of the court and to pay fees, damages, &c.
If the evidence of a British subject is required in any
court or before a judicial officer of the Ottoman dominions
or a foreign state in amity with Great Britain, the court can
compel the attendance of that subject.
The Supreme Court has jurisdiction in bankruptcy, vice-
admiralty as regards vessels coming within the Ottoman
dominions, lunacy, matrimonial causes (except the juris-
diction relative to dissolution, nullity, or jactitation of
marriage), and is a court of probate.
As regards criminal matters, crimes which in England are
capital are tried by the Supreme Court with a jury, or,
if a jury cannot be obtained, with an assessor or assessors.
CONSULAR JURISDICTION i6l
The lists of jurors are maxie out annually from among the Ch.viii.
male British subjects resident in the dominions having a com-
petent knowledge of English and having a gross income of
not less than £^o a year. Other crimes above the degree
of misdemeanour, if not tried summarily, are tried with a jury
or assessors. Other classes of criminal cases may, having
regard to the law and practice of England, be directed by the
Supreme Court to be tried summarily.
Before the Supreme Court was constituted with judges of
legal training capital crimes were sent to Malta for trial.
The provincial courts can only try cases which can be
adequately punished by imprisonment for three months or
a fine of £20. In other cases the court must either send for
trial to England, Bombay, or Malta, or reserve the case
for the Supreme Court or in Egypt for the chief court for
Egypt.
The court for Egjrpt and every provincial court must send
to the Supreme Court a report of the sentence of the court in
every case tried on indictment, and the Supreme Court, if
required by the Secretary of State, transmits the same to him.
A person convicted elsewhere than in the Supreme Court
has an appeal to the Supreme Court, which may report
to the Secretary of State recommending the mitigation or
remission of any punishment awarded by the inferior court.
In capital cases the judge orders judgement of death to be
entered on record. The judgement is then reported, together
with the notes of evidence, to the Secretary of State for
his direction.
An offender sentenced to imprisonment may be imprisoned Imprison-
at any place in the Ottoman dominions approved by the dJporta-
Secretary of State, or may be sent, if a native of India, *'^'^"*
to Bombay, and in any other case to Malta or Gibraltar, to
undergo his sentence.
Where it is proved that there is reasonable ground for
apprehending that a British subject is about to commit
a breach of the public peace or that his acts are likely to
JENKYMS U
l62 BRITISH RULE AND JURISDICTION
Ch. VIII. produce a breach of the public peace, or where he has been
convicted of any crime before the consular court or before any
court in the sentence of which the consular officer concurs, the
court may require him to give securit}^ for his future good
behaviour, and if he refuses may deport him, if a native of
India, to Bombay, if a native of Malta, to Malta, and if a
native of Gibraltar, to Gibraltar ; in any other case to England.
If the order is made by any court other than the Supreme
Court there is an appeal to that court. The person ordered to
be deported is embarked in custody on board any British or
other fit vessel bound to the place of deportation, and if he
returns is liable to imprisonment and fine.
Other The Orders made for other countries — Persia, Morocco, the
Jurisdie- Persian coast and islands, China, Japan, Corea, Siam — arc all
*'®?^ . framed on the lines of the Ottoman Order, though they vary
in detail.
Persia and Thus in Persia there is no special ludicial officer. The
Fei'sian
(lulf. consul generally holds the chief court.
That Order also gives the consul-general power to legislate
for British subjects and for British protected subjects so far
as they are subject to the Order. It also declares that crimes
and wrongs affecting natives or foreigners are punishable or
cognizable with the consent of the native, or foreigner, as if
they affected British subjects.
A separate Order has been made with respect to the Persian
coast and islands, i.e. the coast and islands of the Persian
Gulf and Gulf of Oman within the dominion of Persia.
Under this Order the consul-general or political resident in the
Persian Gulf holds the court, and Indian, and not English,
law is applied ^
Morocco. In the case of Morocco special provision is made to meet
a special provision in the treaty as to mixed civil cases between
British and Moorish subjects.
The Morocco Order also gives the Supreme Court of Gibraltar
concurrent original jurisdiction in civil matters between British
^ This Ox'der is applied to the Somali coast protectorate.
CONSULAR JURISDICTION 163
subjects, and iu criminal cases where the defendant is a Ch. VIII.
British subject. It provides for the recovery in the consular
com-t of certain taxes due to the Moorish Government by-
British subjects and for the pimishment of smuggling.
The Order for Siam extends to foreigners whose Governments siam.
have consented to the exercise of power by His Majesty. It
also makes penal certain acts by British subjects, and, like the
Persian Order, gives the consul-general power to legislate for
British subjects resident in or resorting to Siam.
For China and Corea there is a Supreme Court, with a chief China and
justice and an assistant judge, who sit at Shanghai. These
judges are all appointed by the King under Royal Sign
Manual, and must be members of seven years' standing of the
Bar of England, Scotland, or Ireland.
The King's Minister in China can legislate for the govern-
ment of British subjects in or resorting to China ^,
In Corea the consul-general holds the com-t, subject to an
appeal to the Supreme Court for China and Corea.
The consular jurisdiction formerly exercised in Japan has Japan,
recently come to an end, in pursuance of the treaty of July
16, 1894 2, and the British Crown has now no more juris-
diction over British subjects in Japan than in any European
state.
A curious result of the foreign jurisdiction formerly exer-
cised in Japan occurred recently. In 1893 a collision occurred
in Japanese waters between the Chishima, an imperial
Japanese cruiser, and the Ravenna, belonging to the British
P. and O. Steam Navigation Company. The Japanese
Government sued the company in the consular court to
recover damages. The company counterclaimed against
the Government, and urged that as the Government
had submitted to the jurisdiction of the court, the court
had jurisdiction to try the claim of the company against
' Cp. power of King in Council to legislate for British subjects in
China or at sea within 100 miles of China, 53 & 54 Vict. c. 37, s. 14,
re-enacting 6 & 7 Vict. c. 80 ; 41 & 42 Vict. c. 67.
* See the Orders in Council of Oct. 7, 1899, and March 3, igoo.
M 2
164 BRITISH RULE AND JURISDICTION
Ch. VIII. the Government. But the Judicial Committee held that the
treaty gave no jurisdiction in any claim against a Japanese
subject, to say nothing of the Government, and that the
Government could not be said to have submitted to the juris-
diction because, having surrendered by treaty the right to
try a claim against a British subject, they had no option but
to sue the company in the British court ^.
^ Imperial Japanese Govt. v. P. & 0. Co., L. R. [1895]. A. C. 644. The
judgement observes that the Order in Council could not confer on the
British court a wider jurisdiction than is given by the treaty, but
possibly the court might be bound to conform to the Order and leave
tlie party to a diplomatic remedy ; also that the Order prescribes how
the jurisdiction is to be exercised, but what jurisdiction the court
possesses must be determined ab extra.
CHAPTER IX
JURISDICTION IN BRITISH PROTECTORATES AND THE
POSITION OF FOREIGN SUBJECTS IN THEM
A British protectorate is a country which is not witliin Ch. ix.
the British dominions, but as regards its foreign relations is
under the exclusive control of the King, so that its govern- of British
ment cannot hold direct communication with any other foreign P''?*^f °'
power, nor a foreign power with that government ^.
The British Crown, either by treaty, by sufferance, or by
force, assumes over a defined territory a protectorate in this
sense, and thus excludes the government of the protected
territory from making treaties with other foreign powers, or
declaring peace or war with them, or receiving ambassadors
or consuls from them ; whilst, on the other hand, the Crown
undertakes to protect the inhabitants of the territory from
interference by any foreign power.
In other respects the powers of the Crown over the pro-
» See Sir H. Maine, quoted below, p. 167, and Sir Travers Twiss, Law
of Nations, ed. 1884, §§ 25, 26 : 'There are exceptional instances in which
the communications of an independent state with foreign powers are
carried on tlirough the medium of a third power, wliich lias been
acknowledged by public treaties as the authorized organ of such com-
munications. In certain of these cases the intermediate power has
been recognized by foreign states as exercising a protection over the
weaker state, and has been acknowledged in terms as the protecting
power. ... In the case of protected states, which are not members
of the family of nations, the relations between them and the protecting
power are for the most j>art founded upon some compact between them ;
but as the protected state does not maintain any relations whatever
witli foreign powers, it is virtually a dependency of the protecting power,
being distinguished from ordinary dependencies in this respect, that its
rights are secured and its obligations limited by compact.'
1 66
BRITISH RULE AND JURISDICTION
Ch. IX.
Effect of
exclusion
of exter-
nal rela-
tions.
tected territory vary with the different cases, but in every
case the territory is, as respects internal sovereignty^, left
more or less under an independent government.
By the exclusion of external relations' with foreign powers,
the protector is held according to international law to assume
the external sovereignty of the protected territory, and the
territory becomes what is termed by international writers
a semi-sovereign state, or, as Sir T. Twiss prefers to call it,
a ' protected independent state ' ^.
Sir Henry Maine says ^ : — ' It is necessary to the Austinian
theory that the all-powerful portion of the community which
makes laws should not be divisible, that it should not share
its power with anybody else, and Austin himself speaks with
some contempt of the semi- sovereign or demi-sovereign states
which are recognized by the classical writers on international
law. But this indivisibility of sovereignty, though it belongs
to Austin's system, does not belong to international law.
The powers of sovereigns are a bundle or collection of powers,
and they may be separated one from another. Thus a ruler
may administer civil and criminal justice, may make laws for
his subjects and for his territory, may exercise power over
* The division of sovereignty into internal and external is a conve-
nient form of expression, and seems well established in international law.
External sovereignty means ' the independence of one political society
in respect to all other political societies,' the mark of which is complete
liberty of action in its relation with other states, i. e. power indepen-
dently of any other state to make peace or war with, receive embassies
from, and conclude treaties with other states.
Internal sovereignty means the sovereignty ' which is inherent in the
people of any state or vested in its ruler by its municipal constitution,'
and the marks of it are power to organize its life in its own way and
to have its own legislature and judiciaiy. Wheaton, § 5, pp. 35, 36 ;
Hall, International Laio, pp. 50, 51 ; Calvo, Le droit international theorique ef
pratique (Paris, 1880-1), §§ 39-41, 104, 106, 734.
'^ The recognition of these semi-sovereign states seems universal.
See, as respects the United Kingdom, Phillimore, Int. Law, vol. i.
p. 94 seq. ; Hall, Int. Law, §§ 3, 4, pp. 24, 25; as respects United States,
Wheaton, § 13, p. 59 ; Halleck, ch. iii. § 17, p. 65 ; as respects France,
Calvo, §§ 41, 62, 734 ; as respects Germany, Heffter, transl. by Bergson,
1866, §§ 18, 19; and Bluntschli, transl. by Lardy, i88i, § 78.
^ International Law (1888), p. 58.
I
BRITISH PROTECTORATES 167
life and death, and may levy taxes and dues, but nevertheless Ch. IX.
he may be debarred from maldng war and peace, and from
having- foreig-n relations with any authority outside his terri-
tory. This, in point of fact, is the exact condition of the
native princes of India ; and states of this kind are at the
present moment rising in all the more barbarous portions of
the world. In the protectorates which Germany, France,
Italy, and Spain have established in the Australasian seas, and
on the coast of Africa, there is no attempt made to annex the
land, or to found a colony in the old sense of the word, but
the local tribes are forbidden all foreign relations except
those permitted by the protecting state/
The instances given by writers on international law of instances
semi-sovereign states are all in Europe or bordered by the ^ ^^^^^'
!Mediterranean Sea, with the exception of the Indians in the states.
United States of America. In two well-known cases the
Supreme Court decided that a tribe of Indians had remained
an independent state under the protection of the United
States, by virtue of treaties entered into originally with the
British Government, and subsequently with the United
States ^.
Since the Ionian Islands became part of the kingdom of
Greece in 1863, there has not been any case of a civilized, or
one should rather say a Christian, state under British protec-
tion ; and all the protectorates which are now of so much
importance, whether under the protection of the United King-
dom or of other states, are non- Christian.
Writers on international law never worked out the result Protcc-
„ , , , . i , T • • 1 -i torate.sand
01 a state bemg protected or semi-sovereign, even where it interna-
was Christian, and they did not until recently even notice ^^o"*^-
the position of a protected non-Christian state. This posi-
tion, though unrecognized by international law writers and
indeed by every foreign power except Spain and Holland,
had been worked out in practice in India to a large extent
' Whcaton (<J. 1863), § 14, p. 68. Sir T. Twiss, however, refers to
the native states of India {Law of Nations, ed. 1884, § 26).
l68 BRITISH RULE AND JURISDICTION
Ch. IX. and with very great variety. During the last twenty years
the question has, in the scramble for Africa, assumed European
importance, and a system- is now being gradually developed
not merely as regards British protectorates, but also as regards
those of other Powers.
In this respect, as in others, e.g. consular jurisdiction,
international law alters and grows with changing circum-
stances, international compacts, and even municipal law ;
while international law writers invent principles or apply old
principles so as to suit accomplished facts.
It is generally recognized that the niles of international
law apply only to Christian countries in Europe and America,
and that if they apply at all to non-Christian states ^ they so
apply with considerable modifications. Modifications must
therefore also be made in the application of international law
to the relations of Christian states inter se in their dealings
with non-Christian states. It is said that Great Britain was
the only country which refused at the Berlin Conference of
1884-5 to recognize the necessity for such modifications.
Germany, at any rate, recognized the necessity, and in an
early stage of the modern African protectorates Prince Bis-
marck is said to have declared that he intended to make the
African protectorates of which he had been the founder
resemble India under the government of the East India
Company ^.
British The various protectorates of Great Britain may be grouped
protec- „ ,,
torates: as toliows : —
The Indian group, consisting, apart from the protected
' Recent treaties with Japan (see p. 163 supra) and the decision in
Brinckley v. A.-G., L. R. 15 P. D. 76, as to Japanese marriages, seem to
place Japan in the same position as Christian states.
^ Twiss, § 96 ; Phillimore. vol. i. pp. 80-87 ; Hall, Int. Law, p. 130,
§ 38 ; Calvo, §§ 25, 69, 70. International law writers refer in a very
meagre manner to some of these modifications in connexion with the
Mohammedan states bordering on the Mediterranean, but (with the ex-
ception of Twiss [and Westlake, Chapters on the Principles of International Laiv,
p. 211 sqq.]) make no reference to India or anj' Asiatic barbarous states.
See also Maine, Inf. Lmv, p. 59 ; Hall, For. Jur,, p. 207, § 94.
BRITISH PROTECTORATES 169
states in India, of the protected local chiefs on the Arabian Ch. IX.
coast near Aden and the island of Socotra, all under the
Indian Government ; of the Somali coast, lately transferred to group,
the management of the Secretary of State for Foreign Affairs ;
of the Maldive Islands under the Government of Ceylon ; and
of vai'ious islands under the Government of Mauritius. In
these protectorates there is no interference with the internal
government, nor indeed any interference except the payment
or receipt of a subsidy, and the exclusion of dealings with or
interference by other nations.
The Malay group, consisting of the Malay states in the Malay
Burmese peninsula near the Straits Settlements, and the three
protectorates in Borneo — North Borneo, Brunei, and Sarawak
— administered under the Colonial Secretary.
The African group, consisting of British Central Africa, African
East Africa, Uganda, and Zanzibar, which are administered *
under the Secretary of State for Foreign Affairs; and of
Nigeria (including the territories recently under the Royal
Niger Company ^), the territories now under the British South
Africa Company, and Basutoland and British Bechuanaland,
which are administered under the Secretary of State for the
Colonies.
In the Pacific there are still one or two groups of pro- Tho Pacific
tected islands, but other places have been made part of colonies, ^
such as the Cook Islands and the Kermadec Islands, now
united to New Zealand, while the British part of New
Guinea has been made into a separate colony, administered
under the superintendence of the Government of Queensland.
Norfolk Island is administered by New South Wales. Pit-
cairn Island has been placed under the High Commissioner
of the Western Pacific. *
Of the Malay group, the protectorates in Borneo were all Borneo.
made such in i8(S8 by three separate agreements between
the British Crown on one side and the chartered North
' [The charter of this company has now been revoked ; see 62 & 63
Vict. c. 43, and the Southern Nigerian Order in Council, 1899.]
170
BRITISH RULE AND JURISDICTION
Ch. IX.
Sarawak
and
Brunei.
Borneo Company on the other. In each case the agreement
provided that the territory should continue to be governed
as an independent state under the protection of Great Britain,
and that this protection should confer no right on the Queen^s
Government to interfere with the internal administration of
the state further than is provided by the agreement, or (in
the case of North Borneo) by the charter.
The relations between each state and all foreign states
were to be conducted by Her Majesty's Government and in
accordance with its directions, and the protected state agreed
to abide by and give effect to the decision of Her Majesty's
Government in the case of any difference with a foreign
state.
Her Majesty was to have the right to establish in any part
of the state consular officers, who would receive exequaturs
in the name of the Government of the state and enjoy the
privileges usually granted to consular officers.
British subjects were to have the rights of the most
favoured nation and of the subjects of the state.
No cession was to be made to any foreign state or the sub-
jects thereof without the consent of Her Majesty's Govern-
ment.
In the case of Sarawak and Brunei the Crown must de-
termine the questions of succession. In Brunei exclusive
jurisdiction, civil and criminal, over British subjects and
their property was reserved to Her Britannic Majesty, to be
exercised by such consul or other officers as Her Majesty
might appoint for the purpose; and the same jurisdiction was
reserved over foreign subjects enjoying British protection,
and also in cases between British subjects and the subjects
of a third power whose GovernmAit consents. In mixed civil
suits between British subjects and the subjects of the pro-
tected state the trial was to be in the court of the defendant's
nation, but in the presence of an officer of the plaintiff's
nation ^.
^ See Hertslet, Commercial Treaties, vol. xviii. pp. 225-8. It must be
BRITISH PROTECTORATES 171
The Brunei Order in Council (November 22, 1890) pro- Ch. ix.
vides for the constitution of Consular Courts to be held at
Brunei and elsewhere, from which there is to be an appeal to
the Supreme Court of the Straits Settlements; these courts
are to have civil and criminal jurisdiction, and not only over
British subjects and their property, but also over foreigners
whose Government has consented to the exercise of such
jurisdiction by the British Crown, and over foreign plaintiffs
who comply with certain conditions.
The North Borneo Company obtained a charter from the
Crown, with power to accept a concession of government fi'om
the Sultan of Brunei, and the Company does in fact exercise
sovereign powers and issue coins, and does not trade. The
governor of North Borneo, though appointed by the Company,
has to be approved by the Secretary of State.
In the case of Sarawak, the Rajah had obtained the con-
cession of the government from the Sultan of Brunei.
These two cases are anomalous, inasmuch as according to
constitutional doctrine any sovereign power acquired by
a British subject is acquired on behalf of the Crown, whereas
the agreement of 1888 recognized the Company in the one
case and the Rajah in the other as independent states,
exercising sovereignty independently of the Crown.
The Niger Territories were until recently imder the Niger The Niger
Company, which had obtained a charter from the Crown, and ^.Q^f"'
had been recognized by international agreements made with
Germany and France. The charter authorized them to exe-
cute all sovereign rights acquired by them. These rights
depended partly upon cession and treaty, and partly upon
what had been acquired by force, or by the fact of the
r
obsei-ved that the treaties refer to Her Majesty and Her Majesty's
Government without any mention of the Queen of Great Britain in the
preamide, or, with one or two exceptions, in the main part of tlio
agreement. The agreements seem to be almost identical, except as
mentioned in the text, and exct^pt in the prcjamblos, wliich in the case
of Borneo and Sarawak refer to the grants and commissions obtained
from the native sovereigns.
I'les.
172 BRITISH RULE AND JURISDICTION
Ch. IX. Company having been the most powerful governing body
within the territory.
The power of the Company to legislate for and administer
justice to foreigners would therefore appear to have de-
pended not so much upon such international rules as apply
in the case of protectorates acquired by the Crown, as upon
the actual physical state of affairs existing within the
territories.
The British Central Africa, East Africa, and Uganda pro-
tectorates are all administered by a commissioner and consul-
general appointed by the Secretary of State, who has general
powers of legislation and administration, subject to the
Secretary of State.
The title of consul-general, where there is no foreign
Power capable of giving an exequatur to a consul, seems out
of place, and is merely a survival indicating and due to the
fact that foreign jurisdiction first arose in case of capitula-
tions imder the Ottoman Government.
It is difficult to distinguish these protectorates from any
territory inhabited by uncivilized tribes which has been taken
possession of in the name of the British Crown. But techni-
cally they are not part of the British dominions.
Two types Apart from the Indian group, there are two types of British
of protec- .
torates. protectorates : one where there is an organized government
under a sovereign, with more or less distinct boundaries ; the
other where there is no organized government over the whole
of the territory, but where either a petty chief governs his
own tribe or sometimes a combination of several tribes, or
where there is even still less civilization and merely tribes,
perhaps nomad. In these cases there are often no specific
boundaries. But these two types run into each other, so that
it may be difiicult in some cases to determine whether a
protectorate belongs to one or the other.
There is also the case of the chartered companies, in which
there is a protectorate of one type or the other under the
organized Christian government formed by the chartered
BRITISH PROTECTORATES 173
companj, while that company is in its turn subordinate to t". IX.
the British Government.
Protectorates of the first type are those of the Malay states,
Zanzibar, and Brunei, to which perhaps may be added Muscat,
if indeed it is a protectorate. •
Protectorates of the second type are the East African,
Somali, Uganda, Nig-eria, the Somali coast, and the Pacific
islands.
The cases of Socotra, of the protected Arab chiefs near
Aden, and of the Maldive Islands under Ceylon, do not dis-
tinctly fall within either type, and the interference of the
British Government is so small that it may be disregarded.
Since the extinction of the Royal Niger Company there are
now only two chartered companies, the well-known South
Africa Chartered Company under Mr. Rhodes, and the British
North Borneo Company. But with these companies should
be classed the Rajah of Sarawak, an Englishman, who
acquired a petty sovereignty in part of Borneo from the
native Sultan of Bi-unei and is now recognized as head of
a state under British protection.
In the first t}^e of protectorates there is a native sovereign n) 'Where
with an organized government capable of sending and receiv- ^^i exist-
ing diplomatic representatives and making a treaty. In the |"S "I'S^Ji-
best organized protectorates a British officer, called a Resident, vemment.
resides in the country and advises on all matters of govern-
ment, legislative or executive, while the British Government
undertakes to maintain internal as well as external peace ;
but does not directly interfere with the internal government.
And the natives of the state continue under their local law
and local courts and administration.
In protectorates of the second type there is no sovereign or {t) Where
organized government. What may be termed the tribal j^^ g,j'(,j^
government is left untouched, but the general government go"^'eru-
of the country, i. e. the maintenance of peace, is carried on
by a British officer under the name of commissioner or consul-
general. There is no general treaty, though conventions arc
174 BRITISH RULE AND JURISDICTION
Ch. IX. usually made with the petty king-s or tribal chiefs, by which
they cede their territories or surrender external and internal
sovereig-n rig'hts to the British Government. In these pro-
tectorates there is no legislation or exercise of judicial func-
tions properly so called for the natives, but the British official
requires the chiefs to observe certain rules in governing their
tribes ^. Thus he prohibits war and slave-trading.
In both types of protectorates external foreign relations
are entirely managed by the British Government; and
strangers, whether British subjects or other Europeans, are
mostly exempt from obedience to the native law and the
native courts or officials.
As to the internal government, the types differ as regards
the amount of internal sovereignty which is assumed by the
British Crown as protecting state. In the first type hardly
any of the internal sovereignty is assumed directly, although
in the Malay states much indirect influence may be exercised
through the Resident.
But in protectorates of the second type a very large amount
of internal sovereignty has been assumed and exercised. As
regards the position of British subjects in a protected state
of either type the internal sovereignty is only a matter of
British municipal law, and no difficulty arises about it in
either type of protectorate if the municipal law is in fact
made sufficient.
The posi- But the position of foreigners, e. g. the subjects of other
tion of •iniir» !•<.
foreigners Em'opcan states, has to be considered both from the point of
protec-'^ ^ view of international as well as of municipal law.
torates. Internationally the question is how far the internal
sovereignty can be exercised against foreigners without the
consent of themselves or their Government.
The rule that a Christian state cannot acquire jurisdiction
in the territory of a third Power over the subjects of another
Christian state without the consent or acquiescence of the
' [Perhaps this statement needs qualification as to some of the African
protectoi'ates. — C. P. I.]
BRITISH PROTECTORATES 175
latter applies to European or independent states, but does Ch. IX.
not seem applicable to protectorates o£ the second type, even
if it applies to any protectorate. Foreign nations^ Germany
in particular^ appear to hold that the rule does not so apply ^
The general principles, so far as respects foreigners in
a protectorate, would seem to work out as follows : —
As the protector stands between the protected state and
foreign Powers, both as the sole channel of communication
and as shielding the protected state from their attacks, foreign
Powers must seek from the protector redress for any injuries
which either directly or in the persons of their subjects they
suffer from the protected state '^. The Powers must also seek
from the protector that justice for their subjects which they
cannot get from the local courts of an uncivilized state, and
would get from their consuls if they were not excluded.
The protector must, therefore, have power to secure sub-
jects of foreign Powers from injury withm the protected
state ^. Whether the protector exercises that power directly
* See judgement in Tlie Laconia, 2 Moore, P. C. (N. S.) p. 161, and
above, p. 157. As to Germany, see p. 177, n. 3. As to France, compare
the treaties with Annam and Cambodia, Sta/e Papers, vol. Ixv. p. .375
and vol. Ixxv. p. 992. In Tunis, French legislation establishing French
courts for all persons was also enacted by a decree of the Bey of Tunis
(State Papers, vol. Ixxiv. p. 693).
2 See Calvo, §§ 34, 734, 735; cf. also §§ 358, 2344; Bluntschli,
§§ 380-8.
3 Compare also the undertaking of foreign powers in the general Act
of the Conference of Berlin, signed February 26, 1885 (Pari. P., 1886,
C 4739). The last paragraph of Article 30 is as follows : — ' La Grande-
Bretagne s'engage a proteger les n^gociants etrangers de toutes les
nations faisant le commerce dans les parties du cours du Niger qui
sont ou seront sous sa souverainetc ou son Protectorat, comme s'ils
etaient ses propres sujets, pourvu toutefois que ces n«5gociants se con-
ferment aux Rfeglcments qui sont ou seront etablis en vertu de ce qui
precede.'
Articlea 31 an<l 32 contain a similar engagement on the part of France
and other foreign powers having rights of sovereignty or protectorate
in the l)asin of the Niger.
Article 35 is as follows : — ' Les Puissances Signataires du present Acte
reeonnaisscnt rohligatinn d'assurcr, dans los tcrritoires occupos par olios
sur les cotes du continent africain, Icxistenco d'uno autoritd suflRsanto
pour faire respecter les droits acquis, le cas echeant, la libcrto du cod\-
merce et du transit dans los conditions oh elle est stipulee.'
176 BRITISH RULE AND JURISDICTION
Ch. IX. or through the medium of the local Government of the pro-
~ tected state is immaterial as regards any foreign Power,
justiciable But the protector must also, as correlative with his duty of
ounish- protecting subjects of foreign Powers from injury and sup-
able, plying them with justice, have a right as against those
Powers to keep their subjects when resorting to the protected
state fi'om injuring others, and to punish them if they are
wrongdoers. The protector must be responsible to foreign
Powers for the proper exercise of this right ; but if exercised
through a proper court, whether it is exercised directly or
through the medium of the local Government of the protected
state, is immaterial as between the protector and the foreign
Power, and is merely an internal question as between the
protector and the protected state; and the mode of exercise
of the right may vary infinitely with the various circum-
stances of the protected states.
A foreign Power, therefore, which is excluded from holding
direct communication with the protected state, cannot com-
plain if the protector of that state exercises jurisdiction over
the subjects of the foreign Power who resort there.
In the absence, therefore, of any special agreement it seems,
to say the least, consistent with the principles of international
law, that when the Crown has assumed a protectorate in the
sense before mentioned over an uncivilized state, it should
have power to legislate for and punish persons resorting there
who are not natives of that state.
This position is strengthened by the provisions of Ai-ticle 34
of the General Act of the Conference of Berlin, 1885 ^, which
^ Acte General de la Conference de Berlin, February, 1885 (Art. 34),
{Pari. P., 1886, c. 4739) :—
' La Puissance qui dorenavant prendra possession d'un territoire sur
les cotes du continent africain situe en dehors de ses possessions
actuelles, ou qui, n'en ayant pas eu jusque-la, viendrait a en acquerir,
et de meme la Puissance qui y assumera un protectorat, accompagnera
I'acte respectif d'une notification adress^e aux autres Puissances signa-
taires du pi-esent Acte, afin de les mettre a meme de faire valoir, s'il
y a lieu, leurs reclamations ' {Le Partage politique de VA/rique, by Banning,
1888, p. 179).
BRITISH PROTECTORATES 177
provides that a Power who assumes a protectorate on the Ch. IX.
coasts of Africa is to notify it to the other Powers who sig-ned
the Act, in order that they may complain if necessary.
That article, which must now, it is presumed, be considered
as international law for the uncivilized countries on the
African coast, shows that by the proclamation of a pro-
tectorate over those countries, the rights of other European
Powers are either excluded or limited ^ ; and a Power which
makes no objection when the protectorate is signified must be
presumed to have assented to such exclusion or limitation.
This article must be construed so as to enable the protector
to give effect to the undertaking in Articles 30 and 35 of
this General Act, to protect foreign subjects, and maintain
authority sufficient to protect existing rights and the freedom
of trade -.
The construction which the German Government placed
upon the Article is shown by the letter of protection given on
February 27, 1885, immediately after the Conference was
concluded, to the German East African Company. That
letter gave the Company jurisdiction over subjects of foreign
Powers sojourning within the area protected ^.
* It is said that in a countiy over wliich there is no territorial jurisdic-
tion which can be recognized by civilized Powers, every civilized Power
has equal jurisdiction (Hall, I)Lt. Lau; p. 257). If this was the case
with the portion of the African coast to which the j^i'oclamation of
protectorate applied, the proclamation would clearly, when notified,
exclude the equal jurisdiction of other European Powers.
^ See these articles, quoted above, p. 175, n. 3.
' Charter of Protection to the Society for German Colonization
for their territorial acquisitions in East Africa.
* We, William, &c., ordain as follows :
'The present presidents of the society for German colonization, Dr.
Karl Peters and our Chamberlain Felix, Count Behr-Eandelin, having
sought our protection for the territorial acquisitions of the society in
East Africa, west of the empire of the Sultan of Zanzibar, and outside
of tho suzerainty ("Oberhoheit ") of other powers, and the treaties lately
concluded by tho said Dr. Karl Peters with tho rulers of Usagara, &c., by
which these territories have been ceded to liim for the Gerhian Colonial
Society, witJi sovereign rights ("Landeshoheit") over the same, having
been laid before us, with the petition to place these territories under
our suzerainty, we hereby declare that we have accepted the suzerainty,
JENKYNS N
178 BRITISH RULE AND JURISDICTION
Ch. IX. The main objection to holding' that the protector should
have power over subjects of European Powers within a pro-
objection teetorate appears to rest upon the maxims of territoriality
Dower^to ^^i'63.dy mentioned ^, and on the doctrine that the jurisdiction
Crown in a protected state must be extra-territorial^ because ' the
over • p 1 •
foreigners very meanmg- of a protected state is that the territory remains
teXrate. independent/
This doctrine is based on the Austinian theory, objected to
by Sir Henry Maine in the passage above quoted ^, of the
indivisibility of sovereignty, and ignores the distinction be-
tween external sovereignty and internal sovereignty which
is recognized by writers on international law. According to
that distinction a state may be independent as regards in-
ternal, but not as regards external sovereignty, and that is
the case with the protectorates now in question.
If 'territory' is considered to mean the area over which
complete sovereignty is exercised by some one sovereign, the*
reply is that there may be extra-territorial sovereignty. As
Sir Henry Maine says ^, ' Sovereignty was not always terri-
torial ; it was not always associated with a definite portion of
the earth's surface.' That sovereignty need not be necessarily
territorial is pointed out by Mr. Hope in his Memorandum
of 1 843 *. The acceptance of the principle is also shown by
and have placed under our imperial protection the territories in question,
reserving to ourselves a right of deciding hereafter respecting any further
acquisitions in the same district which may be proved to have been
obtained by legal contract by the society or by their legitimate successors.
' We grant unto the said society, on the condition that it remains
German, and that the members of the board of directors, or other persons
entrusted with its management, are subjects of the German empire, as
well as to the legitimate successors of this society under the same con-
ditions, the authority to exercise all rights arising from the treaties
submitted to us, including that of jurisdiction over both the natives and
the subjects of Germany and of other nations established in those terri-
toi-ies, or sojourning there for commercial or other purposes, under the
superintendence of our Government, subject to further regulations to
be issued by us, and supplementary additions to this, our Charter of
Protection.' '
^ p. 123. 2 p jgg
^ l7^t. Law, p. 56. See also Hall, Int. Law, p. 257 ; Heffter, § 65.
* Printed in App. VI. See p. 243.
BRITISH PROTECTORATES 179
the Foreign Jui-isdiction Acts and the numerous Orders in Ch. IX.
Council made under them ^.
But the sounder view to take is that ' territory ' means the Sove-
area in which atii/ of the powers of sovereignty, external or divlsiWe
internal, can be exercised. ^'^^. "^*®f-
' nationally
Sir Henry Maine, in the passage above quoted, points out onlyexter-
Hill SOVG"
that the rights of sovereignty are divisible, and that the reiguty
sovereign who exercises the external sovereignty need not be a^Jumed
the same as the sovereign who exercises the internal sove-
reignty ; and that the rights of the internal sovereignty are
also divisible, and may be exercised partly by one sovereign
and partly by another.
This division of sovereignty is also shown by the existence
of consular jurisdiction, and as regards English law by the
Foreign Jurisdiction Acts.
The jurisdiction of the British Crown, which is com-
• monly called consular jurisdiction, in Turkey, is clearly a
portion of the sovereignty which might be exercised by the
Sultan. Whether it was ceded by the Sultan, or obtained
by sufferance equivalent to cession, and whether it is or is
not a power delegated by him, is immaterial.
If the rights of sovereignty, whether external or internal,
are divided, the defined area within which any portion of those
rights is exerciseable is the territory within the meaning of
the maxim above quoted of the sovereign possessing that
portion of the rights of sovereignty.
Thus a protected state is a territory for the purpose of
giving effect to the external sovereignty acquired by the
protector.
If this view is sound, the jurisdiction will depend on the
* The punishment of offences committed on board ship or in foreign
countries, which is recognized by British, German, and French law, also
shows this. The doctrine tliat the ship is a continuation of the territory,
even if sound, wliich is not admitted by English writers (see Hall, Int.
Law, p. 258; Calvo, vol. ii. Nationalite de Navire; HefTter, § 78), is a legal
fiction, invented for the purpose of justifying the extra-territorial juris-
diction, by those who held strongly the connexion between sovereignty and
a defined territory.
N 2,
l8o BRITISH RULE AND JURISDICTION
Ch. IX. existence in fact of the assumption of the protectorate, and
not on the question whether some naked chief living in the
country is or is not sufficiently civilized to cede jurisdiction,
or has or has not by some informal agreement in fact ceded it.
It really seems absurd that the question of the jurisdiction
of a British court should depend upon such points.
The rule of international law, that ' as a matter of right
no state can claim jurisdiction of any kind within the terri-
torial limits of another state/ was limited by the court in
the Laconia case to European or Christian states and to inde-
pendent states^. The rule, therefore, is inapplicable to the
present case, as the protected state is neither European nor
Christian nor completely independent.
The Crown therefore, by virtue of its assumption of the
external sovereignty, has from the point of view of inter-
national law certain legislative and judicial jurisdiction for
the purpose of dealing with foreigners.
If foreigners wish to enter, travel in, or settle in British
protected territory, we can say to them, as in the case of our
own territory ^, we will not admit you except on the same
condition on which we admit our own subjects, namely, that
you submit to our tribunals.
A question may be raised whether that jurisdiction can only
be acquired by cession.
If, as is above argued, the protector has a portion of the
complete sovereignty of the protected state, there seems no
reason why such portion of sovereignty should not be acquired
in the same way as complete territorial sovereignty, namely,
by conquest, cession, or occupation.
It must be recollected that in the case of an uncivilized
state, cession may be obtained by consent without any treaty,
and that ' consent may be expressed by constant usage, per-
mitted and acquiesced in by the authorities of the state,
1 a Moo. p. C. (N. S.), i6r.
^ See Phillimore, vol. i. p. 446 ; Halleck, vol. i. p. 349 ; Hall, Int.
Law, p, 5a ; Heffter, §§ 60-62; Bluntschli, § 382 ; Calvo, § 734.
BRITISH PROTECTORATES l8l
active assent or silent acquiescence where there must be full Ch. IX.
knowledge ^.'
But if a native chief is not in a position to give jurisdiction
over foreigners, why may not that jurisdiction be assumed by
a sovereign who annexes the territory so far as not occupied
by the native chief, but annexes it for certain limited purposes
only, and not so as to make it part of that sovereign's
territorial dominions for all purposes ?
That there may be such assumption of jurisdiction seems
recognized by the article of the Act of the BerHn Conference
quoted above -, which distinguishes between the protectorate
and the possessions.
It is difficult to see why sovereignty in each case can be
acquired by one alone of the above modes, namely, conquest,
cession, or occupation. A strong power may have acquired by
conquest one j^art of certain territory, or a protectorate over
certain tribes in it, and the natives of the adjoining part of
that territory, or other tribes in it, may yield obedience to
that power on account of fear without any actual cession.
In such a case the sovereignty of the protectorate may be
acquired partly by conquest and partly by sufferance without
there being the possibility of determining under which head
the acquisition is to be placed.
If, in a region like New Guinea or the centre of Africa,
a British officer enters and assumes control of the territory in
the name of the King, either with or without agreements
with the tribes dwelling there, is not that to all intents and
purposes as much a conquest as if the territory was acquired
by the defeat of the former sovereign and the consequent
annexation of the country ?
We say to foreign Powers, ' We hold this territory, and if
you attempt to interfere we shall maintain our position with
the sword,' How does this differ from conquest ? And yet
surely there can be no obligation to assume the internal as
well as the external sovereignty.
* The Laconia, a Moo. P. C. (N. S.), i6r. ' p. 176, note t.
l82 BRITISH RULE AND JURISDICTION
Ch, IX. There appears, therefore^ to be nothing contrary to the
general principles of international law in what is believed to
tinental ^^ ^^^ view of other European Powers as to a protectorate in
Tiew.
the sense adopted in this chapter, namely, that the entire
sovereignty which an independent state possesses is divided
between the protector and the protected state; that the
protector has the external sovereignty and the responsibilities
which belong to it, namely, the responsibility to foreign
Powers for injuries committed to their subjects within the
protected state; that as regards the internal sovereignty,
foreign Powers are not concerned, and therefore have no right
to inquire whether the jurisdiction over their subjects within
the protected state, so long as it is exercised by a civilized
court, is exercised by the protector or by the protected
Government.
Objections It is difficult for foreign Powers to object to the exercise by
by foreign . . .... ....
Powers, the British Crown of jurisdiction over their subjects when
within a protected uncivilized state. By virtue of the pro-
tectorate they are excluded from interfering with the protected
state. They can only dispute that exclusion in the same way
in which they would dispute the sovereignty of the Crown
over any part of the British dominions. And by virtue of
that exclusion they can only interfere through the British
Government with any proceedings against their subjects which
are taken in the protected state.
The extent of our responsibility for the natives of protected
states when in other states and the amount of protection
to be given to subjects of foreign Powers within a protectorate
are matters to be decided gradually with the growth of inter-
national law on this subject. The latter protection will
probably be no greater than what we give to our own sub-
jects, and if foreigners travel or settle, in spite of a warning
that they will not be protected, there will be no just com-
plaint against the protecting power for not supporting
them.
The extent to which internal sovereignty in the protectorate
BRITISH PROTECTORATES 183
is acquired by the Crown varies with the different protectorates, Cn. IX.
and must in each case be a question of fact ^.
Thus, where there are merely native tribes, the chiefs of internal
which have tribal but no territorial authority, the amount of ^pj'^j^f
internal sovereignty acquired by the protector is much larger acquired.
than where there is a semi-civilized government, with a sultan
or other ruler exercising control within certain territory.
In each case the internal sovereignty assumed by the
protector would be the whole sovereignty of a completely
independent state, except what is left to the local Government.
To the extent to which that internal sovereignty is assumed
it can be exercised against a foreigner or native as well as
against any British subject, including in that term British
protected persons who, as in the case of foreign jurisdiction
before mentioned -, are mainly treated as being in the same
position as British subjects.
For the purpose of the exercise of the internal sovereignty,
and generally of the exercise of the jurisdiction of the Crown
in protectorates, resort has been had to the Foreign Jurisdic-
tion Acts, which were originally passed for different purposes *\
The extent of such resort, and the extent to which powers
of internal sovereignty have been assumed in Africa, may be
gathered from the following summary of the Orders.
In the case of the territories adjoining the colonies of the Internal
SOVG-
Gold Coast, Lagos, Gambia, and Sierra Leone, powers have reignty is
been given to the colonial legislature (subject to disallowance ^y^orders
by the King signified through a Secretary of State) to legis- wilder the
late for giving effect to all jurisdiction of the Crown acquired Jurisdic-
. , , T • • i -i. • 4 tiou Act.
m the adjomuig territories *.
The charter of the Niger Company, July, 1886 '', authorized
* In India the power of the British Government over the different
native states (several hundred in number) has to be ascertained as a fact
in each case. Cp. TSviss, § 26 ; Leo Warner, p. 31, § 13.
' See above, p. 155. ' See above, p. 151,
* See Stat. R. & 0. Rev. vol. iii. Gold Coast, Dec. 1887, p. 521 ; Lagos,
Dec. 1887, p. 523; Gambia, Stat. R. & 0,, 1893, p. 311 ; Sierra Leone,
Stat. R. (t- 0., 1895, p. 272.
' Hertalet, ilf«;; 0/ Africa \nj Treaty, vol. i. p. 446.
184 BRITISH RULE AND JURISDICTION
Ch. IX. the company to retain all powers acquired under the thirty-
seven Acts of Cession specified in the schedule for the purposes
of g-overnment, the preservation of public order, and the pro-
tection of the territories. It reqviired the company to fulfil
the stipulations of those Acts of Cession, and prohibited the
company from transferring" their rights under them except
with the consent of the Secretary of State. It bound the
company to discourage the slave trade, to abstain from inter-
fering with the religion of the inhabitants, and to observe in
the administration of justice the customs of any class, tribe,
or nation to which the parties belong. It also required the
company to comply with any suggestion made by the Secretary
of State with reference to the proceedings of the company as
regards the inhabitants or foreign Powers or their exercise
of rights where there is any adverse claim. It also required
the company to comply with any treaty made by the British
Crown, and with any directions of the Secretary of State given
with reference to it.
The charter followed broadly the lines of the charter given
to the North Borneo Company in November, 1881 ^, and the
same lines were followed in the charter given to the British
South Africa Company in October, 1889^. But the Borneo
charter provided for the exercise of extra-territorial jurisdiction
in Borneo by officers appointed by the Crown, and the South
Africa charter required all differences with any chief or tribe
to be submitted to the Secretary of State for decision, required
the company to preserve peace and order and maintain police,
and authorized them to make ordinances with the approval of
the Secretary of State.
The provisions of the British South Africa Company^s
charter have been modified to some extent as regards Southern
Rhodesia by the Order in Council of 1898 '.
The Africa Order of 1889* established for Africa and
' Hertslet, Commercial Treaties, vol. xv, p. 85.
* London Gazette, Dec. 20, 1889; Hertslet, Com. Tr. vol. xviii. p. 133.
2 Stat. E. d- 0., 1898, p. 385. ♦ Stat. E. d; 0. Eev. vol. iii. p. 259.
BRITISH PROTECTORATES 185
INIadag-ascar a g-eneral system to come into force in such areas, Ch. IX.
called ' local jurisdictions/ as might be constituted by a
Secretary of State. The Order necessarily did not apply to
j)laces within any British possession or the possession of any
non- African power or of any other independent state, e. g.
Eg-yptj Morocco, Tunis, Liberia, Orange Free State.
The Order was declared to apply to all British subjects,
including- British protected subjects and natives ^ of any other
' local jurisdiction/ and to foreigners who submit themselves
to a court in accordance with the Order, and to foreigners with
respect to whom any state, king-, chief, or g-overnment whose
subjects they are, has by any treaty agreed with the Crown
for, or consented to, the exercise of power or authority by the
King. 'Foreigner^ in this case includes persons whether
natives of Africa or not.
The Orders in Council for protectorates such as those sub- System of
ject to the Africa Order of 1889 or the Zanzibar Order of pj^^^g^/^
1897 follow in their structure very larg-ely the Orders in borates,
Council for the exercise of foreign jurisdiction in the Ottoman adminis-
dominions, that is to say, there is a central court held by them.
a commissioner or consul-general, with subordinate courts in
different districts held by consuls or other inferior officers,
with an appeal to the central court, and an appeal from the
central court to some court in the British dominions, and an
ultimate appeal to the King in Council.
These courts have both civil and criminal jurisdiction, and
follow the English law, or on the east side of Africa the Indian
law, subject in either case to the modifications made by the
Order or by regulations made under it.
The Africa Order of 1889 applies some or all of the Acts Africa
scheduled to the Foreign Jurisdiction Act, 1890, such as those isaqTsoi
relating to fugitive offenders or colonial prisoners. ^^9^-
The Order applies the ordinary criminal law of England,
and allows the Secretary of State to api)ly any law for the
time being in force in any British possession in Africa. It
' Under the Africa Order, 1893, Stat. U. <t- 0. (1893), p. 308.
l86 BRITISH RULE AND JURISDICTION
Ch. IX. also gives the force of law to the provisions of any treaty made
by the Crown and applying* to any place within the local
jurisdiction.
Crimes affecting the personal property of foreigners are to
be punishable, with the consent of the foreigners, in the same
manner as if they were committed against British subjects.
Every person for the time being holding a commission from
the Crown as consul-general, consul, or vice-consul is, if so
authorized by a Secretary of State, to hold a consular court
in his district, and if the Crown appoints a person not holding
such commission to act as judge in any district, he is to have
the judicial powers of the consular court ^.
Appeals are allowed to the Supreme Courts of British posses-
sions in Africa and of Bombay.
The Order, besides applying English criminal law, creates
certain new offences ; which include levying war against any
chief, tribe, or power, acting in contravention of treaties,
disturbing any religious ceremony, and smuggling. Further,
every consul, if so authorized by a Secretary of State, can
make regulations for securing the observance of any treaty
or of any native or local law or custom within the district,
and also for the peace, order, and good government of ^British
subjects within the district ^. The regulations, when allowed
by a Secretary of State and published, have effect as if
contained in the Order.
In the case of civil suits the Order repeats the provision
which is contained in the Ottoman and other Orders respect-
ing foreign jurisdiction in Oriental states requiring a foreigner
who sues a British subject to file in the court his own
consent, and, if so requii-ed, the consent of the competent
^ For the purpose of the Capitiilatifins in Turkey it was necessary that
every person exercising any judicial jurisdiction should be a consul.
This reason does not apply in places where the Capitulations do not
extend ; and in many of those places the terms ' consul ' and ' consular
court' are inapplicable, not to say misleading. See above, p. 172.
* The words * peace, order, and good government,' are the traditional
words by which the widest powers of legislation have been given to
colonial Governments.
BRITISH PROTECTORATES 187
authority of his own Government^ to submit to the jurisdiction Ch. IX.
of the court.
By the Africa Orders of 1 89 1 ^, which apply to the Bechuana-
land protectorate^ i. e. the territories in South Africa bounded
by British Bechuanaland, the German protectorates, the rivers
Chobe and Zambesi, the Portuguese possessions, and the late
South African Republic, the Hig-h Commissioner was autho-
rized by proclamation to provide for the administration of
justice, the raising of revenue, and generally for the peace,
order, and good government of all persons within the limits
of the Order, including the prohibition and punishment of
acts tending to disturb the public peace. The High Commis-
sioner in issuing such proclamation was to respect any native
laws or customs by which the civil relations of any native
chiefs, tribes, or populations under Her [Majesty's protection
were at the date of the Order regulated, except so far as
the same might be incompatible with the due exercise of
Her Majesty's power and jurisdiction. Any such proclama-
tion can be disallowed by the Crown through a Secretary
of State, precisely as if it were an ordinance of a British
colony.
The Africa Order of 1892 ^ recited that by the General Act
of the Conference of Berlin, sig-ned in 1885, the Signatory
Powers declared with respect to occupation in Africa by any
of those Powers that the establishment of authority in pro-
tected territories was an obligation resting upon the respective
protecting Powers ; and that in order to the due fulfilment of
the said obligation as respects any of the territories within the
limits of the Africa Order of 1889 which Her Majesty had
declared to be under Her protection, it was necessary that the
subjects of the Signatory Powers should be justiciable under
the Order in like manner as British subjects. The Order then
ordained that where Her Majesty had declared any place
within the above limits to be a protectorate of Her Majesty
the provisions of the Order of 1889, which referred to British
> Sta(. R. cfc 0. (1891), pp. 295, 298. ■' Slat. B. & 0. (1892), p. 486.
l88 BRITISH RULE AND JURISDICTION
Ch. IX. subjects (except those relating to registration), should extend
to all foreigners who were subjects of any of the above
Signatory Powers or of any other Power which had consented
that its subjects should be justiciable under the Order of 1889. ^
And so much of the Order as required the consent of the ■ |;
foreigner as a condition of the exercise of jurisdiction was
to be of no force as respected foreigners to whom the Order
so applied.
The same Order also enabled the Secretary of State to apply
to any place within the Order of 1889 any Act in force in
British India.
This Order therefore, as respects any place in Africa thus
declared to be a protectorate, brings all foreigners who are
subjects of the above Powers within the criminal law enacted
by the Order of 1889 for British subjects, and within the
legislative powers given to the High Commissioner by the
Order of 1891 and to the Secretary of State by the Order of
1892.
The declaration has been made as respects the following
protectorates : —
East Africa, Uganda,
Bechuanaland, British Central Africa,
Southern Rhodesia, Niger Coast.
Under the Order of 1892 the Indian Land Acquisition Act
of 1894 was applied to the Uganda protectorate, and by
a subsequent Order of July, 1898 ^, any lands taken under the
Order for public purposes are ordered to vest in the com-
missioner and consul-general, or, if the Secretary of State so
directs, in trustees.
Amaton- The Amatongaland Order of June, 1896-, provided that
Order. the special commissioner, who in fact was also governor of
Natal, might on behalf of the Crown, by proclamation,
provide for the administration of justice, the raising of
revenues, and, generally, for the peace, order, and good
government of all persons within the limits of the Order. The
1 Stat. R. & 0., 1898, p. 382. * Stat. E. <t- 0., 1896, p. 117.
BRITISH PROTECTORATES 189
proclamation was to take effect until disallowed by the Queen G"- I^*
through a Secretary o£ State, and to give the courts of Zululand
the same jurisdiction, civil and criminal, as they might possess
from time to time in respect of matters occurring within
Zululand, The Order ceased to operate upon Amatongaland
being in 1897 made part of the British dominions and
annexed to the colony of Natal.
The East Africa Order, 1807', applies to foreigners, in East
so far as the Crown by treaty, grants, usage, sufferance, or Orders,
other lawful means has jurisdiction in relation to them. But ^ 97, i 9 •
where foreigners in the Zanzibar territory are subjects of
any Government which on July i, 1895, exercised any
jurisdiction in that territory similar to the jurisdiction con-
ferred by the Order, the Order does not apply unless that
Government consent.
The Order applies the law of British India to the persons
subject to the Order, and enables the Secretary of State to
declare that any of the laws for the time being in force in
any African possession of the King shall have effect in the
protectorate.
A foreigner subject to the Order can be prosecuted crimi-
nally and sued civilly as a defendant.
The procedure in civil and criminal cases is to follow the
Indian law.
The chief authority is vested in a commissioner appointed
by the King -, but the court is held by a judicial officer
appointed by the King under His Sign Manual.
Among other Indian laws applied by this Order was the
Land Acquisition Act, 1894, which authorized the acquisition
of land for public purposes, and by a subsequent Order of
July, 1898^'', provision was made for land so taken vesting
in the commissioner and consul-general and their successors
in office, or, if the Secretary of State so directed, in trustees,
* BM. n.d 0., 1897, p. 134.
* At present tin* p(;rson wlio is agent and consul-general at Zanzibar.
* Stat. R. & 0., 1898, p. 381.
190 BRITISH RULE AND JURISDICTION
Ch. IX. The East Africa Order of 1898 ^ regulated the currency of
the East African protectorate, making the silver rupee the
standard coin, prohibiting other coins, and declaring what
should be legal tender.
Zanzibar The Zanzibar Order of 1897 ^ is made to extend to foreigners
Order
with respect to whom the Government whose subjects they
are has by treaty or otherwise agreed with the King for,
or consented to, the exercise of power or authority by His
Majesty. The Order makes certain acts criminal when
done by persons subject to the Order, and provides for
the criminal prosecution of a civil suit against every such
person.
Natives of Zanzibar are not such persons, but all civil disputes
between them and such persons are to be heard by the court
under the Order.
The consul-general has power to legislate for persons subject
to the Order.
Matabelo- The Matabeleland Order of 1894^, after reciting that the
Order. area there described is under the protection of the British
Crown, entrusts the administration of the area to the British
South Africa Company, with a provision that the powers
given by the Order to the company are to be in addition to
the power given by its charter, but are to be exercised only
concurrently with the High Commissioner.
The Order establishes a land commission, with power to deal
with the settlement of the natives on certain areas of land,
subject to the reservation of mineral rights, and with power
to expropriate those natives for certain purposes on giving
them equivalent land. This provision was I'escinded but in
Southern substance re-enacted by the Southern Rhodesia Order, 1898 *,
Order. which further legislates for the conditions under which a native
may acquire and dispose of land.
This last-mentioned Order differs from the other Orders,
inasmuch as it confers the administration of the protectorate
' Stat. R. & 0., 1898, No. 409, p. 376. - Stat. R. & 0., 1897, p. 159.
3 Stat. R. & 0., 1894, p. 133. * Stat. R. & 0., 1898, p. 385.
i
BRITISH PROTECTORATES I9I
upon the Britisli South Africa Company, although it gives Ch. IX.
that power only concurrently with the power of the High
Commissioner.
The manner in which the administration is to be effected
is laid down by requiring the company to appoint an adminis-
trator or administrators, and authorizing the Secretary of
State to appoint an officer, to be called Resident Commissioner,
who is to represent the Crown and is to report to the High
Commissioner.
The Order establishes a legislative body, consisting of the
Administrator, the Resident Commissioner, and nine other
nominated members appointed by the company with the
approval of the Secretary of State, and four members elected
by the registered voters. The Administrator, with the advice
and consent of the legislative council, is authorized to make
ordinances for the peace, order, and good government of
Southern Rhodesia, but no ordinance takes effect until the
High Commissioner has signified his assent thereto; and
the ordinance can be disallowed within one year by a Secretary
of State.
The Order provides for the maintenance of certain control
over the finances, for excluding differential customs duties, for
the maintenance of military police, for the establishment of
a court of record and of magistrates, and for the establishment
of a department to manage native affairs.
It will be seen that the Orders in Council have in fact Great ex-
tent of
exercised powers of internal sovereignty m the protectorates powers
not merely for the purpose of foreign relations or of police, ^ Ii^^^q
i. e. of keeping the peace and preventing- disorder, but for Orders.
many legislative and judicial purposes.
They have provided for the coinage, for the establishment
of a legislative authority, for the acquisition of land for
public purposes, for the settleAient of natives upon particular
areas of land, and for giving titles to land ^
' Article 83 of tlio Southern Rhodesia Order of 1898 authorizes a native
to acquire and dispose of land on the same conditions as a person who is
192 BRITISH RULE AND JURISDICTION
Cii. IX. As the power has been used to create legislative bodies,
it apparently might apply to the creation of municipalities
and to any subject of internal government.
How far such extensions can be made without the protec-
torate becoming part of the dominions of the Crown and
ceasing to be a mere protectorate, is a question which may
admit of some argument. It might no doubt be extremely
inconvenient that all the natives who are inhabitants of the
protectorate should become British subjects for all purposes ;
but this does not help the difficulty of distinguishing between
a protectorate and a British possession where the whole legis-
lative and administrative power in the protectorate is almost
identical with that which is found in some of the British
possessions.
All that need be noted here is the fact that in the African
protectorates, where there are only uncivilized tribes, the
amount of internal sovereignty assumed by the protector has
been very large, especially where the sovereign power has
been given to or assumed by a chartered company.
As the power has been used to create legislative bodies,
there seems no limit to the extent to which it can be used.
In fact, almost as much power has been exercised as can be
exercised over conquered territory which is part of the British
dominions.
Where so much power has been exercised it seems difficult
to draw the line between a protectorate and a British posses-
sion. If the whole sovereignty is assumed the territory is
really part of the dominions. Apparently the only difference
is that in a British possession responsibility is assumed for the
whole of the internal government, i. e. for the government of
the natives of the protected states i7iter se, and, further, all
those natives become British subjects wherever they may be.
A further consequence of the territory becoming part of the
not a native, subject to certain restrictions. This provision implies
that persons not natives can acquire and dispose of land in a particular
manner without these restrictions.
BRITISH PROTECTORATES 193
British dominions would be that English law would prima Ch. IX.
facie apply, though the consequence can be avoided by the
provisions of an Order in Council excluding- it.
It will be observed that the Orders show a gradual increase
of the assumption of internal sovereignty. The Africa Order
of 1889 applied only to British subjects, and contained the
provisions inserted in the foreign jurisdiction Orders appli-
cable to the Ottoman and other dominions, which require the
consent of the Government of a foreigner to the exercise of
jurisdiction.
The Order of 1893 as regards any place declared to be
within the protection of the British Crown extended to all
subjects of those Powers who had signed the Act of Berlin
or had otherwise assented to or acquiesced in the assumption
of jurisdiction by the Crown. Thus in effect, the provisions of
the Order of 1892 relating to British subjects applied, as
the Order of 1889 did not, the criminal law to foreigners.
The East Africa Order of 1889 and the Bhodesia Order of
1898 apply apparently to all persons, whether British subjects
or foreigners.
On what legal basis do these Orders rest ? By international Legal
biisis
law, if the above arguments are sound, the Crown, even in the interna-
absence of express treaty, usage, or consent, might have tio^^/^n^
jurisdiction within a protectorate over foreigners, including P^l? of
these
Europeans who are not British subjects. Further, the Powers Orders.
who signed the Berlin and Brussels Acts must be held to have
consented to or acquiesced in that doctrine, and therefore in
the exercise of jurisdiction by the British Crown over their
subjects when within a British protectorate.
Do they rest in fact upon treaty ?
As a matter of fact treaties have often been made with the
native tribes within a protectorate. Thus in the territories
of the Niger Company 343 treaties were made by the
company and approved by the Secretary of State. These
treaties were in different forms. In most cases they were in
form a concession by the tribe of territory to the compau}',
JliNKVNS
194 BRITISH RULE AND JURISDICTION
Ch. IX. with the right o£ exduding foreigners^ and with an under-
taking by the company to protect the tribe, and not to take
land without compensation, nor to interfere with native law ^.
Many, if not all, of these treaties specify the bounds of the
territory of the tribe ; but some doubt must of course arise as
to whether the bounds so stated cover the whole of the
territories formerly under the company.
In British South Africa some treaties have also been made,
but these treaties do not cover the whole of the territory, and
indeed a portion of the territory is believed to be without
any natives. Further, a considerable part of the territory
must be considered to have been acquired by conquest. Inter-
nationally there may be no difficulty as regards the territories
not within any of these treaties ; and as regards the treaties
themselves it must be open to considerable doubt whether
a convention with a half-savage tribe or its chief can be
considered to be a treaty conferring jurisdiction.
It must now be considered on what municipal law the Orders
in Council regulating the protectorates in such cases rest,
and what authority there is to govern British subjects and
foreigners within them.
The Foreign Jurisdiction Act, as before mentioned, does not
confer jurisdiction on the Crown, but merely enables the
Crown to exercise jurisdiction obtained ah extra. It is also
doubtful whether it applies where the jurisdiction is acquired
by conquest or there is cession of territory.
Even where it applies it cannot be said to be perfectly
clear that section i of the Act, enabling the Crown to exercise
the jurisdiction, applies to other than British subjects.
Section 2 of the Act, which extends to cases where there
is no Government capable of entering into a treaty, and which
therefore seems peculiarly applicable to Africa, is expressly
limited to British subjects. But this section appears to
apply to British subjects in places where there is no protec-
torate. All the Orders in Council profess to proceed on
' Hertslet, Kap of Africa by Treaty, vol. i. p. 457.
BRITISH PROTECTORATES 1 95
section i o£ the Act and upon any other powers enabling the Ch, IX.
Queen in that behalf.
The charters granted to the Niger Company and the British
South Africa Company enabled the companies to exercise the
jurisdiction which they are recited in the charter to have
already obtained by the treaties or which they may hereafter
obtain.
It seems that the municipal law under which the jurisdiction
is exercised must partly be based on the common law power of
the Crown. The power of the Crown at common law to
legislate by Order in Council or by charter for any conquered
territory is undoubted, and it must be presumed that the Crown
has the same power as respects any portion of sovereignty
acquired in the same manner, although it may not be the
entire sovereignty.
But in places where there are no natives and to which
British subjects resort a difficulty may arise under the con-
stitutional doctrine as to British settlements, namely, that
where there is a British settlement the Crown can establish
a legislature, but cannot legislate itself.
In the case of the chartered companies in Africa, and in
the case of the chartered company and the Rajah of Sarawak
in Borneo, there is a curious conflict between two constitu-
tional doctrines. One doctrine is that no addition can be
made to the dominions of the Crown without the consent of
the Crown. The other is that any sovereignty acquired by
a British subject is acquired on behalf of the British Crown.
When therefore the Niger Company and the British South
Africa Company have taken from native tribes or chiefs
a cession of territory, that must, according to the second of
the two doctrines, be deemed to be a cession of territory
acquired on behalf of the Crown, and yet it is treated as an
independent state under the protection but not within the
dominions of the Crown. And the same is the case with the
North Borneo Company and the Rajah of Sarawak,
A few words should be added as to the Indian protectorates.
ct,
toratos.
196 BRITISH RULE AND JURISDICTION
Ch. IX. They began with treaties under which certain jurisdiction was
ceded to the East India Company. But as the British Crown
Indian . ^ ,.
protec- has become the paramount power m India, and has, partly by
succession to the Mogul and partly by conquest, acquired the
suzerainty over the native states in India, the protectorates
depend now upon orders of the governor-general and less upon
the treaties.
The extent to which the internal sovereignty has been
acquii'ed differs very largely and has to be ascertained as
a matter of fact in each case.
The jurisdiction is exercised by the governor-general and
the executive council as representing the Crown. The Indian
legislature has no power to legislate for the exercise of such
jurisdiction, except so far as enabled to do so by its power
to legislate for all natives of British India and for all
European British subjects whenever they are in the native
states of India. It may be observed that the Indian legis-
lature has no power to legislate for British subjects who are
neither Europeans nor natives of British India, and still less
for foreigners in an Indian protected state.
But the Governor-General in Council by virtue of his
commission as viceroy exercises the jurisdiction of the Crown
in these native states, and in that capacity legislates for
offences committed within them by British subjects who are
neither native nor European, and, where the jurisdiction is
delegated or transferred by the protected state, for foreigners.
The jurisdiction may be acquired not merely over a special
class of persons in the ordinaiy part of the state, but over all
persons in certain areas, e. g. military cantonments or railways,
the jurisdiction over which has been transferred by the native
sovereign to the Government of India,
Territories held by Em-opeans in India, e. g. the French or
Portuguese, to which the suzerainty of the British Crown
does not extend, are in the same position as ordinary European
states.
APPENDIX II
NON-SELF-GOYERNING COLONIES
I. Colonies having a representative assembly, i. e. an assembly App. II.
all or a majority of whose members are elected by the people : — —
^ Bahama Islands ^ Jamaica -
^Bai'badoes ^Leeward Islands (central
^ Bermuda council) '
British Guiana Malta
II. Colonies not having such a representative assembly.
(a) Having a legislative coxmcil with, except where other-
wise stated, an official majority :
^ British Honduras ^
British New Guinea
Ceylon
Falkland Islands
Fiji '
Gambia Mauritius *
Gold Coast Seychelles
Hong-Kong Sierra Leone
Lagos * Straits Settlements ®
Leeward Islands (local councils) . Trinidad and Tobago '
viz. Antigua * Windward Islands
St. Kitts and Nevis * viz. Grenada^
Dominica* St. Lucia*
Montserrat St. Vincent*
Virgin Islands Turks and Caicos * '
* Power not resei-ved to the Queen in Council to legislate.
* The governor can nominate enough to place the elected members in
a minority of one.
^ Majority of council non-official, Imt nominees of governor.
* Half of memhors offiiial, half non-official nominees.
'•' Some of momljor.s are elected.
* There is a governor-in-chief, but no central legiislative council.
' Council subordinate to legislature of Jamaica.
198 BRITISH RULE AND JURISDICTION
App. II. (6) Not having a legislative council :
Basutoland Labuan
Gibraltar St. Helena
Note. — The Queen in Council can legislate for the constitu-
tion of Jamaica under 29 & 30 Vict. c. 12 ; of Grenada under 39
& 40 Vict. c. 47 ; and can legislate generally for the Straits
Settlements under 29 & 30 Vict. c. 115.
See some of the colonial constitutions in Stat. B. and 0.
Bev. vol. viii. p. 380 et seq., and in Stat. B. and 0., Appendix to
1895 ^^^ other vols. For legislatures and executives in 1888
and instrument of constitution, see Pari. P., 1889, No. 70, vol. Iv.
p. 71 ; and 1890, No. 194, vol. xlix. p. i.
APPENDIX III
BRITISH NORTH AMERICA ACT, 1867
(30 & 31 Vict. c. 3)
SECTIONS 91 TO 95.
Distribution of Legislative Powers.
Poivers of the FarUmncnt.
Section 91, It shall be la-\\^ul for the Queen, by and ^\iih. the App. III.
advice and consent of the Senate and House of Commons, to
make laws for the peace, order, and good government of Canada, Legiaiative
in relation to all matters not coming within the classes of parii^mJnt
subjects by this Act assigned exclusively to the Legislatures of °^ Canada,
the provinces ; and for greater certainty, but not so as to restrict
the generality of the foregoing terms of this section, it is hereby
declared that (notwithstanding anything in this Act) the ex-
clusive legislative authority of the Parliament of Canada extends
to all matters coming within the classes of subjects next herein-
after enumerated ; that is to say —
1. The public debt and propert)'.
2. The regulation of trade and commerce.
3. The raising of money by any mode or system of taxation.
4. The borrowing of money on the public credit.
5. Postal service.
6. The census and statistics.
7. Militia, military and naval service, and defence.
8. The fixing of and providing for the salaries and allowances
of civil and other officers of the Government of Canada.
9. Beacons, buoys, lighthouses, and Sable Island.
10. Navigation and shipping.
ir. Quarantine and the establishment and maintenance of
marine hospitals.
12. Sea coast and inland fisheries.
13. Ferries between a province and any British or foreign
country or Ijetween two provinces.
14. Currency and coinage.
200
BRITISH RULE AND JURISDICTION
App. III. 15- Banking, incorporation of banks, and the issue of paper
money.
i6. Savings banks.
17. Weights and measures.
18. Bills of exchange and promissory notes.
19. Interest.
20. Legal tender.
21. Banki'uptcy and insolvency.
22. Patents of invention and discovery.
23. Copyrights.
24. Indians, and lands reserved for the Indians.
25. NaturaUzation and aliens.
26. Marriage and divorce.
27. The criminal law, except the constitution of courts of
criminal jurisdiction, but including the procedure in
criminal matters.
28. The establishment, maintenance, and management of
penitentiaries.
29. Such classes of subjects as are expressly excepted in the
enumeration of the classes of subjects by this Act as-
signed exclusively to the Legislatures of the provinces.
And any matter coming wdthin any of the classes of subjects
enumerated in this section shall not be deemed to come Avithin
the class of matters of a local or private nature comprised in the
enumeration of the classes of subjects by this Act assigned
exclusively to the Legislatures of the provinces.
Subjects of
exclusive
provincial
legislation.
Exclusive Powers of Provincial Legislatures.
Section 92. In each province the Legislature may exclusively
make laws in relation to matters coming withm the classes of
subjects next hereinafter enumerated ; that is to say—
1. The amendment from time to time, notwithstanding any-
thing in this Act, of the constitution of the province,
except as regards the office of Lieutenant-Governor.
2. Direct taxation within the province in order to the raising
of a revenue for provincial purposes.
3. The borrowing of money on the sole credit of the proN-ince.
4. The establishment and tenure of provincial offices and the
appointment and payment of provincial officers.
5. The management and sale of the public lands belonging to
the province and of the timber and wood thereon.
6. The estabhshment, maintenance, and management of public
and reformatory prisons in and for the province.
7. The establishment, maintenance, and management of
hospitals, asylums, charities, and eleemosjTiary institu-
BRITISH NORTH AMERICA ACT 201
tions in and for the province, other than marine Arp. III.
hospitals.
8. Municipal institutions in the province.
9. Shop, saloon, tavern, auctioneer, and other licences in
oi'der to the raising of a revenue for provincial, local, or
municipal purposes.
10. Local works and undertakings other than such as are of
the follo'\\'ing classes :—
a. Lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings con-
necting the province with any other or others of
the provinces, or extending beyond the limits of
' the province :
b. Lines of steam ships between the province and any
British or foreign country :
c. Such works as, although wholly situate within the
province, are before or after their execution
declared by the Parliament of Canada to be for
the general advantage of Canada or for the ad-
vantage of two or more of the provinces.
11. The incoi'i^oration of companies ^^dth provincial objects.
12. The solemnization of marriage in the province.
13. Pi'ojDerty and civil rights in the province.
14. The administration of justice in the province, including the
constitution, maintenance, and organization of provincial
courts, both of civil and criminal jurisdiction, and includ-
ing procedure in civil mattei-s in those courts.
15. The imposition of ixmishment by fine, penalty, or im-
l^risonment for enforcing any law of the province made
in relation to any matter coming Avithin any of the
classes of subjects enumerated in this section.
16. Generally all matters of a merely local or private nature in
the province.
Education.
Section 93. In and for each province the Legislature may Legislation
exclusively make laws in relation to education, subject and e^du^tion.
according to the following provisions : —
(i) Nothing in any such law shall prejudicially affect any
right or privilege with respect to denominational schools
which any class of persons have by law in the province at
the union :
(2) All tlie powers, privileges, and duties at the union by law
conferred and imposed in Upper Canada on the separate
schools and school trustees of the Queen's Koman Catholic
subjects shall be and the same are hereby extended to the
202
BRITISH RULE AND JURISDICTION
App. III. dissentient schools of the Queen's Protestant and Eoman
CathoKc subjects in Quebec :
(3) Where in any province a system of separate or dissentient
schools exists by law at the union or is thereafter estabhshed
by the Legislature of the province, an appeal shall He to the
Governor-General in Council from any Act or decision of any
provincial authority affecting any right or privilege of the
Protestant or Eoman Catholic minority of the Queen's
subjects in relation to education :
(4) In case any such provincial law as from time to time seems
to the Governor-General in Council requisite for the due
execution of the provisions of this section is not made, or in
case any decision of the Governor-General in Council on any
api^eal under this section is not duly executed by the proper
provincial authority in that behalf, then and in every such
case, and as far only as the circumstances of each case
require, the Parliament of Canada may make remedial laws
for the due execution of the provisions of this section and of
any decision of the Governor-General in Council under this
section.
Legislation
for uni-
formity of
laws in three
provinces.
Concurrent
powers of
Legislature
respecting
agriculture
and immigra-
tion.
Umformiti/ of Laws in Ontario, Nova Scotia, and New
Brunsivick.
Section 94. Notwithstanding anything in this Act, the Parlia-
ment of Canada may make provision for the uniformity of all or
any of the laws relative to property and civil rights in Ontario,
Nova Scotia, and New Brunswick, and of the procedure of all
or any of the courts in those three provinces, and from and after
the passing of any Act in that behalf the power of the Parliament
of Canada to make laws in relation to any matter comprised in
any such Act shall, notwithstanding anything in this Act, be
imrestricted ; but any Act of the Parhament of Canada making
provision for such uniformity shall not have effect in any
province imless and until it is adojited and enacted as law by the
Legislature thereof.
Agriculture and Immigration.
Section 95. In each province the Legislature may make laws
in relation to agriculture in the province, and to immigration
into the provin<^ ; and it is hereby declared that the Parliament
of Canada may from time to time make laws in relation to
agriculture in all or any of the provinces, and to immigration
into all or any of the provinces ; and any law of the Legislature
of a province relative to agriculture or to immigration shall have
effect in and for the province as long and a^ far only as it is not
repugnant to any Act of the Parliament of Canada.
BRITISH NORTH AMERICA ACT 203
JUDICIAL CONSTEUCTION OF THE ABOVE App. III.
SECTIONS.
According to the ordinary rules of law, any Act passed by the
Dominion Parliament on a matter which s. 92 of the British
North America Act places within the exclusive legislative
authority of the Provincial Legislature, and on the other hand
any Act passed by the Provincial Legislature which is not mthin
the authority conferred by s. 92 is nltra vires and void. And the
validity of the Act can be raised in and determined by any
court which has to deal ^Wth a case affected by the Act \
Various decisions therefore on the validity of Acts, both of the
Dominion Parliament and the Provincial Legislatures, have
been given by the Judicial Committee of the Privy Council, and
still more by the Canadian courts, both those of the provinces
and the Supreme Court of Canada -.
The decisions, especially those of the Judicial Committee, have
laid down such clear ijrinciples that the appeals to the Queen in
Council touching the validit}' of any Act have, of late years,
been comparatively few.
The principles laid down are as follows : —
The Courts of Canada have decided that ' exclusive ' in ss. 91
and 92 refers solely to the division of legislative powers between
the Dominion Parliament and the ProA'incial Legislatures, and
does not affect the power of the Imperial Parliament ^
The Judicial Committee has laid down that the legislative
powers conferred both on the Dominion Parliament and the
Provincial Legislature are plenary and not delegated powers,
that therefore the principle of delegatus delegare non potest does
not apply, and that although the limits of legislation are pre-
scribed, yet within those limits the right of legislation is absolute,
and the Local Legislature is supreme, and has the same authority
as the Imperial Parliament to give a municipal body power to
make by-laws *.
The Judicial Committee also refused to entertain an argument
derived from the possible abuse of power by the Pro^'incial
Legislature, saving that ' they could not conceive that when the
Imperial Parliament conferred wide powers of local government
* See Pope v. Griffith, 2 Cart. 291 (Q. B,, Que.").
* Collected in Cartwriglit's cases on British North Amorici Act, 4 vols.
(1882-92). .Some illustrative cases are briclly stated below.
^ Smiles V. Belford, i Cart. 576 (Ct. of App., Ont.) ; R. v. Coll. 0/ Phys. and
Stirgs., Ontario, i Cart. 761 ((^. B., Ont.).
' Ilodrje V. Th'! Queen, L.R. g A.C. 117. Sec also E. v. Burah, L.R. 3 A.C.
889 as to India ; and re Goodhue, i Cart. 560 (Ct. of App., Ont.i. Powell v.
Apollo Candle Co., L. \l. ro A.C. 282. See also Phillips v. Eyre, L. W. 6 Q. B. i.
204 BRITISH RULE AND JURISDICTION
App. III. on great countries such as Quebec, it intended to Kniit them on
the speculation that they would be used in an injurious manner ' ;
and again ' to place a limit on it ' (the legitimate meaning of
subss. (2) and (9) of s. 92), 'Ijecause the power may be used
unwisely, as all powers may, ould be an error ' ^
The Act exhausts the whole range of legislative power, and
whatever is not given to the Provincial Legislature rests with
the Dominion Parliament -.
[The general authority given by the introductory enactments of
s. 91 to the Canadian Parliament ' to make laAvs for the peace,
order, and good government of Canada ' will be strictly confined
to such matters as are imquestionably of Canadian interest and
importance ; and the exception in the concluding words of the
section has no application to those matters^.]
The powers of legislation conferred by ss. 91 and 92 are to
a certain extent concurrent and conflicting. But as it could not
have been intended that the powers exclusively assigned to the
Provincial Legislature (s. 92) should be absorbed in those given
to the Dominion Parliament (s. 91), it is necessary in each case
to ascertain in what degree and to what extent authority to deal
with matters falling within each class of subjects exists in each
Legislature, and to define in a particular case the limits of their
respective powers. It could not have been the intention that
a conflict should exist, and in order to prevent such a result the
two sections must be read together, and the language of one
interpreted and, where necessary, modified by that of the other.
As respects certain matters falling M'ithin the general description
of subjects in s. 91, legislative power may reside in a Provincial
Legislature.
Each question should be determined on its own merits *.
Subjects wliich in one aspect and for one purpose fall within
s. 92 may in another aspect and for another purpose fall within
s. 91 ^
Where the validit}' of an Act of the Provincial Legislature is
impeached, the first question to be decided is whether the Act
falls within any of the classes of subjects enumerated in s. 92,
for, if it does not, the Act is invalid, and no other question arises.
If it does fall prima facie within one of those classes of
subjects, the furthei- question arises whether it does not also fall
' Bank of Toronto v. Lambe, L. R. 12 A. C. 575.
^ Bank of Toronto v. Lambe, L. R. 12 A. C. 588.
[^ Attorney-General for Ontario v. Attorney-General for the Dominion, L. E. [1896]
A. C. 348.]
* Citizens' Insurance Company of Canada v. Parsons. L. R. 7 A. C. 96. See
also Hodge v. The Queen, L. R. 9 A. C. 128.
^ Hodge v. T}i€ Queen, L. R. 9 A. C. 117.
BRITISH NORTH AMERICA ACT 205
■w-ithin the class of subjects enumerated in s. 91, and whether App. III.
the power of the Provincial Legislature is or is not thereby
overborne \
Apparently, where an Act of the Dominion Parliament is
impeached, a similar course would be adopted.
For instance, the power of the Dominion Parliament (s. 91 (2))
to legislate for the regulation of trade and commerce conflicts to
a certain extent with the power of the Provincial Legislature
(s. 92 (13) to legislate for property and civil rights.
The principle is that each Legislature when legislatin on the
subject assigned to it, may j^ass such Act as is necessaiy for
giving effect to the legislation, even though the Act touches
incidentally a subject not assigned to. the Legislature jjassing
it -. And s. 91 refers only to general legislation.
Thus an Act of the Dominion Parliament for the general
regulation of trade may deal A\dth propertj^ and civil rights
so far as is incidental to carrying into effect the regulation of
trade.
And a statute of a Provincial Legislature dealing with ' pro-
perty and civil rights ' is valid though it incidentally affects
trade.
Again, a Dominion Act may for the purpose of maintaining
law and order, or of regulating the trade in liquor throughout
the Dominion, prohibit the sale of liquor in any town which
adopts the Act, notwithstanding that such a provision affects
the powers of the Provincial Legislature under s. 92 (9) as to
tavern licences, and s. 92 (13) as to property and civil rights.
A Provincial Legislature, on the other hand, can authorize
a municipality to make by-laws regulating the liquor traffic, so
long as they are not contrary to the Dominion Act.
And a Provincial Act may fix the qualification for (say)
a chemist to carry on his business, or regulate the sale of goods
in streets, though such enactnients may affec trade.
The power of the Dominion Parliament under s. 91 (12) to
regulate fisheries does not authorize legislation as to private
property in fisheries, which is exclusively under the Provincial
Legislature (s. 92 (13))-
The power of the Dominion Parliament to raise money by any
mode of taxation (s. 91 (3)) is limited by s. 92 (2), so that the
Dominion Parliament cannot provide for direct taxation within
' Citizens^ Insurance Company of Canada v. Parsons, L. R. 7 A. C 108, 109 ;
Dubi" v. Ti',m'poraliti(:f; Bmr<l. L. R. 7 A. C. 149; liussell\. The Queen, L. R.
7 A. C. 829 ; Bank of Toronto v. Lambe, L. K. 12 A. C. 581.
' Russell V. Beg., L. R. 7 A. C. 839 ; Bennett v. Pharmaceutical Association of
Quebec, 2 Cart. 250 (Q. B.. Quo.).
2o6 BRITISH RULE AND JURISDICTION
App. III. a province in order to the raising of a revenue for provincial
purposes.
On the other hand, the Provincial Legislature being limited
to direct taxation, cannot, for the purpose of provincial revenue,
impose a licence or stamp duty, nor tax the salaries of officers
of the Dominion Government.
But that Legislature can impose direct taxation upon banks
and insurance companies carrying on business in the province,
although they are domiciled and have their principal offices
outside the province, and may impose direct taxation for local
purposes, e.g., those of a municipality and not merely for the
purpose of the whole province.
And apparently a Provincial Legislature can under s, 92 (8)
authorize a municipality to charge for licences to shops, &c.,
where the object is not to raise a revenue for provincial purposes.
The Dominion Parliament alone can incorporate a company to
carry on business in more than one province, and a company so
incorporated need not in fact carry on business in more than
one province, but it is subject to the law of the province
respecting the mode in which business may be carried on in that
province.
A Provincial Legislature can incorporate a company for making
navigation ; but its powers are limited to the province (s. 92
(lo)).
Although the Dominion Parliament, under s. 91 (27), can
exclusively legislate for criminal law and criminal procedure,
a Provincial Legislature, under s. 92 (15), can not only impose
punishment by fine or imprisonment (and that Avith or without
hard labom-) for any offence against an Act which that Legislature
has power to pass, but can also I'egulate the procedure for such
offence so long as it is purely an offence against the provincial
Act, and not an offence by the general law of the dominion.
If it is an offence by the general law, the punishment or pro-
cedure cannot be altered by the Provincial Legislature even
though it is also made an offence against the provincial statute.
Nor can the Provincial Legislature alter the general rules as
to evidence in criminal matters, as e. g. by allowing a defendant
to be forced to criminate liimself.
ILLUSTRATIVE CASES DECIDED ON ABOVE
SECTIONS.
Tv^i ^^^d Section 91 (2) extends to political arrangements in regard to
commerce, trade and to regulations of trade in matters of intra-provincial
BRITISH NORTH AMERICA ACT 207
concerns, and perhaps to general regulations affecting the whole App. III.
dominion, but does not include the regulation of contracts re-
lating to a particidar business or trade in one province. That is
within s. 92 (13).
Thus an Ontario Act, prescribing conditions which are to form
part of every policy of fire insurance entered into or in force in
the pro^ince for insuring property situate therein against fire, is
valid, and appHes to the contracts of all insurers in Ontario,
including corporations incori^orated by imperial Act, or by foreign
or colonial authority. Citizens' Insurance Company v. Parsons,
L. K. 7 A. C. 96.
[But jjower to regulate does not mean power to prohibit.
Attorney-General for Ontario v. Attorney-General for Canada, L. R.
[1896] A. C. 348.]'
Section 91 (2) does not prevent the Provincial Legislature
dealing with licences under s. 92 (9). Severn v. TJie Queen,
1 Cart. 414 (Sup. Ct. of Can.) ; liegina v. Boardman, i Cart. 676
(Q. B., Ont.), nor with regulations for good order which affect the
liquor traffic. Hodge v. T/ie Queen, L. R. 9 A. C. 117.
A Dominion Act authorizing transfer of warehouse receipts to
banks by direct endorsement was held valid under s. 91 (2) or
(15), notwithstanding s. 92 (13), because the Dominion Parlia-
ment can legislate as to property and civil rights, so far as
necessary for its power over subjects in s. 91. Smith v. Mer-
chants' Bank, i Cart. 828 (Ct. of Ch., Ont.).
' Property ' and ' civil rights ' are used in their largest sense,
and ' civil rights ' include rights arising from contract, and do
not mean only such rights as flowed from the law, e. g. the
status of persons. ' Ci"\dl rights ' are not included in express
terms in s. 91. Citizens' Insurance Company of Canada v. Parsons,
L. R. 7 A. C. 1 10.
A provincial Act respecting the debts of a railway company
in the province, being debts arising under a local Act, is vahd
under s. 92 (13), although the creditor was in England, and
therefore the debt domiciled in England. Jones v. Canada
Central Railway Company, i Cart. 777 (Q. B. , Ont.).
A provincial Act providing for the effect of a bill of lading is s. 92(13).
valid under s. 92 (13), and is not an interference mth trade, s. 91 civ^FrigbL.'
(2). Beard v. Steele, i Cart. 683 (Q. B., Out.).
A Provincial Legislature can settle the qualifications of persons
to manage a business, although the doing so affects trade in-
directly. The qualification to carry on a trade, e. g. to be
a chemist, is a civil right, and is within s. 92 (13), and not
within s. 91 (2). Bennett v. Pharmaceutical Society of Quebec,
2 Cart. 250 (Q. B., Que.).
A Dominion Act providing for the disposal in a county court
2o8
BRITISH RULE AND JURISDICTION
S. 91 (21).
Bankruptcy
and insol-
vency.
Regnlation.s
of trade in
liquors.
App. III. of claims by and against assignees in insolvency is valid under
s. 91 (21). Cromhie v, JacJcson, i Cart. 685 (Q. B., Ont.).
This decision was supi^orted on the ground that a similar law
was in force at the passing of the Act, a course followed in
Corporation of Three lUvers v. Suite, 2 Cart. 280 (Q. B., Que.), but
on this point see the dissent of the Judicial Committee (in Banh
of Toronto v. Lamhe, L. E. 12 A. C. 587) from the suggestion that
the Provincial Legislatures possess power of legislation either
inherent in them or dating from the time of the Federation Act,
and not taken away by that Act.
The Dominion Parliament, by s, 91 (21), has power to interfere
with property and civil rights and procedure so far as they might
be affected by a general law relating to bankruptcy. Consequently
a Dominion Act, providing that a judgement of a court of appeal
in bankruptcy matters should be final, was vaHd. Gushing v.
I)u])uy, L. E. 5 A. C. 409.
A Dominion Act enabling towns to adopt those provisions of
it which prohibit the sale of liquor, held valid because it is not
within s. 92 (9), (13), or (16), and as relating to the peace, order,
and good government of Canada, but not as regulating trade and
commerce.
It is not within subs. (9), because that subsection is
limited to licences for revenue, and legislation interfering with
the sale of articles mentioned in subs. (9) is not legislation on
the subjects specified in subs. (9).
It is not within subs. (13), because that Act primarily re-
lates to public order and safety, and only secondarily to civil
rights.
It is not of a local nature within subs. (16), because, al-
though it may only be adopted in certain localities, it is a uni-
form law for promoting temperance throughout the dominion.
Bussell V. The Queen, L. E. 7 A. C 829, and Attorney-General for
Ontario v. Attorney-General for Canada, L. E. [1896] A. C. 348.
The Provincial Legislature under s. 92 (8) can authorize a muni-
cipality to pass a by-law prohibiting the sale of liquor, except
in certain houses, by limiting the number of public houses, and
such an Act is not opposed to s. 91 (2). Corporation of Three
li iters V. Suite, 2 Cart. 280 (Q. B., Que.) ; SJavin v. Orillia Village,
I Cart. 688 (Q. B., Ont.). See also Severn y. The Queen, i Cart. 414
(Sup. Ct. of Can.).
An Ontario Act maldng regulations in the nature of police or
municipal regvilations of a merely local character for the good
government of taverns is valid.
And that Act can entrust to commissioners authority to enact
such regulations, and thereby to create offences and annex
penalties thereto. Hodge v. The Queen, L. E. 9 A. C. 117.
BRITISH NORTH AMERICA ACT 209
A brewers licence is not an 'other licence' within s. 92 (9), An-, ni.
and therefore cannot be provided for by a provincial Act. Severn
V. The Queen, 1 Cart. 414 (Sup. Ct. of Can.).
A provincial Act authorizing a city council to make by-laws
for preventing vendors of small wares from selling in the streets
is valid. Be Harris and City of Hamilton, i Cart. 756 (Q. B., Ont.).
Section 91 (12) enables the Dominion Parliament to legislate Fisheries,
for the regulation and protection of fisheries as matters of ''■ ''^ ^"^"
national concern, e. g. close time, the use of improper instru-
ments ; but not as regards the right to fish or the property, in
fisheries, which are under s. 92 (13).
And as ss. 109 and 117 reserve to the provinces the fishery
rights of the Crown, the Federal Ministry of Marine cannot
grant licences to fish in the provmce, E. v. Eoheiison, 2 Cart. 65
(Sup. Ct. of Can.).
The question of what is dii'ect taxation is dealt ^vitll in Attorney- Direct
General for Quebec\. Reed, L. K. 10 A. C. 141, and Banh of Toronto k!'92*(2°'
V. Lambe, L. E. 12 A. C. 584-5.
In the latter case a tax imposed by a provincial Act upon
banks and insurance companies carrying on business within the
province was held valid, although they were incoi-porated and
had their chief place of business outside the province.
A licence was held by the Supreme Court of Canada to be
indirect taxation : Severn v. The Queen, i Cart. 414 ; but as to this
see Bank of Toronto v. Lambe, L. K. 12 A. C. 584.
A stamp duty on' policies of insurance, although called a
licence, is not direct taxation, and is therefore invalid. Attorney-
General for Quebec v. Queen Insurance Co., L. R. 3 A. C. 1090.
So also are stamps on legal proceedings applicable to the
general revenue of the province. Attorney-General for Quebec
v. Reed, L. E. 10 A. C. 141.
The Dominion Parliament cannot directly tax a province in
order to raise a revenue for provincial purposes. Bank of Toronto
V. Lambe, L. E. 12 A. C. 585.
The s. 92 (2) authorizes direct taxation for any local purpose,
and not merely for the purpose of the province. Boiv v. Black,
L. R. 6 P. C. 272.
The power under s. 91 (27) to impose punishment by impris- Criuiinai
onment involves imprisomnent with hard labour. Hodge v. s? '11(27),
The Queen, L. E. 9 A. C. 133. "• ^'- ^^^' ^'^'•
A provincial Act for regulating shop licences imposed three
months' imprisonment for certain offences against the Act.
This is valid, as not being opposed to s. 91 (27). R. v. Boardman,
1 Cart. 676(Q.B., Ont.).
The procedure aff"ecting penal laws whicli a Provincial Legis-
lature can pass can be regulated by that legislature, s. 92 (15),
JICNKYNS P
2IO BRITISH RULE AND JURISDICTION
App. III. and is not criminal within s. 91 (27). Pope v. Griffith, and other
cases, 2 Cart. 291, 297, 308, 311 (Q. B., Que,).
But if the deed which the Provincial Legislature purpoi'ts to
punish is a crime by the law of the dominion, e. g. if the provin-
cial Act punishes on conviction before a magistrate the offence
of tampering Avith a witness under the Liqvior Law, the Act is
ultra vires, notwithstanding s. 92 (8), (9), and (15), because it is
an act which is a crime within s. 91 (27). B. v. Lawrence,
iCart. 742(Q.B., Ont.).
So also the Provincial Legislature cannot alter the general niles
of evidence pertaining to criminal procedure throughout the
dominion, e. g. by compelling a defendant to give evidence
criminating himself. li. v. Roddy, i Cart. 709 (Q. B., Ont.).
It is for the attorney-general of the province to enforce the
criminal law in the province, although the law is made by the
Dominion Parliament. Attorney-General v. Niagara Falls Foot
Bridge Co., i Cart. 813 (Ct. of Ch., Ont.).
The attorney-general of the province is the proper officer to
file an information for the violation of the rights of the public
of the province, e. g. obstruction by a railway, although the
rights rest on a Dominion Act. If the property of the Crown,
as represented by the Government of the Dominion, were
. affected, it might be otherwise. Attorney-General v. Niagara Falls
Foot Bridge Co., i Cart. 813 (Ct. of Ch., Ont.).
Justice, The power of the Provincial Legislature to legislate for the
" ''' ' administration of justice includes the power to provide for the
appointment of police magistrates and justices of the peace by
the lieutenant-governor. B. v. Bennett, 2 Cart. 634 (Q. B., Ont.).
See also B. v. Horner, 2 Cart. 317 (Q. B., Que.).
The Act of the Dominion Parliament establisliing a maritime
court with jurisdiction limited to one province is valid. McCuaig
and Smith v. Keith, i Cart. 557 (Sup. Ct. of Can.),
s. 90. A Provincial Legislature cannot j)ass an Act authorizing the
removal of county court judges by the lieutenant-governor, or
abolishing a court existing before 1867 for the trial of county
court judges (s. 96). Be Sqiiier, i Cart. 789 (Q. B., Ont.).
Bb, 65, 13T. The Provincial Legislature could continue a temporary Act of
1865 enabling the governor to appoint poHce magistrates. This
was not affected by a Dominion Act of 1868, authorizing the
governor-general to appoint police magistrates, it. v. Beno and
Anderson, 1 Cart. 810 (Q. B., Ont.).
The prerogative power of the Crown to issue commissions of
oyer and terminer and gaol delivery remains notwithstanding
s. 91 (27) and s. 92 (14), as neither the Dominion nor the Pro-
vincial Legislatures have legislated (qn. which could legislate).
B. V. Amer., i Cart. 722 (Q. B., Ont.).
BRITISH NORTH AMERICA ACT 211
The establishment by Dominion Act of a court to try election App. III.
petitions is valid notwithstanding s. 92 (14) ; see s. 41. VaUn v.
Langlois, L. E. 5 A. C. 115 ; as to pro\'incial Act, see Thebergc v.
Laudry, L. E. 2 A. C. 102.
A provincial Act providing for the reduction of the Habiiities Acts of a
of an association, which otherwise would be insolvent, is valid s. yj 116)!^^*'
under s. 92 (16), and not within s. 91 (21). S. 91 refers only
to general legislation. L'Union St Jacques de Montr^cd v. Belisle,
L. R. 6 P. C. 31.
An Act authorizing a parish to raise by local taxation a subsidy
to a railway which extended beyond the limits of the pi'ovince
is valid under s. 92 (16). Dow v. Black, L. E. 6 P. C. 272.
An Act of the old province of Canada (consisting of the j^ro-
vinces of Ontario and Quebec), which established a corporation,
cannot be repealed or modified by the Legislature of either pro-
vince or by the two Legislatures, but only by the Dominion
Parhament. JDohie v. The Temporalities Board, L. E. 7 A. C. 136.
A company to carry on business in more than one province
can only be established by the Dominion Parliament, and is
validly constituted even though provincial Acts regulated similar
companies, and though it carries on business in one province
only ; but any such company must act in each province — e. g. as
respects holding lands in mortmain— in accordance with the law
of the province. Colonial Building, ^x. Association v. Attorney-
General of Quebec, L. E. 9 A. C. 157 ^ See also Citizens' Insurance
Co. V. Farsons, L.E. 7 A. C. 115-7.
Incorporation by a patent under a provincial Act of a navigation s. 92 (10).
company with operations limited to the province is valid. Mac-
dougall v. Union Navigation Co., 2 Cart. 228 (Q, B., Que.).
A Dominion Act providing for the liquidation of all building
societies, whether solvent or not, is invalid, as it is not under
s. 91 (21), and is contrary to s. 92 (13). KcClanaghan v.
St. Ann's Building Society, 2 Cart. 237 (Q. B., Que.).
A provincial Act for dividing a certain testator's property 13
vahd. Itc Goodhue, i Cart. 560 (Ct. of App., Ont.).
The salary of a Dominion officer cannot be taxed by the pro- Misceu
vincial government, because (a) he is a Dominion officer, (6) his points.
salary is not wholly in the province. Leprohon v. City of Ottaiva,
I Cart. 592 (Ct. of App., Ont.).
As respects the powers of the provincial Government to grant
' Tliis over-ruled the decision of the Queen's Bench of Quebec, 2 Cart.
275, and virtually over-ruled a decision of the same court as respects
a telephone company which a Dominion Act had empowered to carry
on business in more than one province, but liad not formed for the
purpose of connectinjj two provincps, or declared to be to the general
advantage of Canada or two provinces. Ji. v. Mohr, 2 Cart. 257.
P 3
212 BRITISH RULE AND JURISDICTION
App. III. land under deep water and rivers, see Normand v. St. Laurence
Navigation Co., 2 Cart. 231 (Q. B., Que.), the grant being impliedly
subject to the rigl^t of navigation, which is under the protection
of the Dominion Government.
s'. lOS. The provincial Government cannot grant the foreshore of
a natural harbour. See Uolman v. Green, 2 Cart. 147 (Sup.
Ct. of Can.),
s. 92 (10). Where a railway has been declared a federal railway, the
transfer of it cannot be authorized by a provincial Act. Bourgoiti
v. La Compagnie du Gliem'm de Fer de Montreal, Ottawa, ct
Occidental, L. K. 5 A. C. 381, 404.
And where a provincial railway crosses a federal railway the
consent of both the Dominion and the provincial Government
is required. Credit Valley Baihvay v. Great Western Bailway,
I Cart. 822 (Ct. of Ch., Ont.).
But a provincial Act, generally directing compensation to be
paid to all trustees for their services, applies to the commissioners
of a harbour which is the property of the dominion. Re Toronto
Harbour Commissioners, i Cart. 825 (Ct. of Ch., Ont.).
APPENDIX IV
GOVERNORS^ COMMISSIONS ^
I. CANADA
I. Patent,
Lettees Patent passed under the Great Seal of the United App. IV.
Kingdom, constituting the office of Goveraor-General
of the Dominion of Canada. — Letters Patent, dated 5th
October 1878.
Victoria, by the Grace of God, of the United Kingdom
of Great Britain and Ireland, Queen, Defender of the
Faith, Empress of India ; To all to whom these Presents
shall come Greeting :
Whereas We did, by certain Letters Patent under the Great Preamble.
Seal of Our United Kingdom of Great Britain and Ireland,
bearing date at Westminster the Twenty-second day of May Recites
1872, in the Thirty-fifth Year of Our Reign, constitute and GenerTrs
appoint Our Right Trusty and Right Well-beloved Cousin and f^'^'^^Xyr*
Coimcillor, Frederick Temple, Earl of DufFerin, Knight of Our 1872.
Most Illustrious Order of Saint Patrick, Knight Commander of
Our Most Honourable Order of the Bath (now Knight Grand
Cross of Our Most Distinguished Order of Saint Michael and
Saint George), to be Our Governor-General in and over Our
Dominion of Canada for and during Our will and pleasure : And
whereas by the 12th section of 'The British North America imperial
Act, 1867,' certain powers, authorities, and functions were de- Marchfi'se?,
clared to be vested in the Governor-General : And whereas We '^'^p- 3-
are desirous of making effectual and permanent provision for the
office of Governor-General in and over Our said Dominion of
Canada, without making new Letters Patent on each demise of
the said Office : Know now ye that We have revoked and Revocation
determined, and by these presents do revoke and determine, the GenerarB"*"^'
said recited Letters Patent of the Twenty-second day of May Couan^iasioa
' For commissions of eighteenth century see Greene, Provincial Governors
in ihe English Colonies of l\orih America, nnd as to West Indies) Campbell
V. Hall, 20 St. Tr. 239, 246, &c.
22nd ^lay,
1872.
214
BRITISH RULE AND JURISDICTION
Office of
Govemo;-.
General
constituted.
Governor's
powers and
authorities.
App. IV. 1872, and every clause, article, and tiling therein contained :
And further know ye that We, of Our special grace, certain
knowledge, and mere motion, have thought fit to constitute,
order, and declare, and do by these presents constitute, order,
and declare, that there shall be a Governor-General (hereinafter
called Our said Governor-General) in and over our Dominion of
Canada (hereinafter called Our said Dominion), and that the
person who shall fill the said Office of Governor-General shall
be from time to time appointed by Commission under Our
Sign-Manual and Signet. And We do hereby authorize and
command Our said Governor-General to do and execute, in due
manner, all things that shall belong to his said command, and
to the trust We have reposed in him, according to the several
powers and authorities granted or appointed him by virtue of
'The British North America Act, 1867,' and of these present
Letters Patent and of such Commission as may be issued to
him under Our Sign-Manual and Signet, and according to such
Instructions as may from time to time be given to him, under
Our Sign-Manual and Signet, or by Our Order in Our Privy
Council, or by Us through one of Our Principal Secretaries of
State, and to such Laws as are or shall hereafter be in force in
Our said Dominion.
II. And We do hereby authorize and empower Om- said
Governor-General to keep and use the Great Seal of Our said
Dominion for sealing all things whatsoever that shall pass the
said Great Seal.
III. And We do fm-ther authorize and empower Our said
Governor-General to constitute and appoint, in Our name and
on Our behalf, all such Judges, Commissioners, Justices of the
Peace, and other necessary Officers and Ministers of Our said
Dominion, as may be la\\'fully constituted or appointed by Us.
IV. And We do further authorize and empower Our said
Governor-General, so far as We lawfully may, upon sufficient
cause to him appearing, to remove from his office, or to suspend
from the exercise of the same, any person exercising any office
within Our said Dominion, under or by virtue of any Commission
or Warrant granted, or which may be granted, by Us in Our
name or under Our authority.
v., And We do further authorize and empower Our said
Governor-General to exercise all powers la^vfully belonging to
Us in respect of the summoning, proroguing, or dissolving the
Parliament of Our said Dominion.
VI. And whereas by ' The British North America Act, 1867,'
it is amongst other things enacted, that it shall be lawful for
Us, if We think fit, to authorize the Governor-General of Our
Dominion of Canada to appoint any person or persons, jointly
Great Seal.
Appoint-
ment of
Judgea,
Justices, &c.
Suspension
er removal
from office.
Summoning,
proroguing,
or dissolving
the Domi-
rtion Par-
liament.
GOVERNORS COMMISSIONS 215
-or severally, to be his Deputy or Deputies within any part or Arr. IV.
parts of Our said Dominion, and in that capacity to exercise,
<]uring the pleasure of Our said Governor-General, such of the ^"'■^eyto
powers, authorities, and functions of Our said Governor-General Deputiea.
as he may deem it necessary or expedient to assign to such
Deputy or Deputies, subject to any limitations or directions
from time to time expressed or given by Us : Now We do
hereby authorize and empower Our said Governor-General,
subject to such Hmitations and directions as aforesaid, to
appoint any person or persons, jointly or severally, to be his
Deputy or Deputies within any part or parts of Our said
Dominion of Canada, and in that capacity to exei'cise, dm-ing
his pleasure, such of his powers, functions, and authorities as
he may deem it necessary or expedient to assign to him or them :
Provided always, that the appointment of such a Deputy or
Deputies shall not affect the exercise of any such power,
authority, or function by Our said Governor-General in person.
VII. And We do hereby declare Our pleasure to be that, in succession
the event of the death, incapacitj^, removal, or absence of Our vemment.
said Governoi'-General out of Our said Dominion, all and every
the powers and authorities herein granted to him shall, until
Our further pleasure is signified therein, be vested in such
person as may be appointed by Us under Our Sign-Manual and
Signet to be Oiu- Lieutenant-Governor of Our said Dominion ;
or if there shall be no such Lieutenant-Governor in Our said
Dominion, then in such person or persons as may be appointed
by Us under Our Sign-Manual and Signet to administer the
Government of the same ; and in case there shall be no person
or persons withm Our said Dominion so appointed by Us, then
in the Senior Officer for the tune bemg in command of Our
regular troops in Our said Domuiion : Provided that no such ProTiso.
powers or authorities shall vest in such Lieutenant-Governor, or cioTernor"
such other person or persons, until he or they shall have taken o^tiwo^''*'
the oaths appointed to be taken by the Governor-General of Our ^'^'^^. ^•.6{'""«
. . . , . — . administer
said Dominion, and m the manner provided by the Instructions ing the Go
accompanying these Our Letters Patent.
VIII. And We do hereby require and command all Our Officei-san
Officers and Ministers, Civil and Military, and all other the obey™nd
inhabitants of Our said Dominion, to be obedient, aiding, and Governors-
assisting unto Our said Governor-General, or, in the event of General,
his death, incapacity, or absence, to such person or persons as
may, from time to time, under the provisions of these Our
Letters Patent, administer the Government of Our said
Dominion.
IX. And We do hereby reserve to Ourselves, Our heu's and Power ro.
successors, full power and authority from time to time to revoke, Maj^ty to "
2l6
BRITISH RULE AND JURISDICTION
Arr. IV.
revoke, alter,
or amend tlie
present
Letters
Patent.
Publication
of Lettew
Patent.
Appoint-
ment of th'-
Kight Hon.
the Lord
Stanley of
Preston,
P.O., G.C.B.
as Governo.
General.
Eecites
Letters
Patent,
dated 5th
October,
1878, consti-
tuting the
office of
Governor-
General.
Commission
appointing
the Marquis
of Lans-
downe,
G.C.M.G.,
as Govem<ji-
General,
alter, or amend these Our Letters Patent as to Us or them shall
seem meet.
X. And We do fm-ther direct and enjoin that these Our
Letters Patent shall be read and proclaimed at such place or
places as Our said Governor-General shall think fit within Our
said Dominion of Canada.
In Witness whereof We have caused these Our Letters to be
made Patent. Witness Ourself at Westminster, the Fifth day of
October, in the Forty-second Year of Our Reign.
By Warrant under the Queen's Sign-Manual.
c. eomilly.
2. Commission.
Commission passed under the Royal Sign Manual and Signet,
appointing the Right Honoural)le Lord Stanley of Preston,
P.C., G.C.B., to be Governor-General of the Dominion of
Canada.— Dated ist May 1888.
VICTORIA R.
Victoria, by the Grace of God of the United Kingdom
of Great Britain and Ireland Queen, Defender of the Faith,
Empress of India : To Our Right Trusty and Well-beloved
Councillor Frederick Arthur, Baron Stanley of Preston,
Knight Grand Cross of Our Most Honourable Order of the
Bath, Greeting.
We do by this Our Commission under Our Sign Manual and
Signet appoint you, the said Frederick Arthur, Baron Stanley of
Preston, to be during Our pleasure Our Governor-General in and
over Our Dominion of Canada, with all the powers, rights,
privileges, and advantages to the said office belonging or
appertaining.
II. And We do hereby authorize, empower, and command you
to exercise and perform all and singular the powers and
du-ections contained in Our Letters Patent under the Great Seal
of Our United Kingdom of Great Britain and Ireland, bearing
date at Westminster, the Fifth day of October 1878, constituting
the said Office of Governor-General, or in any other Letters
Patent adding to, amending, or substituted for the same, accord-
ing to such Orders and Instructions as Our Governor-General for
the time being hath already received from Us, or as you shall
hereafter receive from Us.
III. And further, We do hereby appoint that so soon as you
shall have taken the prescribed oaths, and have entered upon the
duties of your office, this Our present Commission shall supersede
Our Commission under Our Sign Manual and Signet, bearing
date the Eighteenth day of August 1883, in the Forty-seventh
GOVERNORS COMMISSIONS 217
year of Our Reign, appointing Our Right Trusty and Entirely- App. IV.
beloved Cousin Henry Charles Keith, Marquis of Lansdowne,
now Knight Grand Cross of Our Most Distinguished Order of dited i3th
Saint Michael and Saint George, to be Our Governor-General of supersedld.""
Our Dominion of Canada.
IV. And We do'hereby command all and singular Our Officers, officei-s, &C.,
Ministers, and lo^^ng subjects in Our said Dominion, and all cro^ermV'"
others whom it may concern, to take due notice hereof, and to ^^°'^'■•■''•
give their ready obedience accordingly.
Given at Our Court at Windsor, this Fii'st day of May 1888, in
the Fifty-first year of Our Reign.
By Her Majesty's Command,
Knutsford.
3. Instructions.
Instructions passed under the Royal Sign-Manual and Signet
to the Governor-General of the Dominion of Canada. —
Dated 5th October 1878.
VICTORIA R.
Instructions to Our Governor-General in and over Our
Dominion of Canada, or, in his absence, to Our
Lieutenant-Govei-nor or the Officer for the time being
administering the Government of Our said Dominion.
Given at Our Court at Balmoral, this Fifth day of October,
1878, in the Forty-second year of Our Reign.
Whereas by certain Letters-Patent bearing even date here- Preamble.
with, We have constituted, ordered, and declared that there Recites
shall be a Governor-General (herein-after called Our said patem,date()
Governoi'-General) in and over Our Dominion of Canada (herein- stii October,
... io7°i con-
after called Our said Dominion), And We have thereby au- stitutingtuc
thorized and commanded Our said Governor-General to do and Govemoi
execute in due manner all things that shall belong to his said *^'''"'"''''-
command, and to the trust We have reposed in him, according
to the several powers and authorities granted or appointed him
l»y virtue of the said Letters-Patent and of such Commission as
may be issued to him under Our Sign-Manual and Signet, and
according to such Instructions as may from time to time be
given to him, under Our Sign-Manual and Signet, or by Our
Order in Our Privy Council, or by Us through ono of Our
Principal Secretaries of State, and to such Laws as are or shall
hereafter be in force in Our said Dominion. Now, therefore,
We do, by these Our Instructions under Our Sign-Manual and
Signet, declaio Our pleasure to be that Our said Governor-
Genei^al for the time being shall, with all due solemnity, cause
Our Commission, under our Sign-Manual and Signet, appointing
2l8
BRITISH RULE AND JURISDICTION
Apr. IV.
Publication
i)f Governor-
Oeneral's
Commission.
Oaths to be
taken by
Governor-
General, &c.
Imperial
Act, 31 &
32 Vict,
cap. 72.
Oaths to be
administered
by the
Governor-
General,
Governor-
General to
communi-
cate instruc-
tions to the
Privy
Council of
the Domi-
aioD.
Laws sent
home to have
marginal
abstracts.
Journals and
Minutes.
Our said Governor-General for the time being, to be read and
published in the presence of the Chief Justice for the time
being, or other Judge of the Supreme Court of Our said
Dominion, and of the members of the Privy Council in Our
said Dominion : And We do further declare Our pleasure to
be that Our said Governor-General, and every other officer
appointed to administer the Goverimaent of our said Dominion,
shall take the Oath of Allegiance in the form provided by an Act
passed in the Session hold en in the tliii'ty-first and thirty-second
years of Our Eeign, intitided 'An Act to amend the Law relating
to Promissory Oaths ' ; and likewise that he or they shall take
the usual Oath for the due execution of the Office of Our
Governor-General in and over Our said Dominion, and for the
due and impartial administration of justice ; wliich Oaths the
said Chief Justice for the time being of Om* said Dominion, or,
in his absence, or in the event of his being otherwise incapaci-
tated, any Judge of the Supreme Court of Our said Dominion,
shall, and he is hereby required to, tender and administer unto
him or them.
II. And We do authorize and require Our said Governor-
General from time to time, by himself or by any other person
to be authorized by him in that behalf, to administer to all and
to every persons or person, as he shall think fit, who shall hold
any office or place of trust or profit in Our said Dominion, the
said Oath of Allegiance, together with such other Oath or Oaths
as may from time to time be prescribed by any Laws or Statutes
in that behalf made and provided.
III. And We do require Our said Governor-General to com-
municate forthwith to the Px'ivy Council for Our said Dominion
these Our Instructions, and likewise all such others, from time
to time, as he shall find convenient for Our service to be imparted
to them.
IV. Our said Governor-General is to take care that all laws
assented to by him in Our name, or reserved for the signification
of Our pleasure thereon, shall, when transmitted by him, be
fauiy abstracted in the margins, and be accompanied, in such
cases as may seem to him necessaiy, with such explanatory
observations as may be required to exhibit the reasons and
occasions for proposing such Laws ; and he shall also transmit
fair copies of the Jom-nals and Minutes of the proceedings of the
Parliament of Our said Dominion, which he is to require from
the clerks, or other proper officers in that behalf, of the said
Parliament.
V. And We do fm-ther authorize and empower Our said
Governor-General, as he shall see occasion, in Our name and on
Our behalf, when any crime has been committed for which the
GOVERNORS COMMISSIONS 219
offender may be tried -svithin Our said Dominion, to grant Apr. IV.
a pardon to any accomplice, not being the actual perpetrator of
such crime, who shall give such information as shall lead to the ^''''"'*' "^
' " pardons.
conviction of the principal offender ; and further, to grant to any
offender convicted of any crime in any Court, or before any Judge,
Justice, or Magistrate, within our said Dominion, a pardon,
either free or subject to lawful conditions, or any respite of the
execution of the sentence of any such offender, for such period as
to Our said Governor-General may seem fit, and to remit any Remission of
fines, penalties, or forfeitures wh'ich may become due and pay- ^'°®*"
able to Us. Provided always, that Our said Governor-General Proviso-
shall not in any case, except where the offence has been of fromVhe^"
a political nature make it a condition of any pardon or remission p,I^'i"i^t"ed
of sentence that the offender shall be banished from or shall Evception—
absent liimself from Our said Dominion. And We do hereby offences.
direct and enjoin that Our said Governor-General shall not
pardon or reprieve any such offender without first receiving in Retaliation
capital cases the advice of the Privy Council for our said of pardon.
Dominion, and in other cases the advice of one, at least, of his
Ministers ; and in any case in which such pardon or reprieve
might directly affect the interests of Our Empire, or of any
countiy or place beyond the jurisdiction of the Government of
Our said Dominion, Our said Governor-General shall, before
deciding as to either pardon or reprieve, take those interests
specially into his o^vn personal consideration in conjunction with
such ad^^ce as aforesaid.
VI. And whereas great prejudice may happen to Our service Oovemor-
and to the security of Our said Dominion by the absence of Our absence.
said Governor-General, he shall not, upon any pretence what-
ever, quit Our said Dominion ■without having first obtained leave
from Us for so doing under Our Sign-Manual and Signet, or
through one of our Principal Secretaries of State.
Signet. V. K.
II. NEW SOUTH WALES
I. Patent.
Letters Patekt passed under the Great Seal of the United
Kingdom, constituting the Office of Governor and Com-
mander-in-Chief of the Colony of New South Wales and its
Dependencies. — Letters Patent, dated 29th April 1879.
Victoria, by the Grace of God, of the United Kingdom of
Great Britain and Ireland, Queen, Defender of the Faith,
Empress of India : To all to whom these Presents shall
come : Greeting.
Whereas We did, by certain Letters Patent, under the Great rre.imbie.
220
BRITISH RULE AND JURISDICTION
App. IV.
Recites
Governor Sir
H. G. R.
Robinson's
Commission,
dated 23rd
February,
1872.
Revocation
of Governor's
Commission.
Boundaries.
Governor's
powers and
authorities.
Seal of Our United Kingdom of Great Britain and Ireland,
bearing date at Westminster the Twenty-third day of February
1872, in the Twenty-fifth year of Our Eeign, constitute and
appoint Our trusty and well-beloved Sir Hercules George Eobert
Robinson, Knight Commander of Our Most Distinguished Order
of Saint Michael and St. George (now Knight Grand Cross of
Our said Most Distinguished Order) to be during Our pleasure
Our Governor and Commander-in-Chief in and over Our Colony
of New South Wales as therein described, and its Dependencies ;
And whereas We are desirous of making permanent provision
for the Office of Governor and Commander-in-Chief in and over
Our said Colony of New South Wales and its Dependencies,
without making new Letters Patent on each demise of the said
Office : Now know ye that We do by these presents revoke and
determine the said recited Letters Patent, and everything therein
contained : And further know ye that We, of Our special grace,
certain knowledge, and mere motion, do by these presents con-
stitute, order, and declai'e that there shall be a Governor and
Commander-in-Chief in and over Our Colony of New South
Wales and its Dependencies (which said Colonj' of New South
Wales and its Dependencies are herein-after called the Colony),
comprising all that portion of Our territory of Australia or New
Holland lying between the one hundred and twenty-ninth and one
hundred and fifty-fourth degrees of east longitude, and northwards
of the fortieth degree of south latitude, including all the islands
adjacent in the Pacific Ocean within the longitudes and latitudes
aforesaid, and also including Lord Howe Island, being in or about
thirty-one degrees thirty minutes south, and the one hundred
and fifty-ninth degree of east longitude, save and except those
parts of Our said territory of Australia or New Holland which
are called respectively ' The Colony of South Australia,' ' The
Colony of Victoria,' and ' The Colony of Queensland,' and that
appointments to the said Office, when vacant, shall be made by
Commission under Our Sign Manual and Signet.
II. We do hereby authorize, empower, and command Our
said Governor and Commander-in-Chief (herein-after called the
Governor) to do and execute all things that belong to his said
Office, according to the tenor of these Our Letters Patent and of
such Commission as may be issued to him under Our Sign
Manual and Signet, and according to such Instructions as may
from time to time be given to him under Our Sign Manual and
Signet, or by Our Order in Our Privy Council, or by Us, through
one of Our Principal Secretaries of State, and to such Laws as
are now or shall hereafter be in force in the Colony.
III. We do also by these Our Letters Patent declare Our will
and pleasure as follows : —
governors' commissions 221
IV. Every person appointed to fill the Office of Governor shall, Apr. IV.
with all due solemnity, before entering on any of the duties of
his Office, cause the Conunission appointing him to be Governor Publication^
to be read and published at the seat of Government, in the coimuii'ioni'
I^resence of the Chief Justice, or some other Judge of the
Supreme Court of the Colony, and of the Members of the
Executive Council thereof, which being done, he shall then and
there take before them the Oath of Allegiance, in the form pro- Oaths to be
vided by an Act passed in the Session holden in the Thirty-first Governor.
and Thirty-second years of Our Reign, intituled an Act to amend imperial Act,
the Law relating to Promissory Oaths ; and likewise the usual c. ^2^
Oath for the due execution of the Office of Governor, and for the
due and impartial administration of justice ; which Oaths the
said Chief Justice or Judge is hereby required to administer.
V. The Governor shall keep and use the Great Seal of the Great Seal.
Colony for sealing all things whatsoever that shall pass the said
Great Seal.
VI. There shall be an Executive Council for the Colony, and Executive
the said Council shall consist of such persons as are now or may constitution
at any time be Members thereof in accordance with any Law "*•
enacted by the Legislature of the Colony, and of such other
persons as the Governor shall, from time to time, in Our name and
on Our behalf, but subject to any Law as aforesaid, appoint under
the Great Seal of the Colony to be Members of Our said Executive
Council.
VII. The Governor, in our name and on Our behalf, may make Orant of
and execute, under the said Great Seal, grants and dispositions
of any lands which may be lawfully granted and disposed of by
Us within the Colony.
VIIL The Governor may constitute and appoint, in Our name Appoint.
and on Our behalf, all such Judges, Commissioners, Justices .judges,
of the Peace and other necessary Officers and Ministers of the J^^^*'^*^^^- '^'-
Colony as may be lawfully constituted or appointed by Us.
IX. When any crime has been committed within the Colony,
or for which the offender may be tried therein, the Governor
may as he shall see occasion, in Our name and on Our behalf,
grant a pardon to any accomplice in such crime who shall give Grant of
such information as shall lead to the conviction of the principal ^''''
offender, or of any one of such offenders if more than one ;
and further may grant to any offender convicted in any Court,
or before any Judge, or other Magistrate, within the Colony,
a pardon, either free or subject to lawful conditions, or any re-
mission of the sentence passed on such offender, or any respite
of the execution of such sentence for such period as the Governor
thinks fit ; and further may remit any fines, penalties, or for- Remission
feiture.s duo or accrued to Us : Provided always that the Governor
222
BRITISH RULE AND JURISDICTION
Arp. IV.
Politicnl
otfenders.
Proviso.
Banishment
from Colony
l^rohibited.
Suspension
or removal
from office.
Summoning,
proroguing,
or dissolving
any Legisla-
tive Body.
Appoint-
ment of
Members.
Succession to
the Govern-
ment.
Lieuten.Tut-
Governor.
Adminis-
trator.
Proviso.
Lieutenant-
Governor,
&c. to take
Oaths of
office before^
administer-
ing the
Government.
Duties and
authorities
under
Letters
Patent.
Governor
may appoint
a Deputy
during his
temporary
absence from
Beat of
Government.
Officers and
others to
shall in no case, except where the offence has been of a political
nature unaccompanied by any other grave crime, make it a con-
dition of any pardon or remission of sentence that the offender
shall absent himself or be removed from the Colony.
X. The Governor may, so far as We Ourselves lawfully may,
upon sufficient cause to him appearing, remove from his office, or
suspend from the exercise of the same, any person exercising any
office or place within the Colony, under or by virtue of any
Commission or Warrant granted, or which may be granted,
by Us in Our name, or under Our authority.
XI. The Governor may exercise all powers lawfully belonging
to Us in respect of the summoning, proroguing, or dissolving any
Legislative Body, which now is or hereafter may be established
within Our said Colony, and in respect of the appointment of
Members thereto.
XII. In the event of the death, incapacity, or removal of the
Governor, or of his dej)arture from the Colony, Our Lieutenant-
Governor, or, if there be no such Officer in the Colony, then
such person or persons as We may appoint, under Our Sign
Manual and Signet, shall, during Our pleasure, administer the
Government of the Colony, first taking the Oaths herein-before
directed to be taken by the Govei-nor, and in the manner herein
prescribed ; which being done, We do hereby authorize, empower,
and command Our Lieutenant-Governor, and every other such
Administrator as aforesaid, to do and execute during Our pleasure
all things that belong to the Office of Governor and Commander-
in-Chief according to the tenor of these Our Letters Patent, and
according to Our Instructions as aforesaid, and the laws of the
Colony.
XIII. In the event of the Governor having occasion to be
temporarily absent for a short period from the Seat of Govern-
ment or from the Colony, he may in every such case, by an
Instrument under the Great Seal of the Colony, constitute and
appoint Our Lieutenant-Governor, or if there be no such Officer
then any other person, to be his Deputy during such temporaiy
absence, and in that capacity to exercise, perform, and execute
for and on behalf of the Governor during such absence, but no
longer, all such powers and authorities vested in the Governor,
by these Our Letters Patent, as shall in and by such Instrument
be specified and limited, but no others. Provided, nevertheless,
that by the appointment of a Deputy as aforesaid, the power and
authority of the Governor shall not be abridged, altered, or in
any way affected, otherwise than We may at any time hereafter
think proper to direct.
XIV. And We do hereby require and command all Our Officers
and Ministers, Civil and Military, and all other the inhabitants
■»t5'
GOVERNORS COMMISSIONS 223
of the Colony, to be obedient, aiding, and assisting unto the App. IV.
Governor, or to such person or persons as may from time to
time, under the provisions of these Our Letters Patent, administer ^^^^.^^^
the Government of the Colony. Governor.
XV. And We do hereby reserve to Ourselves, Our heirs and fj^^^^^^"
Successors, full power and authority from time to time to revoke. Her Majesty
alter, or amend these Our Letters Patent as to Us or Them shall aiterjor"'
1 amend the
seem meet. present Let-
XVI. And We do direct and enjoin that "these Our Letters ters Patent.
Patent shall be read and proclahned at 'such place or places ^j'^j'^jt'^^*^*"^
within the Colony as the Governor shall think fit. Patent.
In Witness whereof We have caused these Our Letters
to be made Patent. Witness Ourself at Westminster, the
Twenty-ninth day of April in the Forty-second year of Our
Keiffn.
By Warrant under the Queen's Sign Manual.
C. EOMILLY.
2. Commission.
Commission passed under the Eoyal Sign-Manual and Signet,
appointing The Right Honourable Robert WiUiam Duff
to be Governor and Conmiander-in-Chief of the Colony of
New South Wales and its Dependencies.— Dated 4th March
1893.
VICTORIA R.
Victoria, by the Grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faitli,
Empress of India : To Our Right Trusty and Well-beloved
Councillor Robert WilHam Duff, Greeting.
We do by this Our Commission under Our Sign Manual and Appoint-
Signet appoint you the said Robert William Duff to be Our i^.ight Hon.
Governor and Commander-in-Chief in and over Our Colony of to' be bom-.
New South Wales and its Dependencies during Our pleasure, "'^''■
with all the powers, rights, privileges, and advantages to the
said Office belonging or appertaining.
II. And We do hereby authorize, empower, and command Recites
you to exercise and perform all and singular the powers and Patent
directions contained in Our Letters Patent under the Great Seal throfficf of
of Our United Kingdom of Great Britain and Ireland, bearing Governor.
date at Westminster, the twenty-ninth day of April 1879, con-
stituting the said Office of Governor and Conmiander-in-Chief,
or in any other Our Letters Patent adding to, amending, or
substituted for the same, according to such Orders and Instruc-
tions as Our said Governor and Commander-in-Chief for the time
224
BRITISH RULE AND JURISDICTION
App. IV.
Cominisgion
of i8tli Au-
gust, 1890,
:ij)pointiiig
the Right
Hon. the
Earl of Jer-
sey, P.O.,
G.C.M.G.,
to be Gover-
nor, super-
seded.
Officers, &c.,
to obey
Governor.
being hath ah-eady received or as you may hereafter receive
from Us.
III. And We do hereby appoint that, as soon as you shall have
taken the prescribed Oaths, and have entered upon the duties of
yom- Office, this Our present Commission shall supersede Our
Commission under Our Sign Manual and Signet, bearing date
the Eighteenth day of August 1890, appointing Our Eight
Trusty and Eight Well-beloved Cousin and Councillor Victor
Albert George, Earl of Jersey, Knight Grand Cross of Our Most
Distinguished Order of Saint Michael and Saint George, to be
Our Governor and Commander-in-Chief in and over Our Colony
of New South Wales and its Dependencies.
IV. And We do hereby command all and singular Our
Officers, Ministers, and loving subjects in Our said Colony and
its Dependencies, and all others whom it may concern, to
take due notice hereof, and to give then- ready obedience
accordingly.
Given at Our Court at Windsor, this Fourth day of March
1893, in the Fifty-sixth year of Our reign.
By Her Majesty's Command,
ElPON.
Preamble,
Recites
Letters con-
stituting
the office of
Governor.
3. Old Instructions.
Instructions passed under the Eoyal Sign Manual and Signet
to the Governor and Commander-in-Chief of the Colony
of New South Wales and its Dependencies.— Dated 29th
April 1879.
VICTOEIA E. & I.
Instructions to Our Governor and Commander-in-Chief
in and over Our Colony of New South Wales and its
Dependencies, or, in liis absence, to Our Lieutenant
Governor, or the Officer for the time being Administering
the Government of Our said Colony and its Dependencies.
Given at Our Court at Windsor, this Twenty-ninth day of
April 1879, in the Forty-second year of Our Eeign.
Whereas by certain Letters Patent, bearing even date here-
with, We have constituted, ordered, and declared that there shall
be a Governor and Commander-in-Chief (therein and hereinafter
called the Governor) in and over Our Colony of New South
Wales and its Dependencies (wliich said Colony and its Depen-
dencies are therein and hereinafter called the Colony) : And
whereas We have thereby authorized and commanded the
Governor to do and execute all things that belong to his said
office according to the tenor of Our said Letters Patent and of
such Commission as may be issued to him under Our Sign
GOVERNORS COMMISSIONS 225
Manual and Signet, and according to such Instructions as may App. IV.
from time to time be given to him, under Our Sign Manual and
Signet, or by Our Order in Our Privy Council, or by Us through
one of Our Principal Secretaries of State, and to such Laws as
are now or shall hereafter be in force in the Colony : Now,
therefore. We do, by these Our Instructions under Our Sign
Manual and Signet, direct and enjoin and declare Our will and
pleasure as follows : —
I. The Governor may, whenever he thinks fit, i-equire any oathstobe
person in the pubHc service to take the Oath of Allegiance, by™he'**'"^'^
together with such other Oath or Oaths as may from time to Governor.
time be pi*escribed by any Law in force in the Colony. The
Governor is to administer such Oaths or cause them to be
administered by some Public Officer of the Colony.
II. The Governor shall forthwith communicate these Our Governor to
Instructions to Our Executive Council for the Colony, and like- cateTnstnic-
•wise all such others, from time to time, as he shall find tionsto
convenient for Our service to impart to them. Council.
III. The said Executive Council shall not proceed to the Executive
dispatch of business unless duly summoned by authority of the Hj'^^o^ed '^
Governor, nor unless two members at the least (exclusive of to business
himself or of the member presiding) be present and assisting monedbytiie
throughout the whole of the meetings at which any such business aiithority.*
shall be dispatched. Quorum.
IV. Tlie Governor shall attend and preside at the meetmgs of Governor to
the Executive Council, unless prevented by some necessary or i^^'^'^''^''-
11 1 • 1 • 1 1 1 1 Governor to
reasonable cause, and in his absence such member as may be appoint a
appointed by him in that behalf, or in the absence of such gg^or®"''
member the senior member of the Executive Council actually '"ember to
present shall preside ; the seniority of the members of the said absence of
Council being regulated according to the order of their respective and p°resi^°'
appointments as members thereof. aeni('.ritv,>f
V. A full and exact journal or minute shall be kept of all the members.
deliberations, acts, proceedings, votes, and resolutions of the m°nu'te's'*to"'^
Executive Council ; and at each meeting of the said Council the ^^ ^^v^-
minutes of the last meeting shall be read over and confirmed or
amended, as the case may require, before proceeding to the
dispatch of any other business.
VI. In the execution of the powers and authoi'ities granted Governor to
to the Governor by Our said Letters Patent, he shall in all cases ExecuUve
consult with the Executive Council, excepting only in cases Council.
whicli are of such a nature that, in his judgement, Our service
would sustain material prejudice by consulting the said Council
thereupon, or when the matters to be decided are too imimpor-
tant to require their advice, or too urgent to admit of their
advice being given by the time within which it may be necessary
JKNKYNS Q
re
226
BRITISH RULE AND JURISDICTION
App. IV.
Proviso.
Urgent
cases.
May act in
opposition to
Executive
Council.
Reporting
the grounds
for BO doing.
Constitution
of the
Legislative
Council.
Imperial
Act,
i8 & 19 Vict.
c. 54, 1855.
I;ocal Act,
N0.41 ofi8s3,
embodied in
the above
Imperial
Act.
Rules to be
observed in
assenting to,
dissenting
from, or re-
serving Bills.
Difi'erent
subjects not
to be mixed
in the same
law.
No clause to
be intro-
duced
foreign to
•what the title
impoi"ts.
Temporary
laws.
Description
of Bills not
to be as-
geuted to.
for him to act in respect of any such matters. In all such urgent
cases he shall at the earliest practicable period communicate to
the said Council the measures which he may so have adopted,
with the reasons thereof.
VII. The Governor may act in the exercise of the powers and
authorities granted to him by Our said Letters Patent in oppo-
sition to the advice given to him by the members of the
Executive Council if he shall in any case deem it right to do so,
but in any such case he shall fully report the matter to Us, by
the first convenient opportunity, with the grounds and reasons
of his action.
VIII. The Governor, with the advice of the Executive Council,
is hereby authorized, from time to time, in Our name by an
Instrument or Instruments under the Great Seal of the Colony,
to summon to the Legislative Council of the Colony such person
or persons as the Governor and Executive Council shall think fit,
subject to the provisions of an Act passed in the Session of
Parliament holden in the Eighteenth and Nineteenth years of Our
Keign, intituled An Act to enable Her Majesty to assent to a Bill,
as amended, of the Legislature of New South Wales, ' to confer
a Constitution on New South Wales, and to grant a Civil List to
Her Majesty.'
IX. In the execution of such powers as are vested in the
Governor by law for assenting to or dissenting from, or of
reserving for the signification of Our pleasure. Bills which have
been passed by the Legislature of the Colony, he shall take care,
as far as may be practicable, that in the passing of all Laws each
different matter be provided for by a different Law, -without
intermixing in one and the same Law such things as have no
proper relation to each other ; and that no clause be inserted in
or annexed to any Law which shall be foreign to what the title
of such Law imports, and that no perpetual clause be part of any
temporary Law.
X. The Governor shall not assent in Our name to any Bill of
any of the classes hereafter specified (that is to say) :—
1. Any Bill for the divorce of persons joined together in holy
matrimony.
2. Any Bill whereby any grant of land or money, or other
donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the Colony.
4. Any Bill imposing differential duties (other than as allowed
by the Australian Colonies' Duties Act, 1873).
5. Any BiU, the provisions of which shall appear inconsistent
with obligations imposed upon Us by Treaty.
6. Any Bill interfering with the discipline or control of Our
forces in the Colony by land or sea.
GOVERNORS COMMISSIONS 227
7. Any Bill of an extraordinary nature and importance, App. IV.
whereby Our prerogative, or the rights and property of
Our subjects not residing in the Colony, or the trade and
shipping of the United Kingdom and its Dependencies,
may be prejudiced.
8. Any Bill containing provisions to which Our assent has
been refused, or which have been disallowed by Us.
Unless such Bill shall contain a clause suspending the operation
of such Bill until the signification in the Colony of Our pleasure
thereupon, or unless the Governor shall have vsatisfied himself
that an urgent necessity exists requiring that such Bill be Powers in
brought into immediate operation, in which case he is authorized caS?
to assent in Our name to such Bill, unless the same shall be
repugnant to the law of England, or inconsistent with any
obligations imposed upon Us by Treaty. But he is to transmit
to Us, by the earliest opportunity, the Bill so assented to,
together with his reasons for assenting thereto.
XI. The Governor is to take care that all Laws assented to by
him in Our name, or reserved for the signification of Our pleasure
thereon, shall, when transmitted by him, be fairly abstracted in Laws sent
n '11 • 1 • 1 J. home to have
the margms, and be accompanied, m such cases as may seem to marginal
him necessary, with such explanatory observations as may be -^^^tracts.
required to exhibit the reasons and occasions for proposing such
laws ; and shall also transmit fair copies of the Journals and journaisand
Minutes of the proceedings of the Legislative Bodies of the ^^'""*'^*-
Colony, which he is to require from the clerks, or other proper
officers in that behalf, of the said Legislative Bodies.
XII. Whenever any offender shall have been condemned to Regulation
suffer death by the sentence of any Court, the Governor shall j^ardon in
call upon the Judge who presided at the trial to make to him jud^el'^"^'^*"
a written Eeport of the case of such offender, and shall cause Report to be
'■ . . _ . laid befori
e
such Report to be taken into consideration at the first meeting the Execu-
thereafter which may be conveniently held of the Executive
Council, and he may cause the said Judge to be specially sum-
moned to attend at such meeting and to produce his notes thereat.
The Governor shall not pardon or reprieve any such offender (iovemorto
unless it shall appear to him expedient so to do, upon receiving liW^v'ic'i'of the
the advice of the said Executive Council thereon ; but in all E'^ecutive
' Coiincil in
such cases he is to decide either to extend or to withhold a pardon such eases.
or reprieve, according to his own dehberate judgement, whether ids own*^ "^
the members of the Executive Council concur therein or other- ^Kn^^'i'-ng^hig
wise : entering nevertheless, on the Minutes of the said Executive reasons on
" . . the Council
Council, a Minute of his reasons at length in case he should Minutes.
decide any such question in ojiposition to the judgement of the
majority of the members thereof.
XIII. The Governor is required, to the utmost of his power,
Q 2
228
BRITISPI RULE AND JURISDICTION
App. IV.
Promotion of
religion and
education
among the
natives.
Protection I'f
pereons and
property.
Judges, &c.
to be
appointed
during
pleasure.
Blue Book.
GoTemor'd
absence.
Tem]X)rarT
leave of
absence.
Governor's
absence and
departure
from tlie
Colony.
to promote religion and education among the native inhabitants
of the Colony, and espeeiallj'' to take care to protect them in
then- persons, and in the free enjoyment of their possessions,
and by all la-\vfiil means to prevent and restrain all violence and
injustice which may in any manner be practised or attempted
against them.
XrV. All Commissions granted by the Governor to any
persons to be Judges. Justices of the Peace, or other officers,
shall, unless othermse provided by law, be granted during
])leasure only.
XV. The Governor shall forward to Us punctually from year
to year, through one of Our Principal Secretaries of State, such
annual Eeturns as have been customarily transmitted to Us from,
the Colony relative to the revenue and expenditure, defence,
pubHc woi'ks legislation, civil estabhshments, pensions, popula-
tion, schools, course of exchange, imports and exports, agi'icul-
tural produce, manufactures, and other matters in the said
' Eeturns ' more jiarticularly specified, ^\ath reference to the
state and condition of the Colony.
XYI. The Governor shall not quit the Colony without ha\ing
first obtained leave from Us for so doing under Our Sign Manual
and Signet, or thi'ough one of Our Principal Secretaries of State,
except for the pm'pose of %'isiting the Governor of any neigh-
bouring Colony for periods not exceeding one month at any one
time, nor exceeding in the aggregate one month for every year's
service in the Colon}-.
XVII. The temporary absence of the Governor for any period
not exceeding one month shall not, if he have previously informed
Our Executive Council, in writing, of his intended absence, and
if he have duly appointed a Deputy in accordance with Our said
Letters Patent, be deemed a departure from the Colony ^\ithin
the meaning of the said Letters Patent.
Signet V. E. & I.
4. Present ^ Instructions.
Instructions passed under the Eoyal Sign Manual and Signet,
to the Governor and Commander-in-Chief of the Colony
of New South Wales and its Dependencies. — Dated
9th July 1892,
VICTOEIA E. I.
Instructions to Our Governor and Commander-in-Chief in
and over Our Colony of New South Wales and its Depen-
dencies or to Our Lieutenant Governor or other Officer for
the time being administering the Government of Our said
Colony and its Dependencies.
[' This appendix was compiled before the Commonwealth of Australia
came into existence.]
GOVERNORS COMMISSIONS 229
Given at Our Court at Windsor, this Ninth clay of July App. IV.
1892 in the Fifty-sixth year of Our reign.
Whereas by certain Letters Patent bearing date the Twenty- Preamble
ninth day of April 1879 We did constitute, order, and declare
that there should be a Governor and Commander-in-Chief
(therein and hex-ein-after called the Governor) in and over Our
Colony of New South Wales and its Dependencies (which said
Colony and its Dependencies are therein and herein-after called
the Colony) :
And whereas We did thereby authorize and command the Re"ite«
Governor to do and execute all things that belong to liis said Patent of
office, according to the tenor of Our said Letters Patent, and of is^g.'tonsti-
such Commission as might be issued to liim under Our Sign offil^^o?^
Manual and Signet, and according to such Instructions as might tx.iTernoi.
from time to time be given to him under Our Sign Manual and
Signet or by Our Order in Our Privy Council or l)y us through
one of Our Principal Secretaries of State, and to such Laws as
were then or should thereafter be in force in the Colony.
And w^hereas We did issue certain Instructions under Our Recites
Sign Manual and Signet, bearing date the Twenty-ninth day of of "/th^^prii
April 1879 J '^'9-
And whereas We are minded to give these further Instructions
to Our said Governor :
Now know you that We do hereby revoke the aforesaid Revokes
Instructions and We do by these Our Instructions under Our instm^tLne.
Sign Manual and Signet direct and enjoin and declare Our will
and pleasure as follows : —
L In these Our Instructions, unless inconsistent with the
context, the term ' the Governor ' shall include every person for
the time being administering the Government of the Colony.
II. The Governor may, whenever he thinks fit, require any Oathstobe
person in the public service to take the Oath of Allegiance, by Goreraor!
together with such other Oath or Oaths as may from time to
time be prescribed by any Law in force in the Colony. The
Governor is to administer such Oaths or cause them to be
administered by some Public Officer of the Colony.
III. The Governor shall forthwith communicate these Our Governor to
Instructions to the Executive Council, and likewise all such 'J""""'«"'cate
. ' instructions
others, from tune to time, as he shall find convenient for Our *" Executive
Service to impart to them.
IV. The Governor shall attend and preside at the meetings of Governor to
the Executive Council, unless prevented by some necessary or GOTinlor to
reasonable cause, and in his absence such member as may bo Pre^^'Jut
appointed by him in that behalf, or in the absence of such Seni<ir mem-
member the senior member of the Executive Council actually siskin the
present shall preside ; the seniority of the members of the said the Governor
230
BRITISH RULE AND JURISDICTION
App. IV.
aiul Presi-
dent.
Seniority of
members.
Quorum.
Governor
to take
advice of
Executive
Council.
Constitution
iif the liegia-
lative
Council.
Imperial Act,
18 & 19 Viet.
c. 54. «855-
Local Act,
No. 41 of
1853;
Schedule to
the Inii)erial
Act.
Description
of Bills not
to be
assented to.
Council being regulated according to the order of their respective
appointments as members thereof.
V. The Executive Council shall not proceed to the dispatch of
business unless duly summoned by authority of the Governor
nor unless two members at the least (exclusive of the Grovernor
or of the member presiding) be present and assisting through-
out the whole of the meetings at which any such business
shall be dispatched.
VI. In the execution of tlie powers and authorities vested in
him, the Govei'nor shall be guided by the advice of the Executive
Council, but if in any case he shall see sufficient cause to dissent
from the opinion of the said Council, he may act in the exercise
of his said powers and authorities in opi^osition to the opinion
of the Council, reporting the matter to Us without delay, with
the reasons for his so acting.
In any such case it shall be competent to any member of the
said Council to require that there be recorded upon the Minutes
of the Council the grounds of any advice or opinion that he may
give upon the question.
VII. The Governor, with the advice of the Executive Council,
is hereby authorized, from time to time, in Our name by an
Instrument or Instruments under the Great Seal of the Colony,
to summon to the Legislative Council of the Colony such person
or persons as the Governor and Executive Council shall think
fit, in accordance with the provisions of an Act passed in the
Session of Parhament holden in the Eighteenth and Nineteenth
years of Our Reign, intituled An Act to enable Her Majesty to
assent to a Bill, as amended, of the Legislature of New South
Wales ' to confer a Constitution on New South Wales, and to
grant a Civil List to Her Majesty.'
VIII. The Governor shall not, except in the cases hereunder
mentioned, assent in Our name to any Bill of any of the follo^^^ng
classes : —
1. Any Bill for the divorce of persons joined together in holy
matrimony.
2. An}' Bill whereby any grant of land or money, or other
donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the Colony.
4. Any Bill imposing differential duties (other than as allowed
by the Australian Colonies' Duties Act, 1873).
5. Any Bill, the provisions of which shall appear inconsistent
■with obligations imposed upon Us by Treaty.
6. Any Bill interfering Avith the discipline or control of Our
forces in the Colony by land or sea.
7. An}' Bill of an extraordinary'' nature and importance,
whereby Our prerogative, or the rights and proj^erty of
}
GOVERNORS COMMISSIONS 23 1
Our subjects not residing in the Colony, or the trade and App. IV.
shipping of the United Kingdom and its Dependencies,
may be prejudiced.
8. Any Bill containing provisions to which Our assent has been
once refused, or which have been disallowed by Us ;
Unless he shall have previously obtained Our Instructions
upon such Bill through one of Our Principal Secretaries of
State, or unless such Bill shall contain a clause suspending the
operation of such Bill until the signification in the Colonj'- of
Our pleasure thereupon, or imless the Governor shall have
satisfied himself that an urgent necessitj'' exists requiring that rowers in
such Bill be brought into immediate operation, in which case "'^^'^^ '^'^^'"
ha,is authorized to assent in Our name to such Bill, unless the
same shall be repugnant to the law of England, or inconsistent
with any obligations imposed upon Us by Treaty. But he is to
transmit to Us by the earhest opportunity the Bill so assented
to, together with his reasons for assenting thereto.
IX. The Governor shall not pardon or reprieve any offender Regulation
without first receiving in capital cases the advice of the Executive ^i^dTu? '^
Council, and in other cases the advice of one, at least, of his
Ministers ; and in any case in which such pardon or reprieA'e
might directly affect the mterests of Our Empire, or of any
countiy or place beyond the jurisdiction of the Government of
the Colony, the Governor shall, before deciding as to either
pardon or reprieve, take those interests specially into his own
personal consideration in conjunction with such advice as
aforesaid.
X. All Commissions granted by the Governor to any person Jndses, &c.
to be Judges, Justices of the Peace, or other officers, shall, unless poinlell'
othenvise provided by laAV, be granted during pleasure only. ph.aTifre.
XI. The Governor shall not quit the Colony without having Governor's
first obtained leave from Us for so doing under Our Sign Manual absence,
and Signet, or through one of Our Principal Secretaries of State,
except for the purpose of visiting the Governor of any neigh-
bouring Colony for periods not exceeding one month at any one Temporary
time, nor exceeding in the aggregate one month for every year's absence.
service in the Colony.
XII. The temporary alisence of the Governor for any period GovemorVs
-cii • 1 al'senco aud
not exceeding one month shall not, if lie have previously deimiture
informed the Executive Council, in writing, of his intended JXny!*^
absence, and if he have duly appointed a Deputy in accordance ["^^'^'1;^^,^^;^
■with Our said Letters Patent, be deemed a departure from tho
Colony within the meaning of the said Letters Patent.
Signet. V. R. I.
232
BRITISH RULE AND JURISDICTION
Apr. IV.
The Earl of
Elgin and
Eancardine
appointed
Viceroy and
Governor-
General of
India.
III. INDIA .
Warrant of Appointment op the Viceroy and Governor-
General OF India.
VICTORIA R & I.
Victoria, by the Grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith,
Empress of India.
'J o Our Right Trusty and Right Well-beloved Cousin and
Councillor, Victor Alexander, Earl of Elgin and Kincardine,
Greeting.
Whereas by an Act passed in the Session of Parliament
holden in the twenty-first and twenty-second years of Our Reign,
intituled 'An Act for the better Government of India,' it is
enacted that the appointment of Governor-General of India shall
be made by Us by Wan-ant under Our Royal Sign Manual :
Now know that We, reposing especial trust and confidence in
the Fidelity, Prudence, Justice, and Circumspection of you the
said Victor Alexander, Earl of Elgin and Kincardine, have
nominated, made, constituted, and appointed you, the said Victor
Alexander, Earl of Elgin and Kincardine, to be Governor-General
of India and of all and singular our Forts, Factories, Settlements,
Lands, Territories, Countries, Places, and Provinces which now
are or shall from time to time be subject to or under Our
Government in the East Indies, and to execute all and every the
powers and authorities committed, continued, or given to Our
Governor-General of India, by or under or in virtue of a certain
Act passed in the Session of Parliament holden in the third and
fourth years of the Reign of his late Majesty King William the
Fourth, chapter 85, and by or under or in virtue of any other
Act or Acts of Parhament now in force, to take upon you, hold,
and enjoy the said Ofifice upon and fi*om the death, resignation,
or coming away of Henry Charles Keith, Marquis of Lansdowne,
Governor-General of India, whichever of those events shall first
happen, and to continue in the exercise of the said Office during
Our Will and Pleasure, subject nevertheless to such Instructions
and Directions as you, the said Victor Alexander, Earl of Elgin
and Kincardine, shall as Governor-General of India, or as
Governor-General of India in Council, from time to time receive
under the hand of one of Our Principal Secretaries of State.
And We do hereby authorize and empower and require you,
the said Victor Alexander, Earl of Elgin and Kincardine, to
execute and perform all and every the powers and authorities
to the said Office of Governor-General of India appertaining.
APPOINTMENT OF VICEROY OF INDIA 233
And We do hereby give and grant luito you, the said Victor App. IV.
Alexander, Earl of Elgin and Kincardine, Our said Governor-
General of India, and your Council, as the Governor-General
of India in Council, the suj^erintendence, direction, and control
of the whole Civil and Military Government of all Our said
Territories and Revenues in India, with full jjower and authority
to superintend and control the Governors and Governors in
Council respectively of all Our Presidencies in the East Indies
in all points relating to the due administration of such Presi-
dencies respectively ; and also with all such powers and
authorities jointly, severally, and res2)ectively, and subject to all
such restrictions and conditions as are given to them respectively
or created by or under or by virtue of the said Act passed in the
Session of Parliament holden in the third and fourth years of
the reign of his said late Majesty King William the Fourth or
any other Act or Acts of Parliament now in force. And We do
hereby order and require all Our Servants, Officers and Soldiers
in the East Indies, and all the people and inhabitants of the
Territories imder Our Government, and also all Our Governors
and Councils of our respective Presidencies in the East Indies, to
conform, submit, and yield due obedience unto you, the said
Victor Alexander, Earl of Elgin and Kincardine, Our said
Governor-General of India, and your said Council accordingly.
Given at Our Court at Balmoral the 26th day of October in
the year of Our Lord one thousand eight hundred and ninety-
three, in the fifty-seventh year of Our Reign.
By Her Majesty's Command,
KiMBERLEY.
IV. SOUTH AFRICA
Commission of High Commissioner,
Commission passed under the Royal Sign Manual and Signet,
appointing the Governor and Commander-in-Chief or the
Officer for the time being administering the Government of
the Colony of the Capo of Good Hope to be High Com-
missioner for South Africa.
VICTORIA R.
Victoria, by the Grace of God of the United Kingdom of Great Dated 20th
Britain and Ireland Queen. Defender of the Faith, Empress ^"^'' '^^^•
of India : To Our Governor and Commander-in-Chief or
other Officer for tlie time being administering the Govern-
ment of Our Colony of the Cape of Good Hope, with its
Territories and Dependencies, Greeting.
234
BRITISH RULE AND JURISDICTION
App. IV,
■Recites Com-
niission of
29tli Feb-
ruary 1884,
appointing
the Right'
Hon. Sir H.
G. R. Robin-
son,
G.c.nr.G.,
to be High
Comini.s-
sioner.
Kecites
Order in
Council of
2nd Feb-
i-uary 1884,
resuming
direct
autliority
over
Basiitoland.
Appoint-
ment of
Governor or
Officer for tliB
time being
administer-
ing tlie
Government
of the Cape
Colony to be
High "Com-
luissionei'.
Jurisdiction ,
Powers and
duties of
High Com-
missioner.
High Com-
missioner
empowered
to transact
all lawful
business with
Republic.-!,
&c.
Whereas by Our Commission under Our Sign Manual and
Signet, bearing date at Windsor the Twenty-ninth day of
February 1884, We did appoint Our Eight Trusty and Well-
beloved Councillor Sir Hercules George Eobert Robinson, Knight
Grand Cross of Our Most Distinguished Order of Saint Michael
and Saint George, to be Our High Commissioner for South
Africa :
And whereas We did, by Our Order in Our Privy Council
bearing date the Second day of Februarj^ 1884, resume direct
authority over Our Territory of Basutoland :
And whereas We do exercise influence in Bechuanaland, Mata-
beleland, and other Countries adjoining thereto, in aid and pro-
tection of the Native Chiefs and peoples residing therein :
And whereas We are now minded to make further pro\dsion
for the due execution of the duties of Our said High Com-
missioner in the conduct of Our affairs in South Africa :
Now therefore We do, by this Our Commission under Our
Sign Manual and Signet, appoint you, Our said Governor and
Commander-in-Chief for the time being of Our Colony of the
Cape of Good Hope, with its Territories and Dependencies, or
you, the Officer for the time being administering the Government
thereof, to be during Our pleasure Our High Commissioner
for South Africa, and as such High Commissioner to act in
Our name and on Our behalf, and in all respects to represent
Our Crown and authority in matters occurring in South Africa
beyond the hmits of Our Colonies of the Cape of Good Hope
and Natal, and Our Territories of British Bechuanaland, Basuto-
land, and Zululand respectively, and beyond the limits of any
other place or territory in South Africa, in and over which We
may from time to time have appointed a Governor.
II. And We do hereby authorize, empower, and command you
to exercise in Our name and on Our behalf all powers in regard
to Basutoland which are vested in Our said High Commissioner
by Our aforesaid Order in Our Privy Council, bearing date the
Second day of February 1884, and further to take all such
measures and to do all such matters and things in Bechuanaland,
Matabeleland, and other Countries adjoining thereto, as in the
interest of Our service you may think expedient, subject to such
Instructions as you may from time to time receive from Us or
through one of Our Principal Secretaries of State.
III. And We do hereby authorize, empower, and command
you, as such Our High Commissioner, to transact in Our name
and on Our behalf all business which may lawfully be transacted
by you with the President or Representatives of the Repul )lic of
the Orange Free State or of the South African Republic, or ^vith
the Representative of any Foreign Power, subject nevertheless
COMMISSION OF HIGH COMMISSIONER 235
to such Instructions as you may from time to time receive from App. IV.
Us or through one of Our Principal Secretaries of State. And
We do empower you. if occasion shall so require, to appoint High Com.
British Officers to reside within the said Republics or either of ""fy u|n,oint
them, and to transact such lousiness as you may entrust to them. qJ^^^j'^ to
And We do require 3'ou, by all proper means, to invite and obtain '«s'de and
the co-operation of the Governments of the said Republics or of business in
any Foreign Power towards the preservation of peace and safety lutnUuiK^d.
in South Afi-ica, and the general welfare and advancement of its
territories and peojjles.
IV. And We do hereby authorize, empower, and command Dealings
you as such Our High Commissioner, in Om* name and on Our Tribes.'
behalf, to take all such measures, and to do all such things, in
relation to the Native Tribes in South Africa with which it is
expedient that We should have relations, and Avhich are not
included within the territory of either of the said Republics or
of an)' Foreign Power, as are lawful and appear to you to be
advisable for maintaining Our Possessions in peace and safety,
and for promoting the peace, order, and good government of the
Tribes aforesaid, and for px'eserving friendly relations \Wth them.
V. And W^e do hereby authorize and empower you, by Instru- Uigh Com.
ments under your hand and seal, to appoint so many fit persons empo«"Ted
as in the interest of Our Ser\'ice you shall think necessary to be neputy °'
your Deputy Commissioners, or to be Resident Commissioners Resident, or
or Assistant Commissioners, and by the same or other Instru- commis-
ments to define the districts within which such officers shall *'*'"*"'•
respectively discharge their functions : And We do hereb)^
authorize and empower every such Deputy or Resident or Powerean.i
Assistant Commissioner to have and exercise ^^'ithin his district of sm'rcom-
such of the powers and authorities hereby conferred upon you, '"is-^i^'^ei-s.
Our said High Commissioner, as you shall think fit to assign to
him by the Instrument appointing him, subject nevertheless to
sucli directions and instructions as you may from time to time
think fit to give him. And We do declare that the appointment rroviso.
of such Deputy or Resident or Assistant Commissioners shall
not abridge, alter, or affect the right of you, Our said High
Commissioner, to execute and discharge all the powers, authorities,
and functions of your said office.
VI. And Wo do hereby further authorize and empower you, Appoint.
as occasion may require, to appoint such Border Agents and Bon\Jf
other Officers as you may think necessarj', if provision shall Agents, &c.
have been made for their pajanent.
VII. And further Wo do hereby appoint that so soon as ^-ou
shall have caused this Our Commission to be published in South T,'"'1'?''5r
*■ lion, feir II.
Afn(;a, tliLs Our present Commission shall supersede Our above <■■ k. KoWn-
recited Commission of the Twenty-ninth day of February 1884, mTss^ionlw
236
BRITISH RULE AND JURISDICTION
App. IV.
High Cimi-
inissioner, of
29th Feb-
ruary 1884,
supei-sedeil.
Officei-s and
others to aid
and assist
said Gover-
nor, &c.
sippointing Our Right Trusty and Well-beloved Councillor Sir
Hercules George Robert Robinson to beOui" High Commissioner
as therein mentioned.
VIII. And We do hereby command all and singular Our
Officers and Ministers, Civil and Military, and all the in-
habitants of Our Possessions, and all other Our loyal subjects
in South Africa, to be aiding and assisting unto you, Our said
Governor and Commander-in-Chief for the time being, or you,
the Officer for the time being administering the Government of
Our said Colony, in execution of this Our Commission.
Given at Our Com-t at Osborne House, Isle of Wight, this
Twentieth day of August 1889, in the Fifty-third year of Our
Reign.
By Her Majesty's Command,
Knutsford.
Dated
9th Jlarch
1897.
Recites Order
in Council of
isth March
1893-
Appoint-
ment of Sir
G. T. M.
O'Brien.
K.C.M.G.,
V. WESTERN PACIFIC
Commission of High Commissioner.
Commission passed under the Royal Sign Manual and Signet,
appointing Su- George Thomas Michael O'Brien, K.C.M.G.,
to be Her Britannic Majesty's High Commissioner for the
Western Pacific.
VICTORIA R.
Victoria, by the Grace of God of the United Kingdom of
Great Britain and Ireland Queen, Defender of the Faith,
Empress of India : To Our Trusty and Well-beloved
Sir George Thomas Michael O'Brien, Knight Commander
of Our Most Distinguished Order of Saint Michael and Saint
George, Our Governor and Commander-in-Chief in and over
Our Colony of Fiji, Greeting.
Whereas by Our Order in Our Privy Council bearing date the
Fifteenth day of March 1893, We have made provision for the
government of Our subjects in certain islands and places in the
Western Pacific Ocean, and have constituted and continued the
office of High Commissioner in, over, and for such islands and
places, or some of them, and have declared that the person for
the time being filling the said office shall continue to be styled
' Her Britannic Majesty's High Commissioner for the Western
Pacific ' :
Now know you that We do by these Presents constitute and
appoint you, the said Sir George Thomas Michael O'Brien, to be
during Our pleasure Our High Commissioner for the Western
Pacific, with all such powers and authorities as may be necessaiy
COMMISSION OF HIGH COMMISSIONER 237
for the due execution of tlie provisions contained in Our said App. IV,
Order in Council, or in any other Our Order in Council adding
to, amending, or substituted for the same, according to such t'^^eHigu
Orders and Instructions as Our said High Commissioner for the sioner.
time being hath already received frona Us, or as 5'ou may
hei'eafter receive fi-om Us.
II. And We do hereby command and require all Our Officers officers, &c.,
and Ministers, civil and military, and all other Our loyal subjects ^skt ffigii
in the said Western Pacific Islands, to be aiding and assisting C'lmmit^
^ . _ f^ sioner.
imto you, the said Sir George Thomas Michael O'Brien, as High
Commissioner.
Given at Our Court at Saint James's, this Ninth day of March
1897, in the Sixtieth year of Our Eeign.
By Her Majesty's Command,
J. Chamberlain.
VI. PROTECTED MALAY STATES
Commission op High Commissioner.
Commission passed under the Eoj'al Sign Manual and Signet,
appointing the Officer for the time being administering the
Government of the Straits Settlements and their Depen-
dencies, to be High Commissioner for the Protected States
in the Malay Peninsula.
VICTOEIA E.
Victoria, by the Grace of God of the United Kingdom of Dated
Great Britain and Ireland Queen, Defender of the Faith, Hf^^ ''^
Empress of India : To Our Governor and Commander-in-
Chief in and over Our Straits Settlements, or, in his absence,
to Our Lieutenant-Governor or the Officer for the time being
administering the Government of Our said Straits Settle-
ments and their Dependencies, Greeting.
Whereas We did, by Our Commission under Our Sign Recites Com-
Manual and Signet bearing date the Third day of July 1896, ™S/^
appoint Our Trusty and Well-beloved Lieutenant-Colonel Sir f^fLllT'"'*
Charles Bullen Hugh Mitchell, Knight Grand Cross of Our Most tenant-
Distinguished Order of Saint Michael and Saint George, Our c. I'j. u.
Governor and Commander-in-Chief of Our Straits Settlements g.c^inlg'..
and their Dependencies, to be during Our pleasure Our High [{''^Sj"'''.!'^
Commissioner for the Federated States in the Malay Peninsula .settlements,
of Pcrak, Selangor, Negri Sembilan, and Pahang, -svhich -were o.nmii.sf'
then and are now under Our protection, and for any other pl^o^etea"'^
Territories within the said Peninsula which might at any time ^'"f'^'* '" *''<^
thereafter be under Our protection : reuinsuia.
238 BRITISH RULE AND JURISDICTION
App. IV. And whereas We are minded to make fresh provision for
filHng the office of Our High Commissioner of the said Federated
States and Territories in the Malay Peninsula ; and for the due
execution of the duties thereof :
Appoint- Now therefore We do by this Our Commission under Our
Officer for ^ Sign Manual and Signet appoint you, Our said Governor and
beini^ld- Commander-in-Chief in and over Our Straits Settlements, or, in
minibteiing your absence, Our Lieutenant-Governor, or the Officer for the
mentofthe time being administering the Government thereof, to be Our
mentl^to^*« High Commissioner to act in Our name and on Our behalf, and
High Com- ]i^ all respects to represent Our Crown and authority in matters
mi SSI oner, ■*■ '^
occm'ring within the said States and Territories, and further to
take all such measures and to do all such matters and things in
the States and Territoi'ies aforesaid as in the interest of Our
service you may think expedient, subject to such Instructions
as you may from time to time receive from Us or through one
of Our Principal Secretaries of State.
Commis-iion II. And We do hereby appoint that, so soon as you shall have
1896^ sup«- caused this Our Commission to be published in the said States,
sedej. ^i^jg Q^^j. pi>esent Commission shall supersede Our above-recited
Commission of the Thiixl day of July 1896 appointing Our said
Trusty and Well-beloved Sir Charles Bullen Hugh Mitchell to
be Our High Commissioner as therein set forth.
Subjects to III. And further We do hereby command all and singular
■ComuiiJfoa! C>ur subjects to take due notice of this Our Commission, and
to yield obedience thereunto, and to be abiding and assisting
unto you, Our said High Commissioner, in execution of this Our
Commission.
Given at Our Court at Saint James's, this Thirty-first day of
May 1897, in the Sixtieth year of Our Eeign.
By Her Majesty's Command,
J. Chamberlain.
APPENDIX V
COLONIAL LAWS VALIDITY ACT, 1865,
28 & 29 Vict. c. 63
An Act to remove Doubts as to the Validity of Colonial Laws \ Arp. V.
[29tli June 1865.]
Whekeas doubts have been entertained respecting the validity
of divers laws enacted or purporting to have been enacted by the
legislatures of certain of Her Majesty's colonies, and i-especting
the powers of such legislatures, and it is expedient that such
doubts should be removed :
Be it hereb}' enacted by the Queen's most Excellent Majesty,
by and "wdth the Ad"\dce and Consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :
1. The term 'colony' shall in this Act include all of Her Definitions:
Majesty's possessions abroad in which there shall exist a legis- ^'^^'^^y-
lature, as herein-after defined, except the Channel Islands, the
Isle of Man, and such tenitories as may for the time being be
vested in Her Majesty under or by virtue of any Act of Parlia-
ment for the government of India :
The terms 'legislature ' and 'colonial legislature' shall severally ' Legisia-
signify the authority, other than the Imperial Parliament or |^,'iai*iegis."'^°"
Her Majesty in Council, competent to make laws for any colony: 1",*'"''^.\.
The term ' representative legislature ' shall signify any colonial tative legis-
legislature which shall comprise a legislative body of which one
half are elected by inhabitants of the colony :
The term ' colonial law ' shall include laws made for any < coioniai
colony either by such legislature as aforesaid or by Her Majesty ''^"'•'
in Council :
An Act of Parliament, or any provision thereof, shall, in Actofrar-
construing this Act, be said to extend to any colony when it is to el^t" u.i ui
made applicable to such colony by the express words or necessary ^j^aa^aimiu'*
intendment of any Act of Parliament : li^We to hwU
colony.
' Short title,. The Colonial Laws Validity Act, 1865, given by 59 & 60
Vict. c. 14.
240
BRITISH RULE AND JURISDICTION
App. y
'Governor.'
' Letters
Patent.'
Colonial
law when
void for re-
liiignancy.
Colonial law
when not
void for
repugnancy.
Colonial
law not void
for inconsi.---
tency with
insti-uctions.
Colonial
legislature
may esta-
blish, <fcc.
courts of
law,
Representa-
tive legisla-
ture may
alter consti-
tution.
Certified
copies of
laws to be
evidence
that they are
properly
passed.
The term ' governor ' shall mean the officer lawfully adminis-
tering the government of any colony :
The term ' letters patent ' shall mean letters patent under the
Great Seal of the United Kingdom of Great Britain and Ireland.
2. Any colonial law which is or shall be in any respect repug-
nant to the provisions of any Act of ParHament extending to the
colony to which such law may relate, or repugnant to any order
or regulation made under authority of such Act of Parliament,
or having in the colony the force and effect of such Act, shall be
read subject to such Act, order, or regulation, and shall, to the
extent of such repugnancy, but not otherwise, be and remain
absolutely void and inoperative.
3. No colonial law shall be or be deemed to have been void or
inoperative on the ground of repugnancy to the law of England,
unless the same shall be repugnant to the pro^^sions of some
such Act of Parliament, order, or regulation as aforesaid.
4. No colonial law, passed 'svith the concun-ence of or assented
to by the governor of any colony, or to be hereafter so passed or
assented to, shall be or be deemed to have been void or inopera-
tive by reason only of any instructions with reference to such
law or the subject thereof which may have been given to such
governor by or on behalf of Her Majesty, by any instrument
other than the letters patent or instrument authorizing such
governor to concur in passing or to assent to laws for the peace,
order, and good government of such colony, even though such
instructions may be referred to in such letters patent or last-
mentioned instrument.
5. Every colonial legislature shall have, and be deemed at all
times to have had, full power within its jiuisdiction to establish
courts of judicature, and to abolish and reconstitute the same,
and to alter the constitution thereof, and to make provision for
the administration of justice therein ; and every representative
legislature shall, in respect to the colony under its jurisdiction,
have, and be deemed at all times to have had, full power to
make laws respecting the constitution, powers, and procedm'e
of such legislatui'e ; j)rovided that such laws shall have been
passed in such manner and form as may from time to time
be required by any Act of ParHament, letters patent. Order in
Council, or colonial law for the time being in force in the said
colony.
6. The certificate of the clerk or other proper officer of a
legislative body in any colony, to the effect that the document
to which it is attached is a true copy of any colonial law assented
to by the governor of such colony, or of any bill reserved for the
signification of Her Majesty's pleasure by the said governor, shall
be prima facie evidence that the document so certified is a true
^
COLONIAL LAWS VALIDITY ACT 24I
copy of such law or bill, and, as the case may be, that such law ^^- ^■
has been duly and properly passed and assented to, or that such
bill has been duly and properly passed and presented to the
governor ; and any proclamation purporting to be published by Prooiama-
authority of the governor in any newspaper in the colony to e'^denceof
which such law or bill shall relate, and signifying Her Majesty's ^saiio«°*^
disallowance of any such colonial law, or Her Majesty's assent =ince.
to any such reserved bill as aforesaid, shall be prima facie
evidence of such disallowance or assent.
And whereas doubts are entertained respecting the validity of
certain Acts enacted or reputed to be enacted by the legislature
of South Australia : Be it further enacted as follows :
7. All laws or reputed laws enacted or purporting to have Cei-tainActs
been enacted by the said legislature, or by jDersons or bodies of L'^siatuif
persons for the time being acting as such legislature, which have ^^gtraiia
received the assent of Her Majesty in Council, or which have tobevaiw.
received the assent of the governor of the said colony in the
name and on behalf of Her Majesty, shall be and be deemed to
have been vaKd and effectual from the date of such assent for
all purposes whatever ; provided that nothing herein contained
shall be deemed to give effect to any law or reputed law which
has been disallowed by Her Majesty, or has expired, or has been
lawfully repealed, or to prevent the laAvful disallowance or
repeal of any law.
JENKYNS
APPENDIX VI
EEPORT ON BRITISH JURISDICTION IN
FOREIGN STATES
By the late Mr. Hope Scott, Q.C.
Lincoln's Inn, January i8, 1843.
App. VI. The object to which my attention has been immediately
directed is that of the establishment by Great Britain of a
Criminal Jurisdiction in the Levant ; but I have conceived that
it might be useful to extend the following observations beyond
the limits thus marked out, and to include in them as well the
question of civil jurisdiction in that quarter, as those which may
arise, whether in civil or criminal matters, in other parts of the
world.
Indeed even if I had not been led to a direct adoption of this
course by considerations ai'ising out of the still unsettled con-
dition of our civil jurisdiction in the East, and by the knowledge
(however imperfect) which I have acquired of the existence of
similar powers in other quarters of the world, it would have
been imj^ossible to solve that which appears to be the most
important part of the question immediately before me— I mean
the definition of the constitutional authority of the Crown in
respect of jurisdiction thus acquired — without, at the same time,
estabhshing principles, the recognition of which in any single
instance would entail an obligation to give them general effect.
Having said thus much in explanation of the purport of the
following paper, I will add a few words as to the method in
which it is framed. *
1. Although I have directed attention to similar questions
generally, yet as the documents referred to me do not comjirise
any information as to the British jurisdiction in those countries
which are not subject to the Porte, I have taken the accounts
of the jurisdiction within the Turkish dominions as the chief
basis of my observations.
2. The subject being one of a mixed character, partly inter-
national, and partly domestic, I have throughout endeavoured,
as far as possible, to distinguish from each other the questions
incident to either portion of it.
JURISDICTION IN FOREIGN STATES 243
3. I have bestowed more care upon establishing the principle -^p^- VI.
and the main features of the jurisdiction, than upon details for
its exercise ; these latter being in my opinion more fit for local
and gradual institution, than for summary legislation, whether
by the Crown alone, or by Parliament at home.
Of the two points of view from which the British jui'isdiction
in the Levant may be contemplated, that which presents it as
an international question seems naturally to obtain the first place.
The principle declared by the maxim of the civil law, ' Extra
territorium ius dicenti impune non paretur ' \ is one so necessarily
connected with the first idea of independent sovereignties, and
so fully recognized tlu-oughout the civilized world, that to speak
of legislative or judicial acts to be performed by one supreme
power Avithin the dominions of another, without first shoAving
some special authority ^ by wliich to support them, would be to
discredit the whole system of international jurisprudence.
But it is evident that the sovereign right to exclude also
implies that of admitting the influence of foreign Governments ;
and the convenience of nations having friendly relations with
each other has at all times required and obtained a departure
from the strict rule above laid down.
The forms under which such concessions have for the most
part been made, are —
1. The recognition of foreign laws in particular cases by the
local tribunals.
2. The partial or total exemption of the subjects of foreign
Powers from the jurisdiction of these tribunals, and the allow-
ance of their own laws and judges.
Of these the former appears to be in some sort necessary for
the maintenance of intercourse amongst nations, and does not
materially interfere with the notion of territorial sovereignty ;
and accordingly we find that, by ' comity,' various modifications
of it are generally observed.
The latter, especially in mixed suits between natives and
foreigners, and above all, in criminal cases of whatever de-
scription, implies j^ro tanto, an abdication of sovei'eignty, which
must not in any case be hastily assumed, and which, amongst
civilized Powers, in these days rarely occurs.
It is certain, however, that in earher times this latter juris-
* Dig. lib. 2, tit. i, 1. 20.
^ I have not thought it worth while to consider the case of ambassa-
dors and tlieir dependents under the general law of nations. The curious
illustration of it furnished by the proceedings of Sully (Vattel, Droit
des Gens, lib. iv, chap. 9) would hardly be considered a precedent in
these days. The case, too, of the Portuguese minister, in Cromwoll'a
time, is the other way.
11 2
244 BRITISH RULE AND JURISDICTION
App. VI. diction (with which alone we are now concerned) was very
generally allowed, and that it still exists both in the Levant and
elsewhere.
From the laborious compilation of De Miltitz ^ it appears that
traces of such a jurisdiction are to be found as early as the sixth
century b. c, and thence downwards from time to time, until,
at the period of the Crusades, it obtained in the Levant a form
not materially dissimilar from that in which we have now to
consider it.
The purposes of its first institution were purely commercial,
and for the settlement of differences amongst the merchants of
the particular nation to which it was conceded ; and such were
probably always its limits in the Western States, and, parti-
cularly in England, where the introduction of it appears to have
been comparatively late and partial ^. But in the Levant there
were many circumstances which enabled foreign States, and
particularly the mercantile powers of Italy, to obtain a firmer
footing ; and there is abundant proof of their having established,
both under the Christian and the Mahomedan rulers of these
districts, a sort of independent sovereignty, sometimes coupled
with territory, and often extending alike to crimes and to civil
proceedings of whatever description ^
It was probably with a regard to these precedents that the
French Capitulations with the Porte in 1535 were framed ; and
though England and Scotland neglected to take advantage of
the right then resei-ved to them by Francis I*, the Capitulations
obtained in 1579, and at subsequent i^eriods, placed Great Britain
in the same position as France and other favoured Powers.
The British jm-isdiction in the Turkish dominions as it now
exists, may be thus described. It rests —
(i)* Upon Capitulations with the Porte, and upon usage more
or less fully acquiesced in by that Power ;
^ Maniiel des Consuls, par A. de Miltitz. Londres et Berlin, 1837,
torn, i, p. 9 ; and torn, ii, part i, lib. 2, chap. i.
^ Cf. Miltitz, torn, i, lib. i, chap. 5, sec. 6 ; torn. ii. part i, lib. 2, chap, r,
sec. 3, p. 334 ; ibid., p. 356 ; ibid., chap. 2, sec. 3, p. 460, &c.
' Cf. Miltitz, torn, ii, part i, lib. 2, chap, i, generally ; and chap. 2,
sec. 2, p. 423 et seq. ; sec. 3, p. 431 et seq. See also Lewis on the
Government of Dependencies, p. 142 et seq.
* Miltitz, torn, i, lib. i, chap. 5, sec. 13, p. 525 ; ibid., torn, ii, part r,
lib. 2, chap. I, sec. 3, p. 219.
* The Articles of the Capitulations with Great Britain affecting the
question of jurisdiction are the following : — VIII, IX, X, XI, XIV, XV,
XVI, XXIV, XXV, XXVI, XXXIII, XLII, XLV, XLVI, LVIII, LXIX,
LXXI, LXXII.
These Articles do not bear out the present jurisdiction in mixed suits^
or in the cases of crimes committed upon the person or property of any
JURISDICTION IN FOREIGN STATES 245
(2) Upon agreement viiih. other nations to whom similar App. VI.
pri-vileges have been allowed ; such agreement being sanctioned
by the Porte. (See the French Capitulations, a. d. 1740, Article
LII ; Miltitz, torn, ii, part 2, p. 127.)
The persons in behaK of whom it is allowed, are —
1. British subjects properly so called ^.
2. Subjects of other Powers who navigate under the flag, or
claim the protection of Great Britain.
The subject-matter of the jurisdiction includes either gener-
ally and constantly, or in some places and occasionally —
(i) Crimes and offences of whatever kind committed by
British subjects ;
(2) Civil proceedings where all parties are British subjects ;
(3) The same where the defendant is a British subject, and
the plaintiff a subject of the Poi-te ;
(4) The same where the defendant is a British subject, and
the plaintiff subject to another European Power.
The recognized officers for its exercise are the ambassadors,
but British subjects ; nor, indeed, if strictly construed, do they convey
any criminal jurisdiction at all.
Article XVIII, however, places Great Britain on the same footing as
other favoured Powers, and thus extends the jurisdiction ; but unless
we can thus obtain the advantage of the Russian Treaty of Adrianople,
A. D. 1829, it ^io'^s not appear that an exclusive criminal and police juris-
diction, except in cases where British subjects alone are concerned, can
be maintained under the Capitulations.
An extract from this treaty is given by Miltitz, torn, ii, part 2, p. 1330,
and the grant thereby made is that Russian subjects shall be under
* the exclusive jurisdiction and police of the Minister and Consuls of
Russia.' De Miltitz says in another place (ibid., p. 1445) that Austria is
entitled ' comme toutes les nations Chretiennes,' to the advantages of
this treaty ; but this does not seem to be the case, at least as regards
jurisdiction ; and on this account, as well as because the practice of
judging in civil cases where Turkish subjects are parties, is not sanc-
tioned by the Capitulations, I have thought it right to mention usage
as one of the grounds of the jurisdiction. I may add that many parts
of the French, Austrian, and earlier Russian Capitulations, as well as of
our own, appear to be so vaguely worded, that without the assistance
of usage it might be difficult to ascertain tho sense of them. (Since
this note was written my attention has been called to the first Article
of the Convention of 1838, which, being posterior to the Treaty of
Adrianople, must be held to incorporate its provisions in favour of Great
Britain, and so to place the subjects of tho latter on the same footing as
those of Russia.)
' There does not appear to be much exactness in tho language of tho
Cafntulations on this head. The two classes are sometimes identified
and sometimes distinguished. For purposes of convenience I have used
the term 'British subjects' indifferently for both.
246 BRITISH RULE AND JURISDICTION
App. VI. consuls, and other agents of Great Britain. In some cases
they are entitled under the Capitulations to act alone, in others
in assisting the Turkish magistrates, but in the latter cases also
they are often allowed a sole authority.
The laws to which the jurisdiction, when separately exercised,
is referred for its regulation, are not certainly defined.
Article XVI of the Capitulations points to ' the custom ' of
the English in the decision of ' any suit or other difference or
dispute amongst the English themselves.' And in proceedings
between the English and other Europeans the forum rei is cus-
tomarily allowed to entail the application of English law to the
case of an English defendant, but (to omit for the present parti-
culars which will be considered hereafter) a strict adherence to
English jurisprudence has never been observ^ed.
In cases where British agents act jointly with the Turkish
magistrates theii- only duty seems to be that of preventing
palpable oj^pression.
The foregoing sketch may suffice to give a general view of
that part of the subject which is properly international — that is,
which concerns the relations between Great Britain and the
territorial sovereign of Turkey, as well as those between Great
Britain and the other foreign Powers wliich have similar privi-
leges in the Levant. And I will now pass on to what may be
called the domestic portion of it ; in other words, to a considera-
tion of the principles upon which the jurisdiction thus conceded
from without has been accepted and exercised. Here too, how-
ever, there is an international question which requires considex'a-
tion. It has been noticed above that the jurisdiction is allowed
not only in favour of the British subjects properly so called, but
also in favour of the subjects of other countries under the pro-
tection of Great Britain. In former times it appears ^ that the
Flemish merchants, and perhaps some others, were in this
position ; but at present I am not certain that any but the
Ionian islanders are so circumstanced.
By the Treaty^ of 1815 the Seven Islands are declared an
independent State, under the protection of Great Britain ; and
by the Constitutional Charter of 1817 it is declared that 'the
British Consuls in all ports whatsoever shall be considered to be
the Consuls and Vice-Consuls of the United States of the Ionian
Islands, and the subjects of the same shall be entitled to their
fullest protection.'
In accordance ■with these conditions, the lonians have
enjoyed all the advantages of British subjects in the Turkish
dominions ; but no direct jurisdiction over them having been
^ Capitulations, Ai'ticle XXXIII,
^ Hertslet's Treaties, vol. i. p. 46 et seq.
JURISDICTION IN FOREIGN STATES 247
conceded by the legislature of the islands to the British ambas- ^^r- VI.
sadors and consuls, this has hithei'to been enforced (as I under-
stand) only by the threat of withdramng British protection, and
cannot be considered to rest upon a safe or satisfactory ground.
It seems, however, that no difficulty would occur in procuring
an Act of the Ionian Legislature to regulate this point. And
as the terms of such a law ought on every account to agree with
the provisions to be made in respect of British subjects, I will
hereafter advert to this more particularly, and now proceed to
consider the character of the jurisdiction with reference to the
constitution and laws of England.
According to De Miltitz \ the earliest traces that can be
found of the establishment of an EngHsh consular jurisdiction
abroad are those contained in royal charters of the fifteenth
century. Of these, the first (a. d. 1404) recites the disoixlers
which had arisen amongst English traders in the Hanse ports,
and gives them power to elect Guhernatores, to whom the King
grants quantum in nobis est authority to govern the English mer-
chants ; and do full and speedy justice amongst them in their
causes and dispvites ; to compose diff'erences between them and
the local merchants ; to cause satisfaction to be made in cases
of injmy and violence to the latter, and to demand it in return ;
also, with common consent of the merchants, to make statutes
and ordinances, and to enforce them by reasonable penalties, &c.
And general obedience is enjoined upon EngHsh merchants, &c.
(Rymer's Foedera, ed. Lond., vol. viii. p. 360.)
This grant, from one part of it, appears to have been only
a confu-mation of an existing usage, founded upon privileges
from the local Government, and upon consent of the merchants
themselves ; which privileges and consent are still treated as
in some sort the basis of the jurisdiction, the Crown only
lending manus suas adiutrices.
A similar charter of the Low Coimtries will be found, ibid.,
p. 464, A. D. 1407, and again for Norway, ibid., p. 511, a. d. 1408^.
The letters-patent given to Lorenzo Strozzi by Richard III
in 1485 are remarkable as not appearing to rest upon an antece-
dent grant of privileg-es from the country in which the consulate
was to be established, but rather upon the general usage of
nations. They contain, moreover, a dnect creation of a royal
magistracy, and subject to it not merchants only, but all the
subjects of the Cro^vn of those parts. (Rymer, vol. xii. p. 270 ;
cf. ibid., p. 314.)
* Tom. ii, part i, p. 385.
* In 1490 oxtensivo powers of self-government were allowed by treaty
to the English merchants in Denmark and Norway. — Miltitz, tom. ii,
part a, p. 664.
248 BRITISH RULE AND JURISDICTION
App. VI. Of the sixteenth century I have examined several grants of
consulates, but they are so vague in their terms as to afford little
assistance. (Eymer, vol. xiii. p. 353 ; ibid., p. 766 ; ibid., vol. xiv.
p. 424.)
In that century, too, the practice of creating corporations with
exclusive privileges of foreign trade, appears to have been on the
rise; and, as I shall presently have occasion to observe, the
constitution of these bodies was such as to render unnecessary
a frequent resort to judicial authority in the sense in wliich we
have now to consider it.
As to the Levant, in particular, I have already noticed that
the first formal Capitulations with the Porte bear date in the
year 1579. In 1581^ it appears that the Queen established a Levant
Company, but probably not with the same privileges as those
subsequently granted by King James.
The commission to her ambassador or agent in the ' partes of
Turkie ' of the year 1582 has been presei-ved by Hackluyt ~ ; and
by that instrument, after having previously recited her treaty
with the Porte, the Queen grants to liim, inter alia, power over
all her subjects trading in the Mussulman Empire, authorizes
him to make laws for their guidance, and to enforce the
observance of them, promising bond fide et in verbo Regio, to ratify
all the ambassador might do a legibus nostris non ahhorrentia.
Under this commission^, which contains a clause respecting
consuls, the ambassador in 1583 named one for Aleppo, &c., to
whom he gave power ' to imprison, punish, and correct, &c.,'
even as he might himself do, by virtue of Her Majesty's
commission.
In James I's time a new charter was granted to the Levant
Company, and this, confirmed by Charles II, and recognized
by various Acts of Parliament, constituted the basis of the
British consular jurisdiction in the East, until the abolition of
the company in 1825.
By King James' letters-patent*, the company was invested
* See Miltitz, torn, ii, part 2, p. 780, note 4.
' It is given by Miltitz, torn, ii, part 2, lib. 3, App., p. 1602.
^ Miltitz, ibid., p. 1604.
* The consuls and vice-consuls of the company might be appointed ' in
all tuch places of the Seignory of Venice, the dominions of the Grand
Seignior, and other places within the Levant,' as the company should
think meet, and vrere to have authority and power to govern all and
singular merchants, being subjects, &c., as well of the said company as
others which were not of the said company, &c. — Charter, sec. 1 7.
The company was also empowered 'to make, ordain, and establish,
&c., as well for the good rule and government of the said governor and
company, &c., as of all and singular others the subjects of him, his heirs
JURISDICTION IN FOREIGN STATES 249
■with exclusive pri\ileges of trade in great i^art of the Levant or App. VI.
Mediterranean seas, and (as it seems) with a general power of
making by-laws, and appointing consuls, with judicial functions,
in all the regions so designated.
Of this charter, and the confirmatory one of Charles II, the
points which it seems most material for our present purpose to
obsei-ve are : —
1. That it was altogether in the nature of a prerogative grant
from home, and not at all founded upon any recital of conces-
sions made by the various sovereigns in whose dominions it was
to take effect. On the contrary, it assumed a power to withdraw
British subjects from the foreign tribunals of its own authority,
and, for aught that appears, even in cases in which those
tribunals might, according to the local law, supply the legitimate
forum. It was provided, indeed, that there should be no infrac-
tion of treaties, but that was all.
2. That the main strength of the coercive jurisdiction given
by the charter appears, in Turkey at least, to have depended, on
the one hand, upon the corporate character of the company and
the power wliich it thus had over its own members, and on the
other, upon its exclusive privileges of trade, which enabled it to
prevent the influx of disorderly merchants and seamen.
3. That the charter did not contemplate the exercise of any
criminal jurisdiction, properly so called, nor yet any of a civil
character in mixed suits.
These branches of the jurisdiction have i^robably been of
gradual acquisition, and perhaps were not pretended to in those
times.
This charter, the principle of which, as to exclusive rights of
trading, received support from the famous case of the East India
Company v. Sandys (State Trials, vol. x. p. 371), received also
a Parliamentary recognition in the Act 26 Geo. II, cap. 18 ; but
that statute, in confirmuig, mth ceiiain modifications, the
and successors, intermeddling, or by any means exercising merchandize,
in any part of the Seignory of Venice, &c., and to ordain, limit, and
provide such pains, punishments, and penalties, by imprisonment of
body, or by fines or amerciaments, or by all or any of them, to be
extended upon and against all and every offenders, &c.' — Ibid., sec. 19.
The exclusive jjrivilcges of trading extended ' to the Seignory of
Venice, the Gulf of Venice, the State of Eagousa, and any other State
or Government within the Gulf of Venice, the dominions of the Grand
Seignior, and every other part of the Levant or Mediterranean seas,'
except the particular parts and places specified by the charter, and the
coasts of Spain, France, and Tuscany, generally ; but the legislative and
judicial powers of the company and its consuls seem to have had no such
limitation.
250 BRITISH RULE AND JURISDICTION
App. VI. company's power of making by-laws, seems to have restricted
their effect to the members of the company only.
There can be little dovibt but that the Act 6 Geo. IV, cap. 33
which transferred the jurisdiction to the consuls of the Crown,
was designed to establish it in their hands at least to the extent
thus described.
But upon the dissolution of the company, a far more difficult
task was thrown upon the consuls than that which their office
had previously entailed. The whole corporate and preventive
authority which had before supported them was gone, and the
prescriptive respect, which might formerly have attached to the
powers conferred by the charter, was disturbed by the necessity
which had now arisen of testing them by the recognized principles
of the constitution.
In 1826 doubt was thrown upon the legality of the general
powers of fine and imprisonment, and of the power in certain
cases of sending back His Majesty's subjects to this country,
which had previously been thought to be vested in the consuls ;
and thus the coercive character of the jurisdiction was greatly
shaken.
The Act 6 Geo. IV, moreover, had made no provision in lieu
of the company's power of framing by-laws, nor had any
principle been laid down by which the difficulties attending
alike upon a strict adherence to English jurisprudence and upon
deviations from it, by the consular tribunals, might be remedied.
And, lastly, the criminal and international jurisdiction had
gradually assumed a form which the new state of aff'airs ren-
dered in the highest degree important, but the exercise of which
could not be based even upon that degree of authority which
a reference to the powers of the company's consuls might in
other respects have supplied.
It was to relieve the servants and subjects of the Crown in the
Levant from the danger and inconvenience arising out of these
circumstances that, in 1836 (eleven years after the dissolution of
the company), the Act 6 & 7 Will. IV, cap. 78 was passed ;
but up to this day its provisions have remained dormant ; and
the following observations induce me to think that, upon the
passing of a new Act, the total repeal of it is desirable :
I. It "svill be remembered that although Queen Elizabeth's
commission to her ambassador had based her power in the
Levant, to some degree at least, upon the capitulations of the
Porte, the charter of the Levant Company proceeded altogether
upon the prerogative of the English Crown.
The Act 6 Geo. IV, cap. 33, in transferring the authority of the
company's consuls to those of the King, recognized the charter
and the subseciuent Acts of Parliament as the cliief basis of the
JURISDICTION IN FOREIGN STATES 251
jurisdiction ; and though the language of section 4 is sufficient, App. VI.
and was perhaps designed to include the authority derived,
whether by capitulation or usage, from the Porte and other
foreign Powers, no specific mention is made of it.
This omission must. I think, be deemed erroneous, since it is
admitted on all hands that the law of nations does not counte-
nance the assertion of such a jurisdiction upon the sole authority
of the extra-territorial Power. But the Act now under considera-
tion appears to have gone into the other extreme. As originally
fi-amed, it contained no allusion to the origin of the jurisdiction,
but in consequence, I behove, of the objections which had been
taken to a Bill for similar purposes in China, the present
preamble was added.
Now, this preamble omits all reference as well to the company's
chai'ter and the Acts relating to it, as to the Act 6 Geo. IV,
cap. 33, and recites, apparently as the sole ground of the juris-
diction, the treaties and capitulations between His Majesty and
the Porte ; while, by speaking of it as ' a full and entire jm-isclic-
tion and controul conferred upon the British ambassadors and
consuls,' by those capitulations (which are in the form of grants
from the Porte), it seems to countenance the theory which has
sometimes been put forward, but which English lawyers have
refused to admit, that the ambassadors and consuls are in this
respect delegates of the Porte, so that ' all their acts are to be
considered as emanating from the Local Government whose
representatives they are.'
It is true, indeed, that the subsequent part of the Act, by
proceeding to define and establish the jurisdiction, brings in
British authority to complete it, and so, by construction, both
the sources of the consular jurisdiction may be said to be
acknowledged. But as I conceive it to be of great practical
importance that some definite theory should be recognized by
the constitution as applicable to all cases of the kind, and as
this Act, even when most favourably constnied, cannot be said
distinctly to propound such a theorj^, I think that its continuance
on the Statute Book is on this ground alone undesirable.
2. The second objection to which the preamble seems open is
that, by referring specifically to the capitulations, and to cases
in which British subjects are exclusively concerned, it tends to
discredit those important parts of the jurisdiction which have
arisen from usage, or which relate to cases in which foreign
subjects under the protection of Great Britain are involved.
And this view (except as regards civil suits in which British
subjects and the subjects of other Christian Powers are con-
cerned), is confirmed by the enacting part.
I am indeed aware of the difficulties which would have
252 BRITISH RULE AND JURISDICTION
App. VI. Jittended either a specific recital of the whole subject-matter of
the jurisdiction as it practically exists, or the subjection (without
their previous consent) of the Ionian islanders to a British Act
of ParHament ; but I think that by the use of general terms,
all that is necessary in these respects might have been provided,
without giving any cause for jealousy or offence.
3. I am in some doubt as to the nature of the powers conferred
on the Crown by the Act. If they are meant to be, properly
speaking, legislative, the proviso as to ' penalties, forfeitures, or
imprisonments, for the breach of the directions and regulations '
so made, appears to limit the criminal legislation to a veiy sub-
ordinate part of that 'full and entire jurisdiction and controul'
which the Porte has conceded, and leaves the chief difficulties
still unprovided for. But I conceive that the ' directions and
regulations ' authorized by the Act must be construed to relate
rather to rules of practice and modes of proceeding than to
legislation properly so called ; and, if this be so, the question
what laws or modifications of laws are to be considered applicable,
remains as it was before the passing of the Act.
Having traced out the Turkish jurisdiction, I propose now to
refer briefly to other provisions on the same or similar subjects.
With the Barbary States of Morocco, Tripoh, and Tunis there
are separate treaties ^ still in force, which, although not recited
by the Act 6 & 7 Will. IV, may have been partly the cause of
these States being included in the provisions of that statute.
As to the practice in those parts, it is not necessary for my
present purpose to do more than observe that the jurisdiction,
as defined by the treaties, bear a general resemblance to that
established by the capitulations with the Porte.
In China a species of government and the erection of a
criminal and admiralty jurisdiction was authorized by the Act 3
& 4 Will. IV, cap. 93, sec. 6, before any formal consent had been
obtained from the Emperor. A Bill subsequently introduced
into Parliament was lost, as I understand, owing to objections
founded on this want of consent ; but by the pendmg negotiations
provisions will probably be made in this respect which vsdll pro-
duce a state of things similar to that which exists in the Levant.
The British settlement at Honduras (of which I shall have
occasion to speak again hereafter) presented in its original form
the picture of a similar jurisdiction. Honduras'^ was in 1768
held to be part of the Spanish territories by Mr. de Grey (Reeves,
1 See Hertslet's Treaties, vol. i, &c. Tripoli and Timis are also included
in those with the Porte.
2 In 1699 it had been spoken of by the Attorney and Solicitor-General
as 'being no part of His Majesty's plantations.'— Chalmers' Opinions,
2. 265.
JURISDICTION IN FOREIGN STATES 253
p. 96) ; and in 1817 the Act 57 Geo. Ill, cap. 53, recited its App. VI.
existence as ' a settlement for certain purposes in the possession
and under the protection of His Majesty, but not within the
territory and dominion of His Majesty.' But from an early
period the British settlers appear to have had, by sufferance,
a sejDarate jurisdiction ; and the Act 59 Geo. Ill, cap. 44,
authorized the establishment of a Criminal Court amongst them.
It would seem, however, that Honduras has now assumed
a more formally colonial position.
In other foreign countries traces of the old consular power
are also to be found ^ but for the most part it seems from the
treaties to be confined to voluntary jurisdiction in testamentary
matters, and hardly ever to extend beyond arbitration.
I am unable, however, to speak with any certainty upon this
head, since the subject requires much investigation, and a know-
ledge, not of written treaties only, but of the usages of the
respective countries.
But whether any other important jurisdiction of this kind
may at present exist or not, it is plain that intercourse between
Christian and infidel, civilized and barbarous nations, must at
all times tend to create them ; and it seems, therefore, but
prudent that a country whose colonial and commercial relations
are so extensive as those of Great Britain, should be provided
^vith settled principles by which to decide every new case as it
may arise.
The ascertainment of these principles forms the next subject
of my inquiry ; and here the chief point to be considered is, to
what doctrines of the constitution the acquisition and exercise
of such a jurisdiction can be referred.
Now, from the instances before adduced, both in respect of the
Levant and other places, it may be concluded that in earlier
times the Crown alone would have been thought to possess
sufficient authority to establish Consular Courts wherever foreign
Powers might allow them to exist ; and it is remarkable "^ that
as late as the middle of the last century the Commission of the
British Consul at Alicante contained a grant of judicial powers.
^ See Hcrtslet's Treaties, vol. i. p. 191 ; vol. ii. pp. 3, 4, 154 ; vol. iii. p. 47 ;
vol. iv. pp. 39, 40 ; vol. V. pp. 292, 387, &c.
^ See Bcawes' ed. Chitty, vol. ii. p. 418. I have seen later forms for the
game place to the same effect. In 1718 the Attorney-General (Thomson)
appears to have thought that the Crown could give a consul coercive
powers (Chalmers' Opinions, 2. 294). The case of Waldron v. Coombe,
3 Taunt, 162, seems to bo an authority against the judicial character of
consuls.
Tlie registers of the Privy Council miglit probably throw light upon
the question, but I have not had leisure to examine them.
254 BRITISH RULE AND JURISDICTION
App, VI. How far the practice of introducing such clauses may have
prevailed in other cases, and when it ceased, I do not know ; but
the present form of commission certainly does not pretend to
convey such powers, and though this may in some degree be ac-
counted for by the alterations which have been made in later
treaties with regard to consular authority, yet, on the whole, it
might be dangerous in these days to rely upon the prerogative,
unless fortified, not by treaty only, bvit by some definite Par-
liamentary recognition.
Such a recognition, however, may, I tliink, very justly be
claimed, even upon the present theory of the Constitution, and,
as I shall endeavour to show, is urgently required by the public
interest.
There are two principles which I may mention, in the first
place, as having some relation to the question, but upon neither
of which it is necessary, nor, as I think, expedient, to rely.
The first is that which concerns the general allegiance of the
subjects, and the power of the CroAvn to restrain them from going
abroad and to recall them home.
The second is that which has at various times been asserted
and allowed in respect of restramts on English trade to foreign
countries.
Of these, the former is, I think, inadequate ; the latter, even
if it could nowadays be maintained, would be so chiefly by
a forced application to it of principles, the support of which we
may obtain in this case by a more direct and legitimate way.
The difference between the question of commercial j)rerogative
and that which we have to consider may be illustrated by the
following remarks.
Trade amongst nations is a thing necessarily incident to their
mutual wants, and as far as it does not interfere with the
respective internal interests of the countries between which it
takes place, may be argued to be in its own nature common and
free, and, in fact, to be recognized as such by our constitution.
And, therefore, although the Crown, by its prerogative of
peace and war, may exercise considerable influence in establishing
a foreign trade, yet it may be argued to do so merely by the
removal of unjust impediments to the right, and not by the
creation of the right itself. And such, in effect, appears to be
the answer ^ which has been given to the principle adopted in
The East India Company v. Sandys, and more recently in a very
able opinion by Mr. West. (See Chalmers' Opin., 2. 249.) But
the exercise of legislative and judicial powers within an in-
dependent State is an attribute of sovereignty, the communica-
^ See Chitty on. The Prerogative, chap, x, sec. i ; the arguments in East
India Company v. Sandys, &c.
JURISDICTION IN FOREIGN STATES 255
tion of which is neither generally required by any international *^^' ^"
principle of justice or convenience, nor, except under peculiar "
circumstances, consistent with the dignity and safety of the
Power which grants it. The foreign Power, therefore, which
is induced to make a concession of this kind, performs a very
different act from any of those wliich relate merely to the
freedom or security of trade. It does, not thereby remove
impediments to what, in a popular sense, may be termed the
rights of other nations, but it trenches directly upon its own,
and that in matters of the utmost delicacy and importance.
And so, on the other hand, the Crown, when it procures the
allowance of this jurisdiction, cannot be considered to obtain
privileges over which the subjects have any antecedent consti-
tutional claim. On the contrary, it is in the strictest sense
a creation by the Cro^vn of that which the subjects cannot pre-
tend to, nor, even when granted, acquire to themselves ; for,
allomng that a mere exemption from the local courts might be
argued to be a personal privilege in them, it is plain that the
erection of other courts implies sovereignty of such a kind as no
subject, or body of subjects, except in the right of the Crown,
can obtain.
The objections then which might in these days be raised to an
assertion of the prerogative in the regulation of foreign trade do
not seem to touch our case, of which the true principle (as
I hope the following remarks will show) is still to be found
among the recognized attributes of the Crown.
Let us assume that by the pending treaty China concedes an
island, and that by the same treaty she concedes a jurisdiction
over British persons and causes within her own ports.
How are these two cessions distinguishable ? As it would
appear, omy by tliis : lli.it thefoiiaer is supported by the natural
and most secure, but not the only basis of jurisdiction, viz.
territory, and the latter is without it.
In both cases the Emperor parts with his sovereignty ; in both
cases Great Britain acquires it. The difference between them is
not so much one of kind as of degree and strength. In the island
our authority extends to everything not specially excepted in
the cession ; on the continent we have also power, but only in
excepted instances. In the island we can command physical
force to give effect to the jurisdiction ; on the continent we have
an equal right to make it effectual, but we may need foreign
assistance to do so. In the island the territory helps to maintain
itself, and by a maintenance of the torritoiy we maintain the
jurisdiction ; on the continent our arms and negotiations may
effect the same result, only they have a less secure basis of
operation.
256 BRITISH RULE AND JURISDICTION
App. VI. But if the nature of the thing ceded, the means of its acquisition
and retention, and the party acquiring, be the same in the one
case as the other, how can we escape the conclusion that both
jurisdictions are held in the same right and under the same
constitutional principles ? And if this be so, then the sole pre-
rogative of the Crown needs no further argument for its support.
For it is admitted on all hands, that when the Crown acquires
territory, either by cession or conquest, its authority is purely
monarchical ; and if extra-territorial jurisdiction, acquu-ed in
a similar manner, be not distinguishable from territorial, except
by a still greater dependence upon the continued exercise of the
prerogative, it would seem at once to follow that both in a legis-
lative and judicial sense it appertains properly and exclusively
to the Crown.
Nor is it any objection to this view to say that the case of
English subjects proceeding to a foi'eign countiy has in it features
of that kind of colonization which is held to imply the applica-
tion of the common law of England, to the exclusion of the
legislative authority of the Crown ; for even if it could be
maintained that these principles are not, practically speaking,
subject to great modifications in the very case of settlements
Avithin a new and unoccupied tei'ritory, still it would be hard to
see how they could find any entrance here. When British
subjects proceed, in ordinary cases, to the dominions of a foreign
Power, they go under the full operation of the principle which
requires obedience to the local courts and laws. Then a treaty,
or tacit agreement, ensues \ and a separate jurisdiction is provided
for them ; but if English laws become applicable in its adminis-
tration how is this effected? Surely not because the subjects
brought those laws with them, for at first there was a local
system which excluded their effect. It must be then from the
treaty or agi-eement alone that they derive force ; and, if so,
they cease to be the laws of England in a proper sense ^, and
become merely that system of jurisprudence which either the
treaty has stipulated for, or the CroA\Ti has thought fit to
prescribe.
To test this view by a case which may easily occur. Let us
suppose an English mercantile establishment to have acquired ,
in a foreign country, courts of its own and a certain application
of English law, by mere usage and -without any indirect inter-
ference from home.
^ I have supposed this to supervene, which is usually the case ; but
the pi-inciple must, I think, be the same though it precede, as now in
parts of China.
' The theory of the common law, as to the reception of the civil and
canon law in England, illustrates this principle.
JURISDICTION IN FOREIGN STATES 257
Let us then imagine a conquest or cession by which the App. VI.
temtory comes to the Crown. Wliat would, under these cir-
cumstances, be the position of the English ? Would they be
able to allege an established constitutional right, and require to
be treated as the inhabitants, not of a Crown colony, but of
a settlement by emigration ? If they did so, surely the answer
would be this : — ' We cannot acknowledge that you ever were
yom'selves sovereigns, and if you now claim, independently of
the Cro^vTi, you must rely upon a delegation from the former
Government, and that Government, ^vith all its dependencies,
is at an end ; but if you clami under a constructive authority
from home, in what part of the constitution, except the pre-
rogative of the Crown, can you find any j)rinciples which will
bear upon that original surrender of sovereignty by the local
power which must be the necessary basis of your claim ? Either
then the jurisdiction over you has now for the first time become
British, and, if so, you are in the same position as the other
inhabitants of the ceded district, or else you must be considered
to have been the subject of a prior cession ; and in both cases
your constitutional rights are the same ' ^
* The case of Honduras, which I have already had occasion to notice,
presents facts simihir to those which I have here supposed. The following
account of it is chiefly taken from Clark on Colonial Law, p. 326, and
Martin's Colonies, vol. ii, and, though not very accurate, may suffice to
show the resemblance. In its origin a trading establishment on foreign
territory, it seems for many years to have existed without any direct
government by the Crown, and yet indeijendently of the territorial
sovereign. Under these circumstances, the inhabitants themselves formed
an assembly for the enactment of laws, and in the courts the law of
England, except where local circumstances prohibited its application,
seems usually to have prevailed. In 1765 (apparently for the first
time) the direct authority of the Crown was admitted and established
by a formal covenant with tlie naval commander on that station. Since
this period the jjower of a governor seems to have been exercised by the
commanding officer of the station till, in 1783, the practice of appointing
superintendents commenced.
The occupation has at various periods been sanctioned by Spain, but
with a reservation of the sovereignty, and (1783 or 1786) with a proviso
which has not been enforced, that no system of government should bo
established except by consent of both the Crowns. Mr. Martin would
now have the rights of Great Britain to be territorial, and to rest cither
upon cession or conquest ; but the transactions upon which he relies
were anterior to the Act 57 Geo. Ill, cap. 53, which, as I have above
noticed, disclaims territorial riglits. The next Act, however, 59 Geo. Ill,
cap. 44, though cautiously worded, seems to have proceeded upon the
supposition that there was enougli of a territorial character to support
the establishment of a criminal court ; but then this is no more than
has since been done in China, and may be explained by the necessity of
JKNKY.S'S g
258 BRITISH RULE AND JURISDICTION
App. ^l. In the last illustration which I have used, it will he observed
that I have put the case as strongly as possible against the pre-
rogative, by supposing that there has been no direct grant of
jurisdiction to the Crown from foreign Powers. But in the
case of the Levant, at least, this is plainly otherwise, since the
Capitulations are between the Porte and the Crown, and the
jurisdiction is vested expressly in the ambassadors and consuls,
who, whether appointed through the Levant Company or im-
mediately by the Queen, must be considered as royal officers.
It will be observed also that in arguing the question I have
supposed a claim of right by the subjects in opposition to the
Crown, and this seemed necessary fully to bring out the jirinciple.
But as a matter of fact, the real interests of the subjects are not
only compatible with, but require this view of the prerogative.
The transition from mere residence to occupation, and from
long occupation to territorial settlement, are so gradual, and
there appears to be now so little authority which will apply to
the case of subjects abroad, until the last step in the process is
completed and a formal colony established, that it is of the utmost
importance to seize upon any i^rinciple which will prevent
confusion, and so tend to the protection of trade.
To establish by Act of Parliament any system sufficiently
extensive and various to meet every case as it may arise is
utterly impossible ; and, indeed, the Act 6 & 7 Will. IV,
cap. 78, by refen-ing the regulation of the Levant jurisdiction to
the King in Council, admits this impossibility.
To confer upon the Crown by Act of Parliament any powers
short of those which I recommend, is but to shift the ground of
the difficulty, since, of course, that which the Act has not
the case. Appeals, however, are said to be admissible from Honduras
to the Privy Council ; and the Act 3 & 4 Will. IV, cap. 54, sec. 14
has brought it v^ithin the privileges of the Navigation Acts. To this
curious state of circumstances I am not avrare that any definite theory
has been applied.
The resort to Parliament for the erection of a court certainly shows
that the power of the Crown was thought insufficient for the exei'cise
of what was at that time acknowledged to be an extra-territorial juris-
diction ; but I do not deny that the doctrine of the prerogative which
I advance has been greatly neglected. And therefore, although
Mr. Clark throws doubt upon the validity alike of the laws and tribunals
other than those established under the Act of Parliament, I am inclined
to maintain an opposite opinion.
To the covenant of the inhabitants, indeed, I can attach no constitu-
tional effect, but, considered upon the principles which I have advanced,
the jurisdiction, whether territorial or extra-territorial, finds a suj^port
in the prerogative of the Crown, which is sufficient to establish both
the political and the judicial institutions of the settlement.
JURISDICTION IN FOREIGN STATES 259
specified, because it was unforeseen, an Order in Council depen- ^pp- VL
dent upon the Act could not regulate.
Indeed, a brief review of the jurisdiction in the Levant alone
will prove that none but tlie most flexible and extensive powers
are adequate to its control.
The persons in favour of whom it exists are not Englishmen
only, but also foreigners from Crown colonies, and not these
foreigTiers only, but also Ionian islanders.
Nor is this all : it is to be exercised in cases where Turks,
Germans, Frenclimen, Russians, ItaHans, &c., are concerned as
plaintiffs or prosecutors.
Lastly, it is held upon a precarious tenure ; its limits are not
strictly defined ; it is sometimes shared with the Turkish magi-
strates, and it is to be exercised under continual relations mth
monarchical or absolute Powers ^, and in dependence upon their
support.
Under these circumstances it is not surprising that though the
treaties point vaguely to the EngUsh ' custom,' the Turkey
merchants should say that it is quite obvious that British law is
totally inappHcable to the local circumstances of Turkey, and
that all who reside in the Levant, though tenacious of the
valuable privileges conceded by the Porte, are sensible of the
necessity of a peculiar code of regulations for the government of
Her Majesty's subjects within the Ottoman Dominions.
In truth, even if the variety of origin which distinguishes the
persons protected by Great Britain did not render great modifi-
cations of English law both necessary and just, the j^oints of
contact with other Christian nations, as well as with the Turks,
^ I cannot refrain from quoting Lord Cliief Justice Jefferies' observation
in the East India Company v. Sandys : —
' It hath been too much practised at this and other bars in West-
minster Hall of late years to captivate the lay-gens by lessening the power
of the King, and advancing, I had almost said, the prerogative of the
people ; and from hence come the many mischiefs to the King's subjects
in parts abroad, by making the power of the King thought so inconsider-
able, as though he were a more Duke of Venice, being absolutely depen-
dent upon his Parliament. Would it not be mightily for the honour and
dignity of tlxe Crown of England, think ye, that the Emperor of Fez and
Morocco, or any prince of the remote parts of the world, should be told
that Mr. Sandys, one of the King of Great Britain's subjects, came into
the emperor's territories against his prince's consent; and that ho had
no power to hinder him, unless he would consult with all his nobles and
tlie representatives of all his common subjects, to assist therein; would
not the emperor believe Sandys to be the greater prince of the two ? '
{State Trials, vol. x. p. 535). The Turks must have some such feeling when
they find that criminals cannot bo banished or executed, owing to
the constitutional weakness of our consular jurisdiction.
S 2
26o BRITISH RULE AND JURISDICTION
App. VI. would present continual difficulties. The present society may
be exactly described in the words of an old author, when speaking
of a similar state of things in the middle ages, ' It often happens
that five men, each under a different law, may be found walking
or sitting together ' ^
It does not appear how the conflict of laws which in those
times must have been continually caused, was provided for ; but
in the Levant nothing except the general similarity of the
commercial systems of Europe, and, on the part of England,
a considerable forbearance in requu'ing the observance of her
o^vn peculiarities, could have prevented the occurrence of per-
plexities which the considar tribunals would hardly have been
competent to solve.
But to meet the case fully, and to secure that there shall be
suh diversitate iudicum una iustitia ^, a further progress in the same
direction is necessary.
In fact, the object wliich it appears to me should be aimed
at is the formation of one system of jurisprudence for all the
Europeans in the Levant, by which means the international
questions would be reduced to a conflict between Turkish and
Christian law, while even this would probably by degrees give
way, or be modified, by the influence, thus consolidated, of the
latter.
Of course, in pointing at tliis result, I do so rather to mark
what should be the tendency, than what can be hoped for as any
immediate effect of our own legislation or of our negotiations
with other Christian Powers ; but to enter upon this course at
all seems to require nothing less than what I have urged, \"iz.
the free use of prerogative.
Upon these arguments, then, I found my first and most impor-
tant recommendation, viz. that all extra-territorial power should
be declared by Parliament to be held by the Crown as fully, and
in the same right as its territorial power in ceded or conquered
dependencies.
My next point is that great latitude should be allowed by the
Act in its description of the means by which the jurisdiction has
been, or may hereafter be, acquired, and of its extent and nature.
In describing the Levant jurisdiction I have mentioned treaties
or capitulations with the Porte, usage sanctioned by that Power,
and agreement with other Christian Powers, as concurring to
form its basis ; and to these we must add the intended grant
from the Ionian Legislature.
All these means of acquisition, therefore, should find room in
^ Cited from Savigny by Story, Conflict of Laics, p. 4, note.
" Cassiodorus, cited by De Miltitz, vol. i. p. 162.
JURISDICTION IN FOREIGN STATES 261
the Act ; and, indeed, as the question is one which admits of ^^p- ^'^•
infinite variety, and relates principally to the rights of foreign
Powers, which they ai'e as competent to guard as they are to
prevent the seizure of their territory, the language should be
very general, and only so far limited as to avoid the appearance
of sanctioning usurpation or aggression.
The object of these two suggestions may, perhaps, be attained
by a preamble and enactment to the follo^\ang effect : —
' Whereas, in divers foreign countries beyond the territory and
dominion of the Crown supreme jurisdiction in respect of parti-
cular persons, causes, and things, has by treaty and other lawful
means accrued to, and become vested in Her Majesty, her heirs,
nnd successors ;
' And whereas doubts have from time to time arisen as to the
exercise of such jurisdiction, and it is expedient to remove the
same : Be it declared and enacted that in all cases in which there
may heretofore have accrued, or may hereafter accrue, to Her
Majesty, her heu'S, and successors, or to any ambassador, consul,
agent, or other person or persons in her or their behalf, by
treaty, capitulation, grant, sufferance, usage, or other lawful
means, any jurisdiction or authority in respect of any pei'sons,
causes, or things, within any kingdom, state, or place beyond
the territory and dominion of the Crown, it shall and may be
lawful for Her Majesty, her heu's, and successors, to hold, exer-
cise, and enjoy such jurisdiction or authority, according to the
nature and extent thereof, and to perform all acts necessary and
expedient for the due administration of the same, in as full and
ample a manner as though such jurisdiction and authority were
a territorial jurisdiction or authority acquired by cession or
conquest from a foreign Power.'
To tliis declaration clauses to the following effect might be
added : —
1. The repeal of section 4 of 6 Geo. IV, cap. 33 ; of 6 & 7
Will. IV, cap. 78 ; and of those parts of 3 & 4 Will. IV, cap. 93,
wliich relate to jurisdiction in China ; jjerhaps also of the
ai-ticle relating to Honduras.
2. A proviso that nothing in the Act shall be construed to
authorize breach of treaties, &c.
This, however, is only intended to prevent jealousy, and it
may appear disrespectful to the Crown.
3. A proviso that the places within which the jurisdiction is
exercised shall not thereby be deemed possessions or plantations
for any purpose of trade, naturulizution, or the like. This too is,
perhaps, an unnecessary precaution, but under the novelty of the
circumstances may be desirable.
4. A declaration that every law prescribed or sanctioned by
262 BRITISH RULE AND JURISDICTION
App. VI. the Crown for cases within the jurisdiction shall be considered
as the lex loci by the coui-ts at home, equally with, but not so as
to exclude the territorial law.
This appears to be a point of such importance that it ought
not to be left to mere construction.
The jurisdiction might otherwise cause extreme confusion
and hardship to the English residents.
Whether it should be extended to all cases, e. g. to marriages,
is worth consideration, but I submit that it would be more
convenient that it should.
5. An enactment that criminals of all descriptions may, at the
discretion of the Crown, be sent to any of the British colonies
for trial, and may there be tried, if necessary, upon wi-itten
depositions, according to such forms and by such of the courts
as Her Majesty may order.
This provision might be very important in China, and perhaps
vmder some circumstances in the Levant. But though it would
supply the expedient which has been proposed with regard to
trials at Malta, yet I think there are several reasons for which,
if possible, the judicial proceedings should be had at or near the
foreign place where the crime has been committed.
These are (i) that this mode would give more satisfaction to
the parties injured, and to the local authorities, who would thus
be persuaded that there was a real mtention to repress disorder.
(2) That the law of England is not the law of Malta, and
therefore, even if the former were to prevail within the jurisdic-
tion, cases under it could not be referred to a tribunal convei'sant
with that law, and that the same objection would apply whatever
law might be estabUshed in the Levant, in as far as it differed
from that of Malta.
(3) That on the spot the evidence might be given orally
which could not otherwise be provided, except at great expense
and trouble, and in many cases might be impossible.
(4) That all the parties concerned in any particular crime
might be tried together, by the same law and on the same
evidence, which, in the veiy possible case of lonians and Maltese
being jointly guilty, could not be done, except by requiring the
former to be sent to the Enghsh colony, which probably would
cause jealousy and might be resisted.
The means by which a satisfactory local tribunal might be
established I will mention hereafter.
6. A similar enactment as to carrying sentences into effect
by execution, imprisonment, or penal labour within a British
colony.
This would be open, in a great degi-ee, to the first of the
objections last stated, but not to the concluding remarks of the
JURISDICTION IN FOREIGN STATES 263
fourth, as sentences against lonians might be carried into effect App. VI.
within their own island.
7. A clause as to vessels of war, which perhaps might extend
so as to require the assistance of the crews in cases of executions
on shore, or even to providing for executions on board.
8. Clauses as to expenses, similar in some respects to those in
the draft Act last referred to, but framed so as to meet the more
general kind of jurisdiction here proposed.
To these provisions others would probably have to be added
in framing the Bill ; but as I have said enough to give a general
view of what is proposed, and as everything depends upon the
decision which is come to upon the principle of jurisdiction,
I have thought it unnecessarj^ to go more into detail at present.
Supposing such an Act to have been obtained, I ^vill give,
briefly, an account of the measui'es which should, in my opinion,
be taken to give it effect in the Levant \
1. The Ionian Legislature should be moved to pass an Act
IHitting theii- subjects upon the same footing as other persons
within the jurisdiction, in all respects, except as to trial and
punishment ^vithin a British colony ; and the same should be
done Avith regard to any other nation which enjoys British
protection.
2. Communications should be entered into with other Christian
Powers, having similar privileges in theii' o^vn right, with a view
generally to the assimilation of the jurisprudence, and parti-
cularly to that of proceedings in civil appeals '^, and the execution
of criminal sentences within the jurisdiction. Prisons common
to all the Christian Powers might thus be estabhshed at a small
expense to each, and provision might be made for cariying
capital sentences into effect with order and solemnity.
Austria, from not having as yet established any particular code,
would probably be found ^\^lUng to enter upon these arrange-
ments, and, excejjt on the pari of Kussia perhaps, a feeling of
identity of interest might induce the other Christian Powers
gradually to combine with us. On this point, however, I speak
merely from conjecture.
' I am not sufficiently acquainted with the state of matters in China
to ofler any suggestions with regard to that quarter.
" Appeals from the decisions of French, Russian, Sardinian, and some
other commissions are carried to courts in those countries. This is
evidently a hardship upon British subjects, and unless there should be
any occasion for carrj'ing appeals from Britisli tribunals to the Privy
Council at liome (wliich seems very undesirable), an effort should bo
made to havo this remedied. The original tribunals for mixed suits
must also depend for their organization upon some arrangement with
foreign Powers.
264 BRITISH RULE AND JURISDICTION
Apr. VI. 3. I hold it to be indispensable that one or more legal
assessors should be provided for the assistance of the
ambassadors and consuls. --
Of these, one should reside at Constantinople, and assist at
all criminal trials and appeals in civil suits. He should also
make circuits or occasional expeditions for the purpose of tiying
the more serious offences elsewhere. From the extent of the
jurisdiction, it would appear desirable that a similar officer
should reside in Egypt ; but provision for that country, and for
the Barbary States, might perhaps be made by periodical visits
of the Law Officers of the Crown from Malta or Gibraltar.
Unless these officers could receive some consular character, they
should not possess any nominal jurisdiction, lest they should
be thought to trench upon the authority of the ambassadors and
consuls, wliich is that recognized by the treaties and usage ; but
their concurrence should in all cases be necessary to the validity
of a sentence.
4. The civil jurisdiction should for the present be provisionally
established according to the existing usage, both as to the
application of laws and the forms of proceeding and appeal—
a power of enforcing process by fine and imprisonment being
given.
It might be weU, however, at once to divide the appellate
jurisdiction, so as to vest a portion of it in the Consul-General
for Egypt. When the Consul-General decides in the first
instance, the legal assessor might assume one or more of the
magistrates afternamed to form a Court of Appeal. The respec-
tive Courts of Appeal might, %vith the advice of theii- legal
assessor, be empowered to make i-ules of practice for all the
courts within their limits.
5. The criminal jurisdiction should be divided into Courts of
Magistracy and of Assize \ the former having the same kind of
jurisdiction as magistrates have in England; the latter, the
cognizance of more serious offences. The former, in cases which
one or more magistrates can decide summarily at home, should
be held by the consul alone. When the case is one which would
go before quarter sessions at home, some of the principal residents
should be associated with the consul, and should for that pur-
pose receive commissions from the Crown, or the ambassador.
The Courts of Assize should be presided over by the consul,
or consul-general, "vvith the assistance of the legal assessor, and
^ The Courts of Magistracy might be defined by an Order in Council.
A regular commission to the assistants, however, seems to me preferable
to the system of assessorship there proposed. The office would probably
be more valued, and its duties better performed, while the power of
appointment might strengthen the influence of the Crown.
JURISDICTION IN FOREIGN STATES 265
though trial by jiuy might often be impracticable, and as App. VI.
a formal system is, perhaps, not to be desired under the circum-
stances, a certain number of the magistrates might be called in
to assist, and might have votes as to matters of fact. The
directions issued in the first instance to the legal assessors and
consuls should be to decide criminal cases as nearly as may be
according to the law of England^. Power to make rules of
practice should be vested in the same hands as in civil cases.
The ambassadors should have power to pardon and to commute
sentences.
Banishment from within the jurisdiction should be pi-escribed
in certain cases.
Short imjirisonments might be provided for on the spot.
Those of a longer duration, in Malta, and for the lonians, in the
Ionian Islands. Transportation to the penal settlements might
also be provided.
Capital sentences should, if possible, be canied into effect on
the spot ^.
These suggestions, however, I must obsei-ve are intended
merely for provisional purposes, and that only in a general
sense ^ All permanent arrangements should, I think, be referred
for consideration to the legal assessors, who, upon consultation
with parties on the spot, and after some practical experience of
the working of the system, might be required to furnish reports
upon which ulterior legislation should proceed. The employ-
ment of these officers, as I have already said, appears to me
absolutely indispensable, and I would humbly submit that the
first step which Her Majesty's Government should take is to
select some lawyer, if possible one who has had experience of
practice in Gibraltar or Malta, for the office of assessor at
Constantinople.
' See the Order in Council for Canton (Hertslet, vol. iv. p. 84).
^ It is of course very difficult to say how this should be effected.
I have already hinted at executions on board of vessels of war, but,
except in cases of great necessity, I should be loth to recommend the
imposition of so disagreeable a duty upon the navy. The Porte would
probably give assistance through its officers, and perhaps by virtue of one
of the Articles of the French Capitulations we are entitled to demand it.
At Macao the Portuguese execute delinquents.
' The delay of practical measures until a formal code should be pro-
vided would be, in effect, an abandonment of the subject in despair.
The course which I have recommended with regard to the appointment
of legal a-ssessors under provisional instructions, besides meeting the
immediate nece.ssity of the case, appears to me to furnish the most likely
means of evt.-ntually establishing a system of jurisprudence practically
adapted to the nature of tlio jurisdiction. It seems, moreover, to bo
sanctioned by the usage generally pursued in new colonies.
266 BRITISH RULE AND JURISDICTION
App. VI. By putting into the hands of such a person the various con-
sular reports and the Levantine codes, &c., of foreign Powers,
and by requiring him to point out the regulations which he may
consider immediately necessary for his own guidance and pro-
tection, more would probably be effected towards a good com-
mencement of the system than could be hoped for in any other
way. His position, no doubt, would be at first a difficult one,
but not more so, perhaps, than that of many judges who have
had the first regulation of tribunals in conquered colonies ; and
a reference to the charters and instructions, under which such
tribunals have been estabHshed, would aftbrd him very con-
siderable assistance.
6. It will be observed that I have made no recommendations
as to the jurisdiction when exercised jointly with the Turkish
magistrates ; perhaps it may hereafter assume a shape which
may require specific instructions, but at present I do not see
how any can be given.
There are many other points which have occurred to me in
preparing these observations which are not noticed in them, and,
doubtless, many more which ought to have been considered,
but have escaped me.
My report, however, has already run to such a length, and
there are such pressing reasons for a decision of the question
to which it relates, that I have preferred offering it in its present
form to suffering any further delay to occur.
I shall, therefore, only add that no one can be more sensible
than myself of the extent and difficulty of the question referred
to me, or of the imperfectness of the manner in which I have
treated it. Indeed, nothing could reconcile me to allowing this
paper to pass into other hands but the knowledge that it is
intended only for the private use of those who are amply
competent to supply its deficiencies, and to correct the errors,
whether relating to facts or to principles, which are to be
found in it.
APPENDIX VII
FOREIGN JURISDICTION ACT, 1890,
53 & 54 Vict. c. 37
Arrangement of Sections.
Section.
1. Exercise of jurisdiction in foreign country. App. VII.
2. Exercise of jurisdiction over British subjects in countries — —
without regular governments.
3. Validity of acts done in pursuance of jurisdiction.
4. Evidence as to existence or extent of jurisdiction in foreign
country.
5. Power to extend enactments in First Schedule.
6. Power to send persons charged with offences for trial to
a British possession.
7. Provision as to place of punishment of j)ersons convicted.
8. Validity of acts done under Order in Council.
9. Power to assign jurisdiction to British courts in cases
within Foreign Jurisdiction Act.
10. Power to amend Orders in Council.
11. Laying before Parhament, and effect of Orders in Council.
12. In what cases Orders in Council void for repugnancy.
13. Provisions for protection of persons acting under Foreign
Jurisdiction Acts.
14. Jux-isdiction over shi^is in certain Eastern seas.
15. Provision as to subjects of Indian princes.
16. Definitions.
17. Power to repeal or vary Acts in Second Schedule.
18. Repeal.
19. Short title.
Schedules.
An Act to consolidate the Foreign Jurisdiction Acts *. 53 !^ s4Vict.
[4th August 1890.] '• "•
WuEKEAS by treaty, capitulation, grant, usage, sufferance,
' This repealed and consolidated with later Acts the original Act of
1843 (6 & 7 Vict. c. 94 I, wliich was passed in accordance with the recom-
mendations of Mr. Hope Scott'a Memorandum, printed above in App. VI.
268
BRITISH RULE AND JURISDICTION
Arp. VII.
Exeicise of
jurisdiction
in foreign
country.
Exercise of
jurisdiction
over Britisli
subjects in
countries
without
regular
trovernments.
Validity of
acts done in
pursuance of
jurisdiction.
Evidence as
to existence
or extent of
jurisdiction
in foreign
country.
Power to
extend
^enactments
in Firet
Schedule.
and other lawful means, Her Majesty the Queen has jurisdiction
within divers foreign countries, and it is expedient to consolidate
the Acts relating to the exercise of Her Majesty's jurisdiction
out of Her dominions :
Be it therefore enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :
1. It is and shall be lawful for Her Majesty the Queen to hold,
exercise, and enjoy any jurisdiction which Her Majesty now has
or may at any time hereafter have within a foreign country in
the same and as ample a manner as if Her Majesty had acquired
that jurisdiction by the cession or conquest of territoi-y.
2. Where a foreign country is not subject to any government
from whom Her Majesty the Queen might obtain jurisdiction in
the manner recited by this Act, Her Majesty shall by virtue of
this Act have jurisdiction over Her Majesty's subjects for the
time being resident in or resorting to that country, and that
jurisdiction shall be jurisdiction of Her Majesty in a foreign
country within the meaning of the other provisions of this Act.
3. Every act and thing done in pursuance of any jurisdiction
of Her Majesty in a foreign country shall be as valid as if it
had been done according to the local law then in force in that
country.
4. If in any proceeding, civil or criminal, in a court in Her
Majesty's dominions or held under the authority of Her Majesty
any question arises as to the existence or extent of any juris-
diction of Her Majesty in a foreign country, a Secretary of State
shall, on the application of the court, send to the court within
a reasonable time his decision on the question, and his decision
shall for the purposes of the proceeding be final.
(2) The court shall send to the Secretary of State, in a docu-
ment under the seal of the court, or signed by a judge of the
court, questions framed so as properly to raise the question, and
sufficient answers to those questions shall be returned by the
Secretary of State to the court, and those answers shall, on
production thereof, be conclusive evidence of the matters therein
contained.
5.— (i) It shall be lawful for Her Majesty the Queen in
Council, if She thinks fit, by Order to direct that all or any of
the enactments described in the First Schedule to this Act, or
any enactments for the time being in force amending or
substituted for the same, shall extend, with or without any
exceptions, adaptations, or modifications in the Oi'der mentioned,
to any foreign country in which for the time being Her Majesty
has jm-isdiction.
FOREIGN JURISDICTION ACT 269
(2) Thereupon those enactments shall, to the extent of that App. VII.
jurisdiction, operate as if that country were a British possession,
and as if Her Majesty in Council were the Legislature of that
possession.
6.— (i) Where a person is charged with an offence cognizable rower to
by a British coui-t in a foreign country, any person having ^i^rged^witii
authority derived from Her Majesty in that behalf may, by offences for
warrant, cause the person so charged to be sent for trial to any British pos,
British possession for the time being appointed in that behalf ^®**'""-
by Order in Council, and upon the arrival of the person so
charged in that British possession, such criminal court of that
possession as is authoiized in that behalf by Order in Council,
or if no court is so authorized, the supreme cruninal court of
that possession, may cause him to be kept in safe and proper
custody, and so soon as conveniently may be may inquire of,
try, and determine the offence, and on conviction punish the
offender according to the laws in force in that behalf within
that possession in the same manner as if the offence had been
committed witliin the jurisdiction of that ci'iminal court.
Provided that —
(a) A person so charged may, before being so sent for trial,
tender for examination to a Biitish court in the foreign
country where the offence is alleged to have been committed
any competent witness whose evidence he deems material
for his defence and whom he alleges himself unable to
produce at the trial in the British possession:
(h) In such case the British court in the foreign country shall
proceed in the examination and cross-examination of the
witness as though he had been tendered at a trial before
that court, and shall cause the evidence so taken to be
reduced into ■writing, and shall transmit to the criminal
court of the British possession by which the person charged
is to be tried a copy of the evidence, certified as correct
under the seal of the court before which the evidence was
taken, or the signature of a judge of that court :
(c) Thereupon the court of the British possession before which
the trial takes place shall allow so much of the evidence so
taken as would have been admissible according to the law
and practice of that court, had the witness been produced
and examined at the trial, to be read and received as legal
evidence at the trial :
(d) The court of the British possession shall admit and give
effect to the law by which the alleged offender would have
been tried by the British court in the foreign country in
which his offence is alleged to have been committed, so far
as that law relates to the criminality of the act alleged to
270
BRITISH RULE AND JURISDICTION
App. VII.
Provision as
to place of
pwnishment
of persons
convicted.
Validity of
acts done
under Order
in Council.
Power to
assign juris-
diction to
British
courts in
cases within
Foreign
Jurisdiction
Act.
Power to
amend
Orders in
Council.
Laying
before
Parliament,
and effect of
Orders in
Council.
have been committed, or the nature or degree of the offence,
or the punishment thereof, if the law differs in those
respects from the law in force in that British possession.
(2) Nothing in this section shall alter or repeal any law,
statute, or usage by virtue of which any offence committed out
of Her Majesty's dominions may, irrespectively of this Act, be
inquired of, tried, determined, and punished within Her Majesty's
dominions, or any part thereof.
7. Where an offender convicted before a British court in a
foreign country has been sentenced by that court to suffer death,
penal servitude, imprisonment, or any other punishment, the
sentence shall be carried into effect in such place as may be
directed by Order in Council or be determined in accordance
with directions given by Order in Council, and the conviction
and sentence shall be of the same force in the place in which
the sentence is so carried into effect as if the conviction had
been made and the sentence passed by a competent court in
that place.
8. Where, by Order in Council made in pursuance of this Act,
any British court in a foreign country is authorized to order the
removal or deportation of any person from that coimtry, that
removal or deportation, and any detention for the purposes
thereof, according to the j^rovisions of the Order in Council,
shall be as lawful as if the order of the court were to have effect
wholly within that country.
9. It shall be lawful for Her Majesty the Queen in Council,
by Order, to assign to or confer on any court in any British
possession, or held under the authority of Her Majesty, any
jurisdiction, civil or criminal, original or appellate, which may
lawfully by Order in Council be assigned to or conferred on any
British court in any foreign country, and to make such pro-
visions and regulations as to Her Majesty in Council seem meet
respecting the exercise of the jurisdiction so assigned or con-
ferred, and respecting the enforcement and execution of the
judgements, decrees, orders, and sentences of any such court, and
respecting appeals therefrom.
10. It shall be lawful for Her Majesty the Queen in Council
to revoke or vary any Order in Council made in pursuance of
this Act.
11. Every Order in Council made in pursuance of this Act
shall be laid before both Houses of Parliament foiihwith after
it is made, if Parliament be then in session, and if not, forth-
with after the commencement of the then next session of
Parliament, and shall have effect as if it were enacted in
this Act.
12.— (i) If any Order in Council made in pm'suance of this
FOREIGN JURISDICTION ACT 271
Act as respects any foreign country is in any respect repugnant App. VII.
to the provisions of any Act of Pai'liament extending to Her
Majest5''s subjects in that countr}-, or repugnant to any order or ^^"^^^*,
regulation made under the authority of any such Act of Pai'lia- in Council
nient, or having in that country the force and effect of any such repugnancy.
Act, it shall be read subject to that Act, order, or regulation,
and shall, to the extent of such repugnancy, but not other'W'ise,
be void.
(2) An Order in Council made in pm-suance of this Act shall
not be, or be deemed to have been, void on the ground of
repugnancy to the law of England unless it is repugnant to the
provisions of some such Act of Parliament, order, or regulation
as aforesaid.
13. — (i) An action, suit, prosecution, or proceeding against any Provisions
person for any act done in pursuance or execution or intended tion^of**'^
execution of this Act. or of any enactment repealed by this Act, pei?ons
, Ml 1 1 acting under
or of any Order m Council made under this Act, or of any such Foreign
jurisdiction of Her Majesty as is mentioned in this Act, or in aJ^
respect of any alleged neglect or default in the execution of this
Act, or of any such enactment, Order in Council, or jurisdiction
as aforesaid, shall not lie or be instituted—
(a) in any court within Her Majesty's dominions, unless it is
commenced within six months next after the act, neglect, or
default complained of, or in case of a continuance of injuiy
or damage ■within six months next after the ceasing thereof,
or where the cause of action arose out of Her Majesty's
dominions within six months after the parties to the action,
suit, jirosecution, or proceeding have been within the juris-
diction of the court in which the same is instituted ; nor
(b) in any of Her Majesty's courts without Her Majesty's
dominions, unless the cause of action arose within the juris-
diction of that court, and the action is commenced within
six months next after the act, neglect, or default complained
of, or, in case of a continuance of injury or damage, within
six months next after the ceasing thereof.
(2) In any such action, suit, or proceeding, tender of amends
before the same was commenced may be pleaded in lieu of or in
addition to any other plea. If the action, suit, or proceeding was
commenced after such tender, or is proceeded with after payment
into court of any money in satisfaction of the plaintiff's claim,
and the plaintiff does not recover more than the sum tendered or
paid, he shall not recover any costs incurred after such tender
or payment, and the defendant shall be entitled to costs, to be
taxed as between solicitor and client, as from the time of such
tender or payment ; but this provision shall not affect costs on
any injunction in the action, suit, or proceeding.
272
BRITISH RULE AND JURISDICTION
App. VII.
Jurisdiction
over ships
in certain
Eastern
seas.
Provision .is
to subjects
of Indian
pi'inces.
Definitions.
Power to
repeal or
vai-y Acts
Second
Scliedule.
Repeal.
Short title.
14. It shall be lawful for Her Majesty the Queen in Council
to make any law that may seem meet for the government of Her
Majesty's subjects being in any vessel at a distance of not more
than one hundred miles from the coast of China or of Japan, as
fully and effectually as any such law might be made by Her
Majesty in Council for the govei-nment of Her Majesty's subjects
being in China or in Japan.
15. Where any Order in Council made in pursuance of this
Act extends to persons enjoying Her Majesty's protection, that
expression shall include all subjects of the several princes and
states in India.
16. In this Act—
The expression ' foreign country ' means any country or place
ovit of Her Majesty's dominions :
The expression 'British court in a foreign country' means
any British court havmg jurisdiction out of Her Majesty's
domuiions in j)ursuance of an Order in Council whether
made under any Act or otherwise :
The expression 'jurisdiction' includes power.
17. The Acts mentioned in the Second Schedule to this Act
may be revoked or varied by Her Majesty by Order in Council.
18. The Acts mentioned in the Third Schedule to this Act are
hereby repealed to the extent in the thix'd colvmm of that schedule
mentioned : Provided that —
(i) Any Order in Council, commission, or instructions made
or issued in pursuance of any enactment repealed by this
Act, shall, if in force at the passing of this Act, continue in
force, until altered or revoked by Her Majesty as if made in
pursuance of this Act ; and shall, for the purposes of this
Act, be deemed to have l)een made or issued under and in
pursuance of this Act ; and
(2) Any enactment, Order in Council, or document referring
to any enactment repealed by this Act shall be construed to
refer to the corresponding enactment of this Act.
19.— (i) This Act may be cited as the Foreign Jurisdiction
Act, 1890.
(2) The Acts whereof the short titles are given in the First
Schedule to this Act may be cited by the respective short titles
given in that schedule.
FOREIGN JURISDICTION ACT
273
SCHEDULES
App. VII.
FIRST SCHEDULE
Enactments
Session
which may
and
Title.
be extended
Short Title.
Chapter.
by Order in
Council.
12 & 13 Vict.
An Act to provide for the Pro-
The whole
Admiralty
c. 96. ^
secution and Trial in Her
Act.
Offences
Majesty's Colonies of Offen-
(Colonial)
ces committed within the
Act, 1849.
jurisdiction of the Admi-
ralty.
14 & 15 Vict.
An Act to amend the law of
Sections 7
Evidence Act,
c. 99.
evidence.
and 11.
1851.
17 & 18 Vict.
The Merchant Shipping Act,
Part X.
c. 104.
1854-
ig&2oVict.
An Act to provide for taking
The whole
Foreign
c. 113.
evidence in Her Majesty's
Act.
Tribunals
Dominions in relation to
EvidenceAct,
civil and commercial matters
1856.
pending before Foreign tri-
bunals.
22 Vict. c.
An Act to provide for taking
The whole
Evidence by
20.
evidence in Suits and Pro-
Act.
Commission
ceedings pending before Tri-
Act, 1859.
bunals in Her Majesty's
Dominions, in places out of
the jurisdiction of such
tribunals.
22 & 23 Vict.
An Act to afford Facilities for
The whole
British Law
c. 63.
the more certain Ascertain-
Act.
A.scertain-
ment of the Law adminis-
ment Act,
tered in one Part of Her
1859.
Majesty's Dominions, when
pleaded in the Courts of
another Pai-t thereof.
23 & 24 Vict.
An Act to enable the Legisla-
The whole
Admiralty
c. 122.
tures of Her Majesty's Pos-
Act.
Offences
sessions Abroad to make
(Colonial)
Enactments similar to the
Act, i860.
Enactment of the Act ninth
George the Fourth, chapter
thirty-one, section eight.
Ss. 5. 19.
JENKYNS
274
BRITISH RULE AND JURISDICTION
App. VII.
FIEST SCHEDULE [continued)
Session
and
Chapter.
Title.
Enactments
which may
be extended
by Order in
Coimcil.
Short Title,
24 & 25 Vict.
C. II.
30 & 31 Vict,
c. 124.
37 & 38 Vict,
e. 94.
44&45Vict.
c. 69,
48 & 49 Vict,
c. 74.
An Act to afford facilities for
the better ascertainment of
the Law of Foreign Countries
w^hen pleaded in Courts
within Her Majesty's Do-
minions.
The Merchant Shipping Act,
1867.
The Conveyancing (Scotland)
Act, 1874.
The Fugitive Offenders Act,
1881.
The Evidence by Commission
Act, 1885.
The whole
Act.
Section 11.
Section 51.
The whole
Act.
The whole
Act.
Foreign Law
Ascertain-
ment Act,
1861.
SECOND SCHEDULE
Acts which may lie revohed or varied hy Order in Council.
S. 17. Session and Chapter.
Extent of Repeal.
24 & 25 Vict. c. 31.
26 & 27 Vict. c. 35.
An Act for the prevention and
punishment of offences com-
mitted by Her Majesty's sub-
jects within certain terri-
tories adjacent to the colony
of Sierra Leone.
An Act for the prevention and
punishment of oft'ences com-
mitted by Her Majesty's sub-
jects in South Africa.
The whole Act.
The whole Act.
FOREIGN JURISDICTION ACT
275
THIRD SCHEDULE
Enactments repealed.
Apr. VII.
Session and Chapter.
Title or Short Title.
Extent of Repeal. S. 18.
6 & 7 Vict. c. 94.
20 & 21 Vict. c. 75.
28 it 29 Vict. c. 116.
29 & 30 Vict. c. 87.
33 & 34 Vict. c. 55.
38 & 39 Vict, c, 85.
39 & 40 Vict. c. 46,
41 & 42 Vict. c. 67.
The Foreign .Jurisdiction Act,
1843.
An Act to confirm an Order in
Council concerning the exer-
cise of jurisdiction in matters
arising within tlie kingdom
of Siam.
The Foreign Jurisdiction Act
Amendment Act. 1865.
The Foreign Jurisdiction Act
Amendment Act, 1866.
The Siam and Straits Settle-
ments Jurisdiction Act, 1870.
The Foreign Jurisdiction Act,
1875-
An Act for more effectually
punishing offences against
the laws relating to the
slave trade.
The Foreign Jurisdiction Act,
1878.
The whole Act.
The whole Act.
The whole Act.
The whole Act.
The whole Act.
The whole Act.
Sections 4 and 6.
The whole Act.
T 1
1
t
APPENDIX YIII
EARLY CONSTITUTIONAL HISTORY OF THE
AUSTRALIAN COLONIES
App.YIII. Ix considering" the constitutions of the AustraHan colonies
it is useful to bear in mind the orio-in of the several colonies.
Dates of New South Wales was founded in 1788, the g-overnor's com-
origin. mission comprising- not only the whole eastern littoral of
Australia, but also Tasmania and New Zealand. Tasmania
(then Van Diemen^s Land) became a separate colony in 1825,
New Zealand in 1840, Victoria in 1850^ Queensland in 1859.
South Australia was separately settled and constituted in
1836, Western Australia in 1829.
Different The legislatures of the earliest colonies in Australia passed
legEll-^ through three stages :—
tiu-esof I. There was first what may be called a nominee council,
Australian i. e. the governor and three or more persons nominated by the
colonies. ^^,^^,^^
2. Then came what may be called a legislative council,
which consisted of twenty-four, thirty-six, or some similar
number of members, of which one-third were nominated by
the Crown, and two-thirds were elected by the inhabitants for
five years.
3. Finally, there was what may be called a parliament
(although that term does not commonly occur in the Acts),
consisting of the Crown and two houses, namely, a council
and a legislative assembly.
Victoria and Queensland did not pass through these three
stages as separate colonies, because each, when constituted
a colony carved out of New South Wales, received a legisla-
ture of the same class as then existed in New South Wales.
Thus Victoria received a legislative council and Queensland
a parliament.
The details of the Acts relating to the Australian colonies
are very instructive as illustrations of the hand to mouth
method in which the constitutions of colonies have been made,
the variations which were constantly introduced as new cir-
HISTORY OF THE AUSTRALIAN COLONIES 277
cumstances arose^ the constant necessity of resort to Parlia- Arp. VIII.
ment, and consequently the utiHty of the supreme power of
Parliament.
The Acts are a tang-led mass of legislation, with the result
that there is much obscurity in the law, and that many
doubts might be raised as to the exact condition of the law.
But this obscurity has caused but little inconvenience in
practice, though it places great difficulties in the way of
a writer on constitutional law.
New South Wales will first be treated of separately, as New South
the general scheme has been to leg-islate for New South Wales.
Wales, and then to extend the legislation to the other Austra-
lian colonies.
Althoug-h the official date of the foundation of New South
Wales is 1788, its beginnings are to be traced at an earlier
date.
An Act of 1784^ authorized the transportation of convicts
to parts beyond the seas which were not designated. Under
this Act two Orders in Council of Dec. 6, 1786, appointed
' the eastern coast of New South Wales or some one or other of
the islands adjacent/ as the place to which certain offenders
named in two lists should be transported.
A subsequent Act of 1787 - recited that 'it may be found
necessary that a Colony and a Civil Government should be
established in the place to which such convicts shall be trans-
ported . . . and that a Court of Criminal Jurisdiction should
also be established within such place as aforesaid with autho-
rity to proceed in a more summary way than is used within
this Realm according- to the known and established laws
thereof.^
The ' civil g-overnment ' contemplated by the Act consisted
of a governor and a lieutenant-governor to be appointed by
commission : the court was a court of judicature composed of
' the Judge- Advocate to be appointed in and for such place,
together with six officers of His Majesty's Forces by Sea or
Land.^ Judgements were to be executed by the ])rovost
marshal, and the court was to be a court of record.
Such was the constitution under which Australia slowly
grew for nearly forty years. The next legislative change
came in 1823 ^. The Act of that year recited that 'it may
be necessary to make Laws and Ordinances ' for New South
Wales and its dependencies, but that ' it is not at present
expedient to call a Legislative Assembly in the said Colony/
meaning presumably an elected assembly. The course adopted
' 24 Geo. III. c. 56. ^ 27 Geo. III. c. 2. '4 Goo. IV. c. 96.
278 BRITISH RULE AND JURISDICTION
App. VIII. was to authorize the king" to constitute and appoint a council
of not more than seven nor less than five persons, upon whose
(i) advice the governor was to make laws. By this Act also^
Nominee separate supreme covirts were constituted for New South
N.S.W. Wales and Van Diemen's Land, with an appeal from each to
1823 to the governor, who on appeals from Van Diemen's Land was
^842. to be assisted by the Chief Justice of New South Wales.
This constitution lasted only five years. In the meantime
Van Diemen's Land had become a separate colony. The Act
of 1828 ^ again recited that it was not then expedient to
appoint a legislative assembly. It substituted, however, in
each colony, a council of not more than fifteen nor less than
ten persons, and constituted new supreme courts without
appeal to the governor.
(2) The Constitution Act of 1842 ^ repealed (s. j^;^) such parts
Legisla- of the Act of 1828 and other Acts as related to the constitution
ciUn *^"" ^^^ powers of the nominee council in New South Wales, estab-
N.S.W. lished in New South Wales a legislative council, and made
1842 to (ss. I to 28) various provisions respecting the electoral districts,
^ ^5' the elections, the qvialifications of members, their tenure of
office, the election of speaker, standing orders, and other
matters.
The most notable features of the constitution under the Act
of 1842 were that the council consisted of thirty-six mem-
bers, twelve nominated by the Crown, and twenty-four elected
by the constituencies : that the council had power to increase
its number ; so, however, that one-third of the whole council
should be nominated by the Crown : and that the franchise
was given to freeholders possessing lands of £200 value, and
householders occupying dwelling-houses of the clear annual
value of £20.
The Act of 1 850 3, entitled ' An Act for the better govern-
ment of Her Majesty's Australian colonies,' was passed in
consequence of a considerable public feeling which existed
at the time in favovir of the introduction of representative
government into the colonies, and made provision for enabling
the Australian colonies to obtain that form of government,
a power of which Western Australia did not avail itself
until 1890.
This Act formed the ' District of Port Phillip •" into a new
colony to be called Victoria, authorized the Legislative Council
of New South Wales (after the separation of Victoria) to
establish new electoral districts, to alter the number of mem-
bers chosen by the districts, to increase the number of members
^ 9 Geo. IV. c. 83. - 5 & 6 Vict. c. 76. ' 13 & 14 Vict. c. 59.
HISTORY OF THE AUSTRALIAN COLONIES 279
of the legislative council, and to provide for the elections, App.VIII.
subject to the proviso that if the number of the council was
increased, one-third of the whole increase should be appointed
by the Crown.
It also (ss. 32 and ^^) empowered the legislative council to
alter the law in force, under that Act or otherwise, concerning
the election of members of the council and their qualification ;
to establish a parliament^ instead of the legislative council,
and to confer on it the powers and functions of that council,
but the Bill for the purpose was to be ' reserved ' and laid
before Parliament for thirty days before the royal pleasure
was signified.
The legislative council of New South Wales, in pursuance
of this power, passed, in 1853, a Bill for a constitutional
Act, which was reserved, but was held to be beyond the power
of the Queen to assent to. Consequently an imperial Act - was (3^
passed in 1855, authorizing (s. i) the Queen to assent to the -^^^''j'V
reserved Bill (which the Queen subsequently did), and (s. 2) n.S.W.
repealing, as from the day of the proclamation of her assent, from 1855,
such portions of the Acts of 1842, 1844, and 1850, as related
to the colony of New South Wales, and were repugnant to
the reserved Bill. The Act (s. 3) declared that the provisions
of the Acts of 1842 and 1850, which relate to the giving
and withholding of Her INIajesty's assent to Bills, and the
reservation of Bills for the signification of Her Majesty's
pleasure thereon, and the instructions to be conveyed to
governors for their guidance in relation to the matters afore-
said, and the disallowance of Bills by Her Majesty, shall
apply to Bills to be passed by the parliament ^, and by any
other legislative body which may at any time hereafter
be substituted for that parliament. The Act (s. 4) also
authorized the legislature of New South Wales to repeal or
alter any of the provisions of the reserved Bill in the same
manner as other laws, subject to any conditions imposed by
the reserved Bill, and not repealed by the legislature.
The conditions so imposed (ss. 15 and 36 of the reserved
Bill) were —
(a) That Bills for altering the system of representation in
' The term 'parliament' is not used in the Act, which mentions
' a Council and a House of Representatives, or other separate Legislative
Houses, to consist respectively of such members to be appointed or elected
respectively by such persons and in such manner as by such Act shall
be determined.'
" i8 & 19 Vict. c. 54.
' ' Legislative Council and Assembly ' arc the terms used.
28o BRITISH RULE AND JURISDICTION
App. VIII. the legislative assembly must pass their second and third
readings by a two-thirds majority of the legislative assembly,
and by a majority of the legislative council ;
(/>) That Bills affecting the constitution of the legislative
council must pass hoik houses by a two-thirds majority, must
then be reserved, and laid before'^ Parliament for thirty days.
The requirement of unusual majorities has since been
repealed by a New South Wales Act (20 Vict., No. 10),
but the requirement of reservation is still, it is believed, in
force.
The reserved Bill scheduled to the imperial Act of 1855,
gave (s. i) power to Her Majesty, by and with the advice
and consent of the Parliament, to make laws for the peace,
welfare, and good government of the colony in all cases
whatsoever.
The Acts of 1 842 and 1 850 had conferred express legislative
power on the legislative council, giving that council power
^ to make laws for the peace, order, and good government of
the colony,' and the Act of 1850 further empowered the
legislative council, by any Bill establishing a parliament,
to confer on that parliament the powers of the council, and
thereby to confer on it the full legislative power above
quoted.
But the reserved Constitution Bill of New South Wales
(scheduled to the imperial Act of 1855^) did not vest in the
parliament the powers of the legislative council, but expressly
conferred a new legislative power to make laws. The imperial
Act of 1855 further repealed such provisions of the Acts of
1842 and 1850 as are repugnant to the reserved Bill, and
therefore repealed the statutory authority conferred on the
colonial legislative council to make laws.
The Act of 1855 gave power to the Queen to assent to the
reserved Bill, but did not expressly enact its validity.
Consequently, the foundation of the legislative powder of
the Parliament of New South Wales might be open to some
doubt ^, but fors. 5 of the Colonial Laws Validity Act, 1865,
which expressly declares, with retrospective effect, the power
of a colonial legislature to make laws respecting its own
powers, a power which was exercised by the reserved Bill
of 1855.
Apart from any such requirement in a special Act, the
classes of Bills which are required to be reserved are those
set out in the Acts of 1842 and 1850, and mentioned below.
The Act of 1 850 (s. -t^-^ applied the enactments of 1 842 and
1 18 & 19 Vict. c. 54.
^ But see Fowdl v. Aigollo Candle Company, L. R. 10 App. Ca. 282, 290.
HISTORY OF THE AUSTRALIAN COLONIES 281
1844 to the Bills reserved under s. 32 of the Act of 1850, App.VIIL
and (s. 32) further provided that a copy of the Bill should
be laid before both Houses of the Imperial Parliament for
thirty days before Her Majesty's pleasure was signified.
The requirement of s. 32 as to reservation was declared by
25 & 26 Yict. c. 11^ s. 2 to be limited to Bills passed by the
legislative council, and therefore would not have extended
to Bills passed by the parliament established by that council,
had not the foregoing provisions of the Acts of 1842 and 1 844,
if not s. 32 of 1850, been applied by the imperial Act of 1855
(s. 3) to Bills passed by the parliament.
There is, however, some difficulty in so applying them, as
they were framed with reference to a legislative council.
Presumably by such application of those provisions to the
parliament, the expression 'legislative council' in those
provisions (e. g. in ss. 30 and 3 1 of the Act of 1 842) will
include both houses of parliament, but this construction is
not clear.
The Act of 1842^ (s« 31) required the reservation of Bills —
(a) altering or affecting the divisions or extent of the
several districts and towns which should be represented in the
legislative council, or establishing new and other divisions of
the same ; or
(b) altering the number of the members of the council to be
chosen by the said districts and towns respectively; or
(c) increasing the whole number of the legislative council';
or
(d) altering the salaries of the governor or superintendent ;
(e) altering the salaries of the judges (a requirement rej)ealed
by s. 1 3 of the Act of 1 850 -}, or
(/) altering or affecting the duties of customs upon
imports or exports (a requirement repealed by an Act of
1866 3, s.i).
The Act of 1850- required (s. 32) the reservation of Bills
concerning —
{(/) the election of the elective members of the legislative
council, and the qualification of electors and elective members ;
{//) the establishment of a parliament ;
(i) the vesting in the parliament of the functions of the
legislative council.
If and so far as these provisions are applied by the Act of
1855, s. 3, they nmst, unless repealed by the Act of 185";, s. 2,
as being repugnant to the reserved Bill scheduled to that Act ^,
* 5 & 6 Vict. c. 76. -' 13 & 14 Vict. c. 59. ^ 29 & 30 Vict. c. 74.
* So far as tlioy apply to Victoria and Western Australia, the
requirements of s. 32 of the Act of 1850 have been repealed by the
282 BRITISH RULE AND JURISDICTION
App. VIII. be considered still to apply to Bills passed by the Parliament
o£ New South Wales.
So far as respects Bills concerning [Ji) and (/), s. 32 of the
Act of 1850 may be considered to have been spent, and therefore
may be disregarded.
In the result, these Acts would seem to require that Bills
dealing with the matters specified in the Act of 1842, and
perhaps Bills dealing with the election of the elective members
of the legislative assembly^, and the qualification of electors
and elective members, should be reserved.
But the power of the New South Wales Parliament to deal
with its own constitution depends now upon s. 5 of the Colonial
Laws Validity Act of 1865, and the question arises whether
the proviso to that section does or does not extend the reserva-
tion provisions of the Act of 1842 to enactments dealing with
the constitution. Even if it has that meaning, it can hardly
extend the class of Bills to be reserved. Consequently, while
Bills dealing with the specific matters above quoted from the
Acts of 1842 and 1850 may require to be reserved, Bills in
other respects altering the constitution of the parliament are
not required by any imperial Act to be reserved, though such
reservation may be required by the colonial Act in pursuance
of which the constitution is altered.
Section 32 of the Act of 1850 seems not to give power to the
parliament to alter its constitution for the reason that the
legislative council which established it had no such poAver ;
although that council had a power to alter the law respecting
the election of the members of the council and the qualifica-
tion of the electors and members. The power to alter its con-
stitution is given by the Act of 1865, but the reason referred
to above still applies to the question of what Bills are to be
reserved by virtue of s. 32 of 1850.
Appro- The Act of 1842, ss. 34-36, provides that the revenues
priation of g^j.jgjjjg from taxes, duties, rates, and imposts levied on
fixed British subjects in the colony are to be appropriated to the
grants for public service by ordinances of the legislative council, and in
governor j^q other manner ; and that an ordinance shall not be passed
jud'^es. appropriating any sum unless the governor has first recom-
mended the council to provide for the specific public service to
which the sum is appropriated.
Statute Law Revision Act, 1893, the framers of which must apparently
have considered that they were repealed by the analogous section of
the Act of 1855, relating to Victoria ; cf. p. 288.
^ The Legislative Council of New South Wales has no elective members.
If it had, the above provision would apply also to the elective members
of that assembly.
HISTORY OF THE AUSTRALIAN COLONIES 283
Further, the revenue is to be charged with the costs of Arr. VIII.
collection, and no revenue is to be issued except in pui-suance
of a warrant under the hand of the governor directed to the
treasurer.
The foreo'oino' enactments still remain in force unaltered,
and have formed an element in contests between the two
houses of the parHament^.
The Act of 1842 provided that certain sums should be
charged on the revenue fund of the colony for the services
mentioned in the Schedules A, B, and C to that Act, and
(ss. 38, 39) limited the power of the legislature to alter those
provisions. Schedule A provided for the governor, the judges,
the attorney and solicitor-general, and the administration of
justice ; Schedule B provided for the department of the
colonial secretary, treasurer, and auditor-general, and for
pensions ; Schedule C provided for public worship.
The Act of 1850,53. 17-19, besides varying the amounts
in the schedules in consequence of the separation of the colony
of Victoria, gave power to the colonial legislature to alter the
sums and the appropriation thereof, but the Bill for any other
alteration was to be reserved.
The financial provisions of the Act of 1842, and most of
those of the Acts of 1850, have been repealed by s. 2 of the
Act of 1855, but apparently the statute law revisers felt some
doubt whether the latter portion of s. 15 of the Act of 1850
was repealed, though that provision seems inconsistent with
the existing financial arrangements '^.
Sections 47-50 of the Act of 1842 provided for the
division of the expenses of police, half being paid out of
the public revenue of the colony, and half out of local rates.
The Act of 1842 (s. 29), in giving legislative power to the Crown
Legislative Council of New South Wales, provided that no ^''^^^''•
law should interfere with the sale or other appropriation of
the lands belonging to the Crown within the colony, or with
the revenue thence arising.
A similar restriction was contained in s. 14 of the Act of
1850, which conferred a similar legislative power upon the
legislative councils of the other Australian colonies.
This provision was virtually repealed as to New South
Wales by s. 2 of the Act of 1855, which provided that the
entire management and control of the waste lands belonging
to the Crown in the colony, and also the appropriation of the
gross proceeds of the sales of such lands, and of all other
proceeds and revenues of the same, including all royalties,
' See as to Victoria, Pari, i:, 1878, C. 2173, C. 2217, p. 35.
^ Section 15 has been repealed l.y a New South Wales Act.
284 BRITISH RULE AND JURISDICTION
App. VIII. mines, and minerals, should be vested in the legislature,
i.e. the parliament of the colony. And a similar course has
been taken for the other Australian colonies.
Thus the profits from Crown lands, which otherwise would
have yielded a revenue to the Government of the United
Kingdom, were surrendered to the colony.
The administration of the waste lands, which in law belong
to the Crown, and the revenue derived from these lands, has
always been a very important matter in the early life of
a colony. When the view prevailed that a colony was to be
administered for the sole benefit of the mother country, the
profits from those lands would clearly be taken by the mother
country in aid of its own revenue ; but that view has been
entirely abandoned as regards the British colonies. It fol-
lowed that the Crown lands ought to be administered for the
benefit of the colony, and the profits of them applied in aid of
the public revenue of the colony. The enactment of 1855
may be treated as a Parliamentary declaration of this view.
Creation The Act of 1842^ (by ss. 51 and 52) provided for the
of new creation of a new colony out of the territory then comprised
outTf New within New South Wales, and lying north of 26° (altered by
South the Act of I S50 - to 30°) south latitude, and for the establish-
Wales. ment of a nominee council therein.
A consequence of the restriction as to latitude was that
when it was desired to establish the colony of Victoria,
imperial legislation was required; and the Act of 1850^ (ss. i
and 5) provided for the separation from New South Wales of
the district of Port Phillip under the name of the colony
of Victoria, fixed the boundaries of the colony, provided for
their subsequent alteration, and directed that the colony should
have a legislature like that of New South Wales.
The Act of 1850 also (ss. 34, ^^) amended the Act of
1842 in relation to the carving of other new colonies out
of New South Wales.
South Australia was constituted a British colony in 1834^
by an Act which authorized the Queen to establish a nominee
council with legislative power, and to convene a general
assembly, elected by the inhabitants, for legislative purposes ^.
This Act, with an amending Act of 1838, was repealed by the
Act of 1842.
Tasmania, under the name of Van Dieman's Land, was at
first part of New South Wales, but a separate supreme court
^ 5 & 6 Vict. c. 76. ° 13 & 14 Vict. c. 59.
^ 4 & 5 Will. IV, c. 95, amended by i &; 2 Vict. c. 60.
' By 5&6 Vict. c. 61.
HISTORY OF THE AUSTRALIAN COLONIES 285
was established for it under an Act of 1823^. In 1835 itApp. VIII.
was proclaimed independent of New South Wales, and a
nominee council was formed under an Act of 1828 -. This
Act regulated the civil and judicial establishments for
Tasmania as well as for New South ^Yales.
An Act of 1829 ^, after reciting that divers British subjects
had effected a settlement of unoccupied lands on the western
coast of New Holland, which were known by the name of
"Western Australia, and that it was necessary to make tem-
porary provision for the civil government of the settlement,
authorized the Queen in Council to establish a nominee
council.
The Act of 1850 established (ss. 2, 3) in Victoria, and
authorized (ss. 7, 10) the existing nominee comicils of Tas-
mania, South Australia, and Western Australia to establish
legislative councils, and provided for the creation of the first
electoral districts, and for the election of the elective members
of the legislative councils. It also (s. 11) authorized the
legislative council, when established, to create new electoral
districts, to alter the number of members to be chosen by
each district, to increase the whole number of members of the
council, to regulate the elections, subject to the proviso that
if the number of councillors was increased, one-third of the
increased number should be nominated by the Crown.
The Act of 1850 (s, 12) applied to each of these four
colonies —
{a) The provisions of that Act (s. 4) respecting the quali-
fication and disqualification of electors in New South Wales ;
and
(Jj) The provisions of the Act of 1842 (i.e. ss. 5 to 9, 12 to
14, 15 to 19, and 22 to 29), respecting the elective members
of the legislative council, their qualification, appointment,
tenure of office, and resignation, the dissolution of the council
and election of the speaker, the quorum, the oath to be taken,
the standing orders, and the issue of writs ; and
[c) The jjrovisions of the Act of 1842 (i.e. ss. 30 to 33 and
40) respecting the proposal of drafts of laws and amendments
to the council, the giving and withholding of the Queen's
assent to Bills, the reservation of Bills for the signification of
the Queen's pleasure thereon, and the Bills so reserved, the
instructions to the governor for his guidance in relation to
the matters aforesaid, and the disallowance of Bills by the
Queen.
The Act of 1850 (ss. 32 and 33) also made for each colony
1 4 Geo. IV. c. 96. * 9 Geo. IV. c. 83. ' 10 Geo. IV. c. 22.
286 BRITISH RULE AND JURISDICTION
App. VIII. the same provision as those sections made for New South
Wales respecting- the establishment of a parliament and
electoral matters^.
The Act of 1 850 (s. 14) also authorized the governor of each
colony, with the advice of the legislative council, to make laws
for the peace, welfare, and good government of the colony ;
and to appropriate the revenue subject to the proviso that such
laws should not —
(a) Be repugnant to the law of England ; or
(b) Interfere with the sale or appropriation of the Crown
lands in the colony or the revenue thereof ; and
(c) If appropriating money for the public service, should be
passed only on the recommendation of the Crown ; and that
no part of the revenue should be issued except in pursuance
of a warrant under the hand of the governor directed to the
treasurer ^.
The Act (s. 15) provided for charging the revenues of the
colonies with the management thereof, and for the audit of
those revenues ; while s. 16 as respects Victoria, and ss. 16
to 19 as respects Victoria, Van Dieman^s Land, and South
Australia, made provision with respect to the appropriation
of sums granted, and the grants for civil and judicial ser-
vices, similar to those mentioned above as made for New
South Wales.
Section 20 provided for the creation of district councils in
Victoria, while ss. 21 and 22 extended to Tasmania, South
Australia, and Western Australia, upon the establishment of
a legislative council, the provisions of the Act of 1842
respecting the creation of councils in the different districts,
and (s. 24) amended those provisions.
Section 27 gave the same power to the legislatures of
each colony to impose duties of customs, as was given to New
South Wales.
Section 28 provided for the judicature in the colony of
Victoria, and s. 29 authorized the colonies of Tasmania and
Victoria, but not the two other colonies, to make provision
for the administration of justice.
The Act of 1850 thus placed each of the four colonies in
substantially the same position. Their subsequent history
varies.
Victoria. In Victoria the legislative council passed a Bill for a con-
stitution in 1853 by virtue of the powers conferred by the
Act of 18,(^0 (s. 32).
The Bill was reserved, and, as the Queen had not power to
^ See above, p. 281. ^ As to this in Victoria see above, p. 283, note i.
HISTORY OF THE AUSTRALIAN COLONIES 287
assent to it, an imperial Act authorizing- her assent to it App. VIII.
was passed in j 855 ^, in almost the same terms as that passed
for New South Wales.
The Act of 1 855, by s. 2, repealed such parts of the above-
mentioned Acts of 184a and 1850 as related to the colony of
A^ictoria and were repugnant to the reserved Bill, and gave
to the colony the management and control of the Crown
lands.
It further (s. 3) enacted that the provisions of the Acts
of 1850 and 1842, which relate to the giving- and withhold-
ing of Her IMajesty^s assent to Bills, and the reservation
of Bills for Her INIajesty^s pleasure, and the instructions to
the governors for their guidance in relation to Bills^ and
the disallowance of Bills, shall apply to Bills passed by the
legislature constituted under the reserved Bill, or by any
other legislature substituted therefor.
By s. 4 the legislature was authorized to repeal or alter
the provisions of the reserved Bill, subject to the conditions
thereby imposed.
The reserved Bill was assented to by the Queen and
became the Constitution Act. It (by s. 1) authorized the
Queen, by and with the advice and consent of the council
and assembly, to make laws in and for Victoria in all cases
whatsoever.
The Bill (by s. 60) provided that the legislature should
have full power to alter any part of the Bill, subject to the
proviso —
{a) That the Bill by which an alteration of the constitution
of either house of the legislature should be made - must be
passed with the concurrence of an absolute majority of each
house, and
(b) That the Bill should be reserved.
But (s. 61) provided that the legislature should be free,
without the above restrictions, to alter the qualifications of
electors and of members of either house of the legislature,
and to establish new electoral provinces or districts, and to
alter or increase the number of members either for any pro-
vince or district or the whole number of the house, and to
alter the methods of election.
The result appears to be that the legislative power of the
Legislature of Victoria depends now on the Constitution Act
of 1853 and the Colonial Laws Validity Act of 1865, and that
apart from the limitations of special Acts, whether imperial
or colonial, the only general restriction on that power is
1 18 & 19 Vict. c. 55.
^ Or which varied tlie Civil List as scheduled to the Constitution Act.
288 BRITISH RULE AND JURISDICTION
App. VIII. contained in the provisions of the Act of 1842^, respecting- the
reservation of certain Bills for the signification of the Queen's
pleasure.
For this reason, most of the provisions of the Acts of 1842
and 1 850 ^ which gave legislative power to, or impose restric-
tions on, the legislative council of Victoria, have been
repealed as regards Victoria by the Statute Law Revision
Act, 1893 ^.
South The legislative council established in South Australia
Australia, ^^^(j^er the Act of 1850- passed two Acts in pursuance of
s. 32, the powers of which became thereby exhausted. One
of these Acts (No. 2 of 1855-6), establishing a parliament,
was reserved and laid before the imperial Parliament and
assented to by Order in Council in accordance with s. ;^;^ of
the Act of 1842 ^ The second (No, 10 of 1855-6), whicii
created the electoral districts, fixed the number to be returned
for each district, and provided for the elections, was not
reserved.
Act No. 10 was, however, held to be within the terms of
s. 32 of the Act of 1850, and therefore, not having been
reserved, to be invalid. In consequence an imperial Act
was passed in 1863* confirming the above-mentioned colonial
Acts.
Section 34 of the Colonial Act No. 2 of 1855-6 provided
that any Bill passed by the South Australian Parliament for
alterino- the constitution of the leg-islative council or house
of assembly must be passed by absolute majorities in both
houses, and should be reserved.
In 1 86 1 the South Australian Parliament passed an elec-
toral Act ^ which altered the boundaries of electoral districts,
and the number of members returnable by them. This was
considered to be invalid, because it had not been passed by the
absolute majorities which were required by the Constitution
Act of 1 855-6, and also because the legislature had no power
to pass the Act. The governor and legislative council were
authorized to give to the parliament established under the
Act of 1850 such powers and such only as were already pos-
sessed by the legislative council. Therefore as that council
had no power to alter its constitution, the parliament had
also no such power. This objection was removed by the
Confirmation Act, 26 & 27 Vict. c. 84.
Whatever power the Constitution Act of 1855-6 gives to
the South Australian Parliament, the confirmation of that
Act by the imperial Act of 1863^ is not a confirmation of
1 5 & 6 Vict. c. 76. 2 13 & 14 Vict. c. 59. ^ 56 & 57 Vict. c. 54.
* 26 & 27 Vict. c. 84. •'■ No. 20 of 1861.
HISTORY OF THE AUSTRALIAN COLONIES 289
the same character as in the case of Victoria or New South App. VIII.
Wales. ..
The Act of 1863 referred in the preamble to the doubts as
to the validity of the South Australian Acts, and enacted in
general terms that all laws theretofore passed by any colonial
legislature with the object of declaring or altering the constitu-
tion of the legislature or of any branch thereof, or the mode
of appointing or electing the members of the same, shall be
deemed to have had effect, as if the legislature had possessed
full powei's of enacting laws for the object aforesaid, and all
formalities prescribed in respect of the passing of such laws
had been duly observed.
This confirmation seems limited by the terms or objects
of the laws confirmed. But the Colonial Laws Validity Act
of 1865^, by s. 7, declared all South Australian Acts pre-
viously passed to have been valid.
The result is that some of the powers of the South Aus-
tralian Legislature may still depend upon the imperial Acts
before the Colonial Laws Validity Act'', as, for instance —
(a) The power of altering electoral districts and the number
of members (s. 1 1 of 1 850) ;
(6) The general legislative power of the Legislature of
South Australia (ss. 14 and 15 of the Act of 1850) ;
(c) The power to impose customs duties (s. 27).
Regard being had to the condition of the law, it is
not surprising that mistakes have been made. Resort has
been had to the imperial Parliament, on several occasions, to
confirm colonial Acts held invalid because either not reserved
or otherwise not complying with the law ^.
In Tasmania (the name given to Van Diemen''s Land in Tasmania.
1853), the legislative council, appointed under the Act of
1850 (s. 7), in pursuance of s. 32, passed in 1855 the Con-
stitution Act of that year (18 Vict., No. 17), which has since
been supplemented by 48 Vict., No. 54, and 49 Vict., No. 8.
That Act established a parliament, both houses of which
are elective, and regulated the electoral districts and the mode
of election.
The Constitution Act of 1 855 was not specially confirmed
by an imperial statute, as in the case of New South Wales
' 28 & 29 Vict. c. 63. See -A-PP- V.
- It might bo argued that tlie oath to be taken by members of the
two houses of the South Australian Legishiture depends upon ss. 25 and 26
of the Act of 1842, and that the validity of South Australian Acts may
be affected by the non-observance of those sections.
' In 1862, 25 & 26 Vict. c. II ; in 1863, 26 & 27 Vict. c. 84 ; in 1865,
28 & 29 Vict. c. 63 ; in 1894, 56 & 57 Vict. c. 72.
JliNKYNS U
290 BRITISH RULE AND JURISDICTION
Apr. VIII and Victoria^ and consequently the remarks applying to South
Australia apply also to Tasmania.
The difficulties with respect to the validity of South Aus-
tralian Acts do not appear to have been actually raised in the
case of Tasmania ; but the confirming Act of 1 863 - was
passed in general terms, and therefore would apply to Tas-
manian as well as to South Australian Acts. The Act of
icS6 5, s. 7, did not however apply to Tasmanian Acts.
Western In Western Australia the legislative council was estab-
Austraha. Jighed under the Act of 1H50 (s. 7), on the petition of not
less than a third of the householders. But this council did
not exercise the powers conferred by s. 32 of the Act of IVS50
until the year 1889, when they passed a Bill for a Constitu-
tion Act, which was reserved and was not to come into opera-
tion until such portions of the Acts of 1842, 1844, and 1850,
as were repugnant to it, had been repealed.
The Queen was authorized to assent to the Bill by an
imperial Act of 1890^, by which (s. 22) such portions of the
above-mentioned imperial Acts of 1842, 1844, and 1850, as
are repugnant to the scheduled Bill, are repealed.
But the same section applied the provisions of the Acts of
1842 and 1850 as to the Royal Assent to a disallowance of
Bills and their reservation in terms similar to those used in
the case of Victoria in 1855.
The Act (s. 5) authorized the Legislature of Western
Australia to alter or repeal any of the provisions in the
scheduled Bill in the same manner as any other laws of the
colony, subject to the conditions imposed thereby.
The Queen assented to the scheduled Bill, which thus
became the Constitution Act. Under it (s. 73) the par-
liament of the colony has full power to repeal or alter any
of its provisions, subject to the proviso that any change
in the constitution of the legislative council or assembly
should not be effected unless the Bill was passed with the
concurrence of an absolute majority of the members of each
house ; and also that any Bill for the election of a legislative
council, which either is passed before the expiration of six
years from the first summoning of it, or interferes with the
operation of ss. 69 to 72, and the schedules (i. e. the civil
list charges, and certain pensions to ex-officials) should be
reserved.
It also (s. 2) gave full power to the legislature to make
1 26 & 27 Vict. c. 84.
' 53 & 54 Vict. c. 26. This Act followed closely the imperial Acts of
1855, authorizing the Queen to assent to the Constitution Acts of Victoria
and New South Wales.
HISTORY OF THE AUSTRALIAN COLONIES 29I
laws for the peace, order, and good g-overnment o£ "Western Arp.YIII.
Australia, and gave it all the powers and functions of the
then subsisting legislative council.
The effect of the imperial Act of 1890, followed by the
Statute Law Revision Act, 1 893 ^, is that the enactments of
the Act of 1850 conferring powers on the Legislature of
Western Australia are repealed, and the powers of the legis-
lature of that colony depend (except for the Colonial Laws
Validity Act, 1865), entirely upon the Constitution Act of
i8qo.
The position, therefore, of Western Australia is precisely
similar to that of New South Wales above mentioned.
Queensland differs from the other Australian colonies in Queeus-
that it was not made a colony until after 1850, and is not ^'^^*^-
mentioned by name in the Acts of 1842, 1844, or 1850, nor
indeed in any Act except the Act of 1861 ^ (which confirms
the Letters Patent establishing it), and never had a nominee
or legislative council.
The Acts of 1842 (s, 51) and 1850 (s. 34) gave the Queen
in Council power (as above mentioned" under New South Wales)
to erect into a separate colony any territories forming part of
New South Wales and lying north of the thirtieth degree
of south latitude.
The Constitution Act of New South Wales ^ (s. 46) pro-
vided that nothing in that Bill should prevent the Queen
from altering the boundary of the colony on the north in such
manner as to Her Majesty might seem fit ; and s. 7 of the
Imperial Act of 1 855 ^ provided that the Queen by Letters
Patent might erect into a separate colony any territory
separated from New South Wales by such alteration of the
northern boundary.
The Act of 1842 (s. 52) authorized the Queen, in creating
the colony, to establish a nominee council.
The Act of 1 850 (s. 35) provided that the legislature which
might be constituted in any such new colony under the Act
of 1842, should have power to establish a legislative council,
and in effect should have the same power, and be subject to
the same enactments of the Act of 1850, as the colony of
Western Australia.
The Act of 1855 directed that the Queen, in establishing
the colony, should by Letters Patent or Order in Council
provide for the government of the colony, and for the
1 56 & 57 Vi'-t. c. 54. * 24 & 25 Vict. c. 44. ' Sec p. 284.
* The reserved Bill scheduled to 18 & 19 Vict. c. 54, and assented to
by the Queen under the power conferred by tJiiit Act.
' 18 & 19 Vict. c. 54.
292 BRITISH RULE AND JURISDICTION
App.VIII. establishment of a legislature therein, in manner as nearly
resembling the form of government and legislature which
should be at such time established in New South Wales as
the circumstances of such colony would allow, and full power
was to be given by the Letters Patent or Order in Council
to the legislature of the colony to make further provision in
that behalf.
Thus the powder given by each Act of creating a new
colony was accompanied by a power to create in that colony
a legislature of such character as at the date of the Act was
existing in New South Wales.
Moreover, the New South Wales Constitution Act of 1 855
was altogether repealed as to Queensland by an Act of the
Queensland Legislature (32 Vict,, No. 39).
In 1859, Letters Patent of June 6 were made, creating
certain parts of the colony of New South Wales into the colony
of Queensland, and an Order in Council, dated June 6, 1859,
was made for the government of the colony and the establish-
ment of a legislature ^.
But the form of government and legislature so established
did not in all respects resemble the form of government and
legislature at that time established in New South Wales,
and consequently doubts arose as to the validity of the
order. These doubts were removed in 1861 by an imperial
Act ^, which (s. 4) repealed the provisions of s. 7 of the Act
of 1855, requiring the form of government and legislature to
be the same as that established in New South Wales.
If a legislative council had been established in Queensland
under s. ^^ of the Act of 1850, ss. la and 32 of that Act
would have applied,- and consequently all Acts subsequently
passed by the legislature of Queensland would have been
subject, as respects the reserved Bills, to the provisions
respecting those Bills of the Act of 184a, i.e. ss. 30-33
and 40.
As no legislative council was ever established under s. ^^^
of the Act of 1850, any application of the provisions of the
Act of 1842, in respect of reserved Bills, to the legislature of
Queensland must depend upon the Letters Patent and Order
in Council and not on any statute.
But it may be questioned whether the repeal by the Act
of 1 86 1 of that part of s. 7 of the Act of 1855, which
required the legislature in any new colony to be similar to
that of New South Wales, did not exclude the legislature
from the provisions as to reserved Bills of the Act of 1842.
^ See Stat, H. & 0. Rev., vol. vi. pp. 54, 55. - 24 & 25 Vict. c. 44, s. 3.
INDEX
Absolute government, 7, 93.
Aden protectorate, 169.
Administrator, in Southern Rho-
desia, 191.
Admii-alt}^ 17.
Admiralty jurisdiction, ^^, 124-5,
129.
African Orders in Council for pro-
tectorates, 185-95.
Agriculture, in British North
America Act, 202.
Alderney, subordinate to Guern-
sey, 38.
Aliens, naturalization of, 70, 200.
Amatongaland Order in Council,
188.
American colonies, 7.
Amnesty, 1 1 1 .
Annexation of territory, 4.
Annual meetings of legislature,
68.
Antigua, 97, 197.
Appeal, to Privy Council, 32-4.
Api^ropriation of taxes, 282, 286.
Army. See Militaiy forces.
Arrest on mesne process, 124.
Assent to Bills, yj, 1 13-21.
Australian Commonwealth, mo-
ney Bills, 60 ; constitutional
position of executive, 64 ; power
of constitutional change, 76
history of fedei-ation, 84-6
analysis of imperial Act, 86-9
comjDared with Dominion of
Canada, 89 ; constitution and
legislature, App. i.
Bahamas, 197.
Balfour, Arthur, estimate of Sir
H. Jenkyns's public services, xx.
Bankruptcy, 12,27,160; inBritish
North America Act, 200, 208.
Barbadoes, 197.
Barbary States, 252.
Basutoland. 169, 198, 234.
Bechuanaland protectorate, 187-
8, 234.
Behring Sea, 25-6, 147.
Berlin, conference of, 175-7.
Bermuda, 197.
Bigamy, 12, 27, 137.
Bishop of Man, 39.
JJismarck, Prince, 168.
Board of Control, 42.
Bombay, government of, 46.
Borneo, British protectorates in,
169-71, 195.
Boundaries of British dominions,
alteration of, 2-4.
British Bechuanaland, 169, 234.
British Central Africa, 169.
British Columbia, yy, 81, 119,
App. i.
British Guiana, 197,
British Honduras. See Honduras.
British India, definition, 44.
British Islands, definition, 37.
British New Guinea, 197.
British North America Act, partly
reprinted, 199-202 ; judicial
construction, 203-12,
British North Borneo Company,
169-71, 173, 184.
British possession, definition, 2.
British protected persons, in
foreign states, 155.
British ship, jurisdiction for of-
fences committed on, 130.
British South Africa Company,
169, 184.
British subject, on foreign ship,
140.
British subjects, under Foreign
Jurisdiction Act, 154 ; under
Capitulations, 245.
Brunei, British protectorate of,
169-71.
Bryce, James, testimony to Sir
H. Jenkyns's otficial services,
xxi.
Burgher force, in Cape Colony, 20.
By-laws, 16.
Canada, 8-9, 17, 30; militia, 19;
money Bills, 60 ; jjosition of
ministers, 62 ; senate, 66 ;
house of commons, 67 ; power
of constitutional change, 75 ;
history of federation, 81-4;
compared with Commonwealth
of Australia, 89 ; assent to Bills,
114; disallowance of Bills, 147;
constitution and legit*lature,
App. i.
Cantonments, jurisdiction ovei',
196.
Cape Colony, 9 ; burgher force,
20; money Bills, 61 ; constitu-
tional position of executive, 63;
position of natives, 94 ; cxten-
u .3
294
IND'EX
sion of" criminal law to neigh-
bouring territory, 143 ; consti-
tution and legislature, App. i.
Capitulations, the, their history,
148-51.
Captain-general, 100.
Carnarvon, Lord, 1 1 1 .
Ceded or conquered colonies, 6.
Ceylon, 17, 29, 197.
Channel Islands, relations to the
Home Government, 14, 37-9.
Chartered companies, 172-3, 184,
".95-
Chief commissioner, of province
in India, 47.
China, special provision for cri-
minal jurisdiction, 144, 163. '252.
Chinese immigration, 24, 118.
Circulars, to governors of colonies,
100.
Civil service, in India, 52-3.
Coasting trade, 28.
Codes, in India, 51.
Coinage, regulation of, 29 ; in
British North America Act, 199.
Coleridge, Justice, 128.
Collision, jurisdiction in, 125.
Colonial Laws Validity Act, re-
printed, 239-41.
Colonial regulations, 100.
Colony, definition, 2 ; alteration
of boundaries, 2-4 ; settled colo-
nies, 5-6 ; conquered or ceded
colonies, 6 ; instruments of con-
stitution, 7 ; modes of govern-
ing, 7 ; self-governing colonies,
8-9, 54-90.
Coloured population in colonies,
9, 67, 94, 96-
Commander-in-chief, in India,
51 ; in Canada, 81, loi ; in
Australia, 87.
Commissioner, in British protec-
torates, 172-3.
Commissions, of governors of
colonies, 99 ; of Governor-
General of Canada, 213-9; of
Governor of New South Wales,
219-31 ; of Governor-General
o€< India, 232-3 ; of High Com-
missioner of South Africa, 233-
6 ; of High Commissioner of
Western Pacific, 236 ; of High
Commissioner of protected
' Malay states, 237-8.
Commonwealth of Australia,
money Bills, 60 ; constitutional
position of executive, 63-4 ;
power of constitutional change.
76 ; history of federation, 84-
6 ; analysis of imperial Act,
86-9 ; compared with Domi-
nion of Canada, 89-90 ; consti-
tution and legislature, App. i.
Companies, British, not exempted
from colonial law, 30.
Congo Free States, consular juris-
diction in, 152, 158.
Conquered or ceded colonies, 6,95.
Constantinople, 160.
Constituent assemblies, 72.
Constitutional change, in colo-
nies, 72 ; in Australia, 73 ; in
New Zealand, 74 ; in Canada,
75 ; in Australian Common-
wealth, 76 ; in colonies with
representative legislatures, 240.
Consular jurisdiction, consuls in
civilized states, 148 ; the capi-
tulations, 149-51 ; the Foreign
Jurisdiction Acts, 151 ; power
of deportation, 152; nature of
the jurisdiction under these
Acts, 153-4; pei'sons subject
to this jurisdiction, and law
applicable, 154-7; in what
countries capitulations exist,
157 ; in the Congo Free States,
158; the Ottoman Dominions
Order, 159-61 ; imprisonment
and deportation, 161 ; Persia
and Persian Gulf, 162; Morocco,
162; Siam, 163; China and
Corea, 163; Japan, 163-4.
Consul-general, in British pro-
tectorates, 172-3.
Convicts, 277.
Cook Islands, 169.
Copyright, 26-7, 117- 1 8, 200.
Corea, British jurisdiction in, 163.
Council, of Governor-General of
India, 42, 45 ; of Secretary of
State for India, 43 ; of Gover-
nors of Bombay and Madras,
46-7.
Covenanted civil service, 52.
Crime, local jurisdiction for,
125-47.
Crown, the, as link with colonies,
12 ; sovereignty of, in India, 43 ,
legislative power in not self-
governing colonies, 95 ; as
fountain of honour, 100; legis-
lative power in foreign coun-
try, 153; legislative power in
protectorates, 193, 195.
Crown, or not self-governing,
colonies, two classes, 91 ; re-
INDEX
295
lation to Home Government,
91 ; the legislature, 92 ; the
executive, 92-3 ; relation of
representative body to local
government, 94 ; conflict be-
tween legislature and execu-
tive in Malta, 94 ; legislative
power of Crown, 95 ; forms of
constitutions, 96-7 ; fedei-ation
in West Indies, 97-8.
Crown lands, in colonies. 283.
Customs duties, 27, 87, 106.
Cyprus, capitulations superseded,
'157.
Deadlock, 66, 122.
Deceased wife's sister, marriage
with, 28, 1 17-8.
Deemsters, 39-40.
Dependency, ambiguous, i ; India,
Deportation, in New Zealand,
70 ; under Foreign Jurisdic-
tion Acts, 152, 161, 265.
Dicey, Prof., quoted, 31, 54-5,
62, 72.
Dignities and honours, in colonies,
100.
Disallowance of Bills, 15-6, ']']-
9, 1 13-21.
Dismissal of ministers, no.
Dissolution, power of, 11 1-3.
Distribution, statute of, 72.
Divorce, 226, 230.
Dollars, 29-30.
Dominica, 97, 197.
Dominion of Canada, militia, 19;
money Bills, 60 ; position of
ministers, 62; senate, 66; house
of commons, 67 ; power of con-
stitutional change, 75 ; history
of federation, 81-4; compared
with Commonwealth of Aus-
tralia, 89-90 ; assent to Bills,
114-5; disallowance of Bills,
117; constitution and legisla-
ture, App. i.
Durham, Lord, report on Canada,
57-
East Africa Protectorate, 29, 169;
Orders in Council, 189.
East India Company, brief his-
tory, 41-3.
Education, in British North
America Act, 201.
Egypt, international courts in,
.'57-
Empire, British, 23.
Empire, of India, 44.
English law, in settled colony,
5-6, 31 ; in British India, 51.
European British subject, juris-
diction over, in India, 50.
Executive, the, statutory defini-
tions of position of, 61-5 ; in
self-governing colonies, 65, 76 ;
in a crown colony, 92-3.
Exequatur, consular, 148.
Explosives Act, offences against,
.. '36.
r>xternal aiFaii*s of colonies, 26-31.
Extradition, 12, 26, 137.
Extra-territorial jurisdiction, so-
vereignt}^ limited to territory,
123; civil jurisdiction of Eng-
lish courts, 123-5; criminal
jurisdiction local, 125-7; trial
of pei-sons at locality of crime,
127-8; crimes committed in
militaiy lines abroad or at sea,
128-30; offences committed
at sea, 130; prisoners on board
a foreign ship, 131-5 ; illus-
trative cases, 135-6; offences
committed on land out of Brit-
ish dominions, 136 ; foreign
doctrines, 137-40; no power
to tiy British subject for offence
on board a foreign ship, 140-
I ; offences on land in non-
Christian or barbarous country,
142; trial of offences by British
subjects in Newfoundland, 142 ;
in Honduras, New Zealand,
Otaheite, and Pacific, 143 ; in
South Africa, 143; in Sierra
Leone, 144; in China, 144; in
the Pacific, 145-7 ; jurisdic-
tion to prevent smuggling and
to protect fisheries, 147.
Extra-territorial legislation, for-
bidden to colonies, 69-71.
Extra-territorial powers, of Go-
vernor-General of India, 46.
Eyre, governor of Jamaica, 104.
Factories, in India, 41-2; in the
Levant, 149.
Falkland Islands, 2, 5, 197.
Federal Council of Australia, 84-5.
Federations, within the emjjire,
23, 80 ; Dominion of Canada,
81-4 ; Commonwealth of Aus-
tralia, 84-9; the two con-
trasted, 89-90; in the West
Indies, 97-8.
Female franchise, 67.
296
INDEX
Fiji, 146, 197.
Fisheries, extra- territorial juris-
diction for protection of, 147.
Flag, British, 25, 130.
Foreign Deserters Act, 135.
Foreign Enlistment Act, 26.
Foreign Jurisdiction Act, 15 1-3;
reprinted, 266-75.
Foreign ship, jurisdiction for of-
fences on, 124-5, 131, 135-6,
I 40-1.
Foreigners, crimes by, on foreign
ships within British waters, 26 ;
in British protectorates, 174-7.
Forsyth, quoted, 132.
Fortifications, in colonies, 21-2.
Franchise, in colonies, 67, 82.
Frenchshore, of Newfoundland, 24.
Frontier disputes, 26.
Gambia, 197.
GermanEast AfricaCompany, 177.
Gibraltar, 15, 95, 198.
Gold Coast, 197.
Governor of colony, his appoint-
ment and powers, 14, 34-5 ;
appointment and commission,
99 ; dignities and honours, 100;
militaiy command, 100-2 ; sta-
tutory powers, 102 ; not a Wce-
roy, 102 ; power given by com-
mission, 103; reserve power,
105 ; of self-governing as op-
posed to other colonies, 105 ;
acts as imperial and local offi-
cer, 105-6 ; social influence,
107; relations to ministex's,
107-10; power of pardon, 1 10-
l; power of dissolution, iii-
3; assent to legislation, 113-
6 ; disallowance by Crown,
1 16-8 ; disallowance in Canada,
1 18-21; Acts iiltra vires not
necessarily disallowed, 121 ; in
a colony not self-governing,
122 ; trial for ojopression, 138;
commissions and instructions,
213-38.
Governor-General, of Australia,
87 ; of Canada, 81, 84, 100, no,
119 ; of India, 42-8.
Graham-Harrison, Mr., assisted
in revision of book, xxii.
Grenada, 98, 197.
Grey, Earl, 58-9, 80, 84.
Guernsey, constitution of, 38.
Halifax, 21.
Hall, Mr., quoted, 134, 147, 150,
154, 156, 158, 166, 168, 177-8.
179-80.
Halleck, quoted, 131, 166.
Hamilton, Sir E., testimony to
Sir H. Jenkyns's official services,
XX,
Hanse ports, 247.
Hanseatic merchants, 149.
Heligoland, 3.
Hertslet, 170, 183-4, 194) 252-3.
High Commissioner, of South
Africa, 233-6; of Western
Pacific, 145, 236 ; of Protected
Malay States, 237.
High Court, in England, colonial
governors amenable to, 35 ; of
Australia, 87.
High Courts, in India, 50.
High seas, definition of, 129.
Holland, Prof., referred to, 137.
Home Government, i-elations with
colonies, 10-36; the imperial
Parliament, 10-12; the Crown,
12 ; acts of Home Government,
13 ; the governor, 14; the local
legislature, 14-6; naval and
military, 17-22; subjects for
imperial authority, 22 ; inter-
national relations, 22-6 ; inter-
colonial relations, 26 ; external
affairs, 26-31 ; judicial arrange-
ments, 31-4; the governor,
34-6 ; internal government, 36.
Honduras, constitution, 96, 197;
imperial Act for trial of mur-
ders, 143, 252, 257.
Hong-Kong, 144, 197.
' Honourable,' applied to colonial
ministers, 65.
Honours and dignities, in colonies,
100.
House of Assembly, 7, 67.
House of Commons, in Canada, 67.
House of Representatives, 67.
Immigration, in British North
America Act, 202.
Imperial federation, 23.
India, surrender of territory, 3 ;
Secretary of State, 14 ; marine
service, 17; coinage, 29; a de-
pendency, not a colony, 41 ;
outline of history, 41 ; Home
Government, 42-3; local govern-
ment, 44 ; governor-general,
44-5 ; central legislature, 45 ;
provincial governments, 46-8 ;
comparison with colonial go-
INDEX
297
vernments, 48 ; control by Home
Government, 49 ; courts of jus-
tice, 49-51 ; system of law, 51 ;
military forces, 51 ; civil ser-
vice, 51-3 ; trial of officials for
misdemeanours, 139; subjects
of native states under Foreign
Jurisdiction Acts, 155, 272;
natives of, under Ottoman Do-
minions Order, 160-2 ; protec-
torates, 196.
Indian Land Acquisition Act,
1S8-9.
Indians, American, 167, 200.
Influence, sphere of, i.
Initiative in legislation, 92.
Instructions, to governor of
colony, 99 ; to governor of New
South Wales, 228-31.
Intercolonial relations, of colonies,
26,
International copyright, 26.
International courts, in Egypt, 1 57.
International relations, of colo-
nies, 22-6.
Ionian Islands, 167, 246-7. *■
Jamaica, representative legisla-
ture, 92, 96, 197-8.
Japan, consular jurisdiction abol-
ished, 163.
Jajaanese immigi-ation, 24, 119.
Jetferies, Chief Justice, 259.
Jenkyns, Sir Henry, brief bio-
graphy, i-xv ; Lord Thring's
estimate, xvi-xviii ; John Mor-
ley's estimate, xviii-xx.
Jersey, constitution of, 28-
Judge-Advocate, 277.
Judges, 31.
Judicial arrangements, in colo-
nies, 31-4.
Jury, in consular courts, 160-1.
Kermadec Islands, 169.
Keys, House of, 39.
King's council, in Canada, 100.
Labuan, 198.
Lagos, 197.
Leeward Islands, federation of,
97, 197-
Legislative Assembly, 67.
Legislative Council, 66, 276.
Legislature, the, in iiritish pos-
sessions, 14-6; in Channel
Islands, 38 ; in Isle of Man,
39 ; in British India, 45-8 ; in
self-governing colonies, 66-79 ;
in a crown colony, 92, 95 ; in
colonies generally, App. i, 1 97-S.
Letters Patent, creating office of
governor of colony. 99, 213-6.
Levant Company, the, 149-51,
248-50.
Lewis, Sir G. C, referred to, 1-2,
9-10, 24, 127, 149-
Lieutenant-governors, of Indian
provinces, 47 ; of Canadian
provinces, 83, 90, 119.
Lighthouses, in British posses-
sions, II ; in Canada, 199.
Lower Canada, 81.
Lower house, in colonial legisla-
tures, 67.
Madagascar, 158.
Madras, government of, 46.
Mahommedan countrj', offences
by British subjects in, 142.
Maine, Sir H.S., quoted, 165-6, 1 78.
Malay protected states, 169 ; com-
mission of High Commissionei",
237-
Maldive Islands, 169.
Malta, Protestant marriages, 33 ;
conflict between legislature and
executive, 94-6 ; representative
assembly, 197.
Man, Isle of, relations to the
Home Government, 14, 39-41.
Manitoba, 77, 81, App. i.
Maoris in New Zealand, 67.
Marriage, with deceased wife's
sister, 11 7-8 ; by consuls, 148;
in a Russian factoiy, 149.
Matabeleland Order in Council,
190, 234.
Mauritius, 197.
Merchandise marks, 30.
Merchant shipping, 28.
Merivale, Herman, quoted, 105.
Military command, in India, 5 1 ;
in colonies, 100-2.
Military forces, in colonies, 17-22;
in India. 42, 51.
Military oft'ences, 128-9.
Ministers, position of, in colonies,
61-6.
Mints, in colonies, 29.
Misdemeanours, trial of colonial
officials for, 139.
Money Bills, in colonial legisla-
tures, 32, 60-1.
Montserrat, 97, 197.
Morley, John, estimate of Sir H.
Jenkyns's public services, xviii-
xx.
298
INDEX
Morocco, consular jurisdiction in,
162, 252.
Mowatt, Sir Francis, testimony to
Sir H.Jenkyns's official services,
XX.
Murder, outside territorial juris-
diction, 136, 1 38.
Muscat, 173.
Mutiny Act, in India, 42.
Natal, 9, 26, 63, 74, 94, 144, 189,
App. i, 234.
Natives, in Indian civil service, 53.
Naval forces, in colonies, 17; in
India, 42.
Negri Sembilan, 237.
Negroes, in West Indies, 96.
Neutrality, 26.
Nevis, 97, 197.
New Brunswick, 8, 77, 81-4, App. i.
Newcastle, Duke of, 107.
Newfoundland, 9, 24, 58, 74, 81,
142, App. i.
New Guinea, 169, 197.
New South Wales, militaiy force,
19 ; money Bills, 60 ; constitu-
tional position of executive, 62 ;
power of constitutional change,
73 ; constitution and legisla-
ture, App. i; patent for gover-
nor, 219-23 ; commission of
governor, 223 ; old instructions
to governor, 224-8 ; present
instructions, 228-31 ; founda-
tion of, 276 ; early constitu-
tional histoiy, 277 ; nominee
council, 278 ; legislative coun-
cil, 278 ; iDarliament, 279-82 ;
appropriation of taxes and
fixed grants for governor and
judges, 282; crown lands, 283 ;
creation of new colonies,
284-6.
New Zealand, militar^^ force, 20 ;
money Bills, 60 ; constitutional
position of executive, 62 ; power
of constitutional change, 74-5 ;
Government Securities Act, 80 ;
imperial Act for trial of mur-
ders in, 143 ; constitution and
legislature, App. i.
Niger Territories, 169, 171.
Nominee councils, in Australian
colonies, 276.
Non-regulation provinces, in India,
52.
Norfolk Island, 169.
North-West Territories (Canada),
T}, 81, App. i.
Nova Scotia, 8, 'j'j, 8 1-4, App. i.
Ontario, TJ, 81-3, App. i.
Orders in Council, 13.
Ordinance, 15.
Otaheite, imijerial Act for trial
of murders in, 143.
Ottoman Dominions, capitula-
tions in, 150, 157, J 59-62.
Pacific, the, imperial Act for trial
of murders in, 143, 145-6; pro-
tected islands in, 169.
Pahang, 237.
Pardon, prerogative of, iio-ii,
227, 231, 265.
Parkes, Sir Heniy, 84.
Parliam-^nt, supremacy over Brit-
ish possessions, 10-12; legisla-
tion for self-governing colonies,
91; in Canada, 81, 199.
Parliamentary counsel to the
Treasury, vi, xvi.
Parliamentary govemmeiit, in
colonies, 56.
Payment of members, 68.
Pearl fisheries, 17.
Perak, 237.
Phillimore, quoted, 134, 140, 166,
168, 180.
Picton, General, trial of, 140.
Piracy, jurisdiction over, 130, 142.
Pitcairn Island, 169.
Plenary, not delegated, powers of
colonial legislature, 16.
Port Phillip, 278, 284.
Possessions, British, defined, 2.
Presidencies, in India, 42 ; in Lee-
ward Islands, 97.
President of the Council, Lord, 13.
President of the United States, 56.
Prince Edward Island, 'j']^ 81,
App. i.
Private international law, 125.
Private law, in colonies, 30.
Privy Council, appeal to Judicial
Committee, 32-3, 88-9.
Privy Council of Canada, 59, 81.
Prize courts, in colonies, 34.
Probate of wills, 30.
Protective duties, 27.
Protectorate, British, definition,
165 ; exclusion of external re-
lations, 166 ; from point of view
of international law, 167-8 ;
classification, 168-72 ; two
types, 172; position of foreign-
ers, 174-8; sovereignty divi-
sible, 179-82 ; internal sove-
INDEX
299
reigntj-, 1S3 ; courts and law,
185; African Orders, 185-8;
Amatono-aland Order, 188 ; Kast
Africa Order, 189; Zanzibar
Order, 190; Matabeleland Or-
ders, 190; Southern Rhodesia
Order, 190-I ; great extent of
powers in these Orders, 191-3 ;
their legal basis. 191-5 ; Indian
protectorates, 196.
Protestant marriages in ]\ralta,32.
Provinces, of India, 47 ; of Domi-
nion of Canada, 81-4, 118, 120;
their powers of exclusive legis-
lation, 200.
Provincial civil service, in India,
53-
Quebec, TJ, 81-3, App. i.
Queensland, defence force, 20;
money Bills, 32 ; power of con-
stitutional change, 74 ; consti-
tution and legislature, App. i ;
foundation of colony, 276 ; early
constitutional history, 291-2.
Referendum, in Australia, 86.
Regulation provinces, in India, 52.
Representative government, in
colonies, 5-7, 94, 197.
Representative legislature, defini-
tion of, 239 ; may alter consti-
tution, 240.
Reprieve, prei'ogative of, no.
Repugnancy, colonial law void
for, 71, 121, 240, 271, 286.
Reservation of Bills, 78, 1 1 3-2 1,
281.
Reserve power of governor of
colony, 104.
Resident commissioner, 191.
Resident, in British protectorates,
Resignation, of colonial member,
69.
Responsible government, 7-9 ;
meaning of, 55 : informal origin
of, 56 ; origin of, in Canada, 57-9.
Rupees, 29, 190.
Rupert's Land, 81.
Russell, Karl, 57 8.
Russia Company, the, 149.
St. Helena, 198.
St. Kitts, 97, 197.
St. Lucia, 98, 197.
St. Vincent, 98, 197.
Sarawak, British protectorate of,
169-71, 195-
Sark, subordinate to Guernse3% '},%.
Scott, Mr. Hope, on consular
jurisdiction, 151 ; his report
reprinted, 242-66.
Sea fisheries, extra-territorial pro-
tection of, 147.
Seal-hunting, 26.
Secretary of State, for the Colo-
nies, 14; for India, 43.
Selangoi", 237.
Self-governing colonies, the pro-
blem stated, 54 ; responsible
government, 5 5 ; its informal
origin, 56 ; its origin in Canada,
57-9 ; unwritten constitutional
custom, 59 ; rules as to money
Bills, 60 ; statutory definitions
of position of executive, 61-5 ;
the Upper House, 66 ; the
Lower House, 67 ; comparison
with imperial Parliament, 68 ;
limits to legislative power, 69 ;
legislation must not be extra-
territorial, 69-71 ; nor repug-
nant to laws of England, 71 ;
power to make changes in con-
stitution, 72 ; in Australia, ']}, ;
in New Zealand, 74 ; in Canada,
75 ; in Australian Common-
wealth, 76 ; power to vary con-
stitution of executive, 76 ; posi-
tion of the Crown in legislation,
T"] ; assent of governor, ']'] ; his
veto, 78 ; reservation and dis-
allowance, 78 ; practical limits
on imperial control, 79; federa-
tions witliin the empire, 80 ;
Dominion of Canada, 81 ; par-
liament of Canada, 82 ; govern-
ment of provinces, Z'}) ; Austra-
lian federation, 84-6 ; the Com-
monwealth Act, 86-8 ; appeals
to Privy Council, 88-9 ; federa-
tions of Canada and Australia
contrasted, 89-90.
Semi-sovereign states, 166-7.
Senate, in Canada and Australia,
66.
Settled colonies, 5, 95.
Seychelles, severed from Mauri-
tius, 98, 197.
Shanghai, 163.
Siam, consular jurisdiction in, 162.
Sierra Leone, imptM-ial Act for
trial of otfences in, 144, 197.
Simon, J. A., contributor of chap-
ter iv, xxii.
Simon's Bay, 21
Slave trade, 28, 136, 174, 1 84.
300
INDEX
Smuggling, in the Channel Islands,
39 ; in the Isle of Man, 40 ;
extra-territorial jurisdiction,
147 ; in Africa, Orders in Coun-
cil, 186.
Social influence, of governor of
colony, 107.
Socotra, 169, 173.
Somali coast protectorate, 162,
169.
South Africa, imperial Act for
trial of offences in, 144 ; com-
mission of High Commissioner,
233-6.
South Australia, militaiy force,
20 ; constitutional position of
executive, 65 ; power of con-
stitutional change, 74 ; consti-
tution and legislature, App. i ;
foundation of colony, 276 ; early
constitutional histoiy, 288-9.
Southern Rhodesia Order in Coun-
cil, 190-1.
Sovereignty, limited to territory,
123: division of, 153, 166, 179,
255.
Sphere of influence, defined, i.
States, of Australian Common-
wealth. S7-9.
Statute law consolidation, xv.
Straits Settlements, 95, 197-8.
Subordinate legislature, 16.
Suzerainty, 44.
Tasmania, Defence Act, 20 ; con-
stitution and legislature, App. i ;
foundation of colony, 276,
278 ; early constitutional his-
toiy, 289. '
Thring, Lord, note on Sir H. Jen-
kyns's early ofiicial career, xvi-
xviii.
Tobago, annexed to Trinidad, 98,
197.
Todd, Mr., quoted, 19, 104, 115,
120.
Transportation, 277.
Treason, outside territorial juris-
diction, 136, 138,
Treaties, as affecting colonies,
23-4 ; by Governor-General of
India, 45, 48 ; as basis of pro-
tectorates, 193.
Trinidad, 98, 197.
Tripoli, capitulations in, 157, 252.
Tunis, capitulations abolished,
IS7, 175-
Turkey, capitulations in, 150, 157,
159-62.
Turks and Caicos Islands, 197.
Twiss, Sir Travers, quoted, 165-8,
183.
Tynwald, Court of, 39.
Uganda, 169.
United States, constitution of, 56,
90-.
Unwi'itten constitutional custom,
59-
Upper Canada, 81.
Upper house, in colonial legisla-
ture, 66.
Utrecht, treaty of, 24.
Van Diemen's Land. See Tas-
mania.
Venue, in criminal law, 126.
Veto of Bills, 78, 1 13-21.
Vice-Admiralty courts, 33-4.
Viceroy, of India, 44 ; warrant of
appointment, 232-3 ; governor
of a colony not a viceroy, 102.
Victoria, money Bills, 61 ; consti-
tutional position of executive,
63 ; power of constitutional
change, 74 ; constitution and
legislature, App. i; foundation
of colony, 276 ; early constitu-
tional histoiy, 286-8.
Virgin Islands, 97, 197.
Warrant of appointment, of Go-
vernor-General of India, 232-3.
Welby, Lord, testimony to Sir H.
Jenkyns's official services, xxi.
West Coast of Africa, 183.
West Indies, forms of constitu-
tion, 96-7 ; federation, 97-8.
Western Australia, constitutional
position of executive, 63 ; ad-
mitted into Commonwealth, 88 ;
constitution and legislature,
App. i ; foundation of colony,
276, 285 ; early constitutional
history, 290.
Western Pacific, commission of
High Commissioner, 236.
Wheaton, referred to, 131, 166-7.
Windward Islands, 98, 198.
Writs, in name of Crown, 31.
Zanzibar, 169, 190.
Zululand, 189, 234.
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