2-063 (Raw)

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I will dispose of an argument raised under the provisions of the 9th Geo. IV c. 83, which is supposed to give the Supreme Court of this colony a discretion to adopt only so much of the English law as it can apply. Before the passing of this Statute, it was laid down in all the authorities, and confirmed by the ruling of the King in Council, that wherever a new colony is settled by British subjects, the laws of the parent country become the laws of the place, so far as they are, or may be made applicable to its circumstances and condition. The New South Wales Act does not introduce a new principle. It is recognised in the old common law of the colonies, and is laid down in Blackstone, vol. I, p. 107, 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," with the restrictions therein set forth. The laws of England are declared by the Act for settling the succession to the throne, to be the birthright of the subject. Let an Englishman go where he will, and settle a new country, he carries with him all the laws which are applicable to his condition. What laws do or do not apply, must necessarily be left to the local authorities to determine, always subject to an appeal to the King in Council. Now, this principle is affirmed in the Act referred to, and is carried no farther. There is a wide distinction between not applying a particular rule of law, and creating a new and a different rule - between legislating and expounding. I apprehend, therefore, that the Act of the 9th Geo. iv, is merely declaratory of what the law was before, which directs that so much of the statute and common law shall be as can be applied. With respect to the statute law, an important point has thus been gained. It is laid down by Blackstone, that, when a colony is settled, the statute law, that is, Acts of Parliament passed subsequently, are no longer applicable, unless it be specially named therein; and many cases have been determined upon a decision of the King in Council on this point, so far back as 1761. But the 9th Geo. IV c. 83, enacts that the courts here shall apply all the statutes of England, and also the common law, as the law of the colony, up to the passing of the Act; and then goes on to direct that, whenever any doubt shall arise as to the applicability to the colony of any law, the Judges of the Supreme Court shall declare what laws do or do not apply. Now, it is contended, that under this statute there is a positive recognition of the power of this court to apply the law only so far as circumstances will admit; and that it may, therefore, dispense with so much of the law of England as relates to the exclusion of witnesses propter delictum. That, however, is not the way in which I construe the Act. Where we can apply the law, we are to apply it: the Act is, as I apprehend, merely declaratory; it only places the court on the same footing in which it stood previous to that enactment, namely, of admitting or rejecting - of declaring what laws do or do not apply - between which and creating a new law I draw a broad line of distinction.
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