valid a statute of the colony of New South Wales Prop. 26 assuming so to do. Barry, J., says: "The power of extradition from any part of the British dominions. to another, or from any part of them to those of a foreign power by treaty, requires the sanction of the Imperial parliament." In the subsequent Victorian case, indeed, of Regina v. Call, Ex parte Murphy,2 Higinbotham, J., held that though the Act of the Victoria legislature which he was then considering did authorize in certain cases the imprisonment of a person beyond the geographical limits of Victoria, and that," as a matter of abstract speculation, the legislature of Victoria had no jurisdiction beyond these limits," yet the law was nevertheless binding on Victorian Courts and magistrates, but this view 1At p. 281. So in The Brisbane Oyster Fishery Co. v. Emerson, Knox, (N.S.W.), at p. 86, (1877), Sir J. Martin, C.J., says, obiter:-"Whatever the powers of the Imperial legislature over all British subjects, wherever they are, may be, it cannot be contended for a moment that any colonial legislature can bind persons residing out of its colony. Laws This difficulty has been practically felt wherever it has been proposed detention of authorizing to establish a colonial navy, inasmuch as our legislature has no coercive the person jurisdiction outside the limits of our own territory." And it would extra fines. appear that on the question being raised before the Supreme Court of New Zealand in 1879, "it was adjudged that the colonial legislature had no power to authorize the conveyance on the high sea to another colony, and the detention outside its own jurisdiction of any person whatsoever. Such power must be exercised, or expressly conferred on the local legislature, by Imperial enactment:" Todd's Parl. Gov. in Brit. Col., 2nd ed., p. 303, q.v. In a debate in the House of Lords, on April 16th, 1875, upon the exercise of the prerogative of pardon in colonies enjoying responsible government, a case being mentioned where the governor of New South Wales had commuted a sentence of imprisonment conditionally on the offender absenting himself from the Australian colonies, Lord Carnarvon, Secretary of State for the Colonies, observed :-" The colony, as a part of the Empire, had no right to transport a criminal to another part of the Empire." To which Lord Belmore, who had been governor of New South Wales, replied that:— "There was difference between exile and transportation. Nobody in New South Wales ever supposed that a governor could transport, but he could pardon on condition of a prisoner exiling himself for the remainder of the term of his sentence:" Hans., 3rd Ser., Vol. 223, at p. 1074. Imp. 6-7 Vict., c. 34, provides that offenders charged with certain felonies may be apprehended by virtue of a warrant issued as therein mentioned in any part of Her Majesty's dominions, and may be sent to the place where the offence was committed. 27 V.L.R., L. at p. 118, (1881). Prop. 26 has been already adversely commented on.1 seems clear that if the limitation to the powers of colonial legislatures indicated in the above authorities, which it will be observed are not of the highest order, really exists, even in respect to the colony's own subjects, it must rest upon the proper interpretation of the fundamental laws under which such powers are derived, and not upon any rules of international law, and the same remark applies to all other kinds of extra-territorial laws in their application to subjects of the law-maker. Laws affecting property of persons abroad. Proceeding now to the second division of the subject above mentioned, namely, statutes purporting to affect and control the civil rights and rights and property of persons residing out of the territory of the law-maker, the point decided in Low v. Routledge is that a colonial legislature cannot affect an alien's rights beyond the limits of the colony. There the plaintiff, an alien, temporarily resident in Montreal, claimed to be entitled to copyright under the Imperial Copyright Act, 5-6 Vict., c. 45, in respect to a book she was publishing Routledge. in England, and it was unsuccessfully contended that she could not be so entitled because by a Canadian statute an alien coming into Canada for the purpose of publishing a work, as the plaintiff had done, and publishing his book there, would not be entitled to copyright in the work so published, Low v. 1 Supra p. 263, n. 1. 2For a justification of this expression see infra p. 329. Boyd, C., says in Reg. v. Brierly, 14 O. R. at p. 533, (1887):-"Quoad Canada, and as to British subjects resident here, the parliament of Canada has the same authority as that possessed by the Imperial parliament with reference to British subjects throughout the realm ;" and it is submitted that this is the necessary conclusion from the authorities upon which Proposition 17 rests, to some of which he refers. 3L.R. I Ch. 42, (1865). See supra pp. 213-6. 2 Routledge. and because an alien coming into Canada could Prop. 26 acquire only such rights as were given by the law of Canada. Sir G. J. Turner, L.J., however, delivering the judgment of the Court, says1:-"This argument on the part of the defendants is, in truth, founded on a confusion between the rights of an Low v. alien as a subject of the colony, and his rights as a subject of the Crown. Every alien coming into a British colony becomes temporarily a subject of the Crown,-bound by, subject to, and entitled to the benefit of the laws which affect all British subjects. He has obligations and rights both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony, he cannot be affected by these laws; for the laws of a colony cannot extend beyond its territorial limits." Most of the decisions 1At pp. 46-7. This expression, "subject of the colony," is significant and important. In an article in 31 C.L.J. 7, entitled "Can a Colonial legislature affix a criminal character to acts committed beyond its territorial limits?" the writer says that "there is no such thing as a Canadian, Australian, or Indian subject;" and in an international sense no doubt this is so; but the above dicta, and other authorities presently to be referred to, (infra pp. 332-3), show that in connection with the matters under discussion there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such. See the dictum of Boyd, C., in Regina v. Brierly, supra p. 328, n. 2. 3It would seem that the status of individuals resident in the colonies must be determined by the law of England, but the rights and liabilities incidental to such status must be determined by the laws of the colony: In re Adam, I Mo. P.C. 460, (1837); Donegani v. Donegani, 3 Kn. at p. 85, (1835); Regina v. Brierly, 14 C.R. at p. 533, (1887). The status in question in In re Adam, and Donegani v. Donegani, was that of an alien. The principle thus laid down may be the one governing the curious case put by Stephen, J., in In re Victoria Steam Navigation Board, 7 V.L.R., L. at p. 265, (1881), of a colonial Act assuming to affect the status of an English barrister in the colony, by enacting that "if an English barrister committed a certain offence he was not an English barrister in Victoria." The learned judge suggests that such an Act would be ultra vires "by the comity which exists between States." But it is sub Laws authorizing legal proceedings against absent Prop. 26 to be noticed in connection with this part of the subject, however, have to do with statutes authorizing the initiation of legal proceedings against defendants absent from the territory of the lawmaker, and a consideration of these cases brings defendants. prominently into notice the distinction, already referred to, between the question whether such statutes are valid and binding within the territory and upon the Courts of the law-maker, and the question whether foreign Courts will recognize them, and judgments obtained in such legal proceedings initiated under them; and, with regard to the latter question, the difference between the position of those who are in some sense subjects of the lawmaker, and of those who are not. Thus, in the Ashbury v. recent case of Ashbury v. Ellis,1 the Privy Council held that under the power given to it by Imp. 15-16 Vict., c. 72, "to make laws for the peace, order, and good government of New Zealand," the legislature of that colony could subject to its tribunals persons who were neither by themselves nor their agents present in the colony in actions founded on any contract made or entered into or wholly or in part The Privy to be performed within the colony, for2:-" Their lordships are clear that it is for the peace, order, Ellis. Council. mitted this is no ground for holding a colonial Act to be ultra vires. See Propositions 17 and 21. Mr. Clement (Canadian Constitution, pp. 187-8, q.v.; see, also, ib. p. 193) expresses the view, citing, however, no direct authority on the point, that it is incompetent for a colonial legislature to affect civil rights "accrued" abroad, as by enacting that in a civil action in respect to contracts made abroad, to be performed abroad, the colonial law should govern. He also notices the doubts existing as to how far such limitations of colonial power apply to the case of persons domiciled in the colony, as to which see infra pp. 332-3, and Can. Leg. Ass. Journ., 1846, p. 29, referred to Todd's Parl. Gov. in Brit. Col., 2nd ed. at p. 175. 1[1893] A.C. 339. 17 L.N. 172, et seq., contains an article commenting on this case. 2 At p. 344. Ellis. and good government of New Zealand that the Prop. 26 Courts of New Zealand should in any case of contracts made or to be performed in New Zealand have the power of judging whether they will or will not proceed in the absence of the defendant." They reject the contention "that the moment an attempt is made by New Zealand law to affect persons out of New Zealand, that moment the Ashbury v. local limitations of the jurisdiction are exceeded, and the attempt is nugatory;" but they add, and this shows the importance of the distinction above referred to "It was said that a judgment so obtained could not be enforced beyond the limits of New Zealand, and several cases of suits founded on foreign judgments were cited. Their lordships only refer to this argument to say that it is not relevant to the present issue. When a judgment of any tribunal comes to be enforced in another country, its effect will be judged of by the Courts of that country with regard to all the circumstances of the case. For trying the validity of New Zealand laws, 1At p. 341. : In 2In a despatch of October 29th, 1874, to the Governor-General of Canada, quoted by Mr. Todd (Parl. Gov. in Brit. Col., 2nd ed. at p. 183), the Secretary of State for the Colonies wrote:-"It is obvious that if the intervention of Her Majesty's government were liable to be invoked whenever Canadian legislation on local questions affect, or is alleged to affect, the property of absent persons, the measure of self-government conceded to the Dominion might be reduced within very narrow limits. It is to the Dominion government and legislature that persons concerned in the legislation of Canada on domestic subjects and its results must have recourse. Regina v. Call, Ex parte Murphy, 7 V.L.R., L. at p. 123, Higinbotham, J., says :-"The provision for the service of writs of summons within fifty miles of the frontiers of Victoria; the attachment in Victoria of the property of an absent defendant, and the Prevention of Influx of Criminals Act, are instances amongst others which could be cited of interference by the Victorian legislature with persons or property beyond the territorial limits." In Bank v. Orrell, 4 V.L.R., L. 219, (1878), the Court held that it must obey the legislature as regards a provision of the Victorian Common Law Procedure Act, 1865, giving power to serve a writ of summons on a foreigner out of the jurisdiction. See, however, supra p. 263, n. I. |
