PUBLIC RECORD OFFICE
Reference :-
CO. 885
4 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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of Graaf Reinet, in the Colony of the Cape of Good Hope, that Du Toit had committed the crime of fraudulent insolvency at Graof Reinet, and that Magistrate issued a warrant for the apprehension of the prisoner on that charge. The Ordinance No. 1843 declares what fraudulent insolvency is, and prescribes as punishment transportation for life, or imprisonment for any period not exceeding seven years. Du Toit had been for some months in Natal, and was well known. The Resident Magistrate of Pietermaritzburg endorsed the warrant issued for Du Toit's apprehension, and he was arrested and com- mitted to the Pietermaritzburg Gaol. Application was made to the Supreme Court to discharge Du Toit from custody, or to admit him to bail, subject to Du Toit's entering into recognizance to appear before the Resident Magistrate of Graaf Reinet.
The Supreme Court (the Chief Justice dissenting) ordered Du Toit to be discharged. The judgments of the Judges are appended. Two questions of importance arise out of this decision can a Colonial Court inquire into, and declare a law passed by the Colonial Legislature, and approved by Her Majesty, void and ineffectual? Presuming that the Supreme Court of Natal have this power, what are the principles which ought to guide the Court in deciding on the validity or invalidity of a law passed by the Colonial Legislature, and which may be in conflict with an Imperial Statute, or repugnant to the laws of England. In England the will of the Legislature is the supreme law of the land, and demands perfect obedience, and I am not aware that any Court of Law in England has declared an Imperial Statute ineffectual and void. In America a different principle prevails; there a written Constitution designates the powers of the Legislature, and the Courts of Justice in America decide upon the validity or invalidity of a Statute passed by the American Legislature, as occasion may require.
The British Colonies have all written constitutions empowering them to legislate, each according to its written constitution.
By Letters-Patent under the Great Seal of the United Kingdom, bearing date the 15th July, 1856, Her Majesty the Queen authorized and empowered the Governor of Natal, with the advice and consent of the Legislative Council, to make all such laws as may be necessary for the peace, order, and good government of Natal, provided the same be not repugnant to the laws of England. If a Legislature, having this written constitution, make and pass a law contrary to that written constitution, I presume that such a law would be null and void. Some power must exist to determine upon a law passed by a Colonial Legislature in opposition to its written constitution, and, in my opinion, the Judicial Department, as far as the Colony is concerned, have ample power, when the question is raised before them, to determine whether such a law is valid, even though such law has received Her Majesty's confirmation.
I presume it was upon this principle that the Privy Council acted when they expressly decided, in Divine r. Holloway, 14 Moore, P.C.C. 290, that the Colonial Legislature of New South Wales had the right to make an Act adopting the English statute of limitation, and it also seems admitted that the Supreme Court of that Colony might have entertained the question of the validity of the law.
The Queen's Bench in England, in the case of the Bank of Australia v. Mas, Jurist, 967, also entertained the same question.
It was pleaded that the Colonial law was void as being repugnant to the laws of England, but the Queen's Bench held that the law was valid, and that the Colonial Legislature bad power to enact a law regulating the procedure by which the contracts of the said Bank should be enforced in the Courts of the Colony, although it differed from the English procedure. In neither of these cases does, it seem that the power of the Court to decide upon the matter was questioned, and I 'am of opinion that the Supreme Court of the Colony of Natal had jurisdiction in deciding upon the power of the Legis. lature of Natal to make and pass Law No. 17, 1862, the law under which Du Toit was in custody.
Mr. Justice Connor and Mr. Justice Phillips, in deciding in favour of the prisoner's discharge, vested their judgments on different grounds. Mr. Justice Connor decided that Law No. 17, 1862, was in conflict with Imperial Statute 6 and 7 Vict., cap. 34, and was, therefore, ineffectual and void. Mr. Justice Phillips did not consider the Legislature of Natal bound by 6 and 7 Vict., cap. 34, but considered the Legislature could not go against the spirit of Magna Charta, or Act of Habeas Corpus, and decided that the law was repugnant to the law of England, and, therefore, it was void.
On perusal of both laws it will appear that the Colonial Law and Imperial Statute have the same object, the arrest and delivery of fugitive criminals. The Colonial law modifies within the Colony the working of the Imperial Statute, and extends the object it had in view. It extends to Resident Magistrates the power of endorsing warrants conferred by the Imperial Statute on the Judges of the Supreme Court, and it extends
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the operation of arrest for crimes that did not, by reason of Roman-Dutch law prevailing in Natal, come within the meaning of the Imperial Statute 6 and 7 Vict., cap. 34, and 15 and 16 Vict. For the definition of crime it uses the same term "indictable offence" as is used in the Imperial Statute 11 and 12 Vict., cap. 42. It is true that the Colonial Law did not require the same steps to be taken for the deportation of an arrested criminal as the Imperial Statute did, and it further did not require the verification of the Magistrate's signature who issues the warrant for the prisoner's apprehension. The Imperial Statute made this a condition precedent to endorsing a warrant.
The Colonial Law provides in the 1st section for the deportation of criminals between the Colony and the United Kingdom, and is exactly in the same terms as the Imperial Statute 11 and 12 Vict., cap. 42. By the 2nd section of the Colonial Law it is impliedly enacted that fugitive criminals from Colonies were to be deported in the same
manner.
I entertain grave doubts whether the Colonial Legislature had the power to alter the mode of deportation provided by the Imperial Statute 6 and 7 Vict., cap. 34, not because the altered system of deportation was in conflict with the Imperial Statute 11 and 12 Vict., cap. 42, but because it was ultra vires of the Colonial Legislature to enact laws having any force out of the Colony of Natal. But as the 2nd section of Law No. 17, 1862, does not expressly provide for the transmission of a fugitive criminal from another British Colony to that Colony when arrested in Natal, it is submitted that for this deficiency recourse should be had to the Imperial Statute, and that the Colonial and Imperial Statutes should be construed together. I do not comprehend what Mr. Justice Phillips meant when he stated the arrest was bad or the law was bad, as being repugnant to the law of England. The law is exactly the same as the 11th and 12th Vict., cap. 42. As regards the arrest and deportation of criminals between England and Ireland, and 1 can see no reason whatever why the same law of deportation should not prevail in the Colonies of South Africa, the Roman-Dutch law being in force in all. I cannot place the same broad construction on the word "conflict" that Mr. J. Connor does; in my opinion a conflict of laws, sufficient to make a Colonial law void, should be a conflict that would attempt to nullify or set at naught within the Colony an Imperial statute.
However, the question for the Court to decide was whether Du Toit was legally arrested; if it became necessary to send Du Toit to Cape Town, proceedings may have been taken under the Imperial Statute. This decision, in my opinion, cannot be sustained, and it cannot be held that the colonial law was void and ineffectual, as being in conflict with an Imperial Statute, or repugnant to the laws of England, because the colonial law simply differed from the Imperial Statute. Presuming, therefore, that the Court will adhere to this decision, or, rather, to the principles on which it is based, it is not judicious to re-enact a law in terms similar to Law 17, 1862, which has been disallowed.
Although the Imperial Statute is not fitted to our circumstances, yet it is the only one that we can get enforced, and to the Imperial Parliament alone can we look for any change in 6 and 7 Vict., cap. 34, as the Law No. 17, 1862, which modifies the Imperial Statute within this Colony to the requirements of the Colony, was, by reason of this modification and alteration, decided to be ineffectual and void.
(Signed) M. H. GALLWEY, Attorney-General.
December, 1863.
Inclosure 2 in No. 2.
AT very utmost the depositions only disclose a theft.
The Imperial Statutes 5 and 6 Vict., cap. 38, 6 and 7 Vict., cap. 34, 16 and 17 Vict., cap. 118, provide for the arrest of a criminal found in one Colony for a crime committed in another.
These laws define the crimes for which a criminal may be so arrested, and the mode in which an arrest may be made.
Theft is not one of those crimes.
I cannot advise that application may be made to the Cape Government for the apprehension of the prisoner.
April 19, 1875.
(Signed)
M. H. GALLWEY, Attorney-General.