Prop. 26 it is sufficient to say that the peace, order, and good government of New Zealand are promoted by the enforcement of the decrees of their own Courts in New Zealand.” Laws legal proceedings absent But the two somewhat old cases of Buchanan v. authorizing Rucker and Becquet v. MacCarthy are authorities against for saying that where the defendant against whom defendants. a judgment has been obtained in a colonial Court under such local Acts as we have been considering, authorizing service of process in absentem, is, or even has been, subject to the jurisdiction of the colony, such judgment will be recognized in the Courts in England where otherwise it would not be. Thus in the former, where a law of the island of Tobago, a British colony, enacted that if a defendant be absent from the island he might be summoned by nailing up a copy of the declaration at the Court-house door, and this should be deemed good service, Lord Ellenborough, C.J., held that on a fair construction of the Act this must be intended to apply to one who had been present and subject to the jurisdiction; and that if it had been meant to reach strangers to the jurisdiction, it would not have bound them, for :-" Can the island of Tobago pass a law to bind the rights of the whole world?" In Becquet v. MacCarthy the law of a British colony provided that in a suit instituted against an absent 1The rules of international law governing the recognition by Courts of Justice of decrees pronounced in absentem by foreign Courts do not come within the scope of this work, but it may be mentioned that they are lucidly summarized by Lord Selborne in the recent case of Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670. As to Courts in England taking judicial notice of legal proceedings in Upper Canada, see per Lord Denman, C.J., in Leonard Watson's case, 9 A. & E. at pp. 782-3. 29 East. 192, 1 Camp. 63, (1808). 32 B. & Ad. 951, (1831). 3 party the process might be served upon the colonial Prop. 26 Attorney-General, and it was held not so contrary to natural justice1 as to render void a judgment obtained against a party who had resided within the jurisdiction of the Court at the time the cause of action accrued, but had withdrawn himself before the proceedings were commenced. However, as pointed out in Don v. Lippmann and Sirdar Gurdyal Singh v. Rajah of Faridkote, the defendant in Becquet v. MacCarthy held a public office in the colony in which he was sued, and at the time he was sued, and the cause of action arose out of, or was connected with, it. On the other hand, in Cavan v. Stewart, Lord Ellenborough held that a party in England was not bound by a colonial judgment, unless it appeared either that he was summoned, or unless it was at least proved that he was "once on the island," the colony in question being Jamaica. This, he said, was "clear on every principle of justice."5 territorial Proceeding to the third and last division of extra- Extraterritorial laws above mentioned, they are those criminal purporting to bring under the criminal law of the 1With reference to this appeal to natural justice, it must be remembered that the law of the Empire used to be, as stated by DeGrey, C.J., in Fisher v. Lane, 3 Wils. 297, at p. 303, (1772), that the colonies might not make any law contrary to the principles of justice. See supra p. 284, n. 2. 25 Cl. & F. 1, at p. 21. 3[1894] A. C. at p. 685. 41 Stark. N. P. 525, (1816). 5As to the recognition in English Courts of the binding force of valid colonial legislation, see Philips v. Eyre, L. R. 4 Q.B. 225, 6 Q.B. 1; referred to Ray v. McMackin, I V.L.R., L. at p. 280, (1875). See, also, Proposition 17 and the notes thereto. In Tully v. The principal Officers of Her Majesty's Ordnance, 5 U.C. R. 6, (1847), Robinson, C.J., clearly indicates that in his view the provincial parliament could not give a right of action against the Board of Ordnance—“a military department of the Imperial Government domiciled (if I may use the expression), not in Canada, but in England." laws. Brierly. Prop. 26 territory of the law-maker acts done outside that territory. In the recent case of Regina v. Brierly,1 Regina v. the Chancery Divisional Court in Ontario had to consider such an Act, namely, R.S.C., c. 161, s. 4, which enacts that any one who, being married, Laws marries in any part of the world any other person punishing bigamous during the life of the former husband or wife, is foreign marriages. guilty of felony, provided that he or she is a British subject resident in Canada, and leaves Canada with intent to commit the offence. The Court held the Act intra vires. Boyd, C., denies that the law is extra-territorial :-" For it is only intended to affect the man on his return to the Dominion after having committed the offence. Again, it was argued as if it were an interference with the right or duty of the binding on foreign country to punish the offence committed in its precincts. But the statute is restricted to a British subject resident in this country."s He further expresses the view that all the objections urged against the statute were for legislative and not judicial consideration, and cites the words of Cockburn, C.J., in Regina v. Keyn," that:-" If the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed When local law local Courts, Though contrary to international law. 114 O.R. 525, 4 Cart. 665, (1887). 214 O.R. at p. 532, 4 Cart. at pp. 670-1. As to this, see supra p. 329, n. 2. Although a state takes no cognizance of offences committed beyond its limits and against the laws of another country, it nevertheless can punish the crimes of its own citizens under its own laws, if within their reach, no matter where the crime may have been committed:" Halleck's Intern. Law (London: 1893), at pp. 206-7. See, also, Forsyth's Cases and Opinions on Constitutional Law, pp. 24-5. See, too, Reg. v. Giles, 15 C.L.T. 178, (1895), a full report of which will appear in 26 O. R., and which was followed by Ontario Common Pleas, in Reg. v. Howard, June 29th, 1895, unreported. 4 Ferguson, J., seems to have dissented on this point: S.C. 14 O.R. at p. 545, 4 Cart. at p. 682. 52 Ex. D. at p. 160. beyond the limits of its territory, it would be incum- Prop. 26 bent on the Courts of such country to give effect to such enactment, leaving it to the State to settle the question of international law with the governments of other nations."1 law binding Courts territorial. Now, as to this latter point raised by Boyd, C., the line of distinction, it is submitted, is this:Where the sole ground of objection to a colonial Act is that it is contrary to international law, such as might be an Act rendering foreigners amenable to the criminal laws of the colony for offences committed abroad, merely because such foreigners were "caught in the colony," it would nevertheless When local be incumbent on the Courts of the colony to give on local effect to the Act, just as much as it is incumbent on though extraCourts in England to give effect to an Act of the Imperial parliament, though open to like objection. Such would seem the necessary conclusion from the authorities on which rest Proposition 17. But where, whether also contrary to international law or not, a colonial Act is outside the scope of the legislative power conferred upon the colony to make laws for the peace, welfare, and good government of the colony, such as might be a law authorizing transportation to another country, in such case even the Courts of the colony would be in duty bound to declare it void, when brought into question before them. So that, as Boyd, C., says3:"In Canada there are but two lines of judicial investigation open in order to determine whether the enactment shall or shall not be obeyed. The 1Cf. Stephen's Hist. of Crim. Law, Vol. 2, pp. 36-7. 2As to this expression, see Macleod v. Attorney-General of New South Wales, [1891] A.C. at p. 457, presently to be noticed. 314 O. R. at p. 531, 4 Cart. at p. 669. Prop. 26 first and chief is, when the question arises whether the statute transcends the powers conferred or invades the limits prescribed by the British North America Act. The second and that of comparatively infrequent occurrence is, when it is needful to determine if the statute is repugnant to Imperial legislation." Regina v. Macleod v. New South Wales. To return, in Regina v. Plowman, the Ontario Queen's Bench Divisional Court held the criminal enactment, upheld in Regina v. Brierly, to be ultra vires, merely saying:-" The Dominion parliament, being a subordinate legislature, has no such power; and that is the effect of the case of Macleod v. Attorney-General for New South Wales, [1891] A.C. 455, which covers this case." Now, in the last named case, the Privy Council General of had to consider the validity of a New South Wales enactment similar to the Dominion enactment in question in Regina v. Brierly, and Regina v. Plowman, except that its application was not on its face restricted to British subjects resident in the colony, and their lordships said3:-" If their lordships construe the statute as it stands, and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that colony. That seems to their lordships to be 1Cf. per Palmer, J., in The Queen v. The Mayor, etc., of Fredericton, 3 P. & B. at p. 143, et seq., (1879), where he says:-"All that Courts in Canada have a right to do is to decide between the two legislatures as to which of them has the power, and not to deny it to both." But see Clement's Canadian Constitution at p. 192. 225 O.R. 656, (1894). [1891] A.C. at pp. 457-8. |