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construction; (s) and the tendency of its decisions is in conformity with political considerations, and is markedly to extend (t) and not to limit the authority of colonial Legislatures, which are recognised as supreme within their own domain.

Acts of this class cannot be repealed or amended by the colonial Legislatures unless they contain express provisions to that effect. The British North America Act, 1867, can be amended only by the imperial Parliament,(u) but the Constitution Acts of the Australian colonies in most cases contain provisions empowering the colonial Legislature to amend certain parts of the Constitution.(w)

Acts which extend to all her Majesty's dominions, override the inconsistent provisions of every prior imperial or colonial Act relating to any British possession. This is a clear constitutional rule, and has been recognised in Canadian decisions.(x) Every subsequent colonial Act which is repugnant to an imperial Act extending to the colony, or to any Order in Council or regulation made under the Act, or having in the colony the effect of the Act, is void and inoperative to the extent of the repugnancy.(y)

But very few modern Acts extend to the whole of the empire, and it is now usual to insert in Acts of this class a suspensory clause, enabling the imperial Government to suspend the operation in a colony of an imperial Act, so long as a satisfactory equivalent for its terms is provided by the colonial Legislature.(z)

In the case of Merchant Shipping and Admiralty jurisdiction the intervention of the imperial Legislature

(8) Citizens' Insurance Co. v. Parsons (1883), 9 App. Cas. 96. Hodge v. R. (1883), 9 App. Cas. 117, 128.

(t) Harris v. Davies (1885), 10 App. Cas. 279; Powell v. Apollo Candle Co. (1885), 10 App. Cas. 282; Cheong Tung Toy v. Musgrove (1891), A. C.

247.

(u) See Todd, Parliamentary Government in the Colonies (1st ed.), p. 189; 34 & 35 Vict. c. 28; 38 & 39 Vict. cc. 38, 53.

(w) E.g., Western Australia Constitution Act, 1889 (53 & 54 Vict. c. 26),

8. 5.

(x) R. v. College of Physicians and Surgeons (1879), 44 Upp. Can. Q. B. 564, on the Medical Act, 1868.

(y) 28 & 29 Vict. c. 63, s. 2.

2) E.g., Extradition Acts, 1870 and 1873; Official Secrets Act, 1889.

is essential, the colonies only having such powers of extra-territorial legislation as are expressly conferred by their Constitution Acts or other imperial legislation.

In the case of an imperial Act it would seem that the decisions of the Courts of the United Kingdom (even if not of the last resort), though not strictly binding on the colonial Courts, should be followed by them.(a)

The English Bankruptcy Act, 1869, applied, sub modo, to all her Majesty's dominions, (b) and the Bankruptcy Act, 1883, seems to apply to land in any part of the world.(c) In Williams v. Davis (1891), A. C. 460, at p. 465, the Judicial Committee said: "The Supreme Court lays down the principle that an imperial Act does not apply to a colony unless it be expressly so stated or necessarily implied. They point out that there is no case deciding that land in a colony passes under s. 17 (of the Bankruptcy Act, 1869); and they dwell on the inconveniences which would arise from conflicts of law if an English statute were to transfer land beyond the limits of the United Kingdom. On these grounds they hold that under the word "property (in s. 17) land in Lagos does not pass to the trustee in bankruptcy. Upon this reasoning their lordships have to remark that there is no question here of any conflict between English and foreign law. Lagos was not in 1869, and is not now, a foreign country. How far the imperial Parliament should pass laws framed to operate directly in the colonies is a question of policy, more or less delicate, according to circumstances. No doubt has been suggested that if such laws are passed they must be held valid in colonial courts of law. (d) It is true that the laws of every country must prevail with respect to the land situated there. If the laws of a colony are such as would not admit of a transfer of land by a mere vesting order or mere appointment of a trustee, questions may

(a) See Trimble v. Hill (1880), 5 App. Cas. 342.

(b) Vaughan Williams on Bankruptcy (5th ed.), p. 181.

(c) In re Artola (1890), 24 Q. B. D. 640.

(d) See R. v. College of Physicians and Surgeons (1879), 44 App. Cas. Q. B. 564, on the imperial Medical Act.

arise which must be settled according to the circumstances of each case. Such questions are specially likely to arise in those colonies to which the imperial Legislature has delegated the power of making laws for themselves, and in which laws have been made with reference to bankruptcy." The Judicial Committee went on to say, at p. 466: "If a consideration of the scope and object of a statute leads to the conclusion that the Legislature intends to affect a colony, and the words used are calculated to have that effect, they should be so construed. It has been pointed out above [p. 465] that some sections of the statute clearly bind the colonies in words which do not necessarily, but which may, apply to land. By the Bankruptcy Act of 1849 (12 & 13 Vict. c. 106), s. 142, all lands of the bankrupt in England, Scotland, Ireland, or in any of the dominions, plantations, or colonies belonging to her Majesty, are to vest in his assignees.' By the Bankruptcy Act of 1883 (46 & 47 Vict. c. 52), s. 168, the property which is passed to the trustee includes 'land, whether situate in England or elsewhere.' The Scotch Act of Bankruptcy, passed in 1856 (19 & 20 Vict. c. 72), s. 102, vests in the trustee the bankrupt's 'real estate situate in England, Ireland, or in any of her Majesty's dominions.' The Irish Act of Bankruptcy, passed in 1857 (20 & 21 Vict. c. 60), s. 268, vests in the bankrupt's trustee all his land, wheresoever situate.' No reason can be assigned why the English Act of 1869 should be governed by a different policy from that which was directly expressed in the Scotch and Irish Acts and in the English Acts immediately preceding and immediately succeeding. It is a much more reasonable conclusion that the framers of the Act considered that in using general terms they were applying their law wherever the imperial Parliament had the power to apply it; and their lordships hold that there is no good reason why the literal construction of the words should be cut down so as to make them inapplicable to a colony."(e)

(e) See Ex parte Rogers (1881), 16 Ch. D. 666, per Jessel, M. R.

colonies.

Prima facie the common and statute law of England Planted as it was on the plantation of the colony extends to every British colony (including the United States of North America) which was colonised without conquest or cession by a civilised Power. It is deemed to have been planted with the settlers as their personal law. The question whether a given English or British Act extends to a colony is not in truth a question of construction, but of history. The answer depends, not upon anything in the terms of the Act itself, but upon the opinions of the judges as to whether the Act is one which in its nature could be treated as forming part of the body of law which Englishmen would carry with them to a new country. For an Act passed prior to the formation of a colony to run in the colony without express words, the Act must be applicable to the circumstances of the colony,(f) or be adopted by colonial Act or ordinance,(g) or applied by royal charter.(h)

The law on this subject is thus summed up by Lord Watson in Cooper v. Stuart (1889), 14 App. Cas. 286, at p. 291: "The extent to which English law is introduced into a British colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between a colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consists of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The colony of New South Wales belongs to the latter class. In case of such a colony the Crown may by ordinance, and the imperial Parliament or its own Legislature, when it comes to possess one, may by statute, declare what part of the common and statute law of England shall have effect

(f) Whicker v. Hume (1858), 1 D. M. & G. 506, 7 H. L. C. 124; Jer v. M'Kinney (1869), 14 App. Cas. 79; 1 Bi. Comm. 108.

(g) Att.-Gen. v. Stewart (1817), 2 Meriv. 143.

(4) See Jephson v. Riera (1835), 3 St. Tr. N. S. 591, as to Gibraltar, a conquered colony.

within its limits. But when that is not done the law of England must (subject to well-established exceptions) become from the outset the law of the colony, and be administered by its tribunals. In so far as it is reasonably applicable to the circumstances of the colony, the law of England must prevail until it is abrogated or modified either by ordinance or statute. The oftenquoted observations of Sir William Blackstone (1 Comm. 107) appear to their lordships to have a direct bearing upon the present case. He says: It hath been held that if an uninhabited country be discovered and planted by English subjects, all the laws then in being which are the birthright of every English subject are immediately there in force (Salk. 411, 666). But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to the condition of an infant colony; such, for instance, as the general rules of inheritance and protection from personal injuries. The artificial requirements and distinctions incident to the property of a great and commercial people-the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance of the Established Church, the jurisdiction of spiritual Courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the decision and control of the King in Council; the whole of their Constitution being also liable to be new modelled and reformed by the general superintending power of the Legislature in the mother country." Blackstone in that passage was setting right an opinion attributed to Lord Holt, that all laws in force in England must apply to an infant colony of that kind. If the learned author had written at a later date he would probably have added that, as the population, wealth, and commerce of the colony increase, many rules and principles