1890.

WALKER

υ.

part, but in order to see the object and scope of the Act. It has been held by the Privy Council that the ecclesiastical law of SOLOMON. England cannot be treated as part of the law which the settlers carried with them from the mother country: In re The Bishop of Natal (7); Stephen's Commentaries, 8th Ed. 101; 1 Blackstone's Com. 108. The Act in question was purely ecclesiastical in its origin and object, and was therefore neither brought here by the early colonists nor introduced by the 9 Geo. IV. c. 83. It was passed in consequence of the religious disturbances known as the Lord George Gordon riots, and upon the action of one of the bench of Bishops. Looking at the Act as a whole, its object is plainly not to preserve Sunday as a day of rest, but to provide for punishing in the common law Courts certain offences formerly punishable by the ecclesiastical authorities. My learned friend did not refer the Court to the 7th section of the Act, which provides that "the ecclesiastical jurisdiction within this realm shall not by this Act be altered or abridged, but that the ecclesiastical Courts may punish the said offences as if this Act had not been made," nor to the 8th section, which says that "nothing in this Act contained shall be construed to extend to take away, alter, or abridge any of the liberties or immunities to which the Protestant subjects of this Kingdom are entitled by" the Toleration Act. The Act, therefore, on the face of it, appears to be specially directed against some church or sect other than the Protestant church, and can never have been applicable to this colony. The Toleration Act is not in force here. That there is a decidedly ecclesiastical ring about the Act is recognised by Williams, J., in McHugh v. Robertson (8). The proper principle to guide the Court in determining if an Act is in force here by virtue of the Constitution Act is whether at the time the question arises the Act sought to be enforced is reasonably applicable to the then circumstances of the colony. R. v. Colan is no guide to the Court; no one argued the case for the prisoner, and Sir W. Manning, J., assented with considerable hesitation. If, however, the Court think they must consider whether the Act was applicable in 1828, then I say that it was passed under peculiar circumstances and to deal with evils that had no existence (7) 2 Moo. P.C., N.S. 115. (8) 11 V.L.R. at 420.

it

in the colony. In the Attorney-General v. Stewart (9) the
question was whether the Mortmain Act was in force in Grenada,
a British colony. Sir William Grant says, "Whether the statute
of Mortmain be in force in the island of Grenada will, as
seems to me, depend on this consideration, whether it be a law
of local policy adapted solely to the country in which it was made,
or a general regulation of property equally applicable to any
country in which it is by the rules of English law that property
is governed. I conceive that the object of the statute of
Mortmain was wholly political; that it grew out of local
circumstances, and was meant to have merely a local operation.
Again at p. 164 the Master of the Rolls says, "In its causes, its
objects, its provisions, its qualifications, and exceptions it is a law
wholly English, calculated for the purposes of local policy,
complicated with local establishments, and incapable, without
great incongruity in its effect, of being transferred as it stands
into the code of any other country. I am of opinion that it
constitutes no part of the law of the island of Grenada, and that
the exception must consequently be allowed." And the Mortmain
Act was for these reasons, which apply with equal force to the
case we are considering, held not to be in force in Grenada. In
Whicker v. Hume (10) the question was whether the Mortmain
Act was introduced into New South Wales by the 9 Geo. IV.
c. 83, and the House of Lords, following the reasoning in the
Attorney-General v. Stewart, held that it was not. Lord
Cranworth at page 161 says, "With regard to this statute of
Mortmain, I cannot have the least doubt that that cannot be
regarded as applicable to the colonies. One thing that the Act
requires is that the deed is to be enrolled in Chancery within
six months.
And more particularly there is no evidence
whatever that the evil which that statute was meant to remedy
was at all an evil which was felt or likely to be felt in the
colonies." See also the judgment of Knight Bruce, L.J., in
Whicker v. Hume before it went to the House of Lords (il).
These cases, affirmed only last year in Jex v. McKinney (12),
shew that the Court must consider whether the statute was not

(9) 2 Mer. 143.
(10) 7 H.L. Cas. 124.

(11) 21 L.J., Eq. at 409.
(12) 14 Ap. Cas. 77.

1890.

WALKER

v.

SOLOMON.

1890.

WALKER

v.

SOLOMON.

framed for reasons peculiarly affecting England and inapplicable to a new colony.

[FOSTER, J. If your argument is a correct one, the Statute of Uses is not in force in this country.]

If necessary I am prepared to argue that the Statute of Uses is not in force here, and for stronger reasons than those applying to the statute of Mortmain.

The 21 Geo. III. says that the penalty shall be sued for in the courts at Westminster.

[THE CHIEF JUSTICE. And I see that the preamble refers to rooms or places within the cities of London and Westminster or in the neighbourhood thereof.]

Yes, and but for the Brighton Aquarium cases that must have been held a fatal objection.

Apart from the question whether Christianity is part of the common law of England, the 21 Geo. III., if it was an Act passed to assist the State church in enforcing the religious observance of Sunday, is totally inapplicable to the colony. We have no State church and no State religion. All sects are equal. It is, however, argued that Christianity is part of the common law. Lord Coleridge, C.J., states the law in this point on R. v. Ramsay & Foote (13). He says, "The old cases can no longer be taken to be a true statement of the law, as the law is now. It is no longer true, in the sense in which it was true when these dicta were uttered, that Christianity is part of the law of the land. In the times when these dicta were uttered, Jews, Roman Catholics, Nonconformists of all sorts were under heavy disabilities for religion-were regarded as hardly having civil rights. Everything, almost, short of the punishment of death, was enacted against them. The epithet ferocious,' which has been applied to the statute of William III., to which so much reference has been made, is hardly stronger than the statute deserves. Jews, it is true, were excluded from Parliament in a sense by accident, for the oath which excluded them was not pointed at them; but

(13) 15 Cox C.C. 231; 48 LT. N.S. 733.

that

no one can doubt that at that time if it had occurred to anyone
they were not excluded, a law would have been forthwith passed to
exclude them. Historically, and as a matter of fact, such was
the state of things when these dicta were pronounced. But now,
so far as I know the law, a Jew might be Lord Chancellor,
most certainly he might be Master of the Rolls. The great and
illustrious lawyer, whose loss the whole profession is deploring,
and in whom his friends know that they lost a warm friend and
a loyal colleague: he, but for the accident of taking office before
the Judicature Act came into operation, might have had to go
circuit, might have sat in a criminal court to try such a case as
this, might have been called upon, if the law be really that
'Christianity is part of the law of the land' in the sense contended
for, to lay it down as law to a jury, amongst whom might have
been Jews, that it was an offence against the law, as blasphemy,
to deny that Jesus Christ was the Messiah, a thing which he
himself did deny, which Parliament had allowed him to deny,
and which it is just as much part of the law that anyone may
deny, as it is your right and mine, if we believe it, to assert.
Therefore, to base the prosecution of a bare denial of the truth
of Christianity, simpliciter and per se on the ground that
Christianity is part of the law of the land, in the sense in which
it was said to be so by Lord Hale and Lord Raymond, and Lord
Tenterden, is in my judgment a mistake. It is to forget that law
grows; and that though the principles of law remain unchanged,
yet (and it is one of the advantages of the common law) their
application is to be changed with the changing circumstances of
the times. Some persons may call this retrogression; I call it
progression of human opinion. Therefore, to take up a book or
a paper to discover merely that in it the truth of Christianity is
denied without more, and thereupon to say that now a man may
be indicted upon such denial as for a blasphemous libel, is, as I
venture to think, absolutely untrue. I for one positively refuse
to lay that down as law, unless it is authoritatively so declared
by some tribunal I am bound by."

If the Act is held to be in force the result will be to drive people away from innocent evening entertainments from which they will derive benefit, to spend their time perhaps in the streets.

1890.

WALKER

บ.

SOLOMON.

1890. WALKER

v.

SOLOMON.

It applies not only to places opened for entertainments, but for debates on any subject, so that if a hall is hired and persons admitted, on some small payment to pay expenses, to hear the most eminent divines debate and expound the Bible, the person presiding is liable to prosecution for keeping a disorderly house. Even if the money taken is used for a charity or to build a church, the offence is still criminal. How can it be said that such an Act is applicable to New South Wales? The entertainments given by the defendant were sanctioned and permitted by the Colonial Secretary, and we must therefore take it that the law officers of the Crown did not consider the Act to be in force. The Legislature have passed an Act, the 14 Vic. No. 23, repealing the law then in force with respect to the regulation of places of entertainment and authorising licenses to be issued by the Colonial Secretary. Such permission may under that Act be given for all the days of the week including Sunday. If that Act does not by implication repeal the 21 Geo. III., it was clearly passed on the assumption that it was not in force.

From 1828 till the present time the point has never before been raised, so we may fairly assume it has been the general opinion. of the profession that the Act was not in force. It has been held in Slapp v. Webb (14) that continual usage may amount to the adoption of a law. Why then may not long disuse amount to its repeal? It is a highly penal statute, and if there is any doubt on the subject the Court will decide against an informer. Merely penal statutes are not applicable to the colonies: Dawes v. Painter (15). The giving of Sunday entertainments did not exist in the colony at the time of the Constitution Act, i.e., the offence was not then in esse, and an offence which springs into existence subsequently cannot be brought within the words of an Act passed before that offence became known.

C. B. Stephen, in reply. As to the argument that the Act says that the penalty must be sued for at Westminster, that difficulty is got over by the 6 W. IV. No. 12, which provides that where by an English Act in force here a proceeding is to be taken before the Courts at Westminster, such proceeding shall here be taken (14) 1 S.C.R. App. 54. (15) Freeman, 175.