BIGAMY NO CRIME!

Otago Daily Times, Issue 17635, 27 May 1919, Page 8

BIGAMY NO CRIME!

TEE GROUNDS OF THE DECISION. TWO VIEWS OF THE LAW. i , ■, ____ Attention has been directed in our columns to the curions fact that, consequent . upon a judicial decision that the eection of the Grimes Act denning the act of bigamy is "ultra vires," it has now been decided that bigamy is not at present an offence punishable by law in New Zealand. The Court of Appeal has held in the ' , case of tho'King v. Lander, on the authority of a case decided by the Privy Council, ,| that Parliament exceeded its jurisdiction in bo denning the act of bigamy as to make It unlawful for a person married in New Zealand; to go through the - form, of marriage with any other person " in any other part of tho world." The Chief Justice dissented from this decision, but he has einco carried it to "what he regards as its logical conclusion by declaring that if tho clause-in the Crimes Act is invalid for one purpose it must be invalid for all purposes and that, therefore, there is at the present time no prohibition of bigamy in New Zealand. The matter is of so much interest and importance that we publish two of the judgments that were delivered in the Court of Appeal.in Lander's case, —the judgment of the Chief Justice affirming the validity of tho New Zealand law and that of Mr Justice Chapman, as expressing the view of the majority of the judges that tho ■section of the Crimes Act is "ultra vires." THE MINORITY JUDGMENT. The Chief Justice said in that case: — prisoner in this case was indicted for bigamy before the Supreme Court at the Wellington criminal session held in February of this yeai. The prisoner was born in New Zealand, •was a_New Zealand citizen, and was domiciled in New Zealand, when he married one Mary Richardson at Ahaura, New Zealand, on tho 9th August, 1912. • Whilst he was still domiciled in New Zealand and was a member of the New Zealand Expeditionary Forces which were in England, he went through a form of marriage with one Hilda May Rouse. He is and always has been a British subject. Ho was found guilty in the Supreme Court and the question reserved for the determination of this court is whether or not the Supreme Court had jurisdiction under the ciiwnrnstaneea stated to try and sentence him iu respect of the crime committed in England. The Supreme Court of New Zealand has power to try all crimes. "Bigamy-" is defined in " The Crimes Act, 1908," section 224-, a,s "the act of a person who, being married goes through the form of marriage ■with any other person in any other part' . of the -world." Subsection (6) says: "A person not being a British subject is not liable t to be convicted of bigamy in New Zealand by reason of having gone through , a form of marriage .in any place not in New. Zealand." It is contended on behalf of the prisoner that tho. New Zealand Legislature had no power, to enact eection 224 in so far as it makes it a crime triable in New Zealand af a form of marriage with any other person ' is gone through by a ' person already married, if it is outside the territorial or geographical boundaries of the dominion. The case of MfLeod v. Attorney-general of N.S.W. (1891), A.C. 455, was relied upon as decisive authority for this contention. The New South Wales statute provided: "Who- , soever 'being married marries another person during the life of the former husDand or wife wheresoever such second marriage takes place shall be liable to penal servitude for seven years." The Privy Council _ decided that " wheresoever" meant and might be read as "wheresoever in this colony," and it held therefore, that, as the_ second marriage was made in the United States of America, the prisoner M'Leod could not be convicted. This det cision of the Privy Council, therefore, is not a decision on the question that is now • before .this -court.. It may bo noted that in Earl Russell's ■ ease (1901, A.O, 446) the words of the statute which he was said to have violated ■wore: "'Whosoever being married shall marry any other person during tile life of the former husband or • wife whether the second marriage shall have taken place : in England or Ireland or elsewhere, shall be guilty of a felony." The House of Lords.held that "elsewhere" there meant outside the British dominions. His second marriage had taken place in the United States" of America, This' decision was given • without calling upon the Attorneygeneral to argue on behalf of the Crown and was the opinion not only of the Law Lords of the House of Peers but also of the judges who Trere present to advise the House. It seems difficult to reconcile these - two decisions. Why should "elsewhere" be extended to include places not in England- or Ireland—and not elsewhere in the Empire over which the Parliament of England had jurisdiction? Why should it '. have 'been assumed' that "wheresoever" meant "wheresoever in New South Wales" while ."elsewhere" meant not elsewhere in • the British Empire, but elsewhere in the world? If 'their Lordships had not decided the New South Wales case on- the interpretation of the New South Wales statute, they would have had to consider , the "moaning . and effect of 9 Geo TV. c. 38 .Section 24 says: "-Provided' also and' be it further enacted that all laws and statutes in forces within the Realm , of England at the time of the passing of this Act (not being inconsistent herewith or with any charter or letters patent or Order-in-Ooimeil which may 'be issued in pursuance hereof) shall be applied in ,the administration of justice in the courts of New South Wales and Van Dieman'e Land respectively, so far as the same can be applied within, the said colonies; and as often as any dorabt shall arise as to the application of any such laws or statutes in the said colonies respectively, it shall be > lawful,for the Governors of the said colonies respectively by and with the advice of the Legislative Councils of the said colonies . respectively, by ordinances to be by them for that purpose made, to declare whether such laws or statutes shall be deemed to extend to such colonies, and to be in force within _ the same, or to make ' 5?,-/. es * abhsll snch Limitations and ' Modifications of any such Laws and Statutes within the saad colonies respectively as mav _ bo deemed expedient in that behalf- provided always that in the meantime, and v before any such ordinances shall be actually made it shall be the duty of the said *" often as any such doubts shall arise upon the trial of any information or action, or upon any other „ proceeding before them, to adjudge and decide as to the application of any such laws or statutes in the said colonies respectively.', *^ This was an Act providing for the administration of justice in New South Wales and Va 2 Dioman's Land, and at that time the Knglisn law in respect of bigamy was that a second marriage entered into by a person already married in England or elsewhere was punishable as a crime. See 9 Geo. IV e 31, section ,22. In 1841 this -law enacted for New South Wales applied to New Zealand and ocntinued to so apnlv until tho 25th April, 1842, after which date the laws of England, including the Crimes s irl' S?P > x- U is surel 7 Pasrog strange , that the granting of a constitution to New , Zealand limited the powers it possessed under no constitution. . 1 _ In r M ' l -«? ( 5'? case the Privy Council made the following statement:—'Their lordships think it right to add that they are of opinion that if the wider construction hod been applied to the statnte, and it was supposed that it was intended thereby to comprehend oases so wide as those ineisied on at the Bar, it -would have been beyond the jurisdiction of the colony to enact such a law. Their jurisdiction is confined within their own territories, and the maxim which has been more than once

quoted, extra temtorium jus dioenti impune non paretur, 'would be applicable to such a case." Their lordships then quote part of Lord Wensleydale's judgment in the case of Jeffreys v. Boosey (4 H.L.R.' 926), as follows: "The Legislature has no power over any person, except its own subjects—that is, persons natural born subjects, or resident, or whilst they are within the linrite of the kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons, roust, priraa facie, be considered to mean the benefit of those who owe obedience to oar laws, and whose interests the Legialatare is under a correlative obligation to protect." Their Lordships then continue: "All crime is local. The jurisdiction over the crime belongs to the country where tho crime is committed, and, except over her own snbjecte, her Majesty and the Imperial Legislature have no power whatever." Even assuming that his Majesty and the Imperial Legislature have no power over any subjects but their own, the prisoner in this case is a subject of his Majesty, and is a New Zealand citizen. Thia dictum, however, of tho Privy Council in M'Leod's case has not been affirmed" or repeated fn any case that has been mentioned to us, and in fact, the later oases, in my opinion, show that this dictum has not been treated as law by the Privy Council itself. The authority for passing the Crimes Act which I have quoted, reste on section 53 of the New Zealand Constitution Act, 15 nnd 16 Vict, Ch, 72. That section enacted, inter alia: "It shall 'be competent to the said General Assembly (except and subject as hereinafter mentioned) to make laws for the Peace, Order, and Good Government of New Zealand provided that no such laws be repugnant to tho laws' of England." The question then is really this: Does this give authority.to try and to punish a person in New Zealand for the offence of bigamy committed outside New Zealand, the person being a British subject? The meaning of the words " Peace, Order, and Good Government" has been dealt with by the Privy Council ;in the case of Russell v. The Queen (7 A.C., 829), where it was held that they dealt, inter alia, with what may be termed the morals of the people. They apply neither to proper nor to civil rights, bat anything that would affect the morals of the people would come within their scopo. In Hodge v. the Queen (9 A.C. 117), Russell's case was explained and approved, and the Privy Council again held that the law dealing with the sale of liquor in Canada came within the words " Peace, Order, and Good Government." In referring to Ruesell's case,- after comparing the Temperance Act to the law relating to the sale of poisons, said: " Laws of this nature designed for the promotion of public order, safety, or morals, and which subject those who contravene them to criminal, procedure and punishment, belong to tlie subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the .order and good government of Canada." In the Attorney-general of Canada v. Cain ,(1906, A.C. 542), toe decision in Hodge v. the Queen was referred to, and their LordsbjPs said: "In Hodge v. Reg. it was decided that a colonial Legislature has within the limits prescribed by the statute which created it ' an authority as- plenary and as ample . ■ . .as the Imperial Parliament m the plenitude of its power possessed and could bestow.' If, therefore, power to expel aliens who had entered Canada against the laws of the dominion was by this statute given to the Government of the dominion, as their Lordships think it was, it necessarily follows that the statute has also given them power to impose that extra-temtorial constraint which is necessary to enable them to expel those aliens from,their borders to' the same extent as the Imperial Government could itself have imposed the constraint for a similar purpose had the statute never been passed." The principle of law that was laid down in these cases was therefore this, that if a law comes within the ambit of the jurisdiction of being a law to maintain peace, order, and good government in the dominion, the dominion Parliament has full power to enact it. This is also upheld by text-writers; see Dicey's. Law of the Constitution" (2nd ed., p. 103), where he says: "The colonial Legislatures, in short, are, within their own sphere, copies of the Imperial Parliament. They are, within their own-sphere, sovereign bodies, but their freedom of action is controlled by their subordination to the Parliament of Great Britain."

_Can r it be said that the Parliament of New Zealand is prevented from maintaining peace, order, and good government in New Zealand? There is no English statute dealing with this branch of tile law which controls the act of the New Zealand Legislature. It is assumed that the existence of criminals in a country is against good order and good government; hence it is that they are punished. The law ' is not an attempt : to punish people who reside in a foreign country. Jt only pum ports to punish those' who are in New Zealand and who com© witirin the jurisdiction of the New Zealand Government—ttiat is, domiciled citizens, or, as I would say. simply, citizens of New Zealand. the principles laid down m Hodge a case and in Gam's case, I am of opinion that it cannot be said that it was not within the power of the Parliament of New Zealand to enact this law. The matter may be tested in another way; suppose the law had been in this formthat any person in New Zealand who had committed the offence of bigamy, wheresoever that offence had been committed, whether in the dominion or outside the dominion, came to New Zealand, should be liable to punishment, could it be said that the law had been made without Jurisdiction ?. In effect, that is the law now beOr L oonrt for discussion. It is not worded in that way, but as it is only a person in New Zealand who can be arrested and tried in New Zealand, no foreign jurisdiction is invaded. This is not an attempt to arrest persons outside the territorial limits of the dominion or to bring them into the dominion for punishment; it simply says that citizens of New Zealand who have committed an ottence outside of the dominion shall be liable to punishment if they are found in JNew Zealand, and if it cannot be said that this is necessary for the peace, order, and good government of the dominion, how can it be contended that &e New Zealand Parliament has no jurisdiction so to enact? The judgment of the Privy Council in Oams case says that for the "Peace order and good government" of a colony the colonial Legislature has as wide powers as the Imperial Parliament. The latter, in the Crimes Act of England, provided that persons committing bigamy outside of British territory were liable to punishment, and the decision in Earl Russell's case assumes that it is contrary to "the peace, order, and good government" of Britain that a person who commits bigamy should go unpunished in England. Why should not the same provision declaring bigamy a crime wherever committed, which the Imperial Parliament considered as contrary to the " peace order, and good governent" of England, 'be enacted here? That is ite juridical andethical sanction. It is not a question of the defence of the Eeahn; it is not a question of property; it is not a question of civil rights. It must oome under the head of a law—as all criminal statutes do—dealing with the "peace, order, and good government" of a country, and to quote again the opinion of the Privy Council: "A Colonial Legislature has within the limits prescribed' by the statute which created it an authority as plenary and ample as the Imperial Parliament in the plenitude of its power possessed and could bestow." What, then, did the Imperial Parliament bestow? It bestowed -the power of passing laws for the "peace, order, and good government of New Zealand." The presence, of a criminal in the country does not conduce to the "peace, order, and good government" of the dorrrinion, and therefore our Crimes' Act provides power to punish any person _ in New Zealand who is found to be a criminal' so far as bigamy is»-con-cerned. In my opinion the question of territorial jurisdiction does not arise in this oaso because the offender is in New Zealand, and was_ a New Zealand citizen and was a British subject cTotnicned in New Zealand. It is not necessary to enter {foeefore into the wider question that was discussed in In re the Award of the Wellington Cooks' and Stewards' Union (26 N.Z.L.E,, 594). In that ca6e the question arose as to to how far the New Zealand law could operate outside the dominion and how far laws could be passed dealing with ship? belonging- to New Zealand thai were net within the waters of the dominion or within what is called the three-mile limit, but in the present case it is unnecessary to deal with that question. I may odd. however, that I am of opinion that tho Parliament of New Zealand must hp deemed to have control over New Zealand citizens and N<*v Zealand property !\nd New Zealand industries even outside fchr» territorial limits of the- dominion. That. is necessary for the r>eaor>, order, and srood government of New Zealrcnd, itnd I seo no reason to Yshamto or modify the opinion I oppressed on tho subject in the caso just nvtitioned. I then stated : " When this _ colony was started on he coßsiatational life there was surely left to

the new organism some room for development. It has grown. It was not left in the swaddling-bands of a preoise written Constitution, for tho words of the Constitution Act are general. And who is to say thut the growth has stopped? It has been tho glory of the British Constitution that, unlike the written constitution of the United States, it allows growth, development, and adaptation. And so under our Constitution Act tho mere fact that a legislative or executive power lias not been claimed under its provision is no proof that the Act does not contain a potency of both legislation and administration hitherto not exercised in tho colony. If the words of the Act are wide enough to empower tho exercise of such jurisdiction, that fact that it is olaiined for tho first time is no reason for holding that it is not within the power of our Parliament to exercise it. Statutes may often be passed and remain inoperative until circumstances arise that require their full power or potency to be called forth. An illustration ot this was given once by an eminent judge, tlie late Mr Justice Chapman. Ho said that if a statute provided that certain tilings might be done in counties, but euch territorial devisions as counties were unKnown in tho colony, tho Act would be inoperative; but if afterwards counties were established tho Act would immediately spring into operation." 1-u i hnVe witnesse d «ui advance in the liberal interpretation of our constitutional n° W £ r S ' hl the oilSo o£ iu ro leicil T u ?• and F> 39 ) ' the Supreme Court neld that a person charged with an offence i?T^° u Australia and committed under Af itJF?. reign Offe . nders ' Apprehension Act, l#*s,_ to prison in New Zealand there to remain until he could be sent w the colony of South Australia must be discharged from custody, as the object of the Act was to deport certain offenders from the colony, and as this is necessarily implied, a transit over the seas and an attempt to make legal detention upon the high seas was beyond" the powers of the colony. i ij *^ e Attorne y-gMieral v. Cain, it was held that Canada under tho same legislative power that we possessed could inwose extra territorial restraint to expel aliens beyond their borders; the judgment in re Weioh must, therefore, be considered as too narrow an interpretation of the powers of our Legislature. I have dealt with the questions reserved tor the determination of the court without reference to the particular and special position occupied by the prisoner. He was born in New Zealand and was therefore a •tfntish subject domiciled in New Zealand, and in accordance with our statutes he had been sent abroad for the defence of New Zealand and of tho Empire. He never ceased to be within the jurisdiction of the Government of New Zealand. Hβ was a member of our Expeditionary Forces in Jfingland when he married the second time; he was sent back to the dominion as a New Zealand soldier. Further, he must be assumed to have been conversant with our law before he left and also when ho returned. He knew that our law provided that any of our citizens who committed bigamy abroad were Uable to punishment in the dominion. His position is, in my opinion, not without significance. The •fcUgh Court of Australia dealt with a somewhat similar case, which turned upon the jurisdiction to expel an alien from the commonwealth, and as to whether tho Oomraonwealth Government could restrain a person beyond the geographical boundaries of the commonwealth. The Chief Justice said: "I have only one other observation to make with regard to the point of restraint beyond the limits of the commonwealth. It may reasonably be assumed—of course from one point of view it is rather alarge assumption—that every alien who chooses to come into a sea-girt country knows that he is liable to be deported and that he can only be deported by sea. and that he therefore agrees as a term of his admission to the sea-girt country that such restraint may be exercised upon him beyond the territorial limits of that State for the purpose of his deportation as may be necessary. Regarded irom this point of view the necessary restraint is made with his consent." (Robert Mmes v. Breman, 4 C.L.R. 395). The circumstances in this case are far stronger than in the commonwealth case, the prisoner being a native of Now Zealand, a citizen of JNew Zealand, and domiciled in New Zealand. He was in the Government service must be presumed to have known our law and he remains domiciled in New Zealand where bigamy committed anywhere is punishable it the person who commits it is a ■British subject and found in New Zealand. tan it then be said that the authority to enact laws for the peace, order, sud r . oo d government of New Zealand did not authorise the Government of New Zealand to inchct him tor Digamy? If our laws are inertectuai in this respect, the dominion is placed m a peculiar position; it would mean that a New Zealand citizen-could go to Australia—j, journey of a iew days—commit bigamy there, and return to the dominion entering it as an Alsatia. ■ It can hardly be assumed, that the State in Australia in which he may have committed the bigamy has any duty to deal witn New >ealaua offenders when they have returned to tbeir own country. Why should such a State go to the expense of tlie extradition of In offender it it is not contrary to the peace order, and good government of a neighbouring Btajo for him to live there V If however, it is held that it is contrary to the peace, order, and good government for such an Alsatia to exist, then surely our Constitution Act. has given us power to abolish it. J. have referred in iny judgment to the question of citizenship in New Zealand 1 Uesire to state that in my opinion there is such a thing as a King's subject in New Zealand and also a citizen of New Zealand lhe words "citizen" and "subject" are used, in my opinion, interchangeably It has ■ been 7aid that the word "subject" is tho , proper word to use in a monarchy to define the relationship between a person in a monarchy and the Government,, and that the word "citizen" is the proper word to use to denne the position of such a person in a republic. There is a difference of usage, no doubt, amongst writers, but in my opinion the words mean the same thing I mean by " citizen of New Zealand " that a person in New Zealand, born in New Zealand, or a British subject domiciled in New Zealand, or an alien -who has been naturalised in New Zealand, has different rights to a British subject who has been born in the British Empire. For example under our Legislature Act, a person cannot be registered, if he is a British subject, in order to enable him to exercise political privileges until he has resided for at least one year in New Zealand. Secondly, if he is a naturalised subject of the Empire, whether naturalised in Britain or in one of the dominions, he is not recognised as a "subject" of New Zealand unless he is specially admitted as a "subject" of New Zealand. Section 7 of the Aliens Act provides that if any person resident in New Zealand who has previously obtained any certificate or letters of naturalisation in tie United Kingdom or in any British possession desires to be naturalised in New Zealand, he must apply for a recognition of his naturalisation. This recognises, therefore, a ' distinction between what may be termed a British subject and a New Zealand subject, or a New Zealand citizen. There _ is also a distinction made in the admission of people info New Zealand as immigrants. The only people who have free admission into the dominion are either of British or Irish birth or parentage. For instance, a British subject who had been born in India, on arriving at a New Zealand port, would not bf» entitled to admission unless he complied ■with certain conditions. We therefore have

in New Zealand what may be termed thrw kinds of citizenship: We have New Zealand citizens proper; we have natural born British subjects, and we liavo naturalised British subjects. In America — no doubt because the States of America wero originally independent governments— thero axe two lands of citiaenship reoogniscd. This appears in the 14th Article of the American Constitution, which states, inter alia: "All persons born or naturalised in the United States and subject to the jurisdiction thereof are citizens of the United States and of tho State wherein they reside." Americans, therefore, recognise a citizenship of the United States and a citizenship of the_ individual States, and a recent case which is. reported in this year's March number of the Harvard Law Review gives an illustration of this distinction. It was held that the plaintiff in the easo (Pannill v. Roanoke, 252 Fed. Ropts., 910), a citizen of the United States, had acquired a domicile in Californa. He left that State, never intending to return, and toured the United States, and in the course of his travels he came to Virginia, temporarily. He thero sued the defendant in the Federal Court, claiming citizenship in Californa, and it was held that the appeal would have to be dismissed for want of jurisdiction. The law in America provides that a litigant must be a citizen of some State before he can sue in the Federal Court, and in that case the plaintiff was not a citizen. of any particular State, although he was a citizen of the United Statee. In New Zealand wo have not the same sharp line of' citizenship as is drawn between the United States and the individual States in America, but we have in our laws recognised certain liabilities and privileges which attach to persons who may be properly termed citizens or subjects of the King in New Zealand, and in my opinion wo should not _ lose sight of this distinction in considering the case now before us. I have not dealt with the question as to whether the courts in New Zealand have power to declare an Act of the New Zealand Legislature "ultra vires" if that Act is not repugnant to the law of England and is based on the power in the Constitution Act to provide for the peace, order, and good government of the dominion. If a statute was repugnant to the law of England and also dealt with a subject that did not come within the words "peace, order, and good government of New Zealand," then, m my opinion, ih& courts of New Zealand would have power to declare it "ultra vires'?, but if the statute deals with a subject for the peace, order, and good government of New Zealand, I doubt if the New Zealand Courts would have the power so to declare it. The courts in England cannot say that anoh a statute passed by the English Parliament, is "ultra vires," and there is no express power conferred by our Constitution Act, or by our Judicature Act so to declare. The case of Ashbury v. Ellis (1893, A.C., Privy Council, 339) held that a law authorising the New Zealand courts hi any case of contracts made or to be performed in the colony to decide whether they will or will not proceed in the absence of the defendant is intra vires and reasonable, even though the defendant had never been domiciled in New Zealand, and, hi fact, had only been there for a short visit. Further, he did not personally make the contract sued on. The ground of jurisdiction to pass sneh a law was that it was a law made for the peace, order, and good government of New Zealand, and was not repugnant to any English law. In my opin ion, however, it is unnecessary, on the view I have taken of this statute, to deal with tihat subject. The power of a State to inflict punishments on its subjects for crimes committed s abroad is not hi question; Earl Russell's case decides that. The power is recognised by jurists of many countries (See Bishop's Criminal Law, VoL 1, 6th t P 'J£L para- 5 . the power of publishing even subjects of other States for enmea committed abroad is the municipal law of many Sbates. In Hall's International Law, p.-210, the following statement is made:— "The municipal law of the larger number of European countries enables the tribunals of the State to take cognisance of crimes committed by foreigners in foreign jurisdiction." The New Zealand Legislature, therefore hi passing s. 224 of the Criminal Code, was not violating any principle of international law, especially as it dealt only with its own subjects, and not with the citizens of a foreign State. • I am, therefore, of opinion that the conviction is valid. THE MAJORITY JUDGMENT. Mr Justice Chapman, whose view was that also of Mr Justice Edwards Mr Justice Sim, and Mr Justice Hosking said in his judgment: The prisoner stands convicted of bigamy committed hi England. There is no doubt about the sufficiency of our law to reach such an offender if the law is one that the Parliament of New Zealand has .power to make. Section 224 of 'The Crimes Act, 1908," makes it an offence to commit bigamy, and defines the offence to be: "The act of a person who, being married, goes through a form of marriage with any other person hi'any part of the world." Aliens are excluded from the scope of "the enactment, save where they commit bigamy hi New Zealand. In my opinion the only question before us is whether the Parliament of the dominion has power to pass, an act which professes to deal with a crime committed hi another country. Incidentally, a question. has been raised as to whether Parliament has any special authority hi respect of persons domiciled hi New Zealand who commit offences in other countries, just as the Imperial Parliament, as illustrated hi Earl Russell's case (1901, A.C, 446), exercises such authority. I will first state my views on the latter question. I do not think that any reliance can be placed on the circumstance that the accused was domiciled hi New Zealand. It is' suggested that he was a New Zealand citizen. The term citizen has no place in English" law, save to describe a corporator of a city; the expression, when used as a term* of international law, can therefore only mean that this man was domiciled hi New Zealand.. I cannot, however, conceive that in inquiring into such a charge as this the question of the offender's domicile can be allowed to be a material issue to be investigated and determined in , each case. If it could it would in the result leave outside the category of offenders those persons who, owing to then* wandering habits or owing to: an attachment to some other domicile through employment, as hi the Lauderdale Peerage case (10, A.C., 692), were technically remitted to the domicile of origin. The constarni) movement) of population backwards and forwards between ' this country and Australia • may often leave th« actual domicile of individuals in doubt. This was not the argument relied on by the Solici-tor-general, who put it broadly that if a British subject committed the crime of bigamy, as denned by section 224, "in any part ,of the world," he thereby became- an offender against the law of New Zealand, exactly as the offending peer hi the case of Earl Russell (1901, A.0., 446) became an offender against the law of the United .Kingdom. Agreeing as I do with this argument so far as to hold that no distinction can be based on citizenship or domicile, I am unable to agree with the reasons of the Chief Justice based on this distinction. In whatever way we look upon this controversy we are always brought face to face with the question whether we. can deny the validity of the limitation imposed upon the legislative authority of the Dominion Parliament by the pronouncement of the Privy Council in M'Leod v. Attorney-general of New South Wales (1891. A.C, 445). That statement of, the law has been quoted, but I think it is as well to quote it again thus: "Their Lordships think it right to add that they are of opinion that if the wider construction had been applied to the statute and it was supposed that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the jurisdiction of the colony to enact such a law." This has been spoken of as an obiter diatom. That may perhaps be said since the case was decided upon another ground, but it was not a hasty incidental opinion such as all courts feel themselves on reconsideration entitled to ignore. To realise this folly it is necessary to notice the language of the earlier part of-the judgment wherein their Lordshpis say: " 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 hi the habitable globe is amenable to tiie criminal jurisdiction of New Sooth Wales if he can be caught in the colony. That seems to their Lordships to be an impossible construction of the statute; the colony can have no such jurisdiction and then- Lordships do not desire to attribute to file colonial legislature an effort to enlarge their jurisdiction to such an extent as would be • inconsistent with the powers committed to a colony and indeed inconsistent with the most familiar principles of internartional law." Aβ to this, however, we now have the statement of Griffith, C.J., in Deianey v. Great Western Milling Co. (22 Com. L.R. at p. 161) assuring us, as a matter of history, that the Parliament of New South Wales had in fact designed to include such persons as the present defendant in tho description. Thr> circumstances in which -fche Priry Council entered upon the statement of the law under discussion were such as to call for a deliberate exposition. The Colonial Legislature may fairly bo considered to have made a'mistake from its own point of view in

not wording its enactment as the English -Act is worded, or as Parliament has worded section 224 of the Crimea Act. It appears on the face of it apart from the historical statement of Griffith. J. to be a caso of "quod voluit non dhut." Tho xnero wording of the Act couici, however, bo amended ut any time, and in this caso without injuring any one, and I judge from the expressions used by their .Lordships that they must have had this in mind when they explained tho law in such a way as to show that such an amendment of the wording of tho Act would bo futile. That such wus the law when this pronouncement was published was therefore not open to bo disputed by the courts of the dependencies. Wo are now asked to say that it is not the law, because the law has been placed on a different footing by subsequent decisions. Before referring to the effect of those decisions, I find it necessary fcp refer to one argument that has been pressed upon us namely, that the Privy Council has not since in any case expressed its approval of the doctrine laid down in M'Leod's case. All I can say as to this is that unless the decisions relied on have the effect of overruling that pronouncement, it was hardly to be expected that the Privy Council should say anything to discredit it. It seems to mo that an argument as sound as that relied on might be based on the circumstance that the Privy Council has not thought it necessary to explain the relation' of ,the later decisions to the statement of the law laid down in, M'Leod's case. This would assume that there is no inconsistency. It is therefore incumbent on us to consider whether any subsequent decision has overruled what was laid down in M'Leod's. case. Reliance was mainly placed on Attorney-general of the dominion of Canada v. Cam; same v. Gilhula (1906, A.C. 542), as being such a decision. It is, however, to be observed that that case belongs to a distinct class, so distinct in fact that it does not appear that counsel in arguing it referred to M'Leotfs case. That class includes cases respecting the defence of the dominion, the regulation of shipping, Customs, and other matters where in some sense a certain measure of authority conferred by local legislation must be exercised beyond the actual limits of the dominion. The existence of such a class of cases was fully recognised by the High Court of the Australian commonweaitn in Deianey v. Great Western Milling Company, Lhn. (22 'Com L.R. !iOj, in which M~s case was not '-■nly ctect but the rule there laid down was treated as unquestioned law, though Cain v. Attor-ney-general of Canada, which is now relied | on as over-ruling the restriction under con- I sideration, had ■ been decided 10 years pre- i viousiy. I may add that in 1912, when the ' case of Swiite v. the Attorney-general of ! Ireland (1912 A.C. 276) was before the iiouse j of Lords, Lord Halsbury appears to j had no misgivings as to the correctness o£ • tho law as laid down hi M\Leod's cate, as ' he observes at p. 278 "In M'Leod .v. the j Attorney-general of New South Wales the ! question was raised whether a coloniai ! statute, by reason of the generality of the • language, was applicable to all mankind, | but it was held that tho words must. te ! limited to persons actually within the juris- i diction of the colony." To this same ciass | or group of recognised exceptions belongs i also the case o( Semple v. ODonovan (1917 i N.Z.L.R. 273), decided ha the Supreme ! Court here. It is true that in that case j the Imperial Army Act gave the dominion i Parliament authority to maintain discipline ! m a force serving beyond the limits of its i ordinary authority, but die judges who then ' sat considered that the legislative power existed without such aid- as a measure of authority absolutely necessary for the defence of the dominion.- and consequently for its peace, order, and good government, power to defend the dominion involves the exercise of auxiliary powers. "The complement of an admitted power" is the expression aptly used by Isaacs J. ha Deianey v. Great Western Milling Co., Ltd! (22 Com., L.R. 15, 165) to characterise the power claimed hi Attorney-general of Canada v. Cain (1906, A.O. 542). I do not think it necessary to refer hi detail to the authorities cited by the Solicitorgeneral, but I would point out that Ashbury -v. Ellis does not appear to carry the matter any further. A judgment based , on a contract mad© and to be performed hi New Zealand was pronounced against a person domiciled and then being hi England. Ordinarily such a judgment is good but it cannot be. enforced beyond New Zealand—Sirdar Gurdyal Singh v. Rajah of Faridkote (1894, A.C. 670). Our legislature has in the same way under rating Acts provided for judgments for rates against absentees enforceable against the rated land. Such a judgment could not be sued on hi the courts of the absentee's country of domicile. In the course of argument we were referred to a number of statutes which involve legislative activity beyond the actual limits of the dominion and its dependencies. These seem to me all to belong to the class already referred to, ' acts done pursuant .to which may be justified by reference to what was laid down in Cain v. Attorneygeneral of Canada (1-906, A.C., 542). If they are correctly explained by the expression of Isaacs J., already quoted, they give no assistance to the defendant hi this case. It seems to me that they clearly I come within the explanation involved in that expression. . • In Peninsular and Oriental Steam Na-vi-gation Co. v. .Kingston (1903, A.C., 471) tne legislation was! different in form; it was not necessary to consider whether the offence .there charged might .or might not have been created by more direct legislation making it unlawful to break I customs seals at sea. The offence was being in an Australian port with customs seals broken otherwise than by authority and this violated a statute of the commonwealth. From considerations derived from this caee it has been atguaed that as our Parliament could quite lawfully make it an offence for a British subject to land m New Zealand after having committed bigamy elsewhere, there'is no reason why this formality should be observed that substance it follows that direct legislation such as we have before us must be effective. I cannot agree "with this argument. That our Parliament could so legislate is undoubted, but its authority so to do need not be limited to British subjects • it could so legislate with respect to a subject of any other State equally effectually Not only' could it do that; it could equally effectually make it an offence for any person who has done any specified act to land in New Zealand. Somethink Bee this has, hi fact, been done by the Immigration Restriction Act, 1908, s. 18 of which makes it an offence where a person who has suffered imprisonment for a specified class of crime comes to New. Zealand within two ; years of the expiry of his punishment Ihis mode'of dealing with a bigamist is simpler than that attempted, but his offence against our law would not be the original act of bigamy but the subsequent landing here. If it were subject to limitation as some offences created by our Legislature are, the time would run from a different date. Many authorities down to R. v. Casement (1917, KJB. 98; 25 Cox C.C. 480, 503) recognise that English law regards all crimes as local save such as being committed abroad are by sufficient authority made offences of which cognisance may be taken in the country of the offender This appears to me in itself to afford a very strong reason for saying that when the Imperial Parliament conferred on the Legislature authority to make laws for the peace, order, and good government of New Zealand tt cannot be considered to have had in mind a subject so remote from the ordinary course as the conferring of authority to regulate the conduct of British subjects m every. part of the world. The authority exercised in cases : like those of Sir Roger Casement and Earl Russell stands on quite a different footing, as.no British court can deny the plenary authority of the Imperial Parliament even when it has enacted something tending to a diplomatic collision. ■ For these reasons I am of opinion that subsequent decisions of &e Privy Council have not been shown, to bo inconsistent with what was laid down in M'Leod'e case, and that we are bound by tho authority of that_ case. That it has been since treated in die Australian Commonwealth in New South Wales and in New Zealand, as explaining the law does not add to' its authority but it shows that in tne opinion of in those countries its antlioritv has remained "undisturbed. L therefore think that this conviction must be quashed'