PRINCIPAL WORKS REFERRED TO. ANSON-"Law and Custom of the Constitution" (1892). BAKER "Annotated Constitution of the United States" (1891). BLACKMORE "The Law of the Constitution of South Australia" (1894). BRYCE "The American Commonwealth" (1888). BURGESS-"Political Science and Constitutional Law" (1891). COOLEY "Constitutional Limitations" (fifth edition, except where sixth is mentioned). COOLEY-"Principles of Constitutional Law" (1898). HARE" American Constitutional Law" (1889). HEARN--"Government of England" (second edition, 1886). JENKS--"Government of Victoria " (1891). JENKS-"History of the Australasian Colonies" (1896). LEFROY "Legislative Power in Canada." LEWIS "Government of Dependencies" (Clarendon Press edition, 1891). LOWELL "Government and Parties in Continental Europe" (1896). MORRIS-" Memoir of George Higinbotham" (1895). MUNROE "Constitution of Canada" (1889). QUICK and GARRAN-" Annotated Constitution of the Australian Commonwealth" (1900) STORY "Commentaries on the Constitution of the United States " (second edition, 1851). THAYER "Cases on Constitutional Law" (1895). TODD "Parliamentary Government in the British Colonies" (second edition, 1894). OFFICIAL REPORTS of the Debates in the Australasian National Convention (Sydney, 1891), the Australasian Federal Convention (Adelaide and Sydney, 1897, Melbourne, 1898). CHAPTER I. THE SOURCES OF THE LAWS AND INSTI TUTIONS OF THE COLONIES.1 MULTIPLICITY OF SOURCES.-One of the many useful services already performed by the Society of Comparative Legislation has been the collection and publication in their Journal of "Modes of Legislation in the British Empire." The returns which have been made to the circular of the Society exhibit one feature which is bound to strike an English lawyer as remarkable. Accustomed to a legal system whose feature is its unity, he is struck by the multiplicity of the sources of laws and institutions in the Colonial system; and in place of singleness of authority he finds not a little doubt and conflict. The Common Law, the Prerogative, Acts of Parliament and Orders thereunder, play their part as in England. But the Prerogative looms larger in Colonial than in Home institutions; Acts of Parliament have varying force and authority according to their date and their nature; Orders in Council are less frequently acts of supplementary legislation than the exercise of a statutory suspending power or power to put into operation. In addition to these are the Acts and Ordinances of Colonial Legislatures, sometimes of Legislatures between which the power of legislation is divided, sometimes of Legislatures which have been superseded by others. 1 Reprinted from the Journal of Comparative Legislation, New Series, No. V., August 1900. A THE AUSTRALIAN COLONIES: COMMON SOURCES OF THE LAW. 1. LAWS OF ENGLAND.-All the Australian Colonies belong to the class of colonies acquired by settlement or occupancy. The doubts once held as to the status of New South Wales as a penal settlement (see Bentham, Works, vol. iv.) must now be regarded as set at rest by the decision of the Privy Council in Cooper v. Stewart.1 The sources of the law common to all these colonies are the following: The laws of England at the time of the settlement (or some date fixed by statute in lieu thereof) so far as they are applicable to the conditions of an infant colony. "It hath been held that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being which are the birthright of every English subject are immediately in force (Salkeld, 411, 666). But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English Law as is applicable to their own situation and the condition of an infant colony."2 The "Laws of England" include the Statute Law as well as the Common Law; the law so imported is what is sometimes called the Common Law of the colony. The applicability of any law according to the principle laid down is mainly a question for judicial determination, but this class of laws falls completely within the power of the Colonial Legislature, which may declare what laws are in force and may repeal any of them. 2. ACTS OF PARLIAMENT MADE APPLICABLE.-Acts of Parliament made applicable to the colony either in common with other dominions of the Crown or specially, whether by express words or necessary intendment-these Acts are of paramount obligation. The expression made applicable to the colony requires some explanation. In the first place it excludes those Acts of Parliament 1(1889) 14 App. Cas. 286. 2 Blackstone, Com., i. 107. which, being part of the general law of England applicable to the circumstances of the colony, are received at its settlement as part of its common law; and it includes all Acts by which Parliament intends to bind the colonies, whether these Acts were passed before or after the settlement of the colony. In the second place, an Act of the Imperial Parliament may relate to a colony without being in force there, just as it may relate to a foreign country. An Imperial Act may relate or refer to persons, to things situated, to acts done, or to events happening in а colony or foreign country; but the enforcement of the regulation established by the Act may belong to the English Courts alone, and be limited by the powers of those Courts to make their orders effective. The colonies, through their inhabitants and in other ways, receive by many statutes certain favourable treatment in England and in English Courts, either absolutely or upon terms of reciprocity, e.g. by the Colonial Attorneys Relief Act, 1857, and the Amendment Act, 1884, the Colonial Probates Act, 1892, and the Finance Act, 1894. These and the like Acts are very commonly regarded as "in operation in the colony"; they are in fact "in operation in England in respect to the colony." The importance of this distinction is obvious, but it was ignored by those who compared the financial proposals of the Chancellor of the Exchequer in 1894 with the Stamp Act of 1765 and the Tea Duty of 1770. Again, the Wills Act, 1861, §§ 1 and 2, affects wills made in the colonies and wills of persons domiciled in the colonies, but only for the purpose of admitting them to probate in England or Ireland, and in Scotland to confirmation. The Bankruptcy Acts and the Companies Acts illustrate the two different kinds of operation. The Bankruptcy Acts vest in the trustee the debtor's property everywhere in such a way that the trustee's title is enforceable in all parts of the British Dominions, and a discharge in bankruptcy in England is a discharge in a paramount jurisdiction, recognized and enjoyed in all See Lewis, Government of Dependencies, p. 201. parts of the British Dominions. On the other hand, in the winding up of a company in England, while the English Court will treat its orders as affecting all colonial property of the debtor, and as binding all his colonial creditors, the operation of these orders is limited by the power of the English Court to give effect to them, and any recognition they may obtain in the colonies is due, not to any paramount jurisdiction, but to the "comity of nations."2 The general rule that Acts made applicable to a colony cannot be repealed or varied save by the Imperial Parliament is occasionally excluded by a provision giving special power to the Colonial Legislature to enact as if the Act had not been passed and to alter or vary it, e.g. Coinage Act, 1853, or to repeal the Act or some part of it as the provisions of the Merchant Shipping Act, 1894, relating to ships registered in the possession (§ 735). 3. STATUTORY ORDERS AND REGULATIONS.-Orders or Regulations made by the Crown in pursuance of Acts of the Imperial Parliament to which they are equal in authority. These Orders (a) Put an Act into operation in a colony, the Act being in terms postponed in the case of such colony until an Order is made. This is the commonest case, and many illustrations might be given, e.g. Colonial Courts of Admiralty Act, 1890, in the case of four colonies scheduled. (b) Suspend the Act or a portion of it, or apply it with modifications in the case of a colony, generally on the ground that the Legislature of the Colony has made suitable provision for carrying out the purposes of the Act, e.g. the Extradition Act, 1870, § 18; Coinage Act, 1853; Colonial Copyright Act, 1847; International Copyright Act, 1886, $8, sub. §3; Patents, Designs, Trademarks Act, 1883, § 104. (c) Supplement the Act, e.g. The Charters of Justice of New South Wales, 1823, and Tasmania, 1831. 1 Ellis v. M'Henry, L. R. 6, Č.P. 228. New Zealand Loan and Mercantile Agency Co., Ltd., v. Morrison, L. R. 1898, A. C. 349. |