SUPREME COURT. SEPTEMBER CIVIL SITTINGS.

Daily Southern Cross, Volume XVII, Issue 1285, 6 January 1860, Page 2

SUPREME COURT. SEPTEMBER CIVIL SITTINGS.

. WHITE Y. BOSBY.

(Continued from Supplement of Decembtr 20.) In 1646, the same assembly, declared that- it,- stood in,, the same relation to England that Normandy, when a dukedom, did to the Kingdom of France. (Bancroft, I, 829). and it imprisoned Robert Childs and others for signifying their intention of appealing from its decisions to the Parliament in England (Ibid). Several of the Quakers Were, put to death, the Anabaptists were banished ; and the New England assemblies assumed to themselves the royalprerogative of coining money. (Grahamo; B. 2. 0. 8). The, assembly of Conneotiout enacted that no food or lodging should be supplied "to a Quaker, Adamite, or other heretic" (Ibid). About 1688, Indians became a regular article of export from South Carolina, in which traffic the governor and council of the province were concerned.* The victims were sold as slaves to the West India planters, in exchange for rum. (Ibid. IV. 2). About 1736, ra conspiracy of negroes was discovered in the island of Antigua/ Three of the ringleaders wore broken on the wheel; 79 were burned alive j and 9 were_ suspended in chains and starved to death. (Ibid. 'App. 2.). The assembly of Carolina passed two ordinances in 1704, depriving the dissenters, who composed about two-thirds of the population of the colony, of all their civil rights, and erecting a'courtuf high commission to enforce conformity in matters of religion. (Ibid, LV'&). In 1759, the captain of a British ship of war was stationed off the coast of Massaohuscts for the protection of its trade, during the war withFranoe. He had left his wife at Boston. Returning thither on a Sunday, after a long cruise, his wife rushed down to the beach to meet him, and, very naturally they embraced each other, upon meeting in the open street. For this breaoh of the laws and (supposed) desecration of the Sabbath, the captain was summoned before the magistrates, gravely rebuked, and sentenced to be flogged ; which punishment was inflicted upon him accordingly. (Ibid, App. 3). The assembly of Carolina passed an ordinance, about 1760, providing that Indian prisoners should become slaves to the captors, and that a premium should be offered for Indian scalps (Ibid X. 6). The assemblies in America ! were empowered to appropriate to the public service such revenue as they might raise. Not satisfied with this, they plunged the colonies into debt and great distress, issuing bills of credit and making them a legal tender. In other words, they anticipated or mortgaged the revenues of the respective plantations. The evil became at last, so great that parliament had to interfere and pass acts for its prevention (24 Geo. 2. c, 53 ; 4 Geo. 3. c, 34). The people of the West Indies appear to have had the most extravagant ideas touching the regal qualities of their governors. Chief Justice Stokes informs us in his work on the colonies, published in 1783, that when in those part's, be saw a grant of land made in one'of the then ceded islands. The king was made to say that he granted the land "with the advice and consent of the governor" ; as if (says Stokes) "a governor's consent was necessary to enable the King to grant away his own land" the writer further adds that he believed most of the grauts in those islands ran in that form (Stokes, Col. 195). The first legislature of Georgia consisted of the Council of Trustees, a]body that used to hold its sittings at a tavern in London. It was created by royal charter. By one of its ordinances it imposed a tax upon Indian traders, and its right to do so was never disputed by the colonists. But, at a subsequent date, these same persons denied the right of Parliament to tax the colonies. The assembly of Massaohusets passed aa ordinance to indemnify those who had set an act of Parliament (the Billetting Act) at defiance. Bancroft, Y. 48). And, at last, the local legislatures in America passed Bills confiscating the property of all who did not renounce allegiance to their king and nation. These form but a small proportion of the follies, abuses, oppres■ions and cruelties that obtained in the colonies of England and of Great Britain. They all flowed from the one source, a laxity in the administration of law. Prerogatives were claimed for colonial governors which the orown did not possess, and the assemblies illegally exercised powers not conceded to the House of Commons. The people were oppressed by both. As the attorneys of the crown and in no other capacity, the assemblies were empowered to erect courts of judicature, and the governors to nominate the judges; but both fell into the error of supposing that the courts and judges were theirs, whereas they were the courts and judges of the King. They derived all their powers and jurisdiction from him ; and the governors and assemblies were mere instruments in setting the machinery of justice in motion ; their powers were naked ones. The superior court in a colony usually possessed the powers of the three common law courts at Westminster, and, as such, it was invested with power to keep both governors and assemblies within their legitimate bounds. If any inconveniences arose from the exercise of that power, it was for the parliament to provide a remedy. Unfortunately for the nation and those of its members settled in the plantations, these powers were not exercised. It is not therefore to be wondered afc, that the governors and assemblies should arrive at the conclusion that they were not amenable to the colonial courts. The error was strengthened by the provisions of the colonial charters and royal commissions which gave to the governor of a colony a negative upon the ordinances of its assembly, and then reserved to the crown the right of disallowing the same. As any act of the national parliament to which the royal assent had been given was valid, it was considered as undoubted law, in the colonies, that a colonial ordinance confirmed by the king was equally binding. And yet there were no legal grounds to support an opinion so extravagant. If the ordinances of a colony, when confirmed by the crown were ipso facto valid, that colony would be an independent state, like Scotland, before 1707 ; or, at least, it might become such, whenever its assembly and the king pleased to make the change. The king, with the consent of the assemblies, would have had the power of dismembering the state, and forming it into as many new and independent kingdoms as there were colonies. He.would be king of England, and, in addition and by other right King of Virginia, King of Massachusets, King of Jamaica, &o. As the case of Ireland is sometimes referred to now, as it was formerly, in support of the pretensions to original power put forth by Colonial Assemblies, I shall again advert to the peculiar position in which that country stood with respect to England. It will be found that no analogy existed between the functions of the deputy of Ireland and those of the governor of a modern colony ; nor between the powers of the Irish Parliament and those delegated to a colonial legislature. - v Up to 1177, Lagenia, Meath,"and the othtr parts of Ireland holden by English subjects, were part and of the lealm of England. Those holding lands there, in capite of , the King of England, by the tenure of knight-service, were lords of the English parliament, by virtue of such tenure, and were bound to attend its meetings. There was then no Irish parliament, nor could the King create one, any more than he oould create one for Middlesex, Cumberland, or any other part of his realm. Henry 11, who was thon King, appointed for Dublin the only kind of local legislature which he could create s body invested with the same powers as the common assembly of Bristol; and like it, empowered to make laws prwter, but not , contra, th» law of the land. It i§ probable that, he appointed another for Waterford. Heath was a palatinate, and co was Lagenia ; the palatines whereof, with the consent of their barons, might make such and the dame laws for their respective territories, as the palatines of Durham or Chester, with the like consent, might make for theirs. But , in that year, as already mentioned, Henry, with the consent of the parliament holden at Oxford, -constituted John, his youngest son, King of Ireland. -John was then about ten years of age. No c6py of the.act of parliament, or the royal charter, conferring upon John s the newly-formed kingdom is extant, so that we" are left to conjecture as to its provisions.. The subject gave rise, at one period, to much controversy; some holding that Henry merely intended that his son should act-as bis governor or deputy in' lrelrnd, whilst others maintained that it w,as* intended that Ireland abbiild be a feudal kingdom, to beholden of.theMPWn.of England. Others, again, asserted that itjwasintended that there should be-no connexion whatever between the two countries-^tha^lreland Bhould. be a kingdom as distinct-, from England, as wa| Scotland or JYancet '- As Hetjry could have appointed his son deputy of Ireland' without, obtaining;, for that purpose, the assent of the Parliament, it Js evident he intended that John! should be invested with powers and-hououijs pf a hjgiiei* and' more permanent nature. - of historiS eyf&en^ijivvery much adverse ,to the creation oßlrel»nd;^n^;ft^ft^^k&gdoniT holden of the Crown ofEngland/ 'The suppoitMggof tha^opiniori'laid great stress on the' fapfcifa^HenryTaftel^^ :fi^^f»i4^^^^^^^^Jh } ° m and of , his s ? b; John' »ndHhelrlieirfl, ! with a, re«eryat;9n,in ; «ofaie instances, -of certain > Mtxtj..otlmnph%Qifa^ For instance? the* lom*-w*eyoni s^

gtant/iT#eiMiPr^f^ijpj^vlfe)y^^^^lt^l £s), we may 1 infer whitf vim conned' tf^hW^isJri^aJ^^ ptriuted^RegenfcVf^^^^ aS°sbuta S°5 but even that cirouraptanoe would, inotirend^suoh -grants valid. < |^heyj ought to have, been issued, in 'the ntfme of John, ilielands'tobe holdon" of him and his heirs. In 1185, John, as Earl o^lqreton^an^Lord, o.f Ireland c&^^^^h^rTfiSFof'ceftMn'landTV Strongbow; to St., Mary's abbey, Dublin 1 , This was in the'life-timo of his fatherXDugd. 1 Mon. Anglio.'-V. 362). * When Richard ascended th 6 throne of England, John .did, not do homage* to him for Ireland. Daring Richard's, reign,, John appointed the deputies of Ireland (Leland». 1>f165), and when J,ohn was in rebellion against lticbatd, ia England and Normandy, Richard did not- seize any portion of Iroland whioh'he migbtj have lawfully done, had be been suzerain of' the country. Add to this, that no* union took place between the two kingdoms when John became King of England, an event which must have followed, according 1 to the Feudal laws, had Ireland been a KiDgdom holden enfipf of Engalnd. When Hugh Oapet,Cotint of Paris and of Orleans, became King of the French, tbe.two fiefs of Paris and Orleans beoame,pdrtitros of his Kingdom, and the title of Count merged in that of King (i Italian, Mid. Ages, o. 1). But John continued to style himself dominus of Ireland, when Kingr i of 'England, and always called Ireland big dominion or kingdom. In 1214, he surrendered it, to the Pope, as a Kingdom. (I ltym. Fo'ed. I Pt. 57). # < As dominus of Ireland, John had as much power therein as if he had styled, himself King. The duke of Normandy was as much King within his duchy, as the king of l?ranoe was within his kingdom. Matilda, during her short reign in England, always Jstyled> herself domino} anglic (Ibid 6) j and > wo find, at a later period, that the wife of princo Edward olaimed and obtained auvum regince in , Ireland as wife of the dominus of the country. (4 Inst. 357). The time and j by whom, the laws of England were introduced into Ireland, has been ' a fruitful source of discussion. It seems that a formal introduction, of them was never made by Henry 11., and that it was not necessary They had force in the districts conveyed by Strongbow to Henry, for the same reasons that they had force in Cumbria, and in the acquests made from the Welsh. Lagonia and Meath, when conveyed to the King of England, had inhabitants; but as their legal existence was not recognized, we may regard the districts as uninhabited. The simple transfer of these districts to Henry, as King, made thorn paroelß of his realm j and within that realm, the laws of the nation, and none other, could have force. Upon their becoming portions of Henry's Kingdom, the*national laws had force therein, and it only remained for Henry to appoint offioers to administer them. Had Heu« ry been so polite or generous as to enter into a treaty with the natives of those districts, guaranteeing to them their properties, and the right and privileges of English subjects, the native laws, whereof such properties were the creature, would, as a matter of course, as to such property, have continued in force, in order that the newly-made denizens might continue to enjoy the same. It is certain that Ireland was, before the time of legal memory, a Kingdom, either holden enfief ot England, or altogether independent of,it. Having been such,it is evident there could be no analogy between its position, and that of a modern colony. A body possessing supreme, uncontrollable power, whether termed a sovereign, a diet a common council, or a parliament, is incident to every kingdom Those who held lands in caphite in Ireland of John, as King or dominus of the country, were, according to the feudal laws, peers of his court, bound, by their tenure, to aid him in administering the government. Without their consent, he could make no laws. He aud they, however constituted the Irish Parliament, and possessed such and the same powers in Ireland that the English parliament did in England. As Ireland was a Kingdom in which the feudal system prevailed, a parliament like that of England waß iucidont to it. In the reign of Henry 7., the Irish parliament! passed a very singular act (10 Hen. 7 c, 4), of which the following was the virtual effeot The King of England and his privy council— all resident out of Ireland—were constituted the sole legislature for the'eountry, or,.at least the principal constituents thereof. They had the exclusive initiation of bills, the subject matter of which respectively was to be, in the first place, suggested by the Deputy and the Privy council of Ireland. Such bills as this newly-formed legislature might please to pass for for the government of Ireland,,were to be transmitted to tbe deputy, of the country to be laid before the (so-called) Irish parliament. This body might confirm or reject any such bill, but could make no alterations or amendments therein. Such as were confirmed became law. The act was so loosely and defectively framed, that it was necesssry to pass one or two other acts to explain and amend it. The properties of the act were as singular as its form and object. If the Irish parliament possessed original power, the act had no force, since such power cannot from its very nature, be restricted by bounds or limits. A national legislature cannot limit its own powers "( 4 Inst. 43). Any act, therefore, which the King, lords, and commons of Ireland might have been pleased to pass, would have been binding, even though not approved of by the King of England in Council. And if the Irish parliament possessed neriuatize power only, tbe act would have been void, since it was not empowered to make changes in its constitution, especially changes of so sweeping a nature. It is very remarkable that Ireland was governed for nearly threr centuries under the provisions of such an act. The office of deputy of Ireland existed before the period of legal memory. The holder of it, therefore, might claim powers and jurisdiction by prescription (4 Inst. 267) But the office of governor of a colony is a new one, and therefore the holder of it cannot prescribe (Ibid. 200, 267). It has been repeatedly decided that the governor of a colony has no powers but such as are set forth in his commission and instructions and the subordinate powers necessary for carrying them into execution, ne fs a public servant, and no representative of majesty. Like a judge, a magistrate, a law-officer, ho has certain powers delegated, but not assigned, to him j and if he can be said to represent majesty, it is only in the sense in which tho other officers may be said to do the same (Fabrigas v. Mostyn, 20 How. St. Trials, 178 j Cameron v. Kyte, 3 Knapp, a 44 j Hill «. Bigge, 6 Jur. 22). In the case of Regina v. Clarke, the Supreme Court of New Zealand declared that the governor of a colony had powon to alienate the Crown lands, although such power was not conferred in terms in his commission ; and one of the judges referred to the case of the deputies or governors of Ireland in support of that opinion. The judgement of the court given in tbe cause, was reserved on appeal, but not on this point which was not raised (7 Moore, P. C. C, 85). I have already pointed out the marked differense between the powers of a deputy of Ireland, and those of the governor of a colony, so that even if the deputies of Ireland alienated the Crown lands without being thereunto expressly authorized, it would be no precedent to justify the governo ■of a colony, in adopting a similar practice But it does not appear that the deputies of Ireland possessed such power. Up to the time of the Norman conquest, a grant of land by the King, without the consent of the Witan, was void (Allen, Rog. Prerog. passim). After that event, the Kings exercised such power without consulting their parliaments ; but if they wished to delegate it to a subject, it could not be done, at first, except in express terms,^ since no officer could prescribe for that whioh no office-bearer bad 'ever exercised. The public lands were thenceforward regarded an the private property of the King : and in appointing «n officer to the government of a district, it could, not be supposed it was intended by the King, that the appointee, unless when expressly authorized, -should take on himself to sell or give away his master's .property. The Crown lands were' deemed, at that period, asmuch the private property of the King, as were the monies deposited lin the royal coffers. - ' '■'','. ~ Fitz-Andelm was appointed deputy "of Iroland in 1176. Leland, in his history of the country (i, 113), gives a copy of the appointment. It gives no expross power" to alienate the Crown lands. FitzAndelm granted a 1 parcel of land, near Dublin, on the King's behalf) to the church t of St. Thomas. "Leland gives a copy of the' grant (Ibjd. 127), and, immediately after> a copy of the confirmation /of it'^by Henry 11. Now, if the deputy's^aot had been legjil, the Kingte confirma- j tion of the grant would have been wholly^ unnecessary. Add- to' this, that in the commissions of subsequent deputies or governors of -Ireland, the power of alienating the Crown lands is expressly given .(Ware, Ir. Antiq. C, 14, passim). , Indeed, feardly any two.of them- ever pos-, sessed the 'same powers ; their commissions varied considerably, each from' the othe£ ■ / ;'. \ <> '• ' '' 'V; 1 ' l \ ' ,'* Two ..assertions' of !a novel nature have been lately^mad^e/in'the, .New Zealand' asse'mbly^ torching- the import eseot of acts ,of_Pjir-,j liamenfc, 'relWing'to^colonies^ is to th'e^efreot thatsithe t-words "repugria^pr'oontwiry to the law ofEngland,-h&ye no ■meaningi r atis oug{iX , theVefoM) W be] omitted in , s^oh statutes; The ' otE^'^^ every! ooioriis I 'assembly may; "the idsett^n^ojPM^h; words "in ; it'd"po^stifi| tiqu^l ■ act or Charter,' Repeal, by malnfigWdK nanceis 'r'epugn^nt^jihereto^jauy^aot of Parliament. whereto tigg*^Uj|s|; for ,'wfti.oji isUnotr expressly mentioned and^epj™^^/ D^eiliheripiie^b^/^he^other^of th s ese p'ropqiitibns is tenable.^i!sP,rsii& probably Wiegitfip^Mie,} the meaning whereof is. .mow fixed kn&icfe,' terminedj th^n,*tßaj»rof s confra Itgm, or, that "olseoundutn:kgeid^nor! ,? Jh<&re jipy moreVaneienjin .the agnaVof ottrlegislatwri^|lcj|h^

PtufeM aspfstatis J?eii|j|fe^^passed n||sisj|^i£ss Edvfara IjTiji ijf.reoited Ihat'oerTain abbots, priors, and'govemors of EeVgio^8 Jh P[oUBe^had ; /Qt«theic^ow,a>..pleaßure ; 4mposed«,tallagesand other "taxes upon" suoh monasteries, "contra leges et oonsuetudines sdictj]f«sni{'i.s dictj]f«$ni{' i. and OoM££2jlnstf 15J34)/ so'faiifrom thinking that those words' were meaningless, common tampon them, and infers from their ejnploynienjjnjbjs,place,-the,prior?6tato of the lay. When a judge wishes ,to,ascortain.;wbbther a> late act has, by implication, repealed a former one) heicomparjas their provisions, and if he finds that those of the late' aot; are' repfifrnant to, or inconsistent with those of the, former ono. h'e^deolares 'the" former act repealed. "'So when r twoaois of Parliament, 1 ' (says Blaok'stone, i Com. 1 .87) which passed during the same session, and were to come into operation on the same day, are repug nant to each other,' that which last receives the royal assent must prevail, and be" considered pro tanto a "repeal of the other. And this .upona general principle of- universal law, that leges posteriores priores contrarias abrogunt;" The second proposition is, if possible, more untenable than the first. By it, we are given to understand, that the expression " repugnant to the law of England" means, contrary to any not of Parliament which mentions or refers to the Colony concerning which the .words are employed. Aots of Parliament form but a portion of the law of England:. The doctrine of allegiance to the King, the mode and manner of procedure in our oourts of judicature, the authority and jurisdiction of the National Legislature, as well as those of the judges of the superior oourts, and numerous other matters equally important, are uot.contained in, the Statute Book, 'but form part of the Common, Law. 1 ", Words and phrases whereof the meaning is fixed at common law, have the same signification in aots of Parliament, unless the contrary appears from the context. (6 Mod. Rep. 143). As the expression was inserted, both in acts of Parliament and royal charter passed and issued bejore English Colonies, in the present sense of the word, were founded, it could have had no such meaning then. The first colony, that of Virginia, was founded by royal ohar ter about 1607. Its local legislature was empowered to make laws for the Oovernmont thereof, the same not to be repugnant to those of the realm. There were no aots of Parliament then relating to colonies j and James 1. maintained that America was no part of the realm, and that therefore the Parliament could not legislate for Virginia. If this novel interpretation of the words " repugnant to the law cf England be correct, it would follow that James ordained that the local legislature of Virginia might make laws, provided they were repugnant to nothing) and it would also follow that the same legislature was empowered by James to pass acts renouncing their allegiance to him ; since tho doctrine of allegiance was no part of the law of England mentioned in the charter of the colony. This singular interpretation pub upon tho words " repugnant to the law of England" originated, probably under the following circumstances. In 1696, Wm 3. established the Lords Commissioners for Trade and Plantations, with which council the colonial Governors were ordered to correspond, and to which they were directed to transmit the Colonial ordinances for examination. No negative upon the ordinances of Massachusets, Connecticut and Rhode Island was reserved to the Crown in their respective charters j and the Governors of those Colonies, who were the nominees of the Colonists, not of the Crown, refused to comply with the Royal mandate ; an act, quite 'justifiable on their part. These chartered colonies had systematically disregarded the Navigation acts passed in the reign of Charles 2., and their local legislatures maintained that, as those acts had been passed after suoh colonies had been founded, they were not in force theiein. The ministers of William were quite willing to propose to Parliament that the measure would not be carried, owing to the heat of political factions. They did, however, all that was in their power. They succeeded in passing an act (788 Wm. 3. c. 22) " for preventing frauds and regulating abuses in the Plantation trade", the ninth tection whereof is of the tenor following j — "And it is further enactod',and declared by the authority aforesaid, that all laws, bye-laws, usages, or customs, at this time, or which hereafter shall bo in practice, or endeavored -or pretended to be in forcejor practice, in any of the said plantations, which are in any wise repugnant to tho before-mentioned laws, or any of them, so fai as they do relate to the said plantations, or any of them, or which are in any ways repugnant to this present act, or to any other law hereafter to be made in this Kingdom, so far as such law shall relate to and mention the said plantations, are illegal, null, and void, to all intents and purposes whatsoever". This declaration of law, repealed by the 6 Geo 4 c, W 5, was reenacted in the 384 Wm 4. c, 59. Parliamentary declarations in cases of this discription, become a serious evil; since they are more likely to confuse than to enlighten, as to the state of the law. A due enforcement of the law in America, by bringing to condign punishment the members of the Colonial assemblies, setting the laws of the nation at defiance, would have been the proper course act. The.made no change in the law. It declared that of which every legist was cognisant ;before. The aots of the National legislature are binding upon all the members of the Nation for whom they are made, and, without the authority of that supreme body, none .can change the law. If general words in a statute cannot abridge or take away the royal prerogative, a foliori they cannot diminish the authority or power of the sovweign the Queen and the two houses of Parliament. No subordinate legislature can change the National laws, unless it is thereunto expressely authorized by act of Parliament. Such a power \s occasionally granted, as to certain cases. Thus suoh a power was oonferred upon the legislature of Lower Canada (1 Wm 4, c. 20), and upon that of India (384 Wm 4. o, 85). Having thus laid down the proposition that a subordinate legislature, empowered to make Uws, is not thereby authorised to alter or repeal any of the national laws,' I proceed to show that the doctrine is supported by the opinions of our most eminent jurists, and by the uniform decisions of the Superior Courts. - * The local legislature of Massaohusets was, by the charter of 1628, empowered to make laws and ordinances, and invested with extensive executive powers. The charter was declared forfeited, on quo war ranto proceedings, in 1685. A new charter, considerably modified, was offered to the Colonists by the government of Wm. 111. Mather and the other deputies sent to London by the colonists endeavoured to have some alterations made in the preferred charter but without success. Thereupon, it was debated amongst them whether they Bhould not reject the new charter altogether, and institute proceedings to test the validity of the judgement pronounced against the old one. There had been some slight irregularities in tho Quo warranto proceedings. "They^were deterred from this proceeding by the solemn assurance of Treby, Somers, and the two chief justices of England (Holt and >Ecfllexfen) that, if the judgment were reversed, a new quo warranto would be issued, and inevitably followed by a sentence exempt from all ground of ohallenge. These learned persons assured the deputies, that the colonists, by erecting judicatories, constituting a house of representatives, and incorporating colleges, had forfeited their charter, which gave no sanction to such acts of authority." (Grahame, U. S. 11. o. s)f' The assembly of Massaohusets, by the charter of 1693, was empowered to make laws and ordinances, and, in addition, "to erect and constitute judicatories and courts of record, or other courts." In 1703 Nor they, A. Or. gave an opinion that the assembly could not erect a court of Equity, notwithstanding the^powers so conferred upon it. (Chalmers, Opin. I; 182).' I ./ In 1715, the local legislature of North Carolina passed an ordinance giving a priority to debts owing to persons residing in the colony, whioh ordinance "was acted on up to 1747. Ryder, A. G. and Murray, S. G. were then consulted as to its legality. They gave it as their opinion, that the ordinance was unwarranted by the charter of Carolina, and that it was consequently "void". (Ibid. 11, 62). I hold that even if the' royal charter of Carolina had expressly authorised tho making of the ordinance, the same would be invalid, on the ground that the priority of debts is fixed by the national lowa, , which oannot be alteted but by tho authority of Parliament. "In 1725, Yorke, A. ,G; and Weary, S. Gh gave an opinion that is was illegal' for the goVernor, council, -and assembly of Massachusett to convene a Bynod of ,the v clergy or ministers of the province, and tha-. it was,not lawful for such persons to assemble, "as in a synod," without the King's license. (Ibid. 1, 12). In 17,27, the looallegislature of-New York passed an ordinance enacting, that all informations filed by his Majesty's attorney general of tho province depending in the courts should be quashed, and that none should be instituted for' the future, Upon the proceedings bei ; ing referred to Yorke, A. Gt. and Talbot, S. G. they gave it as their } opinion 1 that • the> ordinance void,, as , being a high encroachment i upon his Majesty's undoubted prerogative of proceeding by way of information (Ibid. 11, 184). ■ t - , vln 1730j Yorke, A* G. and Talbof, SI Qv gave an opinion to, th,e effect that any law affecting property^ 'pas^d- }Syj the ' local legislature" of Connecticut, would be void, if.it jWere.unreasonablff and repugnant to "the law of EngWd., (Ibid. I, 354). ' ' , ' ' " "- In 1787, tha fmtowing question was submitted^to Ryder, A. G. and Strange, S. G-. ""V^bether the act of 'jtie trustees of Georgia^ or of any assembly, passed in the colonies' abroad, and -confirmed by the crown, oan grw&t to any of the aVid provinces >aniexoluBive trade- with' the'lji-

laWdweliing within thejrespeotive provinces." To which they relied; — "And, as to tbatfwe are of opinion that as an absolute exlusive Wade witlrthe Indiana, would be 'destructive of thafc" geiieral ight of trading, which all his Majesty's subjects are entitled to } and herefore repugnant to the laws of Great Britain, no act of the trusees of Georgia or of any assembly passed in the colonies abroad, conirtned by the Crown cap grant to any of the said provinces an oxlusive trade with the Indians dwelling within the respective provinces hough the method of; trading within each province may be regulaod by the laws thereof" (Ibid. 11, 299.) About 1753, the local legislature of Jamaica passed an ordinance %- ntituled "Anact^for appointing commissioners of Nisi Prius and mlarging the jurisdiction of the justices of the peace in matters of lebt". Ryder, A. Glandl and Murray, S. G. gave it as their opinion ihat this ordinance was void, as being a great encroachment upon, the ■oyul prerogative, " to which the erecting of courts, of judicature be onged". (Ibid, 11. 107.) In 1671', the local legislature of Virginia passed ordinances empowering the governor of the colony to' confer the privilege of naturalization upon aliens, but the* King in Council disallowed them, in' the ground that^ the acts of a subordinate legislature cannoj^ derogate from the- laws of the nation. (Gvahame, TJ. S. B. I. C. 3.) I would observe that jcolonial assemblies may now pass ordinances of naturalization, under the 10 and 11 Viet. 0. 83. This act legalized all colonial ordinances of the kind theretofore passed. The same local legislature passed a bill of attainder, in 1677, against Bacon and some of his officers who were concerned in the rebellion, of the preceding year against the government of the colony, but 1 the act was holden to be void from defect of power. (Ibid.) An act of attainder is neither a law nor an ordinance : It partakes more-'of the * nature of a judicial sentence pionounced by the body in which is vested the supreme power. (I. 81-39.) In 1704, the assembly of Carolina passed two ordinances, which were confirmed by the proprietaries of the province. By the first, the -dissenters of the colony were deprived of their political rights, and, by the second, a court of High Commission for the enforcing of conformity in matters of religion was established. When these proceedings were brought "before the notice of the house of Lords, their lordships voted an address to Queen Anne, praying that she would declare the ordinances void, and order that proceedings should be initiated for bringingiphose who enacted them to condign punishment. By order in council, the ordinances were declared null and voidj and her Majesty promised to institute a process of quo warrdnto against the provincial charter. (Grahame, B. IV. C. 2 j 11. Bancroft,' 707.) No negative upon the acts of the Carolinian legislature had* been re. served to the Crown in the provincial charter ; but it is competent to the King to inform his subjects, by proclamation, touching the laws of the realm (3 Inst. 162 ) Those who had passed the ordinances, and those carrying them into effect, were equally liable to punishment for doing that which was contrarj to law. To warn them of the danger was, therefore, an act of royal favour. Persons holding the opinions of the society of Friends were, by a local ordinance of the legislature of Connecticut, subject to banishment from the colony, and to death, in case of returning thither. No negative upon the ordinances of that colony was reserved to the Crown in the provincial chaiter. In 1705, a complaint was exhibited to the Queen in Council touching that penal law ; whereupon, her Majesty, by an order in Council, declared it void, and an abuse of the power conferred upon the colonial assembly. (Grahame, B. VIII C. I.) The same legislature passed an act about oidaining that the real estate of an intestate should be equally -divided amongst his children: Viewing the measure in the abstract, it would be considered by many as tending to " the peace, order, and good government" of the'province. It had, however, effected a material change in one of the national laws, which limited the descent of real estate in all cases of intestacy. Upon a cause involving the validity of the act being brought, by appeal, before the King in Council, in 1728, that court adjudged that the act was contrary to the law of England, and therefore void. (Bancroft, 11. 992 j Story, Oonim. I. 125.) No case can be more in point than this to prove that a subordinate legislature empowered to malce laws, does not possess the power of arbitrarily depriving the subject of his property If such a body isjpowerless to dispose of his property after his decease, when the same is no longer his, a fortiori, it cannot dispose of it during his life-time, when it is in his exclusive possession. The sacred rights of property are beyond the jurisdiction of a colonial assembly. If any doubt could exist on the point, it would be removed by the deliberate opinion given upon the subject, by Lord Mansfield, in the House of Lords, 17G6. _ Upon questions of this nature, there was no higher authority than his lordship. In Febmary of that year, the Duke of Grafton made a motion asserting the power of Parliament to make laws for the colonies. Lord Mansfield supported the motion, and in a lengthy, speech replete with legal learning, expressed himself thus, — " But if there was no express law, or reason founded upon any necessary inference from an express law, get the usage alone would be sufficient to support the authority of England over its colonies. For, have they not submitted ever since their first establishment to the jurisdiction of the mother country ? In all questions of property, the appeals from them have have been to the Privy .Council ; and such causes have been determined, not by their laws, but bv the law of England". (Bancroft, IV. 288.) The Island of Jersey has a local legislature created by royal charter, at a very early date. This body, called " the States/ is invested with the power of making ordinances for the good Government of the Island and of its inhabitants. , The Judicial Committee of the Privy Council decided in re Gould and others (2 Moore, P. C. C. 188) that a petition and doleance against an act of -the States of Jersey was not sustainable in the Privy Council, as the petitioners had their remedy in the island for any damage suffered by them through the enforcement of'the act. The Committee observed, at the same time, that the petitoners were not entitled to apply, in the fir3t instance, to the King in Council. This decision shews that the members of a subordinate legislature are amenable to the laws whenever they exceed their powers, and thereby cause injury to others. By the 31 Geo. 3. c, 31, a local legislature was constituted \ [for Lower Canada. This body was to consist of the King, a Legislature Council and a house of assembly. In 1838, owing to a rebellion in Canada, the powers of this legislature was suspended, and another legislative body,- consisting of the Governor of the Province and a special council, was created, for a limited period. The newly-crea-ted body was invested with the same powers as the old one, provided that it should not impose new taxes, or alter the constitution of the old Council or Assembly, or do some other, things not bearing upon this argument. It was also provided that it should not '^repeal suspend, or alter any-provision of any act the Parliament of Great Britain or of the Parliament of the United Kingdom, or of any act of the Legislature of Lower Canada, as now constituted, repealing or altering any such act of Parliament" (182 Viet, c, 9). No mention is made in the act of the Common Law, or of the acts of the Parliament of' England. A few months -afterwards, this^newly-created legislature passed an act intituled "An ordinance to provide for the security V the Proviuce of Lower "Canada." Certain persons in Canada, who had never been brought to trial, confessed, as was alleged, that they had been guilty of high treason By the ordinance, it was provided that the persons, so confessing their guilt shotild bo transported to Bermuda< and should be put to death, in case of their ever returning to Lower Canada. Viewing the ordinance as a political measure only, it may have been calculated to promote the peace of the province ; but when we regard iFas the execution of a power delegated, we see at onoe that it is tdtra vires: It is a violation of so much of the Common Law as ordains that no man shall be punished for alleged crime without having beeu first brought to trial, and of so much of it as allows the King to pardon 'Criminals, and. those pardoned to go wheresoever they please The ordinance was illegal', and tho§e who passed it, however good their intentions, and all who aided in carrying its provisions into effect, were subject to actions, both civil and criminal, at the suit of the parties injured. - Tho Parliament had to pass an act of indemnity, the 182 -Victl c, 112. This act, after reciting the ordinance, proceeds to say "which ordinance oannot be justified by law." It then enacts that all actions, civil or crminal, commenced or to be commenced " in any court in Her Majesty's dominions," against any person "for" or by reason of any act, matter, or thing advised, commanded, appointed, or done, m relation to the premises, before the proclamation of this act," shall be discharged and made void. From this case it it manifest that delegating to a body the power of making laws does not arm that* body with, authority to deprive the subject, by arbitrary proceedings, of his life, liberty, or pfoperty, and that the members of any such' legislature, who; may -do an aot ultra vires, are liable to .actions at tho suit of those* thereby, injured. It also shews thatr'the provisoes inserted in acts of Parliament ex abundanti cautela, are of doubtful utility, or that it would be better to omit thorn altogether. Such' provisoes inthe 182 Viet. c. 9 extend only to the aols of the Parliament of Greatßritain &'ofthe United 1 Kingdom. (To be Continued, J ' " >• <.