British possession
A British possession, in common statutory usage, is a country or territory other than the United Kingdom which has the British monarch as its head of state.
Overview
In common statutory usage the British possessions include British Overseas Territories, and the Commonwealth realms but not protectorates. British admiralty law has a less expansive meaning under the Merchant Shipping Act 1995, where a "relevant British possession", includes the Crown Dependencies and "any colony". It may also be used more expansively, to refer to member states of the Commonwealth of Nations which have a continuing tradition of British law even after they have become republics, and even if those countries no longer recognize themselves as British possessions.Although the term enjoyed some use in statutes prior to 1889, the formal definition of British Possession came in the Interpretation Act 1889, which was superseded by the current Interpretation Act 1978.
Definition
1889 and 1978 definition
Two acts in the Parliament of the United Kingdom define the current status of British possessions: the Interpretation Act 1978 and the Interpretation Act 1889. In the reign of Queen Victoria, the Interpretation Act 1889 defined the British possessions in its article 18, section 2:According to the 1890 1st edition of Stroud's Judicial Dictionary, this definition applied to "In all Acts of Parliament passed after the 31st Dec. 1889". According to Kenneth Roberts-Wray's 1966 Commonwealth and Colonial Law, this definition "includes the Channel Islands and the Isle of Man for they are not in the United Kingdom, q. v.". The last part of this definition had already appeared in earlier legislation, including in the Patents, Designs, and Trade Marks Act 1883. Hence, according to the 1933 11th volume of the 2nd edition of Halsbury's Laws of England edited by Douglas Hogg, 1st Viscount Hailsham:
Halsbury's Laws of England noted that a different definition is used where necessary to include subnational entities as British possessions, rather than only the federations of which they are part: "In certain Acts the term includes both the part under the central legislature and those under local legislatures" and "These cases are necessary where the central legislature is denied the power to deal with the subject-matter".
In the reign of Elizabeth II, the Interpretation Act 1978 defined the British possessions in its schedule 1, with text identical to that in the 1889 act. According to Ian Hendry and Susan Dickson in the 2018 2nd edition of British Overseas Territories Law, "the definition is evidently very wide" and the term is "anomalous as far as independent states covered by it are concerned".
According to Roberts-Wray in 1966: "This expression is now rarely used; like other terms it is discredited. For obvious reasons it clearly implies subordination. That objection would be overcome to some extent if it did not exclude the United Kingdom; but the word "British" would still be questionable for the same reason as in the case of "the British Commonwealth of Nations."" According to Michael J. Strauss's 2015 Territorial Leasing in Diplomacy and International Law, "it is not uncommon for countries to use the term "possessions" for territories they control". According to Hendry and Dickson in 2018, while "the term appears in some statutes, its use in modern times is rare". According to the 2021 reissue of the 13th volume of the 5th edition of Halsbury's Laws of England, the terms "'British possession', 'British settlement', 'colony', 'protectorate' and 'protected state'" are "now effectively obsolete".
Early definitions
Vice Admiralty Courts Act 1863
The Vice Admiralty Courts Act 1863 defined the British possessions in its article 2:According to Roberts-Wray, the definition in the Vice Admiralty Courts Act 1863 shows that "Early definitions were afflicted by the prolixity of nineteenth-century conveyancing counsel, who probably drafted them".
In earlier legislation, such as the Colonial Laws Validity Act 1865, the term "colonies" had been used to distinguish "all of Her Majesty's Possessions abroad in which there shall exist a Legislature". The Colonial Laws Validity Act 1865 specifically excluded the Channel Islands and the Isle of Man from the definition of "colony".
Documentary Evidence Act 1868
The Documentary Evidence Act 1868 defined a "British Colony and Possession" in its section 6:The definition of "British Colony and Possession" in the Documentary Evidence Act 1868 includes the Channel Islands and the Isles of Man, but does not exclude the United Kingdom itself. According to Roberts-Wray, this was an "accident".
Coinage Act 1870
The Coinage Act 1870 defined the British possessions in its article 2:According to David Murray Fox and Wolfgang Ernst, this legislation "was relevant internationally since the Queen in Council was authorized to issue proclamations extending its operation" to the British possessions, and "marked the last stage in consolidating the sterling union".
Extradition Act 1870
The Extradition Act 1870 defined the British possessions in its article 26:The definition of "British possession" in the Extradition Act 1870 excluded the Channel Islands and the Isle of Man.
Slave Trade Act 1873
The Slave Trade Act 1873 defined the British possessions in its article 2:Fugitive Offenders Act 1881
The Fugitive Offenders Act 1881 defined the British possessions in its section 39:According to Paul O'Higgins, "one of the most important of the legal ties linking the independent members of the British Commonwealth is the special procedure for intra-Commonwealth extradition embodied in the Fugitive Offenders Act, 1881", which "has survived the many changes which have taken place since then, in particular the attainment by the Commonwealth countries of full international personality". The law empowers the governor of a British possession to surrender a fugitive to the custody of another "if he thinks it just". According to the 1933 11th volume of the 2nd edition of Halsbury's Laws of England, citing a 1906 case, "the Commonwealth of Australia is not a British possession for this purpose, because the federal legislature has no power over the subject matter of that Act, so that Victoria must be reckoned still such a possession".
Post Office (Parcels) Act 1882
The Post Office Act 1882 defined the British possessions in its section 17The definition of "British possession" in the Post Office Act 1882 excludes the Channel Islands and the Isles of Man, but does not exclude the United Kingdom itself. According to Roberts-Wray, this was "presumably by accident".
Patents, Designs, and Trade Marks Act 1883
The Patents, Designs, and Trade Marks Act 1883 defined the British possessions in its section 117:The definition of "British possession" in the Patents, Designs, and Trade Marks Act 1883 excluded the Channel Islands and the Isle of Man.
Colonial Prisoners Removal Act 1884
The Colonial Prisoners Removal Act 1884 defined the British possessions in its section 18:The definition of "British possession" in the Colonial Prisoners Removal Act 1884 excluded the Channel Islands and the Isle of Man.
British Settlements Act 1887
The British Settlements Act 1887 – which distinguished a particular category of British possession which had been "acquired by settlement" distinct from those "acquired by cession or conquest" – defined the British possessions in its article 6:As British possessions acquired without cession or conquest, Ascension Island, the British Antarctic Territory, the Falkland Islands, the Pitcairn Islands, South Georgia and the South Sandwich Islands, and Tristan da Cunha all take their statutory basis as British possessions and British settlements from the British Settlements Act 1887.
Later definitions
Colonial Probates Act 1892
The Colonial Probates Act 1892 defined the British possessions in its section 4:According to the 2009 13th volume of the 5th edition of Halsbury's Laws of England, the Colonial Probates Act 1892 is one of the acts in which "the term may include both the parts under the central legislature and those under the local legislatures", which differs from the definition in the Interpretation Act 1978.
General Clauses Act 1897
In the law of India and the law of Pakistan, "British possession" is defined by the General Clauses Act 1897.Medical Act (1886) Amendment Act 1905
The Medical Act Amendment Act 1905 defined the British possessions in its section 1:Evidence (Colonial Statutes) Act 1907
In the reign of Edward VII, the Evidence Act 1907 defined the British possessions in its article 1.3:As a result of the Evidence Act 1907, and unlike other overseas laws, statutes, books of authority, and legal decisions, such documents from the legislatures of British possessions may be submitted as evidence in courts in the United Kingdom without an expert to explain them, provided that they are printed by the government printer. According to Roberts-Wray, unlike the definition of "British possession" given in the Patents, Designs, and Trade Marks Act 1883 and the Interpretation Act 1889, the definition in the Evidence Act 1907 includes "component parts of a federation, such as the Canadian Provinces and the Australian States" – otherwise, the definition "may not fit in with the division of legislative powers". According to the 2009 13th volume of the 5th edition of Halsbury's Laws of England, the Evidence Act 1907 is one of the acts in which "the term may include both the parts under the central legislature and those under the local legislatures", which differs from the definition in the Interpretation Act 1978.
The Evidence."