UNIVERSITY OF THE WEST INDIES FACULTY OF LAW Law and Legal Systems Wor s!eet No " T!

e H#stor#$al De%elo&ment o' Commonwealt! Car#((ean Legal Systems Case Notes

D) Note: Colonies are classified either as i) settled or ii) conquered or ceded. The extent to which the territory had already been civilised at the time of takeover will determine the classification. If there was no o ulation or no form of !overnment considered civilised and reco!ni"ed in international law# ossession is considered to be by settlement. $here there was an or!anised society to which international ersonality is attributable# acquisition is considered to be by conquest or cession % see &alsburys 'aws of (n!land )th ed.# vol. * ara +,,. T!e e*tens#on o' Engl#s! law to t!e $olon#es Settled terr#tory Rex v Samuel Vaughan 34onday 05th 6ov. 75*1) ) -.//. 0)12 under the ?reat @eal of (n!land; and therefore must be !overned by the laws of (n!land. @o that it turns u on the common law. <nd the first consideration is# whether a !reat officer# at the head of the Treasury# and in the Ain!s confidence# sellin! his interest with the Ain!# in rocurin! an office# be not !uilty of a crime.> D) Note: It is a arent that 'ord 4ansfield treated 9amaica as a settled colony. Brom the assa!e quoted# the followin! ro ositions are established: i) . on settlement# all (n!lish statute and common law extend and a ly to the colony; ii) This is sub8ect to the roviso that the (n!lish law is ada ted to the circumstances of the new colony. This is referred to as the local circumstances rule# considered in !reater detail below; iii) <cts of the (n!lish =arliament assed after :a colony is lanted> do not extend to the colony unless ex ressly so stated in the le!islation. Levy & Wood v Administrator of Cayman Islands C7120D7151E CI'/ )0 the

In the course of 8ud!ment in this case# the court considered whether an (n!lish statute or the common law of (n!land a lied to 9amaica in the circumstances of the case. 'ord 4ansfield said 3at . 02,,): :The ar!ument is stron!# that these statutes do not extend to 9amaica; thou!h they were enacted lon! before that island belon!ed to the Crown of (n!land. If 9amaica was considered as a colony# 3which it ou!ht to be# the old inhabitants havin! left the island#) then these statutes are ositive re!ulations of olice# not ada ted to the circumstances of a new colony; and therefore no art of that law of (n!land which every colony# from necessity# is su osed to carry with them at their first lantation. 6o <ct of =arliament made after a colony is lanted# is construed to extend to it# without ex ress words shewin! the intention of the 'e!islature to be :that it should.> -ut here# the office is !ranted by letters atent

The <dministrator# on behalf of the ?overnment of the Cayman Islands# brou!ht an action in the ?rand Court a!ainst 'evy and $ood for dama!es for tres ass and sou!ht a declaration of ownershi of the land in dis ute. The <dministrator submitted that 3a) for u wards of F, years it had been in quiet# undisturbed ossession of the land and had from time to time exercised acts of ownershi over it; 3b) the Cayman Islands bein! a settled colony# the common law of (n!land 3the law of its first settlers) a lied and# therefore# the ownershi of the land was vested in the ?overnment# sub8ect only to such estates as mi!ht have been !ranted to ersons subsequent to its settlement. The Court of < eal of 9amaica held that# in

rinci le# all land in the Cayman Islands belon!ed to the ?overnment sub8ect only to such estates as mi!ht have been !ranted to ersons subsequent to its settlement as a colony. Gwnershi by the ?overnment was the natural consequence of the introduction of the common law of (n!land by the first settlers of the Islands. DUFFUS+ Ag, -, said# at . )*: :I am satisfied that the Cayman Islands must be re!arded as settled territory# and that the ersons who settled in the Cayman Islands must be deemed to have taken with them to the Cayman Islands the common law of (n!land when they first settled here in the early 75 th century. H.Gwnershi of land is vested in the ?overnment of the Cayman Islands sub8ect only to such estates as may have been !ranted to any erson or ersons subsequent to the settlement of that colony. It is my view that the a ellants in this case failed# as I stated before# to show any title whatever to the land# the sub8ect of this a eal. The title# therefore# is vested in the ?overnment.> Blades v Jaggard 371*7) ) $I/ 0,5 =er @toby C.9. 3at .07,D070):

$here a new and uninhabited country is discovered by sub8ects of the Ain!# they carry their laws with them# includin! such# if any# of the ecclesiastical laws as are bindin! on them# and# in the absence of any ex ress rovision# any church then and there constituted by them is prima facie resumed to be or!anised on the basis of those laws# so far as they are a licable in the articular case. HH< further inference to be drawn from the Natal case 337+*2)# F 4oo =CC6@ 772# 2 6ew /e )57# 70 'T 7++# 77 9ur 6@ F2F# 7F $/ 2)1# 7* (/ )F# =C# 77 Ki!est 3/e l) 2+)) is that where there is an (stablished Church# ecclesiastical 8urisdiction is acquired; and in a settled colony ecclesiastical law will flow. @ome su ort for this view will be found in the 8ud!ment of ?oddard# 'C9# in Terrell v Secretary of State for the Colonies 3C712FE 0 <ll (/ )1,# 15 @ol 9o 2,5# + Ki!est 3/e l) 51F) 3C712FE 0 <ll (/ at )1F). &e said: The doctrines relatin! to the a lication of (n!lish law to territories acquired by the Crown are to be found in -lackstones Commentaries# Jol 7 37,5)# and his statement of the law was a roved in Cooper v Stuart 337++1)# 7) < Cas 0+*# 2 6@$$6 7FF# =C# 77 Ki!est 3/e l) *2*). The mode of acquisition may vitally affect the a lication# or# at least# the extent of the a lication# of (n!lish law to the acquired territory. If# at the time of annexation by cession or conquest# there exists there a system of law# that will be the law of the country until it is altered by le!islation# but there may exist a system of law ada ted to the requirements of a native o ulation but unsuitable for (n!lish settlers# in which case the settlers will carry the (n!lish law with them# at least so far as is necessary to the conditions of the new colony# as in the case of the settlement of unoccu ied territory. If then the settlers found no system of law at all# and there is evidence that they introduced the common law as well as the ecclesiastical law or that the Church of (n!land became the (stablished Church# the rinci le enunciated in the Natal case 337+*2)# F 4oo =CC6@ 772# 2 6ew /e )57# 70 'T 7++# 77 9ur 6@ F2F# 7F $/ 2)1# 7* (/ )F# =C# 77 Ki!est 3/e l) 2+)) has no a lication to -arbados. In the Natal case 337+*2)# F 4oo =CC6@ 772# 2 6ew /e )57# 70 'T 7++# 77 9ur 6@ F2F# 7F $/ 2)1# 7* (/ )F# =C# 77 Ki!est 3/e l) 2+)) the settlers found a native o ulation to whom ecclesiastical law would be re u!nant. In -arbados the settlers found no native o ulation. They were (n!lish eo le who desired to carry on and maintain the traditions of the mother country.>

:@uch# then# was the state of the law in (n!land when the settlers arrived in -arbados in 7*02. $hat law did they brin! with themI The law is stated thus in 7F &alsburys 'aws 3Frd (dn)# 7*: The introduction of (n!lish 'aw into a colony does not carry with it (n!lish (cclesiastical 'aw. The followin! assa!e occurs in 2 &alsburys 'aws 3Frd (dn)# *15: The common law of (n!land and the statute law existin! at the date of the formation of the colony a ly to colonies acquired by settlement# but statutes subsequently enacted do not a ly unless they are ex ressly a lied. This rinci le is# however# sub8ect to this restriction# that so much only of the law of (n!land is carried with them by the colonists as is a licable to their situation and the condition of an infant colony. Thus# while the !eneral laws of inheritance and of rotection from ersonal in8uries are introduced# it is not so with enactments relatin! to the ro erty of a !reat and commercial nation# to olice and revenue# the (stablished Church# ecclesiastical courts# and similar sub8ects# which are ina licable to the colonial circumstances. Gn the other hand# the Birst (dition of this work# Jol 77# )+*# contains this assa!e:

customs and im ort duties# hitherto collected u on !oods im orted and ex orted into and out of the said island# under the authority of &is 4ost Christian 4a8esty.> Con./ered terr#tory Camp ell v !all 0755)) 7 CG$=. 0,). This was an action that was brou!ht in ?renada by the laintiff 9ames Cam bell to recover from the defendant# $illiam &all# a duty of four and a half er cent. u on all !oods and su!ars which Cam bell had ex orted from the island of ?renada# and which &all# as the collector of &is 4a8estys taxes# had collected from him. Cam bell claimed that the money was aid to &all without any consideration since the duty had been im osed by lawful or sufficient authority. The island of ?renada was taken by the -ritish arms# in o en war# from the Brench Ain!. .nder the <rticles of ca itulation# it was a!reed that ?renada would continue to be !overned by its existin! laws :until &is 4a8estys further leasure be known.> -y =roclamation under the ?reat @eal dated the 5th of Gctober# 75*F# &is 4a8esty !ave ower to the !overnor of ?renada# with the consent of the Ain!s councils# and the re resentatives of the eo le summoned in !eneral assemblies# to make# constitute# and ordain laws# statutes# and Grdinances# for the ublic eace# welfare# and !ood !overnment of ?renada and the inhabitants thereof# as near as may be a!reeable to the laws of (n!land# and under such re!ulations and restrictions# as are used in his 4a8estys colonies. &owever# before the arrival of the ?overnor in ?renada and before the summonin! of the assemblies# his 4a8esty issued letters atent under the ?reat @eal# dated the 0,th 9uly# 75*)# which# after recitin! that# in -arbados# and in all the -ritish 'eeward Islands# there was a duty of four and an half er cent u on all su!ars# Lc. ex orted; and that it was reasonable and ex edient# and of im ortance to his ma8estys other su!ar islands# that the like duty should take lace in ?renada# roceeded as follows: :$e have thou!ht fit# and our /oyal will and leasure is# and we do hereby# by virtue of our rero!ative /oyal# order# direct# and a oint# that from and after the 01th day of @e tember next ensuin! the date of these resents# a duty or im ost of four and a half er cent. in s ecie# shall be raised and aid to us# our heirs and successors# u on all dead commodities# the !rowth and roduce of our said island of ?renada# that shall be shi ed off from the same# in lieu of all The question was whether the letters atent under the ?reat @eal was !ood and valid to abolish the reDexistin! Brench duties and in lieu thereof to im ose the four and half er cent duty. 'ord 4ansfield held that since under the roclamation of 5th Gctober 75*F the Ain! had vested le!islative ower in the assemblies with the consent of the !overnor and council# he had divested himself of the ower to make law for ?renada with the result that the letters atent establishin! the four and a half er cent duty was invalid and void. 'ord 4ansfields reasons a ear in the followin! ara!ra hs 3at .0,+D07F): :< country conquered by the -ritish arms becomes a dominion of the Ain! in the ri!ht of his Crown; and# therefore# necessarily sub8ect to the 'e!islature# the =arliament of ?reat -ritain. The 0d is# that the conquered inhabitants once received under the Ain!s rotection# become sub8ects# and are to be universally considered in that li!ht# not as enemies or aliens. The Fd# that the articles of ca itulation u on which the country is surrendered# and the articles of eace by which it is ceded# are sacred and inviolable accordin! to their true intent and meanin!. The )th# that the law and le!islative !overnment of every dominion# equally affects all ersons and all ro erty within the limits thereof; and is the rule of decision for all questions which arise there. $hoever urchases# lives# or sues there# uts himself under the law of the lace. <n (n!lishman in Ireland# 4inorca# the Isle of 4an# or the lantations# has no rivile!e distinct from the natives. The 2th# that the laws of a conquered country continue in force# until they are altered by the conquerorH.. In the resent case the ca itulation ex ressly rovides and a!rees# that they shall continue to be !overned by their own laws# until &is 4a8estys further leasure be known. The *th# and last ro osition is# that if the Ain! 3and when I say the Ain!# I always mean the Ain! without the concurrence of =arliament#) has a ower to alter the old and to introduce new laws in a conquered country# this le!islation bein! subordinate# that is# subordinate to his own authority in =arliament# he cannot make any new chan!e contrary to fundamental rinci les : he cannot exem t an inhabitant from

that articular dominion; as for instance# from the laws of trade# or from the ower of =arliament# or !ive him rivile!e exclusive of his other sub8ectsHH. It is left by the constitution to the Ain!s authority to !rant or refuse a ca itulation : if he refuses# and uts the inhabitants to the sword or exterminates them# all the lands belon! to him. If he receives the inhabitants under his rotection and !rants them their ro erty# he has a ower to fix such terms and conditions as he thinks ro er. &e is intrusted with makin! the treaty of eace: he may yield u the conquest# or retain it u on what terms he leases. These owers no man every dis uted# neither has it hitherto been controverted that the Ain! mi!ht chan!e art or the whole of the law or olitical form of !overnment of a conquered dominionHH.. 6o question was ever started before# but that the Ain! has a ri!ht to a le!islative authority over a conquered country; it was never denied in $estminsterD&all; it never was questioned in =arliament. Cokes re ort of the ar!uments and resolutions of the 9ud!es in Calvins case# lays it down as clear. If a Ain! 3says the book) comes to a kin!dom by conquest# he may chan!e and alter the laws of that kin!dom; but if he comes to it by title and descent# he cannot chan!e the laws of himself without the consent of =arliament. -ut HH.. after full consideration we are of o inion# that before the letters atent of the 0, th 9uly# 75*)# the Ain! had recluded himself from the exercise of a le!islative authority over the island of ?renada. The first and material instrument is the roclamation of the 5th Gctober# 75*F. @ee what it is that the Ain! there says# with what view# and how he en!a!es himself and led!es his wordHH Mou observe# there is no reservation in the roclamation of any le!islature to be exercised by the Ain!# or by the !overnor and council under his authority in any manner# until the assembly should meet H.. $e therefore think# that by the two roclamations and the commission to ?overnor 4elville# the Ain! had immediately and irrecoverably !ranted to all who were or should become inhabitants# or who had# or should acquire ro erty in the island of ?renada# or more !enerally to all whom it mi!ht concern# that the subordinate le!islation over the islands should be exercised by an assembly with the consent of the !overnor and council# in like manner as the other islands belon!in! to the Ain!.> D) Note: $hat this case decides is that the

Ain!# havin! romised to the inhabitants a local le!islature# and havin! by his commission to the !overnor authorised the convocation of an assembly# could not afterwards im ose a tax on the island# or exercise any le!islative authority over it. Shillingford v A"#" of $omini%a 371*5) 70 $I/ 25 'ike ?renada# Kominica was taken from the Brench by the -ritish. Kominica was also the sub8ect# alon! with ?renada# of the /oyal =roclamation of 5 Gctober 75*F by which ower was !iven to the ?overnor to summon a !eneral assembly and with the consent of the council and the assembly to make laws for the ublic eace and welfare of the Colony. -efore the assembly could meet and before any laws were made locally# the 6ullum Tem us <ct was assed in (n!land. The question in the case was whether in the circumstances that <ct a lied to Kominica. The Court of < eal of the $est Indies <ssociated @tates held that it did not a ly since after the =roclamation of 75*F laws made in (n!land ceased to a ly to the colonies exce t where ex ressly stated to so a ly. The reasonin! of the court a ears in the followin! extracts. =er < 4 'ewis C.9. 3at . 57D50):

:The ar!ument 3that the 6ullum Tem us <ct a lied to Kominica) was founded on a /oyal =roclamation of 5 Gctober 75*FHH This =roclamation# after recitin!# inter alia# that the <merican territories secured to the Crown by the Treaty of =eace of Bebruary 75*F had been erected into four se arate ?overnments# one of which# the ?overnment of ?renada# included Kominica; declared that rovision had been made by letters atent for the summonin! of a !eneral assembly# with ower to the ?overnor# with the consent of the council and assembly# to make laws for the ublic eace and welfare of the said Colony# :as near as may be a!reeable to the laws of (n!land ... and in the meantime# and until such <ssemblies can be called...> em owered the ?overnor to constitute courts :for the hearin! and determinin! all causes# as well Criminal as Civil# accordin! to law and equity and as near as may be a!reeable to the laws of (n!land....> It was submitted for the a ellant that by virtue of this roclamation the Nullum Tempus <ct# enacted in (n!land in 75*1# became art of the law of Kominica. In my o inion the effect of this roclamation was to authorise the courts which were to be set u to administer 8ustice accordin! to the common law and equity and such statutes as existed at the time of the roclamation in so far as such statutes were !eneral re!ulations equally a licable to any country !overned by (n!lish law# and were not statutes which# havin!

!rown out of local circumstances in ?reat -ritain# were intended to have a local o eration only. 3@ee A-G v Stewart 337+75)# 0 4er 7)F# F2 (/ +12)# in which the effect of this roclamation to ?renada was discussed.) Thou!h Kominica was sub8ect to the control of =arliament# statutes assed after the romul!ation of the roclamation would not# in my o inion# extend to Kominica without ex ress words showin! the intention of =arliament that they should.> =er ?ordon 9.<. 3at . +,): :In so far as the !round of a eal relatin! to the Crown @uits <ct 75*1 3Nullum Tempus <ct) is concerned# consideration must be !iven to the text of the =roclamation by which Kominica was ceded to the Crown in 75*F. In that document it is s ecifically stated that: ...we have also !iven ower to the said ?overnors# with the consent of our said Councils# and the /e resentatives of the =eo le so to be summoned as aforesaid# to make# constitute and ordain 'aws# @tatutes and Grdinances for the ublic eace# welfare and !ood !overnment of our said Colonies# and of the eo le and inhabitants thereof# as near as may be a!reeable to the laws of (n!land# and under such re!ulations and restrictions as are used in other Colonies; and in the meantime# and until such <ssemblies can be called as aforesaid# all ersons inhabitin! in or resortin! to our said Colonies# may confide in our /oyal =rotection# for the en8oyment of the benefit of the laws of our /ealm of (n!land;... &avin! re!ard to the definition of the boundaries of :the ?overnment of ?renada> as therein set out# ie :com rehendin! the island of that name# to!ether with the ?renadines# and the Islands of Kominica# @aint Jincent and Toba!o># the fact that the ?renada <ssembly had been summoned in 75*+ and therefore before the Crown @uits <ct 75*1 was assed in the .nited Ain!dom# the Crown @uits <ct 75*1 could only be a licable to Kominica if the <ssembly which had been !iven the ower to make laws had ado ted it. This was not done. I therefore am of the o inion that the Crown @uits <ct 75*1 did not a ly to :the ?overnment of ?renada> which com rehended amon! other islands# the island of Kominica.> =er Cecil 'ewis 9.<. 3at . +FD+)):

claimed by it was barred by *, years adverse ossession on the art of the a ellant and his redecessors in title. The ar!ument which was ut forward was that# althou!h this roclamation was assed in 75*F# no <ssembly for Kominica was duly summoned until 7552. The roclamation dated Gctober 75*F# after recitin! that the ?overnors of certain colonies includin!# inter alia, ?renada# Kominica# @t Jincent# and Toba!o# were directed to call <ssemblies with ower to make laws# continued: and in the meantime# and until such <ssemblies can be called as aforesaid# all ersons inhabitin! in or resortin! to Gur said Colonies# may confide in Gur /oyal =rotection for the en8oyment of the benefit of the laws of our /ealm of (n!land. It was contended that the effect of this rovision in the roclamation was to make the laws of (n!land assed in 75*F and thereafter until the first <ssembly was convened# a licable to Kominica because no <ssembly was established for Kominica until 7552# and as the Nullum Tempus <ct was assed in 75*1 it a lied to Kominica. I do not think this submission is in harmony with the authorities. The true meanin! of this rovision in the roclamation is that it a lied to Kominica the laws of (n!land which were in force at the date of the roclamation. This view is su orted by the followin! quotation from 2 &alsburys 'aws 3Frd (dn)# *1)# ara 7)+,: Effectiveness of English statute law . In some countries the law of (n!land has been a lied by a .nited kin!dom <ct or Grder in Council or a local <ct to the conquered or ceded country. In such an instance the effect is to a ly to the colony the common law and the statute law so far as they existed# either at the date of the a lication or at some other s ecified date# and were not merely in the nature of law of local olicy ada ted solely to (n!land# but were !eneral re!ulations equally a licable to any country !overned by (n!lish law. @tatutes enacted subsequently to the a lication of (n!lish law have no force in the colony# exce t in cases in which it is ex ressly rovided that they shall so a ly... The statement that no <ssembly was convened for Kominica until 7552 seems to be incorrect# for in Clarks Colonial 'aw at 7F2 it is said that :the assembly of Kominica was convened as early as the 7*th 9une 75*+# that bein! the date of the first <ct in the second table refixed to 4r ?losters collections># and in a footnote to this statement it is recorded that in this collection the date assi!ned to each <ct is that of its roclamation by the =rovost 4arshall.

:Gne of the !rounds on which the a ellant resisted the res ondents claim was by invokin! the Nullum Tempus <ct 75*1. &e contended that this <ct a lied to Kominica and that therefore the Crowns ri!ht to recover the lands

< writer of considerable authority on the constitutions of Commonwealth and Colonial territories ex resses a view in conformity with that stated in 2 &alsburys 'aws 3supra). <fter quotin! that ortion of the roclamation a lyin! (n!lish law to Kominica# he said: It seems clear that this was intended to have tem orary o eration and as -ritish title to Kominica was not based on settlement# (n!lish law would not take effect without ex ress a lication. It a ears# however# to be acce ted that the common law and equity are a licable to!ether with (n!lish statute law in force at the time of the roclamation 3 vide Commonwealth and Colonial 'aw# by @ir Aenneth /obertsD$ray# +2,). I am therefore of the o inion that the Nullum Tempus <ct 75*1# does not a ly to Kominica.> &odees'aran v A"#" C715,E <C 7777 at 777* Aodeeswaran# a civil servant# sued the <ttorney ?eneral of Ceylon# as re resentin! the Crown# for the balance of salary due to him. Aodeeswaran was a Tamil and the balance of salary that he claimed to be due to him was an increment which was denied to him because he did not ass a test in the @inhala lan!ua!e. The requirement that he should ass such a test as a condition recedent to his bein! aid the increment was im osed by a Treasury Circular ex ressed to be issued in im lementation of the Gfficial 'an!ua!e <ct# 712* The suit raised constitutional issues on the validity of the <ct and the Treasury Circular# but the resent a eal dealt only with the reliminary issue whether a civil servant had a ri!ht of action a!ainst the Crown for salary due in res ect of services which he had rendered. Ceylon is a former -ritish colony. It had been settled by the Kutch rior to -ritish conquest in 7512. The =rivy Council observed 3at . 777*) that :in the case of most former -ritish colonies which were acquired by conquest or cession# the (n!lish common law is incor orated as art of the domestic law of the now inde endent @tate because it was im osed u on the colony by Grder in Council# =roclamation# or otherwise under the rero!ative owers of the Crown.> In the case of Ceylon# however# the Crown did not im ose (n!lish law. Instead# by =roclamation dated @e tember 0F 7511# it was decreed that the laws subsistin! rior to -ritish conquest were to continue in force. The =roclamation declared that: H.the in the island shall administration of 8ustice and olice H. settlements and territories in the of Ceylon# with their de endencies# be henceforth and durin! &is

4a8estyNs leasure exercised by all courts of 8udicature# civil and criminal# ma!istrates and ministerial officers# accordin! to the laws and institutions that subsisted under the ancient !overnment of the .nited =rovinces# sub8ect to such deviations and alterations by any of the res ective owers and authorities hereinD before mentioned# and to such other deviations and alterations as we shall by these resents# or by any future =roclamation# and in ursuance of the authorities confided to us# deem it ro er and beneficial for the ur oses of 8ustices to ordain and ublish# or which shall or may hereafter be by lawful authority ordained and ublished. The =rivy Council found that there was old established recedent under the common law of Ceylon datin! back more than a hundred years that the relationshi between a civil servant and the ?overnment of the =rovinces was based on contract and that an action did lie at the suit of such a civil servant for remuneration a!reed to be aid to him by the terms of his a ointment and remainin! un aid. <ccordin!ly# since the =roclamation continued the old Kutch law in force# it a eared that Aodeeswaran was on solid !round. &owever# the =rivy Council was of the view that it still had to be determined whether the Ceylonese common law on this oint was com atible with (n!lish rece ts of the relationshi between the Crown and its civil servants. Bortunately for Aodeeswaran# the =rivy Council held that there was no incom atibility and so he could maintain his action. The =rivy Councils reasonin! on this oint a ears in the followin! ara!ra hs 3at . 7775D7771): :-ut even if the relationshi between the ?overnment of the .nited =rovinces and its civil servants in Ceylon had formerly ossessed the le!al characteristics of a contract of service and they had been entitled to sue that !overnment for arrears of salary# it does not follow that a corres ondin! contractual relationshi and ri!ht of suit between the -ritish Crown and its civil servants in Ceylon was created by the =roclamation. <s was ointed out by 'ord @towell in Ruding v Smith 37+07) 0 &a!. Con. F57# when territory is acquired by conquest or cession O... no small ortion of the ancient law is unavoidably su erseded. ... The alle!iance of the sub8ects and all the law that relates to it D the administration of the law in the soverei!n and a ellate 8urisdictions D and all the laws connected with the exercise of the soverei!n authority D must under!o alterations ada ted to the chan!e.O In the Ca e Colony# of which 'ord @towell was s eakin!# /omanDKutch law continued in force

by virtue of a =roclamation almost contem oraneous with that a licable to Ceylon but which omitted any reference to O olice#O OinstitutionsO or Oministerial officers.O What he said( ho'ever( 'ould in their Lordships) vie' apply also to Ceylon to a rogate any rule of la' previously in for%e there under the government of the *nited +rovin%es if it 'as in%ompati le 'ith the British %on%ept of the exer%ise of sovereign authority y the Cro'n" It is therefore necessary to consider first whether the existence of a relationshi which ossessed any of the le!al characteristics of a contract between the Crown and a erson a ointed by the ?overnor in Ceylon to serve in the civil administration of the territory would have offended a!ainst the fundamental conce t of the ri!hts and immunities of the soverei!n at the close of the ei!hteenth century. In their 'ordshi sN view there is no such incom atibility. In the ei!hteenth century the rinci al officers of the executive !overnment of a colony were a ointed directly by the Crown in (n!land by letters atent. This method of a ointment may well have been inconsistent with the creation of a contractual relationshi between the Crown and the a ointee# but the =roclamation was local in its ambit and would not affect the le!al relationshi between these officers and the Crown. It a lied only to subordinate officers in the civil administration of the !overnment of Ceylon who were a ointed locally by the ?overnor and removable by him. It is now well established in -ritish constitutional theory# at any rate as it has develo ed since the ei!hteenth century# that any a ointment as a Crown servant# however subordinate# is terminable at will unless it is ex ressly otherwise rovided by le!islation; but as ointed out by 'ord <tkin in Reilly v The !ing C71F)E <.C. 75*# 7+,# Oa ower to determine a contract at will is not inconsistent with the existence of a contract until so determined.O In Reilly"s case 'ord <tkin# while findin! it unnecessary to ex ress a final o inion as to whether the relationshi between the Crown and the holder of a ublic office was constituted by contract# remarked# at . 751: O... that in some offices at least it is difficult to ne!ative some contractual relations# whether it be as to salary or terms of em loyment# on the one hand# and duty to serve faithfully and with reasonable care and skill on the other.O Their 'ordshi s thus see nothin! inconsistent with -ritish constitutional theory in the ?overnor of Ceylon bein! em owered by the =roclamation of 7511 to enter into a contract on behalf of the Crown with a erson a ointed to an office in the civil administration of the colony as to the salary ayable to him# provided that su%h %ontra%t 'as termina le at 'ill.

It does not follow# however# even if the ?overnor was em owered to enter into contractual relations with a civil servant in the colony as to the ayment of salary# that the servant would have a ri!ht of suit a!ainst the Crown for salary un aid. < !eneral Crown immunity from suit in res ect of obli!ations ex contractu if it existed in the ei!hteenth century in (n!land mi!ht also !ive rise to the inference that notwithstandin! the contractual nature of a civil servantNs claim to salary in Ceylon the soverei!n attribute of immunity from suit was not intended to be waived by the =roclamation. -ut by the ei!hteenth century it had been established that# althou!h no writ could issue a!ainst the soverei!n# moneys due to the sub8ect under a contract with the Crown could be claimed in the (n!lish courts by the rocedure of etition of ri!ht. Their 'ordshi s have not been referred to any case as early as the ei!hteenth century in which a etition of ri!ht was brou!ht by a civil servant for arrears of salary; but in 7+0, it was taken for !ranted by Chitty in The #rerogatives of the Crown that a etition of ri!ht would lie Owhere the Ain! does not ay a debt# as an annuity or wages, etc.# due from him.O This was a work of hi!h authority which would be familiar to the 8ud!es of Ceylon in the first half of the nineteenth century. Stuart Ro$ertson in his Civil #roceedings $y and against the Crown, ublished in 71,+# states cate!orically that O ayment for services rendered may be claimed by etition of ri!htO and cites two such etitions brou!ht in the 7+*,s# of which one was successful and the other settled. It was not until cases decided in 710* and after that any doubt was cast u on this ro osition. Their 'ordshi s will advert to these cases later. It is at resent sufficient to state that# as the (n!lish law stood at the time of the =roclamation# there was no sufficient !round in constitutional theory to 8ustify the inference that the Crown must have intended to de rive a civil servant en!a!ed in Ceylon of any remedy in the courts of that country for arrears of salary# if a remedy had reviously been available under /omanDKutch law as a lied in the island. If# therefore# under the /omanDKutch law# as it was a lied in Ceylon under the ?overnment of the .nited =rovinces# a erson holdin! office in the civil administration of that !overnment was entitled to a remedy in the courts for arrears of salary a!reed to be aid to him# that remedy was reserved by the =roclamation and the laintiff is entitled to avail himself of it as a!ainst the Crown.> 3(m hasis added) D) Note: (ven in a case where the Crown# by =roclamation# continued in force the laws which !overned the territory on conquest# such laws were nevertheless sub8ect to alteration if they :offended a!ainst the fundamental conce t of the ri!hts and immunities of the soverei!n.> In this case# the a licable Ceylonese rule of law

was found not to be incom atible with (n!lish law# rovided that the contract between the civil servant and the -ritish Crown was terminable at will. To that extent# existin! Kutch law was modified des ite the terms of the =roclamation which a eared to continue Kutch law in force without qualification. Engl#s! law re$e#%ed as a res/lt o' a lo$al stat/tory &ro%#s#on Jemmott v +hang 371*F) * $I/ ++

the ?amin! <ct# 7+)2# it must be deemed to have been enacted and to be continuin! in force in Trinidad since 7 4arch 7+)+; and 3ii) by virtue of s 7+ of the ?amin! <ct# 7+)2# 9emmotts claim to recover his winnin!s from =han! was not maintainable. $oodin! C.9. said 3at . +1D1,):

=han! carried on the business of a bettin! ool. Gn the second day of the (aster race meetin! at .nion =ark# 9emmott laced bets a!!re!atin! P0), on the second race at =han!s ool and in the result won P2#2F0.2,. =han! refused to ay 9emmott his winnin!s# alle!in! that he had laced his bet after and not before the race and in the result 9emmott the resent action to recover the money he won. In answer to 9emmotts claim# =han! relied solely u on s 7+ of the .nited Ain!dom ?amin! <ct# 7+)2 which rovided as follows: <ll contracts or a!reements# whether by arole or in writin!# by way of !amin! or wa!erin!# shall be null and void; and no suit shall be brou!ht or maintained in any court of law or equity for recoverin! any sum of money or valuable thin! alle!ed to be won u on any wa!er# or which shall have been de osited in the hands of any erson to abide the event on which any wa!er shall have been made. =han! contended that section 7+ of the ?amin! <ct was a licable in Trinidad and Toba!o by virtue of s 71 of the 9udicature Grdinance# Ca F which was on <u!ust F7 71*0# re ealed# and re laced by s 70 of the 9udicature <ct# 6o 70 of 71*0. @ection 70 of the 9udicature <ct rovides as follows: @ub8ect to the rovisions of any enactment in o eration on the 7st of 4arch# 7+)+# and to any enactment assed after that date# the Common 'aw# Koctrines of (quity# and @tatutes of !eneral a lication of the Im erial =arliament that were in force in (n!land on that date shall be deemed to have been enacted and to have been in force in Trinidad as from that date# and in Toba!o as from the 7st of Bebruary# 7++1. The Trinidad and Toba!o &i!h Court held that 3i) the ?amin! <ct# 7+)2 is a statute of the Im erial =arliament and was in force in (n!land on 7 4arch 7+)+. Its a lication was clearly intended to be !eneral and as there was no enactment either in o eration in Trinidad on 7 4arch 7+)+# or assed after that date# which ne!atived or otherwise affected the o eration of

:The .nited Ain!dom =arliament was# in my o inion# a tly desi!nated the Im erial =arliament because# until the @tatute of $estminster# 71F7 C.AE# it was com etent in its own discretion to ass le!islation affectin! all or any of &er 4a8estys ossessions# wherever situate. Indeed# as is well known# it was the resistance of the thirteen 6orth <merican colonies to the attem ts to enforce its tax im ositions which s arked the revolution that !ave birth to the .nited @tates of <merica as an inde endent re ublic. -ut even the @tatute of $estminster did not wholly de rive the .nited Ain!dom =arliament of all its le!islative authority in the dominions to which the @tatute a lied because# by s ) thereof# it was rovided that no <ct assed by that =arliament after its enactment :shall extend# or be deemed to extend# to a Kominion as art of the law of that Kominion unless it is ex ressly declared in that <ct that that Kominion has requested# and consented to# the enactment thereof>. 4oreover# exce t for the selfD!overnin! dominions therein s ecifically named# the .nited Ain!dom =arliament thereafter continued to be constitutionally com etent# if and whenever it mi!ht be deemed a ro riate# to enact le!islation havin! force and effect in the de endent or notDfullyDinde endent territories under the soverei!nty of the Crown. Instances of the exercise by that =arliament of its im erial le!islative authority are the Co yri!ht <ct# 7177 C.AE# and 3 rovided that &er 4a8esty by Grder in Council shall so direct) the Co yri!ht <ct# 712* C.AE# which re ealed and re laced its redecessor <ct. The ?amin! <ct C.AE is# therefore# a statute of the Im erial =arliament# and it was in force in (n!land on 7 4arch 7+)+. <ccordin!ly# it satisfies two of the conditions rescribed by s 70 of the 9udicature <ct CTE# for its bein! in force in Trinidad. < third condition is that it must be a statute of !eneral a lication. @tatutes are classified as !eneral# local or ersonal# althou!h they may be artly !eneral and artly local. Thus# in R v %ondon County Council 3C7+1FE 0 Q- )2)# *F '9Q- )# *1 'T 2+,# 2+ 9= 07# )0 $/ 7# 1 T'/ *,7# F5 @ol 9o **1# ) / 2F7# C<# )0 Ki!est *,0# 00.) 3C7+1FE 0 Q - at )*0)# -G$(6# ' 9# said: HH.6ow# a !eneral <ct# prima facie# is that which a lies to the whole community. In the natural meanin! of the term it means an <ct of =arliament which

is unlimited both in its area and# as re!ards the individual# in its effects; and# as o osed to that# you !et statutes which may well be ublic because of the im ortance of the sub8ects with which they deal and their !eneral interest to the community# but which are limited in res ect of area%a limitation which makes them localDor limited in res ect of individuals or ersons%a limitation which makes them ersonal. The ?amin! <ct C.AE is but one of a lon! series of enactments be!innin! with the .nlawful ?ames <ct# 72)7 C.AE# desi!ned to discoura!e !amin! in (n!land# and later in ?reat -ritain and 6orthern Ireland. @i!nificantly# its reamble recited that :the laws heretofore made in restraint of unlawful !amin! have been found of no avail to revent the mischiefs which may ha en therefrom# and also a ly to sundry !ames of skill from which the like mischiefs cannot arise>. Its a lication# therefore# was clearly intended to be# and in my 8ud!ment is# !eneral%bein! :unlimited both in its area and# as re!ards the individual# in its effects>. =articularly so# I think# is its s 7+ the terms of which I have already quoted above. The third condition is# therefore# satisfied. There remains a fourth%that no enactment in o eration in Trinidad on 7 4arch 7+)+# or none assed after that date# ne!atives or otherwise affects the o eration and effect of the ?amin! <ct C.AE in Trinidad. The only enactment which falls to be considered in this re!ard is the =ool -ettin! Grdinance# Ca F,# 6o 07 CTE# as amended by Grdinance 6o 5 of 7127 CTE.> $oodin! C.9. went on to find that the =oll -ettin! Grdinance did not ne!ative or affect section 7+ of the .A ?amin! <ct. T!e lo$al $#r$/mstan$es r/le W!ere t!e need to a$$ommodate lo$al $#r$/mstan$es #s e*&ressly &ro%#ded 'or Jex v ,%&inney 37++1) 7) < .Cas.55

O$herever by this Grdinance# or any other <ct or Grdinance# it is declared that any Im erial laws shall extend to the Colony# such laws shall be deemed to extend thereto so far only as the -urisdi%tion of the Court and lo%al %ir%umstan%es permit# and sub8ect to any existin! or future <cts or Grdinances of the colonial le!islature.O 3em hasis added) The =rivy Council held that the <ct did not extend to the colony. 'ord &obhouse said 3at . +0): :If the Colonial enactments are to be construed 3as makin! the 4ortmain <ct rima facie a licable)# we are brou!ht back to the question whether the statute of ?eor!e II. is suitable to a youn! (n!lish colony in a new country. The rinci le on which such questions should turn has been laid down by -lackstone in his Commentaries# vol. i. . 7,+. It has been a lied to the statute of ?eor!e II. in two (n!lish decisions# and every 8ud!e who has addressed his mind to the question has come to the same conclusion. In Attorney-General v Stewart, with reference to ?renada# @ir $illiam ?rant# in &hic'er v (ume, with reference to 6ew @outh $ales# 'ord /omilly at the /olls# 'ord 9ustices Ani!ht -ruce and Cranworth in the Court of < eal; 'ord Chelmsford# 'ord Cranworth# and 'ord $ensleydale in the &ouse of 'ords; all decided that the statute was framed for reasons affectin! the land and society of (n!land# and not for reasons a lyin! to a new colony. Their 'ordshi s think the reasonin! on which those decisions are founded is sound reasonin!# and is a licable to -ritish &onduras as the Court below has a lied it. The result is# that the a eal ou!ht to be dismissed# and they will so humbly advise &er 4a8esty. The a ellantNs next friend must ay the costs.> .yali Ltd" v A"#" C7122E <ll (/ *)* at *2F <rticle 72 of the 71,0 Grder in Council of Aenya# which at the time was a -ritish rotectorate# rovided that the civil and criminal 8urisdiction of the courts shall# so far as circumstances admit# be exercised in conformity with the Indian <cts in force in (ast <frica and :so far as the same shall not extend or a ly# shall be exercised in conformity with the substance of the common law# the doctrines of equity# and the statutes of !eneral a lication in force in (n!land on <u!. 70# 7+15 H =rovided always that the said common law# doctrines of equity# and statutes of !eneral a lication shall be in force in the rotectorate so far only as the circumstances of the protectorate and its inha$itants and the limits of (er )a*esty+s *urisdiction permit and su$*ect to such

The question in this case was whether the 4ortmain <ct a lied to -ritish &onduras. 9ex did not assert that the statute was one of those which from their nature should be treated as formin! art of the body of law which (n!lishmen carry with them to a new colony. $hat he asserted is that the statute had been introduced into the Colony by certain Grdinances or <cts of <ssembly assed in the Colony itself. -y an Grdinance which came into force on the 0nd of Gctober# 7+51# it was enacted in sect. 01 as follows:D

,ualifications as render necessary.>

local

circumstances

In relation to the words in italics# Kennin! '.9. said 3at . *2F): :There are# however# the rovisos to be considered. The first says that the common law is only to be in force :so far as the circumstances of the rotectorate and its inhabitants and the limits of &is 4a8estys 8urisdiction ermit.> This roviso does not oust the rero!atives of the Crown. It is lain that the 8urisdiction of the Crown in the rotectorate has been extended so far as to include everythin! connected with the eace# order and !ood !overnment of the area; and the Crown rero!atives certainly come within that descri tion. 4oreover if it were relevant I would add that the ower to !rant a franchise of tolls comes within the very words of the a!reement with the @ultan for it confers on the officers of the -ritish !overnment :full owers in re!ard to the levy of tolls>. The next roviso says# however# that the common law is to a ly :sub8ect to such qualifications as local circumstances render necessary>. This wise rovision should# I think# be liberally construed. It is a reco!nition that the common law cannot be a lied in a forei!n land without considerable qualification. 9ust as with an (n!lish oak# so with the (n!lish common law. Mou cannot trans lant it to the <frican continent and ex ect it to retain the tou!h character which it has in (n!land. It will flourish indeed but it needs careful tendin!. @o with the common law. It has many rinci les of manifest 8ustice and !ood sense which can be a lied with advanta!e to eo les of every race and colour all the world over: but it has also many refinements# subtleties and technicalities which are not suited to other folk. These offDshoots must be cut away. In these far off lands the eo le must have a law which they understand and which they will res ect. The common law cannot fulfil this role exce t with considerable qualifications. The task of makin! these qualifications is entrusted to the 8ud!es of these lands. It is a !reat task. I trust that they will not fail therein.> ,ean'ell v ,ean'ell C71)7E 0 K.'./. at *22 The (n!lish =arliament had assed a statute which extended (n!lish law to 4anitoba. It rovided as follows: :Bor the removal of doubts# &er 4a8esty# by and with the advice and consent of the @enate and &ouse of Commons of Canada# declares and enacts as follows: 7. @ub8ect to the rovisions of the next

followin! section Cwhich deals with interest onlyE the laws of (n!land relatin! to matters within the 8urisdiction of the =arliament of Canada# as the same existed on the fifteenth day of 9uly# one thousand ei!ht hundred and seventy# were from the said day and are in force in the =rovince of 4anitoba# in so far as the same are appli%a le to the said +rovin%eH> 3em hasis added) In this case# the 4anitoba Court of < eal was called u on to determine whether the Act for the #revention of the )arriage of %unatics, -./0, an (n!lish <ct of =arliament# was a licable to 4anitoba. The <ct rovided that H..in case any =erson who has been# or at any time hereafter shall be found a 'unatic by any Inquisition taken or to be taken by virtue of a Commission under the ?reat @eal of ?reat -ritain# or the ?reat @eal of Ireland res ectively H. shall marry before he or she shall be declared of sane mind by the 'ord &i!h Chancellor of ?reat -ritain or Ireland# or the 'ord Aee er or 'ords Commissioners of the ?reat @eal of ?reat -ritain or Ireland HH every such 4arria!e shall be and is hereby declared to be null and void of all Intents and =ur oses whatsoever. The Court held that it did not a ly because it was not intended to be an <ct of !eneral a lication and was not suited to local circumstances. Kennistoun 9.<. said 3at . **,): :Brom what I have said it follows that in my o inion the @tatute of 7+77 is not in force in 4anitoba# either as a marria!e law under the Kominion 8urisdiction# or a law affectin! civil ri!hts under rovincial 8urisdiction# for in neither case is the law of !eneral im ort or a lication# and is quite unsuited to conditions existin! here. 4oreover there is no re resentative of the 'ord Chancellor# or the 'ord Aee er of the ?reat @eal# or trustees of the lunatics erson and estate who can !ive the declaration of sanity required by the <ct.> Trueman 9.<. said 3at . **7D**7):

:In Koe d. &anin!ton v 4cBadden 17+F*)# 0 6.-./. 0*,# Chi man C.9. says 3 . 0*5D+): :The rule laid down by -lackstone is that Colonists carry with them only so much of the (n!lish law as is a licable to their own situation and the condition of an (n!lish colony; such# for instance# as the !eneral rules of inheritance# and of rotection from ersonal in8uries. The same doctrine is maintained by 'ord 4ansfield in /ex v. Jau!han# ) -urr. 0)1)

7,

C1+ (./. F,+E; Cam bell v &all# 'offt *22 C1+ (./. +)+E; 0 &owells @tate Trials 0+1. In the case of The <ttorney ?eneral v @tewart# 0 4er. 7)F CF2 (./. +12E# in which the question was whether the statute of mortmain 31 ?eo. 0# c. F*) extended to the Islands of ?renada# @ir $illiam ?rant# the 4aster of the /olls# also ado ts substantially the same rule# and makes the determination of the oint to de end u on this consideration % whether it be a law of local olicy# ada ted solely to the country in which it was made# or a !eneral re!ulation of ro erty# equally a licable to any country in which it is by the rules of (n!lish law that ro erty is !overned. &e comes to the conclusion that the mortmain act is quite ina licable to ?renada or any other colony# because in its causes# its rovisions# its qualifications# and its exce tions# it is a law wholly (n!lish; calculated for ur oses of local olicy# com licated with local establishments# and inca able# without !reat incon!ruity in the effect# of bein! transferred as it stands into the code of any other country.> HH.. There are two reasons for holdin! that the statute cannot be deemed to have been trans lanted to this =rovince or to form art of our divorce 8uris rudence. Gne is that its machinery would have to be 8ettisoned and other machinery rovided. < further reason is that the substance of the enactment is one for ublic o inion# and action by the com etent 'e!islature# if any.> Leong v" Lim Beng Chye C7122E <.C. *)+ =er 'ord /adcliffe 3at . **2D***):

natural to see somethin! anomalous in the introduction into 4alaya of a s ecial rule of (n!lish law of this kind. -ut (n!lish law itself has been introduced into =enan!# as art of the @traits @ettlements# Oso far as it is a licable to the circumstances of the laceO 12eap Cheah Neo v 3ng Cheng Neo 7,; and# while so much of that law as can be said to relate to matters and exi!encies eculiar to the local condition of (n!land and to be ina licable to the conditions of the overseas territory is not to be treated as so im orted# their 'ordshi s are of o inion that the rocess of selection cannot rest on anythin! less than some solid !round that establishes the inconsistency. <nd it is any solid !round of that sort which is lackin! in this case; not the less when it is recalled that the testator made his will in the (n!lish lan!ua!e# and em loyed in it forms and le!al conce tions that are wholly derived from (n!lish law.> W!ere t!e need to a$$ommodate lo$al $#r$/mstan$es #s not e*&ressly &ro%#ded 'or /he Attorney #eneral v Ste'art 0 4er. 7)) The question in this case was whether the @tatute of 4ortmain# an <ct of the (n!lish =arliament# extended to the island of Grenada The court held that it did not because the ob8ect of the statute was wholly olitical# it havin! !rown out of local circumstances# and bein! intended to have only a local ie (n!lish o eration. The 4aster of the /olls# @ir $illiam ?rant# said 3at . 72+D7*)): :?renada was a conquered colony# in which the Brench laws revailed at the time of the conquest. The Ain! mi!ht undoubtedly abro!ate these# and substitute the laws of (n!land in their lace. <nd it seems to be su osed that this was done by the roclamation of 75*F# which is set forth in the re ortH.. -ut# in whatsoever way the (n!lish law may have been introduced into ?renada# there can be no doubt that it was the received and acknowled!ed law of the island. Bor# thou!h there is no <ct of <ssembly ex ressly reco!nisin! and ado tin! it# there are <cts which lainly im ly that it was considered as havin! been reco!nised and ado ted. <nd# in the courts of 8udicature# it was the (n!lish and not the Brench law that was administered in civil as well as in criminal casesHH $hether the statute of mortmain be in force in the island of ?renada# will# as it seems to me# de end on this consideration % whether it be a law of local olicy ada ted solely to the country in which it was made# or a !eneral re!ulation of ro erty equally a licable to any country in which it is by the rules of (n!lish law that ro erty is !overned. I conceived that the

:It is not difficult to see that the considerations which have influenced the Court of < eal can be lausibly restated in the ro osition that the rule of (n!lish law ou!ht not to be a lied by the courts in 4alaya# havin! re!ard to the differences of race and social custom that se arate the one country from the other. @omethin! like this ro osition was indeed advanced by the res ondentNs counsel in his ar!ument on the a eal. The rule in question# it was said# was a rule of construction only# which# ori!inatin! with an attem t to correct a social malady that revailed in one eriod of the /oman (m ire# had found an ambi!uous and rather restricted lod!in! in one art of the law of (n!land. It would be wron! to resort to it when dealin! with the construction of wills made by residents of 4alaya# many of whom inherit customs and traditions very different from those of the (n!lish race. Their 'ordshi s are far from denyin! that there is force in an ar!ument on these lines. It is very

77

ob8ect of the statute of mortmain was wholly olitical % that it !rew out of local circumstances# and was meant to have merely a local o eration. It was assed to revent what was deemed a ublic mischief# and not to re!ulate# as between ancestor and heir# the ower of devisin!# or to rescribe# as between !rantor and !rantee# the forms of alienation. It is incidentally only# and with reference to a articular ob8ect# that the exercise of the owners dominion over his ro erty is abrid!edH.. The two (n!lish universities# and three !reat (n!lish schools or colle!es# are exem ted from its o eration. This law cannot have the like effect in another country as it has in (n!land. There are some (n!lish ob8ects# in favour of which an (n!lish testator may devise land in mortmain. -ut there are no colonial ob8ects in favour of which a colonial testator could so devise. If there are universities or !reat schools in the colony# this law would not ermit a devise to be made to them. If the le!islature of a colony were dis osed to ado t a similar law# they would surely not transcribe this act# as it stands# into their statute book. They would in all robability s ecify some useful institution or establishment of their own# in favour of which they would made such an exem tion as is made here in favour of the two universities# and the three schools mentioned in the statute# or if they did not think it fit to make an exce tion in favour of their institutions# they surely would not continue the exce tion in favour of the institutions of another country. If this law were in force in ?renada# the consequence would be# that a Testator could not by will !ive an acre of land for the su ort of a school in the island# while he mi!ht !ive his whole estate to au!ment the endowments of an (n!lish colle!eH.. -ut# framed as a mortmain act is# I think it quite ina licable to ?renada# or to any other colony. In its causes# its ob8ects# its rovisions# its qualifications and its exce tions# it is a law wholly (n!lish# calculated for ur oses of local olicy# com licated with local establishments# and inca able# without !reat incon!ruity in the effect# of bein! transferred as it stands into the code of any other country. I am of o inion# therefore# that it constitutes no art of the law of the island of ?renada# and that the (xce tion must consequently be allowed.> Cooper v Stuart 37++1) 7) < .Cas. 0+*

:The extent to which (n!lish law is introduced into a -ritish Colony# and the manner of its introduction# must necessarily vary accordin! to circumstances. There is a !reat difference between the case of a Colony acquired by conquest or cession# in which there is an established system of law# and that of a Colony which consisted of a tract of territory ractically unoccu ied# without settled inhabitants or settled law# at the time when it was eacefully annexed to the -ritish dominions. The Colony of 6ew @outh $ales belon!s to the latter class. In the case of such a Colony the Crown may by ordinance# and the Im erial =arliament# or its own le!islature when it comes to ossess one# may by statute declare what arts of the common and statute law of (n!land shall have effect within its limits. -ut# when that is not done# the law of (n!land must 3sub8ect to wellD established exce tions) become from the outset the law of the Colony# and be administered by its tribunals. In so far as it is reasonably a licable to the circumstances of the Colony# the law of (n!land must revail# until it is abro!ated or modified# either by ordinance or statute. The oftenDquoted observations of @ir $illiam -lackstone 37 Comm. 7,5) a ear to their 'ordshi s to have a direct bearin! u on the resent case. &e says:D OIt hath been held that# if an uninhabited country be discovered and lanted by (n!lish sub8ects# all the (n!lish laws then in bein!# which are the birthri!ht of every (n!lish sub8ect# are immediately there in force 3@alk. )77# ***). -ut this must be understood with very many and very !reat restrictions. @uch colonists carry with them only so much of the (n!lish law as is a licable to the condition of an infant Colony; such# for instance# as the !eneral rules of inheritance and rotection from ersonal in8uries. The artificial requirements and distinctions incident to the ro erty of a !reat and commercial eo le# the laws of olice and revenue 3such es ecially as are enforced by enalties)# the mode of maintenance of the established Church# the 8urisdiction of s iritual Courts# and a multitude of other rovisions are neither necessary nor convenient for them# and therefore are not in force. $hat shall be admitted and what re8ected# at what times and under what restrictions# must# in case of dis ute# be decided in the first instance by their own rovincial 8udicature# sub8ect to the decision and control of the Ain! in Council; the whole of their constitution bein! also liable to be newDmodelled and reformed by the !eneral su erintendin! ower of the le!islature in the mother country.O -lackstone# in that assa!e# was settin! ri!ht an o inion attributed to 'ord &olt# that all laws in force in (n!land must a ly to an infant Colony

The question here was whether the common law rule a!ainst er etuities a lied to 6ew @outh $ales# a colony acquired by settlement. The =rivy Council held that it did not a ly since it was not suited to local circumstances. The reasonin! of the -oard a ears in the followin! assa!es taken from the 8ud!ment of 'ord $atson 3at . 017D010 L 01FD01)):

70

of that kind. If the learned author had written at a later date he would robably have added that# as the o ulation# wealth# and commerce of the Colony increase# many rules and rinci les of (n!lish law# which were unsuitable to its infancy# will !radually be attracted to it; and that the ower of remodellin! its laws belon!s also to the colonial le!islature. Their 'ordshi s have not been referred to any <ct or Grdinance declarin! that the laws of (n!land# or any ortion of them# are a licable to 6ew @outh $ales. There was no land law or tenure existin! in the Colony at the time of its annexation to the Crown; and# in that condition of matters# the conclusion a ears to their 'ordshi s to be inevitable that# as soon as colonial land became the sub8ect of settlement and commerce# all transactions in relation to it were !overned by (n!lish law# in so far as that law could be 8ustly and conveniently a lied to themHH The rule a!ainst er etuities# as a lied to ersons and !ifts of a rivate character# thou!h not finally settled in all its details# until a com aratively recent date# is# in its rinci le# an im ortant feature of the common law of (n!land. To that extent it a ears to be founded u on lain considerations of olicy# and# in some sha e or other# finds a lace in most# if not in all# com lete systems of 8uris rudence. Their 'ordshi s see no reason to su ose that the rule# so limited# is not required in 6ew @outh $ales by the same considerations which have led to its introduction here# or that its o eration in that colony would be less beneficial than in (n!land. The learned 8ud!es of the @u reme Court of the colony# in decidin! this case# roceeded on the assum tion that the rule a lies there as between sub8ect and sub8ect; and their 'ordshi s are of o inion that the assum tion is well founded. <ssumin! next 3but for the ur oses of this ar!ument only) that the rule has# in (n!land# been extended to the Crown# its suitability# when so a lied# to the necessities of a youn! Colony raises a very different question. The ob8ect of the ?overnment# in !ivin! off ublic lands to settlers# is not so much to dis ose of the land to ecuniary rofit as to attract other colonists. It is sim ly im ossible to foresee what land will be required for ublic uses before the immi!rants arrive who are to constitute the ublic. Their ros ective wants can only be rovided for in two ways# either by reservin! from settlement ortions of land# which may rove to be useless for the ur ose for which they are reserved# or by makin! !rants of land in settlement# retainin! the ri!ht to resume such arts as may be found necessary for the uses of an increased o ulation. To ado t the first of these methods mi!ht tend to defeat the very ob8ects which it is the duty of a colonial !overnor to romote; and a rule which rests on

considerations of ublic olicy cannot be said to be reasonably a lied when its a lication may robably lead to that result. Their 'ordshi s have# accordin!ly# come to the conclusion that# assumin! the Crown to be affected by the rule a!ainst er etuities in (n!land# it was nevertheless ina licable# in the year 7+0F# to Crown !rants of land in the Colony of 6ew @outh $ales# or to reservations or defeasances in such !rants to take effect on some contin!ency more or less remote# and only when necessary for the ublic !ood.> Alterat#on o' re$e#%ed law (y s/(se./ent lo$al leg#slat#on Cooper v Stuart 37++1) 7) < =er 'ord $atson 3at .Cas. 0+*

. 017D010):

:The extent to which (n!lish law is introduced into a -ritish Colony# and the manner of its introduction# must necessarily vary accordin! to circumstances. There is a !reat difference between the case of a Colony acquired by conquest or cession# in which there is an established system of law# and that of a Colony which consisted of a tract of territory ractically unoccu ied# without settled inhabitants or settled law# at the time when it was eacefully annexed to the -ritish dominions. The Colony of 6ew @outh $ales belon!s to the latter class. In the %ase of su%h a Colony the Cro'n may y ordinan%e( and the Imperial +arliament( or its o'n legislature 'hen it %omes to possess one( may y statute de%lare 'hat parts of the %ommon and statute la' of 0ngland shall have effe%t 'ithin its limits . -ut# when that is not done# the law of (n!land must 3sub8ect to wellDestablished exce tions) become from the outset the law of the Colony# and be administered by its tribunals. In so far as it is reasonably a licable to the circumstances of the Colony# the law of (n!land must revail# until it is abro!ated or modified# either by ordinance or statute.> 3em hasis added) Boodram v" Baptiste C7111E 7 $.'./. 75,1 -oodram# who had been convicted of murder and sentenced to death by han!in!# a lied for a stay of execution alle!in! that han!in! as a form of execution was a cruel and unusual unishment. &e relied on the -ill of /i!hts 7*+1# an (n!lish statute# which rohibits any forms of cruel and unusual unishments. &e roduced disturbin! evidence to su!!est that there have been cases in which ersons who have been han!ed have suffered considerably in the course of the rocess. It was acce ted that the -ill of /i!hts 7*+1 had been received as art of the law of Trinidad and Toba!o. The question for the =rivy Council was whether# in res ect of han!in!# the rohibition a!ainst cruel and unusual unishments in the -ill had survived

7F

le!islative chan!es made in the country. The =rivy Council held that this had in fact ha ened and that the -ill of /i!hts had been cu!t down by subsequent le!islation which authori"ed han!in! as the method of execution. 'ord @lynn said 3at 7577D7570): :4r. Bit"!eraldNs overridin! submission is that the -ill of /i!hts 7*+1 is H. an existin! law. The rovision in the -ill that no cruel and unusual unishment should be inflicted therefore in itself revents han!in! bein! ado ted as the method of execution for the reasons which he has ut forward and nothin! in the Constitution invalidates that existin! law. It is to be remembered# however# that the -ill of /i!hts 7*+1 does not stand alone and it is acce ted that# even thou!h the -ill is a constitutional document creatin! fundamental ri!hts# the -ill may be cut down by clear subsequent le!islative rovisions. @ection ) of the Gffences a!ainst the =erson <ct 3c. 77:,+) of Trinidad and Toba!o rovides that O(very erson convicted of murder shall suffer deathO and the Criminal =rocedure <ct 3c. 70:,0) in section 25 rovides: O37) (very warrant for the execution of any risoner under sentence of death shall be under the hand and seal of the =resident# and shall be directed to the 4arshal# and shall be carried into execution by such 4arshal or his assistant at such time and lace as mentioned in the warrant; and the warrant shall be in the form set out as Borm < in @chedule 0 . . .O Borm < ex ressly recites that the erson involved has been sentenced to be: Ohan!ed by the neck until he be dead.O The =resident of the /e ublic in si!nin! the warrant authorises the execution in that manner. It seems to their 'ordshi s that these statutory rovisions quite clearly must be read with the -ill of /i!hts 7*+1# and that in Trinidad and Toba!o they authorise han!in!# not only as a method but as the only method of execution which may be ordered by the court and the only method which may be carried out subsequent to the =residentNs order. That means that the -ill of /i!hts 7*+1 in itself is not a basis u on which the etitioners can ut their case since it is to be read with subsequent le!islation; the rules of the common law must be read also sub8ect to those statutory rovisions. T!e Colon#al Laws Val#d#ty A$t D) Note: <s the above cases show# where a colony is !ranted the ower throu!h local bodies to make law for the eace# order and !ood !overnment of the colony# the Crowns ower of le!islation by the rero!ative is sus ended

durin! the effective existence of that le!islature. In addition# laws assed by the Im erial =arliament do not automatically a ly to the colony# exce t where the law contains an ex ress statement to that effect or such an intention a ears by necessary im lication. It is also clear that the local le!islature may ass laws which alter the common or statute law received from -ritain u on settlement or conquest. It follows as well that the local le!islature could ass laws alterin! laws which it had brou!ht into existence or which were inconsistent with laws assed by the Im erial =arliament which were not ex ressed to a ly to the colony. &owever# there a eared to be some doubt created with res ect to the last ro osition with the result that the Im erial =arliament enacted the Colonial 'aws Jalidity <ct# 7+*2. The doubts which had been created were described in the reamble to the <ct# as follows: O$hereas doubts have been entertained res ectin! the validity of divers laws enacted or ur ortin! to have been enacted by the 'e!islatures of certain of &er 4a8estyNs colonies# and res ectin! the owers of such 'e!islatures; and it is ex edient that such doubts should be removed: -e it hereby enacted by the QueenNs most excellent 4a8esty# by and with the advice and consent of the lords s iritual and tem oral# and commons# in this resent =arliament assembled# and by the authority of the same# as follows.O @ections 0# F L 2 of the <ct rovide as follows: 0. <ny colonial law which is or shall be in any res ect re u!nant to the rovisions of any <ct of =arliament extendin! to the colony to which such law may relate# or re u!nant to any order or re!ulation made under authority of such <ct of =arliament# or havin! in the colony the force and effect of such <ct# shall be read sub8ect to such <ct# order# or re!ulation# and shall# to the extent of such re u!nancy# but not otherwise# be and remain absolutely void and ino erative. F. 6o colonial law shall be or be deemed to have been void or ino erative on the !round of re u!nancy to the law of (n!land# unless the same shall be re u!nant to the rovisions of some such <ct of =arliament# order# or re!ulation as aforesaid. 2. (very colonial 'e!islature shall have# and be deemed at all times to have had# full ower within its 8urisdiction to establish Courts of 8udicature# and to abolish and reconstitute the same# and to alter the constitution thereof# and to make rovision for the administration of 8ustice

7)

therein; and every re resentative 'e!islature shall# in res ect to the colony under its 8urisdiction# have# and be deemed at all times to have had# full ower to make laws res ectin! the constitution# owers# and rocedure of such 'e!islature; rovided that such laws shall have been assed in such manner and form as may from time to time be required by any <ct of =arliament# letters atent# Grder in Council# or colonial law for the time bein! in force in the said colony.O The effect of the Colonial 'aws Jalidity <ct is ex lored in the followin! cases. +hillips v 0yre 37+5,) '/ * Q- 7 =er $illes 9. 3at . 7+D07):

:Koubts were su!!ested in this court u on what was taken for !ranted in the ar!ument and 8ud!ment in the court below# namely# the ower of the Crown to create a le!islative assembly in a settled colony. <ssumin!# but by no means affirmin!37) that# as contended for by counsel for the laintiff# the colony in question# thou!h ori!inally conquered from the @ aniards# is now to be deemed a settled as distin!uished from a conquered or ceded one# we consider these doubts as to the ower of the Crown and of the local le!islature to be unfounded. There is even !reater reason for holdin! sacred the rero!ative of the Crown to constitute a local le!islature in the case of a settled colony# where the inhabitants are entitled to be !overned by (n!lish law# than in that of a conquered colony# where it is only by !race of the Crown that the rivile!e of selfD!overnment is allowed# thou!h where once allowed it cannot be recalled. In colonies distant from the motherDcountry to which writs to return members to the im erial arliament do not run# it is essential# both for the due !overnment of the country in dealin! with matters best understood u on the s ot# and with emer!encies which do not admit of delay# and also for !ivin! sub8ects there resident the benefit of a voice# by their re resentatives# in the councils by which they are taxed and !overned# that the Crown should have the ower of creatin! a local arliament. <ccordin!ly# it is certain that the Crown has# in numerous instances# !ranted charters under which houses of assembly and le!islative councils have been established for the !overnment of colonies# whether conquered or settled# and that such councils and assemblies have# from time to time# made laws suited to the Oemer!encies of the colony#O which# of course# include all measures necessary for the conservation of eace# order# and alle!iance therein. In effect# the inhabitants have been allowed to reserve the ower of selfD !overnment# throu!h their re resentatives in the colony# sub8ect to the a roval of the Crown

and the control of the im erial le!islature. 4ec'ford v &ade 37)# in which the 'imitation <ct of 9amaica was held to bar the title# and not merely the remedy# is one of many instances in which the force of such le!islation has been reco!ni"ed here. <nd its lawfulness was taken for !ranted by 'ord $ensleydale# in the leadin! case of !ielly v Carson 30)# in a 8ud!ment of the wei!htiest authority delivered after two ar!uments# the second of which took lace before eleven members of the 9udicial Committee# com risin!# besides 'ord $ensleydale himself# 'ord 'yndhurst# 'ord -rou!ham# 'ord Cottenham# 'ord Cam bell# 'ord Chief 9ustice Tindal# and Kr. 'ushin!ton. In that 8ud!ment 'ord $ensleydale# after observin! that 6ewfoundland was a settled# not a conquered# colony# added: OTo such a colony there is no doubt that the settlers from the motherDcountry carried with them such ortion of its common and statute law as was a licable to their new situation# and also the ri!hts and immunities of -ritish sub8ects. Their descendants have# on the one hand# the same laws and the same ri!hts# unless they have been altered by arliament; and on the other hand# the Crown ossesses the same rero!ative and the same owers of !overnment that it does over its other sub8ects; nor has it been dis uted in the ar!ument before us# and therefore we consider it as conceded# that the soverei!n had not merely the ri!ht of a ointin! such ma!istrates and establishin! such cor orations and courts of 8ustice as he mi!ht do by the common law at home# but also that of creatin! a local le!islative assembly# with authority subordinate# indeed# to that of arliament# but su reme within the limits of the colony for the !overnment of its inhabitants.O This o inion was reflected u on in the ar!ument# but it is in accordance with 8ust rinci les of !overnment# with the law laid down by the textD writers# includin! 4r. 9ustice -lackstone37); and it has now been drawn into doubt for the first time. $e are satisfied that it is sound law# and that a confirmed act of the local le!islature lawfully constituted# whether in a settled or conquered colony# has# as to matters within its com etence and the limits of its 8urisdiction# the o eration and force of soverei!n le!islation# thou!h sub8ect to be controlled by the im erial arliament. The authorities cited for holdin! void certain <cts of colonial assemblies orderin! im risonment for contem t are ina licable# bein! either cases in which there was no le!islation# or cases in which the only question was whether the local le!islation fulfilled the conditions assumed to be im osed by a !overnin! <ct of the Im erial =arliament# and those conditions were held to have been fulfilled. It was further ar!ued that the <ct in question was contrary to the rinci les of (n!lish law# and therefore void. This is a va!ue ex ression#

72

and must mean either contrary to some ositive law of (n!land# or to some rinci le of natural 8ustice# the violation of which would induce the Court to decline !ivin! effect even to the law of a forei!n soverei!n state. In the former oint of view# it is clear that the re u!nancy to (n!lish law which avoids a colonial <ct means re u!nancy to an im erial statute or order made by authority of such statute a licable to the colony by ex ress words or necessary intendment; and that# so far as such re u!nancy extends# and no further# the colonial <ct is void. The 0+ L 01 Jict. c. *F# s. 0# enacts that# O<ny colonial law which is# or shall be# in any res ect re u!nant to the rovisions of any <ct of arliament extendin! to the colony to which such law may relate# or re u!nant to any order or re!ulation made under authority of such <ct of arliament# or havin! in the colony the force and effect of such <ct# shall be read sub8ect to such <ct# order# or re!ulation# and shall# to the extent of such re u!nancy# but not otherwise# be and remain absolutely void and ino erative.O <nd to remove all doubt# s. F of the same <ct affirmatively enacts that O6o colonial law shall be# or be deemed to have been# void or ino erative on the !round of re u!nancy to the law of (n!land# unless the same shall be re u!nant to the rovision of some such <ct of arliament# order# or re!ulation as aforesaid.O To what <ct# order# or re!ulation# then# is the 9amaica <ct of Indemnity and oblivion re u!nantI It was ar!ued to be re u!nant to the ?overnors <ct# 77 L 70 $m. F# c. 70# by which any !overnor who shall be !uilty of o ressin! any of &er 4a8estyNs sub8ects within this !overnment or of any other crime or offence# may be tried and unished by indictment before the Court of Ain!Ns -ench# or a s ecial commission a ointed by the Crown; and further remedy is rovided in such a case by )0 ?eo. F# c. +2. The ar!ument# therefore# is# that because the im erial le!islature has rovided that for o ression# crime# or offence of a !overnor he shall be criminally answerable in this country# therefore it ou!ht to be held incom etent for the local le!islature to rotect him by an <ct of indemnity or oblivion a!ainst the civil consequences of excessive "eal# however sincere# or mistaken exertions# however honest# in the su ression of a rebellion. In dealin! with this ar!ument# it should be borne in mind that u on an indictment a!ainst a !overnor for conduct alle!ed to be o ressive and criminal# circumstances# and above all motives# may be taken into account# which would be excluded in decidin! the dry question of civil liability; and that the roceedin!s u on such indictment# as in all other criminal cases# would be sub8ect to the control and restraint of the Crown. $hether the assent of the Crown had# ro tanto# the effect of an amnesty mi!ht be a oint worth considerin!# if necessary. @u osin! that it had not# the ro er course to test the alle!ed criminal res onsibility is not by civil action# with a

su!!estion of a ossible indictment# but by actual indictment resented if the facts warrant such a roceedin!. If that course cannot be successfully resorted to# the ob8ection of its ossibility is a hantom; and if it can# the restraint of a civil action cannot affect its success. In this oint of view# therefore# the o eration of the colonial <cts u on the resent action is not Ore u!nant to the law of (n!land.O> In re /he 1ueen v ,arais C71,0E <.C. 27 =er the 'ord Chancellor 3at . 2FD2)):

:H.there is no doubt that u to the time of the assin! of the Colonial 'aws Jalidity <ct 30+ L 01 Jict. c. *F) a !reat many of the considerations which he has ur!ed had !iven rise to difficulties# and it was for the ex ress ur ose of !ettin! rid of the difficulties that had been raised on that sub8ect# and articularly in reference to the words Ore u!nancy to the laws of (n!land#O that that <ct was assed# because one of the common and familiar forms whereby the Colonial le!islatures were constituted and constitutions !iven rovided that nothin! should be enacted re u!nant to the laws of (n!land; and there is no doubt that that had !iven rise to some doubts and difficulties which this <ct was intended to cure. $ith res ect to that matter we have now this statute of 7+*2 to construe; and# in res ect to that statute# what has been ointed out is that the words Ore u!nant to the laws of (n!landO are not now to be# in their bald sense# construed with reference to such a question as this# but you must take the inter retation clause# which now qualifies those words# into the consideration of what has been enacted here: that what was to be re u!nant to the laws of (n!land within the meanin! of those words was to be a re u!nancy such as is re u!nant to the rovisions of some such <ct of =arliament or re!ulation Oas aforesaidO; and that is a!ain qualified in this way: OIn construin! this <ct# an <ct of =arliament or any rovision thereof shall be said to extend to any Colony when it is made a licable to such Colony by the ex ress words or necessary intendment of any <ct of =arliament.O The obvious ur ose and meanin! of that statute was to reserve the ri!ht of the Im erial 'e!islature to le!islate even for the Colony# althou!h a local le!islature had been !iven# and to make it im ossible# when an Im erial statute had been assed ex ressly for the ur ose of !overnin! that Colony# for the Colonial le!islature in that sense to enact anythin! re u!nant to an ex ress law a lied to that Colony by the Im erial 'e!islature itself. That is the meanin! of those words. <s to the other ar!ument with reference to le!islation by a Colony which in some res ects shall run counter to# or be re u!nant to# some law of the .nited Ain!dom# that# if it were

7*

construed in the wide sense 'ord Colerid!e su!!ested# would render any Colonial le!islation illusory alto!ether# because it is hardly ossible to deal with the ri!hts of any -ritish sub8ect by the local le!islature which shall not in some way or another run counter to some rovision in this country which is enacted for a different ur ose# havin! no s ecial reference to the circumstances of the articular Colony. This statute reconciles the two rinci les of !ivin! local le!islation# but# nevertheless# leavin! still o en to the Im erial 'e!islature by ex ress le!islative rovision the ower to do somethin! in the Colony. @o much for the second oint ur!ed by 'ord Colerid!e.> Li !ong ,i v Attorney #eneral of !ong &ong C710,E <.C. 5F2 =er Jiscount &aldane 3at . 5F5): :<lthou!h &on! Aon! is a Crown Colony and the rovisions of the Grdinance affect materially the ri!hts of -ritish sub8ects as they would be under the common law of (n!land# there is no doubt as to the validity of these rovisions and the Grdinance enactin! them. .nder letters atent the Crown had conferred on the ?overnor ower# with the consent of his 'e!islative Council# to make laws for the eace# order and !ood !overnment of the colony. It is clear that under a !rant from the Crown of such owers the ?overnment of the colony can le!islate freely# even to the extent of alterin! the common law and such statutes of the Im erial =arliament as have not been made a licable to the colony by ex ress words or necessary intendment. This is laid down by the Colonial 'aws Jalidity <ct# 7+*2# which rovides# by s. F# that no colonial law shall be ino erative on the !round of re u!nancy to the law of (n!land# unless re u!nant to a statute so made a licable# or to some order or re!ulation made under it.> Liyanage v /he 1ueen C71**E 0 $.'./. *+0 =er 'ord =earce 3at . *+1D*10):

in a conquered country# this le!islation bein! subordinate# that is# subordinate to his own authority in =arliament# he cannot make any new chan!e contrary to fundamental rinci les.O The Crown havin!# therefore 3it is said)# no ower over Ceylon as a colony to make laws which offended a!ainst fundamental rinci les# could not hand over to Ceylon a hi!her ower than it ossessed itself. The Constitution of Ceylon was not laid down as in the case of many other colonies by an <ct of =arliament but by an Grder in Council 3The Ceylon 3Constitution) Grder in Council# 71)*) which !ave ower to the Ceylon =arliament to make laws for the eace# order and !ood !overnment of the island. This was followed by the Ceylon Inde endence <ct# 71)5# a .nited Ain!dom <ct. -ut =arliament# it is contended# did not in terms transfer to Ceylon the @overei!n ri!ht of the .nited Ain!dom =arliament. Therefore the le!islative ower of Ceylon is still limited by the inability 3which it inherits from the Crown) to ass laws which offend a!ainst fundamental rinci les. This va!ue and uncertain hrase mi!ht ar!uably be called in aid a!ainst some of the statutes assed by any @overei!n ower. <nd it would be re!rettable if the rocedure ado ted in !ivin! inde endence to Ceylon has roduced the situation for which the a ellants contend. In view of their 'ordshi s# however# such a contention is not maintainable. -efore the assin! of the Colonial 'aws Jalidity <ct# 7+*2# considerable difficulties had been caused by the overDinsistence of a Colonial 8ud!e in @outh <ustralia that colonial le!islative <cts must not be re u!nant to (n!lish law 3OThe @tatute of $estminister and Kominion @tatusO by A. C. $heare. That <ct was intended to and did overcome the difficulties. It rovided that colonial laws should be void to the extent to which they were re u!nant to an <ct of the .nited Ain!dom =arliament a licable to that colony# Obut not otherwiseO 3s. 0) and that they should not be void or ino erative on the !round of re u!nancy to the law of (n!land 3s. F). OThe essential feature of this measure is that it abolished once and for all the va!ue doctrine of re u!nancy to the rinci les of (n!lish law as a source of invalidity of any colonial <ct. ... The boon thus secured was enormous; it was now necessary only for the colonial le!islator to ascertain that there was no Im erial <ct a licable and his field of action and choice of means became unfettered.O 3OThe @overei!nty of the -ritish KominionsO by =rof. Aeith.5 Their 'ordshi s cannot acce t the view that the le!islature while removin! the fetter of re u!nancy to (n!lish law# left in existence a fetter of re u!nancy to some va!ue uns ecified law of natural 8ustice. The terms of the Colonial 'aws Jalidity <ct and es ecially the words Obut

:3It was ar!ued first of all) that the Ceylon =arliament is limited by an inability to ass le!islation which is contrary to fundamental rinci les of 8ustice. The 71*0 <cts# it is said# are contrary to such rinci les in that they not only are directed a!ainst individuals but also ex ost facto create crimes and unishments# and destroy fair safe!uards by which those individuals would otherwise be rotectedH.. The first ar!ument starts with a 8ud!ment of 'ord 4ansfield '.C.9. In Camp$ell v (all2 he laid down as a clear ro osition that Oif the Ain! 3and when I say the Ain!# I always mean the Ain! without the concurrence of =arliament#) has a ower to alter the old and to introduce new laws

75

not otherwiseO in section 0 make it clear that =arliament was intendin! to deal with the whole question of re u!nancy. 4oreover their 'ordshi s doubt whether 'ord 4ansfield was intendin! to say that what was not re u!nant to (n!lish law mi!ht yet be re u!nant to fundamental rinci les or to set u the latter as a different test from the former. $hatever may have been the ossible ar!uments in this matter rior to the assin! of the Colonial 'aws Jalidity <ct# they are not maintainable at the resent date. 6o case has been cited in which durin! the last 7,, years any 8ud!ment 3or# so far as one can see# any ar!ument) has been founded on that ortion of 'ord 4ansfieldNs 8ud!ment. <nd in A$eyese'era v 5ayatila'e,+ a case from Ceylon dealin! with the validity of a retros ective Grder in Council and therefore a fertile field for the !ermination of ar!uments about fundamental rinci les# 'ord 4ansfieldNs 8ud!ment in Camp$ell v (all1 was only referred to in the -oardNs 8ud!ment as authority on a wholly different oint. The Ceylon Inde endence <ct# 71)5# of the -ritish =arliament rovided: O7. D 37) 6o <ct of the =arliament of the .nited Ain!dom assed on or after the a ointed day shall extend# or be deemed to extend# to Ceylon as art of the law of Ceylon# unless it is ex ressly declared in that <ct that Ceylon has requested# and consented to# the enactment thereof. 30) <s from the a ointed day &is 4a8estyNs ?overnment in the .nited Ain!dom shall have no res onsibility for the !overnment of Ceylon. 3F) <s from the a ointed day the rovisions of the Birst @chedule to this <ct shall have effect with res ect to the le!islative owers of Ceylon.O R R R OBirst @chedule 'e!islative =owers of Ceylon 7. 37) The Colonial 'aws Jalidity <ct# 7+*2# shall not a ly to any law made after the a ointed day by the =arliament of Ceylon. 30) 6o law and no rovision of any law made after the a ointed day by the =arliament of Ceylon shall be void or ino erative on the !round that it is re u!nant to the law of (n!land# or to the rovisions of any existin! or future <ct of =arliament of the .nited Ain!dom# or to any order# rule or re!ulation made under any such <ct# and the owers of the =arliament of Ceylon shall include the ower to re eal or amend any such <ct# order# rule or re!ulation in so far as the same is art of the law of Ceylon.

0. The =arliament of Ceylon shall have full ower to make laws havin! extraD territorial o eration.O These liberatin! rovisions thus incor orated and enlar!ed the enablin! terms of the <ct of 7+*2# and it is clear that the 8oint effect of the Grder in Council of 71)* and the <ct of 71)5 was intended to and did have the result of !ivin! to the Ceylon =arliament the full le!islative owers of a soverei!n inde endent @tateH.. <ccordin!ly the a ellantsN first ar!ument fails.>

Rediffusion 2!ong &ong3 Ltd v Attorney #eneral of !ong &ong C715,E <.C. 77F*; C715,E 0 $.'./. 70*) =er lord Ki lock 3at . 77*,D77*7):

:The only question raised in the cause of action summons can thus be reDstated as: OIs it NunlawfulN for members of the 'e!islative Council of &on! Aon! to ass a bill which is re u!nant to the rovisions of an <ct of the Im erial =arliament extendin! to &on! Aon! andSor to resent it to the ?overnor for his assentIO This de ends u on the effect of section 0 of the Colonial 'aws Jalidity <ct# 7+*2# which reads as follows: O<ny colonial law which is or shall be in any res ect re u!nant to the rovisions of any <ct of =arliament extendin! to the colony to which such law may relate# or re u!nant to any order or re!ulation made under authority of such <ct of =arliament# or havin! in the colony the force and effect of such <ct# shall be read sub8ect to such <ct# order# or re!ulation# and shall# to the extent of such re u!nancy# but not otherwise# be and remain absolutely void and ino erative.O This section it is to be noted deals only with the construction and effect of colonial laws once they have been enacted. It is not concerned with the rocedure followed in the lawDmakin! rocess before a ro osed measure becomes a law. @o far as that is dealt with at all in the <ct it is by section ) and# as res ects re resentative le!islatures# also by the latter art of section 2. @ection 0 rovides as a matter of construction that a colonial law shall be read as sub8ect to any <ct of =arliament# Grder or /e!ulation extendin! to the colony# and secondly# as a matter of effect# that it shall be void and ino erative to the extent of its re u!nancy to any such <ct of =arliament# Grder or /e!ulation but not otherwise.

7+

< bill assed by the 'e!islative Council of &on! Aon! is not a colonial law nor does it become one when resented to the ?overnor for his assent. It becomes a law only when the ?overnor has assented to it and it does as a result of his assent. It is true that the assin! of a bill in the terms of the ro osed law is a necessary ste in the makin! of that law# since the ?overnorNs ower of assent is restricted to laws in the terms of bills assed by the 'e!islative Council# but it is a ste which does not necessarily result in the makin! of any law since the ?overnor has a discretion to refuse his assent. It can be truly said about the conduct of the 'e!islative Council in assin! a bill which# if enacted by the ?overnorNs assent# would be re u!nant to an <ct of =arliament# that such conduct cannot affect the le!al ri!hts of anyone. If the ?overnor does not assent# the bill will never become a law at all; if he does the Grdinance will be void and ino erative and will not be the law of &on! Aon!. The 'e!islative Council may be wastin! their time in assin! the bill# but to do so is not in itself unlawful. In a sense it may be said to be ultra vires the le!islature of &on! Aon! to make a law# i.e.# to ass not merely a bill but an Grdinance which is void and therefore ineffective. -ut conduct which is ultra vires in this sense is not of itself Ounlawful.O Conduct however much it lies outside the le!al ower of the actor does not !ive rise to any cause of action on the art of any erson unless it infrin!es or threatens to infrin!e that ersonNs le!al ri!hts. @uch an infrin!ement can only occur when ste s are taken to enforce the void Grdinance. It is committed not by the makers of the Grdinance but by those who take ste s to enforce it after it has been made. -ut ste s to enforce any Grdinance assed in the terms of the ro osed bill will not in any event be taken by members of the 'e!islative Council in their ca acity as such# which is the only ca acity in which they are sued. The question whether before a ro osed Grdinance is enacted the laintiffs mi!ht have some other remedy in a quia timet action brou!ht a!ainst other defendants sued in a different ca acity in res ect of threatened ste s to enforce the Grdinance if and when it is assed does not arise in the resent a eal. -ut even if it be correct to say that in the limited sense indicated above it would be ultra vires the le!islature to ass an Grdinance re u!nant to an <ct of =arliament# it does not follow that it is also ultra vires the 'e!islative Council# as a constituent art of the le!islature# to ass a bill which at the time when it is debated in the council is in terms which are re u!nant to existin! rovisions of an <ct of =arliament extendin! to &on! Aon!. /e u!nancy falls to be determined at the date of enactment# not before. -y that date the relevant rovisions of

the <ct of =arliament may have been amended in their a lication to &on! Aon! D a ossibility which the &on! Aon! le!islature may ho e to influence but cannot control. In their 'ordshi sN view it cannot be said to be ultra vires in any ro er sense of that ex ression for the 'e!islative Council to debate and ass a bill# merely because its terms are re u!nant to existin! rovisions of an <ct of =arliament extendin! to &on! Aon!. The /oyal Instructions ex ressly confer u on every member the ri!ht to ro ose any question for debate in the 'e!islative Council and there can# in their 'ordshi sN view# be no reason in ublic olicy# why they should not debate and ass and resent to the ?overnor for his assent a bill which cannot have any effect as law in the colony unless by the time it is actually assented to by the ?overnor the rovisions of an <ct of =arliament as they existed at the time of assin! and resentation of the bill have been amended. The likelihood or otherwise of such amendments bein! made may affect the utility of their debate; it cannot in their 'ordshi sN view affect their le!al ri!ht to en!a!e in them.> D) Note: The above extract makes clear that any law assed by a colonial le!islature which is re u!nant to an Im erial @tatute intended to extend to the colony is null and void and of no effect. $hat the =rivy Council determined in addition# however# was that the rocess of enactin! such a law was not itself unlawful# even thou!h the end result was of no effect. <s a consequence# there would be no cause of action which could !ive rise to a claim for relief where the le!islature only threatened to ass a law which was re u!nant to an Im erial @tatute extendin! to the colony. /elief would have to be sou!ht after the le!islation was assed and efforts were made to enforce the statute. 4ore recently# the =rivy Council has taken view on this question. In /he Bahamas $istri%t of the ,ethodist Chur%h in the Cari ean and the Ameri%as v Symonette =.C. < eal 6o. 5, of 711+# the -oard acce ted that exce tional circumstances may arise which would make it im erative to intervene before a law is assed by the le!islature# es ecially where the ri!hts of the citi"enry are in 8eo ardy of immediate infrin!ement. 'ord 6icholls said: :Their 'ordshi s have already ex ressed the view that reDenactment relief should be !ranted only when# exce tionally# this is necessary to enable the courts to afford the rotection intended to be rovided by the Constitution. $hen that state of necessity exists# to deny the courts ower to intervene would# ex hy othesi# be a failure to safe!uard citi"ensN ri!hts under the Constitution. $hen that state of necessity exists# the threatened enactment of le!islation# which will be void under the Constitution but nevertheless

71

cause irre arable dama!e# is a sufficient foundation 3or :cause of action>) for the com lainantNs a lication to the court.> T!e &ower o' t!e Im&er#al -arl#ament to leg#slate 'or t!e $olon#es D) Note: The Im erial =arliament was always com etent to le!islate for the colonies# the only limitation bein! that it had to make its intention clear in order for the colonial le!islate to be bound by its <cts. &owever# there had develo ed from the middle of the nineteenth century a convention whereby the Im erial =arliament would only so le!islate in res ect of a selfD!overnin! colony or one with res onsible !overnment# with the consent of the colony. -ut this convention did not restrict the le!al owers of the Im erial =arliament. ,ad4im amuto v" Lardner5Bur6e C71*1E 7 <.C. *)2 @outhern /hodesia was annexed by the Crown in 710F# by virtue of an order in Council comin! into o eration on @e tember 70# 710F# bein! !iven the status of a colony. In 71*7 the colony was !ranted a Constitution where under# inter alia# its le!islature had ower to make laws for the eace# order and !ood !overnment of @outhern /hodesia and Othe executive authority ... is vested in &er 4a8esty and may be exercised on &er 4a8estyNs behalf by the ?overnor.O The Constitution rovided that the law to be administered was the law in force in the Ca e of ?ood &o e in 9une 7+17 3that bein! /omanDKutch law)# and it contained a OKeclaration of /i!htsO7 desi!ned to secure Othe fundamental ri!hts and freedoms of the individual.O Gn 6ovember 2# 71*2# a state of emer!ency in @outhern /hodesia was validly roclaimed by the ?overnor# and emer!ency re!ulations were made# under which# on the followin! day# the first res ondent# as 4inister of 9ustice# lawfully made an order for the detention of the a ellantNs husband# 4.# on the !round that he was Olikely to commit acts in /hodesia ... likely to endan!er the ublic safety# disturb or interfere with ublic order or interfere with the maintenance of any essential service.O Gn 6ovember 77# 71*2# the =rime 4inister of @outhern /hodesia and his collea!ues issued a OKeclaration of Inde endenceO ur ortin! to declare that @outhern /hodesia was no lon!er a Crown colony but was an inde endent soverei!n state. Gn the same day# in a messa!e to the eo le of /hodesia# the ?overnor informed them that the Keclaration of Inde endence was unconstitutional# and that the =rime 4inister and his collea!ues had ceased to hold office.

Gn 6ovember 7*# 71*2# the .nited Ain!dom =arliament assed the @outhern /hodesia <ct# 71*2# which declared that @outhern /hodesia continued to be art of &er 4a8estyNs dominions and that Othe ?overnment and =arliament of the .nited Ain!dom have res onsibility and 8urisdiction as heretofore for and in res ect of it.O The <ct rovided that &er 4a8esty mi!ht make Osuch rovision ... as a ears to &er to be necessary or ex edient ...O by Grder in Council. Gn 6ovember 7+# 71*2# the @outhern /hodesia 3Constitution) Grder# 71*2# was made# section 0 37) of which rovided that Oany instrument made or other act done in ur orted romul!ation of any constitution for @outhern /hodesia exce t as authorised by <ct of =arliament is void and of no effect.O -y section F 37) the owers of the le!islature to make laws# of the 'e!islative <ssembly to transact business# and of any erson or authority to take ste s for the reconstitution of the 'e!islative <ssembly or the election of members thereof# were sus ended# and by section * any law made# business transacted or ste taken in contravention of the order was declared void and of no effect. The =rime 4inister and his collea!ues disre!arded their dismissal from office# and the members of the 'e!islative <ssembly disre!arded its sus ension and ur orted to ado t the new Constitution of 71*2# established by the ille!al re!ime# section F of which rovided that Othere shall be an officer administerin! the ?overnment in and over /hodesia.O The lawful state of emer!ency under which 4. was detained ex ired on Bebruary )# 71**# but his detention was continued under fresh emer!ency re!ulations invalidly made. In roceedin!s for a declaration that 4.Ns detention was unlawful 'ewis and ?oldin 99. in the ?eneral Kivision held that the 71*2 Constitution and the ?overnment of the =rime 4inister and his collea!ues were unlawful but that# it bein! the only effective !overnment# necessity required that effect be !iven to the fresh emer!ency re!ulations and therefore the detention was lawful. Gn a eal# the < ellate Kivision affirmed that decision in the main# but held that the articular re!ulation under which 4. had been detained since Bebruary )# 71**# was ultra vires and invalid# and therefore allowed the a eal. < fresh detention order was immediately made under a re!ulation which the < ellate Kivision had by im lication held to be valid. Gn a eal to the =rivy Council a!ainst so much of the decision of the < ellate Kivision as determined that the re!ulation under which the existin! detention order was made was valid and

0,

4.Ns detention therefore lawful# leave for such a eal havin! been refused by the < ellate Kivision:D (eld, 37) HH 30) That the nature of the @overei!nty of The Queen in the .nited Ain!dom =arliament over a -ritish colony must be determined by the constitutional law of the .nited Ain!dom and that it was therefore unnecessary to consider the rinci les of /omanDKutch law as to the questions at issue. 3F) That since full @overei!nty over @outhern /hodesia was acquired when the territory was annexed by the Crown in 710F# and had not been diminished either by the limited !rant of selfD!overnment then made or by .nited Ain!dom le!islation assed since that date# The Queen in the .nited Ain!dom =arliament was still @overei!n in @outhern /hodesia in 71*2 and that# accordin!ly. the @outhern /hodesia <ct# 71*2# and the @outhern /hodesia 3Constitution) Grder in Council# 71*2# made thereunder# were of full le!al effect in @outhern /hodesia; that nothin! either in the -ritish 6ationality <ct# 71)+# or in the 71*7 Constitution o erated to confer even limited soverei!nty u on @outhern /hodesia; and that the convention under which the =arliament of the .nited Ain!dom did not le!islate without the consent of the ?overnment of @outhern /hodesia on matters within the com etence of the 'e!islative <ssembly# thou!h olitically im ortant as a convention# had no le!al effect in limitin! the owers of the .nited Ain!dom =arliament. 3)) That the conce tions of international law as to de facto or de 8ure status were ina ro riate where a court sittin! in a articular territory had to decide u on the validity or otherwise of a new rT!ime which had !ained control of the territory; and that# accordin!ly# the usur in! !overnment in control in @outhern /hodesia could not# for any ur ose# be re!arded as a lawful !overnment# since the .nited Ain!dom ?overnment# actin! u on behalf of the lawful @overei!n# was still takin! ste s to re!ain control. 32) 3'ord =earce dissentin!) That whether or not there was a !eneral rinci le de endin! u on necessity or u on an im lied mandate from the lawful @overei!n# which reco!nised the need to reserve law and order within territory controlled by a usur er# no such rinci le could override the le!al ri!ht of the =arliament of the .nited Ain!dom to make such laws as it deemed ro er for territories under &er 4a8estyNs @overei!nty; and that# therefore# the @outhern /hodesia <ct# 71*2# and the Grder in Council made thereunder# whereby the ower to make laws was transferred from the 'e!islative <ssembly to &er 4a8esty in Council# were fully effective and no ur orted law made by any

erson or body in @outhern /hodesia# no matter how necessary such law mi!ht be for reservin! law and order# or otherwise# could have any le!al effect whatsoever. 3*) 3'ord =earce dissentin!)# That the ?overnorNs messa!e of 6ovember 77# 71*2# to the eo le of @outhern /hodesia bein! annoyed before the date of the Grder in Council# could not revail over that Grder# and therefore did not 8ustify &er 4a8estyNs 8ud!es in @outhern /hodesia in disre!ardin! le!islation assed or authorised by the .nited Ain!dom =arliament. 35) 3'ord =earce dissentin!) That# accordin!ly# the 71*2 Constitution# which ur orted to rovide for O<n officer administerin! the ?overnment in and over /hodesia#O and the emer!ency re!ulations ur ortin! to have been made by such OofficerO were void and of no effect# by virtue of section 0 37) of the Grder in Council# and the determination of the < ellate Kivision was therefore erroneous and the order under which 4. was detained was invalid. =er 'ord /eid 3at . 500D50F):

:If The Queen in the =arliament of the .nited Ain!dom was @overei!n in @outhern /hodesia in 71*2# there can be no doubt that the @outhern /hodesia <ct# 71*2# and the Grder in Council made under it were of full le!al effect there. @everal of the learned 8ud!es have held that @overei!nty was divided between the .nited Ain!dom and @outhern /hodesia. Their 'ordshi s cannot a!ree. @o far as they are aware it has never been doubted that# when a colony is acquired or annexed# followin! on conquest or settlement# the @overei!nty of the .nited Ain!dom =arliament extends to that colony# and its owers over that colony are the same as its owers in the .nited Ain!dom. @o# in 710F# full @overei!nty over the annexed territory of @outhern /hodesia was acquired. That @overei!nty was not diminished by the limited !rant of self !overnment which was then made. It was necessary to ass the @tatute of $estminster# 71F7# in order to confer inde endence and @overei!nty on the six Kominions therein mentioned# but @outhern /hodesia was not included. @ection ) of that <ct rovides O6o <ct of =arliament of the .nited Ain!dom assed after the commencement of this <ct shall extend# or be deemed to extend# to a Kominion as art of the law of that Kominion# unless it is ex ressly declared in that <ct that that Kominion has requested# and consented to# the enactment thereof.O 6o similar rovision has been enacted with re!ard to @outhern /hodesia.

07

It has been ar!ued that the -ritish 6ationality <ct# 71)+# shows that @outhern /hodesia had by that time acquired at least a measure of @overei!nty. @ection 7 37) rovides that O(very erson who under this <ct is a citi"en of the .nited Ain!dom and Colonies or who under any enactment for the time bein! in force in any country mentioned in subsection 3F) of this section is a citi"en of that country shall by virtue of that citi"enshi have the status of a -ritish sub8ect.O @ubsection 3F) mentions ei!ht countries to which full inde endence had already been !ranted and also @outhern /hodesia. It has never been su!!ested that it can be inferred from this that @outhern /hodesia must be re!arded as fully inde endent. @o on any view the association of @outhern /hodesia with those other countries was anomalous. Their 'ordshi s cannot infer from the mere fact that @outhern /hodesian citi"enshi was created that some limited but undefined measure of @overei!nty was conferred on that colony. The learned 8ud!es refer to the statement of the .nited Ain!dom ?overnment in 71*7# already quoted# settin! out the convention that the =arliament of the .nited Ain!dom does not le!islate without the consent of the ?overnment of @outhern /hodesia on matters within the com etence of the 'e!islative <ssembly. That was a very im ortant convention but it had no le!al effect in limitin! the le!al ower of =arliament. It is often said that it would be unconstitutional for the .nited Ain!dom =arliament to do certain thin!s# meanin! that the moral# olitical and other reasons a!ainst doin! them are so stron! that most eo le would re!ard it as hi!hly im ro er if =arliament did these thin!s. -ut that does not mean that it is beyond the ower of =arliament to do such thin!s# If =arliament chose to do any of them the courts could not hold the <ct of =arliament invalid. It may be that it would have been thou!ht# before 71*2# that it would be unconstitutional to disre!ard this convention. -ut it may also be that the unilateral Keclaration of Inde endence released the .nited Ain!dom from any obli!ation to observe the convention. Their 'ordshi s in declarin! the law are not concerned with these matters. They are only concerned with the le!al owers of =arliament. Binally on this first question their 'ordshi s can find nothin! in the 71*7 Constitution which should be inter reted as a !rant of limited @overei!nty. (ven assumin! that that is ossible under the -ritish system# they do not find any indication of an intention to transfer @overei!nty or any such clear cut division between what is !ranted by way of @overei!nty and what is

reserved as would be necessary if there were to be a transfer of some art of the @overei!nty of The Queen in the =arliament of the .nited Ain!dom. They are therefore of o inion that the <ct and Grder in Council of 71*2 had full le!al effect in @outhern /hodesia.> T!e &ower o' t!e Im&er#al -arl#ament to leg#slate 'or #nde&endent 'ormer $olon#es D) Note: Ty ically# inde endence came about as a result of an act of the Im erial =ower !rantin! inde endence to the former colony. In the constitutional law of the .nited Ain!dom# this had to be accom lished by way of a le!islative act severin! the former colonial ties. In the Commonwealth# this was achieved by Grders In Council in which inde endence is bestowed and a new constitution installed. Thereafter# the Im erial =arliament lost all ower to le!islate for the colony and full soverei!nty was en8oyed by the newly inde endent le!islature. <lthou!h in strict .A constitutional theory# inde endence !iven by le!islative act could be taken away by le!islative act# in olitical reality inde endence is ermanent. Consider# for exam le the followin! extract in relation the owers of the Im erial =arliamnet after the !rant of selfD!overnment to Canada. British Coal Corporation v /he &ing C71F2E <.C. 2,,. =er Jiscount @ankey '.C. 3at . 27*D20,):

:The relevant clauses of the @tatute H.. are as follows:D O0. D 37.) The Colonial 'aws Jalidity <ct# 7+*2# shall not a ly to any law made after the commencement of this <ct by the =arliament of a Kominion. 30.) 6o law and no rovision of any law made after the commencement of this <ct by the =arliament of a Kominion shall be void or ino erative on the !round that it is re u!nant to the law of (n!land# or to the rovisions of any existin! or future <ct of =arliament of the .nited Ain!dom# or to any order# rule or re!ulation made under any such <ct# and the owers of the =arliament of a Kominion shall include the ower to re eal or amend any such <ct# order# rule or re!ulation in so far as the same is art of the law of the Kominion. F. It is hereby declared and enacted that the =arliament of a Kominion has full ower to make laws havin! extraterritorial o eration. 5. D 37.) 6othin! in this <ct shall be deemed to a ly to the re eal# amendment or alteration of the -ritish

00

6orth <merica <cts# 7+*5 to 71F,# or any order# rule or re!ulation made thereunder. 30.) The rovisions of section 0 of this <ct shall extend to the laws made by any of the =rovinces of Canada and to the owers of the le!islatures of such =rovinces. 3F.) The owers conferred by this <ct u on the =arliament of Canada or u on the le!islatures of the =rovinces shall be restricted to the enactment of laws in relation to matters within the com etence of the =arliament of Canada or of any of the le!islatures of the =rovinces res ectively.O $hat is the extent of the le!islative com etence in the relevant re!ard conferred on the Canadian =arliament# uttin! out of question the limitations which are now removed# must be ascertained from the words of the constituent <ct. In construin! the words of that <ct# it must be remembered what the nature and sco e of the <ct are. They are indicated in the words used by 'ord 'oreburn '.C. in deliverin! the 8ud!ment of the 9udicial Committee in AttorneyGeneral for 3ntario v Attorney-General for Canada: OIn 7+*5 the desire of Canada for a definite Constitution embracin! the entire Kominion was embodied in the -ritish 6orth <merica <ct. 6ow# there can be no doubt that under this or!anic instrument the owers distributed between the Kominion on the one hand and the rovinces on the other hand cover the whole area of selfD!overnment within the whole area of Canada. It would be subversive of the entire scheme and olicy of the <ct to assume that any oint of internal selfD!overnment was withheld from Canada.O The same rinci le was reco!ni"ed in the followin! lan!ua!e used in (odge v The 6ueen 30) in res ect of the owers of =rovincial 'e!islatures: O$hen the -ritish 6orth <merica <ct enacted that there should be a 'e!islature for Gntario# and that its le!islative assembly should have exclusive authority to make laws for the =rovince and for rovincial ur oses in relation to the matters enumerated in s. 10# it conferred owers not in any sense to be exercised by dele!ation from or as a!ents of the Im erial =arliament# but authority as lenary and as am le within the limits rescribed by s. 10 as the Im erial =arliament in the lenitude of its ower ossessed and could bestow. $ithin these limits of sub8ects and area the local le!islature is su reme# and has the same authority as the Im erial =arliament# or

the =arliament of the Kominion# would have had under like circumstances to confide to a munici al institution or body of its own creation authority to make byD laws or resolutions as to sub8ects s ecified in the enactment# and with the ob8ect of carryin! the enactment into o eration and effect.O The same lan!ua!e Call ro erly be used in re!ard to the Kominion =arliament# to which indeed the assa!e 8ust quoted was a lied in Attorney-General for Canada v Cain That was a case in which it was held that the ower to make laws for the eace# order and !ood !overnment were wide enou!h to enable the Kominion =arliament to ass a statute vestin! in the Kominion (xecutive the rero!ative ower to ex el and de ort aliens. Indeed# in inter retin! a constituent or or!anic statute such as the <ct# that construction most beneficial to the widest ossible am litude of its owers must by ado ted. This rinci le has been a!ain clearly laid down by the 9udicial Committee in Edwards v Attorney-General for Canada7 OTheir 'ordshi s do not conceive it to be the duty of this -oard D it is certainly not their desire D to cut down the rovisions of the <ct by a narrow and technical construction# but rather to !ive it a lar!e and liberal inter retation so that the Kominion to a !reat extent# but within certain fixed limits# may be mistress in her own house# as the =rovinces to a !reat extent# but within certain fixed limits# are mistresses in theirs. NThe =rivy Council# indeed# has laid down that Courts of law must treat the rovisions of the -ritish 6orth <merica <ct by the same methods of construction and ex osition which they a ly to other statutes. -ut there are statutes and statutes; and the strict construction deemed ro er in the case# for exam le# of a enal or taxin! statute or one assed to re!ulate the affairs of an (n!lish arish# would be often subversive of =arliamentNs real intent if a lied to an <ct assed to ensure the eace# order and !ood !overnment of a -ritish ColonyN: see ClementNs Canadian Constitution# Frd ed.# . F)5.O HH It is true that before the @tatute# the Kominion 'e!islature was sub8ect to the limitations im osed by the Colonial 'aws Jalidity <ct and by s. 701 of the <ct# and also by the rinci le or rule that its owers were limited by the doctrine forbiddin! extraDterritorial le!islation# thou!h that is a doctrine of somewhat obscure extent. -ut these limitations have now been abro!ated by the @tatute. There now remain only such limitations as flow from the <ct itself# the o eration of which as affectin! the com etence of Kominion le!islation was saved by s. 5 of the

0F

@tatute# a section which excludes from the com etence of the Kominion and =rovincial =arliaments any ower of Ore eal# amendment or alterationO of the <ct. -ut it is well known that s. 5 was inserted at the request of Canada and for reasons which are familiar. It is dou tless true that the po'er of the Imperial +arliament to pass on its o'n initiative any legislation that it thought fit extending to Canada remains in theory unimpaired7 indeed( the Imperial +arliament %ould( as a matter of a stra%t la'( repeal or disregard s" 8 of the Statute" But that is theory and has no relation to realities" In truth Canada is in en-oyment of the full s%ope of self5government7 its Legislature 'as invested 'ith all ne%essary po'ers for that purpose y the A%t( and 'hat the Statute did 'as to remove the t'o fetters 'hi%h have already een dis%ussed"> 3em hasis added) Sa%#ngs o' Inde&enden$e E*#st#ng laws /&on

law but would not bind the local 8udiciary to ado t the (n!lish osition. The com etin! view oint sees the rece tion of the (n!lish common law as involvin! the a lication to the articular territory of the (n!lish common law as it is develo ed by (n!lish 8ud!es from time to time. The result would be that all decisions of the &ouse of 'ords on the common law would automatically become the law in the territory receivin! the (n!lish common law and would bind the local 8udiciary# includin! resumably the =rivy Council. (ven this theory# however# would allow for the re8ection of an (n!lish common law rinci le if local circumstances demand a different rinci le. In the absence of s ecific local conditions demandin! a different rule# the (n!lish Common 'aw would be bindin!. It is clear that if a local statutory rovision incor orates the law of (n!land :for the time bein!> in force in (n!land or as it may be :from time to time># the develo in! (n!lish le!al rules would a ly automatically to the former colony. Bor exam le# in ,ohammed v ,ohammed 371*5) 70 $.I./. 702# Aelsick 9. held that a rovision incor oratin! :the ractice and rocedure of (n!land for the time bein! in force in the &i!h Court of (n!land> incor orates the ractice and rocedure of (n!land actually in force at the oint in time when the question is bein! considered. <ccordin!ly# all (n!lish develo ments since the date the incor oratin! rovision was enacted automatically a lied to Trinidad and Toba!o. Gn the other hand# one would ex ect that a statutory rovision which incor orates only the common law as it existed on a articular date would ermit the local 8udiciary to develo the common law as it saw fit irres ective of corres ondin! (n!lish develo ments. @ection 70 of the Trinidad and Toba!o @u reme Court of 9udicature <ct a eared to be such a rovision. It rovides that: @ub8ect to the rovisions of any written law in o eration on 7st 4arch 7+)+# and to any written law assed after that date# the Common 'aw# Koctrines of (quity# and @tatutes of !eneral a lication of the =arliament of the .nited Ain!dom that were in force in (n!land on that date shall be deemed to have been enacted and to have been in force in Trinidad as from that date and in Toba!o as from 7 st 9anuary 7++1. &owever in Johnson v R 371**) 7, $I/ ),0# at )72 $oodin! C.9. was of a different view. &e said: :In view of the rovisions of s F of the Gffences a!ainst the =erson Grdinance and of s 70 of the @u reme Court of 9udicature <ct which

D) Note: Inde endence was !ranted to Commonwealth Caribbean countries via Grders In Council# each of which contain a rovision intended to continue in effect all law which was in o eration at the moment of inde endence. The rovision ty ically reads as follows: OThe o eration of the existin! laws after the commencement of this Grder shall not be affected by the revocation of the existin! Grder but the existin! laws shall be construed with such modifications# ada tations# qualifications and exce tions as may be necessary to brin! them into conformity with this Grder.O -y this route# all laws received in Commonwealth Caribbean countries u on settlement or conquest# as the case may be# and not altered or re ealed by the local le!islature in the meantime# remain in force u to today. The case of Jemmot v +hang is an exam le of this. T!e re$e&t#on o' t!e $ommon law D) Note: Gne im ortant question which needs se arate consideration is the extent to which the common law was received in Commonwealth Caribbean countries. Gne view is that what was received was the body of common law rinci les as it existed on the date assi!ned for its rece tion. Thereafter# the common law of a articular territory would consist of the rules acce ted or develo ed by the local 8udiciary to meet the requirements of local circumstances. The local 8udiciary would include the =rivy Council as that territorys hi!hest court. Gn this view oint# decisions of (n!lish courts# includin! the &ouse of 'ords# on the develo in! common law would be taken into consideration in develo in! the local common

0)

incor orates as art of our law the common law of (n!land# and since any decision of the &ouse of 'ords must be re!arded as the revailin! law and# in so far as it inter rets it# the common law of (n!land# we must# whatever our own view# acce t its 8ud!ment in Smith 3C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @9 *+F# C71*,E F <ll (/ 7*7# )) Cr < /e 0*7# 0F, 'T 7F2# 057# reversin! sub nom / v @mith# C71*,E F $'/ 10# 7,) @9 27,# C71*,E 0 <ll (/ )2,# C001 'T F0FE CC<) as declaratory of the law here.> $hat makes $oodin! C.9.s rulin! in that case so strikin! is that the decision of the &ouse of 'ords in K== v @mith which he felt com elled to follow had been roundly criticised by academics and was universally considered by the (n!lish 8udiciary itself to have been wron!ly decided. The remarkable consequence of his osition was that a su osedly inde endent court in an inde endent country was er etually condemned to ado tin! and a lyin! law declared by the courts of a forei!n 8urisdiction. Bortunately# the =rivy Council has on more than one occasion acce ted its own ri!ht# as the hi!hest court of colonies and former colonies# to de art from decisions of the &ouse of 'ords# as well as local courts ri!ht to do the same if local circumstances demanded. Consider the followin! cases. 9ran6land v R C71+5E 0 $.'./. 7027# at 70*0D70*F .

com osition as the 9udicial Committee of the =rivy Council# the final Court of < eal from a 4anx court# is bound to be very hi!h. ?lidewell 9.<. cited as authority for this osition the well known case of de %asala v de %asala C71+,E <.C. 2)*# an a eal from the Court of < eal of &on! Aon!. 'ord Ki lock said# at . 225D22+: OIt has become !enerally acce ted at the resent day that the common law is not unchan!in! but develo s to meet the chan!in! circumstances and atterns of society in which it is a lied. In Australian Consolidated #ress %td v Aren C71*1E 7 <.C. 21, it was acce ted by this -oard that the common law as to the ri!ht to unitive dama!es for tort had of recent years develo ed in different ways in (n!land and in 6ew @outh $ales and that neither <ustralian courts themselves nor this -oard sittin! on an a eal from an <ustralian court were bound by the decision of the &ouse of 'ords in Roo'es v 4arnard C71*)E <.C. 7701 which limited the cate!ories of cases in which unitive dama!es could be awarded in (n!land. @o too in &on! Aon!# where the rece tion of the common law and the rules of equity is ex ressed to be Nso far as they are a licable to the circumstances of &on! Aon! or its inhabitantsN and Nsub8ect to such modifications as such circumstances may require#N a decision of the &ouse of 'ords on a matter which in &on! Aon! is !overned by the common law by virtue of the < lication of (n!lish 'aw Grdinance is not i so facto bindin! u on a &on! Aon! court althou!h its ersuasive authority must be very !reat# since the 9udicial Committee of the =rivy Council# whose decisions on a eals from &on! Aon! are bindin! on all &on! Aon! courts# shares with the < ellate Committee of the &ouse of 'ords a common membershi . This -oard is unlikely to diver!e from a decision which its members have reached in their alternative ca acity# unless the decision is in a field of law in which the circumstances of the colony or its inhabitants make it ina ro riate that the common law in that field should have develo ed on the same lines in &on! Aon! as in (n!land.O ?lidewell 9.<. correctly took the view that there was nothin! in local conditions# much less in local statutes# that should lead the court to the view that the ob8ective test as laid down in @irector of #u$lic #rosecutions v Smith C71*7E <.C. 01, was not the common law of (n!land and therefore the law of the Isle of 4an until Tynwald enacted the contrary in 71+F. In reachin! this conclusion# ?lidewell 9.<. ex ressed his awareness of the criticisms# articularly by academic writers# of @irector of #u$lic #rosecutions v Smith . It does not a ear#

8&as the 9o$*ective test9 part of )an: law until )ay -;<=, when section > of the Evidence Act -;<= incorporated into the law of the ?sle of )an section < of the Criminal 5ustice Act -;>.I 4r. Carman for the defendants submitted to their 'ordshi s that if section + of the <ct of 71*5 had not been assed# the &ouse of 'ords would# ursuant to the =ractice Kirection of 71**# have de arted from the decision in @irector of #u$lic #rosecutions v Smith# insofar as it had laid down an ob8ective test of intention# well before the defendants had committed these homicides. $hile their 'ordshi s are re ared to acce t that this mi!ht have been the case# they do not have to be so satisfied. Kecisions of (n!lish courts# articularly decisions of the &ouse of 'ords and the Court of < eal in (n!land# are not bindin! on 4anx courts# but they are of hi!h ersuasive authority# as was correctly ointed out by ?lidewell 9.<. in !ivin! the 8ud!ment of the @taff of ?overnment Kivision 3Criminal 9urisdiction). @uch decisions should !enerally be followed unless either there is some rovision to the contrary in a 4anx statute or there is some clear decision of a 4anx court to the contrary# or# exce tionally# there is some local condition which would !ive !ood reason for not followin! the articular (n!lish decision. The ersuasive effect of a 8ud!ment of the &ouse of 'ords# which has lar!ely the same

02

however# that his attention was drawn to 'ord Ki lockNs clear view ex ressed in Reg v (yam C7152E <.C. 22# 1)# that the decision was erroneous and how that error came to be made# followin! in this re!ard the observations of -yrne 9. when !ivin! the 8ud!ment of the Court of Criminal < eal in @irector of #u$lic #rosecutions v Smith# at . F,,# which their 'ordshi s have quoted. 4oreover ?lidewell 9.<. did not have the benefit of the very recent observations made by 'ord -rid!e of &arwich in his s eech in Reg v )oloney C71+2E <.C. 1,2# 107 and 10+# which their 'ordshi s have set out above# and those of 'ord @carman in his s eech in Reg v (ancoc' C71+*E <.C. )22# )5F# also quoted. Their 'ordshi s# havin! had the benefit of extended ar!ument# and# articularly in the li!ht of the recent cases# have concluded that the decision in @irector of #u$lic #rosecutions v Smith C71*7E <.C. 01,# insofar as it laid down an ob8ective test of the intent in the crime of murder# did not accurately re resent the (n!lish common law. It therefore follows that the trial 8ud!es in both trials were in error in directin! the 8ury that they were entitled to ascertain the intent of the accused by reference to an ob8ective test.> D) Note: 6ote that in this case the =rivy Council re8ected the &ouse of 'ords decision in $++ v Smith# the same case $oodin! C9 felt himself com elled to follow. Inver%argill City Coun%il v !amlin C711*E <.C. *0)# at *),D*)0 :$here the 6ew Uealand Court of < eal is ur ortin! to a ly settled rinci les of (n!lish common law# then it is the function of the -oard to ensure that those rinci les are a lied correctly. (art v 3"Connor C71+2E <.C. 7,,, was such a case# and 'ord @carmanNs observations in Tai (ing Cotton )ill %td v %iu Chong (ing 4an' %td C71+*E <.C. +,# 7,+ are to be understood in that li!ht. -ut in the resent case the 8ud!es in the 6ew Uealand Court of < eal were consciously de artin! from (n!lish case law on the !round that conditions in 6ew Uealand are different. $ere they entitled to do soI The answer must surely be OMes.O The ability of the common law to ada t itself to the differin! circumstances of the countries in which it has taken root# is not a weakness# but one of its !reat stren!ths. $ere it not so# the common law would not have flourished as it has# with all the common law countries learnin! from each other. The oint was ut by 'ord Ki lock in a very different context in 4roome v Cassell B Co %td C7150E <.C. 7,05# 7705: OGther su reme a ellate exercise a similar function tribunals in other

countries which have inherited the (n!lish common law at various times in the ast. Kes ite the unifyin! effect of that inheritance u on the conce t of manNs le!al duty to his nei!hbour# it does not follow that the develo ment of the social norms in each of the inheritor countries has been identical or will become so. I do not think that your 'ordshi s should be deflected from your function of develo in! the common law of (n!land and discardin! 8ud!eDmade rules which have outlived their ur ose and are contrary to contem orary conce ts of enal 8ustice in (n!land# by the consideration that other courts in other countries do not yet re!ard an identical develo ment as a ro riate to the articular society in which they erform a corres ondin! function.O -y the same token# the Court of < eal of 6ew Uealand should not be deflected from develo in! the common law of 6ew Uealand 3nor the -oard from affirmin! their decisions) by the consideration that the &ouse of 'ords in @ B C Estates %td v Church Commissioners for England C71+1E <.C. 755 and )urphy v 4rentwood @istrict Council C7117E 7 <.C. F1+ have not re!arded an identical develo ment as a ro riate in the (n!lish settin!. The articular branch of the law of ne!li!ence with which the resent a eal is concerned is es ecially unsuited for the im osition of a sin!le monolithic solution. There are a number of reasons why this is so. The first and most obvious reason is that there is already a marked diver!ence of view amon! other common law 8urisdictionsHHH Their 'ordshi s cite these 8ud!ments in other common law 8urisdictions not to cast any doubt on )urphy"s case C7117E 7 <.C. F1+# but rather to illustrate the oint that in this branch of the law more than one view is ossible: there is no sin!le correct answer. In 4ryan v )aloney# *1 <.'.9./. F52 the ma8ority decision was based on the twin conce ts of assum tion of res onsibility and reliance by the subsequent urchaser. If that be a ossible and indeed res ectable view# it cannot be said that the decision of the Court of < eal in the resent case# based as it was on the same or very similar twin conce ts# was reached by a rocess of faulty reasonin!# or that the decision was based on some misconce tion: see Australian Consolidated #ress %td v Aren C71*1E 7 <.C. 21,# *)). In truth# the ex lanation for diver!ent views in different common law 8urisdictions 3or within different 8urisdictions of the .nited @tates of <merica) is not far to seek. The decision whether to hold a local authority liable for the ne!li!ence of a buildin! ins ector is bound to be based at least in art on olicy considerations. <s 4ason C.9. said in 4ryan v )aloney# *1

0*

<.'.9./. F52# F55: OInevitably# the olicy considerations which are le!itimately taken into account in determinin! whether sufficient roximity exists in a novel cate!ory will be influenced by the courtNs assessment of community standards and demands.O In a succession of cases in 6ew Uealand over the last 0, years it has been decided that community standards and ex ectations demand the im osition of a duty of care on local authorities and builders alike to ensure com liance with local byelaws. 6ew Uealand 8ud!es are in a much better osition to decide on such matters than the -oard. $hether circumstances are in fact so very different in (n!land and 6ew Uealand may not matter !reatly. $hat matters is the erce tion. -oth /ichardson and 4cAay 99. C711)E F 6.U.'./. 27F# 20+# 2)* in their 8ud!ments in the court below stress that to chan!e 6ew Uealand law so as to make it com ly with )urphy"s case C7117E 7 <.C. F1+ would have Osi!nificant community im licationsO and would require a Oma8or attitudinal shift.O It would be rash for the -oard to i!nore those views.> /he State v Soo6ra- 0vans 37152) 0F $.I./. 7+1 =er &aynes 9.<.# at . 0,FD0,5:

ractice and rocedure of the Court shall be# as near as ossible# the same as the ractice and rocedure for the time bein! in force in criminal causes and matters in the &i!h Court of 9ustice# and the courts of assi"e created by commission of oyer and terminer and of !aol delivery in (n!land. The clear effect of these rovisions is# that a criminal trial on indictment in this @tate is required by law to be conducted in accordance with the ractice and rocedure of a trial in (n!land; questions of the admissibility and relevance of evidence led are to be determined accordin! to the rules and rinci les of the common law of (n!land# and any question relatin! to any indictable offence and any other matter arisin! out of# in relation to# and in the course of such a trial# is to be determined similarly. In short# on any of these matters# the (n!lish common law rule or ractice is the bindin! rule or ractice in ?uyana# exce t 3a) where a statutory enactment or rule rovides differently; or 3b) such rule or ractice cannot be a lied ro erly to local conditions. )cGreevy+s case 3)cGreevy v @## C715FE 7 <ll (/ 2,F# 25 Cr < /e )0)) went to the &ouse of 'ords on a oint of common law rule or ractice: whether it was a le!al requirement of a valid summin!Du # in a case of circumstantial evidence# to !ive the s ecial direction. The &ouse said# :6o.> Is it o en to this court# if that is our own view# to say# :MesI> The answer would be in the ne!ative if this court ado ts the view of the Court of < eal of Trinidad and Toba!o in 5ohnson v R 3371**)# 7, $I/ ),0). In that 8ud!ment# a stron! bench 3$oodin! C9# =hilli s and Braser 99<) on an a eal from a conviction for murder# had to consider the controversial &ouse of 'ords 8ud!ment in @## v Smith 3C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<). That case went to the &ouse on one question: $hat was the ro er direction to !ive a 8ury in re!ard to the necessary intent to be roved in cases of murder and also in cases under s 7+ of the Gffences a!ainst the =erson <ct 7+*7 C.AEI In the view of 'ord Ailmuir 'C# with which all of their 'ordshi s concurred# the urely sub8ective test ro osed by the Court of Criminal < eal was wron!; the ob8ective test was the ri!ht one. The Court of < eal of Trinidad and Toba!o# in the course of their 8ud!ment in which they set out to advise trial 8ud!es on the ro er direction to !ive 8uries on this question of intent# acce ted @## v Smith 3C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<) as the : revailin! law> of that island. $oodin! C9#

:6ow that the &ouse of 'ords has authoritatively decided on the sub8ect# must this court# whatever its own views mi!ht be# acce t their 8ud!ment as declaratory of the law in ?uyanaI The relevant statutory rovisions are: 37) Evidence Act, Cap 2:,F# s ). @ub8ect to this <ct and to any other written law for the time bein! in force# the rules and rinci les of the common law relatin! to evidence# shall so far as they are a licable to the circumstances of ?uyana# be in force therein. 30) Criminal %aw 13ffencesD Act, Cap +# s F. @ub8ect to the rovisions of this <ct and of any other statute for the time bein! in force all the rules and rinci les of the common law relatin! to indictable offences and other criminal matters shall# as far as they are a licable to the circumstances of ?uyana# be in force therein. 3F) Criminal %aw 1#rocedureD Act, Cap 7,:,7# s 7*. @ub8ect to this <ct and of any other statute for the time bein! in force# the

05

ex lained the reason thus 3371**)# 7, $I/ at = )72): In view of the rovisions of s F of the Gffences a!ainst the =erson Grdinance and of s 70 of the @u reme Court of 9udicature <ct which incor orates as art of our law the common law of (n!land# and since any decision of the &ouse of 'ords must be re!arded as the revailin! law and# in so far as it inter rets it# the common law of (n!land# we must# whatever our own view# acce t its 8ud!ment in Smith 3@## v Smith C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<) as declaratory of the law here. This o inion%that where the common law of (n!land is a art of the law of an inde endent Commonwealth territory# a decision of the &ouse of 'ords on a oint of common law must be acce ted by the courts of the latter without question as the common law of (n!land and hence their law%had the 8udicial su ort of Cummin!s 9<# in #eter #ersaud and 3thers v #ln Eersailles B Schoon 3rd %td 33715,)# 75 $I/ 7,5). The question there was whether the law of :un8ust enrichment> a lied here. The learned 9ustice of < eal said: :...I have !rave doubt as to whether the law of un8ust enrichment is a art of the law of ?uyana.> 337157)# 75 $I/ at 702) &e cited Jiscount Kunedins statement in the #rivy Council in Ro$ins v National Trust Co %td 3C7105E <ll (/ /e 5F# 1* '9=C +)# 7F5 'T 7# )F T'/ 0)F# 57 @ol 9o 72+# =C# F, Ki!est 3/e l) 000# *22) 3C7105E <ll (/ /e at 5*) that the &ouse of 'ords was :the su reme tribunal to settle (n!lish law>; he referred to s F of the then Civil 'aw of -ritish ?uiana Grdinance# Ca 0%>The common law of the Colony shall be the common law of (n!land#> then to 'ord =orters statement in Reading v Attorney General 3C7127E 7 <ll (/ *075# C7127E <C 2,5# C7127E 7 T'/ )+,# 12 @ol 9o 722# *5 'Q/ 0+)# &'# F) Ki!est 3/e l) 7)1# 7,0+) 3C7125E 7 <ll (/ at *71): :...I am content for the ur oses of this case to acce t the view that it 3the law of enrichment) forms no art of the law of (n!land#> and then Cummin!s 9<# said 337157)# 75 $I/ at 705): 'ord =orters 8ud!ment with which the 'ord Chancellor# Jiscount 9owitt# a!reed# must be re!arded as a declaration of the &ouse of 'ords as to the state of the common law of (n!land with res ect to the doctrine of un8ust enrichment and is consequently bindin! on this court. &e concluded with these words 3i$id at 705):

since the Inde endence Constitution of 71**# this court is free to determine the common law of ?uyana without reference to the roviso of the Grdinance... -ut let us look further afield to see what stand other Commonwealth 8udicial minds have taken on this im ortant to ic. In R v Seaton 3371FF)# 20 6U'/ 2)+) we find 4yers C9# ronouncin! on :the duty of obedience to the decision of the &ouse of 'ords by which our Courts are bound> 3371FF)# 20 6U'/ at 225); /eed 9# statin! that what was said in Russell v Russell 3C710)E <C *+5)# a celebrated 8ud!ment of the &ouse of 'ords# was :bindin! on this Court> 3i$id at 2*+); and 4c?re!or 9# s eakin! of :our lain duty in the resent case to obey the rule rescribed by the &ouse of 'ords in Russell v Russell 3C710)E <C *+5)>. It is a fair inference to draw that (n!lish law must then have been a art of the law of 6ew Uealand# thus equatin! the osition as to the authority of a &ouse of 'ords decision as a 8udicial recedent# with that of this @tate. In <ustralia# the same 8udicial effect# thou!h not with such ex ressed humility and 8udicial subservience# was assi!ned to a &ouse of 'ords 8ud!ment on a oint of (n!lish law# rior to 71*0. This is reflected in the 8ud!ments delivered in the &i!h Court in #iro v & Coster B Co %td 3371)FD)))# *+ C'/ F7F). <ll the 8ud!es 3'atham C9# /ich# @tarke# 4cTiernan and $illiams 99) stressed that the &i!h Court was not technically bound by a decision of the &ouse of 'ords; but determined that !enerally it should and would follow all rulin!s of that tribunal on oints of law common to both countries. In articular# the Chief 9ustice ointed out 3371)FD )))# *+ C'/ at F0,) that# :The &ouse of 'ords is the final authority for declarin! (n!lish law# and where a case involves only rinci les of (n!lish law which admittedly are art of the law of <ustralia# and there are no relevant differentiatin! local circumstances# the &ouse of 'ords should be re!arded as finally declarin! that law.> <nd $illiams 9 ut the osition thus 3i$id at F)7): :< decision of the &ouse of 'ords is a decision of the hi!hest 8udicial tribunal of the (m ire.> <nd# :It is the invariable ractice for the <ustralian courts# includin! this Court# to follow a decision of the &ouse of 'ords as of course# without attem tin! to examine its correctness#...> -ut after the controversial @## v Smith 3C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<)# the &i!h Court reversed this stand. $e find that in #ar'er v R 3#iro v & Coster B Co %td 371)FD)))# *+ C'/ F7F) @ir Gwen Kixon C9# s eakin! for the whole court# said of this decision of the &ouse 3371*0)# 777 C'/ at *F0D*FF): ...I think it forces a critical situation in our

I disa!ree with my learned brothers that

0+

3Kominion) relation to the 8udicial authority as recedents of decisions in (n!land. &itherto I have thou!ht that we ou!ht to follow decisions of the &ouse of 'ords# at the ex ense of our own o inions and cases decided here# but havin! carefully studied Smith+s Case 3@## v Smith C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<) 3C71*7E <C 01,)# I think that we cannot adhere to that view or olicy. There are ro ositions laid down in the 8ud!ment which I believe to be misconceived and wron!. They are fundamental and they are ro ositions which I could never brin! myself to acce t. I shall not discuss the case. There has been enou!h discussion and# erha s I may add# ex lanation# to make it unnecessary to !o over the !round once more. I do not think that this resent case really involves any of the soDcalled resum tions but I do think that the summin!Du drew the to ic into the matter even if somewhat unnecessarily and therefore if I left it on one side some misunderstandin! mi!ht arise. I wish there to be no misunderstandin! on the sub8ect. I shall not de art from the law on the matter as we had lon! since laid it down in this Court and I think Smith+s Case 3@## v Smith C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<) should not be used as authority in <ustralia at all. I am authori"ed by all the other members of the &i!h Court to say that they share the views ex ressed in the fore!oin! ara!ra h. <nd so it ha ened that in Aren v Australian Consolidated #ress %td 33unre orted)# &i!h Court of <ustralia) 3unre orted) the &i!h Court unanimously disa!reed with and decided contrary to the &ouse of 'ords 8ud!ment on exem lary dama!es for libel in Roo'es v 4arnard 3C71*)E 7 <ll (/ F*5# C71*)E <C 7701# C71*)E 0 $'/ 0*1# 7,+ @ol 9o 1F# 7 'loyds /e 0+). This decision reached the =rivy Council 3see Australian Consolidated #ress %td v Aren 3C71*5E F <ll (/ 20F# C71*1E 7 <C 21,# C71*5E F $'/ 7F++# 777 @ol 9o 5)7# =C))# and was not disturbed. 'ord 4orris indicated that in the circumstances of the case 3C71*5E F <ll (/ at 2F+)%>...it became a question for the &i!h Court to decide whether the decision in Roo'es v 4arnard 3C71*)E 7 <ll (/ F*5# C71*)E <C 7701# C71*)E 0 $'/ 0*1# 7,+ @ol 9o 1F# 7 'loyds /e 0+) com elled a chan!e in what was a wellD settled 8udicial a roach in the law of libel in

<ustralia.> <s narrated in the 8ud!ment of /ich 9# in &aghorn v &aghorn 3371)7)# *2 C'/ 0+1) 3371)7)# *2 C'/ at 01F)# :the @tates formin! the Commonwealth are !overned by common law# modified by statute>. @o it is that Australian Consolidated #ress %td v Aren 3C71*5E F <ll (/ 20F# C71*1E 7 <C 21,# C71*5E F $'/ 7F++# 777 @ol 9o 5)7# =C) is hi!h authority that where the common law of (n!land is art of the law of an inde endent territory# even thou!h the &ouse of 'ords is# in (n!land# the final authority to lay down what the (n!lish common law is# the hi!hest court of such inde endent territory is not bound always to acce t and follow the &ouse of 'ords as declaratory of their law# without examinin! its correctness. In Canada# we read that in R v Storgoff 3C71)2E F K'/ *5F)# /infret C9C# ex ressed the o inion that 3C71)2E F K'/ at *+)): ...the @u reme Court of Canada is now the Court of last resort in criminal matters; and althou!h# of course# former decisions of the =rivy Council# or decisions of the &ouse of 'ords# in criminal causes or matters# are entitled to the !reatest wei!ht# it can no lon!er be said# as was affirmed ... in Ro$ins v National Trust Co 3C7105E <ll (/ /e 5F# 1* '9=C +)# 7F5 'T 7# )F T'/ 0)F# 57 @ol 9o 72+# =C# F, Ki!est 3/e l) 000# *22)# 37105) 0 K'/ at 7,,# <C at 271# that the &ouse of 'ords# bein! the su reme tribunal to settle (n!lish law ... the Colonial Court which is bound by (n!lish law is bound to follow it. <nd in Ares v Eenner 3C715,E @C/ *,+) the @u reme Court took a stron! inde endent line. The laintiff <res sued Kr Jenner for ne!li!ence. &e tendered in evidence notes made by nurses who attended him in hos ital# but were not called as witnesses. The evidence was admitted# des ite ob8ection# and 8ud!ment was !iven for the laintiff. The Court of < eal of <lberta ordered a new trial on the !round that the notes were inadmissible as hearsay# on the authority of the ma8ority 8ud!ment of the &ouse of 'ords in )yers v @irector of #u$lic #rosecutions 3C71*2E <C 7,,7# C71*)E F $'/ 7)2# C71*)E 0 <ll (/ ++7# 70+ 9= )+7# 7,+F @ol 9o 271# )+ Cr < /e F)+# 05 4'/ *,*; +, 'Q/ )25). -ut the @u reme Court allowed the a eal from this order and restored the 8ud!ment at trial. That court# ado tin! the minority 8ud!ment in 4yers# held the evidence admissible at common law as an exce tion to the hearsay rule. <ll the 8ud!es in the &ouse of 'ords and of the @u reme Court of Canada were unanimous that# as the common law stood at the trial sta!e in both cases# evidence of this kind was hearsay and that to receive it in evidence would involve an extension of the common law exce tions to the hearsay rule. The ma8ority in )yers 3)yers v @## C71*2E <C

01

7,,7# C71*)E F $'/ 7)2# C71*)E 0 <ll (/ ++7# 70+ 9= )+7# 7,+F @ol 9o 271# )+ Cr < /e F)+# 05 4'/ *,*; +, 'Q/ )25) 3'ords /eid 4orris and &od!son) held only =arliament could do this; while the minority 3'ords Konovan and =earce) su orted a 8udicial extension by the &ouse itself. It was this latter view oint that revailed in Ares v Eenner 3C715,E @C/ *,+). The @u reme Court of Canada itself 8udicially extended the common law exce tions to the hearsay rule in o osition to the &ouse of 'ords decision that to do so 8udicially was im ermissible. <nd it is si!nificant to observe that in 5ohnson v R 3371**)# 7, $I/ ),0) the Court of < eal of Trinidad and Toba!o in fact did advise trial 8ud!es to direct 8uries on the sub8ective test and not alon! the lines of 'ord Ailmuirs ob8ective one in @## v Smith 3C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<)# in s ite of the courts acce tance of it as the law of Trinidad and Toba!o. $oodin! C9# after referrin! to :a hurricane of criticism in (n!land itself> of that 8ud!ment# and its re udiation by every member of the -ench of the &i!h Court of <ustralia# referred to its restriction by 'ord Kennin! 3who had concurred in the 8ud!ment) within very narrow limits# to the facts of the case. &e cited 3371**)# 7, $I/ at )72) from the 8ud!ment of the 4aster of the /olls in (ardy v )otor ?nsurers 4ureau 3C71*)E 0 <ll (/ 5)0# C71*)E 0 Q- 5)2# C71*)E F $'/ )FF# 7,+ @ol 9o )00# 7 'loyds /e F15# 05 4'/ 575# +7 'Q/ 5) 3C71*)E 0 <ll (/ at 5)2) this assa!e: <ll that Smith+s case 3@## v Smith C71*,E F <ll (/ 7*7# C71*7E <C 01,# C71*,E F $'/ 2)*# 70) 9= )5F# 7,) @ol 9o *+F# )) Cr < /e 0*7# 0F, 'T 7F2# reversin! su$ nom R v Smith# C71*,E 0 <ll (/ )2,# C71*,E F $'/ 10# 7,) @ol 9o 27,# 001 '/ F0F# CC<) decided# as a matter of bindin! authority# was that the 8ud!es direction to the 8ury ... was correct ... the assa!e which has been most criticised is refaced by the words in such a case as the resent. Then $oodin! C9# continued: $e are enheartened by this assurance. <lthou!h we entertain doubts as to whether the broad terms of the 8ud!ment can be so restricted# we are encoura!ed to think that later 8udicial inter retation may distin!uish them so as to make them ro erly a licable only to such facts as were then in issue. <nd then:

$e come then to the advice we !ive. <nd we !ive it fully conscious thou!h we are of the revailin! law as established by Smith. -ut notwithstandin! Smith# some 8ud!es in (n!land continue to direct 8uries in sub8ective terms: see @mith and &o!an on Criminal 'aw at 71). They reco!nise# as all our 8ud!es should# that it is not an abstraction who stands in the dock. The accused is on trial. <nd it is his alle!ed act and his alle!ed intent that the 8ury are sworn to inquire into so as to reach their verdict. &ere# the court exercised a 8udicial freedom not to a ly the ob8ective rinci le settled in the 8ud!ment of the &ouse because a stron! consensus of academic disa roval# hi!h 8udicial effort to distin!uish# and some 8udicial disre!ard created a real likelihood that the &ouse itself mi!ht later minimalise its a lication by a restrictive inter retation. The im ortant thin!# however# is that# without waitin! for this to ha en# the court advised the 8ud!es to direct 8uries on the sub8ective rinci le. In the li!ht of these 8udicial attitudes# I would move that this court should act on the rinci le that# althou!h for obvious reasons it will be redis osed to acce t# and normally will acce t# a 8ud!ment of the &ouse of 'ords on a oint of (n!lish common law as correct and as our law 3unless# of course# the exce tions a ly)# it has a 8urisdictional freedom and a constitutional 8udicial duty to hold differently# if we are convinced fully on 8ust !rounds that the rinci le or rule laid down in it or the declaration of what is not the common law# is misconceived and wron!.> D) note: To the extent that# on either a roach# local 8ud!es acce t their res onsibility to develo the common law as local conditions demand# it does not make any real difference which of the com etin! a roaches is ado ted. &owever# to the extent that local courts are re ared to de art from (n!lish decisions on the basis of ure olicy considerations# as the <ustralian &i!h Court has done# or sim ly because the (n!lish decision is considered to be wron! 3as the =rivy Council did in 9ran6land v R and on the ?uyanese Court of < eal a ears ready to do)# the ado tion of the first a roach could lead to the develo ment of more indi!enous# inde endent 8uris rudence. 6ote however# that as lon! as the =rivy Council remains the hi!hest court of Commonwealth Caribbean countries there is an in built ressure to follow the decisions of the &ouse of 'ords !iven the overla in! com osition of the two bodies. Kou!las ' 4endes @.C. @e tember 0,7,

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Byard &osein @.C. @e tember 0,77

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