mother country, but distinct though dependent) dominions. In general, they are either gained from other states by conquest or treaty; or else they are acquired by right of occupancy only, that is, by finding them desert and uncultivated, and peopling them from the mother country. [Both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies with respect to the laws by which they are bound.] For in conquered or ceded countries that have already laws of their own, these laws remain in force until changed by competent authority (u), and the common law of England, as such, has no allowance or authority there: while, on the other hand, [it hath been held (v), 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 subject (x)—are immediately there in force. 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; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force.] The sovereign exercises, as to colonies of every descrip (u) Campbell v. Hall, Cowp. 204; 2 P. Wms. 75; Rex v. Vaughan, 4 Burr. 2500. It has been said that the position laid down in the text is subject to the exception of such laws 86 as are contrary to the Christian religion or natural morality;" (Cal vin's case, 7 Rep. 17 b;) but that doctrine is of questionable authority. (Campbell v. Hall, ubi sup.) (v) Blankard v. Galdy, Salk. 411; S. C. 4 Mod. 215; Smith v. Brown, Salk. 666. (x) See 2 P. Wms. 75. tion, the right of appointing governors, and of issuing warrants for the appointment of officers, whether judicial or administrative (y). The right of legislation, too, is in some cases vested in the Crown; for any colony which has been acquired by conquest or cession is subject to such laws as the sovereign in council may impose (z), or to such as may be imposed by any legislative council established in the colony under the royal authority. This does not extend, however, to colonies acquired by occupancy for in these the Crown possesses no such legislative right. The sovereign may, nevertheless, in any colony, however acquired, direct the governor to summon a representative assembly, from among the inhabitants themselves, for the purpose of interior legislation; and it is an established principle, that a conquered or ceded colony, to which the Crown has once thus granted a representative legislature, is no longer subject to legislation by the Crown (a). Such would seem, in a general point of view, to be the extent of the royal power in the colonies acquired either by conquest, cession or occupancy; but in connection with this subject, it is proper also to notice the Act of 6 & 7 Vict. c. 94, passed, as it would appear, chiefly to provide for places acquired by other means, by which, - after reciting that, "by treaty, capitulation, grant, usage, "sufferance, and other lawful means, her majesty hath "power and jurisdiction within divers countries and places "out of her dominions, and that doubts had arisen how (y) As to the colonial church estalishment, we may observe here, that, of late years, bishops have been ap. pointed for the colonies; as to whom see 59 Geo. 3, c. 60; 3 & 4 Vict. c. 33; 5 & 6 Vict. c. 4, c. 119; 15 & 16 Vict. cc. 52, 53, 88; 16 & 17 Vict. c. 49; 19 & 20 Vict. c. 115, s. 4. The following are colonial dioceses-Calcutta, Madras, Bombay, Colombo, Mauritius, Victoria (Hong Kong), Labuan, Cape Town, Sierra Leone, Natal, Graham's Town, (z) Calvin's case, 7 Rep. 17 b; Campbell v. Hall, Cowp. 211. (a) Campbell v. Hall, ubi sup.; Att. Gen. v. Stewart, 2 Meriv. 158. "far the exercise of such power and jurisdiction was con"trolled by and dependent on the laws and customs of "this realm, and that it was expedient that such doubts "should be removed,"-it was enacted, that it shall be lawful for her majesty to exercise any power or jurisdiction that she may have within any country or place out of her dominions, in the same and in as ample a manner as if such power or jurisdiction had been obtained by cession or conquest: and that everything done in pursuance of such power or jurisdiction, in any place out of her majesty's dominions, shall within her dominions be deemed to be, to all intents and purposes, as valid as if done according to the local law then in force within such place; and further, that if in any proceedings, civil or criminal, it shall become necessary, in the opinion of the presiding judge, to produce evidence of the existence of such power or jurisdiction, questions properly framed shall be transmitted to a principal secretary of state, and his answer shall be final and conclusive evidence of the matters therein contained, and required to be ascertained thereby (b). Such being the nature of the authority of the Crown in our colonial possessions (as to which authority we may add that it is exercised through the agency of a principal secretary of state, called secretary of state for the colonies), it is almost superfluous to remark that they are all, under all circumstances and whatever may be their political constitution, subject to the legislative control of the British parliament. It was the exercise by parliament of this general right, for the particular purpose of raising a revenue by colonial taxation, that led to that famous dispute between the mother country and her North American provinces, which ultimately terminated in their independence (c). The existence of the right in this, as in other (b) 6 & 7 Vict. c. 94, s. 3. See 20 & 21 Vict. c. 75, to confirm an order in council concerning the ex. ercise of jurisdiction in matters arising within the kingdom of Siam. (c) By 22 Geo. 3, c. 46, his majesty was empowered to conclude a truce or peace with these colonies; cases, was during the controversy asserted by an act of the 6 Geo. III. c. 12, which declares that all his majesty's colonies or plantations in America are, and of right ought to be, subordinate to, and dependent upon, the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatever. It was, however, ultimately thought expedient to disclaim the exercise of the power of taxation as regarded America: it being declared by another act of the British legislature, (18 Geo. III. c. 12,) that, from and after the passing thereof, the king and parliament of Great Britain will not impose any duty, tax, or assessment whatever payable in any of his majesty's colonies, provinces, or plantations in North America, or the West Indies, except only such duties as it may be expedient to impose for the regulation of commerce (d);—the net produce of such duties to be always paid and applied to and for the use of the colony, province or plantation in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts or general assemblies of such colonies, provinces, or plantations, are ordinarily paid and applied. Though it is competent to parliament to legislate for the colonies, yet a colony is not considered as affected by acts of parliament passed after its acquisition, and while it is subject to other legislative authority, (whether that of the sovereign in council, or of a local council or assembly,) unless it be mentioned in the Act, by name, or by general description, such as "the colonies," or "the West Indies" (e); or unless the Act be, in its nature, obviously in and by a definitive treaty signed at Paris, 3rd September, 1783, acknowledged the United States of America to be free, sovereign and independent. (d) See the recital on this subject in the 31 Geo. 3, c. 31, s. 46, relative to Canada. (e) See Blankard v. Galdy, 4 Mod. 215; 2P.Wms. 75; Rex v. Vaughan, 4 Burr, 2500. tended to affect all our possessions. But, in a colony acquired by occupancy, Acts passed before its acquisition come into force immediately upon that event, as part of the general law of England, (as to all provisions at least not unsuitable to its social circumstances)-though it is otherwise in the case of a colony won by conquest or cession, which remains (as we have seen) subject to its own pre-existing laws, and is not in general affected by statutes of the united kingdom passed before its acquisition. Such being the general principles of law applicable to colonies, we may next advert to the actual constitution of those which at present belong to the British Crown (ƒ). Africa (Coast of), 6 & 7 Vict. c. 13; 21 & 22 Vict. c. 35; 23 & 24 Vict. c. 121. America (certain North Western territories of), 22 & 23 Vict. c. 26. Australian Colonies, 13 & 14 Vict. c. 59; 18 & 19 Vict. c. 56; 25 & 26 Vict. c.11. Australia (South), 4 & 5 Will. 4, c. 95; 1 & 2 Vict. c. 60; 5 & 6 Vict. c. 61; 18 & 19 Vict. c. 56; 24 & 25 Vict. c. 44. Australia (Western), 10 Geo. 4, c. 22; 9 & 10 Vict. c. 35. British Columbia, 21 & 22 Vict. c. 99; 22 & 23 Vict. c. 26, ss. 1, 2, 4. Canada, 43 Geo. 3, c. 138; 1 & 2 Geo. 4, c. 66; 3 & 4 Vict. c. 35; 5 & 6 Vict. c. 118; 10 & 11 Vict. c. 71; 11 & 12 Vict. c. 56; 14 & 15 Vict. c. 63; 16 & 17 Vict. c. 21; 17 & 18 Vict. c. 118; 18 & 19 Vict. c. 56; 19 & 20 Vict. c. 23; 20 & 21 Vict. c. 34; 22 & 23 Vict. c. 10, c. 26. Falkland Islands, 6 & 7 Vict. c. 13; 23 & 24 Vict. c. 121. Hong Kong, 6 & 7 Vict. c. 80; 22 & 23 Vict. c. 9. Ionian States, 20 Vict. c. 4; 23 & 24 Vict. c. 86. New Brunswick, 20 & 21 Vict. c. 34. Newfoundland, 5 & 6 Vict. c. 120; 9 & 10 Vict. c. 3, c. 45; 10 & 11 Vict. c. 1, c. 44; 12 & 13 Vict. c. 21. New South of Wales Island, Singapore and Ma- 24 & 25 Vict. c. 44. |