Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
" Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it that been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; ... What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in first instance by their own provincial judicature, subject to the revision and control of the king in council; the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the legislature in the mother-country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws, but, thill he does actually change them, the ancient laws of the country remain, unless such as are against the law of God as in the case of an infidel country. Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the native (with what natural justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct (although dependent) dominions. They are subject, however, to the control of the parliament".
According to Blackstone, English law would become the law of a country outside England either upon first settlement by English colonists of "desert uninhabited" country or by the exercise of the Sovereign's legislative power over a conquered or ceded country. Blackstone did not contemplate other ways by which sovereignty might be acquired. In the case of a conquered country, the general rule was that the laws were altered by the conqueror (38). The Crown had a prerogative power to make new laws for a conquered country although that power was subject to laws enacted by the Imperial Parliament (39). The same rule applied to ceded colonies, though the prerogative may have been limited by the treaty of cession (40). When "desert uninhabited countries" were colonised by English settlers, however, they brought with them "so much of the English law as [was] applicable to their own situation and the condition of an infant colony" (41). English colonists were, in the eye of the common law, entitled to live under the common law of England which Blackstone described as their "birthright" (42). The law was not amenable to alteration by the exercise of the prerogative (43). The tender concern of the common law of England for British settlers in foreign parts let to the recognition that such settlers should be regarded as living under the law of England if the local law was unsuitable for Christian Europeans (44). This rule wasappliedeventoEnglishresidentsinEasterncountrieswhichwerenotunderBritishsoveregnty(45).
When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there under the protection of the forces of the Crown, so that the Crown acquired sovereignty recognised by the European family of nations under the enlarged notion of terra nullius , it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme internal legal authority (46). The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory (47), the law of England became the law of the territory (and not merely the personal aw of the colonists). colonies of this kind were called "settled colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation. In Advocate-General of Bengal v Ranee Surnomoye Dossee (48) Lord Kingsdown used the term "barbarous" to describe the native state of a settled colony:
" Where Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them and become members of their community become also partakers of, and subject to the same laws."
In Campbell v. Hall Lord Mansfield suggested that Jamaica should be regarded as a settled colony because the English colonists arrived after the Spaniards had left (49), the Negro inhabitants presumably being of no significance (50). In Cooper v. Stuart Lord Watson proffered the absence of "settled inhabitants" and "settled law" as a criterion for determining whether inhabited territory had been acquired by "settlement" under English law (51):
" The extent to which English law is introduced into to a British Colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically occupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class. In the case of such a Colony the Crown may by ordinance, and the Imperial Parliament, or its own legislature when it comes to possess one, may by statute declare what parts of the common and statute law of England shall have effect within its limits. But, when that is not done, the law of England must (subject to well-established exceptions) become from the outset the law of the Colony, the law of England must prevail, until it is abrogated or modified, either by ordinance or statute."
As the settlement of an inhabited territory is equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation, the common law which the English settlers brought with them to New South Wales could not have been altered or amended by the prerogative - only by the Imperial Parliament or by the local legislature (52). (This principle raises some doubts about the validity of the exercise of legislative power by the Governor of New South Wales before a Legislative Council was established in 1823, but we need not pause to consider that question (53).) In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally. Thus the theory which underpins the application of English law to the Colony of New South Wales is the English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were "an uninhabited country ... ) discovered and planted by English subjects" (54). The common law thus became the common law of all subjects within the Colony who were equally entitled to the law's protection as subjects of the Crown (55). Its introduction to New South Wales was confirmed by s.24 of the Australian Courts Act 1828 (Imp.) (56). As the laws of New South Wales became the laws of Queensland on separation of the two Colonies in 1859 (57) and, by the terms of the Queensland Coast Islands Act 1879 and the Governor's Proclamation, the Murray Islands on annexation became subject to the laws in force in Queensland, the common law became the basic law of the Murray Islands. Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. And this is so irrespective of the fact that, in 1879, the Meriam people were settled on their land, the gardens were being tilled, the Mamoose and the London Missionary Society were keeping the peace and a form of justice was being administered.