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What Law does a new Colony take?[1]

Henry Samuel Chapman

1) A newly established Colony by settlement – such as New Zealand – takes the common law of England.

2) It takes the statute law of England as far as the case is applicable to the circumstances and conditions of the Colony.

3) If the Colony be established as a “dependency” of an older Colony, it takes the law of that Colony with the case limitations as to “applicability”.

4) New Zealand was at first established as a dependency on New South Wales – and the Government of new South Wales sent down officers – a Judge, an Advocate General (your uncle C. Brewer) and magistrates; but before they got to work Captain Hobson arrived with a Commission as Lieut. Governor and new Zealand in January 1840 became an Independent Colony.

(NOTE. The Colonial Office in order to embarrass the new Zealand Company in 1839 had issued a sort of manifesto declaring New Zealand to be “a substantive and Independent State” and in order to carry out this view, Hobson was armed with a Commission as Consul and another at Lt. Governor; but when he reached Sydney, he found it necessary to suppress his Commission as Consul and he was sworn in as Lieutenant. Governor; still he was embarrassed by the Substantive and Independent State Doctrine in several ways.

He had to get the Cession of Sovereignty from the Chiefs – which he did by instalments; hence the Treaty of Waitangi.

The Company’s settlers at Wellington had entered into a compact with the Chiefs of the Ngatiawa and were governing themselves under that compact.

A French Company the Nanto-Bordelaise Co. sent out a lot of settlers to Akaroa, and would have succeeded, only a British ship the Balmoral was sent down to forestall them and the Queen’s Flag was hoisted at Akaroa and her majesty’s authority proclaimed without waiting for any cession under the treaty of Waitangi.

5) Next came the question – What laws New Zealand ought to take. Whether the laws of England under Rules 1 & 2: or the laws of New South Wales under Rule 3. In July 1841, the Government having acted under NSW law for 18 months, a legislature was established and called together. The first ordinance which they passed was to establish the laws of New South Wales, and to indemnify officers for the past 18 months. If they had made this ordinance declaratory with proper recitals no indemnity Clause would have been needed.

6) But the new settlers did not like being governed by “Convict Law”. The Press was always complaining. Some of the Legislative Councillors were old official hacks from Sydney and everybody snubbed them and their Convict law. Accordingly in March 1842, the Ordinance No.1 was repealed and not only so but it was enacted that “No law, Act or ordinance of the New South Wales shall hereafter be of any force or effect whatever within the Colony of new Zealand.” This restored the law of England, including the Statute law in force in January 1840 – with of course the Condition of applicability.

(A question might have been raised theoretically whether this did not give a new starting point to the Rule 2, i.e. March 1842, but never cropped up.)

7) When once the Queen’s authority is established – a line is drawn as to the force of the English Statute law within the Colony. The Colony has a legislature of its own and then the rule is

8) That after the establishment of the Queen’s authority no Act of the Imperial Parliament has any force in the Colony unless the Colony be especially named, or clearly included in the language of the Act.

There are many Acts of parliament especially applicable to New Zealand and to no other Colony such as the Constitution Act and various Acts relating to the new Zealand Company – Canterbury Association etc.

A Colony though not named may be included in a Group-Act.

In still more comprehensive words as “all her Majesty’s dominions” – “the Queen’s dependencies” – “the Queen’s possessions abroad” etc. etc.

A Colony may be included by force of the subject matter eg. “all Her Majesty’s subjects” – “all British ships” – passengers in any B or F ship to or from any part of HM dominions.

9) It is to this class of Acts that the doctrine of “repugnancy” applies. In Charters and Acts relating to Colonies, power is given to make laws – provided that such laws shall not be repugnant to the law of England. This has sometimes be interpreted to apply to any difference; but the true interpretation is repugnant to any act of P. especially binding on the Colony. Thus a Colony may alter the course of the Common Law of descent and so forth; but cannot violate the Merchants Shipping Act.

10) But Imperial Acts binding on the Colony sometimes contain a clause enabling a colonial Legislature to alter the law within certain specified limits; these limits must be strictly observed.

(NOTE. In February 1854 I wrote an article in the London Law Magazine on Repugnancy which was then only ill understood. My view has since been confirmed both by the Imperial Parliament and the Privy Council.)

11) There is an exceptional class of Imperial Acts which (I think) bind the Colonies though not named. I mean declaratory Acts interpreting former Acts. These Acts are in the nature of Judicial decisions by the High Court of Parliament, and are binding on all Courts of Justice. I think they are binding on the Courts of the Colonies.

Fishers Digest – title Colonies, contains many cases deciding points of Colonial Law.

[Not dated]

Footnotes

[1]Chapman, Henry Samuel, ‘Official papers - Notes on colonial legal matters', 1852, MS-Papers-0053-06, Alexander Turnbull Library, Wellington. Note that the date listed by ATL in this reference is incorrect.