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Published online by Cambridge University Press: 24 January 2025
When, in 1902, a murder was committed in the Cocos Islands and a resident native of the Islands was brought to trial at Singapore, the Supreme Court of the Straits Settlements ruled unexpectedly that it had no jurisdiction.
That decision threw doubt upon the validity of Letters Patent of 1886 which were to remain the constitutional foundation of British rule in the Cocos until the transfer of sovereignty to Australia in 1957. The doubt necessarily extended to matters of long-term practical importance, including the special position in the Cocos held by the Clunies-Ross family until 1978.
This article considers the validity of those Letters Patent—question peremptorily closed off by British authorities in the aftermath of the 1902 affair. Fundamental doctrines of colonial law in relation to territorial acquisition, and their application to British annexation of the Cocos Islands, are examined. The continuing relevance of those doctrines—eg to the recent line of land rights cases in Australia—is incidentally pointed out.
The Letters Patent are also tested against the maxim omnia praesumuntur rite esse acta and in terms of evolving judicial acceptance of severance. For that purpose, illustration of legal principle is drawn from Australian cases as from English law.
The views expressed in this article are the personal views of the writer and not necessarily those of the Department. The writer wishes to express his thanks to Mr R J Linford OBE, formerly Administrator of the Cocos Islands, both for bringing the Lim Keng case and the issues raised by it to his attention, and for providing copies of the basic documents. Thanks are also due to Mr W R Edeson of the Australian National University for helpful comment on the article in draft.
1 Darwin visited the Islands for 10 days during April 1836 in the course of the celebrated voyage of the Beagle. He collected many specimens of fauna and flora, evolved a subsidence theory of atoll formation which was subsequently discarded, and included a lively account of the Cocos in his widely-read book on the voyage. See Darwin, The Voyage of the Beagle (Everyman 1977 Reprint) 439.
2 See below p 242.
3 Letters Patent of 10 September 1878, annexed as a schedule to the proclamation in Ceylon Government Gazette No 4,260 (22 November 1878).
4 Letters Patent of 1 February 1886, Public Record Office File (Colonial Office) 273.
5 A convenient guide to these transactions and to exchanges between the Colonial Office and the Law Officers of the Crown in London is to be found in O'Connell, D P and Riordan, Ann, Opinions On Imperial Constitutional Law (1971) 13-17.Google Scholar
6 Notified in Straits Settlements Government Gazette No 1461 (21 November 1902).
7 Ibid.
8 Sraits Settlements Despatch No 1 of January 1903, Public Record Office File (Colonial Office) 273/290. A copy of the judgment of the Chief Justice, Sir Lionel Cox, and an extract from the Singapore Free Press were attached. Those texts are the basis for quotation and comment in this article.
9 Ibid.
10 R v Lim Keng 20 December 1902 in the Supreme Court of the Straits Settlements at Singapore.
11 The Indenture was formally executed between Sir Frederick Weld as Governor and George Clunies-Ross on 7 July 1886, and is set out in the Report of the Senate Standing Committee on Foreign Affairs and Defence, Parliamentary Paper No 183: United Nations Involvement with Australia's Territories (1975). It seems to have been assumed on all sides that Cocos Islands had, by virtue of the annexation, become Crown demesne which might be granted and disposed of under the prerogative. That proposition would appear to be sound if the Cocos Islands are, taken to have been acquired by conquest. But if the Islands are taken to be a settled colony, the position may be otherwise.
It should be noted that in colonies such as New South Wales and Virginia, British sovereignty and the first settlers arrived together. On the Cocos Islands, the Clunies-Ross family were in undisputed possession for nearly thirty years before annexation took place. That family remained in undisturbed possession, without express legislative or executive action to extinguish any rights to land in the Islands, for some thirty years between annexation and the execution of the Indenture. The family were at all times British subjects. It might be assumed they would have the protection of the common law, as applicable, in respect of any acquired property rights. The Nissan case (as discussed in n 14) further suggests that any such rights might be extinguished only by legislation, and subject to compensation.
The Indenture might be seen, therefore, as official confirmation of an established if unresolved prescriptive status rather than as a grant of land in the normal colonial sense.
Mr John Clunies-Ross (as contemporary representative of the family tradition in the Islands) surrendered to the Commonwealth Government on 31 August 1978 the special privileges and interests stemming from the original Indenture. Compensation of $A6.25 million was paid to him. The agreement enabled Mr Clunies-Ross to retain ownership of his residence and an outbuilding. See Department of Home Affairs, Canberra, Cocos (Keeling) Islands: Annual Report 1978-79, p 4 and Appendix I.
12 Halsbury's Laws of England (Fourth Ed 1974) Vol IV para 118 states:
In accordance with the maxim omnia praesumuntur rite esse acta formal requisites to judicial, official or public acts, or to titles to property which are good in substance, will be presumed.
MacDougall v Purrier (1830) 4 Bli NS 433; 5 ER 154 arose from the enactment 37th Hen 8 c 12 which provided that the decree of an Archbishop in relation to tithes should be enrolled in the King's High Court of Chancery of Record and would then 'stand, remain and be as' an Act of Parliament. There was no evidence of the enrolment. The House of Lords decided that after the courts had repeatedly treated the decree as a binding instrument, and the citizens had recognised it by usage of paying tithes according to its tenor, the enrolment must be presumed.
In the case of an instrument, or a testamentary disposition (Davis v Mayhew, In re Estate of Musgrove [1927] WN 184 (CA), or a marriage (Piers v Piers (1849) 2 HL Cas 331; 9 ER 1118) the presumption is most likely to be applied where there has been a considerable lapse of time since the execution or other originating act. There may frequently be scope, in such circumstances, for the operation of the doctrine of estoppel. The doctrine and the presumption will then have an apparent similarity and their effects will be coincident.
The limits for the application of the maxim are not clear and it is never more than a rebuttable presumption. In W oollett v Minister of Agriculture and Fisheries [1955} 1 QB 103 a certificate in respect of property requisition could be given by the Minister only where a proposal was confirmed by a tribunal. It appeared that two members of the tribunal had not been duly “appointed by the Minister”. Denning LJ was not prepared to invoke the maxim, but regarded the case as foreclosed by a statutory provision which had the effect of validating any irregularities.
Australian cases assist substantially in clarifying the operation of the maxim. In Murphy v Matlock [1926] VLR 170 the making of regulations was subject to the recommendation of the Pharmacy Board, but the subject regulations were not expressed to be so made. Mann J limited his decision to holding that the maxim did not give relief from proof where procedures were contested. On the facts, fulfilment of the condition had not been proved.
Foster v Aloni [1951] VLR 481 concerned regulations for which a recommendation of the Victoria State Electricity Commission was a condition precedent. Although the case was decided on a statutory provision, the following passage in the judgment of the Full Court (at 485) is significant:
we think the maxim omnia praesumuntur rite esse acta applies in the absence of evidence to the contrary to show that the regulations were in fact made by the Governor in Council on the recommendation of the Commission so that that condition precedent is satisfied.
In the complex case of Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 441 finally, Gibbs J (as he then was) discussed the application of the maxim in relation to an Order in Council whose validity was challenged on the ground that it had not been made by an authorised person. It is submitted that his Honour's comment encapsulates current law on the question:
On the basis of the presumption omnia praesumuntur rite esse acta it ought to be presumed, in the absence of evidence to the contrary, that the Deputy Administrator was administering the Government of the Possession when the Order in Council was made.
Where the presumption applies, an instrument or act will be voidable, not void.
13 (1774) 1 Cowp 204; 98 ER 1045.
14 Ibid 210; 1048.
A number of leading cases have approved and applied this doctrine. In West Rand Central Gold Mining Co Ltd v The King (1905] 2 KB 391, 402 Lord Alverstone CJ stated:
When making peace the conquering Sovereign can make any conditions he thinks fit respecting the financial obligations of the conquered country, and it is entirely at his option to what extent he will adopt them.
It is worth noting here that the corollary to Lord Mansfield's doctrine-that “laws of a conquered country continue until they are altered by the conqueror”-was doubted by Blackburn J in the course of a very full judgment in the Australian case of Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 224. In reliance on Cook v Sprigg (1899] AC 572 and a line of Indian cases, the principle would be that, as acquisition was an Act of State, rights under any pre-existing legal system would be a nullity unless expressly recognised by the conqueror.
In Attorney-General v Nissan [1970] AC 179, however, there are suggestions that Act of State may have no application, or at most an extremely limited application, between Crown and subject, and that, at least in respect of British subjects, property rights in a previously foreign territory are not extinguished by a change of sovereignty. Lord Reid explains Cook v Sprigg in this way (at 211):
A British subject cannot complain if the new sovereign alters the law of the annexed territory to his detriment, but he can, in my view, complain of a confiscation of his property which is not justified by any Jaw ... if Cook had been the owner of land in Pondoland I do not think that his land could have been confiscated.
Since any such “ownership” could have been recognised, presumably, only by reference to the pre-existing legal system of Pondoland, the Nissan case would appear to imply a quite far-reaching qualification upon the opinion of Blackburn J. The case has been taken by some commentators (see J Hookey, ''The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Land in Australia” (1973) 5 FL Rev 85) to involve a re-vindication of Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045.
15 On this point, Campbell v Hall has been followed consistently. Where, in South Africa, Letters Patent purported in two instances to confer an episcopal jurisdiction, the Letters Patent were held invalid as being inconsistent with the powers of a pre-existing legislative assembly in the colony: see Long v The Bishop of Cape Town [1863] 1 Moo (NS) 411; 15 ER 756. In re Lord Bishop of Natal [1864] 3 Moo 115; 16 ER 43. In the latter case, a succinct statement of the issue by the Lord Chancellor, Lord Chelmsford, (at 148) is a reminder that the exercise of the prerogative may be abridged and suspended rather than excluded (as is commonly said) where a representative assembly is constituted:
After a Colony or Settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that Colony or Settlement as it does to the United Kingdom.
The question was taken up in the recent Australian case of Wacando v Commonwealth and Queensland (1982) 56 ALJR 16. Both Gibbs CJ and Mason J expressly endorsed the subject principle in Campbell v Hall. The instant analysis, in fact, states that principle in terms adapted from the judgment of Gibbs CJ at p 20, following Sammut v Strickland [1938] AC 678, 704 per Lord Maugham LC.
16 Campbell v Hall (1774) 1 Cowp 204,213; 98 ER 1045, 1050.
17 Phillips, O Hood and Jackson, Paul, O Hood Phillips' Constitutional and Administrative Law (6th ed 1978) 668Google Scholar.
18 Chitty, Joseph, Jun. A Treatise on the Law of the Prerogative of the Crown (1820) 30Google Scholar. A fascimile edition is conveniently available in the Garland Series of Classics of English Legal History (1978).
The principle has been attributed to Lord Coke in Calvin's case (1607) 7 Co Rep la; 2 Howell St Tr 559; 77 ER 377. Chitty's dictum was already current, and expressed accepted law, early in the eighteenth century: Lester, Geoffrey and Parker, Graham, “Land Rights: The Australian Aborigines have lost a legal battle, but ...” (1973) 11 Alberta Law Review 189, 196-200CrossRefGoogle Scholar. The boundaries of the principle, as formulated by Blackstone (1 Comm 107), are fully discussed by Lord Watson in the leading case of Cooper v Stuart (1889) 14 App Cas 286, 291-293 in the Privy Council on appeal from the Supreme Court of NSW.
This portability of the common law has frequently been endorsed by the courts. In Falkland Islands Co v R [1863] 2 Moo (NS) 266; 15 ER 902 it was taken as common ground that the Falkland Islands had been acquired by “occupation” and therefore fell to be considered as a colony of settlement. A licence or lease to depasture stock was made by the Crown to the Company without any reservation or provision as to the right to take and kill wild animals. The question whether the matter might be considered under the common law relating to ferae naturae was answered by the Master of the Rolls, Sir John Romilly (at 275; 905) in these terms:
It is not disputed that the law prevailing in the Falkland Islands must be considered to be the Common Law of England, modified only by such Statutes as apply to these Islands.
In the event, the case was decided on the basis of admissions by the Crown rather than in terms of common law doctrine.
Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 demonstrates how the common law may be regarded as in force in a colony in so far as applicable to circumstances. There the Privy Council held that the common law applied in Singapore subject to a local Charter of 1826 which had regard to the various religions, manners and customs of the population.
In Penhas v Tan Sao Eng [1953] AC 304 the question arose, also in Singapore, whether for the purposes of the grant of letters of administration in an estate, there had been a common law marriage. The Yeap Cheah Neo case was followed, and it was held by the Privy Council on the facts that a common law monogamous marriage had been contracted.
19 Any doubts as to whether an Act of Parliament might apply to a settled colony, or to a colony acquired by conquest or cession that had subsequently been granted representative institutions, were resolved by section 1 of the Colonial Laws Validity Act 1865 (28 & 29 Viet c 63) which states:
An Act of Parliament or any provision thereof, shall be said to extend to any Colony when it is made applicable to such Colony by the express words or necessary intendment of any Act of Parliament.
It is of interest that colonial law authorities on the distinction between colonies by conquest or cession and settled colonies have been fully considered in the recent line of Australian land rights cases. In all such litigation, three basic questions have to be addressed:
(a) did the relevant mode of acquisition involve common law protection of pre-existing property rights;
(b) did legally recognisable property rights exist; and
(c) how might any such rights be lawfully extinguished?
It is sufficient to say that the colonial law distinction may have an important bearing on the answers to (a) and (c), whereas (b) is a finding of fact-though at times a controversial one.
Since Cooper v Stuart (1889) 14 App Cas 286 it has generally been taken as settled that the Australian States were in origin settled colonies. This conclusion (which is a conclusion of law) was strongly reaffirmed by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) FLR 141 and by Gibbs J (as he then was) in Coe v Commonwealth of Australia and Another (1979) 24 ALR 118. In the latter case, however, Murphy J criticised the historical validity of the conclusion (at 138) :
the statement by the Privy Council (in Cooper v Stuart) may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of aborigines' land.
His Honour then pointed out that decisions of the Judicial Committee are not binding upon the High Court. Jacobs J (at 136) took the position that the point had never been directly decided, a view which, with respect, a narrow reading of the ratio in Cooper v Stuart supports.
It is a matter for regret that the statement of claim in Coe's case was so manifestly unacceptable as to preclude satisfactory consideration by the Court of this quite fundamental constitutional question. It would also have been welcome if the case had provided definitive guidance on two other significant issues touching on the colonial law background which had been addressed in detail by Blackburn J in Milirrpum, but possibly not definitively closed:
(a) whether communal native title existed in aboriginal communities in a manner and to a degree sufficient for purposes of recognition by Australian legal systems; and
(b) whether, if communal native title did so exist, there would be an entitlement to protection under the common law.
20 Supra n 8.
21 The opinions of the Law Officers of the Crown as contained in Colonial Law Officers' Opinions Vol 6 Nos 177 and 178 are set out in O'Connell and Riordan, supra n 5, 13-17.
22 O'Connell and Riordan, supra n 5, 14.
23 Ibid.
24 Robert Bannatyne Finlay, 1st Viscount Finlay. Solicitor-General 1895; Attorney-General 1900; Lord Chancellor 1916; Judge of the Permanent Court of International Justice 1921.
Edward Henry Carson, Baron of Duncairn. Solicitor-General for Ireland 1892; Solicitor-General 1900; Attorney-General 1915; Member of War Cabinet 1917; Lord of Appeal in Ordinary 1921.
25 O'Connell and Riordan, supra n 5, 16.
26 Useful scholarly articles and various memoirs have appeared on the history of the Cocos Islands, but there is no definitive work. An entertaining and fairly accurate account is Ken Mullen, Cocos Keeling (1974).
27 This episode is convincingly analysed in Tarling, N, '“The Annexation of the Cocos-Keeling Islands” (1959) 8 Historical Studies 400Google Scholar.
28 O'Connell and Riordan, supra n 5, 16-17.
29 Ibid 17.
30 O Hood Phillips, supra n 17, 667.
31 Dicey, A V, The Law of the Constitution (8th ed 1920) 420Google Scholar cited in Attorney-General v De Keyser's Royal Hotel, Ltd [1920] AC 508, 526 per Lord Dunedin.
32 O'Connell and Riordan, supra n 5, 16.
33 Halsbury's Laws of England (Third Ed 1953) Vol 5, 559-560. See also Fourth Ed 1974, Vol 6 para 1040.
34 The position in the early years of the colony of New South Wales is reviewed in Randwick Corporation v Rutledge (1959) 102 CLR 54, 71 per Windeyer J:
On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. The early Governors had express powers under their commissions to make grants of land . . . all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne. The Colonial Act, 6 Wm. IV No. 16 (1836), recited in its preamble that the Governors by their commissions under the Great Seal had authority “to grant and dispose of the waste lands”-the purpose of the Act being simply to validate grants which had been made in the names of the Governors instead of in the name of the Sovereign.
The exercise of such powers by successive Governors aroused notorious controversy and hastened intervention by legislation. The so-called Ripon Regulations introduced the principle of sale rather than free grants after 1831. That policy was extended by the “Sale of Waste Lands Act” 5 & 6 Viet c 36 (1842) but the direction of policy changed when 9 & 10 Viet c 104 made generous provision for leasehold-the squatters' charter. The “Waste Lands Repeal Act” 18 & 19 Viet c 56 (1855) vested in colonial legislatures the entire control and management of waste (unalienated) land of the Crown within their respective territories. See also Eddy, J J, Britain and the Australian Colonies 1818-1831 (1969) Ch VIIIGoogle Scholar-"Land Settlement”.
35 A succinct discussion of the doctrine of severance in Australian Jaw, with some reference to English authorities, is to be found in Pearce, D C, Delegated Legislation in Australia and New Zealand (1977) Ch 30Google Scholar. As Professor Pearce points out, the issue arises relatively frequently in Australia in relation to the constitutional validity of Commonwealth legislation.
While the point is only very generally relevant to the present inquiry, it should be recalled that severance has long been well established in the law of contract, though in most cases fairly strictly confined. The question of severance usually arises in the context of restraint of trade. For a review of relevant principles in that field see Attwood v Lamont [1920] 3 KB 571 per Younger LJ at 591-596. On severance in relation to contracts generally see Halsbury's Laws of England (Fourth Ed 1974) Vol 9 para 430. It is submitted that the conclusion advanced here for severance in relation to an instrument is consistent with the broad principles applied by the courts in the case of a contract.
36 D C Pearce, supra n 35, 279-281 gives good examples of both tendencies. Compare Bank of New South Wales v The Commonwealth (1948) 76 CLR 1, 368-371 and Hinds v The Queen [1976] 1 All ER 353, 374 per Lord Diplock:
This may be only half the loaf that Parliament believed that it was getting when it passed the 1974 Act but their Lordships do not doubt that Parliament would have preferred it to no bread.
37 See Attorney-General for Alberta v Attorney-General for Canada [1947] AC 503. Viscount Simon's enunciation of the principle (at 518) includes both tests. In Hinds v The Queen [1976] 1 All ER 353, 373 Lord Diplock expressly endorses both. Australian courts would appear to have been more reluctant to fathom the intentions of the legislature and have tended to emphasise the test of independent survival without change to the nature or operation of a scheme. On these matters see above PP 248-250. See also The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employes Association (1906) 4 CLR 488 (the Railway and Tramway Service case) especially per Griffith CJ; and R v Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow and Co (1910) 11 CLR 1, especially 35 per Barton J.
38 As in the cases cited inn 37 above.
39 Wall v Commissioner of Railways (1905) 7 WALR 206.
40 R v Bournemouth Licensing Justices ex parte Maggs [1936] 1 WLR 320.
41 Pyx Granite Co Ltd v Minister of Housing and Local Government [1958] 1 QB 554. In this case, the Court concluded that a licence was validly issued but that conditions attaching to the licence were beyond power. The Master of the Rolls (Lord Denning) and Morris U were prepared to sever the two and support the validity of the licence, Hodson U dissenting. On appeal the House of Lords decided the case on other grounds, but their Lordships did not appear to doubt that a licence could be severed if the part severed was independent of the part left and if the severance would not change the effect of what was left. The case may also be taken to confirm that the Court will consider severance in a wide range of situations.
42 Comyn's Law Digest (Third Ed 1792) Vol II (By-law c 7) 163.
43 The King v Company of Fishermen of Faversham (1799) 8 TR 352; 101 ER 1429.
44 Ibid 355; 1431.
45 Ibid.
46 (1830) 1 B & Ad 92; 109 ER 721.
47 Ibid 95; 722.
48 (1881) 7 QBD 32.
49 Ibid 38.
50 Saunders v South Eastern Railway Company (1880) 5 QBD 456.
51 [1896] 1 QB 290.
52 Ibid.
53 Ibid 292.
54 (1863) 1 DE GJ & S 517; 46 ER 205.
55 (1816) 1 Mer 626; 35 ER 801.
56 (1863) 1 DE GJ & S 517,572; 46 ER 205,227.
57 The Duke of Portland v Topham (1864) 11 HLC 32; 11 ER 1242.
58 The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employes Association (1906) 4 CLR 488; seen 37 above.
59 (1863) 1 DE GJ & S 517; 46 ER 205.
60 R v Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow & Co (1910) 11 CLR 1.
61 Ibid 20-33.
62 Ibid 34-35, citing The Employers' Liability Cases (1907) 207 US 463; El Paso & North Eastern Railway Co v Gutierrez (1909) 215 US 87.
63 Ex parte Whybrow & Co (1910) 11 CLR 1, 35.
64 [1919) AC 935.
65 Ibid 944.
66 Ibid 945-946.
67 [1947] AC 503.
68 Railway and Tramway Service case per Griffith CJ; Ex parte Whybrow & Co per Griffith CJ, Barton J.
69 See Hinds v The Queen [1976] 1 All ER 353 per Lord Diplock.
70 [1947] AC 503, 518.
71 O'Connell and Riordan, supra n 5, 15.
72 Gibson v Doeg (1857) 2 H & N 615, 623; 157 ER 2S3, 2S7 per Pollock CB.