THE TIPPLING ACT.

Globe, Volume IX, Issue 1282, 29 April 1878, Page 3

THE TIPPLING ACT.

The following is Mr Justice Johnston’s decision, delivered in Dunedin, on the appeal case, Highet v M'Donald, which raised the question of the Tippling Act being in force in the colony;—

“ The question whether a particular portion of the common or statute law of England in force on January 14th, 1840, is applicable to the colony is one which may often present considerable difficulties, and it would probably bo imprudent to attempt a strict definition of “ applicability ” for the purpose of establishing a general rule on the subject. I find that this is the view of the question which I entertained and expressed about nineteen years since, in the case of King v Johnston, in which I held that the 2 George 11. c. 23, s. 23, requiring attorneys and solicitors of the Supreme Court in England to deliver a signet bill a month before action brought, was not applicable to the colony on the 14th January, 1840; and in the course of the judgment in that case I am reported to have said that I was not prepared to hold that a single provision in an English Statute in force on that day might not be operative in Now Zealand, although the whole of the rest was obviously and unquestionably inapplicable. 1 see no reason now for doubting the correctness of that view of the matter, and I think that it will be found to have a direct bearing on the present case. I think in dealing with this question we must suppose that we have lying open before us the whole common law and Statute law of England in force on the terminal day; and of that great body of law, every provision which was then applicable to the circumstances of the colony is to be deemed to have been solemnly adopted and legislatively declared to be the law of the colony by the Legislature of the colony at a time when it had been fully empowered by the Imperial Parliament to make its own laws. And it seems to me that, with respect to the statute law of England, the question is not whether the whole of a particular statute or a chapter of a statute can be applied in the colony, but whether the particular enactment, duly interpreted and construed by the context and the preamble of the Act, is capable of being applied or not. Now provisions for the maintenance of public morality and the preservation of the public peace are in their general nature applicable to all colonies, and unless they are necessarily connected with some circumstance or condition which renders them clearly inapplicable, it would appear that they ought to be treated as part of the laws of the colony. Now suppose the statute in question had been intituled “An Act to Suppress Drunkenness ” and had recited in its preamble that it was “ desirable to put down or diminish drunkenness among the community,” and had gone on to enact, as a remedy tending to effect this object that persons who gave credit for less than 20s worth of spirits at one time should not be entitled to recover the debt, could it be doubted that this was an enactment applicable to the circumstances of the colony ? If so, can it make any real difference in the case ; that the Act of 24 George 11., c. 40, was cbiefiy dedicated to provisions for raising revenue from duties on spirits, and that it recites, “ Whereas the immoderate drinking of distilled spirituous liquors by persons of the meanest and lowest sort hath of late years increased, to the great detriment of the health and morals of the common people, and the same hath in a great measure been owing to the number of persons who have obtained licenses to retail the same under the pretence of being distillers, and more especially in the cities of London, Westminster, &c.” Can these facts make the 12th section of the Act less applicable to the colony than if it stood alone ? That English Act remained on the statute book untouched for more than one hundred years, and is still, with a certain modification, law in England, although the circumstances of England in 1751 and in 18G2, when it was altered, were in so many respects widely different. If the decisions of the Supreme Court of Victoria on the 29 Car. 11, c. 7, are correct, and I am not prepared to call them in question, the Act now under discussion must be at least equally applicable. Questions might have been twice raised on the cases on the Lord’s Day Act as to its connection with the established religion of the State in England, which could not be raised on this Act. Although the main object of this Act of George 11. may have been for the purposes of revenue, and necessarily of a local character, yet as the particular enactment was evidently and professedly passed for the purpose of protecting public morals, I think it was plainly applicable to every part of her Majesty’s dominions, not having a legislature of its own, and was part of the law which colonists would carry with them to a now country, and which would bind them till they were provided by the Crown, or by a Legislature granted to them by the Imperial Parliament, with a different law on the subject. Appeal allowed with costs.