120
parallel lines with the provisions of the Colonial Laws Validity Act relating to laws made for Colonies either by
the local Legislature or by Order in Council.
(4) Assuming then that lagna Carta is an Act of
Parliament within the meaning of the Colonial Laws Validity Act it is contended that the "nullus liber homo"
clause does not extend to Hong Kong either by express
words or by necessary intendment. The phraseology all has reference to England and "nglish institutions,e.g. dissaisiatur, utlagetur exuletur,legem terrae; and the Realm temp. John included no Colonial possessions beyond
the Seas,
(5) The case of the Habeas Corpus Aats is more
difficult, since the Act of 1862 provides that no writ of Habeas Corpus shall issue out of England by authority of any Judge or Court of Justice therein, into any Colony
or foreign Dominion of the Crown, where His Kajesty has
a lawfully established Court or Courts of Justice having
authority to grant and issue the writ and to ensure the due execution thereof throughout such Colony or
Dominion.
It may perhaps be argued from this fot that
が
the Habeas Corpus Aot,1679, and subsequent Acté "extend" to the Colonies, but they do not do so by express words and the question is whether in view of the Act of 1862
It they can be said to do so by necessary intendment.
is submitted that the Act of 1862 does no more than to
provide that no writ of Habeas Corpus shall issue out of England where the writ has legal existence in a Colony
and can be issued and executed there.
This construction
involves the argument that the Habeas Corpus Acts are substantiallyrachinery for giving better effect to the
common law remedy of Habeas Corpus and that the Act of 1862 extends only to Colonies where the ancient common
law writ of Habeas Corpus exists.
(6) It then becomes necessary to consider
the position of Hong Kong as regards the common law of
England. The English common law runa proprio vigore in all settled Colonies but not in Colonies acquired by conquest or cession. In many conquered Colonies however the Tnglish common law has been introduced either directly by the Crown in virtue of its right as the conqueror - this was done by koyal Proclamation
or after a in the case of Grenada and St. Vincent local Legislature had been established by the Crown
e.g. then by enactment passed by that Legislature
-
the case of Trinidad, In some conquered Colonies the English common law was not introduced at all and
the old local common law was preserved, either because this was provided for in the terms of the capitulation or else on grounds of public policy e.. the Roman Dutch Law Colonies such as British Guiana, the Cape
and Ceylon.
-
X v. prior to the
Aut
Coded Colonies (of which Hong Kong is an example) are in the same position in this respect as conquered Colonies, an by local Ordinances (the first of which dates back to 1845) the Hong Kong Legislature has introduced into Hong Kong the law of England as it existed on the th of April1843, provision now in forge will be found in section 5 of
The
the Supreme Court Ordinance,1873, as printed in the
Home Komme
United Kingdom Revised Laws of 1913.
(7)
Accordingly whilst admitting that the
law
common