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to interpose in this case are not in force here, and consequently that right cannot be sustained by them.
Then, upon the best consideration I have been able to give to the question, I am of opinion that neither the statute 33 Hen. VIII. c. 39, nor that of 13 Elizabeth, c. 4, extend to, or are operative in, this province. There is confessedly no precise rule, nor can we expect to find any direct decision, as to what Imperial statutes extend to the colonies discovered, settled, and peopled by British subjects. The question seems to be, and indeed must of necessity be, left open to be decided in each particular colony and case by the courts established in those colonies. A law that would be very fit, advantageous, and applicable to one colony, might be very inapplicable to, and unfit for another -one very requisite in one colony, might not be at all required in another; nay, might be very unfit for it, and injudicious to be adopted.
" The general rule on this subject appears to be, that wherever English subjects discover and possess themselves of an uninhabited country, they carry with them such of the English laws then in force as are applicable and necessary to their situation and the condition of the infant colony; as, for instance, laws for the protection of their persons and property. Wherever an Englishman goes, he carries with him as much of the English law and liberty as the nature of his situation will allow. Lord Mansfield, in the case of Lindo v. Lord Rodney, reported in note (1) to the case of Le Caux v. Eden, Doug. 594, says: The colonies take all the common and statute law of England applicable to their situation and condition.' Blackstone, in his Commentaries, Vol. I. 106 thus lays it down: Besides these adjacent islands (the islands of Jersey, Guernsey, and others) our more distant plantations in America and elsewhere are also, in some respects, subject to the English law. Plantations or colonies in distant countries are either such where the lands are claimed by right of occupancy only, finding them desert and uncultivated, and peopling them for the mother country; or, when already cultivated, they have either been gained by conquest, or ceded to us by treaties; and both these rights are founded upon the law of nature, or at least, upon that of nations. But there is a difference between these two species
of colonies with respect to the laws by which they are bound; for it hath been held that if an uninhabited country be discovered and planted by English subjects, all the Englislı laws then in being, which are the birth-right of every subject, are immediately there in force. But this' (that is the doctrine laid down in Salk. 411 and 666, whom Blackstone quotes) ‘must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great commercial people, the laws of police and revenue (such especially as are inforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and, therefore, are not in force. 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 revision and control of the King in Council.'
“Blackstone, therefore, dissents from the unrestricted position in Blankard v. Galdy, Salk. 411.
“Chitty, on Prerogatives of the Crown, p. 30, appears to adopt the doctrine as modified and restricted by Blackstone. He says, If an uninhabited country be discovered and peopled by Eng. lish subjects, they are supposed to possess themselves of it for their sovereign, and such of the English laws then in force as are applicable and necessary to their situation and the condition of an infant colony-as, for instance, laws for the protection of their persons and property—are immediately in force. Wherever an Englishman goes, he carries with him as much of English law and liberty as the nature of his situation will allow.'
“Chitty refers to an anonymous case, in 2 P. Will. 75, and to the Queen v. Mayor and Aldermen of Norwich, 2 Ld. Raymond, 1245, in which last case Lord Holt refers to Blankard v. Galdy.
“Clarke's Colonial Law, p. 7, is merely a repetition of what Blackstone has already said on this subject, and from whom I have quoted.
" The whole tenor and spirit of what all the writers on this subject have said, and of all the cases relating to it, in my mind, leave the question under consideration widely open, and that whether a particular statute does or does not extend to a colony is to be decided in each particular case by the colonial judicature, subject to an appeal home.
" When this colony was first settled and possessed by English subjects, were these two statutes applicable and necessary to the condition and state of the first occupiers and possessors ? Did the state of the colony require them to be in force? I do not conceive the question to be whether the whole or some small part of these Acts might not, as it were, be pressed into the service, but whether they are necessary to our wants and requirements ? Looking then at the matter in this point of view, I cannot say that these statutes were, or are, necessary to the state and condition of Nova Scotia—to its wants and requirements. In that great country where these statutes were passed, the rights of the Crown were considered sufficiently protected under the common law until the time of their enactment; and in an infant colony like this, at its first settlement, and even now, the rights of the Crown will find ample and adequate protection under that same law, without requiring the aid of these stringent statutes. There is no danger, I think, of its being prejudiced in the collections of its revenue, or otherwise.
“Up to this period I have never heard of any complaint or difficulties upon the subject. In England, where the Crown revenues were so great, and derivable from so many resources, and where its dues necessarily pass through so many hands, it might be very proper to clothe the Crown with greater authority and security to collect its revenues. But how could that be necessary here, on the first settlement of the country, when the Crown may be literally said to have had no revenue from any source, nor any debts due to it? But how has the colonial legislature silently spoken upon this subject? If it had been thought that these statutes were wholesome, necessary, and applicable to us, I cannot but think that our legislature would have so said by re-enacting them. The legislature, in its very first session in 1758, did re-enact many provisions of English statutes which were thought applicable to our situation, and
from time to time such re-enactments have found their way into our statute books, but we find nothing of these statutes being re-enacted. Does not then this fact show in strong colors what the opinion of our legislature was and has been on the matter? for, as I have remarked, if occasion had called for it, there undoubtedly would have been a re-enactment. As far, therefore, as the opinion of the legislature may be gathered, these statutes do not extend to us; and I must add, that, on a reference to our statute book, it will be found that very particular attention has been paid to the securing the debts of the Crown under our various revenue Acts, and particularly under those of a later date. The mode of securing and the manner of collecting are precisely pointed out, so that it is manifest the subject of the Crown debts has been under the consideration of our own legislature. I allude to this, not as showing that our legislature would abrogate the statutes of Henry and Elizabeth, but as an argument that they did not extend to us.
“ Thus far, then, as to the legislature. What, then, has been the opinion and practice among the profession ? Cases must have arisen in which these statutes, if extending here, might, and probably would, be called into operation; and yet this is the first occasion on which the attention of any court in the province has been called to them. The contrary has not been asserted; and, no doubt, the fact is, that the writ of extent never issued in this country. The ordinary process of our courts has invariably been the mode of collecting the Crown debts. Why, then, has this been so ? I apprehend merely because no inconvenience has ever been found to flow from following the ordinary and prevailing practice—no detriment to the rights or interests of the Crown. This non-user, if I may so speak, of either of these statutes, this want of any reference to them, convinces me that the profession, at all events, never considered them as having any efficacy with us.
“Now, the interest in this case is entirely local, it alone concerns the province and the support of its government; no portion of this money goes into the private coffers of the sovereign, or into the Imperial treasury; and when circumstances shall demand it, doubtless we shall pass our statutes of Henry and Elizabeth, as was done in England.
But let us suppose that our legislature in 1758 had re-enacted these two statutes, or that portion of them which relates to the matter in hand; could it be said that they were necessary, or rather, could it be denied that their enactment would have been absurd, inasmuch as there was nothing for them to operate on.
· The question, therefore, after all, is a narrow one, and may be said to be more addressed to our judgment, as prudent and right-judging men, than as lawyers and judges. My opinion, therefore, is based upon this consideration, that neither of these statutes was applicable and necessary to our state and condition when the province was first settled, nor at any time since, and that the rights of the Crown are amply protected and secured by the common law.”
Acts in curtailment of prerogative seem to have been favorably looked on by Nova Scotia judges. Magna Charta and the second and third charters of Henry III. were held (f) to be operative within the province, to prevent the Crown from granting a general right of fishery; for, as was said, a grant to support that must be as old as the reign of Henry II., and, therefore, beyond legal memory; for, by Magna Charta and the charters of Henry III., the king is expressly precluded from making fresh grants. Again, it was held (9) that where land had been granted, with a condition that the grant should be void if the land were not settled upon within a certain time, no new grant could be made without inquest taken; the provisions of the statutes 8 Henry VIII. c. 16, and 18 Henry VIII. c. 6, being held operative within the province, to prevent such new grant from taking effect. The view acted upon by the court is thus expressed :
"The very grievances intended to be remedied and redressed by this statute, are those under which the subjects of this province might well say they labored, if it were held that land,
(f) Meisner v. Fanning, 2 Thomp. 97.
(9) Wheelock v. McKeown, 1 Thomp. 41 (2nd ed.); and see also Miller v. Lanty, ib., 161.