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. 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 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 ( 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. 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 Seniesent 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, ) 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. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. AUR2^iP ^J r o <^'-, .♦EC-: \i'f Form L9-10/()-6,'52(A1855)444 .^p.SOUTHERM REGIOIVAL LIBRARY FACILITY AA 000516118 7 JV 106? J^2Qb ^mmim^