Page:History of Adelaide and vicinity.djvu/701

 _ Notes on the ADELAIDE AND VICINITY xxv Constitution of South Australia Amongst the most important subjects concerning which even now local laws cannot be made may be mentioned : — The relation of South Australia to foreign countries ; the regulation of trade and commerce with other countries or colonies ; such prerogatives of the Crown as have not been abrogated by the granting of a Constitution to South Australia ; the limitation and definition of the powers given to the Governor by the Queen to represent the Crown ; the control and regulation of ships owned by British subjects, etc., etc. Concerning some of these matters the Parliament has no power to legislate ; concerning others, a limited power. Outside the boundaries of this Province (including its bays, inlets, estuaries, etc.) South Australian law has no force or validity (except so far as the enforcement of contracts made in the Province is concerned). As an illustration of this proposition, let us consider the position of a ship owned and registered in the Province. One of the matters (except within small limits as to certain details) concerning which the Parliament may not legislate is " British shipping " ; there is no such thing as a South Australian or Victorian ship. All ships under the British flag are British ships registered, manned, victualled, and regulated under British law. Although each colony possesses a Register for Shipping, a Vice-Admiralty Court, etc., etc., these are branches of the British Register, the British Admiralty Court, etc. When, however, a British ship is in this Province, the laws of South Australia are in force on board of her concerning all matters not provided for by the British Merchant Shipping Act ■ but immediately she departs from the Province, say on a voyage to Melbourne, British law is the only law in force on board that ship, both in criminal and civil matters, until she enters Victorian waters, when Victorian law, so long as she remains in Victoria, takes the place originally occupied by South Australian law. So far, however, as the subject matters on which Home Rule has been granted to South Australia are concerned, the authority to make laws within the area of South Australia is absolute if the law is within the scope and limit of the authority given. It is a maxim of law that " delegatus non protest delegare " — that is to say, power which has been delegated to any body or person cannot be handed on by that body or person to someone else (without express authority from the principal). In a case which arose in New South Wales it was argued that, inasmuch as the New South Wales Governor and Parliament only possessed a delegated power to make laws (similar to that given to the Parliament of South Australia), they could not give to the Governor in Council power to make regulations or by-laws practically imposing a tax, as that would be a delegation of the power delegated to them. The Judicial Committee of the Privy Council, however, said that "within the limit of subjects and areas a colonial Legislature is supreme, and has the same authority as the Imperial Parliament." For a long time it was considered that colonial Legislatures had, by the common law of England, the same privileges (of freedom of speech, power to punish either members or strangers for contempt, etc.) as the British Houses of Parliament. This idea was originated by Governor Simcoe, who informed the Legislature of Upper Canada that they were "the image and transcript of the British Constitution." He granted or purported to grant to them "all the powers, privileges, and immunities of the British House of Commons." Governor Simcoe was under the same impression as was Charles I., that the Sovereign had the power to grant those "privileges," etc. ; but, as a matter of law, the British Commons derive their privileges, etc., from part of the common law, generally called the "Lex et Consuetudo Parliamenti;' which gives and defines the privileges of the British House of Commons ; and that " Lex et Consuetudo Parliamenti " does not cross the seas.