Ai e^: %^ ■'-^ m m 0% \> ^ ^^ ^L'^ /A ■// om IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1M 2.2 20 ill 18 L25 III u im Photographic Sciences Corporation ^Mo ^^ lip Mj> ... ^%>^^ 1^' .,«>. 't''" %^ ' lUA i4A ISA ££A y 12X 16X 20X 24X 28X 32X Th« copy film«d h«re has b««n raproducad thanks to tha ganarosity of: Law Library York University Toronto Tha imagas appaaring hara ara tha baat quality possibia considaring tha condition and iagibility of tha originai copy and in kaaping with tha filming contract spacificationa. L'axamplaira filmA fut raproduit grica h la gAnirosit* da: Law Library York University Toronto Laa Imagaa suh/antaa ont 4ti raproduitas avac la plus grand soin, compta tanu da la condition at da la nattat* da l'axamplaira fiimd, at «n conformity avac laa conditions du contrat da filmaga. Origi^ial copiaa in printad papar covars ara filmad baginning with tha front covar and anding on tha laat paga with a printad or illustratad Impraa- sion, or tha back covar whan appropriata. Ail othar original copias ara filmad baginning on tha first paga with a printad or illustratad impras- sion. and anding on tha last paga with a printad or illustratad imprassion. Tha laat racordad frama on aach microflcha shall contain tha symbol —»■( moaning "CON- TINUED"), or tha symbol y (moaning "END"), whichavar applias. Mapa, platas, charts, ate, may ba filmad at diffarant raductlon ratios. Thosa too larga to ba antiraiy includad in ona axposura ara flimad baginning in tha uppar laft hand cornar, laft to right and top to bottom, aa many framaa aa raquirad. Tha following diagrams illustrata tha mathod: Laa axamplalraa originaux dont la couvartura an paplar aat ImprimAa sont filmAs an commandant par la pramlar plat at an tarminant soit par la darniAra paga qui compo/ta una amprainta d'impraasion ou d'iliustration, soit par la sacond plat, salon la eaa. Tous laa autraa axamplalraa originaux sont fllmte 9n commandant par la pramiira paga qui comporta una amprainta d'impraaalon ou d'iliustration at an tarminant par la darnlAra paga qui comporta una taila amprainta. Un das symbolas suivants apparattra sur la darnlAra imaga da chaqua microflcha, salon la caa: la symbols — »• signifia "A SUIVRE", la aymbola ▼ signifia "FIN ". Laa cartaa, planchaa, tablaaux, ate, pauvant Atra flimia i daa taux da rMuction diff Grants. Lorsqua la documant ast trop grand pour Atra raproduit an un saul cllchA, ii aat film* A partir da I'angla aupAriaur gaucha, da gaucha k droita. at da haut an baa, an pranant la nombra d'Imagas nteassaira. Las diagrammas suivants illustrant la m^hoda. 32X 1 2 3 1 2 3 4 5 6 SUMMARY of COLONIAL LAW, THE PRACTICE OF THE COURT OF APPEALS FROM THE PLANTATIONS, AND OK THE LAWS AND THEIR ADMINISTR/ ^ ION IN ALL THE COLONIES ; WITH €^!ixttti of 3>U£(tice, <©rt»ert in Council, ^c. kc, &f. BY CHARLES CLARK, ESQ. OF THK MIDDLE TEMPLE, BARRI8TEB AT LAW. LONDON: S. SWEET, 3, CHANCERY LANE; A. MAXWELL, 32, AND STEVENS & SONS, 39, BELL YARD; Hab) lSool(seIIev0 & H^vAlitlbtti: R. MILLIKEN AND SON, GR\PTON STREET, DUBLIN. 1834. H e C I'lMNIJlO By c. UOW UJNUOK OHTII AND SONS, ^^, TEMj'Lt 3JIU. • "Jfel-!, VABI,, TO THE RIGHT HONOURABLE THOMAS SPRING RICE, MP. SKCUETARY OF STATE FOR THE COLONIES, ^C. ^C. SfC. THIS WORK IS, UY PERMISSION, MOST RESPECTFUliLY PEDICATEP BY HIS VERY OBEDIENT AND HUMiltE SERVANT, THE AUTHOR. INTRODUCTION. As, I believe, it is generally known in the legal profession that one of its most learned and able members had begun a work upon the subject of the Laws of the Colonies, and that the materials he had prepared were handed over to me, it is but justice to the high and well-earned reputation of that learned person clearly to explain the nature of the transfer, in order that he may not be held responsible for any defects in the work that ought rather to be charged upon me. Mr. Serjeant Ste- phen, on putting into my hands the matter he had collected for the early portion of this volume, declared that he considered himself no longer to have any connection with it ; and feeling, as I did, the perfect propriety of such a declaration, I have never since ventured to trouble him upon the sub- ject. I have freely exercised the uncontrolled authority given me over the materials thus fur- nished, and as the work now stands I alone am answerable for its defects. a u INTRODUCTION. this joTk r r',°/' " '"'''"''""°" »f 'ho p"'-f clr f « "^ ^ "''"'"•■' "''" "'0 first portion Co o' ; Th """■^' °'*^ ^""^ -'"''"g '" the foi he ■fi^?""""'"'-" ""^ ""finally intended to orm the first chapter.* The second portion con Lr ZT °'"r ''''""'' Co'-esind 1 1 atTltf r-""' ""^Charters of Justice regu- '"^fng the administration of the law in the Colo n.s to which such Charters havebee„«'; was at first proposed to print the accounts of the Colonies as a second chapter, and to add t h eve^ltrrr^r""' '"^ ""> '-^^-^^ to find Eon of! ^u""' ' therefore omitted the into th" / """"f '''"'P'o--' ""-J threw the whole wto he form of an Appendix. In consequence of this arrangement the Appendix occupies by far tho largest portion of the volume; and though his may be objectionable in some respects, t £ terence, to which, especially in a law book I JacriSer' ''" '■"'""■''"" '"'J"'^ "'Sht well'be In that part, the law, as declared by text writPr, K, • ^- • . authorities, and bv Acts of Pn r "^ '^'f "^"*^'^«' ^y Judicial where T l,Iv Parhament, forms the text ; and INTRODUCTION. • •• 111 /c I am but too sensible that I have not been able to present to the profession so complete a work as they could have desired, nor as I could have wished to offer to their acceptance. I claim in- deed little merit beyond that of industry and care in the selection and compilation of authorities, and I am fully aware that the chief recommenda- tion of my labours will be, that the reader may find collected, in one volume, information for which he would otherwise have to search through many different works, some of them not very easy of ac- cess. Let me avail myself of this opportunity to acknowledge the kind assistance I have received from many private friends, without whose aid it would have been impossible for me to complete the task I had undertaKen. The amount of in- formation upon the administration of the law in the Colonies, to be obtained from works published in this country, is insignificant in the extreme, ex- cept in the instance of those Colonies respecting which the West India Commissioners have made and pubhshed their valuable Reports. The books upon this subject published in the Colonies are not numerous ; but few of them find their way to this country, and those few are only to be found in the libraries of private individuals. It might have been supposed that the colonists, with a view to their own interests, would have for- warded to the library at the Colonial Office, and to the British Museum, such works as would enable a 2 i? INTRODUCTION. any one who desired it to obtain complete and ac- curate information on any subject which, for the benefit of the Colonies, he might wish to bring under public discussion. But such has not been the fact.* Under these circumstances I have been obliged to borrow from all quarters books that could be found no where but in private libraries ; and for the readiness with which these were lent, not only by personal friends but by gentlemen to whom I had before been a stranger, I have to ex- press my sincerest obligations. I have been most particularly indebted for assistance to Mr. F. Pol- lock, M.P., Mr. Godson, M.P., Mr. Lloyd, M.P., Mr. Dwarris, Mr. W. Bruce, Mr. T. De Sausma- rez, and Mr. H. W. Parker. The last of these gentlemen, who had already published an excellent little work upon Van Diemen's Land, and whose attention had been particularly directed to the Australian Colonies, voluntarily offered (and his offer was most gladly accepted) to contribute that portion of the book which related to those Colo- • Upon a Colonial question of considerable importance, an honourable member of the House of Commons was recently compelled to apply to his various acquaintances for the means of obtaining that informaiion which none of our public libraries afforded him. Even the Almanacks of the different Colonies, works containing more authentic legal information than our knowledge of what Almanacks are in this country would lead us to suppose, are rarely to be met with where they might most be expected to be found. INTRODUCTION. V nies. To Mr. Greville ariu ^Vlr. Devey, of the Privy Council Office, and to Mr. Mayer, the Librarian of the Colonial Office, I also beg to offer my best thanks for the assistance so politely and readily afforded by them. The first portion of this volume was printed be- fore the Autumn of last year, but circumstances have unavoidably delayed its publication till the present moment. It has been suggested to me in the interval, that as the condition of the East In- dian Colonies has been altered since I began the work, it would be extremely useful to print a vo- lume upon the administration of the laws in those important dependencies ; and as I was honoured with this suggestion from Sir Alexander Johnston, for whose services in Ceylon this country and that Colony have equal reason to be indebted, I felt it impossible to hesitate about adopting it. A Summary of the Laws governing our East Indian Possessions will therefore form an additional volume to the present, to which it will make all necessary references. After the first portion of the summary had been put into the printer's hands, a question of consi- derable importance, relating to the powers of a Governor, was brought under my notice. A fo- reigner had gone into one of our Colonies, and had there complied with the terms of a proclamation issued under competent authority, which pre- scribed what should be done by any foreigner who VI INTRODUCTION. if" desired to obtain the privileges of a British s.,Mect m that Colony. He was subsequently stnt oat of the Colony by an order of the Government. The question under these circumstances was, whether any Go-ernor of a Colony corid give the right,« -^f a naturalized citizen to a foreigner who came to reside within the Colony. The opinion that he could not was asserted in the Colony, and at first adopted in England on the authority of Lord Coke who says,* « The King cannot grant to any other' o make of strangers born, denizens ; it is by the avv Itself so inseparably and individually annexed l°^'To7^ "^T" '"' '^^ ^°°^ '^ '" 'he 20 Hen. 7, fol 8.) for the law esteemeth it a point of high prerogative. Jus majestatis a inter inu,„ia sumL poteslaus o make aliens born subjects of the realm and capable of the lands and inher .ances of Eng- land m such sort as any natural born subject is." I„ h^ passage, which is still good law, no notice is taken of a distinction that has however been raised by subsequent writers, adopted by Colonial Acts, confirmed at home, and also by Acts of the Bri- tjsh Parliament itself. That distinction is, that the right of a naturalized subject may be granted to a man m a Cdony without conferring upon him similar rights in the mother country. So long ago as the 35 Car. 2, an aci was passed by the Legfs- latrro of Jamaica and ccnfirmed in this country Calvin's Case, r folic-, SI. INTRODUCTION. VU by which, to encourage the settling of the island, the Governor or Commander-in-Chief was authorized under the broad seal of the island, to make aliens " being already settled, or such as shall hereafter come to settle and plant in it, having first taken the oath of allegiance, to be to all intents and pur- poses fully and completely naturalized." The ap- plication of the four last words is shewn by another section, which declares that such persons " shall have and enjoy, to them and their heirs, the same immunities and rights of and unto the law and pri- vileges of this island, in as full and ample a manner as any of His Majesty's natural born subjects." A similar act was passed by the Assembly of Antigua in 1702, and confirmed at home May 8th, 1703. That act declared that Protestant aliens desiring to become inhabitants, should be brought before the Governor and Council, and having taken cer- tain oaths and acquired ten acres of freehold land in the country, or a house in any town in Antigua, might a<^quire and dispose of all kinds of property in the island as if they were natives. In addition to these local acts, the English statutes 13 Geo. 2, c. 7, and 2 Geo. 3, c. 25, made similar provisions as to the naturahzation of foreigners in " any Bri- tish Colony in America," and the 13 Geo. 3, c. 25, declared that all persons becoming His Majesty's born subjects, by virtue of the two preceding acts, might hold places of trust and take grants of land from the crown, such not being places of trust or VIU INTRODUCTION. grants of land within the United Kingdom. The act of 1 Wm. 4, c. 53, passed with respect to Lower Canada, enabled foreigners who have been na- turalized by the Legislative Assembly of Lower Canada to vote for members of the Assembly, and to be summoned or elected to seats in it. It was therefore clear that the law had formally recog- nized the authority of Colonial Governments to grant this limited species of naturalization, and the person improperly sent out of the Colony was allowed to return. As the opportunity of inserting this matter in the body of the work, as part of the account of the powers of a Governor, had passed by, I thought its introduction in this place might be pardoned, as it seemed too important to be altogether omitted. CHARLES CLARK. 2, Pump Court, Tempie, Sept. 5th, 1834. ERRATA. Page 24. line 18, for 57 Geo. 3, read 1 Wm. 4. Page 313. line 8 from the bottom, add " and alto to the Orders in Council, ante, 274 and 288." SUMMARY or COLONIAL LAW. 1 HE British Colonies or Plantations are remote pos- sessions or provinces of this realm, occupied for the purposes of trade or cultivation.(l) (1) Mr. Reeves observes (on Shipping, pt. ii. c. 1, p. 104,) that " plantation originally implied the idea of introducing, instituting, and establishing, where every thing was desert before," but that colony and plantation now seem to mean the same thing, though formerly a plan- tation was not a colony till the King had appointed a governor or civil establishment. It was according to this modern use of the two words tliat Guadaloupe, taken from the French in 1759, was held by Attor- ney-General Pratt and Solicitor- General Yorke to be a plantation within the meaning of the Act of Navigation. The latter, however, called it " a plantation or territory belonging to the King by conquest." 2 Cha. Op. 357 ; and see Wi/tham V. Diittim, 3 Mod. \6\, where, in a question respfirtjng Barbadoes. which was found a desert island and planted by Bristish subjects, " islands gotten by conquest, or by some of the King's subjects going in search of prize, and planting themselves there," are spoken of arguendo as convertible ideas. Doe- tor Johnson defines "colony" to be " a body of people drawn from the mother country to inhabit some dis- tant place." But the term is of more comprehensive sense in the English law, in which territory ra- ther than jKoplc is the predominat- ing idea. In a legal sense, it seems a necessary part of the definition tliat a territory should be a posses- sion of tlie realm, or part of his Majesty's dominions. This is not the case with every settlement, for in some, British subjects may only have rights of occupation. Thus by treaty of peace with Spain in 1763, it was agreed hy the King of Spain that British subjects should not be dhr 9 A SUMMARY OP It is proposed in the following pages to consider, I. The laws to which, in a general view, the colonies are subject. turbed in cutting logwood at the Bay of Honduras, but should be allowed to occupy houses and ma- gazines there. A question arose whether the Bay of Honduras there- by became a teiiitory belonging to his Majesty withih the Navigation Act, and it would seem, that on the principle laid down by Mr. Reeves, it was held not to be so. (Chitty on Commerce, vol. i. p. 636.) It has been thought that the term " colony" is not in law applicable to a mere military possession, and the case of Luhbock v. Potts, (7 East, 449,) exhibits an instance in which that doctrine of exclusion has been applied to Gibraltar. Yet if the definition of Dr. Johnson, or the fact of possession of territoij, were alone to give the rule, that place ought fairly to be ranked among our colonies. Besides, in Lubbuck v. Potts thequestion was not on the word "colony," but "plantation." That case, therefore, even if well decided, would hardly support the opinion for which it is quoted. Lord Ellenbo- rough described Gibraltar as " a mere fortress and garrison, incapa- ble of raising produce, but supplied with it from other places." Pre- vious legal authorities had not con- sidered Gibraltar in the same light. If it were "a mere fortress and garrison," there could be no objec tion to its remaining under martial law, yet so early as 1722, there was a petition to the Crown supported by the members for the City of -liOndoD, Bravfnflr that a riuM ji-rJ, diction might be established there, and complaining on the part of the merchants and traders of the town, that notwithstanding letters-patent had been granted by the Crown for the establishment of a civil, they were still under a military go- vernment. (1 Chal. Op. 169.) Among the papers submitted by the Privy Council to the Attorney and Solicitor-General, (Raymond and Yorke,) was one stating, that at the time Gibraltar was taken it con- tained " one nunnery, two con- vents," some other establishments of the same kind, and " 1000 fami- lies." (The population is now, ex- clusive of troops, 16,500.— M'Cul- loch's Diet, of Com. art. Gibraltar.) The petitioners expressly asked for a civil government to be established there "as in the American colo- nies," and the Attorney and Solici- tor-General reported in favour of the request. In the C barter of Jus- tice, dated in 1817, the letters-pa- tent of Geo. 1 and Geo. 2 are both recited as having been issued tofesta- blish courts of justice in " the town ahd territory of Gibraltar;" and the expression "town and territory" was also used in the opinion of the two learned persons above referred to, who recommend that "some settlement ought to be made of the property in the houses and lands there." In Camiphell v. Kail, Lord Mansfield says, (Cowp. 211,) " there are inhabitants, property, and trade in Gibraltar." That place iiad therefore before the period isiaer, le colonies blishcd there, e part of the of the town, letters-patent le Crown for 1 civil, they military go- Op. 169.) nitted by the Attorney and ymond and , that at the ken it con- two con- ablishments 1000 fami- is now, ex- >.— M'Cul- Gibraltar.) y asked for established rican colo- and Solici- favour of rter of Jus- letters- pa- 2 are both led to festa- ' the town " and the territory" on of the e referred t " some ie of the nd lands alt, Lord ). 211,) property, " That ii« period COLONIAL LAW. -^ II. The particular legal constitutions at present pre- vailing in them. III. Such acts of the British Parliament as impose regulations on the colonies. IV. Some miscellaneous points of English law upon matters relating to the colonies. I. In its colonial possessions, the crown possesses Laws to which the same right of sovereignty, and (in general) the same sSbjeclr'"' "' prerogative as in the mother country.(2) The political and military administration is consequently vested in a governor, appointed by the king; and the laws are administered and executed in the king's name by the same functionary, and by other executive and judicial officers acting under the crown.(3) when Lubbock v. Potts was decided, been treated both by the Crown and by the highest legal authorities as something beyond " a mere foitress and garrison ;" and the true reason for the judgment given in that case is perhaps rather to be found in the statement there made, that " in fact the term plantation, in the sense of the navigation laws, had never been applied to any of the British domi- nions in Europe" than in any other circumstance. The same cause has probably operated to keep Jersey, Guernsey, and (since the 41 Geo. 3) Malta, in the anomalous situation of " British possessions in Europe," that is, in a state in which, with re- gard to trade, they are considered in one character, and with regard to legal government in another. They have not the benefit of a direct trade with the East and West Indian colonies ; but appeals lie from them as from those colonies to the King in council. (Mostyn v. Fatmgas, Cowp. 174.) Upon the subject of this note see Lubbock v. Potts, 7 East, 449 ; 3 Smith, 401, S.C; Acton's Rep. 305; 12 Car. 2, c.l8, s. 18 (since repealed) ; Rubichon v. Humble, 1 Dow's Rep. 191 ; 48 Geo. 3, c. 69 ; 41 Geo. 3, c. 103. (2) "The prerogative in the West Indies, unless where it is abridged by grants, &c. made to the respective provinces, is that power over the subjects which by the com- mon law of the land, abstracted from all acts of parliament and grants of liberties to the subjects, the King could rightfully exercise in England." 1 Cha. Opin.233 ; see ibid. 203. (3) The case of proprietary and that of charter governments, (to be afterwards noticed,) are so i£.r ex- ceptions to (h--., that the governors and other of. ,.i are appointed tiot by the crown, but by those to whom B 2 A SUMMARY OF On the other hand, the king is bound in the colo- nies, as at home, to govern according to established law. (4) It is necessary, therefore, to consider to what laws the colonies are subject. In doing this, it will be necessary to distinguish the colonial possessions from each other, in reference to the manner of their acquisition by the parent state. They are acquired, 1, by conquest; 2, by cession under treaty; or 3, by occupancy/, viz. where an uninhabited country is discovered by British subjects, and is upon such dis- covery adopted or recognized by the crown as part of its possessions.(5) In case of conquest or cession, the conquered or ceded country retains its former laws, till they are changed by competent authority. It has been said that all unchristian or immoral in- stitutions are ipso facto abrogated,(6) and in lieu of the crown has delegated its rights. But there is at present no proprie- tary, nor any charter government in the British colonies. (4> Campbell v. Hall, Cowp. 204. (5) A "ountry may also come to the crown by hereditary descent, or other lawful title. As to which see Calvin's case, 7 Co. 17 b. But it did not seem worth while to treat this rare mode of acquisition as part of the general classification. (6) The rule is thus broadly stated, {Calvin's case, 7 Reports, 34,) that " if a Christian king should conquer a kingdom of an infidel, and bring it under his sub- jection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christia- nity, but against the laws of God and nature contained in the deca- logue." in the cttse of plankard \ . Galdy, decided in the reign of Will. 3, and reported in 2 Salk. 411, that rule is adopted, with some slight restriction. It is there said, " in the case of an infidel country their laws by conquest do not en- tirely cease, but only such as are against the laws of God ;" and that in all such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity." In the report of the same case in 4 Mod. 222, although this point is raised in the argument, it is not men- tioned in the judgment. In2P.Wms. 75, there is a note of a statement made by the Master of the Rolls as to something that had been de- termined in the Privy Council upon an appeal from the plantations. In that note the Master of the Rolls represents the council to |iav§ dcr the colo- stablished r to what giiish the ice^to the They are •r treaty; I country such dis- is part of lered or they are noral in- i lieu of le reign of in 2 Salk. , with some there said, del country do not en- ch as are " and that le laws are conquered i according 1 equity." nae case in lis point is is not men> 2P.Wms. statement the Rolls [ been de- incil upon lantations. the Rolls tiav9 der COLONIAL LAW. them the rules of natural equity are to be administered cided, that " until such laws given by the conquering prince, the laws and customs of the conquered coun- try shall hold place, unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent ; for in all such cases the laws of the conquering country shall prevail." The case of Blankardy. Galdy, as reported in Salkeld, is referred to. But two other reports of that case exist in Holt, 341, and in Comberbach, 228. In the former, nothing is said about the abrogation of laws hostile to Chris- tianity in a conquered country. In the latter, the authority of Cal- vin's case, on which the reports in Salkeld andPeere Wms.seem solely to found themselves, is thus ob- served upon:— "And where it is said in Calvin's case that the laws of a conquered heathen country do im- mediately cease, that may be true of laws for leligion, but it seems otherwise of laws touching the go- vernment." The doubt here thrown upon the somewhat sweeping terms of the doctrine as slated in Calvin's case, may be justified not only on principles of reason, but even by the practice of the English government. If unchristian or immoral institu- tions are ipM facto abrogated, then it would have been out of the power of the English to have tolerated them even for a moment. Yet they have done so in our East Indian possessions (37 Geo. 3, c. 142, s. 12,) in the cases of the Sut- tees and the barbarous lites of Jughernaut. The immoral or un- christian nature of such customs af- fords a reason for abrogating them, but then such abrogation must be the effect of the declared will of the conqueror, and cannot take place as of course and unavoidably on thn instant of the conquest. Lord Mansfield's opinion therefore was (Campbell \. Hall, Cowp.209,) that the doctrine should stand thus: — " that the laws of a conquered country continue in force until they are altered by the conqueror ;" and he added, " the absurd exception as to Pagans mentioned in Calvin's case, shows the universality and an- tiquity of the maxim. For that dis- tinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the ci-usades." Within this limit the rule would now seem to be confined. But there is one distinction that deserves to be considered. This re. lates to laws contrary to the funda- mental principles of the British constitution. Such laws would, with regard to the conqueror at least, and, it is apprehended, with regard to the conquered also, cease upon the instant of conquest. Thus if any country in which the inflic- tion of torture was the law, should come into the possession of Great Britain, such law would fall of course. The constitution of Great Britain would put an end to it. (Per Lord Chief Justice De Grey, Trial of Fabrigas v. Mostyn, 6o. — Stokes, 11.) Allowing for excep- tions of this sort, the law would remain as before, and would not be altered but by the declared will of the conqueror. Customs that were merely iinrlsristian, but not contrary to the fundamental constitution of 9 m A SUMMARY OF by the King, or by such judges as he shall appoint.(7) And the case is the same where the law of the con- quered country is silent. The power of changing the laws of a conquered country resides in the King in council, for it is the right of the conqueror to impose law on the conquered. And the cases of cession, and of conquest, are in this respect not distinguishable, unless the right is restricted by compact with the ceding party. I„ exercising this power, the King is not bound to legislate in conformity With the law of England. He may impose whatever laws he pleases. (8) the British empire, nor to the in- alienable rights of her citizens, by whose arms the conquest had been obtained, certainly would not be abrogated by the mere fact of con- quest. Some such customs exist at this moment in colonies originally planted by the English. •' In the Slave Court at Barbadoes slaves are sometimes sworn upon grave dirt, according to a superstition." (IRep. \V.I.C.48.) This cus- torn is certainly not Christian, nor can the forms of swearing peculiar to the Jews, the Hindoos, a.id the Turks, be said to be so, yet all are admitted not only in the courts of our colonies, but in West- minster-Hall itself, en the principle of the common law. that there is no particular form essential to an oath taken by a witness; that which he considers the most binding shall be adopted. Everett v. Alcliesou, Cowp. 389. ^ (7) 2 Salk. 411. Would not this be in effect lo give the con- quered place the laws of the con- quering country, to such extent at least as they could be applicable to its particular circumstxnces? For, generally speaking, the common law of each country is esteemed by the inhabitants of that country to consist of the rules of natural equity, and tho mind of the judge who presided in the tribunals of a conquered country would per- haps have no other standard to judge of those rules, but that with which his acquaintance witli the common law of his own country had furnished him. (8) Wyiham v. Dution, 3 Mod. 160; Show. P. C. 24; 2 P. Wms. 75 ; Campbell v. Ildl, Cowp. 204. Lord Mansfield however in the last book says, that this power is subordinate to the authority of par- liament, and, therefore, that he " cannot make any new chani^e contrary to fundamental principles ; he cannot exempt an inhabitant from that particular dominion, as for instance, from the laws of trade, or from the power of parliament, or give him privileges exclusive of his other subjects, and so in many other instances which might be put." COLONIAL LAW. Such change may be either partial or general. It may consist of the introduction either of particular institu- tions, engrafted on the former law of the place, or of an entirely new code superseding it altogether. And it may involve an alteration also of its political constitution or form of government. When the change is partial only, it is said that the former customs of the country will still be in force as to all matters not otherwise provided for.(9) In giving a new constitution to a conquered or ceded colony, if the Crown provides (as has hitherto usually been the case) that a Representative Assembly shall be summoned among the inhabitants of the colony, with the power of making laws for its interior government, it has been decided that the Crown cannot afterwards exercise with respect to such colony its former right of legislation.(l) It has impliedly renounced that right by the appointment of a legislative power within the colony itself. In the case of a colony acquired by occupancy ^ which is a plantation in the strict and original sense of the word, the law of England then in being, is imme- diately and ipso facto in force in the new settlement ;(2) (9) Blankard v. Galdy, 4 Mod. 222. But when by royal commis- sion a new legal constitution has been granted to a colony, esta- blishing a legislature, courts of jus- tice, &c. the commission has ge- iierally directed that the law administered in its courts of justice shall be in all things as nearly agreeable as possible to the law of England. After the issuing of such commission, therefore, the law of England is the rule in cases not specially provided for. See post. (1) Campbell V. Hall, Cowf. 204, (2) Determined by Lords of Privy Council on appeal, see 2 P. Wms. 75 ; see also 1 Black. Com. 107; Com. Dig. Ley, C; Show. P. C. 32 ; 1 Chal. Opin. 195 ; 2 ib. 202 ; Stoke's Law of Colonies, 10. In such a place, there being no preceding laws to contest the supe- riority with them, the laws of the mother country, so far as they could be applicable, would naturally be adopted by the settlers. Mr. Fox gives another reason for this, when 8 !' A SUMMARY OP and such a colony is not subject to the legislation of the Crown, lor the King cannot pretend in that case to the nghts of a conqueror,(3) but the subjects of Great Britain, the discoverers and first inhabitants of the place, carry there with them their own inalienable birth- right, the laws of their country.(4) ^^ But they carry only so much of these laws as is applicable to the condition of an infant colony; such, for instance, as the general rules of inheritance, and protection from personal injuries. For the artificial re- hnements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties,) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions,(5) are neither necessary nor convenient for he describes such persons as merely cultivators of the soil, who had not the power to establish a form of government independent of the state, which could alone be their protec- tion. (3) So if a country come to the crown by title or descent, it is not subject to legislation by the crown. It retains its old laws till changed by act of parliament. Calvin's case, 7 Co. 17 b. (4) The common law of England is the common law of the planta- tions, and all statutes in affirmance of the common law passed in Eng- land antecedent to the settlement of any colony, are in force in that co- lony, unless there is some private act to the contrary, though no sta- tutes made since those settlements are there in force, unless the colo- nies are particularly mentioned. " Let an Englishman go where he will, he carries as much of law and liberty with him as the nature of things will bear." 1 Chal. Op. 195; and 2 ib. 202. "English subjects carry with them your Majesty's laws wherever they form colonies." Per Attorney and Solicitor-General Pratt and Yorke.— "Inaplace oc- cupied by the king's troops, the sub- jects of England, Avould impliedly carr, the law of England with them." Per Lord Ellenborough,C.J. in Hex v. Thetnhahhunts of Bramp- ton, 10 East, 288. (5) Among these may be noticed the bankrupt and poor laws, the mortmain acts, and the gamo laws. See Attorney-General v. Stuart, 2 Meriv. 143. And it seems all penal statutes, Dawes v. Painter, Freeman, Rep. 75. In this last case it is emphatically said, " bene- COLONIAL LAW. them, and therefore not in force. What shall be ad- mitted and what rejected, at what times and under what circumstances, must, in cases of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the King in coun- cil ; the whole of their constitutions being also liable to be new modelled and reformed by the general superin- tending power of the legislature in the mother coun- try."(6) In a colony so circumstanced, as well as in all others, the right of appointing governors and other officers for the execution of the law, of erecting courts of justice for its administration, and of summoning rcj)resentative assemblies among its inhabitants, for the purpose of 9 ficial laws might extend to things not in esse at the time of making the statute. Penal statutes never do." See also 2 Rep. West India Com- missioners, 61, (6) Black. Com. 108. Stoke's Law of Colonies, 4. It has been laid down by learned writers, "that it is not true as a general proposi- tion that the inhabitants of the colo- nies carry with them the statute laws of the realm ; but whether they do so or not depends upon circumstances, on the effect of their charter, on usage, and the acts of their legisla- ture ; and it would be both incon- venient and dangerous to adopt the proposition in so large an extent." Chitty on Commerce, vol. 1, p. 639, cites 1 Chal. Opin. 195, 198, 220. But if by this is meant that they carry no part of the statute law, it will be ditficult to assent to the doctrine ; for it is conceived to be clearly established, that a colony acquired by occupancy, receives the statute as well as the common law of England then in being, subject (as to both) to the excep- tions noticed in the text. Accord- ingly we find Lord Mansfield in the case of Campbell v. Hall, Howell's State Trials, vol. 20, p. 289, thus expressing himself:—" It is absurd that in the colonies they should carry all the laws of England with them. They carry such only as are applicable to their situation. I re- member it has been so determined in the council. There was a question whether the Statute of Charitable Uses operated on the Island of Nevis. It was determined it did not. No laws but such as were applicable to their condition, unless expressly enacted." This case was the best that could have been chosen for the illustration of the rule, for Nevis was a place acquired by occupancy. The English first settled there in 1628. SeeRaynal's East and West Indies, 3d ed. vol.4, p. 323; and Edwards, vol, 1, book 3. c.4, s. 2. 10 I'i A SUMMARY OF interior legiHl»tion, bdonKs by virtue of its general pre- rogative, already notkvd, to the crown.(7) But in such colonies, the crown alone having no power of legislation, their condition i„ that respect essentially diifers fron. that of colonies acquired by con. quest or cession. ^ On the otlier hand, every colony, whether acquired by occupancy, by conquest or by cession, is subject at all periods of its existence, as part of the British domi- nions to the legislative authority of the BrilM Parlia- ^"^ni,(8)hy whose power, paramount (where both apply) to tha of the king in council, its existing laws may in all cases be either wholly or hi part repealed, and new •aws^^new constitution, be at pleasure imposed. (9) (7) And see 1 dial. 1B3, 184, and2Chal. 169, 170, 241. (8) The principle on whieli thi» rule depends, so far as it applies to colonies acquired by the occupancy of British subjects, is thus stated ar • 5ie mother country a part, and no more than a part, of that which they cost her in governing and de- fending them." .'\rticle °Colony in Supp. to Enc. Brit. COLONIAL LAW. to make laws and statutes as aforesaid, is denied or drawn into question, are, and are hereby declared to be, utterly null and void to all Intents and purposes what- soever." Before the conclusion of the war, however, the exer- cise of this obnoxious claim was renounced by another act of the British legislature, 18 Geo. 3, cA2,{3) usually quoted as the " Declaratory Act." It recites, that " taxa- tion by the Parliament of Great Britain for the purpose of raising a revenue in his Majesty's colonies, provinces, and plantations in North America, has been found by experience to create great uneasinesses and disorders among his Majesty's faithful subjects, who may never- theless be disposed to acknowledge the justice of con- tributing to the common defence- of the empire, provided such contribution should be raised under the authority of the general cour^, e. 2. Sierra Leone, with the settlements on the Gold Coast. In the Indian Seas : — 1. Ceylon, 2. Mauritius, with the Seychelles. In the Soutli Seas : — 1. New South Wales, with Norfolk Island. 2. Van Dieman's Land. 3. Western Australia. And in addition to these, may be enumerated the fol- lowing British possessions, which are said not strictly to fall within the definition of colonies. In Europe : — 1. Gibraltar. 2. Heligoland, 3. Malta. (4) 9$ (4) Malta to be deemed in Eu- rope, 3 & 4 W. 4, c. 52, s. 120. In tliis enumeration of the colonies nothing has been said of Honduras, which has been derided expresab' not to be a colony (see ante, p. 2, u. 1.) Western Australia, mentioned in the above list, was created a co- lony by the 10 Geo. 4, c 22, and the mode of its government there provided for. See more on the sub- jert of these settlements in the Ap- pendix. C2 nients on the Gold Coast. 20 A SUMMARY OF These are almost all of the class above desciibed, a., J rovmcialEstahlishnents, there being at present no Pro- pnetary Government, nor, with the exception of Sierra Leone, (if that be an exception,) any Charter Govern- ment among the colonial dependencies of Great Britain.(5) and S"J«r' , ^'""'^ ^^«"« °"g»>t, perhaps, to be designated as a ^'^ '^'''''"^^'' government, for, in point of form, it is by char- ter, and not under the royal commission to its governor, that Its constitution has been established. Considered as to the mode of its acquisition too, the case of this colony IS peculiar, and entitles it to be separately noticed for It belongs not properly to the cfass of those obtained by conquest or cession, nor of those acquired by occu- pancy, though it partakes more of the nature of a colony acqun-ed by occupancy than of any other. It was pur- chased from the native chiefs by certain private English subjects, who were induced to found a settlement there, with the benevolent object of repressing the slave trade and promoting the civilization of the African continent, ^ith this view they also obtained, by act of parliament, (31 Geo. 3, c. 55,) a charter of incorporation, and autho- rity was given to the King to grant to the company the exclusive right of holding the peninsula of Sierra Leone, and of purchasing lands from the chieftains of the coun- try : after an experiment of some years, they abandoned (5) This has not always been the case. Tlie Island of Barbadoes was formerly granted to the Earl of Car- lisle, and that of St. Lucia to the Duke of .Montague, and both were in the nature of proprietary govern- ments. Carolina was formerly a government of the same kind, lodged in eight proprietaries. New Jersey, Pensylvania and Maryland, were also proprietary governments. (Eu- ropean Settlenents, \ol. 2, p. 299.) The form of a Charter Government originally prevailed in all the pro- vinces of New England, and at a later period was still establislied in two of them, — Connecticut and Rhode Island. These New Eng- land governments were those which Mr. Burke, in the passage above quoted, described as " mere demo- cracies." (European Settlements, vol. 2, p, ,3no,) ts >f 'Scribed, as snt no Pro- 1 of Sierra T Ciovern- Britaiii.(5) lated as a is by cbar- governor, Considered se of this ly noticed, 3 obtained I by occu- f a colony ; was pur- e English ent there, lave trade continent, irliament, ul autho- ipany the a Leone, he coun- •andoned jovernment H the pro- I and at a ablished in clicut and New Kiio-- lose which age above leie demo- stllements, 21 COLONIAL LAW. their project, and surrendered their charter to the Crown. By 47 Geo. '3, sess. 2, c. 44, the Crown was ai'.thorized to accept this surrender, and a new charter then issued, introducing such alterations into the constitution of the sctdemcnt as the new state of things required. By this charter, the power of making laws is vested in the governor and council of the colony. Afterwards, by 1 & 2 Geo. 4, c. 28, sect. 3, His Majesty was empowered to order and direct that the forts and settlements on the Gold Coast of Africa, then held by British subjects, and any possessions on the west coast of Africa, between the twentieth degree of north latitude and the twentieth de- gree of south latitude, which then did, or at any time thereafter, might belong to His Majesty, should be an- nexed to, or made dependencies on the colony of Sierra Leone, after which, they should be subject to all laws ordained by the governor and council of the colony, and not disallowed by His Majesty, in the same manner as if they had originally formed part of Sierra Leone. The annexation so authorized has accordingly since been di- rected by order in council. (6) Three other of the colonies, viz. Newfoundland, New Of the colonies t5outh Wales, and Van Dieman's Land, were acauired *"1""'^ ^^ ^'** hv fli* -1 . "^^i""^" covetyoroccu. uy 111 ,... Simple occupation, and are consequently P*''""- noi sub iie legislation of the Crown, but are governed .; ,. ^eral law of England as it existed at tlic period oi uieir acquirement, subject to such regula- tions as the British Parliament has since specially pro- vided for them. Of the acts regulating these colonies as to the administration of justice, the following are the principal : " An Act for the better administration of jus- t^cem^Newfoundland, and for other purposes," 5 Geo 4 (6) His Mnjcsty, by letters pa- tent, granted a Charter of Justice to Siena Leone, establishing coUrts of judicature with regulations as to the proceedings tiierein, and appeals therefrom, &Ci <2^ A SUMMARY OF '^^l' ^^\" '^" '^''^ '" '"'"''^'^ •'"'" *''^ '•'^f ^»«y of .July, mi, and nnfil the end ..f tl,c next .session of Parlia- ment, fo.- the better administration of justice in Nev. II South Wales and Van Dioman's Land, an Colonies which Iiaving- been oriiriuaHv Suo £' '''^"''•'^ '^y ^'""^1"-^ ^'^^ ---o". an ^'rant of a representative le^ri,|ative assembly, arc (7) For previous acts, see Kccves' History of Newfoundland, which contains a complete history of the constitution of this colony. Sec also an act as to celebration of marriages in Newfoundland, 6 G. 4, c. 68.^ «y the 5 G. 4, c. 67, his majesty was empowered to Issue letters pa- tent instituting courts of judicature in this colony, with rules as to pro- ceedings therein and appeals there- from, &c. A Charter of Justice was accordingly issued for these pur- poses, dated 19th of September, 18'25. (Sec a copy of it in Hiu ,\p. pcndix.) The supreme court was to have tho same jurisdiction as the courts of King's Bench, Common ricas, Exchequer, and Chancery liave in England (s. 1 ) ; thechicf and two assistant judges were to be bar- risters of three years standing, (s, 2) and the court was to have the juris- diction of courts of vice-admiralty, (s. 4) and to grant letters of admi- nistration and probates of wills, (s.5) The leading provisions of the act arc recited in the Charter of .Justice. Newfoundland has since received a grant of the power to hold a legis- lative assembly ; and by the 2 & 3 W. 4, c. 78. s. 1, the authority to repeal or altc^r the two acts above referred to, which till then arc to continue in full force. Sec the iiji structions to the governor, and the proclamation of the kingacconqiany- i'lg them, dated 26th of July, 1832. (A copy is in the Appendix.) (8) This is continued by an act of 9 O, 4, c. 83, until the 31st of De- cember, 1836. Hy the 4 G. 4, c. 96. his majesty was empowered to issue Ictlers pa- tent instituting courts of judicatnie in New South Wales and Van Die- man's Lund, with rules as to pro- ceedings therein, and appeals thcre- fiom, .Sec. A Charter of Jmlicc was accordingly issued for these pur- poses. See a coj)y of it in tiic Ap- pendix. The supreme courts of New South Wales and \nn Dieman's Land, arc by the 9 Geo. 4, c. 83, ss. 3,' 4. 11 & 12, to have the simc juris- diction in thosccolonies as the courts of King's liench. Common Pleas, and Exchequer have in England, and arc besides (o have jurisdiction over ottences committed at sea, or in the islands in tho Indian and Pacific Oceans, and to have e(|ui- tablc and ecclesiastical jurisdiction within those colonies, and their de- pendencies. COLONIAL LAW. Still subject to the Ip^'isliitioii of the Crown. These are St. Liiciji, Trinidful, the newly constituted colony of Mritish Guiana, the Cape of Good Hope, Mauritius, Ceylon, and the lunopeun establishments of Gibraltar, Malta, and Heliffoland. In colonies so acfjuired it has already been shown that the law in force at the time of the acquisition, con- tinues to prevail till altered by new regulations of the Crown or Parliament. Accordingly in St. Lucia, the ancient code of France, as it existed before the i)romul- gation of the Code Napoleon, is still the law of the colony. In Trinidad the law of Spain, as established there at the time of the conquest by Great Britain in 1797, still prevails. In British Guiana, the Cape of Good Hope, and Ceylon, they retain the Roman Dutch Law of the Seven United Provinces, and of the Batavian Re- public. In Mauritius are received four of the five codes into which the Code Napoleon is divided, viz. the Code Civile, the Code de Procedure, the Code de Commerce, and the Code d'Instruction Criminelle. And in criminal cases this colony is subject to the old French law. (9) It is to be observed, however, with respect to all these colonies formerly belonging to France, to Spain, and to Holland, that the law in force in each of them at the time of its conquest, and still retained there, though formed upon the l)asis of tliat of the parent state, differed widely from it in many particulars. By each of these states a special system of law had been established for the government of its colonies. Thus the Kings of France had pronudgated or sj- ictioned various ordi- nances for their AVest India possessions, which are col- lected together under the title of the Code de la Mar- (9) The Code P<^n.l of Napoleon ier t!>c conquest ol IJ.u island by IS not in lorce tlieie, because it was Great liritain. not promulgated in France until af- 2i A SUMMAHV OF tini'liH*. Tin- Kin.rs of S pain, wifli thr tidvicc of t\\ vouiml of (lu. I.ulies, Inul (..stahlishe.l a |,o,|y „f | inut.ili.,1 L,.yos (le las Iiulias, ,„• Ri, liidias. 'J'lir Seven United V rtHv codes for the government of eastern colonies, at the sn^r^T.stion of the d •nercial conipaniivs by which those coh)n IIWS. copilucion de his rovinces iuid issued sej)u- tii' "r western and iflerent coni- Neverlheless. (I ii's were settled. . these coh)nial statutes of France, IloMand, »"•• 'Spain, profess to provide only for cases of local IH'cuhanty. leavinK tl'c Kn.nal rules and principles of luwm all other instances to he collected from the code oi the parent state. VVith respect to the European eslablislunents, Malta (I) 's governed (as before its ac(,uisition) by u set of local o'ihnances called the Maltese Code. But (Jibraltar is in no degree now s.d.ject to the law (,f Spain, for by a Cliarter of Justice, (^') p,u„od by the (^rown to that MHtlemer.t in the Hlty-seventh year of (ieo. ii, a court <>< justice was established there, directed to administer .lust.co as nearly as .nioh, be according f. the laws of i'Ax^hmd. And Jleligoland is a mere military fortress "'Hi can har lii.s sued scpii- sU'in mid 'it'iit coni- 10 scKlal. I Holland, I of local iicipkvs of I the code Maha(l) '■ of local braltar is for by ji ) to thai , a court hiiiiiistcr ' laws of fortrcs.s, ^'stciu of litiitions MKsidiMit- liai each •y (iroat various vc been order ol' luvur biicn •lie Ap. ,|.. 1. A f COLONIAL LAW the Kinj^ in Council, or by ordinances of the local legis- latme subse(|iiently conlirnied by ilis Majesty. (JJ) In cucIj of the colonies which we have hitherto had occasion to notice, whether ac(juired by conquest or otherwise, there exists, with powers more or less ex- tensive, a local legislature. In general the local power of niakin/^r laws is vested in the governor, acting with the advice of a council of government. These councils are established by the governor's connnission and by his general instructions issued under the signet and sign manual, with the advice of the jjrivy council. This method prevailed in St. L\icia, Trinidad, Berbice, (1) the Cape of Good Hope, Mauritius, Ceylon, Gibraltar, and Malta. In Trinidad, however, the local laws are l)r()uudgated in the name of the governor alone, without any express reference to the advice of the council,— a peculiarity which is to be attributed to a corresponding peculiarity in the instructions to the governor of that colony. The ordinances made by the governors and councils of these colonies, are of course subject to the confirmation or disallowance of the King; and the uni' versal rule is, that no ordinance of this nature shall take cttect, or become binding within the colony until so con- firmed, except in cases of peculiar urgency, in which the governors are authorized to give innnediatt; execution to their laws. It is also a restriction imposed by the governor's commission and instructions, that the laws 95 (3) And some of them have al3o received CluiHcis of Jtislice under letters patent from the crown, im- posing in each a complete system for the administration of the law. See these documents in tlic Appendix. (4) *' The separate constitution and form of civil government here- tofore establislied and in use in the said colony of Derbice, we do hereby abrogate and dissolve, and do de' claro that the same hath become, antl henceforth shall be extinct and merged in the government of the colony of British Guiana." Com- mission of JMajor Cien. DX'rban, •1...V. Titi niuich. Idol, (see it la the .'\ppendix.) 26 A SUMMARY OV made shall not be repugnant to the law of England. (5) Ihe local legislature of Demerara stands upon ground peculiar to itself. (6) The Court of Policy is one of the ancient institutions of that colony, and its powers appear lormerly to have been very limited. But upon the capitula- tion It was stipulated by the colonists that no alterations should be made in their laws except with the consent of the Court of Policy, as the local legislature. The expres- sion. It may be presumed, was not inadvertently used by the colonists, although the full effect of it was probably not perceived by the commander of the British forces It assumed, with very little real foundation, the fact that the Court of Policy was the local legislature. Upon the authority of this language, however, the Court of Policy has ever since the capitulation assumed and exercised legislative powei-s of the most extensive nature. In the year 1835, the vahdity of its pretensions in this respect appears to have been called in question, for in that year an order of the King in Council was made by which all the existing ordinances of the Court of Polic- were de Glared to be in force until the end of the year mO, and imtil that time tlie council was to continue in the exer- cise of its legislative function., various provisions bein-^ made for reserving to the King in Council the right of disallowing any existing or future laws of the court. Before the expiration of the year 1826, this law appears to have been continued for another year. These orders ni council expressly stale that the recognition of the powers exerc.sed by the Court of Policy in making laws (5) This restriction is also en- forced by statute (3 & 4 W. 4, c. 59, s. 56, re-enacting s. 9 of 7&8 W. 3, c. 22,) with regard to the laws of all colonies wiiat- ever. See however, au exception to this rule in the case of Lower Canada, established by 1 W. 4 c 20. ' ' (6) That legislature has now be- come the legislature of the new co- lony of British Guiana. (Sec Gov. D'Urban's Commission in the Ap- pendix.) e expres- ^ used by probably li forces, fact that Jpon the f Policy xercised In the i respect hat year liich all vere de- 26, and le exer- is beh)^' 'ight of court, appears orders of the g laws, W. 4, c. now bc- new co- Jce Gov. the Ap- COLONIAL LAW. ^ is a measure merely temporary, and that some other method is to be substituted as soon as the necessary in- formation can be procured. The commission to General D'Urban, by which the united colony of British Guiana is nov/ constituted, has not, however, carried the inten- tion thus indicated into effect, but speaks of the Court 01 Policy as the existing local legislature of the colony. The remaining colonies, forming by far the most nu- ctHie colonies meroMS class, (and comprising a large proportion of the 0011111108*1X1 West India islands,) were originally acquired by con- "e^'Sfou'b" quest or cession, but having received constitutions under '•'^ crown, commissions from the Crown, comprising the power of framing laws for themselves in representative assemblies, are no longer subject to the legislation of the King in Council. The form of the Constitution enjoyed by the latter TiKir Constitu- class is in all respects as closely modelled, as local cir- *'"'" cumstances permitted, upon that of England ; and being therefore substantially the same in each colony, admits of one general description, l^o this description we now proceed; and as it is applicable to so many difl'erent settlements, it shall be given with some particularity of detail. (7) A commission, in the form of letters-patent under the great seal of Great Britain, accompanied by instructions signed by the King in Council, but not under seal, is directed to some individual as Governor, appointing him to govern the colony as the King's representative or (7) This (Jescri|)tion is found in a I'oiin almost cntiroly suitable to ilic purpose in Edwards's History of the West Indies, (vol. 2, ;J15, et seq.) njucli has therefore been liorrowcd froui tiutt v.iitcr, whose accuracy may he relied npoil, where his prejudices iis a colonist do not interfere. Another writer, (Stokes on the British Colonies,) and the Reports of the West India Com- niissiouers, have also been carefully consulted. S8 Of tllf UoviT. iiur. A SUMMARY OP -leputy ,u„U.„tm»,i„« hi,,, „ui, ,l,„ »„p,.o,„o executive. *o.i,j, ,ul „„„,i„j, ,„,,„i„ ,^,,,^„„^_ ^^,|^,^^_^^^j ^.^^^_^ 1. « wl„, |„.vc tl,c bc.t f„rtu„e. ,u.J ,„„rt c„.,»ido,„blc. u «co „, U,o c„l„,„, „» ,,i» c..u„eil of «.h.o, t„ ,.,»i.t urn „. I„. dohbor„.,„„s. He fa „U„ directed to ,„,„. "on, from ,„„„ ,0 n„„, „,„„„^, ,,,^ i„,,„bu„m,. a re .c.ci,t«t,vc assembly, who, «i,h the c„„e„,.™,ec of 'I'o governor and of the couneil, arc to have power to make laws suited to the exiaencics of the colony, hut (»s the eom,„,ssi„„ „,„„,|j, ji,„^,^) agreeable as nearly ^« m»y be to the laws of England. The eonnnission "'■'1 .ustrucfons, when first issued in respect of any colony have also coran.only authorised the eslablisl- ■nent of such courts of justice as might be found ne- cessary or expedient, and have provided that the law to be .ulmnistered in them shall be as nearly as pos- sible conformable to that of England. J''y;sl.ts and duties of the Governor, as exp,cssly Jehned by the commission and instructions, or settled .y constant usage and established construction, are as loJlows: He receives by courtesy the title of Excellency. _ "|.- .. Captam Oencal and Con,ma„der.in-Chief; and ■1 he happens to be a miUtary man. which is very co.„- ...only the case, he has the actual com,„and of all the and forces within his goverinuent ; but if he is a eivi- !■«". the c.o,„,„and in the field is of cou,se veste.1 in a ■ml.tary ofl.cer. He eomn.ands the .niUtia, and connnis- -ousall us officers. The ehiof-justice of the chief co,„. mon law court is generally appointed by the Crow,,, but the governor issues the commissions for the appoint- ment o. the assistant or puisne judges. He no.nlnates and supersedes the custodes of the several pa,ishes, jus- tlCes of the twiiro niwl -.*! i._ 1. .... •' ^ ' ' ""'^^ aijuoruinato civii oiiicersj (OLONIAL LAW. but in respect of some of the above appointments and dismissions, he is rcquiied to ask the advice of his coun- cil, lie is empowered to suspend any of the members of liis council (8) for misconduct, till tlie King's pleasure be known, transmitting his reasons to England ; and if the board is by this or other means reduced below a cer- tain number, he may, at least to a limited extent, fdl up tlie vacancy pro tempore. (9) He has authority, with advice of his council, to summon the Assemblies. He appoints the place of their meeting, and when met, he 29 (8) By tlie instructions to the Govcnior of Newfoiuullund, tlattMl '26lli July, 1832, (Ho. of Com. Faper, TOt), (he governor is ordered (s. 9) neither " to augment nor diminish tlie number of the nieni- Lers of the council, nor to suspend nny of them without good and suflfi- ciunt cause, nor without the consent of the majority of the said council, signified in council, after due exa- mination of the charge against »uch councillor, and his answer there- unto." A somewhat similar pro- vision is contained in the 4.")lh sec. of the su|)plementary commission to the Governor of Ceylon, issued on the 20lli March, 1033. It is be- licvcd, however, that thi-se restric- tions on the Governor's power are of very recent date, and that when Mr. Edwards and Mr. Stokes wrote his authority was as unlimited as is stated in the te.tt. The latter wri- ter indeed gives (p. ISO) a form of a governor's commission, which he intimates is an authentic copy of an existing commission, having only the munes of persons and places omitted. It contains these words : " and we do hereby give and grant unto you full power and authority to suspend any of the members of our said council from sitting, voting, or assisting therein, if you shall find just cause for so iloing." From the recital contained in the 45th section of the supplementary com- nnssion above mentioned, it ap- pears that the original commis- sion conferred an equally absolute power ; and even in the instructions to the Governor of Newfoundland it is said, " if it should happen that you should have reasons for sus- ])ciiding any of the members of our said council, not fit to be communi- caled to our said council, you may in that case suspend such member wiihout their consent." But the (iovernor is immediately to send an account of his proceedings to tlie Secretary of State, " together with liis reasons at large for such sus- pension." ('.)) By the commission to the governor of Newfoundland, he is empowered to fill up vacancies occasioned l)y death or absence, to the number of three, and no more. Sec. 7, Instructions, dated 26th .Tuly , 1832. riirliamentary Pa|)er, No. 70i, 80 A SUMMARY OP possesses a negative voiee in the legishture ; for without h.. consent no bill passes into a law, and (except „ certain colonies v^hce acts have been passir n'^in: , : „ of the leg,slatu.c) he ™ay. from time to time, at own d.sa.et,on adjourn, (1) prorogue, and .'issolve the Assembhes. He has the disposal of all such civil employments as the Crown does not dispose of; and wit -pectto such offices as are usually fiUcd up hy the But, h government, if vacancies happen, the governor aroomts p™ tempore, and the persons so appoin ed are sa,d to be entitled to all the emolument^ until they are superseded by the King's appointment of (1) This authority iii the Go- vernor to ndjouni a Representative Assembly appears at first quite irre- conciiahle with £„gHsI, notions of tJje rights and privileges of such an assembly. It is, however, thus pro- vidcd for in a governor's commis- sion:-"Andto the end that no- thing may be passed or done in our said council or assembly to the pre- judice of us, our heirs, or succes- sors, we will and ordain that you Uie said A. B. shall have and enjoy a negative voice in the making and passing of all Jaws, statutes, and ordinances as aforesaid, and you shall and may likewise, from time to time, as you shall judge it ne- cessary, adjourn, prorogue, and dis- solve all general assemblies as afore- said."— Stokes, 156. Mr. Stokes asserts, (p. 24a), but the words of the commission do not quite bear out the assertion, that " every governor is forbid to suffer the assembly to adjourn itself" The reason for vesting Hijs power of adjourning the assembly in the g„. vernor is thus st.:ted in an opinion of Attorney-General Pratt upon a question as to the powers of the council and assembly of Maryland. " Our House of Commons stands upon its own laws, the Lex Partia- wentum, whereas Assemblies in the colonies are regulated by their re- spective charters, usages, and Oie common law of England, and ill "ever be allowed to assume those privileges which the House of Com- •nons are entitled to jnstlv here, upon principles that neither can nor must be applied to the Assemblies of the colonies."—! Chal. Op. 263 4. A similar opinion is expressed by Mr. West (id. 232, et seq.) „„ „ general question as to a governor's right to prorogue an Assembly under adjournment without first allowing them to meet according to such ad- journment, and again by Attorney and Solicitor Generals Murray anil Lloyd, on a dispufe as to the pri- vileges of the Jamaica Assembly, Id. 296. -^ COLONIAL LAW. otliers, and until the persons nominated to supersede tliem arrive in the colony. (2) The governor claims the privilege also in extraordinary cases, and in some colonies has by the terms of his commission, the right of suspending, for misconduct, such civil offi- cers even as act immediately under the King's autho- rity or by commission from the boards of treasury and admiralty, in high and lucrative employment, (such as the attorney and advocate-general, the collectors of the customs, &c.,) and of nominating other persons to act in their room until the King's pleasure shall be known therein. To all which is added authority, when he shall judge any offender in criminal matters a fit object of mercy, to extend the King's pardon to him, (3) except only in cases of murder and high treason ; and even in these cases the governor is permitted to re- prieve until the signification of the royal pleasure. The governor has also the custody of the public seal of the colony, and in most cases presides solely in the High Court of Chancery. (4) In some few islands the council sit as judges with the governor in the Court of ai (2) Stokes, 184. Seeaiu-xception to this rule noticed post, p. 34, n. 9. (3) In some of tiie colonies it was tlie practice, and was said to be tlie law, to put into immediate execu- tion a sentence of death ngai" .y late aJts of Assembly been vested in the colonial bishops, of whom two have been within a few years past appointed for appointed from England. The change, thus earnestl_y desired and strongly reconiraended, will in all probability be effocted at the earliest possible opportunity, as, according to the description of the commis- sioners, it would be viewed in every colony as a most pleasing proof of Jiis Majesty's paternal regard for the welfare of the colonists. (See the Reports of the West India Commis- sioners passim.) (5) A similar change has also been recommended with respect to this court, or that the duties of the Or- dinary should be performed by a judge of some other court, who was appoiBtod from England. The in- stmetignt to the Governor of New- fuuiicHiMHl (House of Commons' Pa- per, No. 704.) would seem to inti- mate that the Bishop of Nova Scotia, within whose dioc^-se Newfoundland is situated, nmst now exercise the powers of an ecclesiastical judge within that diocese, for the governor (s. 49) is directed to be "aiding and assisting the said bishop in the exercise of his jurisdiction, spiritual and ecclesiastical, within the said colonies ; excepting only thegranting licenses for marriages and probates of wills." In the 53d section the power of granting these," commonly called the office of ordinary," is ex- pressly restricted to the governor alone. The exception of these from the usual powers of the bishop would imply, according to the well-known rule of legal construction, that he possessed all the other powers usually deemed in England incident to his office. Yet the act of the Assembly of the Bahama? (6 G. 4, c. 12.) re- cognising the appointment of the Bishop of Jamaica, speaks only of " his ecclesiastical jurisdiction over the clergy," and declares that " all laws, ordinances, and canons eccle- siastical, now in force in England, so far as the same relate to jurisdic- tion over the clergy therein, shall be in force in those islands;" and the lights of the governor as Ordinary of those islands arc by the same act ex- pressly preserved. (3 Rep. W. I. C. 2d series, p. 55.) COLONIAL LAW. the West Indies, viz. a « Bishop of Barbadoes and the Leeward Islands," and a Bishop of Jamaica, whose ju- risdiction also extends over the Bahamas and Honduras. The Bermudas and Newfoundland are under the see of Nova Scotia. The governor also presides in the Court of Error, (of which he and the council are judges,) to hear and de- termine all appeals in the nature of writs of error, from the superior courts of common law. (G) He is also vice-admiral within the extent of his go- vernment. As such he is entitled to the rights of jetsam, flotsam, &c., and in time of war he issues his warrant to the judge of the Court of Vice-Admiralty to grant commissions to privateers. Lastly, a colonial governor, besides various emolu- ments arising from fines, fees, forfeitures, and escheats, has an annual provision settled upon him by act of As- sembly for the whole term of his administration in the colony. (7) For, in order that he may not be tempted to prostitute the dignity of his station by improper con- descensions to leading men in the Assembly, he is re- strained by his instructions from accepting any salary, unless the same be settled upon him by law within the space of one year from his entrance upon the govern- ment, and expressly made irrevocable during the whole term of his administration of it. 33 (6) In consequence of tliisanange- nicnt the decision of a regular bred lawyer comes upon appeal before a military officer and a small number oC gentlemen, who, though highly honourable and intelligent, labour under the disadvantage of the want of a professional education. The result is a want of confidence among the cnionists i\s to the uniform admi- nistration of the rules of justice. The conmiissioners, in every in- stance, recommend that this practice should be altered. (Reports, VV. I C-) (J) In many colonics part of the go- vernor's salary is paid by the crown, viz. out of the 4| per. cent, fund, ur is provided for by the votes of the House of Commons. S4 II ^ A SUMMARY OF On the whole then, it appears that the powers with which colonial governors are intrusted arc most ample and transcendant, and more extensive than those which the laws of England allow the sovereign himself to exercise. In a government comprehending several islands (like that under which the Leeward Charibbean Islands were formerly consolidated) there was commonly appointed, together with the captain-general, or chief governor, a lieutenant-governor, who was next in succession. (8) Such officers are not usually appointed now. The in- structions to the governor of Newfoundland, however, dated 26th July, 1832, speak of such an officer, and contain a provision for carrying on the government in case of the death or absence of the governor, if" there be at that time no person commissioned as lieutenant- governor." Where an officer holding this rank is appointed he usually acts as lieutenant-governor of one of the islands included within the general government, each of which, in the absence of the captain-general fiom that parti- cular island, has its affairs administered by him, or by the president of the council, most commonly the latter. On the resignation, or absence on leave, of the cap- tain-general, a lieutenant-governor, if not present, is frequently sent over, who then succeeds to the supreme command and receives an allowance for the support of the dignity of the government. (9) (8) In theNoilh American Colonies, besides the governur in chief, (wlio resides in Lower Caniidn,) llieie is a lieutenant-governor. And tliere is an officer of tl>at ranl«, besides the governor in cliief, at the Cape, at Ceylou, and at New South Wales ; and such an officer is men- tioned in the commission to Genera] D'Urban, constituting him Governor of Brilisli Guiana, ns a person who " may be appointed to be our lieu- tenant-governor of our said colony." (9) " One full moiety of the salary, and of all perquisites and emolu- ments whatever." (Instiuclions to the Governor of Newfoundland, geth July, 183?, =. Gi.) COLONIAL LAW. A governor, lieute «ant-general, or lieutenant-governor, holds office only during the King's pleasure, and in case of oppression or other misconduct, any indivi- dual aggrieved may lay complaint against either of them before IJis Majesty in Council, and petition for his removal. (I) The Court of King's Bench in England also has cognizance of offences committed by colonial governors, or they may be tried before commissioners assigned for that purpose by His Majesty, (2) and their conduct is of course examinable, where other remedies fail, in Parliament. With respect to the Council, its several members are Of the Council in the first instance (as we have seen) nominated in the instructions accompanying the governor's commission ; and, in case of vacancy, the new appointment is by war- rant under the signet and sign manual, countersigned by the Secretary of State, and directed to the governor. Every governor is expressly instructed to transmit from time to time to His Majesty, the names of such of the principal inhabitants as are best qualified to supply va- cancies in the council; (8) and it is rarely that any person is appointed who is not previously recommended by the governor. (4) In Jamaica their full complement is twelve ; in some of the smaller West India Islands ten ; and in case of as many vacancies by death, absence, or sus- pension, as reduce the board to less than a number specially limited in each colony, the governor or com- mander-in-chief is empowered to fill up to that number, (1) Most;yni;. Fabrigas, Covvp. 175. It seems, however, tliat the power of the King in Council extends to removnl only, and not to further pii- nishment. (European Settlements, vol. 2, p. 302, and the case above quutcd.) (2) By virtue of the statutes 11 & 12 W. 3, c. 12, and 42 G. 3, c. 85. Vide 8 East, 31. (3) Tnstructions to the Governor of Newfoundland, s. 6. (4) Edwards, vol. 2, p. 338. d2 M A SUMMARY OF but no farther, and persons so appointed only act as councilors till the pleasure of the crown is known. (.5) Iheir privileges, powers, and offices, are these- Fn-st, they are by courtesy severally addressed in the coIon.es as "Honourable;" they take precedency next to he commander4n-chief ; and on the death or absence of thegovernor, lieutenant-general, and lieutenant-gover- nor, the eldest member of the council succeeds to the government, under the title of President of the Council, ^secondly, they are a council of state, the governor, or commander-in-chief presiding in person, to whom they stand m the same relation as the Privy Council in Great Britain does to the Sovereign. But although every colonial governor is directed by his instructions to advise with his council on most occasions, it does not appear that in his executive capacity, he is absolutely bound to abide by their advice. (G) It is conceived that he IS competent to act, in most cases, though in the absence of any special provision for that purpose, not only without, but even against their advice; but that his power to do so is confined to cases where the council act as part of the executive government, and not as part of the legislative government. His opposi- t.on to them in this la^haracter would consist of the (a) See the form of (lie comniis- siori, Stokes, p. 154. (6) In ilic supplementary commis- sion to the Governor of the Island of Ceylon (House of Commons' Piipcrs for 1833. No. 69fl,) are the following words, " And we do authorize you^ in your discretion, and if it shall i„ any case appear riglit so to do, to act in the exercise of the ,)owcr committed to you hy your said com- mission, in opposition to the advice which may in nny such case be given to you by the members of your said executive council." There is also a legislative council appointed in that island by that commission, but there appears to be no such privilege con ferred on the governor with reference to the advice of the hitler council. ns their functions more resemble those of the Parliament than of tlie Privy Council. Ife is required, as soon as convenient, lo transmit his reasons for such proceedings. COLONIAL LAW. exercise of his veto on the orditmnccs they might desire to i)ass. He may, it is true, by so doing, incur the King's displeasure, but his proceedings arc nevertheless crticient and legal within the colony. Thirdly, they are named in every commission of the peace, as justices throughout the colony to which they belong. Fourthly, the Council, together with the governor, or commander- in-chief, sit as judges in the court of error or appeal in civil cases from the courts of commmon law, but not from the Court of Chancery ; and in some of the islands some of the members sit with the governor in the Court of Chancery as assistant commissioners of the great seal. Lastly, the Council is a constituent part of the legis- lature, their consent being necessary in the enacting of laws. In this capacity of legislators they sit as the upper house, and in most of the colonies distinct from the governor. (7) They have the power of originating and rejecting bills, and of proposing amendments, (ex- cept in the case of money bills). (8) They claim pri- vilege of parliament, order the attendance of persons and the production of papers and records, ana convict for contempts, enter protests on their journals, after the manner of the House of Peers, and in some of the colonies have their chaplain, clerk, usher of the black rod, &c. (9) ^T (_7) Bj( the inslruclioiis given to llic (jovcrnor of Ncwfouiidliiiul, diited iitilli July, 1032, (House of Com- iiions' Papers lor 1832,N(). 704,) lie is dircclcil in wiiat manner to carry into elfect Ills cotiiniission as to form- ing a House of Assembly in lliat island. \\y the despatch accompa- nying those instructions and printed with it, the Council, it is said, •• will participate with the Assembly in the enactment of laws." The reaJons against this practice and the evils of it are forcibly stated, but the despatch declares that " the compensation which might atone for these evils is not obtained" by ihe opposite practice. (8) Edwards, vol. a, p. 332-3. (9) Edwards, vol. 2, p. 322, et seq. where may be seen an able state- A SUMMARY OP A territorial qualification docs not socni to be indis- pensably necessary to tlieir app.iinlnicnt, aa in tbe case of members cbo8en into the Asseu.bly. (I) The mem- bers of the council arc for misconduct subject to sus- pension by the governor till the King's pleasure be known, and the governor transmits the reasons of the suspension to England for His Majesty's inforn.ation. it 18 said too that they may be amoved by the governor, with the concurrence of the majority of the council in council assembled, (fi) but in the cases be- fore referred to, suspension, not removal from oflice, is all that is mentioned. They do not derive any emolu- ment from their situations. (3) V^ilr "' '^^'^ <^on«tit„tion of the House of AssaMi^ i« i" all respects copied, as nearly as circumstances will permit, from the example of the Parliament of Great Britain The freeholders are assembled in each town or parish respectively by the King's writ ; their suffrages are taken by an officer of the crown, and the persons elected, who, as well as their electors, in some colonies ut least, must possess a certain landed qualification, (1 ii-dw. ^^U3),(4) are afterwards commanded by royal ment and rtfntnlion of Jlie priidiii- Iwl and consUtulioiial objections to wliidi this branch of the plan of colo- nial legislature lias been supposed to be open. (1) Edwards, vol. 2, p. 33b. (8) 1 Ucp. W. I. C. p. 19. and sec ante, p. w, n. 8. (3) IRcp.W. I.e. p. 19. (4) B_y a proclamalioii accom- panying the instructions to the governor of Newfoundland, dated 26th Juf^, xas-i, the qualification of the persons to be elected and the electors are thus stated :— " Every man of the full age of 21 years and upwards, of sound undcralandiiig. and being our natural born subject, or having been lawfully naturaiizid, and n(!vcr having been convicted in due course of la.v of any infamous crime, and liaviiig for two years next inin»cdiately preceding the day of election occupied a dwelling-house within our said island as owner or tenant thereof, shall be eligible to be a member of the said House of Assembly." The sansc provisions apply to the elector, with the ex- ception that ills occupation of " a COLONIAL LAW. procliunution to meet together ut a certain time und place in tiie }>i'uclamution named, to frame atatuteM and ordinances for the public safety. When met, the oulhs of allegiance, ike, are administered unto each of thcui ; and a speaker being chosen and approved, the session opens by a speech from the King's represen- tative. The Assembly then proceed, as a grand pro- vincial inquest, to hear grievances, and to correct such j)ublic abuses as are not cognizable before inferior tribunals. They commit for contempts, and the courts of law have refused to discharge persons committed by the speaker's wann.t. They examine and controul the accounts of the pub'ic treasurer. They vote such supplies, lay such tuxes, and frame such laws, statutes, and ordinances, as the exigencies of the jjrovincc or colony require. Jointly with the governor and council they exercise the highest acts of legislation ; for their penal laws, which the judges are sworn to execute, extend even to life, many persons having suffered death under laws passed in the colonies, even before they had received the royal assent at home. (.5) ilvvelliiig-lioiise" is only leqiiircd to hu for one year. House of Com- mons Piiper, 1832, No. 70 i. (j) When nny bill has passed the two houses, it comes bcfoie the governor, who represents the King, and gives his assent or negative -is lie thinks proper. It now acquires the force of a law, but it must be afterwards transmitted to the King and Council in England, where it may still receive a negative, that lakes away all its ^-ftect. Eur. Sett, in iinierica, II. 298. The plan of allowing legislative assetnblic? to the cofonies h.^s been naturally extolled by those who derive the benefit. In a conversa- tion between Loril Chatham and Franklin, we find that celcbiatecl colonial agent making this remark, " that in former cases great empires had crumbled first at their extremi- ties, from this cause, that countries remote from the seat and eye of government, which therefore could not well understand their alFairs fur want of full and true information, had never been well governed, but had been oppressed by bad gover- nors, on presumption that complaint was diflkuit to be made and suj). 40 A SUMMARY OF The ordinances thus framed by the legislative body, with concurrence of the governor and council, 1 called Acts of Assembly, and constitute the local tute J & 4 W 4, c. 59, s. 5G, to this provision, that all Jaws, bye-laws, usages or customs at the time of the passing of the act, or which hereafter shall be in practice, or endeavoured or pretended to be in force or practice, in any of the British possessions in Ame- rica, which are in any wise repugnant to this act, or to Z rT •. 1 P^'"^'"^"^ ^^^^^ «^' l^ereafter to be made in the United Kingdom, so far as such act shall relate to and mention the said possessions, are and shall be null and void to all intents and purposes whatsoever." (6) ported against tlicm at such a dis- tancc. Hence such governors had been cncournged to go on till their oppressions became intolerable; but that this empire had happilj, formed, and long been in the practice of a method whereby every provh.cc was well governed, being trusted, in a great measure, with the government i>r Itself; and that hence had arisen such satisfaction in the subjects, and such encouragement to new settlc- "'enls. that, had it not been for the iate wrong politics, (which would Imvc Parliament to be omnipotent tliough it ought not to be so, unless •t woul.l at the same time be om- ntment,) we might have gone on extending our western empire, add- '"g province lo province, as far as the South Sea." Memoirs of Frank- lin. (6) This is a re-enactment almost '" the same words of u ,,rovision '•f|)caled by 6 Geo. 4, c. lOj, viz. tf'atof7&8 W.3.c.22.sect.9, upon the construction of which last- mentioned statute B. Edwards thinks •I'at it is meant to extend only to laws regulating ivnde, vol. 2, p. 36'2, (note) ; but there seems to be no' foundation for this opinion, 'Vha words of the enactment are as fol- lows:-" And it is further enacted that all laws, by-laws, usages or customs at this time, or which here- after shall be in practice, or endea- voured or pretended to be in force or practice in any of the said plan- tations which are in any wise re- pugnant lo the beforementionedlaHs or any of them," (viz. the statutes recited in the act, which are for re- gi'lating navigation and trade,) " so far as they do relate to the said plan, tations, or any of them, which are in any ways repugnant to this act, or to any other law hereafter lo be made i» tl'is kingdom, so far as such law shall relate to and mention the said |)lantations, are illegal, null and void, to all intents and purj)oscs wliatso- COLONIAL LAW. ^J Acts of Assembly, after being passed by the as- sembly and council, not only require the assent of the governor, as representative of the crown, but are also in all cases subject to disallowance or confirmation by the King in Council. All private acts, and in some instances public acts, arc passed with a clause sus- pending their operation till the pleasure of the King be known. In that case they have of course no effect in the colony till the royal will be ascertained. But in general, public acts are passed without a suspending clause, and when in this form, they come into legal operation in the colony immediately on receiving the governor's assent, and so continue until notice is given there of their disallowance at home. (7) As the mode of proceeding in taking the King's plea- sure at home, as to the allowance or disallowance of colonial acts, is a subject that is perhaps imperfectly understood by the public, it may be convenient to offer a full account of it in this place. On the arrival at the colonial department in England OfH.eallow- ofacts passed by the Governor, Council, and Assembly ""'^''"'•'J"'- ,, P c XT- T»T • w.n/ij Hllowiiiice of (he ot any ot His Majesty's colonies in the West Indies, A^isof Assem- the course pursued is said to be as follows :— The acts ^'^' of the session are referred by the Secretary of State to tlie counsel for the colonial department, who is re- quired to « report his opinion upon them in point of law." By this estabUshed form of expression is under- stood to be meant that the counsel is to report whether the acts respectively are such as, consistently with his commission and instructions, the governor was autho- rized to pass; whether, in the language of the statute, ever." And it uill be ob^erv...! unfavourable to Air. Edwards' con. that tlie wordnig of the 3 & 4 VV. 4, struetion. c. 59, s. 36, is at ieast equally (?) 1st Report, W. I, C. p. 6. 4« A SUMMARY OP '•""'' ", '" «»> l«w "".de in .hi, kingdom soL thev niav h.v. u purposes for which :::er:^"-'-°-'"---co:.^^^^^^^^^^^^ Dy this report, are then transmitted to the President o he Council, with a letter from the Secrerv " « e lot f:„d ;: '"''""'t "^^'^^ "'^ 'o«.3% 7,:; eouneiirirrrruLi'";^^^^^^ "-"i - .^n.heae..arerererredtotherL'f ;Z:^^^^^^^ ate dZtdT ''""■^ r^'""^ ™'' "-'""onsl n on r o U '° '■'^"°" ."■ "'« King in Council their opi- -- :^d.:::xrnititr^^^^^^ difficulty. The acts Z I ;7 ^"''''^" "^ ^^^^^*' opin'o? W^ f ""'' ^''"^"'-General for their T^adeenterintotieeon'Z^ti^ra^:— :; V* iiie committee. A renoi^ fiT.i« *k /-< ^^ xtpou tiom the Committee of COLONIAL LAW. Trade is then addressed to the King in Council, and in this report all the acts of the session of the Colonial Assembly are classed under three heads ; first, if it is thought proper to disallow any act, the report contains a full statement of the grounds of the objection which may exist to it. Secondly, if any of the acts relate to measures of general and peculiar importance and in- terest, it is recommended that a special order in council should pass for the confirmation of them. Thirdly, the great majority of the acts of each year being usually little more than business of routine and con- tinual recurrence, their lordships are in the habit of advising that such acts " should he left to their opera- tion" If this report is adopted by the King in Council, orders are drawn up respecting such of the acts as are comprised in the two first mentioned classes. No colonial act, unless passed with a suspending clause, can be disallowed except by a regular order of th? King in Council. (7) The Clerk of the Council then addresses to the Secretary of State for the Colonies a letter, an- nouncing to him the decision which has been adopted respecting all the acts of the session, and transmitting to him the original orders in council for confirming or disallowing any particular acts. The Secretary of State communicates the result to the governor of the colony, and at the same time conveys to him the original or- ders (8) in council. A list is also made out of the acts which have neither been confirmed nor disallowed, with an intimation that they are to be left to their operation. From the preceding statement it appears that com- paratively few of the statutes passed in the colonies re- 43 i (7) Sec post, |). 44. wriUci); tlic really oiigiiml order (8) That is, the first sepanilc being only the entries made in the piece of paper on which ihc oider is Couuciis books. 44 A SUMMARY OF ceive either the Jireet confirmation „, disallowance of the King. It ,s elearly understood that m long as this preroga ,v. ,s not exereised, the act continues in force umu^r the qualified assent .hich given by the go! ve.nor m the colony itself on behalf of the King. I, i, tte r"""' " " ■"'"'™ '""" "'^ King .nay at any . no. however re,note, exercise his prerogative of dis- a low-ng any colonial act which he has not once con- firmed by any order in council. This, however, (says the learned wr.ter fron, whom the whole of the pre- cedmg account is taken,) (9) may be numbered among those constitutional powers of the crown which have been dormant for a long series of years, and which would no be called into action except on some ex- t.eme and urgent occasion. It is believed that no ms'ance has occurred in modern times of the disallow- ance of any colonial statute after the notification to the governor that it would be left to its operation. By an order in council of the 15th January, 1800 .t- declared "that in all cases when His Mljestv^ conflrmafon shall be necessary to give validit an. it M 7°^' J"^^^'' by the legislature of any of H. Majesty s colonies or plantations, unless His Ma- jesty s eonhrmtion thereof shall be obtained within hree years from the passh.g of such act in any of the .a.d colomes or plantations, such act shall be consi- dered as d,sa lowed." This order has been sometimes supposed o lay down a rule applicable to all descrin- t ons of colomal statutes. It is however apparent fro „ tl e words of the order itself, from the .elon of the e se, and from the understanding of the public officers ... England, that such is not the sound construction o (9; Mr. CoiniuissionerDffairis, 1 Report, p. 8?9, COLONIAL LAW. 45 I'eal effect of the order. It was made to remove a difficulty wfiicli had arisen respecting one particular class of colonial statutes, those namely which contained a clause suspending their operation till the pleasure of the King was known. This is the only description of statutes respecting which it can be said that His Ma- jesty's confirmation is " necessary to give them validity and effect." Without the assistance of such a general rule, it would have been impossible to know in any particular case whether the statute would or would not at some future time be called into operation, an un- certainty peculiarly embarrassing in reference to pri- vate acts, which invariably contain a suspending clause. (1) The acts when passed are deposited in the Colonial Secretary's Office ; (2) and official copies of such of them as have been sent home are also kept in this country ; those prior to 1782 in the office of the Board of Trade, those of subsequent date in the Colonial Office. In 1782 the business of reviewing the acts of the colonial legislatures previously to their allowance by the King in Council, was transferred from the Board of Trade and Plantations to the office of the Secretary of State for the Home Department, and afterwards to the Secretary of State for the Colonies, in whose office are now to be found all certified copies of acts, and other official documents since that period. (3) Though, from the preceding account of the colonial P"wer and prerogative of prcrogativ the crown. (1) Tlie whole of tlie preceding matter rehitive to tbc disallowance or cunfirniation of colonial acts is co- pied from the valuable report of Mr. Coiinnissioner Dwarris on the Ad- ministration of Civil and Criminal Justice in the West Indies, printed by order of the House of Commons of .5th .July, 1825. (2) 1st Rep. W. I. C. 123; 2d Rep. .59. (.'3) Smilh's Preface to the Acts of Grenada, p. xi. 46 A SUMMARY OP legialatm-ea it appears that their powers are ,„ost efficient am extensive, it „i!| be found nevertheless, upon eonsHleratiou of the whole that has been pve- "...«!, that the dependency of the colonies on, and t hen- alleg,ance to, the crown of Great Britain, and also their proper subordination to the British Parha- mcnt, are secured by strong and proper demarcations : for among various other prerogatives, the King reserves to lumself no. only the nomination of the several go- vernor,, the members of the council, and most cf L pub he officers of all descriptions, but he possesses also at the same time, as we have seen, the right of dis- allowmg and rejecting all laws and statutes of the colonial assemblies even after they have received the ^sent and apj^obation of his own deputy in the colony. Hence the affirmative voice of the people in tliel^ representatives is opposed by three negatives, the first n lie Council, the second in the Governor, and the third in the Crown, the last of which possesses likewise the power of punishing the two former branches by dis- mission. If they presume to act in opposition to the royal pleasure ; nor is the regal authority less efficient over the executive power within the colonies than overthe legis- T', ^\^r""°' " """""""'y CI.«nceIlor bv his office, hut whether assisted by his council, as in 'fiar- badoes and some few other places, or presiding solely in this high department, an appeal (as already stated) I.CS to the King in Council, in the nature of a writ of error, from every decree that he makes; and the like beity of appeal is allowed from his judgment, when sitting with the council upon writs of error, from the common law courts. (4) The reason assigned in the COLONIAL LAW. books far allowing such appeals is this, that without them the rules and practice of law in the colonies might by degrees insensibly deviate from those of the mother country, to the diminution of her superiority. (5) Again, the King, as supreme head of the empire, has the sole prerogative of making peace and war, treaties, leagues, and alliances with foreign states; and the colonists are as fully bound by, and subject to, the consequences thereof, as the inhabitants within the realm. (6) He has also the prerogative of regulating all the colonial military establishments both by sea and land, quartering troops in such towns and places in the plantations as he may deem best, augmenting them at pleasure, and retaining them in the colonies at all times and seasons, as well in peace as in war, not only with- out but against the consent of the Assemblies. (7) But, on the other hand, there are the same limits to Taxes. the royal prerogative in the colonies as in the mother country, (8) the King having no right to impose taxes, or levy aids of any description in a settlement having a 47 but " it is ill His Majesty's power, upon petition, to allow an appeal in cases of anj' value." 2 Clial. Opin. 177. This right is expressly re- served to the crown, not only by many of the charters ofjuslice, but also by the Privy Council Bill, 3 & 4 W. 4, c. 41. (5) Vaiighan, 402 ; Show. Par. Cas. 33, (C) B. Edwards, vol. 2, p. 353. (7) The same writer says that these latter rights must be admitted with some limiiution, p. 354, hut does not explicitly slate the nature of that limitation, nor does he ad- vance any sufficient reason for de- nying its full operation to that branch of the prerogative. (8) The prerogative in the West Indies, unless where it is abridged by grants, &c., made to the inha- bitants of the respective provinces, is that power over the subjects, considered either separately or col- lectively, by their representatives, which, by the common law of the land, abstracted from all acts of parliament and grants of liberties, &:c.,from the crown to the subjects, the King could rightfully exercise in England. 1 Chal. Op. 232, 233. 48 H n A SUMMARY OF ssr*"""""-"'"'-'-^-'"' repi of ,!, , '7; 'T ^^'^"^« '^^P^Wic officers, for .overno,, at such tune and to sucli extent as the pubhc exigencies njay require. (2) ^ (9) Cnmpbelli;. Hall. Cowp. 204 (1) Even before the separatioi,' Of the American states, though the extent of the Parliament's authority was not settled, this limitation of the royal prerogative was well under- stood. Franklin, in a Jet.er to a friend, dated 12th March, 1778 states the ancient established re' gular method of drawing aids from the colonies to be thus :—•• The occasion was alwaj^s first consi- dered by their sovereign in bis privy council, by whose advice he directed his Secretary of State to «rite circular letters to the several governors, who were directed to lav Ihem before their Assemblies. I,, those letters the occasion was ex plained, for their satisfaction, with gracious expressions of His Majesty's confidence in their known duty and aflection. on which he relied that they would grant such sums as should be suitable to their abilities ''O'alty, and zeal for his service '' Franklin's Memoirs, p, agj. J„ l"s celebrated examination before tlio committee of the House of Com. 'nonsini766, he makes a similar statement, but adds, that ;„ f^,,„ tlie requisition had usually not been to grant money, but to raise, clothe and pay troops. ' (2) Franklin, in his examination, says that such a case could not be supposed as that an Assembly would »ot raise the necessary supplies to support Its own government. '< \n Assembly that would refuse it must want connnon sense, which cannot be supposed." .f'-^'"""8''a'n slates, in his Colo. nial Policy, (published in 1803) that the expense of the Jamnica civil establishment is altogether de- frayed by colonial taxes; that the contingent charges a.nounted i.. tiMt 8000/. currency is also settled yearly upon the crown by the Revenue Act, 1728. out of\vhich thegovernor receives 2.500/" With respect to Barbad'oes a„d COLONIAL LAW. The Leeward Charil)bee Ishni's, the Virgin Islands, (1 Feb. 1774,) and the Island of liarbadoes, (12 Sept. 1G63,) are also expressly made subject by acts of their own Assemblies to a duty of four and a half per cent., in specie, on their exported produce, granted originally by most of them in consideration of different acts of royal favour and indulgence. The grant was made by Barbadoes (though not till after a strong resistance) in order to put an end to the proprietary government and the claims under it, and at the same time to settle the right of the then holders to their possessions, (B. Edw. vol. l,)and by the Virgin Islands as the price at which a representative Assembly was to be granted them. In their petition to the King they promise that if such an assembly was conceded, they would grant an impost of four and a half per cent., " similar to that which was paid in the other Leeward Islands." The King granted the prayer of the petition expressly on the above condition. The proclamation for calling the Assembly together was dated 30th No- vember, 1773, and it met on the 1st February, 1774. Its very first act was the establishment of the promised duty, (B. Edw. vol. 1, p. 460-1). The attempt to ob- tain a similar grant from the Assembly of Jamaica had long before utterly failed. That island possessed an Assembly, and there was no other boon for which it 49 the Leeward Clmribbce Islands, lie states tliat part of their civil expen- ses is paid out of the four and a half per cent, fund levied upon them to the use of the crown, and that the rest is defra^-ed b^ direct taxes in these islands ; that the inhabitants of Grenada, St. Vincent, and Domi- nica also contribute in a iiuj,e pro- portion to the public expenditure; vol. 1. but that the expense of the civil establislnuent of the Bahamas and the Bermudas is chiefly borne Uy Great Hriiain. In this work will be found much valuable information on the subject of colonial (inanee, of a kind too minute for the purposes of the pre- sent sketch. Sec Colonial Policv, pp. 5<18— 560. 19 A SUMMARY OP was willing to pay so largo a price. Tl.c matter was the subject of a bitter contest between the Crown and Its representatives on one part, and tlie House of As- sembly and people of Jamaica on the other. It is well described by Bryan Kdwards, who thus records (vol. I, p. 17o,) the sort of compromise that terminated it •— "In the year 1728 the Assembly consented to settle on the Crown a standing irrevocable revenue of 8000/ per annum on certain conditions, to which the Crown agreed, and of which the following are the principal, 1st, that the quit rents arising within the island (then estimated at 14G0/. per annum) should constitute a part of this revenue ; 2d\y, that the body of their laws should receive the royal assent; and 3dly, that aJIsuch laws and statutes of England as had been at any tune esteemed, introduced, used, accepted, or re- ceived as law in the island, should be and continue to be the laws of Jamaica for ever. Tha Revenue Act, with this important declaration therein, was accordingly passed ; and its confirmation by the King put an end to a contest no less disgraceful to the court at home, than injurious to the people within the island " The produce of this duty (which forms what is called the four and a half per cent, fund) is payable into his Majesty's exchequer ; (3) but out of it certain sums are allowed by His Majesty's government towards (3) But it is said that flie pay- nient in upecie is no longer required. Colonial Policy, vol. 1, p. 5,jo. j| is believed that the four and a liulf percent, duly is, and for many years lias been, paid in eacli colony by the delivery of four and a half pounds of sugar, or other produce out of .very 100 pounds to the Officer of tlie customs there, who receives the same on belialt of the Crown, and ships it for England, where it is disposed of by an autho- nsed agent, and the amount re- ceivcd jiaid into the Kxchequer. h^ some of the colonies the planters would not have been able to pay the value in ret.dy money ; and had they themselves shipped the produce to this country, they would ncccssarijy matter was frown antl use of As- It is well ^ords (vol. lated it : — tl to settle ! of 8000/. lie Crown princiiinl, land (then nstitute a of their k\ly, that 1 been at ed, or re- inue to be ^ct, with 3ordingly m end to me, than what is payable t certain towards lialf of the r Knglaiid, / an autlio- inouiit re- leqiier. In e planters to pa^ the J had they I'odiico to icccssariiy COLONIAL LAW. the salaries of the governors of these and other colonies, exclusive of what is granted to those ollicers directly by the Colonial Assemblies. (4) u have iuciirn-d the udditionul charges of freight and insurance, wiiicli woidd prubahly have made the . iily on (lieni ecjiial (o a tux of r'juble or trcbh- its nominal nmoinit. IJryan Kduards siijs, (vol. 1, j). -114,; that after the year 1735 n new mode of collecting the four and a half per cent, duties was adopted, wliicii made them more prolitable to the Crown, but he does not parti- cuhirize either the new or the old mo54. The same high authority after wards observes, that "'ilie ceded islands were never snl)ject to the four and a half per cent, iluty. An ullenipt was made by government to extend these burthen!: to them immediately after tlie peace of Paris, (1763,) but the (lucstiun wits fully discussed before the Court of King's IJench in the case of Grenada. The colony prevailed, and tiie same judgment was lield to free the other settlements, Dominica, St. Vincent, and Tobago." lb. 535. The case of Grenada was this : — Tlic crown hud by letters patent, dated on tlie 9th April, 1761, ap- pointed General Melville governor of Grenada, with power to sununun a General Assembly to ordain laws for the government of the colony. On the '20tli of July in tlie sume year letters patent were issued di- recting the imposition of the four and a half per cent, duties on that island. Mr. Campbell resisted the payment of these duties, and the Court of King's Uench lield that the latter instrument was a violation of the first, and was tlierefore void. Camp- hell V. Hall, Cowp. 204. (4) Kd wards, vol, 1, p. 464, et seq. Certain pensions and grants wholly unconnected with the colo- nies, arc also charged on tlii» fund ; but it has been publicly stati^d in the House of Commons tliat no fur- ther pensions are to be cliarged upon it, and tlic fund is iiov, carried to the public account, and made part of the consolidated fund, 1 Wm. 4, it ci>i ^- it e2 #1 I i C'ourti of Jus tic*. A SUMMARY OF Wi,l,r«pece to the Ca„rU ofJuMn; tl,o„«l, thoir 10 Kmg , co,nm,ssio„ and in,tractiol,» to tho governor tl.c,r denomination, qualitj,, „„,„|,er and narticnL.r' by the legislature of the colony. The Court of Chan eery. ,n which the governor generally sits ,. ^ole jug an. exerc.es ,,o«.er. similar to those possessed .y the In most of the colonies these courts princfnally con- ^ «t of a Cour, „/ Chancer,,,-. Court uniting the juris- d.c.,cns of the AV,,^', Benck and Co„,„.ol Pkal tng and, „ CouH of Appeal and Error, „ C„„« of quontly called a Court of Grand Session,) and in colo- n.es where slavery exists, a Slave Co,.rt, L post, p OS) The,e are also m most of the colonies juMcel of the P^aoe wnh jurisdictions similar to those of En.l dl magistrates. -L^'ibUsii infl!'n.l 'T '"'■";"'■=""■'"• "' ""=»« ^veral courts (as nfe.„ble from the general principles laid down in •. former part of the chapter) is such as the roy com nnss,ons, conferring a constitution, the acts ". emhly oracts of the British Parlian.ent extend ng to the colony, may have established. And the commis- .onshave usually directed that the statutes to 1 "^^0 .^ he CO ontal legislatures thereby sanctioned, an." Zllt\ "•'"■"f' ''^ ""' '""'-'^ "f i-'fce thereby (•>) 1 Clial.Op. IS.!. i ■ \\ m tOf.ONIAL I-A\V. llu' luwa ol" I'lngl.iiul. {(>) Hut r.owtT Caiuula is an ex- ception. (7) In some islanils it has been declared by act of Assembly, that the common hiw of England, ex- cept so far as altered J)y their own statutps, is in force there. (8) It may be laid down therefore, as a general 63 (ti) Sec coinmisgion cslnbli»liiii(» tliu coiistilulion (if the Grcimdii or Soiitlicm Clinribbce Island govuni- iiii'iii, 17(i3. Lord Carlisle's |mtfiit as to lliirbailocs, I clia]). I, I6'i'.>, and tliu cliartcrs of justice fur the ':()loiiii-s in geiuTiil. (7) For lliougli that colony lias re- ceived tbecriminal laws of England, i'ct the ancient code of France is is- tablisliod there in all civil cases. Soon after the cession of the province of Quebec in 1763, the law of Eng- land, both civil and criminal, was administered in the provincial courts, not in pursuance of any regular au- lliorily, but because the English settlers had iii''ii(iice enough with I be local go\ernment to |)rocure the tempornrj' establishment of English courts of justice; but the first Que- bec Act, 14 (Jco. 3, c. 0:5, was passed at a time wlien the discord prevailing in the neighbouring pro- vinces rendered it i)eculiarl_)- neces- sar_y to conciliate the French in- habitants of Lower Canada. Willi tliis view the 8lh section recoanizes llie old Canadian law as the rule of judgment in all civil matters, though bv the 11th section the criminal law of England was retained. Upon the (livisun of tlie province of Quebec into the two provinces of Upper and Lower Canada by I lie Canada Uijl of 171)1, (31 G. 3, c. ;•!,) the Legibiative Assembly of the Upper Piuviiice inimediatelv e>lablished the Kiiglisli courts in tliis hiUer colony, and introduced the law of England in all cases civil and criminal. l\y a portion of the 31 Geo. 3, c. 31, the holding of lands in Lower Can.idn was regu- lated. The ti Geo. 4, c. o9, was passed to explain that net, and both are recited and their powers ck- tended by the 1 Wni. 4, c, 20, which empowers the King to assent to laws relating to the descent, &c , of lands in Luwer Canada, though such laws may be repugnant to the laws of England. (8) By act of the Leeward Cha- ribbec Islands, of 1705, No. 31, (Howard's Lawj, 386,) sec. 9, it is " declared that the Common Law of England, as far as it stands unal- tered by any written laws of these islands, or some of them, confirmed by your IMajcsty, &c., or by some act or acts of Parliament extendim' to these islands, is in force in each of these your Majesty's Leeward Charaibce Islands, and is the cer- tain rule whereby the rights and liroperiies of your Majesty's good subjects inhabiting these islands are and ought to be determined, and that all customs or pretended cus- toms or usages contradictory thereto are ille<,',al, null and void." A si- milar declaration was inserted by the Jamaica Assembly in the reve- nue law of 17'J0, as one of the con- ditions oil which they granted to the Crown the revenue of OOOO/. a year. And ilic loyal comiiiissions esla- biijliiiig t!ie coiistilulioiis of iIk; ill 11 H •4 p 54 A SUM MAR y OF proportion, that i„ all ...ses not oihei-wi^c provided for, the law of England i, tl,e law of that class of the colonies now under consideration. And in this is to be .tnderstood the statute as well as the con.mon law of England; but only so much of the statute law as ex- 2! T" , "'""^ ""' ''''""' "^ constitution under he royal commission, and as is in its nature now applicable to the new colonial establishments ; (9) for Bnt,sh statutes passed «„ee the establishment of such conshtutton do not (as we have seen) apply, unless expressly or by necessary inference extending to the eolo„,es. nor those passed j,nor to its establishment, if meltTl) '" ''"'' "' '""''' '" "'^ »™ -'*- Such appears to be in general the state of law on rt^. subject, (2) but where the royal commission has not estabhshed the English law, and where it has not 1 arhament, it ,s conceived that upon the general prin aplcs formerly stated, (ante, p. 3,) that law can lie I force in a conquered or ceded colony, subject, ho!;! (liffeieut colonies frequently direct tliat the statutes nmdc by the iegis- lalmes therel.y granfetl shall not" ho ivpugnant to the laws of England, and that the courts of justice thereby authorized shall administer justice agreeably, as nearly as possible, (o the laws of England. (9) In the Dahanias and in Ja- "laica acts of Assembly have been passed, declaang what part of the statute law shall be consi.lored as binding in these colonies. That ut tlie 13ahamas was passed (as an- pears by 2d Ileport, VV. I. C. p. tiJ.) in the year 17<)<). n ,,^,„i tained a clause to suspend its (,pe- ration till the King's pleasure should be known, and his Majesty's assent was soon after signi/ied. (1) Such at least is the limila- tH>n in colonies actpiired by occu- l'""cy; iind it applies no doubt equally to the cases now under con^ .^KieratJon. See the subject of the "j'p'ieabiiity of j.:„.ii,|, ,,,,^ ,^, ^^^^ colonics well discussed in Dr. Story's Counnontaries on the American Constitution, vol. 1, p, 13l-_i4'2. ('-') It is a subject which the eolonlal lawyers consider as imper- 'ectly understood, but their opinions "PPear to coincitic with (he views bore taken. See 1m U^.p. yv I C I'-'i; 2d Kep. 01. 3 provided lass of the hia is to be non law of law as ex- Jnstitution atiire now ts ; (D) for It of such ly, unless ig to the shment, if Jw settle- f law on ssion has ; has not British ^ral prin- have no ct, how- sty's assent tlic liiiiidi- li by occ li- no doubt iiiulur con- fct of the law to the Dr. Story's Aiiicricaii i~-l4'2. vliicli the !is iniper- r opinions llie views VV. I. C. COLONIAL LAW. ever, to the important exception already noticed, as to laws and statutes of the mother country, which are of universal policy, and are avowedly meant to extend to all existing and subsequently acquired possessions. Tho rules of practice and pleading are usually set- tled in each colony by some act of Assembly, or by the regulations of the courts themselves. (3) They differ every where, in various points, from those of the EngHsh courts, though framed in a great measure upon that model. There are no records on parchment, but copies of the proceedings are made out upon paper, and kept by the proper officer. The prosecution and defence of suits is in most colonies conducted by barristers and attornies, as m England. In the West Indies these characters are often united in the same persons ; but they are also often separated. In some colonies it is required, as a qualification for a practising counsel, that he should have been called to the bar in England. In others it is sufficient that he should be admitted or sworn in as a barrister in the courts of the colony. Attornies and solicitors in the West Indies, not qualified as counsel, are in some colonies required to produce a certificate of having served a clerkship for five years either in England or the West Indies ; in others such certificate is not required. (4) In almost all the colonies there is an Attorney-General, and in many of them a Solicitor- General, who arc appointed from home by warrant ^ ':\ H 'A (3) The light of each court to Rcpoils, "i'i^, Tiiat case related lay down tiie rules by which its only to the superior courts of this proceedings were to be governed was distinctly asserted in the judg- ment delivered l)y Mr. Baron Jiay- ley on behalf of (ho rest of the judges in the case of Mellish v. Richardson, decided in the House of Lords, 1 Clark and Finnellv's country, but the principle was stated in the most general terms. (4) 1st Rep. VV. I. C. p. 121 J '<;d Hep. l.^'l — 1.'>7, where more miimte inrormution on this subject will be found. i I 56 A SUMMARY OF under the signet and sign manual, and wiiose duties are similar to those of the same officers in Enghind, but whose actual services are in some respects more extensive, as the whole business oi' instituting and conducting criminal prosecutions against free persons is often exclusively vested in these public functionaries. (5) In the Court of Chancery the governor is president, assisted, m some settlements, by the members of coun- cil, m which latter case the decision is by majority of votes. The judges of this court are supposed to have all the authority of the Lord Chancellor of England in the English Court of Chancery, except in cases wholly inapplicable to the colony. Under this general juris- diction they sometimes also deal with cases of lunacy, though that would seem, upon principle, rather to be- long to the governor alone, as the general depository ot the King's prerogative. There is no system of bank- rupt law ; but the principle of cessio bonorum is ac- knowledged in the establishment of jurisdictions in some colonies for the relief of insolvent debtors; and this remedy extends to persons who are not traders. Orders and decrees of the Court of Chancery are en- forced, as in England, by process of contempt and se- questration ; but it has also a process on a decree for paj^ment of money, which is in the nature of an execu- tion, and operates on the goods and lands. (G) The appeal is to the King in Council, subject to certain re- gulations which there will be occasion to notice more particularly when treating of the general subject of appeals. *' The Court of King^s Bench and Common Pleas generally combines the jurisdictions of the two courts (5) iHep. VV. I.e. 19U; lb. " series, ««i) ; j R,.|,. 2 scries, ,>. C- 118. (6) 1st Hep. \\, I.e. p. SI. 3se duties England, 3cts more iting and persons is laries. (5) )resident, of coun- ajority of 1 to have igland in !s wholly 'al juris- limaci/, 3r to be- pository :)f bank- n is ac- tions in I's ; and traders, are en- and se- ree for execu- I The :ain re- e more ject of Picas courts 1. 2J.. COLONIAL LAW. which are held under those denominations in England ; but instead of tlie practice of fines and recoveries, cer- tain other modes of proceeding, with similar objects in view, have been devised by the different colonial legis- latures. The puisne judges of this court are usually appointed l)y the governor, with the advice and consent of the Council, and commissions are made out to them under the seal of the colony. They are selected from such persons resident in the colony as appear to be eligible from their characters and circumstances, but have seldom been educated for the legal profession. They hold their offices at the pleasure of the Crown ; and the salary of the chief justice (for the puisne judges in general act gratuitously) id paid, when there is a colonial legislature, by grant of the House of Assembly: in other cases it is provided, for by the votes of the House of Commons. The trial hij jury is in force in most of those colonies now under consideration ; but special juries not being easily adapted to the circumstances of a small society, are in use in very few instances. (7) The commission- ers, however, in recommending that lawyers should alone be placed on the judgment seat, have advised, in many instances, that the class of gentlemen out of which the assistant judges are now selected should be em- ployed to furnish special juries in their respective colonies. The proof of debts in this court, whether by specialty or simple contract, when the creditor re- sides and the debt occurs in England, is made in a manner peculiar to the colonies, under the regulations of the statute 5 Geo. 2, c. 7. By this act it is provided that in such cases it shall be lawful for the plaintiff and defendant, and also to and for any witness, to verify 57 \ (r) Thi'yurc ill use iu Tobagi.. tico tlicie, mid aro struck in the same Special juries iirc iiiiowii In prac- manner as in Engiaml. 1 Rep. 81. 58 A SUMMARY OP and prove any mutter or thing before the chief magis- trate of the city, &c., in or near which he resides, by aftdavit or writing upon oath, or if a Quaker, by affirmation; and every affidavit or affirmation certified under the city seal, in manner thereby directed, and transmuted to the colony, shall be of the same force ^nd effect there, as if sworn vivd voce in open court. (8) No notice is required by the act to be given to the opposite party on the occasion of making such affida- vit before the magistrate, but the proceeding is entirely ex parte; and on production in the colonial court of he affidavit so sworn, it is allowed in proof of the debt, though such evidence may of course be encountered by ^^va voce testimony on the opposite side. In the West Indies judgments bind the real estate, and, according to the practice in most islands, they are not registered or docketed. They are, however, entered in the Prothonotary's Office. (9) Writs of execution in the Wes Indies are executed by the Provost-Mavshal, who IS he general executive officer of all the courts of aw and also performs the duties of Serjeant-at-Arms « the Court of Chancery. They run against goods, ands, and body, all at once ; but the levyl each is to be made not simultaneously, but in succession, and in 1 e following order, -produce, negroes, land, body. (1) Under these writs, equities of redemption, and all other ecim^ajle as well as legal interests, may be taken. Chattels are, and slaves were, taken in execution, put up to sale, and sold to the highest bidder. Lands and houses are appraised by a jury summoned for the „ur- pose, and if not redeemed l,y the defendant within a (8) 'I'he coinniissioiicrs rciiiark tliat notwitliManding the clear tcnus of this law, til.; court at Barhadocs alious it to be u valid objection to sucli ail aflkiavit, that it has been made cither by plaintitr or dcft-iid- aiit. 1 Hep. W. I.e. 37. (1>) istIle,..VV. i.C.,,.J8. (1) 1st Rep. VV. I. C. 39. COLONIAL LAW. certain period, aie delivered and conveyed at that price to the plaintiff. Executions are often taken out without being levied, but are kept as securities, to be enforced by the different creditors in succession. They are used as securities, and are assignable ; but the assignee must proceed in the name of the assignor, (2) The real estate being bound from the issuing of the judgment such executions have, as to land, all the effect of suc- cessive mortgages; but the creditor whose writ is executed first, gets a priority as to personal estate. Of the Court of Ordinary, the governor is sole judge. The probate of wills, granting letters of ad- ministration, and marriage licenses, form the subject- matters of his jurisdiction. All wills are proved, but the probate is conclusive only as to personalty. The solemnities requisite to the valdity of a will are nearly the same as in England. Marriages are either by banns or by license from the governor, in his capacity of Ordinary. They have no canonical hours in the colonies, and marry at what time they please. A direct and immediate appeal lies from this court, but it is doubted in some colonies whether that appeal is to the King in Council, or to His Majesty as head of the church (3). In Jamaica, the Attorney-General of the colony, and the Secretary there, in answer to the com- missioners, stated that the appeal lay directly from the Court of Ordinary to the King in Council. (4) The Court of Admiralti/ or Vice-Admiralty has two branches, a Prize and an Instance Court, both held by commission issuing from the High Court (5) of Admi- 59 W m Ml; QZ) 1 Rep. W.I. C. 81. (3) 1 Rep. W. I.e. p. .J.3; but sec also pp. 104, U);!. C'i) 1 R'jp. Oil series, Too ; ib. 269. (6) 1 Rep. W. I. C. 43. Colo- iiial Courts of Admiriilty Imvc not, however, been uniformly held by autboriiy derived from the Ad- miralty of England alone, for upon a question regarding an appeal from the Admiralty Court of Nevis, Mr. 60 A SUiMMARY OV ralty in Engla.ul, and before a judge vvhcni that com- mission appoints. Both possess the same jurisdiction as IS exercised by the correspondent courts in England, as nearly as circumstances will permit. The Pri/J Court is of course held only in time of war. The cases m the Instance Court consist of seizures by the Custom House, disputes relative to seamen's wages, bottomry bonds, &c. The statute S & 4 Wm. 4, c. 59, s. 64 the act under which the trade of the colonies is now regu ated, enacts " that all penalties and forfeitures which may have been heretofore or may be hereafter incurred under this or any other act relating to the customs or to trade or navigation, (6) shall and may be prosecuted, sued for and recovered in any court of record or of Vice-Admiralty, having jurisdiction in the colony or pIar4ation where the cause of prosecution arises, and in cases where there shall happen to be no such courts, then in any court of record or of Vice- Admiralty, having jurisdiction in son^e British colony or plantation near to that where the cause of prosecu- tion arises : provided that in case where a seizure is made in any other colony than that where the forfeiture arises such seizure may be prosecuted in any court of record or of Vice-Admiralty having jurisdiction either AUoniej'-Geiieral Norllii'j said, " If tliat court was licld under the late King's commission for govc-niiiig the Leeward Islands, as the pi-ti- lioner takes it to be, alleging that tlie president and council had power only to appoint, but not to sit them- selves as a Court of Admiralty, or il' the sentence was given by the president and council of Nevis, as the council there, in both cases the appeal ought to be to Her Majesty ill Council : but if (he presidfitf :iik1 council held a Court of Admiralty by authority derived from the Ad- miralty of England, the appeal is to be to Ihe Court of Admiralty in England, and so it was lately de- tcrnn-,K.d by Her Majesty i„ Coun- cil." 2 Chal. Op, s^27. As to the manner in which appeals from the decisions of Vice-Aduii- ••'Ity Courts are i:o.v regulated, sec post, A|)peals. ((i) The words in italics were not in tlie6G. 1, c. lu, s. .^7, <,f "liich this chuise is in other respects uii exact copy. COLONIAL LAW. in the colony or plantation where the forfeiture arises, or in the colony or plantation where the seizure is made, at the election of the seizor or prosecutor : and in crises where there shall happen to be no such courts in either of the last-mentioned colonies or plantations, then in the court of record or of Vice-Admiralty having juris- diction in some British colony or plantation near to that where the forfeiture accrues, or to that where the sei- zure is made, at the election of the seizor or pro- secutor." The Court of Vice-Admiralty has also jurisdiction in certain cases under the Slave Abolition and Re- gistry Acts. This court is held as occasion requires. Its officers are the King's Advocate, the King's Proc- tor, the Registrar, and the Marshal. Appeals were formerly made from the Instance side to the High Court of Admiralty in England. From the Prize side they were made to the King in Council, subject to the regulations of the prize act, but now appeals of any sort from the Vice- Admiralty Court must be made to the King in Council. (7) Besides the civil jurisdiction, there are Admiralty Sessions, held by a separate commission, for the trial of murder, piracy, and other offences committed on the high-seas. (8) This court is composed of the judge of the Admiralty, (who presides,) the members of council, and all flag-officers and captains on the station. We must now proceed to the Crminal Court, which has jurisdiction over all crimes committed by free persons. The president is usually one of the judges of the King's Bench and Common Pleas. The course of proceeding is by indictment, found by a grand and 61 (7) See post, "Appeals." (8) 1 Rep. W. I. C. 43, 83. If !|! • til :il A SUMMARY OF tried by a petit jury, as in England. (9) After sen- tence, tlie governor has a power of reprieve and par- don in ordinary cases ; but in treason and murder tlie crown alone can pardon ; and all that can be done by the governor is to suspend the execution, and send home a report of tlie case for His Majesty's deter- mination. The Slave Court was formerly held for trial of capital offences committed by slaves. It was in different colonies differently constituted. In most of the West India islands judges consisted of justices of the peace, who assembled not at any sesa^ns or fixed time of meeting, but at times and places ap- pointed pro re nata in each particular case, and the trial commonly took place as soon after the charge was made as their own convenience and that of the wit- nesses permitted. In most islands two or more jus- tices were required in order to form a court. In the Slave Courts, it is said by an able writer, (1) to be a general principle that the slave is considered as sub- ject to the criminal code of England when it is in force with free persons. The commissioners, liowever, re- ported exactly the reverse with regard to Barbadoes.(2) All the authorities agree that he was answerable for offences created by the slave laws of the particular colony. (3) In none of these courts was any such pro- (9) As to the ]ierson b;y wlioni llie indictment must be presented to tlie grand jury, see ante, p. 55. In many uf the colonies tiie grand jury examine witnesses for tlic defence as well as for the prosecution. Tiic commissioners, however, considered this practice an evil, and recom- mended its abolition. See Reports of the West Tndir. Commissioners. (1) Stephens's Delineation. (2) 1 ;.ep. w. r. C. -ly. (;>) The above question may now be considered settled by the Mcry ge- neral terms employed in the 17th section of the Slavery Abolition Act, 3 St 4 W. 4, c, 73, wliich declare that " no act nor order in council siiall authorise any person but a special justice of the peace to intiict i COLONIAL LAW. ceeding known as a bill of indictment, or any pre- liminary examination of the charge by a grand jury, or by a superior court. In some islands under late me- liorating acts, freeholders, or white inhabitants, to the number of six, seven, or nine, were, in capital cases, sunnnoned and sworn as a jury to try the question of guilty or not guilty, the law being left to the justices alone. But this regulation was not the usual one ; for in some colonies the justices were required to asso- ciate with themselves on the trial of capital charges three or more freeholders or housekeepers, who jointly with them decided questions of law as well as of fact. 68 wl)i|)piiig, or niiy otlier corporal pimisliiuent, on iiny iippri-nticed labourer: provided that this act shall not cxeuipt anj; apprenticed labourer from such corporal punish- ment as by any law or police regu- lation is now in force for the punish- ment of any olFence, it being equally uppUcahle to all other persons of free coiitiitjoji," The SlavcCourt too would seem to be abolished by the same act. That court was formerly com- posed of two justices of the peace and three freeholders, who were judges both of the law and the fact. But as none but special justices can now inflict any corporal punishment on ajjprenticcd labourers, nor even they unless such punishment be " equally applicable to all otiicr persons of free condition ;" and as the negro, from the condition of a slave lias been elevated into that of a free apprenticed labourer, and is classed with " other persons of free rondition," the men on whom the power of the court was to operate nr) longer exist, and the very founda- tion of its jurisdiction is gone. It may be supposed that by the force of (he proviso in the 19tli section, to the cilect that " nothing therein contained shall be construed to ab- rogate the powers vested in the supreme courts of record, or vhe superior courts of civil and criminal jurisdiction in any of the colonies," the Slave Court is still competent to judge of oirenccs committed by slaves, liut, in the first place, the Slave Court never was a court of record. (1 Rep. W. I. C. p. 48.) In the next, it may be doubtful whether it can properly be considered one of the " Superior Courls of Civil and Criminal Justice," (certainly not, if the phrase is to be construed in the conjunctive sense) ; and lastly, if it docs really come within that de- scription, then the proviso in the I'JtIi section will be opposed not only to the general spirit of the act, but to the positive enactment of the l"lh seclion, and nnist therefore be considered to be overruled. I t 64 A SUMMARY OP and had an equal autliority witli tliem in adjusting the punishment, M'hen of a discretionary kind, a nmjority of votes being suflicient for either purpose. The proceedings were in general wholly by parol, except that the warrant or mandate for execution (it is believed) was generally in writing, and that an arrest- warrant was issued to take the slave into custody to answer the charge. In Dominica, however, it was di- rected by law that the procecdinrr^ ,. the trial should be recorded by the clerk of the crown, who was re- quired to attend the court for that purpose ; and there was a similar law in the Bahamas and Jamaica, with the addition that the charge should, previous to the trial, be reduced into writing and read ; but it was provided that the same should not be questioned for any defect of form. These provisions, however, did not extend to any but felonious oflfences ; nor to any felonies but such as were punished with death or transportation. From the decisions of .hese courts it is said there was no appeal, and without the intervention of the governor or any other authority, they might award execution ; which was awarded in general immediately after sen- tence, and carried into effect by the marshal or his officers. (4) Where complaint was made of offences, not capital, committed by slaves, (o) a still more summary form of (4) Su-pliciis's Delineation, p. 402. The slave, wlien convicted, is at once iiangcd upon tiie nearest tree. (1 llep. W. I. C. 54.) In son., co- lonies llicic is no appeal against a sentence on conviction, in others there is. (1 Hep. W. I. C. 210.) In Grenada it is the practice, at the governor's request, for tl;e justice to lily the trials before the governor previous to llie sentence being exe- cuted ; but there is no legal obliga- tion on them to do so. (1 Rep. W6.) The conniiissioncrs, however, doubt the statement thus made to them, as they consider it irreconcilable with the governor's power to re- l)ricve, or the King's to i)ardon. (Id. ib.) (."■') That was, of course, com- mittcd b_\' them agninst persons nt.t standing in the relation of master ; COLONIAL LAW. proceeding took place. A single magistrate summoned the owner to produce the slave-heard the evidence, and either dismissed the complaint, or ordered a punish- ment by whipping, according to the nature of the offence. As a F 'curity against any illegal addidons to the number of slaves by secret violations of the acts for the abolition of the slave trade, systems of registration were, under the authority or by the influence of his Majesty's government, adopted in the different slave colonies. As a necessary result of the Slavery Abolition Bill, the registry of slaves, as such, must cease ; but as the question of freeman or apprenticed labourer will now take the place of that of freeman or slave, there will pro- bably be some similar mode adopted to ascertain the num- ber of apprenticed labourers, with a view to prevent the illegal increase of that number by any person entitled to their services. It has bcf n thought advisable, there- fore, to give a sketch of the mode of slave registration. On the 28th March, 1812, an order in council was passed for the establishment in the Island of Trinidad of a general registry of slaves. The details of this measure are very voluminous. Nothing beyond the general outline need be stated in this place. Within one year from the promulgation of the order, - very proprietor in the island was required to make o the same day, to a public office created for the purpose, a full return of the number of his slaves, in which the names, ages, and tature of each were to be specified. These were denouiinated the original returns, and the 05 for with respect to those in which the master was personally concerned, he naturally preferred the domestic fonini. iiaslcr m "i i A SIIMMAKV OF rpcortl of them, the original rogixtry. An exact com- pliance with these n-gnhitions would, it is evident, fur- nish a perfect enumeration and description of all the persons within the colony, who at the time at which it might bo made were in a servile condition. Deaths and births, enfranchisements and importations from other British Settlements, would, liowever, continually be changing the numbers of this class of society, and the original registry would consequently become erroneous. Annual returns, therefore, were directed to be made by all the proprietors, specifying upon oath, with similar minuteness of description, every slave who had been added to their stock since the latest return, and certify- ing in what manner every diminution of their numbers had taken place. This registry formed the sole evidence in all judicial proceedings upon the question of the ser- vile condition of persons resident in Trinidad, or of the right of property in a slave. On every question of slave and free, the production of an extract from the registry, certified under the hand of the proper officer, Mas made essential to the proof of the master's title! The absence of such an entry was declared to be con- clusive evidence of the freedom of the asserted slave. There were also provisions for remedying involuntary errors in the return, and for protecting the rights of in- fants, lunatics, and married women, and of persons claiming a future or reversionary interest in a slave, it being obviously equitable that they should not suffer for any neglect in completing the registry, when they were unable to prevent it. Of all returns, whether ori- ginal or annual, exact duplicates were directed by the order to be transmitted to the Colonial Office in England ; but the present place of deposit is an office COLONIAL LAW. (established in this country by act of pailiainent (C) passetl since the date of the order) for receiving and registering such returns from all the colonies. It was also provided that no colonial registrar should himself be allowed to possess any slave ; that no suit instituted under that order, by any person claiming his liberty, ngainst a pretended owner, was to be barred on the ground of the alleged servile condition of the plaintiff or prosecutor ; and that the evidence of indifferent per- sons, being or alleged to be slaves, should be admitted in all actions or prosecutions commenced under the order,— subject, however, to all just exceptions to their credit. Such is the general substance or outline of the Tri- nidad order. By subsequent orders of the King in Council, a similar system, with frequent differences in detail, was extended to Saint Lucia and the Mauritius. And in consequence of earnest recommendations from the crown, the other slave colonies have each been in- duced to establish, by local acts or ordinances, some plan of registration professing in general to be modelled upon that of Trinidad, but falling, in many cases, much below that model, and rendered nearly useless by the imperfection and inadequacy of the provisions. By the recent Slavery Abolition Act the task of pro- G7 (6) 39 Gen. 3, c. 1-20, passed 12lli July, 1819. By this act it is provided tliut a registrar shall be appointed to receive returns of slaves to be transmitted from any of His Majesty's IJritisii and foreign plantations, and that after the 1st January IB'^O, e\ery sale or con. veyance, &c. of any slates to bt excculed wiilun the United K\ag- dom, to iif in trust for any of Hi« Majesty's subjects, sliul/ be \oi(l, unless the slaves arc registered and the registered names set forth in the deed or instrument ; and that no slave shall be deemed duly regis- tered unless a return of such slave has been duly received from the co- lony where such slave resides, within four years next preceding the conveyance. f2 ^S A SUMMARY OF viding for the details by which that act is to be carried into full effect is left to the different legislative assemblies of the colonies themselves. All the West Indian colonies, with the exception of British Guiana, Trinidad, and St. Lucia, have legislative assemblies. British Guiana has a sort of local assembly (subject, however, to the power of the King in Council) called the Court of Po- licy, (see ante, p. 26.) Trinidad and St. Lucia are strictly speaking, therefore, the only colonies now existing in the West Indies without the form of self-government. They will probably receive directions as to the mode of carrying the Slavery Abolition Act into effect by order in council. ^pI^:^ "'j ^" ""^ ^'""'"'^ *° *^^ '^'^'^ h^^d of our inquiries, imposing Regu- ^^" "ave to Consider certain acts of the British Parlia- Coionies." "'' ™^"* imposing regulations on the colonies in general. The authority of Parliament over the colonies has been exercised chiefly in the establishment of certain commercial regulations that were designed to secure to the mother country (in imitation of the practice of other states) the full and exclusive benefit of her colonial possessions. Of these, the well known law passed in the 12th year of Cha. 2, c. 18, commonly called by way of eminence the Navigation Act, was the founda- tion. The restrictions of that act were extended and increased by many subsequent statutes, forming altoge- ther a general system of navigation law, which, as far as it regarded the colonies, was said to embrace two distinct objects ;— first, the augmentation of our naval strength by an entire exclusion of foreign shipping from our plantation trade ;— secondly, the securing to Great Britain all the emoluments arising from her colonies, by a double monopoly, viz. a monopoly of their whole im- port, which was to be altogether /ro»i Great Britain, COLONIAL LAW. and a monopoly of their whole export, which (as far as it could serve any useful purpose to the mother country) was to be no where but to Great Britain. (7) But as this system was wholly abrogated, and a new code of trade and navigation established by certain acts passed in the reign of His late Majesty, it is un- necessary to enter farther into the consideration of its provisions. (8) That new code originally consisted of several acts from 6 Geo. 4. c. 105, to c. 1 14, both inclu- sive. It was extended by the addition of several acts passed to amend and explain these, and has been, in the course of the last session of Parliament (1833) completely repealed by the 3 & 4 Wm. 4. c. 50, which recites the former acts, and declares that " it has become expedient again to consolidate and further to amend the said laws." That object has been effected by the enactment of several other statutes. (9) 69 S; ■■ i (7) Tlie iiHpolicy of this system, in regard to both these objects, is ex- plained and strongly reprobated in the able article " Colony," in tiie Sui)p!eincnt to tlie Encyclopffidia Britaniiica, attributed to tlie pen of Mr. Mill, and has also been ihe suL - ject of severe and merited censure in the PIousc of Connnons. (8) An accurate account is given in Mr. Reeves' well-known ivork on Shipping, of so much of this law as then existed. (9) The following is alistoftlic slaiutcs passed in ihe present year. The provisions of such of thcin as may be deemed important with relation to the colonies will be given in Ihe Appendix. As each act is intended us a substitute for some particular statute repealed by the 3 i- 4 Wm. 4, c. 50, the chap- ter of the repealed statute will, for the purpose of easy reference, be inserted in a parenthesis imme- diately after the description of the act which supersedes it. 3&4 W. 4, c. 51.— An Act for the Management of the Customs. (6 G. 4, c. 106.) 3 & 4 W. 4, c. 52.— An Act for the General Regulation of the Cus- toms. C6G. 4,c. 107.) 3 & 4 W. 4, c. 53.— An Act for the Prevention of Smuggling. (6 G. 4, c. 108.) 3 & 4 W. 4, c. 54. — An Act for the encouragement of British Ship- ping and Navigation. (6 Geo. 4, c- 109.) 3 & 4 W. 4, c. 55.— An Act for the Registering of British Vessels. (6 G. 4, Clio.) 3 & 4 W. 4, c. 5ti.— An Act for 70 A SUMMARY OP It is provided that, with certain exceptions afterwards mentioned, goods, the produce of Asia, Africa, or America, shall not be imported from Europe into the United Kingdom to be used therein. (1) That (with certain exceptions) goods, the produce of Asia, Africa, or America, shall not be imported into the United Kingdom to be used therein, in foreign ships, unless they be ships of the country of which the goods are the produce, and from which they are import- ed. (2) That no goods shall be imported into the United Kingdom from the Islands of Guernsey, Jersey, Alder- ney, Sark, or Man, except in British ships. (3) That no goods shall be exported from the United Kingdom to any British possession in Asia, Africa, or America, nor to the above mentioned islands, except in British ships. (4) That no goods shall be carried from any British possession in Europe, Asia, Africa, or America, to any other of such possessions, nor from one part of any 3uch possessions to another part of the same, except in British ships. (5) Thai no goods shall be imported into any British possession in Asia, Africa, or America, in any foreign ships, unless ships of the country jf which the goods granting Duties of Customs, (6 G. 4, c. 111.) 3 & 4 W. 4, c. 57.— An Act for the Warehousing of Goods. (6 G. 4,c. 112.) 3 & 4 W. 4, c. oO.— An Act to Grant certain Bounties and Allow- ances of Customs. (6 G. 4, c. 113.) 3 & 4 W, 4, c. 69.~An Act to Regulate the Trade of the British Possessions Abroad. (6 G. 4, c. 114.) (1) 3&4W^.4,c.54, S.3. (2) Sec. 4. And as to what shall be considered a ship of the country, see sec. 15. (3) Sec. 6. (4) Sec. 7. (6) Ss.9& 10. COLONIAL LAW. are the produce, and from which the goods are im- ported. (6) That (with certain exceptions) no sliip shall be ad- mitted to be a British ship, unless duly registered and navigated as such, viz. navigated by a master who is a British subject, and by a crew whereof three-fourths at least are British seamen ; and in coasting voyages about the United Kingdom and the Islands of Jersey, &c. the whole crew must be British seamen. (7) That vessels under fifteen tons burden, wholly owned and navigated by British subjects, though not regis- tered, shall be admitted to navigate in the rivers and on the coasts of the United Kingdom and of the British possessions abroad to which they respectively belong ; — and all boats, British-built, owned, and navigated, under thirty tons bui'den, and employed in fishing on the coasts of Newfoundland, Canada, Nova Scotia, or New Brunswick, shall be admitted to be British vessels, though not registered. (8) That all ships built in the British settlements at Hon- duras, and owned and navigated as British ships, shall be entitled to the privileges of British registered ships in all direct trade between the United Kingdom and the British possessions in America and the said settle- ments. (9) The master and eeamen are not to be deemed Bri- 71 V- 1 i (6) Sec. 1 1. And as to -vhHt shall be considered a ship of tlie country, see sec. 15. (7) Sec. 12. (8) Sec. 13, (9) Sec. 14. Although this " Set- tlement of Honduras" has been once denied in a court of law (see ante p. 2, n. 1,) to be a Britiaii Colony, it is now treated as sucii, tiiough not under that name, and in the 3 & 4 W. 4, c. 52 (Customs Regulation Act,) it is declared, s. 119, "that 'British Possession' shall be con- strued to mean colony, plantation, island, territory, or settlement." The authority of a governor is vested at Honduras in a " superintendent " ajipointed by the crown. 72 A SUMMARY OF tish unless natural-born or naturalized, or made deni- zens, or having become subjects by the conquest or cession of some newly acquired country, or by having served in His Majesty's ships of war. Natives of India born within the limits of the British dominions, are not to be deemed British seamen. Every ship (except those required to be wholly navigated by British sea- men) which shall be navigated by one British seaman of a British ship, or one seaman of the country of a foreign ship, for every twenty tons burden, shall be deemed duly navigated. (1) No British ship to depart any port in the United Kingdom or in the British possessions abroad unless duly navigated. British ships trading between places in America may be navigated by British negroes, and ships trading eastward of the Cape by Lascars. (2) The proportion of British seamen necessary for the due navigation of British ships may be altered by the royal proclamation. (3) The importance of the act 3 & 4 W. 4, c. 59, by which the trade of the British possessions abroad is now regulated, is such that it has been deemed advisable to print the greater part of it at length, it will therefore be found in the Appendix. It may be sufficient to state here that no goods are to be imported into or exported from any of the British possessions from or to any place other than the United Kingdom, or some other of such possessions, except into or from certain free ports, of which a table is given in the act; but with a proviso that His Majesty may extend the privileges of the act to other ports not enumerated. (1) Sec. !(>. (3) Sec. '20. COLONIAT, LAW. It is also provided that the privileges granted (4) by the present law of navigation to foreign ships, shall be limited to the ships of those countries which having colonial possessions shall grant the like privileges to British ships ; or not having colonial possessions shall place the commerce of this country upon the footing of the most favoured nation ; unless His Majesty by order in council shall deem it expedient to grant the whole or any of such privileges to a foreign country not fulfilling those conditions. The act then gives a table of certain kinds of goods, the importation whereof into the British American colonies is either absolutely prohibited or subjected to certain restrictions. The act contains tables of certain duties which it imposes upon goods imported into any of His Majesty's possessions in America, Newfoundland, or Canada. These (with the exception of any duties paid under any act passed prior to the 18 Geo. 3,) are to be paid over to the treasurer of the colony, to be applied to such uses as shall be directed by its local legislature, and where it has no legislature, are to be applied m such manner as directed by the commissioners of His Majesty's Treasury. (5) Such are the main provisions of the present system of navigation law so far as regards the colonies. (6) Its general effect, it will be observed, is that, subject (3 t , i I ^:l (4) 3 & -t W. 4, c. 59, s. 5. Tliis would bf; more properly ex pressed as the privileges " not pioinbi'-r ," for it is evident, by reference to the ' ■.u oftlie regulations above ciied, . iit those privileges all arise nom u./t lieing included in prohibitions. (3) S. i;3. (6)()ur present pur|>(i!cl:as of course led us to consider tlie navigation law solely as it regards llie Colonies. But the general system known by the name of tlia navigation law, involves the universal commerce of the coun- try, and its objects are said on the liighest authority to be the fisheries, the coasting iri.de, the European Uade, the commerce with Asia, 71. A SUMMARY OF to certain modifications and conditions, foreign ships are now permitted to import into any of the British possessions abroad, from the countries to which they belong, goods, the produce of those countries, and to export goods from such possessions, to be carried to any foreign country whatever ; (7) while, on the other liand, the trade between the mother country herself and her colonies, and also all intercolonial trade between the latter, is still strictly confined to British shipping.(8) As Parliament has rarely had any motive to make laws for the interior government of the colonies, ex- cept in cases relative to navigation or trade, the in- stances of acts extendin^r (o them in other cases are not extremely numerous. (9) The following are per- haps the most important : By 7 & 8 W. 3, c. 22, sect. 12, it is provided " that all places of trust in ourts of law , or which relate to the treasury of the said islands, (1) shall, from the making of this act, be in the hands of the native born subjects of England, or of the said islands." The 6th Anne, c. 30, makes regulations " for as. certaining the rates of foreign coins in Her Majesty's Africa, and Amtirica, and the inter- course with the Colonits. (Speech of Right Honourable William Hus- kisson on the Nuvigation Law, l'2th May, 1826.) In all its branches, those whicii relate to the fisheries and the coasting trade excepted, the most important alterations were introduced by the new code passed in the 6 G. 4, and are adopted with further alterations in the present statutes. (7) 3&4W.4, c.59, s, 5. (8) ftlr.Huskisson, in his speeches of tlie 21st and 2oth March, 1825, .ind 12th May, I8?6,(now in print) has given a full explanation of the policy pursued by this country in the new commercial regulations. (9) Indeed in some cases, where they exist, they are not easy to find, because particula- acts have been extended to the colonies, in some cases of mere municipal policy, by sections of which no notice is taken in the general indexes to the sta- tutes. (1) Meaning (as cppenrs from the context) the islands belonging to His Majesty in Asia, Africa, or America. COLONIAL LAW. plantations of America, and as to paying or receiving silver coins at a higher rate than tliat fixed by this statute." The act 4 Geo. 1, c. 11, entitled An Act "for the further preventing Robbery, Burglary, and other Felonies, and for the more effectual transportation of Felons, and unlawful exporters of Wool, and for declaring the law upon some points relating to Pirates," was by the 9th section extended to " all His Majesty's dominions in America." That act was repealed by the 7 & 8 Geo. 4, c. 27, s. 1, and the acts for amending the criminal law passed since that time, in lieu of the statutes then repealed, have been confined to England. The act 5 Geo. 2, c. 7, entitled " An Act for the more easy recovery of Debts in His Majesty's Plan- tations and Colonies in America," (and commonly called Becktbrd's Act,) provides that " in any action or suit in any court of law or equity in any of the said plan- tations, relating to any debt or account wherein any person residing in Great Britain shall be a party, it shall be lawful for the 2ilaintiff or defendant, {2) and also for any witness, to be examined or made use of by affidavit, (or in case of Quakers, affirmation,) before any mayor or chief magistrate of the city, &c., in or near which he is resident, which affidavit certified and transmitted," (as directed by the act,) " shall be of the same force and effect in the colony as if the defendant had appeared and sworn the same matters in open court, provided that the addition and place of abode of the party swearing or affirming be stated in the 75 (2) Tim provisions of this act were extended to New South Wales and its dependencies hy theol Geo. 3, c. 15, which is, ex- cept tlie necessary alteration of names, and the omission of the word negroes in the 4tli section, a cj\-,y of the act of Geo. 2. ! I. ! i 70 l-l A SUMMARY OF oath." And it is provided " that debts due to His Majesty may be proved in the same manner." (3) The same act also provides that " houses, lands, negroes, and other hereditaments and real estates in the said plantations belonging to any person indebted, shall be liable to all debts owing by such person to His Majesty, or any of his subjects, and shall be assets for the satisfaction thereof in like manner as real estates are by the law of England Hable to the satisfaction of debts due by bond or other specialty, and subject to the like remedies and proceedings for seizing, selling, &c., and in like manner as personal estates in any of the plantations respectively are seized, sold, &c., for the satisfaction of debts." That part of the clause which respects negroes had been repealed by 37 Geo. 3, c. 119, and of course would cease to operate when the Slavery Abolition Act took effect ; but not- withstanding the repeahng statute of Geo. 3, negroes were in fact taken in execution in satisfaction of debts in the colonies at the time of the Commissioners' Re- port. (4) By 4 Geo. 3, c. 15, sec. 41, certain penalties im- posed by that act for the violation of its provisions relative to the trade and revenue of the British Colonies in America, are to be recovered in any Court of Record or of Vice-Admiralty in the colony or plantation where the offence may have been committed. And this re- gulation is still further extended by 3 & 4 Wm. 4, c. 59 the act by which the trade of the Colonies is now mainlv (3) See observations on tliis act, Stokes' Laws of Colonies, o71, 392, to 394. See also, as to the slate of law before the act. Coin. Dig. Assets, C; Bicns, A. 2 ; 2 Vent. 358; 2 Chan. Ca. 145; t Vern. 433, 469, (4) See 1 Rep. West India Com. 38, 39, and their observations on the construction put on the act 5 Geo. 2, c. 7, by the law^ ers in Bar- badocs, ante, p. ,58, and 1 Hep. VV. I. C. p. 37, 38. COLONIAL LAW. regulated. Section 64 declares " that all penalties and forfeitures which may have been heretofore or may be hereafter incurred under this or any other act relating to the customs, or to trade and navigation, shall and may be prosecuted, sued for, and recovered in any Court of Record or of Vice-Admiralty having jurisdiction in the colony or plantations where the cause of prosecution arises, provided that in cases where a seizure is made in any other colony than that where the forfeiture accrues, such seizure may be pro- secuted either in the colony or plantation where the forfeiture accrues, or in the colony or plantation near where the seizure is made ; and in cases where there shall happen to be no such courts in either of the last mentioned colonies, then in any Court of Record or Vice-Admiralty having jurisdisdiction ui some British colony or plantation near to that where the forfeiture accrues, or to that where the seizure is made, at the election of the seizor or prosecutor." The statute 12 Geo. 3, c. 20, which provides that persons standing mute on their arraignment for felony or piracy shall be convicted of the otfence charged, is expressly extended to " His Majesty's colonies and plantations in America." (5) By 13 Geo. 3, c. 14, mortgages of freehold or lease- hold estates in the colonies in the West Indies to foreigners are made valid, and may be sued upon, under certain restrictions, notwithstanding the mort- gagees may be alien enemies. By the 1 Wm, 4, c. 4, which recites the inconveniences 77 (5) By the 7 h « Geo. 4, c. 28, guilty, and proceed as if he had s. 2. if any person stands mute on pleaded. But this statute is con- h.s arraignment, the Court shall, if fined by the reciting part to Enir- it thnik nt, enter a plea of not land. 7S H A SUMMAUY (»r that nnjsc from the putiMits of public odlccis in tlio coin- iiicH becoming void on the dnnisc of the late King, it is <'nacti'(l (balall p()\v(>i.s vosUul in govtM-nors ofcolonioM, ^'C, appointiMl by Cwo. I, nIiuII continuo until new patents .shall be is.sufd by his present JMnjesly, and nuulo known in suih colon v. By «ec. 'ri it is declared, •' that no patent, coinuiissiou, warrant, or other autho- rity for ilic exercise of any oflicc or employment, civil or military, within any of J lis Majesty's plantations or possessions abroad, deternunable at the pleasure of His Majesty, or of any of his heirs and successors, shall, by reason of any future demise of the Crown, be vacated, or become void, until the expiration of IScalei dar months next aUer any such demise of the Crown as aforesaid." Hy the Ji \Vm. 4, c. J.'(), reciting the .'54 Geo. ii, c. 184, the 59 (Jeo. 3,c.G7, the 1 (Jeo. 1, c. Go, and the 1 & 2 (•CO. 4, c. liil, (relating to the auditing of colonial ac- counts of (\'ylon, Mauritius, iMalta, Trinidad, and the settlements at the Cape of (Jlood Hope,) it is stated that three conuuissioners had been appointed under the authority t>f those statutes, and that accounts were then pending before them, and that " it was expedient that as well the said accounts, as all other accounts of the receipt and expenditure of the colonial revenues, and of sums granted in aid thereof, should be examined by the conuuissioners for auditing the public accounts of Great IJritain;" in pursuance of which it is enacted, that after the 5th of April, ISiW, the audit of all ac- counts of the reci'ipt and expenditure of colonial reve- nues shall be transferred to the commissioners for auditing the public account : of Great Britain. And by sec. li it is declared, that all superannuation or retired allowances granted by the 54 Geo. 3, c. 184, shall continue to be paid out of the respective revenues of ths colonicH COLONMI LAW. »>f' Ceyloii, MauritiuH, Malta, Trinidn.l 79 and thr. Cap.. «f (.„o(l Uo,,,., i„ Hud, manner as the coinmihsioners of the treasuiy may direct. I he '.i & 3 Wm. 4, c. 51, («,. act to regulate the prac- tice auci fees of the Vice-Admualty Courts abro.-.,!,) au- thorises the King in Cou-oH to make regulations and cstahlish fees in the Vice-Admiralty Courts abroad, which regulations and the tables of fees are to be enrolled in the p-.Mic books or records of those Courts. «y sec. 2 the ...hie of fees are to be laid before the House of Commons within three calendar months after the istablishment or alteration thereof. Jiy sec. 4 such fees are to be the only lawful fees of the judges, officers, mini s, and practitioners ot such courts. Copies of the regulations and tables of fees are to be hung up in each court. An appeal to the Admiralty (6) is given lo any per- son who shall feel himself aggrieved by charges in the said Vice-Admiralty Courts; and on summary applica- tion the Court of Admiralty may order such charges to be taxed. By sec. 6, Vice- Admiralty Courts are to have ju- risdiction in suits for seamen's wages, pilotage, bot- tomry, damage to a ship by collision, contempt in breach of the regulations and instructions relating to His Majesty's service at sea, salvage and droits of Admiralty, notwithstanding the cause of action may have arisen out of the local limits of such court The 2 & 3 W. 4, c. 78, (an act to continue certain (6) By 3 & 4 Wn. 4. c 51. s. 2, law. statute, commission, or usage "II appeals or applications in all be made to the High Court of su.ts or proceedings in the Courts Admiralty i„ England shall after Admiralty or Vice- Admiralty , June. 1033. be made to His Mu. abroad which may now by any jesty in Council." IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1.25 2.5 |4^ ^ ::: iiiiia iU .o^ ^m U 11.6 ^- V, <^ /2 A / > J>' M '/ Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7l6) 872-4503 \ v ^ * ^\ 'J) v \ o^ 1^ -f^. a^ ip ^<* 80 ! ■ •* ill IH: !; : F A SUMMARY OP acts relating to the island of Newfoundland, after re- citing 5 Geo. 4, c. 67, (relating to the administration of justice in Newfoundland,) and the 5 Geo. 4, c. 68, (re- gulating the celebration of marriages there,) and the act 10 Geo. 4, c. 17, by which the two former were continued to the 31st of December, 1832, and that it is expedient they should continue in force till altered or repealed by any acts (duly allowed) of the House of Assembly, which His Majesty may at any time see fitto convoke within the said colony of New- foundland, (and it has since been convoked,) declares them to be continued till they shall be so altered or repealed. The second section declares that the duties now payable in Newfoundland by the authority of divers acts of Parliament, shall, when such Houses of Assem- bly have been convoked, be payable, as they shall by act of Assembly (duly allowed) direct; provided that an annual sum, not exceeding 6550/., be applied for the maintenence of the governor, the judges, at- torney-general, and colonial secretary there. The 3 Wm. 4, c. 14, (relating to savings banks,) is ex- tended (S.35) to Guernsey, Jersey, and the Isle of Man. The ac. 8 Wm. 4, c. 15, by which the property of au- thors in their dramatic productions is for the first time sect red to them, extends to all the Colonies. The first section gives to the author the sole right of causing his piece « to be represented at anyplace or places of dra- matic entertainment whatsoever in any part of the United Kingdom, or the Isle of Man, Guernsey and Jersey, or m any part of the British dominons," and forbids others to represent it without his authority. The second sec tion gives him the power, in case such piece shall be represented without his sanction, to sue for the penalty " in any court having jurisdiction in such cases in that COLONIAL LAW. part of the United Kingdom, or of the British domi- nions, in which the offence shall be committed." The 3 & 4 Wm. 4, c. 49, recites, « Whereas it is ex- pedient and reasonable that the solemn affirmation of persons of the persuasion of the people called Quakers and of Moravians should be allowed in all cases where an oath is required;'' it therefore enacts that "every person of the persuasion of the people called Quakers, and every Moravian, be permitted to make his or her solemn affirmation or declaration instead of taking an oath, in all places and for all purposes whatsoever where an oath is or shall be required either by the common law or by any act of Parliament already made or hereafter to be made, which said affirmation or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form." A false affirmation to be punished as perjury. This act does not mention the Colonies ; but from the very comprehensive terms employed in it, the rule as to statutes of universal application (7) must be deemed to operate upon it, and to give it effect in all the British dominions. The 3 & 4 Wm. 4, c. 82, is a similar act relating to "Separatists." IV. We have now arrived at the fourth and last head Points of law of remark, viz. some miscellaneous points of Enghsh •^°"°ected with law upon matters relating to the colonies. ' ^ *'°'°"'''' First, with respect to the trial in England of crimes committed in the colonies, it is a general principle of the English law that crimes are local, from which it follows that those committed in the colonies or else-" where out of the realm cannot be tried in any English court of justice ; (8) but by the 11 & 12 Wm. 3, c. \2, it (7) See ante, p. 8, \h, 16. (8) Hex V. Munton, 1 Esp. 62, before the passing of the 42 Geo 81 3, c. 82, cited in Rex v. Johnson, 6 East, 590. O A SUMMARY OF is provided that if any govevnor, lieutenant-governor, deputy-governor, or commander-in-chief of any plan- tation or colony within His Majesty's dominions beyond the seas shall be guilty of oppressing any of His Ma- jesty's subjects beyond the seas, within their respective governments or commands, or shall be guilty of any other crime or offence contrary to the laws of this realm, or in force within their respective governments or commands, such oppressions, crimes and offences shall be tried in the Court of King's Bench in England, or before such commissioners and in such county of the realm as shall be assigned by His Majesty's com- mission, and that the same punishments shall be in- flicted as are usually inflicted for crimes of the \i\ce nature when committed in England. And by a sub- sequent statute, 42 Geo. 3, c. 85, it is enacted that any person holding a public station, office, or employment out of Great Britain, and guilty of any offence in the exercise of his public functions, may be tried in the King's Bench, either on an information exhibited by the Attorney-General, or an indictment found ; and all persons so offending and tried under this act or the statute of William, shall receive the same punishment as is inflicted on similar offences committed in England, and are also liable, at the discretion of the Court, to be adjudged incapable of serving His Majesty or holding any public employment. (9) There are also several statutes by which the parti- cular crimes of treason, murder, and manslaughter committed out of the realm by any persons, are made triable within the roalm of England. (1) (9) 8 East, 31 ; and as to India see the East India Bill, 13 Geo. 3, c. 63, s. 39; 24 Geo. 3, c. 25, s. 64, et seq. (1) 28 Hen. 8,c. 15; 33 Hen. 8,0.23; 35Hen. 8,0.2; 11 u 12 Wm. 3, c. 7; 11 Geo. I.e. 29, s. 7 ; 39 Geo. 3, c. 37 ; 43 Geo. 3, COLONIAL LAW. With respect to trespasses and other injuries to real property, these also are local by our law, so that it is said that no action can be maintained in tliis country for an injury to real property out of the kingdom, as for mstance, for entering a house in Canada. (2) A c. 113, s. 6. And see two opinions that 28 Hen. 8, c. 15, extends to co- lonies established before the act was passed, 1 Chal. Op. 199, and 2 Chal. Op. 220, but see also 2 Chal. Op, 202, 203. (2) Chitty on Commerce, vol. 1, p. 648. The contrary was slated by Lord Mansfield in Mostyn v. TaMgaa, Cowp. 176- ,0; but that part of thai ase was expressly overruled in Doulson v. Matthews, 4 Term Rep. 503, wliere the judges intimated that the aufhc ; x of de- cided cases was too strong lo allow them to adopt the opinion of Lord Mansfield. The doctrine somewhat summa- rily declared in this latter case, cer- tainly without much argument or consideration, has ever since been the admitted rule of pleadii.^, and is still recognized as such. (Stephen on Pleading, 2d edit. 338, and Chitty on Pleading, vol. 1, 5th edit. p. 29.9.) Yet it would be difficult to find a justification for it in principle, and even the authorities can hardly be said fully to bear it out. Mr. F. Pollock, in the course of an argument on the case of Gur- land V. Carlile, in the Exchequer Chamber, 17th June 1833, said that their lordships were well aware how law was sometimes made ; first, there was some dictum in a nisi prius case ; then another nisi prius case followed that : from the poverty of the parties, the smallness of the sum in dispute, or from some other cause, neither of them became after- wards the subject of a motion in ccurt, and therefore it was taken for granted that they were acquiesced in ; a case subsequently occurred in Banc, and the judges, without further inquiry, thought themselves bound by these two recent decisions which had not been questioned, and thus a hasty ruling at nisi piiua be- came at once the law of the land. This happy exposition of the matter seems to be well illustrated by the case of Doulson v. Matthews. An action was brought against a person for a trespass committed by him in the plaintiff's house in Canada, both parties being at the time of the action in this country. Lord Kenyon nonsuited the plaintiff on the ground that the action was local A motion was made to set aside the nonsuit, and the elaborate, able, and con- vincing judgment of Lord Mans- field in Motion V. Fabrigas (Cowp. 180) was cited to show that under the particlular circumstances of that case the rule as to locality of action did not hold. The answer of Lord Kenyon is simply, " The contrary had been held in a case in the Com- mon Pleas that where the action is on the realty it is local," and thus a judgment delivered by Lord Mans- field, with the concurrence of the other judges, (Aston, Willes and g2 i I I I : 84 ■fi li A SUMMARY OF bill in equity for the delivery in possession of lands in the colonies may be maintained ; for though lands in Ashhurst,) and pronounced, after two arguments, described as ex- tremely able, and after time taken to consider, was unceremoniously over- ruled. The " case in the Common Pleas" is not quoted in the report of Dimlson v. Matthews, but it was probably that of Shelling v. Farmer, 1 Strange, 646, thus reported : — "In &n action of trespass and im- prisonment for facts done in the East Indies, the plaintiff laid them all (being transitory*) in London, and inter alia declared for seizing the plaintiff's house, situate apud London praed' in parochia et warda praed'. It was objected pro def. that the trespass as to the house was local, and they could not give evi- dence as to seizing a house in the East Indies. And Eyre, C. J., re- fused to let the plaintiff give evi- dence as to the house, comparing it to the case of rent for a house at Barbadoes, where it has been lield "you may bring covenant for the rent in England, but an action of debt, which is local, t cannot be brought here." To say nothing of the very inferior importance of a nisi prius decision thus hastily made when compared with the well con- sidered judgment of four such judges iis decided the case of Mostyn v. Fahrigas, it is not a little singular that though Shelling v. Farmer had been antecedently determined, it was not even quoted in this case by the very learned counsel who argued on behalf of Mr. Moslyn, one of whom (Mr. Duller) afterwards as- sisted in deciding the case of Dottl- son V. Matthews, and who cannot be supposed to have omitted it for any other reason than because the opinion of Westminster Hall had justly condemned it as bad in itself, or most incorrectly reported. Per- haps both these objections might with propriety be urged against it. The truth seems to be that the ab- sence or the presence of a videlicet has had much to do in deciding questions of demurrer raised upon the point of the locality of the venue. Soe Robert v. Hamage, 2 Lord Raym. 1043 ; S. C.Salk. 659 ; and 6 Mod. 228, where in an action brought on a bond really made at Fort St. David, in the East Indies, the declaration stated it to have been made " at London, &c." Per Lord Holt, " you should have said at Fort St. David, &c., to wit, at Lon- don." See also 2 East, 497 ; 6 Erst. 599 : 11 East, 226 ; 5 Taunt. 78P It is very probable that the real objection in Shelling v. Farmer was that the count described the house to he at London instead of alleging it to be in the East Indies, to wit, at London. Mr. Serjt. Williams and the subse- quent learned editors of Saunders' This parenthesis ,s, as was common with him, a note of the reporter. Kast. 348 ; EgUr v. Mam/e«, 5 Taunt. 25, and 1 Wm. Saund. 74 (2), and the cases there cited. \ /> "* COLONIAL L..W. the plantations are not under the jurisdiction of the Court of Chancery, yet if the parties arc in this country, 85 Hep. seem inclined to think tliat the Stat. 6 11. 2, c. 2, is still in strictness applicable to a variety of cases, to which nevertheless it is in fact never applied, 1 Wr.is. Saund. 74, (2) and (h). In the. latter of those notes the case of a declaration on a bail bond, (Gregson v. Healh, 2 Lord Raym. 1155, also repoUed in Strange, 727,) is mentioned, and the judgment there was that the venue was not local. It is true that that judgment is doubted m the note, and the reasons given are stated not to be satisfactory. Still, however, that case has not yet been overturned, although if there be one instance stronger than another in favour of the necessity of adhering to the rule of locality in matters of venue, it must be in a case where the duty to be performed, or the obligation to be contracted, can only occur in a particular county J and such is the fact with an arrest and the taking of a bail- bond, which things can be transacted nowhere but in the particular county where the warrant is issued and the officer is appointed. The chief reason for requir.og locality in ve- nues is thus stat-xl in Mostyn v. Fahrigas, (Cowp. 176) :— " There is a formal and substantial distinc- tion as to the locality of trials. The substantial distinction is where the proceeding is in rem, and where the elFect of the judgment cannot be had if it is laid in a wrong place. That is the case of all ejectments where possession is to b" be delivered by the sheriiFof the county ; and as trials in England arc in particular counties, and the officers are county officers, tho judgment could not have eflect if the action was nqt laid in the proper county." Lord Mansfield goes on to say, " If an action were brought lelative to an estate in a foreign country, where Iho question was a matter of title only, and not of damages, there might be a solid distinction of lo- cality." It has probably been for want of attending to the distinction laid down in this sentence either that Doulion V. Matthews has been wrongly decided or reported, or that the books which have since cited that case have applied its doctrine to points to which it was never in- tended to refer. The loose manner in which it is reported may have occasioned this error. The state- ment of the case shows that the action was for something more than damages; it was for entering the plaintiff's house, and "expelling him." The last term would seem to indicate tha* n question of the right of possesi.^ was sought to be decided by the action ; and Lord Kcnyon's observation, " that t' o cause of action stated in the count was local," might fairly be made with reference to an action having for its object the decision of a ques- tion of title, and consequently of the right of possession. The sub- sequent part of the case would lead to the same conclusion ; and the first sentence of iMr. Justice BuUer's judgment certainly would not de- stroy such an inference. It is this : " It is now too late for us to in- quire whether it were wise or politic to make a distinction between tran- iJ m A SUMMARY OP that court, acting in personam, will enforce the de- livery, (see the cases cited in n. 3, p. 89.) Ill sitory and local actions j it is suffi- cient for the Court that the law has settled the distinction." Then fol- lows the single phrase, that has by its generality occasioned the appli- cation of the rule laid down in this case to others to which it is con- ceived never to have been meant to apply, " and that an action qiiare clausum fregit is local." Had the words " where the title is brought into dispute" concluded the sen- tence, the judgment would have been more consonant to the good sense of pleading and to the maxims of justice, and would have stood in accordance with, and not in oppo- sition to, the better considered judg- ment in Mostyn v. Fahrigas. For aught that appears these words might have been accidentally omitted by the reporter j and perhaps if any case of sufficient importance to jus- tify the bringing of Doulson v. Matthews under review should arise, such might be the judgment of the judges. But should the Courts think themselves bound by the interpretation hitherto put upon that case, the subject is one deserv- ing the attention of the legislature, and loudly calling for their inter- ference. In the event of the pass- ing of a bill now pending in par- liament, the object of which is to empower the judges to alter the rules of pleading, their lordships will constitute for the special pur- poses of that particular act a legis- lative body, and will then most probably adopt the opinions and carry into effect the suggestions of the common law commissioners, who, in speaking on this subject, (3d Rep. p. 14,) have said, with regard to the consequences of a mis- take of venue in a local action, " Sound principle, however, seems to dictate that a mistake of this de- scription should not expose the plaintiff to failure." Confining this view to the law of this country, and its operation here, the learned commissioners have recommended that " all actions for the recovery of the realty, and all actions for in- jury to real property, whether in trespass or trespass on the case should be local," and iiave assigned as a reason " because the strong presumption is that all the witnesses, or the greater part of them, reside in the county where the trespass was committed." Where, however, this reason of convenience does not exist, or where a great and para- mount object is to be secured by the temporary disregard of it, the rule thus to be laid down should be subject to an exception, " for other- wise," in the words of Lord Mans- field, " there would be a failure of justice, and therefore the reason of locality in such an action should not hold." The nature of the judgment in trespass affords on additional ar- gument against the authority of the decision in Doulson v. Mutiheivs. The judgment is only for damages, and there is no reason therefore in the form of the postea for confining a man in seeking his remedy against a wrong-doer to the very place in which the wrong was done. Lord Mansfield mentions a case in which COLONIAL LAW. A bill to account for the rents of lands in the colonies 87 an officer under the command of hig superior pulled down the houses of some suttlers in one of our colo- nies. The officer did that which perhaps the circumstances of the case would justify, for these houses had been frequented by the sailors to such an extent that their own health and the discipline of their vessels had been affected by it. One of these suttlers, after being in England, brought an action against the officer, who also happened to be in this country. Lord Mansfield says, " One of the counts was for pulling down the houses. The objection was taken to that count and the case of Skinner v. The East India Company," (where the judges held that they could not give relief here against the wrongful possession of houses in India,) " was cited in support of the objection. On the other side they produced from a manuscript note a case before Lord Chief Justice Eyre, where he over- ruled the objection ; • and I over- ruled the objection upon this prin- ciple, that the reparation here was personal, and for damages, and that otherwise there would be a failure of justice, for it Was upon the coast of Nova Scotia, where there were no regular courts of judicature, but if there had been. Captain Gambier mightnever go there again,aud there- fore the reaion of locality in such aa action did not hold." It is a cu- rious anomt>ly in our judicature that while Courts of Common Law have thus held themselves prevented by a mere form from entertaining ac* tions for trespasses on real property where the title was not in question, but only personal damages were sought to be recovered, Courts of Equity have made this same personal responsibility the means of enforcing contracts relating to land in the colonies, and even of putting parties into possession of the land itself. To a bill for possession of lands in St. Christopher's, defendant de- murred to the jurisdiction. Lord Hard- wicke. Chancellor.— " This Court has no jurisdiction to put persons into possession in a place where they have their own methods on such occasions, to which the party may have recourse. Lands in the plantations are no more under the jurisdiction of this Court than lands in Scotland, for it only agit in per' sonam. The delivery in possession may be enforced in person. There have been instances of plantation estates being sold in this Court, and consequently this Court must have a power of enforcing a decree for a sale upon the person ordered to con- vey." Roberdeau v.Rotts, 1 Atk.544 j S. C. Rep. Temp. Hardw. 565 ; * Lord C. J. Eyre decided Shelling v. Farmer. It is therefore to be regretted that Lord Mansfield did not more fully quote this case ; for then, as Lord C.J. Eyre would be proved to have ruled two different ways, it might have been discovered that the apparent contradiction arose from the form of the declaration. The omission of the videlicet in Shelling v. Farmer was most probably the point on which his lordship's judgment was giv«>a» but the report is lamentably defective. '1 ■1 88 A SUMiMAUY or may be siipportuil. Ami u court of equity in Englaiul 11 'I and S. P. Foster v. Vumt, 3 Atk. 689. This case was afterwards ex- pressly recognized by Lord Arden, M. R., in Lord Cranstmon v. John- iton, 3 Ves. jun. 102. The prin- ciple laid down in it was admitted in argument in While v. Hall, 12 Ves. jun. 321, and at*ser(cd in judg- ment both by Leach, Vice-Chan- cellor, in nushby v. Mtiuduy, 5 Madd. 307, and Beckford v. hemhle. 1 Sim. & Stu. 7, and by Lord Eldon, Chancellor, in Harrison v. Gurney, 2 Jac. & W. S63. It had been acted upon by Lord Chancellor Hardwicke in the celebrated case of Penn v. Lord Baltimore, 1 Ves. 444, where an agreement made in England touching the boundaries of two British provinces in America, was decreed to be executed in per- sonam, though it could not be en- forced in rem, and his lordship used the expression that " an agreement being founded on articles executed in England under seal for mutual consideration would give jurisdic- tion to the King's Courts, both of law and equity, whatever might be the subject-matter." The autho- lity of the Court was also asserted by that noble and learned lord in Angus V. Angus, Rep. Temp. Hard,, (edit. 1827,) p. 23. That was the case of a bill for possession of lands in Scotland. A plea to the ju- risdiction was held bad, on the ground of not averring that the parties were resident out of the jurisdiction ; Lord Hardwicke thus expressed himself: " This had been a good bill if the lands had been in France, provided that the persons were resident here, for the jurisdiction of this Court is upon the consciencn of the parly." The " coubciunco of liic party" is acted upon, as the ViccCliaucellor Leach declared in Bushhy v. Mun- day, " by constraint of his person, in punishment for the contempt in disobedience of the order of the Court." The authority of the Courts of Common Law can be en- forced in a very similar and at least equally eflicient manner. If there- fore Courts of Equity can justly claim by such means to put parties into possession of lands abroad, though those lands should bo in France, where English' laws can by no possibility have any force, a fortiori, ought the couits of Common Law to entertain an action where the object in view in not the pos- session of lands in a foreign and independent state, nor even in the colonies of the British empire, but the mere recovery of damages from a defendant resident here, over whom they possess the double jwwer of vindicating their anthorily by seizure of his goods and constraint of his person. To avoid by a mere point of form, upon a case of any questionable authority, the exercise of this their well founded jurisdiction, is to create "a failure of justice," which it cannot be for a moment sup- posed they should desire to witness. The bill above referred to, qs pend- ing in Parliament, has passed inlo a law. The judges have now by tlie3&4 Wm. 4, c. 42, the un- questioned power of remedying the evil of a failure of justice, to which it has been the object of this note humbly to call their attention. The recommendations of the Com- COLONIAL LAW. may enforce the specific perfonmince of ii contract re- lating to such hinds, (ii) But where the question upon the construction of the contract for n security by way of mortgage had been before a court of competent juris- diction in the colony, and a foreclosure and sale directed, and certain allegations of fraud were merely general, and denied, an injunction was refused in the Court of Chancery in England, on the ground of want of juris- diction. (4) The motion for the injunction there, was, in effect, an appeal from a court of competent jurisdic- tion in the colony (Demerara) to the Chancery here, and no such appeal would lie. Sir S. Ilomiliy (Solici- tor-General) and Mr. Bell, in arguing against the in- junction, said, " It is not contended that this court has not jurisdiction over contracts relating to possessions in the colonies of this country, but it does not hold in this particular case, a courtof competent jurisdiction having already decided." As to personal injuries and breaches of contract, they are transitory in their nature, and for these, though tiiey take place abroad, actions may be main- 89 missioners with respect to the con- sequences of a wrong venue in local actions have been carried into effect (s. 2'i) by giving to tlie Court the power of directing local actions to be tried in any county. The section gives that power only in the case of " any action depending in any of the said superior courts;" and as tiie Courts have since tlie period when Duulson V. Matthews was decided acted on the authority of that case, and refused to entertain actions for damages for trespasses to real pro- perty abroad, and as " actions de- pending" must mean actions pro- perly depending, it would seem that the difficulty as to these particular actions has not been removed by the statute. On the discretion of the judges alone the colonists must therefore rely for a remedy to the evil. (3) Uoberdean v. Uuus, 1 Alk. 54'i ; S. P. Foslev v. Vassal, 3 Atk. 589 ; Pmn v. Lord Baltimore, I Vcs. 414; White v. Hall, 12 Ves. 321; Jcickson V. Petrie, 10 Ves. 165. (4) White V. Hall, 12 Ves, 321. ;l: ■Mi 90 A SUMMARY OF tained in the courts of thia country. (5) And it k said that the Court of King's Bench Ims jurisdiction to send ft hahcag corpus to the plantations. (6) With respect to the construction of contracts made in the colonies, it is to be observed that contracts made abroad are expounded and have effect in England according to the law of the country where they are made, though the English law might affect them differently. Therefore, if a certain stamp be required by the law of the colony where the contract was made, though not required in England, the contract, unless it has been stamped according to the law of the colony, cannot be enforced in England. (7) And if by the colonial law a chose in action is in any case assignable, thp assignee may in that case support an action in the English courts, though choses in action are not assignable here. (8) So, the rate of interest on a debt is calculated accord- ing to the law of the colony where it was contracted, though sued for in England, where the rate is different ; and in a court of equity the debtor is allowed the rate of exchange of the country where the debt was con- tracted. (9) In an action on a bill of exchange drawn in Bermuda on a person in England, and also payable (j) Mo$ty*iv.Fabrigas, Cowp. 161, 168 ; 2 Sir W. Black. 929, S. C. j 11 ILirg, State Trials, S. C. ; Cooke v. Muiwell. 1 Stark. 183; Wey v. YaUy, 6 Mod. 195; Lord Bella- monl's case, 2 Balk. 625. See 42 Geo. 3, c. 85, a. 6. (6) Rex V. Cowlc, 2 Uurr, 856 ; Stokes' Law of Coloiiies, 5, 6. (7) Alves V. Hodsoii,7 T. R. 241 j 2 E»p. Rep. 528 j CUgg v. Lei^y, 3 Camp. 167 ; Cliiltj^ on Rills, 74, 75, 5th edit. (8) Jniiei V. DuuL^p, 8 T. R. 595 ; O'Callagan v. Marchioneis if Tho- mond, 3 Taunt. 82. (9) Lord Dungannon v. Hackelt, cited Lane v. Nichols, 1 iiq. Abr. 289, PI. 1 ; 2 Bridgmau's lud. 88. COLONIAL LAW. r England, tlio plaintiff recovered 7* per cent, in- terest being the rate of interest at Hermudu, (1) With respect to the Statute of Usury, hh applicable to the colonies, u doubt was tutertained w ether the statute of 12 Ann. st. 2, c. 16, which reduced the rate of interest to 5 per cent., did not extend to inmey lent on lands in Ireland or the Plantations, when the mortgage was executed in Great Britain ; bul the stat. 14 Geo. 3, c. 79, declares all such securities made i)re- viously to that act, to be vaUd, notwithstandi ig the \% Ann, where the interest is not more than the e tablished rate of the particular place, and that all future securities of the like kind shall also be valid where the interest is not more than 6 per cent. (2) and the nrney lent is not known at the time to exceed the value of the property pledged. However, it has been held that the Stat. 14 Geo. 3, is an enabling act, extenduig only to particular cases, and it docs not extend to su.^h bonds as are mere personal contracts, but only protects mort- gages and other securities respecting lands in Ireland or the Plantations. (3) Where a debt was contracted in England, but tlie bond was taken for it in Ireland, to be paid at a certain time and at 7 per cent., it was held by the Court of Chancery in England that it should carry Irish interest; (4^ but a different 91 (1) Dongan v. Bfliib, Chitty on Bills, 540, 6tli edit. (2) Steel V. Sowerby, ti T. R. 17«, 172, and note. (3) Dewar v. Span, 3 T. R. 425. (4) Conntr v. Lord Bellamonl, 2 Atk. 382 ; Free. Clianc. 128 ; 1 P. Wms. 395, 396; 2 Atk. 465. The principle laid down by these cases, that the place where ibc instrument is made should give the rule as to the amount of interest secured by that instrument, lias been recognised by the Court of King's Bench in Kearney V. King, 2 B. & A. 3()1 , and Sfirmek V. Legge, 1 B. & C. 16, wlierc bills •Irawn in Ireland for so many pounds "sterling," being made the subject of actions in ISngland, the parties were held bound to state in the dfe- .Xai n 92 Ell! J m I ;•■ A SUMMARY OF doctrine was Iield when the bond, contract, or mort- gage was executed in England, in which case only 5 per c'^nt. interest is allowed, independently of the statute 14 Ceo. 3.(5) So that it seems that only o per cent, interest can now be reserved on secu- rities executed in England, and not made on land in Ireland .r the Plantations. In case a bond or other debt contracted in Jamaica be made payable in Lou- don It has been held that the expense of commission to the agent remitting the money falls on the debtor. (6) As to the effect of a colonial or foreign judgment, an action may be maintained in England on a judg- ment obtained in a court of law or equity in the colo- nies, or elsewhere, out of the realm ; but such judgment IS considered here only as a simple contract debt, for which assumpsit is maintainable. It is therefore not conclusively binding as an English judgment would be, (7) but the defendant is at Hberty to show that the lif claratioii sonictliiiig to allow ilmt " potiiids Irish '" were meant. Ray- ley on Bills, oih ed. 389, 390. (a) Phipps V. Lord Anglesea, 1 P. Wins. 696; Stupleton v. dm- way.SAik. 727 J 1 Vcs. 427, and Dctvar v. Span, 3 T. R. 4V5. (6) Cash V. Keimion, li Ves. 314. (7) 'flic reason is thus slated by J^oi-d Ciiief Justice Eyre ('2 II. Bl. 410) ill a judgment given in 'he Ev- fliequer Chamber, in the case of riiilips V. Hunter, " It is ii: one wa.y only that the sentence or judgment of a court is examinable in our courts, and that is, where the party whoclaiius the benclit of it upi)lies to our courts to enforce it. When it is thus voluntarily subiuUted to our jurisdiction, we treat it not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was i)ronounce(l, nor as obligr.tory te (he extent In which hy our law sentences arc ob- ligatory, nor as conclusive, but as matter in puif asconsidcation/iWmii facie sufficient to raise a promise ; we examine it as we do all other considerations or promises, and i\i\- that purpose we receive evidence of what the law of the foreign slute is, and whether the judgincn; is war- r.;ntcd hy tlial law. In all otiier cases «e give entire faith and credit to the sentences of foreign courts, and consider lliem as ccnelusiie u|>on us." Aiiolhei- reason for the distinction probably is, that the COLONIAL LAW. decision ought to have been otherwise, and he should not take issue upon it by a plea nul tiel record, but by a plea to the country. (8) If it do not appear by the tran- script of the proceedings in the colony, that the party against whom the judgment w.ip obtained was at one time or other resident there, or subject to the jurisdiction of the colonial court, but only that he was summoned by nailing up a copy of the declaration at the court-house door, no action can be maintained here on the judgment, for a party cannot be bound by the judgment of a court if he was never within its jurisdiction. (9) But an action may be maintained here on a foreign judgment obtained by default, which states that defendant ap- peared by attorney, without proving that the attorney mentioned had authority to appear, or that the defend- ant was living witliin the jurisdiction of the foreign court. (1) Though, in general, a defendant sued in England upon a foreign judgment, is at Hberty to show that it V as erroneous, yet where an action was brought here upon a covenant entered into by the defendant to indemnify the plaintiff from all debts due from a partner- ship in which he had been engaged with the defendant, and from all suits instituted in consequence of the 98 judges are supposed to know the Jaw oir which the judgments of anj- tiibuiials ill this country are found- ed; and can at once decide whether such judgments arc warranted by •he law ; whereas foreign tribunals and courts in our colonics being called on to administer laws more or less dif- ferent from our own, the judges here require information before they can arrivi! at any conclusion on the subject. (8) Wnlker V. WHU., Doug. 1, and cases there cited in notes ; Mes- si7i V. Lord Massareew, 4 T. Ii,49,'^, • Saillcr V. Rubins, 1 Camp. 253; O'Calliigan v. Marchioness of Tho- mond, 3 Taunt. 02, 84. (9) Buchunan v. Rucker, 9 East, 192, 1 Camp. 63 ; Cavanv. Stewart, 1 Stark. 525; Fisher v. Lane, 3 Wils. 297, 304 ; Coohe v. Maxivell 2 Stark. 103. (1) Molony V. Gihhons, 2 Camp. 50'i. ! ,1 94 ' I A SUMMARY OF partnership, proof of the proceedings in a Court of Chancery in Grenada, against the late partners, for the recovery of a partnership debt, in which a decree passed for want of an answer, and a sequestration issued against the plaintiff's estate, was held conclusive against the defendant, who was not allowed to show that the proceedings were erroneous. (2) In an action on the judgment of a colonial court, it is in general ne- cessary to prove the handwritingof the judge by whom It is subscribed, and the authenticity of the seal affixed. If there is a seal belonging to the court, it should be used for the purpose of authenticating its judgments, and should be established in evidence by a person acquainted with the impression. But if evidence be given that the court has no seal, the judgment may be established by proving the signature of the judge. (3) A copy of a judgment in the Supreme Court of Jamaica, made by the chief clerk, cannot be received in evidence* in a couit of justice in this country, although it appear that such copies are usually admitted as good proof in the courts of Jamaica. (4) An exemplification authen- ticated by the seal of the court, is, however, admissi- ble. (5) Whether a judgment given in favour of a defendant m a colonial court is pleadable in bar or available by way of defence to a second action brought on the same demand in an English court, is a point that appears to be not clearly settled ; but the doctrine above stated (8) Tarleton v. ravUton, 4 M. & Alves v. Buubuv,j, 4 Camp. 28 ; C«. ■ ,' „ ^''"* ^' 'S«eu)an, 1 Sfark. Agj, (3) Henry . Adey, 3 East, 221 ; (4) Ajrpleton v. Urd Braybrck, Buchanan. Rucker.xC.n.p. 63-, a,.! Black y. Lonl Braylk. ^ FhuU V. Alkv,s,3 Camp. 215; Stark. 6 ct scq. and 6 M. & S. 34 (S) Ibi(i. COLONIAL LAW. with respect to the inconclusiveness of a colonial judg- ment, where an action is brought to enforce it in this country, may be thought to have a strong bearing on that question. (6) Upon the application of the statute of limitations to colonial transactions, the following case has been de- cided. An action being brought here for a debt con- tracted in India, it was held sustainable, though more than six years had elapsed since the making of the contract. The creditor and debtor were, for some time after the cause of action accrued, resident in Calcutta; the creditor then returned to England,-the debtor re- mained in India more than six years, and then returned to England, and the action was brought within six years after his return. The action was held sustainable notwithstanding the lapse of time, and notwithstanding the circumstance that the Supreme Court at Calcutta, within the jurisdiction of which the transaction arose. 85 (6) Plummet' v. Woodburn, 4 Barn. & Cresj. 625, and the cases cited ill the very learned argument there. The court, in tliat instance, decided that a plea in bar setting up a foreign judgment for the de- fendant was bad, inasmuch as it did not show tliat that judgment was a final judgment in the place where it was given. The inference from this would seem to be that, had the plea shown that judgment to be a final judgment, so as to bar the plaintiff fron> bringing a fresh action in the foreign court in respect of the same demand, it would have been sufficient here. The rame in- ference n)iglit be drawn from the case of Level v. Hall, Cro. Jac. 284, whicli is copied ai ihc end of tiie report of Plummer v. Woodburn. See also Potter v. Broum, 5 East, where Lord Ellenborough broadly lays down the doctrine that " what is a discharge of a debt in the country where it was contracted is a dis- charge of it every where j" and af- terwards says, " if the bankruptcy and certificate would have been a discharge of the debt in America, it must by the comity of the law of nations be the same here." Of course if one legal proceeding would have this eflect, another of equal authority in the foreign stale ought to be entitled to the same respect. The difiTerence in the result in Plum- mer V. Woodburn musttnercfore have arisen from the mode df pleading the judgment. 96 lit A SUMMARY OP was held under a charter that autliorized the court to exerc.se the same jurisdiction in civil cases as is exer- cised by the Court of King's Bench in England at common law (7), for that charter did not alter the effect of the statute of limitations as applied in the courts of just.ce m this country, and therefore, even assuming that the provisions of that statute were transferred to Ind.a by the terms of the charter, as auxiliary to the common law, yet, according to the statute as it was in force here, it was held that a c-editor was not barred by the lapse of six years after the debt arose, as the debtor had been resident out of the realm. (8) With respect to the effect of a colonial or foreign certificate in bankruptcy, where an action was brought in this country on a bill of exchange given by the pla.ntiff to the defendant, in a foreign state, where (7) The charter granted under 13 Geo. 3, c. 63, s. 13. See that charter set forfhin substance in Wil- Hams V. Jones, 13 East, 440, 441. (8; Williams v. Jones. 13 East, 439; SlJac. I.e. 16,s. 7; 4 Ann, c. 16, s. 19. In the course of the argument in this case, Lord Ellenborough asked how tJie court were to take judicial notice of any parts of the charter not set out in the pleadings; the plaintiff's counsel at first said tliat as the act 13 Geo. 3, c. C3, autho- rized liie granting of the cliartei', the provisions of tiie latter must be taken to be incorporated into the act. Tlie question was not decided, as the defendant's counsel said that all the parts of the charter material for tlie argument were set out in the pleadings. There can be little doubt that if an act of parliament authorizes the grant of a charier and directs what shall be its provi. sions, either in a general or particu- lar manner, the courts arc bound to presume that the King has properly exercised the powers vested in him i>y the act, and they might therefore refuse to try incidentally whether the charter was a good charter under the act. As the act itself was a public act, it mnst be taken notice of by the courts here, but whether the charter granted in pursuance of it must be equally entitled to judicial notice, may be a more nice and dilBcuIt question. Charters to cor- porations may be granted by the crown under the authority of acts of parliament, Rix v. Miller, 6 T. R. 268, and Rex v. Hathorne, 5 B. & C, 410, and such charters are speci- ally pleaded. It would seem, there- fore, by the rule of analogy that the courtcould not have takenjudicial no- tiee of thecharfer except as pleaded. COLONIAL LAW. both parties were resident, but drawn on a person in England, and afterwards protested here for non- acceptance ; and the defendant, while he continued to reside abroad, became a bankrupt and obtained his certificate by the law of that state, it was held that such certificate was a bar to an action on the bill found-^d on the circumstance of its not having been accepted. (9) But a discharge under a commission of bankrupt in a foreign country, is no bar to an action in England against the bankrupt by a subject of this country, for a debt arising here. (1) With respect to the Evidence required in our Courts as to Colonial transactions, that matter is now provided for by a recent statute. (2) The first section of that statute recites the act 13 Geo. 3, c. 63, relating to the examination of witnesses in India, and extends the provisions of that statute, so far as they relate to the examination of witnesses in actions at law, " to all colonies, islands, plantations, and places under the do- minion of His Majesty in foreign parts, and to the judges of the several courts therein, and to all actions depending in His Majesty's courts of law at Westmin- ster, in what place or county soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the court, to the judges whereof the writ or commission may be directed, or elsewhere," Upon the IS Geo. 3, c. QS, the Court of Common Pleas held (3) that a mandamus might be granted to the court in India to examine witnesses on behalf of either a plaintiff or defendant in a civil action. By s. 4. the courts at Westminster, Lancaster, and 97 (9) Potttr V. Brown, 5 East, 124. (1) Smith-. Bnchanmn, 1 East, 6. See also 5itfc^.<^ v. Hay,3 B. & C.12. (2) 1 W. 4, c. 22. (3) Grillard v. Hague, i Brod. & Bing. 319. 98 1 \i ill i ' ' 1 f A SUMMARY OP Dmham, may order the examination of witnesses within their jurisdiction by an officer of the court, or may order a commission for that purpose out of their juris- diction, and may give such directions touching the time, place, and manner of such examinations as to them shall seem fit. But by section 10 of the same act, no examination to be taken by virtue of that act shall be read in evidence at any trial without the con- sent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge' that the examinant or deponent is beyond the jurisdiV tion of the court, or dead, or unable, from permanent sickness, or other permanent infirmity, to attend the trial. This statute was passed expressly for the pur- pose of extending to all the colonies, &c. under the dominion of His Majesty, the provisions of the 13 Geo. 3, c. 63, s. 40, which related to India alone. (See also 26 Geo. 3, c. 57, s. 38, post, and the 24 Geo. 3, c. 25, s. 88, therein recited.) It has however gone further than that or any other statute on the subject of prosecutions for perjury, for it has declared (sec. 7) that if any per- son examined under the authority of that act shall wil- fully and corruptly give any false evidence, every per- son so offending shall be deemed guilty of perjury, and may be indicted in the county where such offence was committed, « or in the county of Middlesex, if the evidence be given out of England." (4) By 42 Geo. 3, c. 85, passed to facilitate the trial and punishment of persons holding public employments who (4) As to Hie nielliods prescribed I))' different statutes for obtaining evidence from Indiii.see 13 Geo. 3, c. 63 ; and as to the practice in siicii cases and in others, (now otherwise provided for by the act 1 Wni. -t, c. 22.) see Tidd's Pract. 9th edit'. 810, et spq., and the cases tiiere cited. II COLONIAL LAW. had committed offences abroad, it is provided that when prosecutions are instituted by virtue of the act, it shall be lawful for the Court of King's Bench, on motion, and after sufficient notice, either on behalf of the prosecutor or defendant, to award writs of man- damus, in its discretion, to the chief justice or judge of any court of judicature in the county or island, or near to the place where the offence has been committed, or to any governor, lieutenant-governor, or other per- son having chief authority in such country, or to any other person residing there, as the court may think expedient, for the purpose of obtaining and receiving proofs concerning the matters charged in the indict- ment or information, and after pointing out the mode in which a court is to be held for receiving the proofs and the examinations taken, and transmitted to England and delivered into court, the statute proceeds to enact, that such depositions being duly taken and returned, shall be allowed and read, and shall be as good evidence as if the witnesses had been sworn and examined in court. The Court of King's Bench may also, on such a prosecution, order an exanunation of witnesses de bene on interrogatories, where the viva voce testimony of such witnesses cannot be conveniently had. But as the 42 Geo. 3 directs that the writs of mandamus thall be issued in the discretion of the court, it has been holden that a defendant indicted here for a misde- meanor, committed by him in the West Indies in a public capacity, is not entitled to postpone the trial till the return of the writs of mandamus, on an affidavit in the common form for putting off a trial on account of the absence of a material witness; but he must lay before the court such special grounds by affidavit as may reasonably induce them to think that the witnesses II 2 99 100 Uv w H I A SUMMARY OF sought to be examined are material to his defence. (5) The prosecutor, however, is entitled to writs of man- damus for this purpose, as a matter of course, and on an affidavit stating the special circumstances, writs of mandamus have been issued on the part of the de- fendant. With respect to the proof of writings attested in the East Indies, the statute 26 Geo. 3, c. 57, sec. 38, enacts that whenever any bond, or other deed, or writ- ing executed in the East Indies, or attested by any person or persons resident there, is offered in evidence in any court of justice in Great Britain, it shall be sufficient to prove by one or more credible witness or witnesses, that the name or names subscribed to such bond, deed, or writing, is the proper handwriting of the obligor or other party, and that the name of the attesting witness is his handwriting, and that the wit- ness is resident in the East Indies. And in like man- nei-, all courts of justice in the East Indies are bound to admit the same proof of the execution of bonds and other deeds and writings executed and attested in Great Britain. And such proof shall be deemed as good evidence of the due execution of the bonds and other deeds and writings as if the witnesses were dead. Since this statute, it has been laid down as a general rule of evidence, not confined to the East Indies, that when the subscribing witness to a deed, or any other written instrument, is absent in a foreign country, and consequently is not amenable to the process of our courts of justice, it is sufficient to prove the witness's handwriting, (6) although we have seen it is required (5) nwv.JoHes, 8 East, 31, and Esp. 2; Guugh v. Cecil, Selwvn Picton's case cited ibid. 34. 516 ; Adam v. Kerr, t Bos. & Pul' (6) Vide Cvoper v. Marsdcn, 1 360 ; Currey v. Child, 3 Camp' COLONIAL LAW. by the statute that the handwriting of tlie party to the instrument should be also proved ; and this proof has been also required by high legal authorities, on the ground that if the attesting witness were present he would prove not merely that the instrument was exe- cuted, but the identity of the person executing it, for the proof of the handwriting of the attesting witness only establishes that some person executed the instru- ment by the name which it purports to bear, but does not go to establish the identity of that person. (7) However, in a late case, where an action was brought on a promissory note, and the subscribing witness was dead, it was held sufficient to prove his handwriting, and that the defendant was present when the note was prepared, without proving the handwriting of the de- fendant. (8) As to Froof of Colonial or Foreign Law.— It sometimes becomes necessary in our courts to show what is the law of a colony or foreign country,— for example, to show that a contract made abroad was not valid according to the law of the place. In such cases the foreign or colonial law is considered as a fact, and must be proved accord- ing to the same rules of evidence which apply to other matters of fact. If the law is in writing, an authenti- cated copy of it must be produced. If not in writing, it must be proved by some witness acquainted with the laws of the country in question. (9) 101 283 ; Cunlife v. Sefton, 2 East, 183 ; Prince v. Blackburn, 2 East, 250 ; Phil. Ev, 4ed. 513; 1 Stark. Evid, 342 ; Croshij v, Percy, ] Taunt. 364, 462, and Burt v. Walher,'^ B. &A. 697. (7) Wullis V. Delancey, 7 T. R. 266, n. ; NeUon v. Whittal, 1 B. & A. 21 ; vide Coghlan v. William- son, Doug. 93. (8) Nelson v. Whittal, IB.&lA. 19. (9) Clegg V. Levy, 3 Camp. 166 ; Mostyn v. Fabrigas, Cowp. 174; Collett V. Lord Keith, 2 East, 261 ; Douglas V. Brown, 2 Dow. & Clark, 171, and see Inglis v. Ihhei-wood, 1 E^st, 515, and Bohtlingk v. Inglis, 3 East, 381. •1 102 i A SUMMARY OF As to Vrerogallve ?^W/,._Though tl.e ordinary writs of process from the English courts do not of course run in the CO onies, yet prerogative tvrils, such as manda- mus, prohibition, habeas corpus, and certiorari, may issue, on a proper case, to every dominion of the crown • but not to a foreign dominion, and Scotland being governed by its own law, is in this sense foreign. And even as to a colony, it being in the discretion of the courts whether they will issue these writs or not, they would not chuse to exercise that power where the cause IS one in which they cannot properly judge or giv. the necessary relief. Therefore, on'impHson- ment ,n the plantations, it has been more usual to complam to the King in Council, and petition for an order to bad or discharge, than to apply to the King's Bench for an habeas corpus. (1) However, it is clear that the King's Bench has that jurisdiction, and it i expressly noticed and reserved by the Act of Assem- bly respectively establishing the Courts of Kind's Bench ^and Common Pleas in St. Christopher a^d As to the effect of ^..^^„;;,,,,, ,-, Banh-.^e, in Lngland on Properly in the Colonies.~In the case of bankruptcy and a commission issuing against a trader in this country, all his personal property in the plantations vests m his assignees from the time of the bankruptcy; and therefore if a creditor, having notice of a banL i-uptcy, and all the parties being resident in England and the debt contracted there, avails himself of thj process of the law of England, (as by making affidavit of (1) Hex V. C(>u-te, V! liiirr «ifi- /o^ c. i . r Cro. Jac. 481. ' i^] ^'"''"^ ^'"'' "^ Colonics. 6, «nd tlie authorities tlicic cited. COLONIAL LAW. \m debt) to proceed by nttachment against the bankrupt's efTects in one of the colonies, or even in any independ- ent state, and obtain judgment and execution, he cannot retain as against the assignee the money so levied. (3) It should seem, however, that a creditor in the foreign country, obtaining payment of his debt, and afterwards coming to this country, would not be liable to refund to the assignees here, if the law of that country pre- ferred him to the assignees and was set in motion of itself and without any aid from the law of this country or the tribunals here. (4) If, on the contrary, the cre- ditor resided here, and the first step in the case was the making an affidavit of debt here, to be afterwards transmitted to the foreign country, (under 5 Geo. 2,c. 7,) by which the process was in fact commenced in this country, the creditor would be liable to refund to the assignees, for no creditor, resident in England and sub- ject to its laws, shall avail himself of a proceeding of that law to enable him to get possession of a debt from those who, by the law of England, are entitled to it and have the distribution of it for the benefit of all the cre- ditors. (.'5) On the subject of the bankrupt laws, it is necessary to mention two important additions to the provisions of former statutes.— By the act now regulating bank- ruptcies in England, 6 Geo. 4, c. 16, s. Gl, it is lOJ (3) Hunter v. Potts, 4 T. R. J 02; Sills V. Worswick, 1 Hen. Bl. 665 ; Cullen's Bankrupt Law. 243, 249; Waring v. Knight, Cooke's Bankrupt Law, 307, et seq. ; Cleve V. Mills, ib. 303 ; Mawdeslei/ v. Parke, ciled 2 Hen. Bl. 600. " But see Pliilips V. Hunter, 2 H. Bl. 402, wlicrc C. J. E^ie dissents from this doctrine, and Brickwood v. Miller, 3 Mer. 279, where Sir VV. Grant limits it to cases in which the domi- cile of the partnership was com- pletely English, and all its concerns were subject to English law. (4) Sills V. Worswick, 1 Hen. Bl. 693. (5) Ibid. 690. ? H f. t If * 104 il it A SUMMARY OF enacted that the assigneeH «l.all be chosen at the second meetuig of the creditors, and it includes among the persons entitled to vote at such choice " any person authorized by letter of attorney trom any such creditor, upon proof of the execution thereof, in case of creditors residing out of England, by oath before a magistrate where the party shall be residing, duly attested by a notary public, British minister, or consul." By the G4th section of the same statute " The commissioners shall, by deed indented and inrolled in any of His ]\ra- jesty's courts of record, convey to the assignees, for the benefit of the creditors, all lands, tenements, and here- ditaments, except copy or customary-hold, in i'.uglam], Scotland, Ireland, or in any of the domir.ions, planta- tions, or colonies belonging to His Majesty, to which any bankrupt is entitled, and all interest to which such bankrupt is entitled in any of such lands, tenements, or hereditaments, and of which he might according to the laws of the several countries, dominions, planta- tions, or colonies, have disposed, and all such lands, tenements, and hereditaments as he shall purchase, or shall descend, be devised, revert to, or come to such bankrupt, before he shall have obtained his certificate and all deeds, papers, and writings respectino the same, and every such deed shall be valid against the bankrupt, and against all persons claiming under him provided that where according to the laws of any such plantation or colony such deed would require registra- tion, mrolment, or recording, the same shall be so registered, inrolled, or recorded, arcu.-ding to f^. laws of such plantation or colony , aau no such deed shall invalidate the title of any purchaser for valuable con- Sideration, prior to such registration, inrolment, or COLONIAL LAW. reconling, without notice that the commission had issued." As to the effect of an English Probaie or Grunt of Administration on Property in the Colonies.— If a Bri- tish 8uhject, domiciled in England, die here, a probate granted by the Prerogative Court binds the property in the plantations and the probate granted there. (G) And Lord llardwicke laid down the rule, that debts due in Scotland to an English subject resident here, who died intestate, were distributable when recovered, according to the laws of England, and that the question would be the same respecting the goods of an intestate in France or other foreign country. (7) And the per- sonal estate of an intestate is distributable according to the laws of the country where he was resident at his death. (8) Lord Loughborough once said (9) " It is a clear proposition, not only of the law of England, but of every country in the world where the law has the semblance of science, that personal property has no locality, but is subject to the law which governs the person of the owner." In conformity with this prin- ciple the Court of Exchequer held (1) that American, Austrian, French, and Russian stock, the property of a testator domici ed in this country at the time of his death, was liable to legacy duty, and (2) that legacy duty was not payable on legacies left by a testator who was born in Scotland but resided and died in India, though the money, the produce of his Indian property,' 105 i ti (6) Burn v. Cole, cited 4 T. R. 185. (7) Thnmus v. Watkins, 2 Ves, 35. (8) Pipo7i V. Pipon, Ambler, 25, 2cl edit. 1828, and the cases cited b^ the learned editor, n. 2, p. gg. (9) In Sm V. Worstoick, l H. B. 691. (J) In re Ewin, 1 Cr. & Jer. 151. (2) Jackson v. Forbes, 2 Cr. & Jer. 382. im A SUMMARY OF was .ent to bankers i„ England and invested in the funds here ni their names, and the stock was afterwards transferred n.to the name of the Accountant General of he Court of Chancery and made the subject of a suit and a decree in that court. •d APPEALS. w 1..C ngh of ^ «"^ sent prevailing in theT P""''^'"' ^"^« ^^ P^e- 1 i i» 1 ;f » i E *s ^ ii i tl M ANTIGUA. Jn,Jgua is one of .he Caribbee Islands i,. the Most HISTORY AND CONSTITUTION. This island was discovered in 149'i hv r i i wbo na„,ea i. fi™. a church in ^^^^,^^^1^^ .and: S;:n!,%"a:The^Sa?""«1 '7^ "" Among them was a fnn „f a .1' ™""'" "* 'obacco. w!.ose"descend?n s St uVisetve IT" T'Tf' (^> penyin .be island ; one o'^ZS/rsfur^tnetC" ^j!> j Edwards, 484, 486. ^2; bee the account of Sir Tl, lO- mas^ W..n.er at title "St. Chri,. ANTIGUA. 125 having been in 1787 President of the Council and Com- mander-in-Chief in the absence of the governor. (3) In the reign of Cha. 1, (1625,) that monarch, by letters-patent under the Great Seal, had granted to James Hay, Earl of Carlisle, and his heirs for ever Barbadoes and the whole of the Caribbee Islands! But Cha. 2 purchased all the Earl's rights, took all these islands under his more immediate royal pro- tection, and by letters-patent under the Great Seal, bearing date 12th June, in the fifteenth year of his reigTi 1663) appointed Francis Lord Willoughby of Parham, Captain-General and Chief Governor of Barbados and the rest of the Caribbee Islands. (4) Ihis island enjoyed a legislative assembly at least as early as 10th April, 1668, this being the date of the hrst Antigua Act mentioned in the printed collections. And It appears by an Act of 13th April in the same year, that courts of justice existed in the island at the same period. This island being afterwards subd-.cd in the reign of Cha. k,, by a French force, all the former titles o^ Bri- tish subjects to lands therein became forfeited to His Majesty ; (5) but the island was afterwards retaken by the English arms, and new grants or confirmations of the torteited lands were obtained from the crown • in consideration whereof the assembly, by an act of 19th May, 1668, consmted to the imposition of the 4* per cent, duty on exported produce, payable to the crown tor ever, being the same 4i per cent, duty to which Barbados and other islands (as before shown) are subject. \\\^'^'^ ^^) Antigua, with St. Christopher's, Nevis and Montserrat (7) (to which the Virgin Islands were afterwards annexed (8) ) was consolidated under one (3) 1 Edwards, 473. (4) These facts are recited in an Act of Assembly of JVevis, No. 1 of printed collection of (hose acts. And see title " Barbados." Lord Wiliougbby's government is described, in act No. 2 of the same collection, as that " of the Caribbee Leeward Islands in America." (5) So declared by an act of the island after its restoration to Great Britain. See Acts of Antigua, iPth May, 1668, and the Laws of Mont- serrat.No. 4.-3 Rep, W. I. C. 31. (6) I Edwards, 4,53. In the same year Lord Willoughby was appointed Governor of Barbados, St. Lucia, St. Vincent, and Do- minica. Ibid. 41?. (7) See Antigua Act, 22d Juno. 1705. (8) Viz, under a commissior. granted by Cha. 2, to Sir William Stapleton. Edwards, ubi sup. 500. :4 12G ANTIGUA. general government, called "The Leeward Caribbee Island Government," and the Governor whereof was styled •; Captain-General of the Leeward Caribbee islands. His chief seat of residence was Antigua, and the govern.nent of each island in his absence was usually admmistered by a lieutenant-governor, or where no lieutenant-governor was appointed, by the President of the Council. (9) The general government consisted, besides the .wvernor-senji-al, of a general council and general as that passed laws on subjects of com- mon and I . al concern relating to the difFerent islands of wh:.,i it wasccmnosed ; but each island had, besKlcs, Its separate council, and its Legislative Assem- iny or House of Representatives. (1) ^ By commission, bearing date 2Gth October, 1689, in tne first year of the reign of WiUiam & Mary, the crown authorized the "Governors, Councils, and Assemblies of their Majesty s Leeward Caribbee Islands in America, jointly and severally, to make laws for the public peace, welfare, and good government of the said islands, which said laws were to be, as conveniently might be, agree- able to the laws and statutes of this kingdom, and to be transmitted to His Majesty for his royal approbation or disallowance of them." (2) In 1692 passed an act (now repealed) " for the administration of justice in this island." (3) On the 10th March, 1715, an act passed (which has (9) 1 K(i wards, 153. (1) See the printed edition of (he AntigiiiiActs.vol. 1,- I loa;;. One of (he most ronmikii , of the acts of the Leeward Islmids, say thecomniis- sioners, (3 Rep. p. 6.) was the act No. 28. " This act estabiisliud (lie General Councils and General As- semblies rormeriy held for (he Lee- ward Islands; securing at the same time to the particular islands their peculiar laws and local jurisdictions. It was provided that five represen- tatives shall be elected from each of the islands, (o make general laws. The absence of the representatives of any one island is not to exempt orexcusc such island from obedience to the general acts, provided a m&- jor'ny of the whole number was present at (he p.issing of jueli law." It appears, however, thai this Ge- neral Assembly passed no law wh,',t- evcr (luring the long period of nineiy-thrie years, viz. from 1705 to 17t'8, (he diflFerent legislative as- semblies for the various islands being, however, during this time in full operation. In ihat year it passed a Meliorating Slave Act, which was its last exercise of legis- lative powers. Sec also Edwards, ubi su|). 466. (''«« ('S before) a legislative council and assembly of its own. fb. ?rT''l-T"?*?' assembly is established over the islands of which this new government is composed. Ihe Assembly of Antigua settled on General Ram say a salary of 5000/. currency while he shouW remaTn within his government. (5) remain Mr. Edwards states that t\ie Council consists of twelve members, and the Assembly of twenty-five (6 nlfT •'"^^S^%«( ^"tlgua have no salary,^ but the Chief Justice of the Common Pleas receives some tri- fling fees. They hold their offices during pleasure. (7) There is an Attorney-Genera! in this island. ^^ 1 he same persons practise as barristers and as solici- tors and at ornies. No person can practise who has not been called to the bar in England or kept a suffi! c ent number of terms to entitle him ti be caLd^he^ It was formerly otherwise. (8) COURT!?. The courts of Civil Jurisdiction i.i this island, are Uie Court of Chancery, the Court of Error, Cou 't of Common Pleas, and Court Merchant, for the benefit of transient persons. The courts of Criminal JuSiction for Antigua, are the Court of King's Bench ani Grand (I) See Act of Aiitigun. 23tli Jui>',iai6. (5) By net of 25 July, 1816. ^fA 1 U VA... Ann (7) 2Rep. W. I. C.51,52. (8) Ib'J. 55. 3 Rep. 26. I S'"l 128 ANTIGUA. <;S; Sessions and the Courts of King's Bench and Grand Sessions for the trial of criminal slaves. Court of Chancery, This court is constituted in the same manner as the Court of Chancery at Barbados and Dominica. It is held whenever applied for as business occurs. This court, it is said, " exercises jurisdiction in cases of manumission by deed or will, as the Court of Chan- cery would do as to other interests under deed or will in England, where relief could not be obtained at law." Members of council, who in this island, it has been seen, are the judges of the Court of Chancery, are sometimes appointed as receivers to estates. The attorney-general said, " they are, and I think it objec- tionable, they are in the habit of voting upon it, and I think that is not right."— 3d Rep. W. I. C. p. 11. Court of Appeal and Error Is constituted by the act (No. 475,) clauses 155, 177. It is composed of the governor and council. The judges of the court, whose judgment is appealed from, are not allowed to give any vote, but may attend and assign reasons in support of the judgment. The governor and council decide by a majority. No time is limited for bringing a writ of error, but it is no supersedeas to an execution, unless lodged in the secretary's offices within fourteen days after judgment. Before the writ of error is sued out, the plaintiff' in error gives security to answer such charges as shall be awarded by the court, in case the first judgment be affirmed, appeals are not very frequent, and the ex- penses in the island are said to be very inconsider* able. (9) Court of Common Pleas. This court is composed in the same manner in Antigua as in the other islands, and is held by appoint- . ment of the act, (No. 475,) on the first Tuesday in the months of April, May, June, July and August. — 3d. Rep., p. 12. (9) 2 Rep. W. I. C. 186, 189. 3 Rep. 13. ilM . ANTIGUA. 129 Court of Complaints. Actions are brougl.t in this Court for debts not ex- hv«nT *;" P«""^^« currency. It is considered us a blanch of the Common Pleas, and is constituted by the same act, No. 475.-3d Rep. W. I. C. p. 13. ^ Court of Ordinary. mji'ln f T* n''""^^ '^ authority from the King's com- mission to the Governor, who is sole judge. The Ordi. ZllT,'^"" P°^'-'' °^ """?*'"« *" '^^"^fi<^^«' granting licences for murrmges, probates of wills, and letters of administration. « Neither the acts of the island, nor the Royal Instructions," said the attorney-general. make any mention of an appeal from his decisions but an order m council might, I should think, unde^ particular circumstances, be obtained for allowing an appeal to the King m Council."-3d Rep. W. f. C. p. l'°"^- Majesty or some of your royal predecessors in council, or by some act or acts ot Parliament of the kingdom of England ex tending to these islands, is in force in each of these your Majesty's Leeward Caribhee Islands Id iZ Mateli:^ -I'ereby the rights and propei'ties of your Majesty s good subjects inhabiting these islands are nretenl; '" ^^ ''^terinined, and diat all customs or a^;: meS nufand ^oidT^^^"^ -"^^^^^^^^ ^'-eunto nation under the late Commission for Inquiry into the Administration of Justice in the West Ii bp/ Tfr, noticing this act, thus expresses iLVe^ -I? TisuL more generally received opinion in this island hat all acts of parliament of the mother country pissed lie uSon't to tL r v""''"' t'T"'^ S'^'^" "" unqualified do h<- / f position I have always entertained a doubt as to the extension of the nenal sf-.fntoclf li .nether c„.,„t,.y, i„ consequence ^I'Tdiftt'ttnfh!" I ANTICUA— BARnUDA. ]5S obscrvetl to have been taken in the case of Dawes v. sinrn Y'l ^' ''^'^'"!""'« '^«P- 175. I have, therefore, Z1\F ''■ "^^'** "' " '"^ ""'cc'- "^ t''c crown, felt nyselt conscientiously bound on all occasions to allow the prisoner the benefit of this doubt; and as far as Slaves are concerned, their condition at the time of the establishment of the colonies was so totally different om what It now is, the powers of the master were icn comparatively so undefined and unlimited, that tnere could have been no one reason, as I conceive, for the adoption of the penal statutes of the mother coun- try towards them." (5) BARBUDA. m length and 10 Barbuda is a small island, 20 miles Vrn/w"'^^*'' '""^ ^''^ inbabitants are somewhat" more than low 111 number. The coast is dangerous, but there is a good road lor shipjjing. The interior is level, and the soil fertile. Ihe chief trade of the colonists consists of the sale ol cattle, corn, and provisions to the neighbouring islaaUs. 1 urtle are found on the shore, and the woods confRm deer and several kinds of game. The air is of such purity that invalids resort hither from the other parts ol the West Indies for the recovery of health. Barbuda was first settled by a party of colonists from St. Christophers, led by Sir Thomas Warner. The settlers were at first harassed by the Charaibs of Dominica, and compelled to desert the isle, but they soon afterwards returned, and have never since quitted the place. The whoe ol the island is the property of the Codrington family. 4 Ldw. 230, 5th edit. As this island is a mere dependency of Antigua, it has no courts of its own, nor any particular laws, but would seem to be subject in every respect to the government of Antigua. i .; (5) ad Hep. W. T. C. p. 61. 1 ( 134 ) DOMINICA. Doniinkn is one of the Caribbee Islands in the West Indies. It is twenty-nine miles in lengtli, and may be reckoned sixteen miles in breadth. It contains 186,4^6 acres of land, and is divided into ten parishes, (6) St. John St. George, St. Andrew, St. Patrick, St. Peter, St. Paul, St. Mark, St. Luke, St. David, and St. Jo- seph. (7) The capital of the island is the town of Roseau. (8) i ii HISTORY AND CONSTITUTION. Dominica was discovered by Columbus on the 3d of November, J4<)3, and was so named from its being dis- covered on a Sunday. It was included with St. Vincent and other islands in a patent grunted to Janies Hay, Earl of Carlisle, in the first year of Charles 1 . (9) iit-mI ^^F' ^'"^' Charles, by commission, appointed Lord Willoughby governor of Barbados, St. Lucia, St. Vin- cent, and Dominica, (1) but it does not appear that Do- nnnica was ever in the actual occupation of Great Britain under that commission. By the treaty of Aix-la-Chapelle in 1748, the English abandoned their pretensions to this island, and Dominica, with St. Vincent, St. Lucia, and Tobago, was declared neutral. (2) It surrendered to the British arms in 1759, ti;j}o^^,'''^' Treaty of Paris, signed the 10th of February 17bo, the former pretensions of England were re-esta- blished, and Dominica, St. Vincent, and Tobago were assigned to Great B'aain, in full and perpetual sove- reignty. (3) By royal proclamation of the 7th of October, 1703, It was declared that His Majesty had granted let- ters-patent, creating within the countries ceded by the Treaty of Paris, four distinct governments, one of which was to be " the government of Grenada, comprehending (6) 1 B. Edvv, 4iy. (7) ProclaniHtimi for reguliiliiig the election of (he Assemblv, 'i\&loi June, 177 b. (8) y Rep. W. r. C. 27. (9) t Edw. 11)7. Sec this pa- tent more fiillv noticed at title "Bar- bados." (1) 1 Edw. 411. ('.') Ibid. 400. (3) See tiiis article of the treaty in Loft's Reports, p. 660. < * DOMINICA. 13^ the island of that name, together with the Grenadines and the islands of Dominica, St. Vincent, and Tohago," and had directed the governors of such governments that as soon as the state and circumstances of the said colonies should admit thereof, they should, with advice and con- sent of their councils, call general assemblies, and should, with consent of the councils and assemblies, make laws, " as near as may be agreeable to the laws of England," and under such regulations and restrictions as used in other colonies, and had also given power to the governors to erect, with advice of the councils, courts of justice for determining causes " as near as may be agreeable to the laws of England." By letters patent, bearing date the 9th of April, 1764, General Melvill was appointed governor of Grenada, the Grenadines, Dominica, St. Vincent, and Tobago, with power by advice and consent of his council, as soon as the situation and circumstances of the islands would admit, to summon general assemblies to make laws " not repug- nant, but, as near as might be, agreeable to the laws and statutes of Great Britain." (4) A separate Legislative Assembly was, in pursuance of these authorities, convened in each of the islands, con- stituting the general government. The assembly of Do- minica was convened as early as the 16th of June, 1768, that being the date of the first act in the second table prefixed to Mr. Gloster's collection. (5) Prior to the holding of this assembly the island was governed by the ordinances of Governor Melvill and his General Council, chosen from the different ceded islands. (6) By the act just mentioned an ordinance of Governor Melvill and his council, for establishing Courts of Common Pleas and Error was revived, continued, and amended. This and several other acts passed for establishing and regulating courts of justice prior to the court act of J 803, are all repealed or have expired. (7) i i (4) TIlis proclamation mid the let- ters patent are stated in substance in the report of Campbell v. Hull, Cowp. 204, when the question of the levjring of the four and a half per cent, duties on these islands was discussed and de- cided. See ante, n. 3, p. 51. (5) In this coliectiQU the date as- signed to cacii act is that of its pro- clauiution bv the Provost-Marshal. See the Preface, Ixviii. (6) 1st table prefixed to Mr. Glos- ter s Collection. (7) 2d table prefixed to Mi. Glos- ter's Colleclion. i; "^ S' i36 DOMINICA. ''I of JhMlun"^S&' fr °"f """" °^ ''" '^Sislature npn.lo«f eiectert the same into a separate and inrle- witn that of Grenada, and appointed Sir William Younl- a^nd'Xrd^ieti^r™-- '"« -X' "»" »' «-S es,?b"lishi^c°fcott'?f ^h"''"''' '^Z*' "" "" P^-^d f-" ™^nder.Sete-,tr^^^^^^^^ DomWcr at 'r?'' ".-'"^ T ^^^'"'•>'y in thetltd of alTh^^LA ■^^"^'^'"S 'he election thereof; » (1) and querefl'TFrlJ,";- ""' '^i""'' ^"^ '"vaded and con- SaneJtnUamtr;'ms"''f ""t'"* '" ">»PO-ession dominion "( gZTkJJ^ ' "i"" ■" ™ '■'^'°''«'' '» 'he which then IS. pJeS!' "n ' "'If"?,^"' P^dfieation .iontheAsiUad^Lf„^.ti&e teS SiV»^lirl--£;-,rL£-^^ , (^) See Dominica Acl, 3cl of Ocfo- l^r. 1771 intituled " An Act (or pro- vid.ng a balai-y for l.js Excellency S.rW.-ioung" As to the present government of Dominica see ante .SV ^''.^.""^ ^^ctof tl.e'P2dof July 1778,recitmg that of 1774, and de- claring It to be in force. (1) This ordinance, therefore, it would seem, had been hitherto the authontjr (subordinate to that of the proclamation of October, 1763) under «h.ch the Assembly of Dominica had bfen summoned. Its date is not men. tioiied, but it must have been one of Oovernor Melvill's. (2) 'J'his proclamation will be found prefixed to Mr. Gloster's Col- lection of Acts. (3^ 1 Edwards, 435, 441, .. ^'^l.^r.*:'"*" '" Gloster's CoJIec tJon, III, lui. DOMINICA. 137 In 1784 Sir John Orde, Bart, was appointed governor, and called a new Assembly. (5) On the 5th May, 1803, an act passed, intituled " An Act for establishing and regulating the proceedings in the Courts of Common Pleas, King's Bench, Error, and Grand Sessions of the Peace for the Island of Dominica, and also for repealing an act intituled * An Act for esta- blishing Courts of Common Pleas, Error, King's Bench, and Grand Sessions of the Peace, commonly called the Court Act.' " This act is said by Mr. Gloster to be still in force, and to be that under which the judicature of the island was at the period of his work regulated. (6) Since the restoration of the island to the British crown, in 1783, this island has continued to be governed as before, under a Governor, Council and Assembly. " The governor's salary," says Mr. Edwards, "exclu- sive of his fees of office, is i'1300 sterling, payable out of the 4| per cent, duties. Whether he has any addition from the Colonial Assembly I am not informed." (7) ^' appears, however, on examining the acts, that on the 3d October, 1771, the legislature granted to governor Sir W. Young, and his successors, o6'2000 currency per annum during his actual residence in the colony ; and on 22d June, 1816, granted to Governor Maxwell, while re- sident, the like sum, in addition to the salary settled by the former act. The Council consists of twelve members, and the Assembly of nineteen, of whom nine are a quorum. (8) "The chief justice is appointed from P^ngland. He has asalary of nominally ,£600 sterling per annum, but nets about £550. He has also a colonial salary of what is called ^1500 currency, but annually subjected (9) to dimi- nution by the legislature. He has also fees incidental to his office that may amount to £300 or ^"400 a year currency. The other justices get trifling fees and no other emolu- (5) Preface to Gloster's Collec- tion, lii. (6) And it appears by 2d Report W. I. C. 30, to have been in force at the period to wliicli that report refers, viz. 18ii!3. (7) 1 Edwards, 441, (note.) (8) 1 Edwards 441. Proclamafiou as to Elections, cited sup. (9) 2d Report W.I. C. 43, 51. The word used in the report, p. 51, is " subjected," but it is reasonable to suppose that this is a misprint for " subject," the salary perhaps being voted every year, and therefore of course being annually liable to re- duction. K- ;fe 138 DOMINICA. h.. a 8ah.'y o? jfcS'™ '" "PP"'"'-''. ?«« Lome, but lony." (1) * °^ " P" """""' Piovideu by the co- chaTLVrL™'unite"dinth:''™'°" ""'' """""^^ ("hose by the CourAct wh L eLr'.S'"^ '^ Provided for barrister iu Enelali „r L I, ^ ^ "" ' .•"'™ admitted a ber of teraL, at one of thet^ ' 7 J^""' '"P'*"'^'' » »»■»- would ha vTer,ti°ied^Mmf„ "i "l"'"'',"' England, as hath beerreglrt XTtfnd """f* '" ""^ ■""■ '^ere or thTmonths nl'^t Z^TelT f '"f '™'-^'' -">^" the »hole time and ermrf-v- ''°^' ""'' '''"'" •"""''S ployed by aba-^rstroraSrintrnrn^'f'^ """ pvacfce, and employment of antC-ney'" '""'''' COLLECTION OF LAWS. estaWiJhmem of '*t'r-Vr'"'''"S,?" '"^'^ f™'" "-o earliest publi hed rtt ^r"; h''' t,'*";?^'' '^'»' '"" been L ^f the La:d' r^ti!TSb* ,^ rit- utX7 that the eompdation of the Laws of Dominica made bv i^Mst o^rb;v]nfa 'r-j^'st ™' r"'-'^-^" ''"--- sent year of oi?^- Lord X s 'i ' T"^^''' '" ""^ P'"" (1) 2d Report W. I. C. 43 ^. • DOMINICA. ISO GENERAL LAWS OF THE COL0NY.(3) The laws in force in this island are its own acts of as- sembly and so much (it is conceived) of the common and statute law of England adapted to the circumstances of tlie colony as existed prior to the proclamation of 7th October, 1763, and such acts of Pariiament passed smce, as are expressly declared or manifestly intended to apply to the island, or to the colonies in general.(4) On his examination under the late commission for in- quiry into the administration of justice in the West Indies the Chief Justice of Dominica thus expresses himself on this subject :— " The common law, as far as applicable to circum- ^ances and colonial situation, is generally followed, iheacts of the mother country antecedent to the colo- nial establishment, comprising the common law, are in torce also. Many English statutes are adopted and deemed m operation which passed before the cession of the island, and all statutes of England which affect us locally. (5) The Attorney-General observes, «' the rule upon this subject is so vague and so Httle understood in the colo- nies, that decisions founded upon it will be often contra- oictory. (6) COURTS FOR THE ADMINISTRATION OF JUSTICE. The courts of civil jurisdiction established in this is and are—the Court of Chancery, the Court of Common A leas, the Court of Complaints, the Court of Error, the Court of Admiralty, and the Court Merchant. Although cl. 11 of No. 2 speaks of judges or barons of the Ex- chequer, there is no Exchequer Court in Dominica. * 1 he crown," said the Chief Justice, " can sue for and recover its debts in all the regular courts already ex- n^^' r £. ,*'^'''^'' ^^ criminal jurisdiction are- the Court of Kings Bench and Grand Sessions of the Peace (3) See the remarks in the first chapter on the general topic liow far the colonies are subject to the law of the sRoth?? "ouiitrj . (4) See the remarks, sup. on the general law of St. Vincent, which seems to he exactly in pari casu with Dominica in this re»pecl. Hop. W. I. CM. I he pleadings and practice obtaining in this island appear, from the answers received, to follow with ( 'omplaitU C otirt. A Court of Complaints, similarly constituted to those in tlie t)ther islands, is established in D-nninica for the reco- very of debts to the amount of X.,-, which the Chief Justice considers "quite high enough." Some differ- ^'Jf^'io «T"T .P'^'"^'*^'^ '^' '« ^'^^ts not exceeding *o Us.b(t which are recoverable under the Petty Debt Act, and the Attorne> General conceived in no other iiel "Ustice eousiucrcd ihis court us possess- mg a concurrent jurisdiction.— 2 Rep. -10. DOMINICA. m ('ourt of Ordinary. In the Court of Ordinary the governor sits, alone and unasHisted, in all cases. There is not any taxing officer in thiH court. All original wills and tc^staments, after pro1)ate, are lodged in the secretary's office, and are never suffered to he taken away, conies duly authenticated being always delivered.— ;iJ Iiep< W. I. C. 40. ^ Court of Vke-Admiraltij. The Court of Admiralty has all the jurisdiction of the Instance Court in England ; it is, besides, authorized by acts of parliament to try seizures, or penalties incurred by breach of the laws of trade, navigation and revenue. The chief justice is sole judge. His authority is from the governor, under his seal at arms to be «' his deputy and surroffate in the Court of Vice-Admiralty in this island." 1 irates, and other such offenders, are sent to 9. Rep. W. I. C. 40. Antigua for trial. Court Merchant. This Court is revived and regulated by No. 74, Laws of Dominica, passed in 1817. By cl. l.'J of the expired act for constituting a court merchant, it is made a court of record ; and by cl. 14 the process and proceedings are to be conformable to the process and proceedings of the Court of Common Pleas. —2 Rep. W. I. C. 40. Court of Appeal and Error. The Governor and fim of the Council form this Court, which receives appeals from the Common Pleas, as does the Common Pleas from the Complaint Court. The jus- tices of the Common Pleas are expressly prohibited from sitting in this court. There is no limitation of time for bringing appeals from the Common Law Court to the Court of Error. The Chief Justice considers the regu- lated amount for which "appeals maybe brought, both trom the Common Pleas to the Court of Error, and from thence to the King in Council, as much too high."— ^ Rep. 41. ® 144 DOMINICA. hi^ Court of Grand Sessions. (noTtr/for„l^ the speaker, and alrre S^J^f C^'"' of council, members of the House of A ser^blv tIT^- 7 '° ^'' however nresidM in thia ^ ^J^^^y^Y- Ihe chief just ce seldom L^teSe '''"''' ""^ '^' °^^'^'' J^^s'^ very tice?o'f thelrrbeir. mJmh ''^""T"^' ^"^ ^»»- J- time take baiK as is 2nP ifv .?'' ^^ '°""."">' "^"^ «* «ny in England n term t\Z ^ Y ^u""'^ °^ ^^"^'« «enc^ vacation. ^ '""''' °' ''^ ^^^ Justices tliereof in or brought before hem tn fh^ f5 P""'"' ^''''^^ ^»*'«'"g W. I. C 42 ' *"" *^^ attorney-general.-^ Rep^ ing^V;renlJ;ed 1n7S 'V" ^"^>^' ^"' t*^- Proceed- plfadings The p"osecut°ol' "'' ^'^''^' ^"^^"^'"^ ^^e thedeffndants^!-^Rep"47' expenses are not paid, nor ney^;r«;f,?eS;^^^^^^^^^ ^^-^^^ustice and attor- ( 143 ) m MONTSERRAT Montserrat is one of tlie Caribbee Islands in the West Indies. It is about three leagues in length, and as many in breadth, and is supposed to contain about 30,000 acres of land, about two thirds of which are very mountainous or very barren. (7) It bears the cedar, the cypress, the iron- tree, and other woods, and has the same general character o\ soil that IS observable in the other Caribbee Islands. HISTORY AND CONSTITUTION. Montserrat was discovered at the same time with St. (Jiristopher s by Columbus, in consequence of a supposed resemblance between it and a mountain in Spain that was so denominated, from whom it received its name. The Spaniards, however, made no settlement on the island. Like Nevis, it was first planted by a small colony from &t. Christopher's. This was detached in 1632 from the adventurers under Warner. (8) The Council consists of six members, and the Assembly ot eight, two from each of the four districts into which the island is divided. (9) The island is under the govern- ment of the Governor of Antigua, and the duties of governor are generally performed by the president of the council. (1) COURTS. The several courts in the island are a Court of Chan- cery established by the act marked No. 185 of their printed laws, amended by the act marked No. 222: (2) a Court of King's Bench and Common Pleas ; a Court of Error, established by the act marked 89; a Court of Vice-Admiralty, a Court of Complaints for the recovery of small debts, and a Court Merchant for tran- sient traders, and for criminal matters there was a Court of Grand Sessions. (3) The President of the Council, in the absence of the Governor, of course presides in the Court of Chancery. The chief justice is not a lawyer, but a resident gentleman of fortune. The attorney- (7) 1 Edw.49r. (8) 1 Edwards, 496. As to War- ner, see title St. Christopher. (9"\ 1 Edw. 40R. •J 1 il (1) 3Ren, W, L C. 34. (2) Id. 33, 34, 35. (3) W. ib. 144. * '^* MONTSERRAT. general h also a private gentleman. They act without salary or other advantages derived from thei^ itTia o in tt^lnd "(4)''"'^' "" '" -odeof administering justice COLLECTION OP LAWS. The laws of the island are contained in one printed and two manuscript volumes in folio. The manu W acts are very numerous. (5) "lanuscript This island possessed a legislative council and assemhlv at least as early as 1GG8. that being the date of iTfiS act^n Its printed collection of laws ^'^^ That act, which is intituled " An Act dechiii.m tl.« former pnt of the duty of four and a ha f per eenf lo t N^;erjands, liis M^!^ {J«t le^eSf of ^i^2n^i t Te Indianr-^fT^ subdued by the French, assist d by tne Indians, 'and amongst others, this island also beiim mentT/r'''^!' thereby all the constitution of govern? concermng the same by reason of ,l,e conqL afo3 A^the same ,s hereby declared null aSId void?a?cord: Then follows in the same year an act, intituled " \„ Act for new granting and confirming the duty or custom of four and a half per cent." After recitii./fhL ?< i all the inhabitants of this His Majesty's island mmr ner of evil governments, tho seveil const tSsfgrX (4) 3 Rop. W. I. C. 33. (3) Id. ib. _ (6) A fraditioii is mtiuioiicd as ex- isting in the islaiui, that (lie old riaiit was wilfully destroyed by the .er- vnnts of the British crown, and that the loss of it at the conquest of the island by the French was a mere pre- tence; the ground of the alleged Iraud being that the old "r«nt i:n,;Te(j tlie application of the four and a half per cent, revenues to the purposes of tlic local governmenl. Jhe West India Commissioners (3 Rep sn state and discredit this piece of tra- dit.onary history. The ministers of i^iarles 11. however obtained a crant which was accompanied with no such restriction. MONTSERRAT. j^ and particular properties of all Ins said Majesty's subier-f, en^ts'^K '^"^'-; "^^1''" this his "S^rnd^i enacts that from and after the date thereof a new iJ out of'airf ' '""V""'* '^ ''«'^ P- ce^ shall be paTd out of all he commodities of the growth of this islJn 1 utt '^" '^' ''?"''^^^ °"' "*• ^'"^ i^l.ndty every such ^ansporter, unto the use of His Majesty Ki^nrCharL &c., his heirs and successors for ever AnJ f»,« •' and shall be hereby confirmed on ' M^esty ' hLTe'r': and successors, in as full and ample mannTr 1^' ever the «ame was heretofore paid, granted, and confirmed in Barbados, or any other of Is «aid Majest/r Tands" ?te;rfi=tZirreiS to l,,s Majesty by reason of the French conquest 3 And then follows another art nKn in tu P^s^^z^t::^^^ t et'€S they shall and may, when reasonably desired \ZJ*hl same so confirmed by patent under the gr?at s^af of Bar bados and the rest of the Caribbee Isfands for that purpose by h,s said Majesty appointed," whh the excep tion of certam lands m the act particularly specified ^ ingttbXi4^-fT;Lt^?.- Nevis rs^ 72 \""f 7,^*' Antigua. St. Christopher's, and annexed? r9?±^ *^' r!''^'" ^^^«"^« were afterwards annexed,) (9) were consolidated under or e general go- (7) 1 Edw. 4j3. In the same ^■ear Lord Willougl.by was appoint, ert governor of Barbados, St. Lucia, fet. Vnicent, and Dominica. Ibid. (8) See Antigua Act, 22d June, 1 70,-). ' (9) Under a coramission eranted Mw. iibi. sup. 501. :5 '*^ MONT8ERRAT. tai r ' ' ""^' '»<^^fe'"vernor whereof wus styled " Cap- tain-General of the Leeward Caribbee hhiuh." ^ ^J!!^JZ Sov*^'»ment consisted, besides the governor- general of a general council and general assembly who ?eTX'To tZ'rli''*^ ofconunon'and universal co'ncern posed 0) "'■''' ' ' "^ '"'''"'' •' ^«« ^°"»- This island was invaded by a French force in 1712 (2) "eat oTut^rlr '""'Tl' ^ «-«^ Britain under' tifi 1713 '^^'^^'"^ concluded on or about 31st March, ^^It^was again invaded and captured by the French in On the 28th December, 1782, passed an act CNo 217^ rectjng that in consequence of the capture oniLt island by H.S Majestv's arms, doubts had arisen as to the va U hy Courts Tr?^ '"'*' ^'!^ I'^«^^«« *»>^" depending In h^ Pleas^fthe^T/^-^^^^^^^^ ^'"«'^ Bench, and Common 1 eas ot the said island, and particularly whether the said suits and process can be carried on in the same ma ,! tZlVLTc "'""^!"n^ «till continued under the suKec. tionof the Crown ot Great Britain. And the said act provides that all suits, &c. depending in the said courts at he time of the capture by His Majesty's arm on the -WIebruary last, shall be revived and made valid and restored to the same plight and condition as at the ime of the capture by His Majesty. « And the several pla miffs at law and in equity, in such suits are hereby fully aX! rized and empowered to proceed to final judgmems and decrees thereupon, or otherwise, according toX nature of their respective suits, and likewise to^all subsequem process, in the same manner as if the said island had no been captured but still continued under the sub ection of His Britannic Majesty aforesr 1," &e. ^ Ihis island was finally ceded to Great Britain under the general pacification which took place in 178. J (37 An April, 17»1., No 22o,) which, after reciting that doubts had ansen as to the validity of suits depending at the time (1) Sec ante AdHgua. See priiilecj edit, of Antigua acts, vol. l, p. i to 83. ' ('2) 1 B. Edw. (.?) Ibid, 497. MONTSEIIRAT. 147 of the restitution of the island by the Frencli King to Hi« iVIaiesty, tleclured such suits to l)c vaUd, &c. On the said 27th April, 1784. passed an act (No. 22G), intituled "An Act for confirming and establishing several Acts passed by the Legislature of this Island during the government thereof under the French King." which re- cites, that doubts had arisen as to the force and validity p the several acts passed by the legislature of the said island durmg the government thereof under the French King and that It was highly proper for the ease and benefi of his Majesty's subjects in the said island that several acts, from which his Majesty's subjects had de- rived great advantage, passed by the legislature of the said island during the government thereof by the French King should be confirmed and restored to the same state, condition, force and eflect in which they were at the time ot the restitution of this island to His Majesty." And the act proceeds to provide "that all and every the following acts passed by the legislature of this island during the government thereof under the French King, that is to S/" ^% l^^'^f and passed the 19th day of September, i7SJ, intituled 'An Act to alter, amend and explain cer- tain parts of an act intituled An Act for establishing a Court of Kin^s Bench and Common Pleas and a Court ot Horror, and for the more speedy execution of justice, and for collecting certain fines and penalties on the offi' cers taking other fees than allowed in a docket settled bv his excellency by advice of his council,' and one other act made and passed on the same day, intituled « An Act to alter, amend and explain an act intituled An Act for constituting a Court of Chancery to be held in and for tins island, the force of which, in consequence of the late restitution of the said island to your Majesty may have abated or been rendered of no effect, shall be and are hereby revived, confirmed and made valid to all intents constructions and purposes whatsoever," &c. One of the acts of assembly of this island is too curi- ous to be passed over without notice. It recites, in an l!.astern style of metaphor, that opprobrious language, if not prevented, may overshadow the good government and administration of justice in this island with the staple clouds of reproach and infamy," and it then proceeds to prohibit such language generally, and the following nick- 148 MONTSERRAT. ss'L^^itcl;"-" ''"'^-''"«'''''-°'- '™^^ •or COURTS. The commissioners state that it is not in their power to enumerate the courts of judicature in this island, no an^ th7m toTf v'? -'''"'^ '"i '\' ^"^«*'«"« addressed by - 3 Rep. W. I C im '''''^'"' ''°^" ^^''y^'' Court of Chancery. l^J^^^'f^K^'K^u^r''''''^ ^PP^^'^ *° ^^^e been constituted %2ii ' ^^"'^ ^^' Montserrat, and amended by By the former act the Governor or president, and five members of the council, compose a court. liy No. 222, in case of the Governor or president being a party to a suit, the next senior member of council"! Sn ff ^P"^^.«'t' «"?*'«rwant of five disinterested IZ Z^ act as judges, three or four members of council court ''*'""'' nder-in-chief) to form a Court of King's Bench and Common Pleas. k3^ r""* f the island. No. 89, creates a Court of of nnl^r'J' •^"^- ^^'"T". ^'^^'^' ^'^'» «» establishment ot one chief justice and four assistant judges. « to try causes according to the laws and usage of Great Britain and the laws and usage of the island."-3 Rep. W. I. C. 34. Other Courts. A Court Merchant for transient traders was established so late as the year 1800. ^^situubnea There is also a Court of Vice-Admiralty, and it seems under clause 8 of the Court Act, a Court of Complaiiits^n this island, or at least a jurisdiction for the recovery of small debts. •' (I) .5 Rr|,. w. f.cr.j, MONTSERRAT. 149 Court of Grand Sessions. N J'fifi ^'O"?'* was established under an act of the island. No. 86, which act however provides only for one gaol de- livery in the year.^2 Rep. W. I. C. 35. ^ fr^L.^ ^*'' constituting the Court of Sessions, all magis- trates are required to attend. ^ Justices of the Peace. Justices exercise a summary jurisdiction in civil mat- Ixceed i'lol'l^' '•? f cases where the debt does not exceed^lO; appeals to a higher tribunal are ^^Howed where the sum exceeds £3 currency. —owea The only case in which the practice of granting search warrants in this island differs from the^p.ocee^dings in England is in t^ . mode of searching ne^ro houseffir stolen goods, when no warrant is necesfary, but the present "''*'^'' "' °'^''''^' "^ *^'^ plantation must be A prisoner when acquitted is instantly set at large-the fee,s charged to the public; the expense of proslcutions IS borne by the country, but persons found guiky of assaults pay for the prosecution. ^ ^ Inquests on white and free people are taken as in Encr. land; on slaves, as the Melioration Act prescribes "" Information of sudden or violent deaths is received from the owner, attorney or manager; never in this island from the slaves.-3 Rep. W. I. dm. ^ I ( 150 ) NEVIS. Islands in the West Nevis is one of the Caribbee Indies. fjL'^ ''''f'H^ T''^ *^^." ^ ''"g^^ mountain, the circum- is Chtfij'T'^ '"*° five parishes. Its seat of government iShi ^-^""l"' ^"^ ^^^^'"^ ^^*^ <^^o other shipping places called Ind:an-Castle and New-Castle. ^'^ ^ i' fZ/J"™^^l ""'^ ""^'^^ inhabitants at the period of Mr. Ldward s work IS stated at about 600, and the negroes are said to be about 10,000. (1) "cgroeb HISTORY AND CONSTITUTION. . The English first established themselves in this island in the year 16^8 under the protection and encouragement ot bir Thomas Warner. (2) It is said that in 1640 it possessed 4000 whites. (3) Ihis IS and possessed a legislative council and assem- bly at least as early as 1664, which is the date of the first act m Its printed collection of laws. That act which is intituled "An Act for settling an impost on the commodities of the growth of this islaSd," recites that Cha 1, did by letters-latent under the gre^t seal of England grant and convey unto James, Earl of Carlisle, and Ins heirs for ever, the property of that Island 1?^ u'.?"'^.*'l'* ^^/- ^' ^^'^ ^y P»r^hase invested him- self m all the rights of the said earl, (4) and in all other lights which any person might claim from that patentor any T^Tih . T.^y T'% """mediately had taken that island and the rest of the Caribbee Islands into his royal protec- ri) 1 B. Edw. 468 to 470. (2) 1 B, Edwards, 470. See title " St. Christopher," for an account of Sir T. Warner. 'I'he senior King's Connsil at Nevis, examincil under Mr. Dwnr- ns's commission, speaks of 1625 as the date of the "first settlement of the colony."— 2d Rep. \V. J. C. 62. (3) 1 B, Edwards, 471. (4) See Ihis transaclJon explained at tide " Barbados." NEVIS. 151 ^on and had by letters-patent under the great seal of Jb^ngland, bearing date 12th June, in the fifteenth year of his reign appointed Francis, Lord Willoughby of Parham. Captain-General and Chief Governor of Barbados and the rest of the Caribb. o Islands, (5) with full power and authority to grant, confirm, and assure to the inhabitants of the same and their heirs for ever, all lands, tenements, and hereditaments under His Majesty's seal appointed tor Barbados and the rest of the Caribbee Islandsf The act then recites that by virtue of the said earl's patent divers governors and agents had been sent over thither with authority to convey in parcels the land within the islands to such persons as they should think fit, which had been performed ; but many had lost their grants, &c. ; and that an acknowledgment of twenty pounds of tobacco per pole, and other taxes had been raised by the island to Uie isarl of Carlisle, whieb had been held very heavy. Ihe act then proceeds to provide that all the now rightful possessors of lands might repair io his excellency for a lull confirmation of their estates and tenures under the pubhc seal of the island, and also that the payments of the twenty pounds of tobacco per pole, and all other duties due to His Ivl^esty in right of the earl, shall cease; and that the inhabitants shall hold their plantations to them and their heirs for ever in free and common socage at the rent of one ear of Indian corn. And in con- sideration of such extinguishment of duties and confirma- tion ot lands, the act lays on an impost payable to the ofZ idInT(6f' ^ ^" '^"' ^" ^" *'^ ^^P°^^^^ P-^"- In 1072 the Leeward Caribbee Island Government was tormed m the manner already related. (7) It may be doubted whether the general legislative assembly of the Leeward Caribbee Islands had any existence till the com- ?«fr" *!f ?^™' ^' J"? }^^^- I*« P"n'ed acts begin in IbJU, and the act which declares the power of the general assembly over these islands is dated in 1705, (see ante, 131.) By commission, bearing date' 26th October, 1689, in the (5) "Or of the Caribbee lee- ward Islands in America," as it is expressed in the Nevis Act, No. 2. (6) This impost, as elsewhere ex- plained, is payable at Barbados and all the Leeward Caribbee Islands. See the different titles. (7) See ante, Antigua. 152 NEVIS. first year of his reign, King William 3. authorized « tl,P severally eo .ake'L/t"t 7^:^::^, ^ ^^ good government of the said islands, which sardlaws'wer^ to be, as conveniently might be axrrppnhl^^ tTlu i , S"V '"" '•"^"' """"•""'^^ <"• disapprobation of iimmmBm mon Pleas, and settling due methods for fh« T^ ^T' The " Leeward Island Governmpnf" «^ i parateu. i he commission under which till Hip l^if , ferenf iSTae' ^n^, f,^7"=™»'-gover„„r .0 each dif- geJeral counc;fr'"""\f "T' «»™™™ent has not a Ml-. Edwards stales that in the absence of the eovernor .r Prl dd'e^r'T?."' °f-,*'' ■^'»'' i^ adSered by ti'Xttzt^ ^"-'^'^ ""f-" represrjt: tt t'h*: The chief justice and assistant judges are said to be (8) This commission is ruciled in ail Order in Council transcribed in the pnntcd acts of Mmitserrat, p. 13. (9) With respect to the Court of Umncery it derives Its nuthoriiy en- tirely troni the Kii.g'.s ,.„,„|„i,5i^,. and instructions to the governor, there being no local law on the subject 2d Hep. W. I, C. 67. (1) 1 B. Edwards, 468. (2) Ibid. 470. NEVIS. 153 tSl^T. by the governor by patent, to continue during pleasure. Ihey have no salaries, and (except the chief justice, whose fees are settled by law,) scarcely any fees. (3) 1 here IS no attorney or solicitor general in this island. Ihose officers reside at St. Christopher. The chief law officer of the crown is called the senior king's counsel. Ihis gentleman, when examined under the late commis- w" . T '"^"'"'"g '"to the administration of justice in the West Indies, was asked whether it was requisite that per- sons acting as counsel in these courts should have been called to the bar in England, and if not, who were ad- mit ed to practise and in what manner? his answer was- that persons who have been called to the bar in Ene- land, as a matter of right, as of course, and persons whofe competency is made apparent by certificate, or upon motion in open court, by the usage of the courts, are ad- mitted to practise as counsel and solicitors, or attornies. and as advocates and proctors in all the courts respectively and such admission is considered to confer the same pril vileges with the same restrictions and controul of the courts as does an admission in the mother country there,- but I have been able to trace no rule of the court as to these matters. In the Court of King's Bench and Com- mon lleas m this island however counsel are not privi- leged to practise as attornies, and do not, there being only four a ornies allowed by the Court Act. But the present four a tornies have been admitted barristers also; one by special mle of Court." « There is no rule of court as to the qualification of persons to practise as attornies; but the court IS satisfied of their ability or competency before admission, which is obtained in like manner as in the case of barristers. They are not limited as to clerks."(4) COLLECTION OF LAWS. *. ^frf ?" f^^''°" °f?'^ ^^^« «f the Island from 1664 ™(5) inclusive, with the Acts of the Caribbee Lee- ward Islands annexed, printed by authority of the lords of the coinmittee of the privy council for trlde and plan- tations. This IS scarce. ^ There is another from 1664 up to 1774. minted by the (3) 2 Rep. W. I. C. 55 and 3 Rep. 53. (4) 2(1 Report, W. I. C. 55. (5) This should be 1739. It was printed in London by ciie Kino's printer in i?40. " 151. NEVIS. authority of the legislature, and made evidence bv an act forthat purpose, and this is also scarce. ^ 1 here is a third from 1664 to tlie middle of 1818 nrinted by authority of the Council and Assembly; but thi^ss^n- accurate the press not having been properly revised or 10 IS were, in 1825, m manuscript only. (6) ^ GENERAL LAW OF THE COLONY. (7) ,u^/?''uT ""f ^^"^ Leeward Islands of 7 June, 1705 in- tituled An Act to settle General Councils and General Assemblies for the Caribbee Islands in AmerL and to secure to each particular Island their own pec"lkr Laws and legal Customs." it is provided that all the laws and itT-'n "°^'" ^°^^^ ^" -^h -d every of the Ca the slL r ' T^ respecting only the circumstances of the same, be and remain m their full force and virtue.(8) , J/.^".o'Jer act of the Leeward Islands of 20 June 1/05, intituled "An Act for preventing tedious and chareel tenants, it is declared " that the common law of England thet ?/* f "^^""«^t^red &c.(9) is in force in eafh of these Islands and that all customs, &c. contradictorv thereunto are illegal, null and void." comraaictory , l/pon the examinations under the late commission for Self " Th^' ^'"^ ' counsel of Nevis thus expressed mmselt - The common law of England, unaltered bv h7sZtZ"Vt '^^ ^^^™^ I«"^ «' tW« Inland, or by some Acts of Parliament extending to the Colonies is considered the certain rule whereby the rights and pro perties of the inhabitants are or ought to be determin^ed • and all customs, or pretended customs, or usages Contra drctory thereunto are illegal, null and void. A^d all Acts ?lw • T"' f '\^othev country, antecedent toacer- [l^npenod, and applicable to the colony, or which name the colonies, or are expressed to extend to all His Ma- jesty s dominions, and also Acts of Parliament regulating the practice of the Court of King's Bench, or thi Cour? (6) 2 Rep. W. I. C. 58. (7) See the remarks in the first chapter on the general topic how far the colonics are subject to the law of the mother country. _ (8) Sec title " Antigua," where 'lie recitals of this act are given. (9) See ante, Antigua. NEVIS. 155 frts'^T'' ^-^f"'' r''^'^ I^"^*' *« '''^ C'>"»'<= Act, anno, IJJxJ, are considered as operative in this island. But that l^/^^^yerwd does not appear to have been settled by any judicml decision that I have met with on record here. By the 25th clause of the Court Act, whereby the Statute of Frauds of 29 Car. 2, is extended to this Llami; t T pears that Acts of Parliament of that date, 29 Car. 2, we?e date 1 do not find possibly soon after the final settlement In the case of Campbell v. /ia//, Howell's State Trials vo . 20, p. 289, LorcfMansfield is reported to have said ; It IS absurd that m the colonies they should carry al the laws of England with them. They carry such only as are applicable to their situation. I remember it has f "Ik ''u"''"^'^ '" *^^ ^°""^''- There /as a question whether the statute of Charitable Uses operated on the island of Nevts. It was determined it did not; and no laws but such as were applicable to their condition unless expressly enacted. Of the Laws of Nevis the principal are these:— JNo. 33, cl. 1, enacts that the cororer shall execute his office pursuant and according to the .^aws and statutes of Hinglanu. A^\\^^\ n-^t-^°"u A^t«f th'« island, intituled An Act for estabhshing the Courts of King's Bench and Common Pleas, &c. &c. with such powers as the judges ot the two courts at Westminster respectively have or ex- ercise, subject, nevertheless, to such jurisdiction, power, &c. as the Court of King's Bench, at Westminster, hath nions fn °''^'' ^ '^''"'''^ '" ^'^ Majesty's domi- No. 135. An Act for holding a Court of Sessions once every year. Cl. 3. The justices of the Court of King's Bench and Common Pleas are exempted from sitting in this court. (1) It is said iiowever that appeals go from the Court of King's Bencli and Common Pleas to the Court of Error, and thence to the King in Council, notwithstanding the clause of this Court Act, which seems to re- serve the power of appeal from the Court of King's Bench and Common Pleas in the island to the Court of Ki W. .>.uo lu nic ibiaua lo iiie tjourt of king's Bench in England.— 2 Rep. V. I. C. 186. ' III ■HI 156 NEVIS. rll f. I whicli is composed as it is vaguely said of " about thr justices of the peace."-3 Rep^ W. I. C. 4>2. ec Cou RTS. JdnT^i ^°"''^«i«'' the administration of Civil justice in this island are :-the Court of Chancery, the C^urt of Ordi- nary, the Court of Error, the Court of King's Ber cli and rZJ ./f^' ?^"'^ ^"^ ^°'"'»«» Pleas, and the island ^^^ ""'^ established bj the laws of the The courts for the administration of criminal iustice are:-the Court of King's Bench and Common pUs, the Court of Error, according to the classification of the King s counsel,) the Court of Session, the Court of Jus- tices of the Peace, the Slave Court, the Courts of Oyer V;i^^r'-"T. «"d general Gaol Delivery, the Court of Vice Admiral y, and the Commission Court for the trial of pirates. The first five are established by kws of Ihe island ; the sudceeding three are derived mediately, (i. e. the Kin ''^^*^'" ^^"^'^^'^ *^'^ ^^'' immediately from The Court of Chancery. le Court of Chancery in this island derives its a entirely from the King's authority and inttructic ,i.J!!^."7'i"' ''"''"^'•y '" ""s "s'"""! derives its autho- thJr. • ^ "'""■ '•"= K'»g? """•ority and i„Uructions to iponX'sufer'' *"' """^^ "" '°'='" '-"ha'-ever ^ There is one master in chancery, appointed bv the can- X" s'er^'. """ """ '' '^"™"''' ''^" H' "»-" "»' S™ Costs in this island are taxed by the Master who i ) ST. CHRISTOPHER AND ANGUILLA. wl; ^^"'''''^^'f l« on? of the Caribbee Islands in the West Indies It hes in 17'' 15' north lat u.kI 03" 17' west longitude It i.s about fourteen leagues in circuit and contains 43,7^6 acres of land. It is dlvidedlnSe parishes, and contains four towns and hamlets, viz. l^asse- terre (the present capital, as it was previously that of the French) containinr. about 800 houses, Sandy Point, Old Road, and Deep fiay. (1) When Bryan Edwards ^rote, the number of white inhabitants was computed at 4000 aboursoOhr'J'''':! °",^6'000 negroes, and there were about JOO blacks and mulattoes of free condition. (2) ■fj'gutlla is an Island sixty miles north west of St. Christopher (3) It is now said to be a dependency of the latter island, and to send one member to its assembly! fK^ '" A continuation of Mr. Edwards's book it was said nh?.f ^"^"'",^ *'^' f " ^''^'"'^'y «^ its own, and even a chief, who IS always chosen by the islanders, though he is confirmed m his office by the Governor of Antigua." (4) It IS in length more than nine, and in breadth its than three leagues. It was settled by the English in 1650. HISTORY AND CONSTITUTION. St Christopher's was discovered in Novei iber, 1493, nLp {?."•/""'"'''. r^° ^^^^ i^ ^>« ow. Christian name. But it was i oither planted nor possessed by the Spaniards. It is the eldest of all the British Co- lonies in the West Indies, and, indeed, the comnion mother both of the English and French settlements m the Caribbee Islands. Mr. Thomas Warner, with fourteen other persons, sailed from England and arrived at St. Christophers m January, 1623, and by the month (1) 1 B. Edwiuds, 462 to -i67. (a) 11). '\67. (3) Brooke's Giizetlcer. (4) 4 B. Ivhvards, '.'17. UiO ST. CIIRISTOPIIRr's. of September following? Iind raised n good crop of tobacco. 1 he hrst actual establishment in Uarbados did not take place till the latter end of IG'M. (5) The Kn^'lish found the Charaibes in possession, and vith them they continued to live for some time on amica- ble terms. In IVIjiy, IG24, a ship of James Hay, Earl of Carlisle, arrived ni the colony, having been sent out there at the solicitation of Warner, with necessaries for the new settlers. In 1625 a party of French adventurers landed in the island and were well received by the English, and shortly afterwards the settlers of both nations fell upon the Cha- raibes, destroyed great numbers of them, and drove the rest from the island. ((>) In the first year of Cha. 1, (1025,) that monarch, by • letters-patent under the Great Seal, granted to James Hay, Earl of Carlisle, and his heirs for ever, the whole of the Caribbee Islands. (7) In IGpG Warner was knighted, and through the interest of Lord Carlisle sent out from England as Governor of St. Christopher's ; and in 1C27 a treaty of partition took place between the I'higlish and French commanders, by which they agreed to divide the island in nearly equal parts between their respective followers. (8) In 1G29, a Spanish force invaded St. Christopher's, expelled both French and English, laid waste the set- tlements, and reduced the country to a desert. The two latter nations, however, were afterwards restored to their possessions in this island. (9) In the reign of Cha. 2, that monarch purchased all the rights of the Earl of Carlisle, and took the whole of the islands granted to the earl more immediately under his royal protection. And by letters-patent under the great seal, bearing date 12th June, in the fifteenth year of his reign, (1663,) appointed Francis Lord Willoughby, of Parham, Captain-General and Chief Governor of Barba- dos and the rest of the Caribbee Islands. (1) (5) 1 B. Edwards, 4.ii, 4j,5. (6) Ibid. 417. (7) See Nevis Act, No. 1 of priiilcd collection. And see title Harbndos, wlieie this matter is more fiillv stated. (8) 1 B. Edwards, 458, 459. (9) Ibid. 18!^, 183, 459. (1) Nevis Act, No. 1, printed col- lectioM.and titles " Barbados," where this matter is more fully stated. m ST. CHHIsTOPUEn's. 101 IcIS (!i) ' "'''"'""'' '-^'"^'^"ti"" »>y the treaty or lirodu i° Fri'.'u-l/S I'l"' ^'"^'"f"' ^^'■•^ "«"'" ^'''P^'»«d by their hv/r ^ P «f ss«on, but were themselves in turn reduced uV(^ »^^"«l'«h under the comn.and of General Codrlng! 08 eari?a?'^"/'l''A' ""^"^^1" '^'«'«l«tive asscnd,ly at least war F In: . r ^""^''f^' '^•^'''' ^'"'" ^^^ "" »^t (,f the Lee- Tl on ell^';^^: ('^•^ '^ inciientally appears tlmt n noLj n '''""^^V'^ "",'""''. t''« ««"^''-"> Rovernment was composed possessed at that tin.e a Council and Assembly 1 h.s appears to have been secured to them by the comm a' LLwt(^^o'ihr''77'''^S^""''^^ ""^^ Assemblies of thj i-eewa (1 Lard)bee Islands were authorized " jointly and everally to „,ake laws for the public peace, wd fanf and mlZTTf "^ '^'' '^^'"1 '''^»"^«- Before tZ'yea 1704 the hngl.«h appear to have conquered that part of of'the iSir'f which had fonnerly been in possesion ot the French, for in that year Mr. Attorney-General topbc.s lately gamed by conquest from the French," that gK.it seal of luigland, dnect and con.mand the duty of 4^ per cent, to be levied on goods exported from te con- quered part. Her Majesty by her prero^Xe be.W In 1711 an act was passed in St. Christopher's (No. I of pnnted collection) intituled, "An Act for the es a trZ ?-'"';-'^ "^^^ f."''"« ^'« •"^t^^'^ds for the admi- nistration of justice in this island. (6) (2) Act of St. Christopher's, No. ^!8. cl. a, of piintid collection, 1 Ititlanrds, 460. (.'!) Act of St. Christopher's, No. 38, cl. 1, of printed collection, 1 Ed- wards, 461. (4) Among the acts of the Leeward Islands annexed to tlie printed nets of bt. Christopher's. (5) 1 Chill Op. 141. (6) " 'Jhis act was repealed by another passed in 1724, (No. 69.) But several objections arising to that act it was not confirmed, but ordered to lie by probationary. Therefore both acts are printed." Note in margin of the printed collection. It is the act of 17!i4. (No. 59,) however, which is considered in St. Kitt's us the existing Court Act. 2 M 162 ST. Christopher's. if iff On 13th November in the same year, an act passed intituled, " An Act for preserving the Freedom of Elec- tions, and appointing who shall be deemed Freeholders and be capable of electing or being elected Representa- tives." (7) By the peace of Utrecht, concluded on or about the 31st March, 1713, this island was ceded wholly to the English, and the French possessions were afterwards pub- licly sold for the benefit of the English government. Some few of the French planters, however, who con- sented to take the oaths, were naturalized and permitted to retain their estates. (8) In 1727 an act of St. Christopher's (No. 68) passed, to subject all goods, the growth of the late French part of the island, to the payment of the 4| per cent, duty, which the act recites to have been laid on the Leeward Islands generally, by " An Act of the General Council and Gene ral Assembly of the Leeward Caribbee Islands in Ame- rica, called or known by the names of Nevis, St. Christo- pher's, Antigua and Montserrat, made in or about the year 1663, and entitled an Act for settling an Impost on the Commodities of the growth of the Leeward Caribbee Islands." In the same year (1727) an act of St. Christopher's (No. 71) passed, intituled " An Act to enable the several parts of this Island, formerly belonging to the French, to choose and cend Representatives to serve in the Assem- blies of this Is'and ; to declare and ascertain the Number of Representatives for the whole Island, what number each Parish shall elect, and the several qualifications of the Electors and Candidates ; to secure the Freedom of Elec- tions, and for repealing an Act of this Island, dated the 13th day of November; 1711, intituled " An Act for pre- serving the Freedom of Elections and appointing who shall be deemed Freeholders, and be capable of electing or being elected Representatives." In 1782 St. Christopher's was invaded and captured by Rep. W. 1. C. 52, 58, 186. The (7) Mentioned and repealed by Court of Chancery in this island does No. 71 of printed acts, not derive its autiiority under either (R) See Act of St. Christopher's, of these acts, but only under the No. 71, 1 Edwards, 46J, 462. Governor's commission. Ibid. 52 to 66. ill ST. Christopher's. iQg a French force; but it was restored to Great Britain ""m'^J.^! general pacification in 1783.(9) cil shm^^?'"^- !*'*r ^^^^ " ^" ^*- Christopher's the Coun- more ?hin r'''' °^ '"" "^embers; but it is seldom that Se a Quorum '^?"/°"' representatives, of whom fifteen of fottv arrP. nf 1 A '^^"'f ^^ qualification is a freehold fi.o 1 ^. 1°^ ^^''^' °^' a liouse worth MQ a year Of the electors the quaHfication is a freehold of ^10ryear.( ) The appointment of the chief justice is generally con- itT^*- ^/""^ *^ '^'^ government at homT The W assistant judges are appointed by the Governor, and ho W veTnrr"l^r,-T-""'^^ '^^ ^-^^ seafof'the gi^ tZTo^l' ■ ^ "^ "^.^ J"'*''=^ ^"'^ ^"« assistants all hold tTr^::^^^^^^--- "^^'-y »-e no salaries. There is an attorney-general in this island. It is not required that persons acting as counspl in tTZ: ''r 't"""" r^'i^ ^-- be^en'^caUed o th" W ?K ^u^"?; , ^y ^ ^^^ ^^^^^y passed, ii is required tlmt they should have kept twelve'tlrms a least, in^s^^me of the mns of court, with the exception of those persons who were attending the offices of barristers, with the view bLare\r"r^ Vf. b«';(3) i'ersons admitted to he licUorT'anl aMr/s.'"^ ^"^"'^ ^"^^^^^ '^ ^^ ^^^ - - COLLECTION OF LAWS. priltedt4f Th?''i'''"^,.^r ^^^* '^ 1^99 have been printed. (4.) Those from 1711 to 1740 were printed in London by the King's printer, and by order of the Lords" Commissioners of Trade and Plantations; and to that St:, z.Te^ot I'^'so"^''' '' ''' ^-^- ^--" The Governor said he *' could not supply the commis- sioners wi.h a copy of the laws; he had So/e for hiS: he was obliged to grope in the dark " A copy of the pnnted laws to 1779 was afterwards with difficulty pro! (9) 1 Edwards, 46^. .1 ^U * ?■ Eclwaids, 466. And see the Election Act, No. 71, cl. ii. ('2) 8d Report, W. I. C. 62. (3) 2d Report, W. I. C. 55. The number of terms ncccssar_y is after- wards stated (p. r>6) to be nine. (4) ?d Report, 58. xM2 I* 'J 164 ST. Christopher's. li n (I cured ; but inauy of the laws of tliis island remain in ma- nuscript.— ,'id Report, W. I. C. 58. OENF.KAL I,A\V OF THE COLONY. (5) By an act of the Leeward Islands of 7th June, 170.5, uituuled •• An Act to settle General Councils and General Af s(Mnl)!ies for the Carihbce Islands in America, and to .secure to each i)articiilar Island their own peculiar Laws and lc,i;a! Customs,"' it is i)rovided that all the laws and UyA customs now in force in each and every of the Ca- rihhcc Leeward Inlands, and respecting only the circum- stances of the same, he and remain in their full force and virtue."(()) The general Assembly is, however, by the fourth section of the same act, to have power to make acts bnidmg on all the Leeward Caribbee Islands. Jiy ano- tl».er act of the i^Oth June of the same year the common law is declared to be in force in the Leeward Caribbee Islands, (see ante, Antigua.) My the Court Act (No. 1), passed in 1711, it is enacted, that ni this isiaiul shall be held a court, ike, and that the justices shall determine causes with full power and juris- diction " according to the laws and customs of England, and according to the laws and customs of this island, &c. And the Court Act (No. 5J}), passed in 1724, appoints a Court of Ivmg's IJench and Conunon Pleas, the justices whereof are authorized " to hear, try and determine ni the saul court, according to the laws and usages of the realm of Great Britain, and the laws and usage of the said island," &c. _ LTpon tl-.e examination under the late commission for uujuirmg into the administration of justice in the West Indies the attorney general of St. Christopher says, " We consulei the law of ICngland operative here, in cases ap- plicable to our circumstances, except where it may be modified or alttii-ed by the acts of the colonial legislature. We also consider Acts of Parliament, i)asscd previous to the cession of the island to Queen Anne by the Treaty of Utrecht, operative here, in all cases in which thev are an- plicable."(7) '' ' (5) Soo li.e remarks in the first (6) See title " Aati.rui.," where clinpler. on the general topic how (nr the recitals of this and the next act the coiomes are subject to the law jf are given, the uiother countr;^-. ^7^ .j^j R^.p^rt, VV. I. C. 61. I ST. ciinisTopiiER's. ]G5 No. ^80. An Act for establishing .-i Court of Sessions of the Peace, to be held in and for thfs Island.--1d Rrpo:" estitnlr""^' ^n^^- ^" ^^^ ^°^ amending the Act for fn anit^^fht iZa^' '^^^^""^ ^' ^'^ ^--' ^^ bfheld 2Gth June, 1820. An Act to alter so much of the Court Act as relates to the admission of BarrStei". ' produce a cerdfin!r°" "^^'"'T "^ ''"'"^' ^uhnhtea, shall t^othewTt Wo "'•'''; P'^^* ?" "^^''' "^' '"« ^chnission JlVj. ; Westminster, or that he has rcffulailv kcnt or tmee yeaib. Ihis regulation not to affect those bein.r <1 COURTS OF JUSTICE. ,..,J^'^^>".'^?,^.«t^'^^'«l>^'d '■" this island for the adminis- tiatum o civil justice are, the Court of Chancery Co vt of Kings Bench and Common Pleas, Court of Vice- Admiralty, Court of Ordinary, and Court of Eiior nL an occasional Court Merchantf ""'' ^''"^ lie courts established for the administration of crimi bLIT "Vn' '^' ^"'"'"^^^ «"'^" "f the Court of Kn^'s Bench and Common Pleas, the Court of Quar er Ses oTer amflV "^•"^"^ f ^'^^^'^^ ^'^'^^'«-- Commil on^'^f Uyer and 1 erminer also isi.ue under the great seal. Courl of Chancer f/. The Governor in this island is sole Chancellor - ns GenS Tf n "^' ?/ ^'" ^^'""^'" ^'^ the Sme" the Ch 'n. I Chancellor exercises the same authority as Eilh . " f^'' "' ''^" *^'SI^ Court of Chancery in sa d Jo h. ''P "; TV ?^^ l'^"J^'-"Ptc7. The court is said to be guided by the laws, principles, and decisions t^^Tc.%^''''''' of E^nty^n 'England. -""d An ai)peal lies from an interlocutory order as well is ro,„ hnal decrees. But the appeal has „o effoc i^^ av fof res^iLr '•*":f ''' '^'' ^«" 't here, if security be 1^ ?^, -kl Rep 65 '" "'"' ''^'^'' '''''''' of the appellant. 166 ST. Christopher's. , « Court of King's Bench and Common Pleas. This court derives its authority from an Act of the island, JNo. 59 and comprehends in general all such cri- mmai and civil matters as are the subject of the jurisdic- England "^'' ^'"'^ ^"^ ^°'"'""" ^^^^^ »« An^!f ""^J'""'/ -VT r^^^'. ^'^"Sht in this court, except dower, uncle m/nl hahet; ejectments are frequent. Slaves are recovered by action of detinue. The owner of fifteen acres of land, or of ten slaves, or of a house in any of the towns of the island, of the value rest ^"'"'^^"' """""^^ ^ *^^ ^^"''' '^ ^''^'"Pted from ar- Tw5^ Ti,"' of /^ai^a* co;-;,«* is obtainable in this island. ArtorLv ^ f V\ ^'^"*'^ ^?^ **^^ J"^g««5 and the Attorney-General thinks correctly.— 3d Rep. W. I. C. r.l^*'°"'T>f "^'^r^'^ '" *^'^ ^°"^*' of King's Bench and nZr" 5 'f ^"'..'""'' under £10 are denominated com- Court of Kings Bench and Common Pleas without a jury, at the monthly sittings of that court. ^ Court of Ordinarij. This court is held under the authority of the Governor's commission; the Governor, or in his absence from the go- vernment, the temporary commander-in-chief, being sole judge. *= Wills respecting real and personal property are proved here when the testator dies and the will^s in the cTny If a testa or die in England and his will is proved there an exemplification or probate is recorded in the office of the registrar in ordinary.-3d Rep. W. I. C. p. 68. Court of Vice- Admiralty. The judge of this court (the chief justice) derives his authority by commission under the seal of the I%h Co of Admiralty in England, with power to determine those civil maritime cases over which the Instance Court exer^ cises jurisdiction. v^^uxi, t-xer Proceedings for the recovery of seamen's wages are in- ST. Christopher's. 1&7 stituted, but not frequently, as the expense would be too great tor the subject-matter. By statute 46 Geo. 3, e. 51., phacy and other offences, committed in places where the admiral has jurisdiction, are directed to be cried in the colonies according to the laws of Engiand, under commissions to issue as therein mentioned. " No such commission," said the Attorney- Ixeneral, « has been sent to this island, and there is no jurisdiction for the trial of pirates in this island." Court of Error, It is considered in this island that writs of error may be brought from the court of common law to the Governor in Council for any sum, notwithstanding His Majesty's in- structions have fixed the amount at £300; the Court Act, in clause 35, speaking generally of " any judgment given by the Court of King's Bench and Common Pleas for any sum, matter, cause or thing," without reference to the instructions, whereas in the 38th clause respecting appeals to the King in Council, the amount in that case hmited by the instructions is adverted to. Escheats. There is no Escheat Court or escheator in this island; there is a person holding a commission as Casual Receiver, whose duty is considered to be to take the direction of property falling to the Crown by escheat, or for default of kindred, av:d to dispose of it for the advantage of the Crown.- 3d Rep. p. 69. Criminal Prosecutions. Criminal prosecutions of every descriotion are enter- tained in this island by the Court of King's Bench and Common Pleas. Offenders are generally prosecuted by the Attorney-General at the suit of the Crown. A pro- secution is commonly instituted by laying a bill before the grand jury ; sometimes, but very rarely, by criminal inform- ation- The indictments are generally drawn by the Attorney-General. The fee is paid by the public. The grand jury, if desirous of advice, apply to the court, who generally refer to the attorney oi- solicitor general, if the judges have any difficulty as to the r-oint inquired of.— 3d Rep. W. I. C, 70. .-TT" 166 ST. Christopher's. Quarter Sessions. In this court the senior justice of the peace acts as chairman, when there is no member of Council present. 1 he matters usually occupying the court are indictments tor breaches of the peace, nuisances, non-repair of roads, Jfec, and the election of waywardens and constables. Counsel practise in this court. The Attorney-General has the indictment prepared, and usually conducts the prosecution, but it may be put into the hands of other counsel. The expenses of prosecutions in this court are gene- rally borne by the public. A record of the proceedings is kept by the Colonial Se- cretary who m this court acts as clerk of the peace, and takes the costs. -3d Rep. W. I. C. p. 70. Judges and Justices. The judges in St. Christopher's are selected as in the other islands, from the first class of the community. It is not necessary that any of them should be barristers, or should have gone througli a course of i)revious Wal study. ° Justices of the peace have no jurisdiction concerning disputes as to seamen's wages. (8) Justices of the peace ot this island have not been in the habit of visiting the jail; the senior magistrate is not clear as to their right to do so; the marshal being a public officer appointed by the crown, IS perhaps under the controul of the Court of Kings Bench only.— 3d Rep. 76. Coroner. There are /o«r coroners in this island, appointed and removable by the Governor or his locum tenens. The coroner is allowed £5, current money of the island for every inquest he holds. The coroner is guided in his duty by the rules which govern coroners in England.-— 3d Rep. W. I, C. p. 77. ar!te\T'^''^ disputes will now be tried in the Vice-Admiraltjr Courts, se« ( 169 ) VIRGIN ISLANDS. HISTORY AND CONSTITUTION. These islands were not peopled by the English till about T u n^^ ^^^'^ separated into two divisions, in the hrst division of those possessed by the English, W V 'Vl'^ principal, to which division also belong lift R "f ^y^^^.^"^^J"'^ ^^" %l^es, and Guana Isle, with Beef and Thatch Islands. rtJl^- '•^''''"'^. o''^'^?" •' ^^"g>" ^«rda' called also Crreat Virgin and Spanish Town, having two good har- TdTi ^A V^"%''l^\"J ^?l°"gs ^"ageda or the Drowned Island, Nicker Prickly Pear, and Mosquito Islands, the Cammanoes, Scrub, and Dog Islands, the Fallen City (wo rocky idets c ose together, at a distance resembling P.^!'^ T ^""""^ ?"^^' ^^"Ser, Cooper's Salt Island, mer s Island, and the Dead Chest. (1) Tortola is about eighteen miles long from east to west, and seven in Its greatest breadth. It was first settled by a party of Dutch Buccaneers. These, in 1666, were drivai out by others who took possession in the name of the King of England. Protection being afforded them, lortola was soon afterwards annexed to the Government of the Leeward Islands. (2) The first Assembly met on mh M ^^V"^T;,il'^' ""^e^ a proclamation dated 30th November, 1773, issued in consequence of a peti- tion from the inhabitants, who, in consideration of being allowed a IlDu.e of Assembly, had promised to grant an impos of 4* per cent. "sim'Jar to that which was paid in the other Leeward Islands." That grant was the first act ot their legislature. (3) TORTOLA. _ On appHcation for a copy of the laws, the commis- sioners learnt with surprise, that in this island all the laws s Si I! 9 ) Walker's Gazetteer, 4th edit. (2; Ibid. (3)1 B. Ed w. 460,461. 170 VIRGIN ISLANDS. II remained in manuscript, and were, as might be expected, many of them in an imperfect state.— iid Rep. W. I. C. p. oi. * COURTS. The courts established in the Virgin Islands for the administration of civil justice are, the Court of Chancery, the Court of Common Pleas, and the Court of Error! i he courts established in the Virgin Islands for the admi- nistration of criminal justice are, the Court of King's Bench and Grand Sessions of the Peace. There is no Court of Exchequer m this island. Court of Chancery. Courts of Chancery for this island are usually held at &t Christopher s. A court is only held at Tortola when the Governor visits this part of his government, and then for no precise time but so long as his Excellency may Uiink proper, from the nature of the business to be done Ihere is a manuscript volume of the rules of practice in this court, shewing only some slight variations with respect to time, &c. from the practice of the High Court of Chan- cery in England.--3 Rep. W. I. C. p.^8I. There never was within this island at the same time, more than one Master in Chancery, until within a month before the arrival of the commissioners, when a Master in Chan- cery eoctra was appointed at the particular solicitation of the master. There is not, in general, more business than can be transacted by one master. The masters receive no salaries, but are paid by fees ; they give no security. An appeal to the King in Council may be made from the Chancellor's decision, interlocutory as well as final. It has it is said, the effect of staying the proceedings, and when made from interlocutory orders may occasion great delay. Costs are « frequently " taxed in this court by the master. There is a table of fees established in this court by a former Chancellor. The fees of this court have always been regulated by the authority of the Chancellor. Court of Common Pleas. The Court of Common Pleas derives its authority from an Act of Assembly passed in 1783. It has the same ju- i II VIRGIN ISLANDS. Hsdiction as that of the Court of Common 171 that court. The court generally sits two, three or four Sn'i:he"mtth"rr7'^r)',H '^"^ '^"-' reT^ectivdy in the month of July probably a day or two more, and the August court IS generally continued for every eight or en a' Oct'bl^*'' '"^ of September, and som'etimt as late Actions are commenced hy filing not only a declaration but a copy of an account, bond, note, bill, &c.. and process IS served by leaving these documents at the de- t£e pla nt ff t? f t'^^' ^j''^ ^" indorsement naming the plaintiff and defendant, and setting forth the cause of action, damages, &c. A person who lias never been b the island cannot be sued unless he has a power of attornev upon record. The Court Act gives the^power of arrest^ m«v7'5" 1 for a sum unrler £20 the person arrested tant, and hat he does not intend to depart from these islands, and on his entering a common appearance. 13ail must be given for all sums above i^^O, but a per- son possessing ten acres of land, &c. is exempt from arrest.-^ Rep. W. I. C. p. 118. and 3 Rep. 82^ I he writ of execution is the same as in the other islands Free persons of colour can sue and be sued in this court j arecompeten witnesses; are not admitted as jurors ; are by law excluded from the House of Assembly; a^-e net subjec to any penalties from which a white^^e? on ?s sucTC' 7V."'"^r*^« "« other disabiHties than Xp," a "'^^ *^iT ^'r ^" P"bl'<^ situations and offices. An appeal lies from this court to the Court of Error where the sum in dispute exceeds ^300, but in order to suspend execution it must be brought with n fou " teen days after judgment. ^ Complaint Court. Small debts under i-ao are denominated complaints, and the sum of ^1 16*. 3e/ up to execution, and suits are in general speedily decided. « c m Court of Ordinary. This court derives its authority from His Majesty ^s I i I i 172 VIRGIN ISLANDS. commission to the captain-general, who appoint.'^ his deputy in this island, to grant probates of wills, lotteis of adimnistration, and marriage licenses. All wills executed in the Virgin Islands are proved iiere : alter wills have been proved and registered, (hey are returned to executor.— 3 Rep. W. I. C. p. 83. The costs of this court are not taxed. There is no pro cess of excommunication, or other effectual mode of punishing contempt in this court. There is no means of obtaining a divorce in this island, nor is there any mo^lc by winch a wife can obtain a separate maintenance. Couri of Vice-Admiraltij. This court derives its authority from the Court of Admiralty in England. It has jurisdiction in matters of prize and revenue. It has one judge, a surro-ate. The present sun-ogate Mas appointed by the (?ox nor. He holds Im office during good behaviour, and is removable by the Governor. The former judge was appointed from Jingland. Ihere is not much business done in the In- stance Court. There have been a few instances of pro- ceedings for seamen's wages ; they are not attended with miich expense, and are said to be very summary No Admiralty Sessions are held in this island ; persons charged with piracy were formerly carried to Barbados, but will now most probably be taken to Antigua, the chief seat ot this government. Court of Error. This court is established by the Court Act. The judges of the Court of Common Pleas are excluded by law from sitting in the Court of Error. The members decide by a majority.— 3 Rep. W. I. C. p. 408. King's Bench and Grand Session. cH^^lT^t?''^-^ '? authority from certain clauses of the Court Act. The judges of this court are, the Lieutenant- Governor the members of His Majesty's Council the Justices of the Common Pleas, and ihe ^Justices of the Peace. 1 his court is held twice a year, the first Monday in March and the first Monday in September, at the court-house. The King's counsel draws the indictment, and prosecutes offenders in this court.— 3 Rep. W. I. C p. 84. * VIRCrx ISLANDS. ]7g tl.e^IlL^dt/rv"' ?[[*'" 'T' "'^'^y^ ^'^l'^^'"« " ^•I'^^'-ge to counsel Tl.^' ""^ '"""' ^''^> "l>l'y to the King's ^"land! p. 85 ' " "" '"""' "^ ^^""^^^^ ««-'<^"« i» this Escheats. wI!nTroL"l'?r '" these islands. app^^ZZ''{ t^^.^^'^t-'tcd to the crown "that is worth Sies fo His M? 1' ^'f^' 'T'"^' ^ P^^'^'°" ^ron, the in V nni I Majesty ,s forwurden to our agent residing ui London ; he presents it to the Secretary of Statrfbrhf Str drrel" t'" r^* ''' "'^ ^'^^'^'y TheTecretar; ot Mate directs the Governor to issue a writ of inquiry. h'ar fht-^ ^, *'^ '^'f ?""'*^"" °f ^^^'^''e^t or not; they !«> ar he evidence and d, nde accordingly. The judges ter'v; i.h M '"'" '? '^'^ Governor, who acquaints the-'minrs- le oarMp, "^^^^ *^^S''^"' *'^^ land petitioned for tJ tne pait es petitioning. Cases of intestacy are freouent and p, open y frequently escheats to the crown for want of tuall'rft^efr''''*^"^ "'" "'* '^''''^y considered as vir- Where there are illegitimate children unprovided for Ihe no.P"^''*^^f '?y *h^ P'-^rent is allowed^o remain i^' iVv rSlv ^'"'^ '^' ^^^^ l^^^" represented at home by petition or otherwise.— 3 Rep. W. I. C. p. 87. LAW OFFICERS. res^r.f sf S,V '^ Solicitoi^General for the government lesKie at bt. Christopher's. One crown officer and Kino-'s counsel resides and practises in this island. *= Barristers and Aitornies. JlL^SltVT} '^T p/'^"' ?pp^y^"s *« b^ -^^'"itted as counsel in the courts of this island should have bepn s'pecmedLiiv V%''" '"' ^" ^"S^-'^' orhavTkepTa specineci number of terms in any nn of court A oJU^ cate signed by the Attorney or SolicitoLoeteVal and oit" piactising barrister, attesting their fitness, will enable ■'^ V] v^ % .^'^ W ti^^: •^--^ ^ Ltt ^TolT^^n^^^^^^ S^een^TLf do^ tXnt UStalfy^]^" t 1 |:./ (1) Encyc. Brit. Edwards states the longitute to be 59° west from London, and the latitude 13° 10' north ; the length to be 21 miles, the breadth 14, and the surface 106,470 acres, vol. !. S44 ; 1 Rep. W. I. C. 57. ihe island is said to be about 30 miles long and 16 broad. (2) 1 B. Edw. 317. Ili ' ' t 176 BARBADOS. nor, arrived there in 1624, and laid the foundations of James Town, which was the first English settlement in the island.(3) In the first year of Charles I. (1625) James Hay, Earl of Carlisle, either not knowing of the Earl of Marlbo- rough's patent, or disregarding it, obtained letters-patent under the great seal of all the Caribbean Islands, including Barbados, and, after some dispute, Lord Marlborough waived his prior grant in consequence of an annuity of ^300, and Lord Carlisle became sole proprietor. (4) By Lord Carlisle's patent he was empowered " to make such laws as he or his heirs, with the consent, assent, and approbation of the free inhabitants of the said province, or the greater part of them, thereunto to be called, in such manner and form as he or they in his or their discre- tion shall think fit and best." And " to do and perform all and every thing and things which to the fulfilling of justice courts,(5) or manner of proceeding in their tribu- nal, may or doth belong or appertain, although express mention of them in these presents be not made, yet we have granted full power by virtue of these presents therein to be made, so as, notwithstanding the aforesaid laws be agreeable and not repugnant to reason, nor against it, but as convenient and agreeable as may be to the laws, statutes, customs, and rights of our Kingdom of England." The patent also provides, that every liege subject of the King brought or to be brought within the province, and their children born or to be born there, shall be natives and subjects of His Majesty as free as they that are born in England. (6) By virtue of this grant it would seem that the pro- prietary proceeded to appoint a Governor and Council, and (in conformity with its above cited provisions) to call a legislative assembly, and to erect courts of justice. It is certain at least, that a Governor and Assembly were in existence as early as 13th May, 1646, there bein^ an act of the island under that date passed in the name of those authorities ; and there is reason to suppose that some of (3) It is commonly considered as having also been the first English set- tlement in ihe West Indies, but Edwards shows that St. Christopher came into our possession in 1623, (4) 1 B. Edw. 320. (5) The passage stands thus in B. Edwards' work. The words ought perhaps to be, "justice, the course or manner of proceeding in their tribu- nals." (6) 1 B. Edw. 321,n.l. la I BARBADOS. 177 the acts to be found in the printed statute-book mav be referred to a still earlier period.(7) ^ The grant to Lord Carlisle was afterwards, during his ttX/Tp? Y^l'' '■'^'''''^ «"^ ^ -- one issufd to the JLarl of Pembroke, m trust for Sir William Courteen by the crew of whose vessel the island had been firs bene- ficmlly possessed ; but on Lord Carlisle's return, h influ ence obtained an annulment of Courteen's grant and new letters-patents m his own favour again restored him to WillSrTuSr^"-^'.^ ^^'?S '''' ^^-"^ p«t'"s^r Carlisle! '''" """^ '" ^^^^ ^' governor- for Lord ,.P''^'''Al^^ ^^^^y V^rt of the troubles in England, the claim of this proprietor, whether disputed in the Sand or disregarded amidst the confusions at home, was taS relinquished; but in 1646 the then Earl of Carlisle son He enT ''' "^^ ^^'^-^' brought forward hL preJetions" He entered into a^ treaty with Lord WiUoughby of Par ham, conveying to him all his rights by law for ^1 years on condition of receiving one-hdf the profits, and then concurred in .eliciting a commission for him a chief go" vernor under the sanction of the royal authority In t&?« consenting that his governor should be clothed w^th the authority derivable from a commission from the King he was perhaps influenced by the apprehension, that afS his title had for some years laid dormant, and the planters had iS *;?°""t ^."- '^^ ^'^^"^^ «^ »»« oppreSntthey wtte^r",^.^^^^^^^^^^ '" ^" unsuppoJ^d commands^ vyiiatever migat be the motive on which he proceeded proprietor """' ^^"'"^^ ^' ^'"^"^^ ^''^ his^laims as Ti-I^u^r *^'% *^o™|»ission Lord WiUoughby arrived at Barbados, and took possession of the government -but Fnlnd'Tr^-1^^ ?^'^ authority being abSd in Eng and, the island became subject to the Common- wealth, by whom a new governor was appointed. (7) See particularly an act reciting, tliat " divers laws had been made by assent of the governor, council and freeholders out of every parisli of this island, intituled a Geiieral Assembly for that pu'pose elected and chosen," Lc. Hall's Acts, No. 4. And see ib. No. 1, which provides that " all acts and statutes made and published in the island, or viewed, corrected and coniirmed by any governor and coun- cil, or president and council, by vir tiie of any commission from Kini^ James or Charles II., &c. be in H force and virtue." (8) 1 B. Edw. 322. N 'III 4 j| y 'I ii !;*■ '* 178 BARBADOS. Ill) '^1^ On the Restoration Lord Willoughby applied to Charles II. for leave to return as governor, but this was opposed by the inhabitants, who now considered him rather as the representative of the claims of the Carlisle family than as the deputy of the crown, and who were anxious to be placed entirely under the royal government. They insisted that Lord CarUsle's patent was void in law, and their case was referred by Charles to a committee of the Privy Council. During the discussions before the council an offer having been made by one of the planters to raise a per centage duty on the produce of their estates, on condition that the King should take the sovereignty into his own hands, Charles greedily grasped at the offer ; and though the authority of the person who made it was on the very next day denied by the planters,(9) the hope thus raised in the mind of that needy and extravagant monarch, of realizing a revenue of a considerable amount, was not speedily to be reHnquished. The council very readily seconded his iviews; the unfortunate planters had no power to resist ; they were threat ned with a revival of the claims of the Carlisle family, who assumed to be lords of the soil, and to treat the planters as mere tenants at will ; they were refused to be allowed to try in the courts here the validity of the Carlisle patent— every art of cajolery and intimidation was used, and the result was the follow- ing compromise. The crown procured a surrender of the Carlisle patent, and engaged to confirm the planters in the legal possession of their estates, in considera- tion of which the Assembly of Barbados was to grant to the King, his heirs and successors, a permanent and irrevocable revenue of 4h per cent, to be paid in specie on all dead cor .odities, the growth of the island, that should be snipped off the same. Out of this the Crown was to make provision for the Earl of Kinnoul, (1) tlie representative of the patentee, and to pay off the different creditors, claimants on the profits of the Earl of Carlisle's share of the patent ; and the remain- (9) 1 B. Edw, 332, 333. (1) TiiU ig still paid out of the 4f Ear cer*. fund, under the name of ord Kiiifioul's pension, so named " with as much propriety," Mr. Broug- ham cbserves, " ns the holders of long annuities might be denominated pen- sioners," Colonial Policy, vol. i. p. 531. iiARBADOS. 179 der (subject to the charge of ^1200 per annum for the governor's salary) was to be at the disposal of tl King Ihis arrangement was carried into iffect. Lord wS Sre^1.h'sSnrAt(V^- o^'ie '^^"^ p'-1 A Council havmg been appointed and an Assemblv summoned under the new commission, the GovernorT(4) 7trMarc'h ir^r™'^' ^' I^^^T*^"^"' bearingTarVhi TthMarch 1666 proclaimed "that the government of and of tLf -"/^ ^ ^T'?^^ *° '^' ^«-« «f England ;lt?sed""'' " '^^ ^^•^^ *^-*«f- -d^nd M^rch T666''v!?.-" ^?i ^V^f ^^^"."^^^^) »^^^""g date g^d that nnf ifn ' "^ '?^ declaration of 7th March, " and that nothing more conduces to the good and quiet of anv place and people than the assuring^and ascSng such late7L"ir''' "' '^'V' '° ^' g«^^r»-d anS^regu. lated by. It was enacted, "that all such acts and sta- tites as have been made and published in this island as reviewed, corrected and confirmed by any governor and council, or president and council, by virtuf of a„y tvl lul %.\ ]\ i| (2) He was appointed by letters- patent, bearing date 12th June, ""iS Ltia. II. See this commission partly recited in tiie Act ot Nevis, No. l of printed coiiectir ,i. (3) 1 B. Edw. 335. Mr. Edwards says, that the planters fmding " that no support could be expected from the people at liome^ whose privileges lav prostrate at the feet of the restored monarch, passed the act required of them, and their posterity still bear, and, It is apprehended, will long continue to bear tiie burthen of it." It is to be lioped, that the time has now arrived when as the fund is at the disposal of Parliament, an end will be put to an impost that has been as oppressive in its effects, as it was grossly disgraceful in its original exac- tion. (See ante, 50, 51, notes (3), (4). Theact(whichisNo.36ofIIairsActs) makes no mention of the arrangement above referred to, but professes to im- pose the duty for the maintaining " the honour and dignity of his Majesty's nut y— the public meeting of the sessio. — the often attendance of the council— the reparation of the forts— the building a session'^ house and a prison, and all other ^-ublic charges incumbent on the government." But these purposes have been dis- regarded in practice, and to meet the expenses mentioned, specific taxes in addition to the 4i per cent, have been levied in the colony. It is said that payment in specie, accoiding to the terras of the act, is not now re- quired. Colonial Policy, vol.1 p 552 ; but see ante, p 50, note (3). (4) Lord Willoughby did not re- main long after his arrival, and three persons were appointed to execute his commission. Hall's Acts, p. 3. (5) See preamble to No. 1, Hall's Acts. ((3)No. l.IJairsActs. N 2 180 BARBADOS. < ^Jifiill commission from King James or Charles I., or by virtue of any commission from his most gracious Majesty that now is, either immediately from either of their said Majesties, or mediately from them or either of them, by, from or under the late Earl or any former Earl of Carlisle, by or with the assent or consent of the representatives of this place legally called and continued, which stands unre- pealed by any power and authorities aforesaid, be in full force and virtue in this island, and that all laws, acts and statutes made or pubUshed in this island by any other power or authority than as before expressed, are utterly void and of none effect, any declaration, order or ordi- nance to the contrary, notwithstanding." By the same act certain commissioners are appointed to compile all the " acts and statutes in force as aforesaid, and to cause them to be inroUed in one book by the secretary of the island." And this, as appears by the re- turn of the commissioners, bearing date 18th July, 1667, was afterwards done ; and the acts so compiled by them are at the coirtmencement of the book of printed laws. Hall's Acts, No. 2 to No. 36 inclusive. Since the commission to Lord Willoughby, in 1663, the island has been constantly governed under commissions granted in like form by letters-patent from the crown, with accompanying instructions to the governors. From the same period Councils have been regularly appointed, and Representative Assemblies summoned, and by these assemblies, with concurrence of the council and of the governor, laws have been enacted and sent home for the allowance of His Majesty in Council, according to the usual form of constitution in colonies that have legis-. latures of their own. In this island the Council is composed of twelve mem-i bers. The governor sits in council even when the council are sitiing in their legislative capacity— a method which in other colonies would be considered as improper and unconstitutional. (7) The Assembly consists of twenty^ two, of whom twelve are a quorum. They are elected from the different parishes, and every person elcctino', oi- elected, must be a white man professing the Christian re-, hgion and a free or naturalized subject of Great Britain (7) 1 B. Ediv. 349. Hi BARBADOS. 181 He must also having attained the age of twenty-one possess a certain qualification in land. (8) In this island there are an Attorney-General and a Csolicitor-General. The former receives a salary of i-^OO LAWS. (1) vlu ^r^ '" ^T^ ^'''^^ ^^'^' ^''^' t^e common law of ,v.inT^'/''T'^'^' 'i"'^' ^'^t^ "*' Parliament as were V^:^^:^^^'^'^' ^'- '^^'-'' -^ - ap- and ^tho m'''^' •''"'1 P"*"}' '^'"'' ^^'^ ^^''' «f P""CC' tithes, i^::i!:i^Z:^.t7t' ^^^ *'^^^-^'°^'"«^ Of acts passed subsequently to its settlement, such only are considered to affect the colony as have the island ex^ pressly named or virtually included in them; a is the bados «To 1 ' W ' .T fi^'lr^ '« ^--*^"^ besides Bar! -.11 n?v; .• ^'"^ W^st Indies," or « to the colonies." Aud all navgation acts, and acts of revenue and trade, and acts respecting shipping, are obligatory, though the coloSs are not named m them.-l Rep. W. I. C. % 5. Arrests and Underwriting. .JZ'^^M''''^''ii'T'^^^'^^'^^'^^' "1 Hall's Laws, ami 10 m Moore's Collection, have been passed, regulating the manner oi giving tickets out of the secretary'! oS so as to enable parties to leave the island. Before the and i-li 'T''Y^' ^^'^'^^' ^^^«Pt "tarried women and ch Idreii under fourteen, intending^o depart thence were obliged to put up their names p'ublicly in the secS tarys office, and within a certain time afterwards, or else ^oZ^T^ ff'*'''" securities, they obtained a ticket or w^.r.n.^'i'l '^' «^^^-^tary, signed by the governor, as a warrant to the master of the ship for their^onveyance-^ the intention of this law being that persons indebted might (8) Hall s Acts, No. 148, cl . 1 : 152. cl.3.4,5.6. 7,8. ' ' (9) 1st Rep. W. I.e. 59. (1) See (ante, p. 3 to 16,) the re- marks on tlie general tooic, how far the colonies are subject be law of the mother country. li :) U k ' If m ji 1 , . ■p f ■ 1 ^I^ ; ■ J i Ill 182 BARBADOS. not go privately, but might before their departure be com- pelled to answer all claims against them. And creditors desirous to prevent the issuing of such tickets, entered thcr claims at the necretary's office against the persons so mtending to depart, which was called underwritinn them. 1 he above acts of Assembly were passed chiefly to regulate the system of underwriting, which is still (subject isknd'T^) P''*''''"'''"' "nposed by those acts) in force in the • .Besides this course of proceeding, the practice of the island authorises arrests on mesne process, as in England It does not appear on what law this practice was originally founded ; but « by established usage a defendant may be attested on mesne process for any sum above <£8." No affidavit of the debt is required, (3) and arrests are said to be allowed m some cases for unliquidated damages. But by the above cited act, (H. 59, cl. 4,) it is provided that " no person having ten acres of freehold land within this island shall Jje liable to arrest, nor any other inhabitant for any sum under lOOOlbs. of sugar, or JtlQ. 5s. in money, but be summoned to answer suits, &c. in the precinct where he .TLm'T b"^ *"" I^^■ "''. ^r J"'^^"^^ proceedings, unless he hath taken out his ticket to depart this island, not having given bond m the secretary's office to answer all underwntings that shall be entered against him within twenty-one days. This exemption, however, is narrowed by the act (Moore, 10,) which enacts that no person shall be exempt by virtue of that clause unless at the time of issuing the warrant he was " actually seised in fee and pbssessed often acres of freehold land within this island, under one or more such title or titles, and with such qualifi- cations with respect to the length of possession or otherwise as would entitle a man, according to the laws of this island now in force, (4) to elect or be elected an assemblv- man or vestryman, or to serve as a juror to try real actions. ■' J ^^ai (8) See preamble of No. 59, Hall's Acts, and 1st Rep. W. I. C. 35, 160. (3) 1st Rep. 34. 159, 160. That is, no affidavit is made before the ar- rest. But if the arrest is for more than ii really due, the defendant's attor- ney may give notice to the plaintiff's attorney to attend before the judge ami make oath of what is really due, and bail is talven for that sum. Is't Rep. W. I. C. 160. (4) As to which quai-lcation see Hall, 148, cl. 1 J 152, cl. 3, 4, 5, 6, 7, 8. I - n t liAUitADOM. is;; to COURTS. The courts established for the administration of civil justice in the Island of Barbados, are the Court of Chan- *^jry, the Court of Error or Appeal and Error, the Court of Ordinary, five Courts of Common Pleas, one in each district, the Court of Admiralty, and the Court of Escheat. —1 Rep. W. I. C. 19. Besides these general courts there is, by a local act, a power vested in the governor to appoint a special court of merchants and mariners, as also a court to take cognizance of persons about to quit the island in debt, which court is behoved never to have sat. There are also what is called warrant actions; these are described by the commissioners as excrescences growing out of the authority given to a single justice to decide claims for service or for work and labour by servants and labourers, and extending very imschievously to those who exercise any manual labour, as shoemakers and tailors, as well as to all demands arising from t!ie sale of the produce of the island, and actions for cattle under the amount of .£25.— Id. ib. The courts for the administration of criminal justice are the Court of Grand Sessions, held twice a year; the Court of Quarter Sessions, which the commissioners said did not sit regularly when they were in the island ; and the Admiralty Sessions, held pro re naia.—ld. ib. Court of Chancery. The Court of Chancery is composed of the governor or president, with four or more members of the council. The Governor in Chancery, though often said to act as chancellor, is only primus inter pares. Neither the governor as chancellor, nor the president acting as such in his absence, receives any fees. The governoi* sitting as chancellor has no assessor nor professional assistance of any kind. The decision is made by a ma- jority of votes. The votes are taken singly, beginning with the junior members of the council, and are given publicly in open court — 1 Hep. W. I. C. 19. There are two Masters appointed by the governor, and removable for misbehaviour. They are paid by commis- sion ; they have fees on the sale of estates. The Court of Chancery derives its authority from the King's comiuis- 1/ m ' ii 3f! I I! I 184 U A II U A DOS. 'ill m sioii, and was rccogni/c»l as existing soon after the settle- ment of the colony.— 1 Hop. W. I. C. j). ili). The judges of this court are supposed to have all the nutlionty of tlic Lord Chancellor in ICngland, excel)! in cases wholly inapplicable to tiie colony. They assume and exercise jurisdiction in cases of lunacu without any special delegation of authority, but under the supposed general jurisdiction belonging to a Court of Chancery. A petition IS presented in the first instance to the governor only, he directs a hearing at the next court. The lunacy when iound, is, it is said, returned into the court, and in tins way they may possibly, but it is supposed mistakenly, consider themselves as getting jurisdiction.— Id, 20. J. here arc no instances of bills filed for making infants wards of court in this island, but it is supposed the court woul(l exercise the same jurisdiction as the Court of Chan- cery m England. There is no system of laws in this island similar to the bankrupts' code in England ; but the principle of the cessio bonornm is acknowledged in the establishment of a court for the relief of insolvent debtors. Ihe remedy, of course, extends to persons who are not traders. The law of descents, as regards freehold property, is the same m this colony as in England. The law governing the distribution of personal pro- perty in cases of intestacy, in Barbados, is -substantially the same as tlie law regulating the distribution of the same species of property in similar cases in England. The practice of the Court of Chancery in Barbados professes to conform to that of the Court of Chancery in England, except where it is altered by local laws or spe- cial orders of their own.— Id. 20. The decree made on a billof foreclosure of a mortgage is to this effect, that the money be paid into court within a limited time, (usually a month,) and in default of pay- ment a sale of the estate is directed. But to prevent a mischief once very extensive, of estates being obtained under these circumstances for prices wholly inadequate, the property must be appraised, and cannot be sold for less than the appraised value, without express leave from the court. The appraisement is made upon oath. The appraisers are freeholders and neighbours. They re- ceive no fees. They are said in general to act conscien- tiously. 1 he master cannot receive a bidding « under the ;U!c- BAROADOS. 185 apprnisement." A bidder c.ul.l not bo held to a biddinir beU the appraisement, but the .naster. it is said, o om lea>c t( sell for less than the appraised value. Upon thi^ ri'i'i'l" '•' -r^'.''^^^''^'^^'^" ^'«^^-^"^i«"' taking nto Us consideration the eircumstances of the estate and th^ TlC. tlf'' "" '"™^^'«*^ «^'^ >« desir^Ltl-T Rep! whkh aoe^tf.'\r "PP»'^'««T"'' ^'•^''^ '« ^ deposit, un belialt of a wife, for a separate maintenance on account of misconduct in the Imsband, the rcmed; Tn Barbados IS sought by petition to this ^ourt. iTehef n Thor^V' "'''^' "^.'"'"^^^ ^y ^"'' ^»' by petition rhcie IS no examiner in this island; (he registrar acts ibrcSTb Entf^T,""^^ ^^^"'^^^ «^*'-' coLare en! SZrRt,^'^:^i.^C^^^ -a se,ues. An appeal lies from a decision in this court to His Ma- io%ol \Tor^t'' 'a ^"" "T'^' *? ^^ recovered amoum CO owi. sterling An appeal, it is said, lies onlv on a decree' %:"^b.;"f-''J?^"tory order as amountsta «nat No ?S? Ij7J'V ^i'n'V by bond (according to the act t^e'valu; ^Ih'e n'"' ^^^ of May, 1720,) fSr /,.4 (5) ine value ot tl e property in dispute, and for all costs and damages occasioned by the appe'al. The appeal it also tboj / island suspends all proceedings, even in the master's office, as the taking accounts &c bu fl r party who has obtained the decre? or iud" nent ^nnl i x;\::f LiS 'o?^^ -^"^^'^ ^on.;:r^:t^^:^ 10 levy and sell, on giving security n double the siim^n Tv rs:d -roEL"" "r""" ''•"'<= "">- 'i-^u b: icvcised,— in otiiei- words, a provis onal pavmerit takfis p ace with security for lestitulion. The appellant S f 'Sp'ri^c:;^""'" "'° "p"^^' ^'"''" ''"'■-- The distinction of costs between party and nartv -m^ attorney and client, did not prevail in practice^ and ^-t not familiar in name.— Id. 27. Pi^aciice, and was (o) I he word in the report is treble ; Ihis seems to be a mistaiie. A copy of the act now before iiic sa^s double, and towards the couclusicjii of (jiis very paragraph tlic coimnissiouers use the word double. iy(' I i ill, 186 BARBADOS. Court of Exchequer. The Court of Exchequer derives its authority from a law of t.>e island, (No. 135, Hall's Laws,) and from the go- vernor 8 commission. It was established in 1680 by an orc'er ot the governor and council. It was formerly considered as possessmg both an equity and a common law jurisdiction, ^.here is now no equity side of the Exchequer, except on the part of the crown; the commission is said to have been altered about forty years ago. The common law side remains, out the right to sue in it is explained pnd hmited by the act (No. 135, Hall's Laws).- 1 Rep. V . I. \j, p. o\j. '^ This court is composed of the chief baron and four puisne barons, of whom three may hear and determine ; and the judges are appointed by" the governor, with the advice and^ consent of the majority of the council. The tenure of tne office U durante bene placito. They are re- movable, or may be suspended in the same manner as the judges in the Court of Chancery. They have no salary. 1 he chief baron, and in his absence, the senior baron receives certain fees; the same as tha chief justice of the Court of Common Pleas. Any deed affecting renl pro- perty requires to be registered, and a fee is paid on the ackuL .viedgment. They also receive seal money, fees for taking private examinations of married women, &c. &c. 1 he officers of the court are the remembrancer and marshal, both patent offices, performed by deputy. They &re paid by fees of office ; in case of misconduct in either ot them, the chief baron complains to the governor, who has the power of suspending them, and the conseque-^ces are the same as were before mentioned in a like case in the Court of Chancery.— 1 Rep. W. I. C. p. 30. The Court of Exchequer sits in the Town Hall m BiiOgi, lown, and is appointed to be balden once every four weeks on a Friday, throughout the vear, for the trial ot causes between party and party , but for His PJajesty's business it may sit at any time. The judges of this court profess to be governed " by the laws of England and the laws of the islai d." They did not appear to have any collection of rules or orders of the court prescribing any peculiar modes of practice, so that, where they dieter from the practice of the courts in England, the variation is not recorded. Proceedings on i !■ ki m BARBADOS. 187 1 ,•¥ f the common law side of this court for the recovery of halfoVrP^^ information by the attorney-general on be- deLLtr^T' """^ ^y QUO minus hy private persons. A noS. wl^ ^^ f'^^'^^^ ^«'* ^"y ^^'^ exceeding eight pounds whether claimed as a debt or damages, and the la ter may be unHquidated. For an alleged libel upon the attorney-general, a defendant, who was IfterwardsTquit- amount stated, (eight pounds,) a bench action lies. Abench action IS m the nature of a proceeding in the English courts of conscience, and will be considered in the observations upon the Court of Common Pleas. Those freeholders who are qualified to vote at elections are exempted from theh- s.^^ ?'"'''• f '^'' .^°"''*- ^^ " -re objected °^ their sufficiency is determined by the chief baron. If a defendant cannot procure bail he may lie in prison an in! definite time; the plaintiflT cannot be compelled to proceed with the action, and the defendant does not become supei^ sedable on account of the plaintiff's neglect. ^ but conLTf """ '""a"^' ^^ ^^^'^ ^°"r'« "» parchment, but copies of proceedings are made up upon paper and kept by the proper officer. ^ ^ ^ '^ ' ^^ The execution issuing upon a judgment recovered in ^flis court IS the same as in^he C^urt of Common Pleas except that executions out of this court are levied all the year round, as well in vacation as in term time! Ihe commissioners were not aware of any priviWe the sSnrit?'/' " ^"^ r""^^* "^^-- it'pLessS of cXnv^ Tbl""'' """ ^"^r "^ ry™^"* «f them in this colony The process of the Court of Exchequer in England a the suit of the crown, is supposed not to be executable m this island.-l Ren. W. I. C p 31 Actions m this court are said to be less dilatory but more expensive, than proceedings in the other courts Costs are taxed by the chief baron himself agreeably to govertr."''^"'"^ ""' ^"" ""^^^' '^^ autho'rity of 'the nMv fh*7'^"^'r?^^ ''^' ,?^ T»i«"' '-^"d no doubt ngUtly, that a writ of error lies from a decision in fl,;« court to the Court of Appeal and Error in the Sand tt same as from the Cour^^f Common PlLs He tver beTne" '?C Ih" 'f k""' '''''' ^"^ «"PP^^^^ ^^^re ^ht oe one. Ihe chief baron was not awave ^f .n -:<■ ^x- error, or appeal to the colonial court, buTonl^ of an 'appeal Iff: Hi- 188 BARBADOS. to His Majesty in Council, (which is ulterior where the value IS sufficiont,) of which he remembered one instance arising on a penal statute. An appeal, it was again said, but the commissioners thought, under some misapprehen- sion, would stay all proceedings.— 1 Rep. W. I. C. p. 32. Court of Common Pleas. There are five courts of Common Pleas in Barbados, one being held in each of the five districts of the island. Ihey derive their authority from acts of the local legisla- ture. They have the same jurisdiction as the Court of Commmi Pleas in England, except as to fines and recove- ries. The judicial establishment consists of a chief judge and four assistant judges in each court. These are ap- pointed and removable in the same manner as the other judges, and the tenure of their offices is the same. They have no salary; the chief judge (only) receives the custo- mary fees for proving deeds, taking examinations of married wom,en touching the transfer of real property, &c. &c. But the amount of all the fees of the judges of the five courts is supposed not to exceed 1200^. currency per annum.— 1 Rej . W. I. C. p. £2. ^ The officers of this court are the prothonotary and marshal, patent offices, performed by deputies, who gene- ^lly farm them from the patentees for a term of years. Ihey receive fees for official services, are under the con- troul of the judges, and may be suspended or removed by the governor for misbehaviour. The sittings of the courts are regulated by the statutes of the island. Lach court sits in its own precinct.— 1 xiep. W. 1. C p. da. Actions are commenced in these courts by filin.r a declaration in the office, and serving a copy of it togetlier with a summons, upon the defendant personally, or at his last place of abode, except in cases of arrest. Arrests are made by virtue of a process under the hand and seal ot the governor, addicssed to the provost marshal, or his lawful deputy. Appearance is made on the second court day after service of the summons. The rules of practice m these courts are said to vary a little from those of the Court of Common Pleas in England. A judgment may be obtained in general on an action in this court within a twelvemonth. BARBADOS. JgQ The power of arrest is exercised in these courts, but it does not appear whence it was derived. There is no law of the island by which it is given. The only law upon the subject is the one which gives the exemptions.— 3 Rep. W. I. C. p. 34. Freeholders owning ten acres of land, and capable of electing, or being elected to serve in the House of Assembly, are exempted from arrest. Not so women or Jews, or freeholders whose deeds have not been proved. A habeas corpus is obtainable upon application to any chief judge, by the common law, and is supposed to make a part of the governor's instructions. The chief justice of the precinct decides as to the sufficiency of the bail, if the sum for which the defendant is arrested exceeds 200/. On arrest a bond ought to be given by the plaintiff conditioned for the liHngof the de- claration within three days, engaging to prosecute his claim without greater delay. If the act is complied with, the object it had in view is clearly not effectuated. In a case where the defendant cannot procure bail, and goes to prison, and the plaintiff" does not proceed with his action, the Crown lawyers are not agreed whether (even supposing the plaintiff"s bond to be forfeited, which, however, they do not seem to consider it,) the defendant would be entitled to his discharge. — 1 Rep. W. I. C. p. 35. By the law and practice of this island, an action must be tried where the defendant Hves.-— 1 Rep. W. I. C. p. 36. The pleadings used are intended to be exactly the same as in the Court of Common Pleas in England. The pleadings are all entered in the Prothonotary's Office upon one paper, and this serves for a record. The jury indorse their verdict upon it, and it is signed by the foi-eman. The ve/iire is not entered upon each issue, because there is only one venire upon all jury actions. The pleadings are not opened to the court by counsel. There are no abstracts made for the judges. The jury is addressed by the counsel upon all the facets] and all the law of the case. Upon arguments on special verdicts, and demurrers. Sec. there are no paper books containing the points and authorities upon whicli the counsel intend to rely, made up for the information of the judges. The proof of debts, whether by specialty or simple ? n| .' I iS'i II ( ii^ri 190 BARBADOS. contract, when the creditor resides, and the debt accmes in l.ngland, is rendered surprisingly easy by 5 Geo. 2, cap. 7. The merchant's books are produced, and the accounts sworn to before the Lord Mayor, (in London,) usually by a clerk, sometimes, it is said, by the merchant himself, the party in the cause. But the Attorney-General observed, « we object to that (the latter) now, and the court allows the objection." . Yet the words of the act are, " It shall and may be lawful for the plaintiff or defend- ant, to verify and prove any matter by affidavit or affirm- ation, and every affidavit certified under the city seal, and transmitted, shall be of the same force as if sworn viva voce in open court."— 1 Rep. W. L C. 37, 38. Witnesses attending the courts of this island do not in general receive their expenses.— 1 Rep. p. 38. When any point of law arises on trial of a cause, and the counsel on either side apply to the court to have a special verdict, the judge is bound to grant, and the iurv to find It. <=> J J Unless reasons in arrest of judgment are filed, (which they frequently are merely for delay,) execution comes in fourteen days after judgment is entered up. Judgments in this island are not registered, but are entered in the prothonotory's office, and when it becomes necessary, they must be searched for there. Lands are bound from the judgment, which renders the circumstance material. The writ of execution "runs against" or operates upon goods, lands, and body, all at once; some- what resembling a statute staple formerly known in prac- tice m England, but without the delay and charge of a *• liberate," The lawyers are agreed (however the prac- tice may haie been otherwise,) that the provost marshal ought to take them in succession. And now a manuscript act directs, that he shall not keep the body, if lands and goods are pointed out to him.— 1 Rep. 38. The counsel in this island receive their fees (out of court) from the client himself, and not through the medium of the attorney, and it is said can recover them by action. This was the case when the characters of barrister and attorney were blended, but the doctrine would seem to be doubtful at present.— 1 Rep. 40. Writs of error are not often resorted to in Barbados for purposes of delay, being too expensive. If a new trial is crranted. it is nlnrnvs imnn tW ff.i.>»o ^f 1... BARBADOS. 191 first paying all the previous costs. Where the rule is silent as to costs, the construction is the same as in the r^^- , S?"""","". J^^^^ ^" England, not as in the Court of King's Bench. (6) Bench Actions. Actions brought for the recovery of a debt not exceed- ing eight pounds, are denominated bench actions, beinc decided without the intervention of a jury. They are tried by any one of the judges of the Court of Common 1 leas, on one of the court days after the jury actions are finished.— 1 Rep. W. I. C. p. 42. Court of Ordinary/. The Court of Ordinary derives its authority by com- mission from the crown. The governor or president beine commander-in-chief of the island, is sole judge. He sits alone, having no legal power of calling in any assistance. Ihe probate of wills, granting letters of administration and marriage licenses, form the subject-matter of his iuris- diction. Marriages are either by banns or license from the governor as ordinary. They have no canonical hours in the colonies, and marry at what time they please. All wills are proved, but the probate is conclusive only as to personalty. There are no restrictions on the power of disposing of property by will in this island. The solemnities requisite to the validity of a will are nearly the same as m England, but the Barbadian statute of trauds requires only two witnesses to a will of lands, and even this rule is accompanied with a proviso, that " the act shall not be construed to extend to any will, written throughout m the handwriting of the testator." The court sits at the government house as often as occasion requires. It is doubted whether an appeal lies from this court to the King in Council, or to His Majesty, as head of the Church. But in either case the appeal trom this court is direct and immediate. There is no power of enforcing the payment of costs ; consequently there is no taxation of them, and no table of f'ees-i I Rep. p. 4S. '^ n T^l i t I 3.1 n (6) Tidd's Tfaclice, 9tli edit. 916. 192 BARBADOS. ;ir •li'l Court of Admiralty. The Court of Admiralty consists of two courts, a Prize and an Instance Court, both held by commission issuing from the High Court of Admiralty in England. Both possess the same jurisdiction as is exercised by the cor- responding courts in England, as nearly as circumstances will permit. The prize court is held only in time of war. The cases in the instance court consist of claims on seizures by custom-house, seamens' wages, bottomry bonds, &c. &c. — 1 Rep. p. 43. A sole judge of both courts is appointed from home in time of war. The court is held as occasion requires. The officers of the court are the King's advocate, the King's proctor, the registrar, and the marshal. In time of war the judge receives a salary. The judge, in peace, is paid by fees. The King's advocate has no salary, and receives ro fees for a prosecution at the Admiralty Sessions. "The registrar and marshal are patent officers paid by fees. There is a great deal of business in the Prize Court in the time of war. The receipt of fees has sometimes exceeded the judge's salary (which is 3000/. sterling per annum,) in which case it goes on to pay the next year's stipend. The fees of the Court of Admiralty are every where excessive. Where a seizure from smugglers amounts to 100/. or upwards, a condemnation will not enable the captors to pay the expenses. The Admiralty Sessions are held by a separate com- mission for the trial of murder, piracy, and other offences committed on the high seas. This court is composed of the Judge of the Admiralty who presides, the members of the council, and all flag officers and captains on the station. The attorney-general and King's advocate are employed. In this court no fees are taken. The sessions are held as occasion requires. — Id. 44<. Court of Appeal and Error The Court of Appeal and Error is composed of the governor and council. There is no lawyer upon the bench. Some of the judges are members of it, but it is provided by the governor's instructions that they shall not vote in any case brought from the court where they have acted as judges-. The governor and council decide BARBADOS. 193 by a majority. A writ of error to operate as a stay of execution, must be brought within fourteen days aC judgment. It only lies where the principal sum in dispute amounts to 300/ calculated in sterling mone^ costs not included. An ulterior appeal lies to the Kin| n CouncU for'costs r'^"' '• ^^^' ^' '' ''^^ '^^' "« appeal wiS He « L .^ r'"?^ ^' ^^'' '^' The security to be given Nos^ "if qo^^ the Governor's instructions, Ld the^cts (iNos. 22, 90, and 143,) of the island.— 1 Rep. 44. Escheat Court. in Iw^ -^^r' 9o".rt sits under a commission. The cases m which It has jurisdiction, are commonly forfeitures to the Crown for want of heirs. An escheator-general is appomted by the Governor.- 1 Rep. W. I. C. p. 45. CRIMINAL COURTS. Court of Grand Sessions. This the principal court for the administration of crimi- r.^L'll" A ' '' ^^^- """^r *^^ authority of an act of the island. A commission of oyer and terminer and general gaol delivery is issued by the governor, for the trial of all Sin ""'fT -"i"^ ^misdemeanors, in which all those gen- tlemen of the island who are in the commission of the peace are included^ The person who presides is generally a member of the Council, or one of the chief judges, ?he chief justice, or chief baron. The court is held twice a ?o four"da"? I^ecember, and the commission is limited All offences committed by free persons, whether coloured or otherwise, are tried at this court. This courJ r^d r Z nf 1' ^'"'•°"? ^"^ P''^^''^^ *°f°"«^ the laws and rules of the crimmal courts in England. The nreli- minary proceedings which take place before the trial of persons accused of offences, as the complaint, warrant, apprehension, examination, and commitment, are all trans! acted before a justice of the peace in the same manner as m the mother country. Depositions are taken in almost all cases,— misdemeanors as well as felonies.- 1 Ren w. 1. c p. 4.'5. *^' muf der^^""^^^ '"^"'"'"^'^ ^^ freemen are bailable, except f 5" f ? i i o IP ~r I 'i " - i i i- ^1 1.^ '^ [t:ii 194 BARBADOS. "P Justices of the peace and coroners, are by law required to attend these courts. The magistrate binds over the party to appear and prosecute, but not always the wit- nesses to give evidence. A list of commitments is made out by the gaoler, and sent to the attorney-general, who frames the indictment and conducts the prosecution, for which he receives a fee from the prosecutor when the latter is of ability to pay it, " not under five pounds." Judgment may be arrested on the same grounds as in England, but it must be determined before twelve at night on Friday. After sentence, the Governor has the power of reprieve and pardon in ordinary cases, but in treason and murder the Crown alone can pardon ; the Governor suspending the execution and sending the case home. The grand jury will not receive a bill that is not pre- sented by the attorney-general, the attorney-general con- ducts all prosecutions.— 1 Rep. W. I. C. p. 46, 47. ; Court of Quarter Sessions. A Court of Quarter Sessions is by law established in every parish, amounting to eleven in the island. Two justices form a court ; the senior taking the chair. This court, though empowered by a local act to hear and de- termine offences of petty larceny and misdemeanors, sup- poses and acts upon the opinion, that it cannot summon a jury. This court, transacting no business, is not attended by any professional persons whatever.— 1 Rep. W. I. C p. 47, 48. Barriaters and Attornies. It is now required (prospectively) that gentlemen ad- mitted to practise as counsel in these courts, shall previ- ously have been called to the bar in England. It is neces- sary for gentlemen applying to act as attornies or solici- tors in this island, to produce a certificate of having served a clerkship for five years either in England or the West Indies, and a testimonial of good character must be signed by two barristers, which is usually done by the attorney and solicitor-general. They then receive a commission from the governor. They are admitted and take the oath in every court in which they intend to practise. They do not pay any fee, and are not restricted to any particular number of clerks.— 1 Rep. W. I. C. p. 59, 60. M HAHDADOS 195 and Debtors Absent, or Abscondina. An act to enable creditors to recover their just debts out of he effects of their absent or absconding debtor ! -Hall s Laws, No. 202, 17th March, 17.53. debtLl Ifj^' % '' PT"*^^.*''^^ '^ ""y P^'-so" being in- debted, either absconds or departs, leaving behind him oranvol?^.h"-''r^'"^^'^^,^^«"^^' «•• -e^rchandise, aU ffoods^ 1.1 !^- .^'"'"f "'f^'^r' '"^y ""««^» «"^h monies, fhev nvxv ll f ? 'k *''" *-""''l"^ '^'^ P^--^^" ^itfi whom nafnr3 ""*^; ^y. 'T''?^- ^^^^ ^^th a summons in tlie nature of a writ of scire facias, and creditors not having obtained judgment may enter an action against the Tb? scond.ng or departed debtor, and serve the same on any person mdebted to him, or in whose hands there are anj of his goods or effects, which service shall be a warning TJtlJ I '^':rt i"°V'° P^y ^^^ ^^btor absenting ov departing, at penl of his being afterwards obliged to pay ^JTf.T^^' ^" '^"" P''^"^ ^"^- The act^then p^ro- vides that the person served may appear to the sci fa. Z rlT ^ t^"" u "^^"'^ f'y ^^^ '"•^"^y' &c. should not be condemned to the use of the plaintifi; or he may plead that he has no money, &c. in his hands, or any other special matter. And that the plaintiff shall not have exe- cution till he puts m bail, conditioned that if the debtor absconding or departed, shall appear in the said court withm a year from the judgment, and discharge himself, and prove that he owed nothing, or not so much, the money or goods, or their value, shall be forthcoming. For other regulations on the subject the reader is referred to the act Itself. The following remarks on this subject are made by the commissioners appointed to inquire into the civil and criminal administration of justice in the Wes Indies. These laws resemble foreign attachments in l^ondon. They are a very powerful instrument in the colonies, giving the local creditor a considerable advan- tage over the foreign claimant ; but it was complained that they were found expensive. The costs in ordinary cases are ascertained to be about 281. lOs. By these means a creditor may attach effects belonging to a defendant, who has himself escaped m whatever hands they are found. No affidavit of the debt is required by the act. A ere- ditor not having judgment must enter an action against o2 196 BARBADOS. Hi n t I i such aljsent or absconding debtor, and serve it on the person in whose hands or power any effects are discovered to be, which has the effect of attaching them to the use of Hie plaintiff: A judgment creditor serves a scire facias. Ihe plamtiff' gives security for restitution in case the absent debtor shall appear within a year. The garnishee pleadmg that he has nothing in his hands of the plaintiff* to be attached, may be put to swear to the truth of his plea, but then his oath will be conclusive of the fact. Ihe garnishee making default is without relief either in law or equity. (8) Aliens and Foreigners, " An Act to prohibit masters of ships and other vessels from landing aliens or foreigners in this island, without a hcense for so doing from the Governor or commander-in chief of this island, for the time being."— Hall, 134, passed 26th June, 1717. J COLLECTION OF LAWS. There are two printed collections of the acts of the legislature of Barbados,— Hall's Laws, published in one volume foho, 1764, and Moore's Laws, edited in 1801, in one volume 8vo., both incomplete, and the former in a remarkable degree inaccurate and defective. They were published, however, under authority of the legislature, by whom they are made evidence. (9) Hall's Collection con- tains the acts from 1643 to 1762; that of Moore, the acts from 11th May, 1762. to 8th April, 1800. The later acts ot the island remain in manuscript. The manuscript acts not m print, are said to amount to 247. The acts them- selves are deposited in the Colonial Secretary's Office, and ^opies are directed to be kept in the parish churches, i'ersons desirous of consulting them can only do so by applying at the Secretary's Office, or to the Clerk of the Vestry. A tee is paid by persons requiring a transcript.(l) (8) 1 Rep. W. I. C. 42. (9) Hall, No. 30 ; Moore, No. fi7. There liad before been printed edi- tions of the Laws by Uawlin, by Zouch, and by Salmon. See Preface to Hall's Collection. (1) Eep. W.I. C. 6.7, 123. li \ I r It 'i ( 197 ) GRENADA. i- Grenada is one of tlie Caribbee Islands in the West Indies, thirty leagues N. W. of Tobago. (1) It is com- puted to be about twenty-four miles in length, and twelve miles in its greatest breadth, and contains about 80,000 acres of land. It is divided into six parishes, St. George, St. David, St. Andrew, St. Patrick, St. Mark, and St. John. The capital town is that of St. George, a name conferred bv an ordinance of Governor Mdvill, made soon after the cession of the island to Great Britain in 1763 ; the former appellation, during the dominion of the trench, having been Fort Royal. By the same ordinance English names were given to all the several towns and parishes, and the French names were forbidden to be thereafter used in any public acts. (2) There are several smaller islands in the vicinity of Grenada, known by the general name of the Grenadines, and supposed to be about 120 in number. But few of these, however, are now comprised in the Grenada govern- ment. By an arrangement which took place after the peace of 1783, a line of division was drawn from east to west between Cariacou and Union Island. The former of these, and some smaller islands to the south of it, belong to the Grenada government, while Union Island, and those to the north, were annexed to the government of St. Vin- cent. (3) Both these governments are now subordinate to that of Barbados (see ante, 123.) Cariacou, which was the chief dependency of Grenada, forms a seventh parish in addition to the six already enumerated. (4) (1) Brookes's Gazetteer. (2) I B. Edwards, 383, 385. (3) lb. 381. Mr. Edwards does not notice the autlu rity under which this division took place,but it was probably that of a proclamation dated the 10th of January, 1784, which is referred to in an act of the Grenada Assembly of the 9th of March, 1784. (4) Ibid. 384. . ,1,. i « •i r I i I i-a 198 UHENADA. ffi HISTORY AND CONSTITUTION. Grenada was discovered by, and received its name from Christopher Columbus in 1498. It was then in the posses- sion ot the Charaibes, and these were left undisturbed by the hpanmrds, who do not appear ever to have attempted to torm a rettlement. In 1650, Du Parquet, a Frenchman, invaded the island, established a colony there, and exterminated tlie whole raceot its native possessors. The rights of the individ.al Who thus effected the conquest, were sold to anntbor per- son, by whom they were conveyed to the French West India Company, whose charter being abolished hi 1674, tne island from thenceforth became vested iu the crown of xTance. In February, 1 762, Grenada surrendered on capitulation to the British arms, and with its dependencies was formally ceded to Great Britain bv the definitive treaty of peace at Pans, on the 10th of B^ebruary, 1763. The chief Stipu- lations in favour of the inhabitants, as well by the treaty as by the articles of capitulation, were these: 1. It was agreed that Grenada should continue to be governed by Its then present laws until His Majesty's furtlier pleasure was known. 2. As they would become by their surrender, subjects of Great Britain, they were to enjoy their proper- Th" ivS"''''^^,^'' """^ P^y ^^""^^ ^n "J^e »na""er as the rest ot His Majesty s subjects of the other British Leeward islands. J. With respect to religious worshio, they were put on the same footing as the inhabitants of Canada, viz. liberty was given them to exercise it according to the rites of the Roman Church, as far as the laws of Great Britain permitted. 4. Such of the inhabitants of Grenada as chose to quit the island were at liberty to do so, and effectrcV" '' "^^""^ ^"""^^"^ ^^^^ *° ^'^^""^^ °^ ^^^'"^ By royal proclamation, bearinaf date 7th October, 1763. It was declared that His Maic.,y had, l^y advice of His rnvy Council, granted i.i.^rs patent under the great seal to erect within the countries ceded by the Treaty of Paris, tour distinct governments, one of which was to be " the io) 1 B. Edw, 353 to 360; and Campbell v. Hall, Cowp. 204. ORENAUA. 199 govcrnmpnt of Grenndn, comproliciuling the island of that name, together with the Grenadines and the islands of Dominica, St. Vincent, and Tobago," and that Hia Ma- jesty had in the letters-patent directed the governors of such governments, " that so soon as the state and interesta ot the sanl colonies shoidd admit thereof, they should, with advice and consent of the members of our Council, summon and call General Assemblies within the said go- vernments respectively in such manner and form as is used and directed in those colonies and provinces of America which are under our immediate government," and had also '' given power to the said Governors with consent of the Councils and representatives of the people so to be sum- moned, to make constitutions and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies, and of the people and in- habitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies ;" and had also " given power under our great seal to the Governors of our said colo- nies respectively, to erect and constitute, with advice of our said Councils respectively, courts of judicature and public justice within our said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be agreeable to the laws of England, &c." (G) By another proclamation, bearing date 26 March, 1764, His Majesty recites that he had directed a survey and divi- sion of the ceded islands, and had ordered them to be divided into allotments as an invitation to purchasers to C(mie in and purchase upon the terms and conditions spe- cified in that proclamation. (7) By other letters-patent, under writ of privy seal, bear- ing date the 9th of April, 1764, General Melvill was ap- pointed Governor of Grenada, the Grenadines, Domi- nica, tit. Vincent, and Tobago, with power to summon, by advice and consent of his Council, General Assemblies in those islands as soon as the situation of the islands would admit. And the Governor, by advice and consent of the Council and Assembly, were to make laws which were " not (6) This proclamation is prefixed to Smith's Laws of Grenada. (7) Campbell v. Halt, Cowp. 204. This proclamation will be found more al large in Lofft's Reports, p. 661. i n ,11 Eli 200 GRENADA. to be repugnant, but as near as might be agreeable to the laws and statutes of the kingdom of Great Britain." (8) Under these letters-patent an Assembly was first con- vened in Grenada in 1765; (9) the legislative authority, prior to that period, having been exernised by General Melvill and his Council, (i) As the question of the right of the Crown to impose by proclamation the four and a half per cent, duty after the grant of a legislative Assembly had passed the great seal was discussed widi reference to this particular colony, it may not be out of place now to give some account of the proceeding. The Crown, conceiving itself entitled by the terms of the capitulation and treaty of peace, to levy in Grenada and the other ceded colonies, the same four and a half per cent, dutyoxv exported produce as is paid in the other Jueeward Caribbee Islands and at Barbados, issued let- ters-patent bearing date 20th of July, 1 764, directing that from and after the 29th of September then next ensuing, such duty should be raised and paid upon the export of dead commodities from Grenada, in lieu of all customs and duties hitherto collected under the authority of the French king. '' This claim on the part of the Crown being disputed in Grenada, an action was brought in the Court of King's Bench in England to try its validity. (2) In defence of tlie claim. It was urged that Grenada being a conquered country the King was invested with the power of puttincr the inhabitants under what form of government he thought best ; that he might have granted them what terms of capitulation, and concluded what articles of peace with them he saw fit, and that the assurance to the inhabitants ot Grenada in the articles of capitulation granted, that they should enjoy their properties and privileges in like man- ner as other of His Majesty's subjects in the British Lee- ward Islands, necessarily implied that they were bound to submit to the same consequences of their being subjects as were submitted to by the inhabitants of those islands. (8) Preamble to Colonial Act of 23d of April, 1792. intituled, " An Act for Kegulating Elections." And see Campbell v. Hall, Cowp. 207, and Lofft's Rep. 662, where these Jetters-pateiit are nioro fully "iven. (y) 1 Edwards' Hht. 36?; Cowp. 207. ( 1 ) Smith's Preface to Laws of Grenada. (2) See the Report of this case, Campbell v. Hall, Cowp. 204, and the «p!'citt! verdict therciti, LolFt's Hep. 657. i. w GRENADA. 201 of one of which was the payment of the duty in question. On the other side it was contended that the letters-pa- tent were void on two points. First, that even had they been granted before the proclamation of the 7th of Octo- ber, 1763, yet the King could not exercise such a legisla- tive power over a conquered country. The second point was, that even if the King had sufficient power before the 7th of October, 1763, to do such a legislative act, he had divested himself of it by the two proclamations, and the commission to Governor Melvill. And the Court of King's Bench, after argument, were of opinion, on the second point, that by those proclamations and commission, the King had immediately and irrecoverably granted to all who were or Should become inhabitants, or who had, or should acquire property in the Island of Grenada, or more generally, to all whom It might concern, that ihe subordinate legislation over the island should be exercised by an Assembly with the consent of the Governor and Council, in like manner as the other islands belonging to the King." (3) Lord Mansfield accordingly pronounced the judgment of the court on this ground against the Crown's claim ; and the duty was thus abolished not only in Grenada, but also in the ceded islands ot Dommica, St. Vincent, and Tobago. It is observable, however, that on the first point the court expressed an opinion favourable to the Crown, and held that prior to the proclamation of October, 1763, Grenada, as d conquered country, was liable to the imposition of taxes by the sole authority of the King. His lordship referred to the re- ports made to the King by attorney and solicitor-general Yorke and Wearg, in 1722, in favour of that opinion. Ihe principle had been discussed and decided in a similar manner or a previous occasion. By the instructions given to Colonel Codrington, the Governor of St. Christopher's, it seems that he was ordered to levy the four and a half per cent, duty on the whole island, under the authority of the act that had granted it in respect of that part of the island belonging to the English when the act was passed. 1 he question of the right to do this was submitted in 1704, to the consideration of the attorney-general Northev wlio reported "that the officers of the English part of St! Christopher's had no authority, by virtue of the plantation I (3) Camphdl v. Hall, Cowp. Sl.S. Ill K f t S ' GRENADA. act made there for the four and a half per cent, on goods, to levy the same on goods exported from that part of St! Christophers lately gained by conquest from the French, that law extendmg only to such part of the island as be* onged to England when the law was made ;" but he added, her Majesty may, if she shall be so pleased, under the great seal of England, direct and command that the like duty be levied on goods exported from the conquered part, and that command will be a law there, her Majesty bv her prerogative being enabled to make laws that will bind places obtained by conquest, and all that shall inhabit therein. (4) The prerogative of the King, before the date of the proclamation of October, was clear ; but by that pro- clama ion, followed up by his commission to Governor Melvill, he divested himself of the right to exercise it. To return to the subject of the transactions in the colony. By one of the ordinances of Governor Melvill and his Council, bearing date 9th of March, 1765, and made ap- parently before the legislative power of the assembly had come into operation. Courts of Common Pleas and of Error were established in this island. The earliest act in Mr. Smiths collection is under date 29th November, 1766, and several other acts were passed in that and the following year and among others, an act under date of 14th October, 1767, for establishing Courts of Common Pleas Error, King's Bench, and Grand Sesions, &c. (5) Uut from the papers extant in the Plantation Office in England, it appears that both General Melvill and the government were much dissatisfied with the first Assembly, the Governor having hastily dissolved them at the close of the year 1767, while the Privy Council f^^h Tn /^r «ft^eir principal acts." And after the 14th of October, 1767, it seems that « no legislative pro- ceedings took place until the year 1769." ^ " On the 13th of December, 1768, a proclamation issued, reciting a variety of regulations for the purpose of electing and calling together the Assembly of Gi^nada Jn pursuance of this proclamation the legislature was as- sembled early in 1769;" and from this period to Novem- ber, 1778, various acts were passed, among which was one act of the 3d of March, 1770,(6) for explaining and (4) 1 Glial. Op. 141, and on the subject of the 4J- per cent, duties, see ante 50, 51, n. (5) Smith's First Table, prefixed to the Laws of Grenada. (6) Smith's Preface, xi. First Table, -xvi. GRENADA. 203 amending the former act for establishing Courts of Com- mon Pleas, &c. On the fourth of July, 1779, Grenada was captured by the arms of France, but was restored (with the Grena- dmes) to Great Britain by the general pacification which took place m January, 1783 ; (7) and the English govern- ment was re-established there early in the year 1784 under General Mathew, (8) who was sent out as Governor of Grenada and the Grenadines lying to the southward of the Island of Cariacou, including that island," (9) which has, until very lately, continued to be the style of the Gre- nada government. On the 16th of March, 1784, an act passed the Gre- nada legislature intituled "An Act for removing doubts with resptct to the laws which are to be deemed in force in those islands upon their restitution to the Crown of Great Britain." This act recites, that doubts might arise whether and how far the laws which were in force at the time of the capture by the French in 1779, « were absolutely an- nihilated or only suspended during the continuance of the war, so as to revive again" by the restoration to the Crown ot Great Britain, and proceeds to enact " that all such parts of the common law of England, and all and every such parts of the statutes or acts of parliament as were in force and binding in Grenada and the Grenadines, whilst the same were heretofore a part of the British dominions are hereby declared, and the same shall be in all courts and other places held and allowed, to be equally in force and binding within the islands of this government, and so to have been ever since the restoration of Grenada to the crown of Great Britain as aforesaid." And with respect to the colonial acts passed while the island was formerly under the King's dominion, it revives and declares in force certain of those acts therein enumerated; enacts by another clause, that certain others shall be in force only till further regulations made, and provides that "all other acts at any time heretofore passed in Grenada, and not mentioned in either of the two preceding clauses, shall be deemed expired." (7) Preamble to Grenada Act, 16th of March, 1784; 1 B. Edw. 376 to 380. (8) Smith's Preface, ix. (9) Grenada Act, 20th of Febru- ary, 1784 ; Smith's First Table, xxiii. and see Grenada Act, 9th of March, 1784. See ante, 197, and n. (3). i il ■ k 1. ^j. t, ,* If ill' l ^ 204 GRENADA. lit mil i Acts were afterwards passed at different periods for re- establishing the different courts of justice. Among these ??«l°"l^.^,^i"°''^^*^.*" act under date 27th of March, 1784, intituled " An Act for establishing a court for hear- ing and determining errors> or writs of error, to be brought from the judgment of the Court of Common Pleas or il-xchequer. and for directing the manner of proceeding in such Court of Errors;" an act under date of 23d De- cember 1790, mtituled "An Act for re-establishing a Court of Common Pleas and a Court of Complaints, &t": an act of 4th of October, 1800, intituled - An Act fo^ establishing a Supreme Court of Judicature, and uniting therein the jurisdictions of the several Courts of King's ^ench and Grand Sessions of the Peace and Common > oil ""f T°*^'^ established in this island ;" and an act of 26th of January, 1801, intituled « An Act to alter and amend an act therein mentioned for establishing a Court ul T'lu^ and determining errors so far as the same re- lates to the number of justices necessary to compose the said court." These four acts are aU mentioned by Mr. f.W' nlu^""''^'^^*^' '" """^ " Supreme Court of Judica- ture all the jurisdictions civil and criminal, vested in the ^"i^/o^^"^''* Common Pleas, and Exchequer in Eng- land, (2) except the jurisdiction of the English Common tlnn^nfM i?"^^!!'^''^''''''^^^. ^"^ *^^ cquitablc jurisdic- tion of the English Court of Exchequer. (3) l^frX-^ ^^;^«tablishment of the English dominion in 1784, this island, with its dependencies, has been governed (according to the usual method) under commission? granted by the crown to the successive Governors, with accom- panymg instructions, and the legislative power has con- Hrseof^lirbly." ^'^ ""'""" '"' "^^"""^ ^"' ^^^ The Governor presides solely in the Courts of Chancery and Ordmary His salary is 3200/. currency per annum, which is raised by a poll-tax on all salaries, and it is the (1) Smith's Second Table, xlvii. (2) See clause 2 of the Act, 1st Rep. W. I. C. 102 ; Sraitli's Second Table, xlvii. (3) 1 Rep. VV. I. C. 102. With respect to the Court of Chancery in this island, it derives its authority from the proclamation of 1763, and the Governor's commission.— 1st Ren. 100. "^ if GRENADA. 205 practice m Grenada to pass a Salary Bill on the arrival of every new Governor, to continue during his government. in all cases of absence beyond twelve months, the salary ceases and determines. '' The Council consists of twelve members, and the Assembly of twenty-six. A freehold, or life estate of fttly acres, 13 a qualification to sit as a representative ior the parishes, and a freehold, or life estate in 50/. house rent in i>t. George, quaHfies a representative for the town An estate of ten acres in fee or for life, or a rent of lo/ m any of the out towns, gives a vote for the represental tives oi each parish respectively, and a rent of 20/ per annum if-uing out of any freehold or life estate in the town ? ^t'^eorge, gives a vole for a representative for the town. (4) Ordinances. Eight ordinances for the government of this island are stated to have been issued by General Melville (the first English governor) and the General Council, between the 28th of July 1765, and the 12th of April, 1766; of which Mr^^ related to the government of slaves ; three to the estabhshment of courts of justice (on the English model)- one to the collecting of taxes, and one regulated the elecl tion ot members of the General Assembly. COLLECTION OF LAWS. '^^i^Jri'/ po"ection of the laws of Grenada from the year 1763 to the year 1805, edited by Mr. George Smith! formerly Chief Justice, and an act of March 15th. 1809 making the printed collection of the laws of Grenada! lately published by the chief justice of this colony, lega evidence m all courts within these islands." TheJe are also two supplements of laws, collected and printed at subsequent times coming down to the 4th of March, 1819, and in 1825 there were about twenty acts remaining m manuscript.— 1st Rep. W. I. C. p. 93. ^ By an Act of Assembly of 16th September, 1807, after reciting that some of the acts of these islands being written upon paper had been worn out and obliterated, and others had lost the great seal of the colony, by which they were authenticated, by reason whereof their validity might be- fn 11 (4) 1 B. Edw. 388. 2(y6 GRENADA. ^flll II' Iff m come questionable, it is enacted, that every act made since ISth July, 1805, when General Maitland assumed the government, and all others thereafter to be made, should be fairly entered and recorded in the secretary's office, in a book to be kept for that purpose, within one month atter publication, under a penalty of i'lOO; that such entry should be compared with the original, and when duly certified as correct by the President of the Council, &c., should be received in evidence in all courts in the islands. And that all proclamations to be thereafter made should be entered and kept in like manner. GENERAL LAW OF THE COLONY. (5) The Attorney-General of Grenada, on his examination under the late commission for inquiry into the administration of justice in the West Indies, says that Acts of Parliament ot Great Britain passed before 1763 (subject of course to the usual qualification of their being applicable in their nature) bind this colony, but none passed since ; unless the colony is in some manner designated. (6) We have already had occasion to notice the proclama- tion of 1763, by which it appears that Kis Majesty had authorized the erection of courts of justice for determining causes, as well criminal as civil, as nearly as may be agreeably to the laws of England ; the letters-patent of 9th April, 1764, by which the Assembly is to make laws "as nearly as may be agreeable to the laws and statutes of Great Britain." We have also noticed the subsequent establishment of courts of justice, and the convention of Houses of Assembly, in pursuance of these authorities, and i^of J T ^^^^^ *^^* ^^^ Colonial Act of 16th March, 1784, declares that all such parts of the common law of England, and all such parts of the statutes and Acts of Parliament as were in force in Grenada and the Grena- dines before the capture by France, in 1779, were equally in force since their restoration. The conclusion from these documents seems to be, that both the common and statute law of England, as they existed in 1763, so far as in their nature applicable to the colony, and so far as not (5) See the remarks (ante, p. 3 to 16) on the general topic, how far the colonies are subject to the laws of the mother country. (6) 1 Rep. W. I. C. lU. ^i; GRENADA. 207 altered by the Colonial Acts revived by the act of 1784 or by those passed since, are now binding in Grenada. * " Although there is no law in Grenada," says Mr. Ed- wards, " declaring an adoption of the laws of England yet It has always been the practice of the courts to consi- der both the common and statute law of England to extend to Grenada in all applicable cases not otherwise provided for by particular laws of the island. So in like manner the practice of the courts in Westminster Hall, and authentic reports of adjudged cases there, are re- sorted to when precedents and authorities ave wanting in the island." (7) * COURTS. The courts established for the administration of civil justice m this island are the Court of Chancery, the Su- preme Court of Judicature, the Court of Ordinary, an Instance Court uf Admiralty, a Court of Error, and the Court-Merchant, established by No. 10, Smith's Laws, but now become obsolete. The courts established for the administration of crimi- nal justice are the Supreme Court, in its character of a Court of King's Bench and Grand Sessions ; the Ad- miralty Sessions, and the Slave Court. There is no Escheat Court in this island, but, in cases of escheat, a commission is issued as in England.— 1 Rep. W. I. C. p. 100. Court of Chancery, The Court of Chancery in this island derives its autho- rity from the King's proclamation in 1763, and the gover- nor's commission. The Governor sits alone as Chancellor, with authority similar to that of the sole Chancellors in the other islands. The laws and rules are the same as in England, excepting some alterations made by a Colonial Act, No. 29, and a few rules, laid down at different toes by the Court itself for its guidance or convenience. 1 he court sits whenever there is occasion. The business consists chiefly of bills of foreclosure and questions as to priority of incumbrances ; and, by an act of the island, the Court of Chancery of Grenada had jurisdiction given to (7) 1 B. Edwat^s, Z90. 208 GRENADA. Iff!; { if!' il i m it in cases where freedom was left by will, and the executor, having assets neglected to manumit the slave. The officers of the court are the same as in the other islands. There is only one master. He is paid by fees, and does not give security. He alone appoints a re- ceiver. A receiver of an estate gives security in double the amount of one year's crop. This account ought to be passed yearly before the master, and his salary paid only on accounting. Monies paid into court are sometimes remitted to Eng- land and placed in the funds, sometimes retained in the hands of the officer of the court. The master is allowed 2| per cent, on receipt, and 2^ per cent, on payment of monies. Injunctions are known to be granted in two cases — to stay proceedings at law, and to restrain tlie shipment of produce. An appeal lies from all orders of this court, interlocutory and final, to His Majesty in Council, for matters of the value of ^6*500 and upwards, and a recogni- zance is entered into by the appellant and two sureties in e^^SOO. The respondent gives a security fixed by the master, and then is allowed to take the benefit of the de- cree below. An absent plaintiff gives security for costs to the amount of c£'40.— 1 Rep. W. I. C. 100, 101. l^he Supreme Court. In this court are united (by an Act of the Islar^d, No. 87,) the authority of the Court of King's Bench " "^r^ind Sessions (formerly established by an act, No. <,:,. jurisdiction of the Court of Common Pleas, and c. Complaint, (revived by an act. No. 62.) The Su^ Court of Judicature, by virtue of this consolidating act, is composed of a chief justice (appointed from England) and four assistant judges, is held six times in the year, and is said to have all the jurisdiction of the Courts of King's Bench, Common Pleas, and Exchequer in England. It does not, however, exercise the equitable jurisdiction of the Court of Exchequer in England ; and fines cannot be levied or recoveries suffered under its jurisdiction as a Court of Common Pleas ; but a deed, acknowledged be- fore a judge of the Court of Common Pleas in England or I 3 GUENADA. j:: 209 Ireland, or the colonics, will have, under No. 25, Smith's Laws, the same operation as a fine or recovery ; as will also, under the marshal's sale, hy cl. 101 of No. 62, the marshal's conveyance of an estate tail. The court follows the rules and laws of the respective 5?"''ts in England, with a few rules laid down by the different Acts of Assembly, and by the judges at various times. Clause 3 of Ihe Court Act, directs the mode of serving process on absent defendants, viz. nailing a declaration on the court-house door. Persons who have never been in the island are considered as ab- sent defendants for such purpose (8) A power of arrest is given and regulated by the Court Act. The debt must amount to i'lO, except in case of transient persons, and there must be an affidavit of the debt. Arrests are allowed in other cases upon a special order from a judge. WJien a party is about to leave the island the chief justice has allowed him to be arrested for un- liquidated damages. In uncertain demands the judges in court or at chambers, are empowered to moderate and settle for what sum bail shall be demanded. There are no exemptions from arrest. By clause 14 of No. 62, the plaintiff is compelled to proceed with his action in six days, or costs may be given for want of prosecution. The attachment of debts is frequently resorted to. The ex- pense is about £21. 4*. 3d. Depositions are used on trials, as m the other islands, and without affidavit that the witness is still absent or unable to attend. Juries. The names of the jurors returned by the marshal are written on tickets and put into a hat, and then a sufficient number drawn out to compose two juries of twelve each. Special juries are known in practice here. Krecutions. Executions are taken out, lodged, and suspended. By clause 66 of the Court Act, they bind from the time thev are lodged m the marshal's office, and he is bound to minute the precise time of their delivery. (8) But judgment obtained on process served in tliat manner .ann,.* „- tiiforccd ni EngtmiU, see ante, p. 93. " ^ 1 1 I 1 ^^ p illi 210 ORKNAPA. ¥^ Injunctions nre frequent to stay executions, more so than to stay proceedings. Fees. — Cost9. Tliere is a tabic of fees of the officers of the court kept in their respective offices. There is also a table of fees of solicitors, as between party and party. Costs are taxed as between party and party.— 1 Rep. W. I. C. 102, 103. Complaint Court. Actions, denominated complaints, are brought in this island, under a provision of the Court Act, for sums not exceeding £\0, and where the original cause of action, if it have been reduced to £10, did not exceed £30. The court is held before a single judge of tlje Supreme Court. These trials do not occupy more than one day, and are very speedily decided. Counsel or solicitors are seldom employed. The plaintiff and defendant in such cases plead in person, and may both be put upon oath.— 1 Rep. W. 1. v/. lU'r. I i Court of Ordinary. The Governor, by virtue of his commission, is sole judge in the Court of Ordinary, which is held at the court-house whenever there is occasion. He has no assessor. Mar- riages take place by banns in this island, as well as by license from the Governor. There are no means of ob- taining a divorce in this island, nor any by which a wife may obtain a separate maintenance. The practice is to prove a will though it relates only to real estates. Wills are returned to the parties proving them. Costs are taxed, and an attachment, it is supposed, might issue to enforce payment of them. An appeal is said to lie to His Majesty in Council.— 1 Rep. W. I. C. 104. Court of Admiralty, This court, in the opinion of the Attorney-General, •• derives its authority from the Act 7 & 8 Wm. 3, c. 22. ORENAOA. 211 The subjects of its jurisdiction are matters of revenue." It doubtless existed before the 7th & 8th Wm. 3, but that act enlarged its powers. The jurisdiction is exercised only m the Instance Court. There is no Prize Court. Ihe judge is appointed by the Governor as Vice-Admiral. In ito ilecisions and practice the court follows partly the law and practice of the Court of Exchequer, and partly of the Instance Court in England. For the statute 7 & 8 Wm. J, ch. 22, is supposed by the Crown Officers of the island to enable the Admiralty Court here to do whatever may be done m the Court of Exchequer at home. Until l^^^h ^edneC justice vfas judge of this court.— 1 Rep. Couri of Appeal and Error. Tins court was established (under Nos. 27 and 88 Smith s Laws,) for writs of error from the superior court, and from that court only. The judges are the governor and three members of the council, who have not sat as judges m the court below. The act provides for security Irom the plaintiff in error, or appellant. The appeal must be brought within twenty years. (9) The proceedings are not attended wfth much expense. Appeals to His Majesty in Council are not frequent and are attended with considerable expense. The terms are, giving security (according to No. 27, clauses 18 & 19) and the governor's instructions.— 1 Rep. W. I. C. 104. CriminalJurisdiction of the Supreme Court. This branch of the Supreme Court is hpld under the acts (Nos. aO and 87 Smith's Laws.) Whenever the Attorney-General sees occasion, he applies for a court and that a grand jury may be summoned. The act pro- vides that no writ for a grand jury shall issue of course, but only by direction of the court. In such case the mar- shal IS commanded to summon thirty persons of the best note, freeholders and inhabitants, to serve as grand-jurors, and forty-eight persons to serve as petit jurors. Their attendance is secured by fines of £10 and £5. The (9) This is the time stated, 1 Rep. W. I. C. 104, 19 considerable. 3. The period is ii 1. I Ii 212 GRENADA. !J»I y&' II li proceedings before trial, as to the warrant, apprelien.sion, examination, and commitment of prisoners, are precisely the same as in Knghuid. Recognizances and depositions? are returned by the magistrates to the Crown oflice, and by the Clerk of the Crown to the Attorney- (jienera), four days before the sitting of tlie court, and the Attorney- General, when he thinks proper, frames the indictment. The grand jury will not receive an indictment unless it is figned by the Attorney-General, for which, on public business, a fee is allowed by the legislature. Informations ex officio are sometimes filed by the Attorney-General, and criminal informations are also sometimes granted at the instance of a private person, as in England. This court follows the laws and rules of the criminal courts in England, and a few prescribed by acts of the colony. The Attorney-General considers the common law, as to crimes, and all the criminal laws passed in England before the charter of the island to have efiect here. , The names of witnesses are indorsed on the bill by the Attorney-General, out of court, before it goes to the grand jury, but the witnesses cannot be objected to before the trial, nor until a bill is found. Counsel are allowed to address the jury on behalf of prisoners in this court, ex- pressly by an act of this island, and the Attorney-General considers that, in the colonies, where the judges are not lawyers, such an act is ])articularly proper. The chief justice presides in this court, and sums up, ■when present, if not, the senior assistant judge. Indictments and pleas are drawn as in England, but only filed, and not made up as a record, except when necessary. Prosecutors and witnesses are not allowed their ex- penses and costs. — 1 Rep. W. I. C 104, 105. Judges. All tlie judges liold their offices during pleasure. The chief justice of the Supreme Court is appointed from Eng- land, by m;indanuis from His Majesty. He has a salary of £2500 currency, established by an act of the colony, and also fees, which according to a docket in the possession of the secretary, are said to be about £700 per annum. GRENADA. 213 1 he assistant-judges have no salary, and from curtesy do not receive fees, except where they transact business in the absence of the chief justice. It is said, however, to be d()ul)tful whether they have not the right. They arc appointed by the governor and council. Attorney- General. The Attorney/General in this island has no salary. lie has an account with the legislature for fees for public business. * Barristers and Attornieti. By a rule of court recently remodelled, a person keep- ing /uW|;e /m/i* at home, or, six at home and attending during the sittmgs here two years (making twelve courts) may practise as counsel and attorney, the two characters being blended in this island. No Court of Quarter Sessions is held in this island for the trial of petty offences.— 1 Rep. W. I. C. 110. f fa ( 214 ) St. VINCENT. pf ', St. Vincent is one of the Caribbee islands in the West Indies, fifty-five miles west of Barbados. (1) It lies in 13° Ity 15" lat. and 61° Sff 51" long. (2) It is twenty- four miles in length and eighteen in breadth. It contains about 84,000 acres, and comprises five parishes. The capital is Kingston. (3) " The number of inhabitants appears by the last returns to government," says Mr. Edwards, "to be 1450 whites, and 11,853 negroes." (4) There are several small islands dependent on the St. Vin- cent government, the chief of which are Bequia, Union, Canouane, and P,Iustique. (5) ' HISTORY AND CONSTITUTION. The Spaniards bestowed the name of St. Vincent upon this island, because they discovered it upon the 22d of January, which in their calander is St. Vincent's day. But it does not appear that they were ever, properly speaking, in possession of it, the Indians being very nu- merous here on account of its being the rendezvous of their expeditions to the continent." (6) It was included with Dominica and many other islands, in a patent granted to James Hay, Earl of Carlisle, in the first year of King Charles I. (7) In 1672, King Charles, by commission, appointed Lord Willoughby Governor of Barbados, St. Lucia, St. Vin- cent, and Dominica ; (8) but it does not appear that St. Vincent was ever settled or occupied under this commis- sion. It seems to have remained in the exclusive posses- sion of the Charaibes, its original owners. UN II (1) Brookes's Gazetteer. (2) Introduction to Sheplierd's Practice. (3) 1 Edwards, 426, 127. (4) Ibid, 428. . s-i {^/ itiiu. £1, ,71. (5) Ibid. 22. p ST. VINCENT. ^19 counsel, attorney, solicitor, and proctor. It is not required that they should have been called to the bar in England." In the Court of King's Bench and Common Pleas the rule IS that no person is to be admitted unless he has ben en- tered in one of the Inns of Court in England or Ireland, and shall produce a certificate of having kept twelve terms. But this rule has been occasionally dispensed with. On production of a certificate that the applicant is an li-nghsh barrister, the oaths are administered to him as of course. (6) COLLECTION OP LAWS. Mr. Wylly, the chief justice, has stated that he supposes all the acts extant and in force to be in print. Two vo- lumes of them have been published, and a third volume had proceeded in 1825 as far as page 20. (7) But it is doubtful whether they are complete. They begin, how- ever, from 1767, when the House of Assembly was first established. GENERAL LAW OF THE COLONY. (8) The laws in force in this island are stated to be, besides their own Acts of Assembly, so much of the laws of Eng- land, adapted to the circumstances of the colony, as existed prior to the proclamation of 7th October, 1763; and such Acts of Parliament passed since, as were ex- pressly declared, or manifestly intended to apply to this island, as to the colonies in general. (9) COURTS. The courts established in this island for the administra- tion of civil justice, are the Court of Chancery, the Court of K;..g's Bench and Common Pleas, and, as a branch of the superior court the Court of Complaints, the Court of Ordmary, the Court of Vice- Admiralty, and the Court of Error. There is no Court of Exchequer in this island. " A very few words by way of amendment," said the chief justice, "might be sufficient to give to the Court of Kind's Bench and Common Pleas all the necessary powers of a Court of Exchequer." (6) 2 W. I. C. 54. (7^ Ibid. 5, 10. (8) See the rctnarkeii n. 3 (o 16, on the geneial topic how lar the co- lonies are subject to the law of the mo- tlier country. (9) t Sep. W. I.e. 5. And sec. under title " Grenada," the remarks on the general law of that colony. ■I *5 1|i 220 ST. VINCKNT. tti ill III! Court of Chancery. P??J| ^°"l'^^^"^®s its authority from the proclamation lix' ^"" ^"^ governor's commission and instructions. 1 he governor is sole chancellor. The court has three masters (and examiners) appointed by the chancellor. The Colonial Secretary acts as Regis- trar, and the Provost Marshal as Serjeant-at-Arms. Th: . , -<: '3 governed by the law and practice of the Court ancery in England, and by its own rules. When i-j latter ar'^ silent, the practice of the court in lliHgland uniformly prevails. According to a book of practice, published by Mr. Shepherd, of the colonial bar, and recognized as authority in the colony, a defendant is entitled to three orders for time, the first for six weeks, the second for four, and the thn-d for two weeks, if he is resident within the jurisdic- tion. .If he resides in the other colonies, he may have one order only for three months. If he resides in Europe, the time is extended to six months, with liberty to add three more on motion, and on consenting to sequestration it an answer is not put in within the time. A receiver is appointed by the court, and gives security m a recognizance before the master, in a sum specified bv the court. ' Costs are taxed by the master, according to the usual form in England. An appeal lies from this court to His Majesty in Coun- CK, and must be made within fourteen days, and security IS given on recognizance before the master effectually to prosecute aie same. A copy of the papers authenticated by the oflficer of the court should be taken— 2 Rep. 10 to 12. * Court of Kings Bench and Common Pleas. This, the supreme court of common law, was esta- blished by the Court Act, which passed in 1786, and is said to possess all the combined powers of the Courts of King's Bench and Common Pleas in England. The pleadings subsequent to the declaration (and mat- \iru ^^^ *^^^^" managed without a declaration) are ore ienus. When the plaintiff is absent- a newer nf^ nunmnv fi. P ^n orney {rem ST. VINCF.NT. him to some person in the island, duly proved and re- corded in the secretary's office, must be produced, if. required, before the cause can proceed to trial or judg- ment. Foreign powers of attorney, under a notarial seal, and recorded, are sufficient. The person acting becomes hable for costs. Process is served as in the other islands, by hammer and nail, in the case of defendant absentees, who have no attorney upon record , (see ante, p. 93 and n. 9.) Depositions are receivable in evidence under the same circumstances as in the other islands, but they do not seein to be taken with equal care, and there never is sufficient circumspection. A summons left at the dwelling- house, even of the counsel, entitles the party to proceed m the absence of his opponent, and have the deposition taken ex parte. A general venire issues, and thirtij-six persons are summoned ; of these two juries (called the Jirst and second jury) are formed, and those juries are sworn, " once for all, for the court, and for the trial of all the causes on the hst. The party against whom a verdict has been obtained, has time untd the next court, to move in arrest of iudff- ment, or for a new trial, ^ To the judgment an affidavit is annexed, that the sum IS due, which is lodged with the secretary, who enters the day, minute, and hour of filing it in the docket-book; and' the judgment is binding on lands and slaves, and all pro- perty annexed to the freehold from that time. The form of the writ of execution and its operation are the same as in the other islands. Goods are bound in this island from the teste of the writ, and not from its delivery to the marshal. Executions are taken out and used as securities, as in the other islands, and though returnable to the secretary's office at the end oi thirty days, are allowed to be levied without suing out a scire facias, at any distance of time. Of real property the marshal executes a conveyance by lease and release, or often by feoffment (without livery) duly ac- knowledged and recorded hi the registrar's office, either to the purchaser, or to a trustee for the purpose of settle- ment or barring dower. Personal property is transferred by the marshal's certificate, or by the sale only. J n ■ I'; » 222 ST. VINCENT. II i ii' ml The fees, both of tlio judges and oflicers of the courtSi are regulated by tables aanexod to the acts. Every verdict in this island corries costs, " meaning," (says Mr. Shepherd, in his book on practice,) " full costs." The common practice respecting executors and adminis- trators is here extended, as they are generally subject to costs on a verdict passing against them." Costs are always taxed by the prothonotary. No costs can be levied with- out having previously been taxed. Court of Complaints. The Comnlaint Court (a branch of the superior court) in this island was established in 1786, by the 11th section of the Court Act. ^ Its jurisdiction is limited to actions under the value of £20 currency. Proceedings in this court are ore tenus.—2 Rep. W. I. C. 10, 18. * Court of Ordinary. A will in this island requires the same formality in its execution as in England. " For," savs Mr. Shepherd, *' although the legislature of the island of Grenada thought it necessary by a declaratory act to confirm the Statute of Frauds in the colony, that act has always, with the rest of the Statute Book to 170;}, (excej)ting laws having a local or political operation,) been considered as the law of the island." Wills are proved by affidavit made before the governor as Ordinary, by one of the subscribing witnesses, &c. Letters testamentary are issued by the registrar, and the will is entered in the books kept for that purpose, " but the original is not delivered out to the party as in case of deeds.'^— :i Rep. W. I. C. 18. Court of Admiralty. There is no Prize Court in this island. The course of proceeding in the Instance Court is by information to be filed by the Registrar, within ten days after the seizure. The monitions are issued to tlie marshal, who posts a copy at the custom-house, court-house, and principal tavern. An appeal did lie from a judgment in this coiu-t to the ST. VINCENT. 223 Iligl. Court of Admiralty in England, 2 Rep. W. I. C. Privv r , T\^y the Privy Council Act. it lies to the 1 nvy Councd.—See the Privy Council Bill, post. Court of Appeal and Error. Great complaintB were made, from various quarters, of fprv'^'iT' £?"«V*"Vo» «<■ this court. " I presume," ob- served the chief justice, "no judge of the court, a quo, is to sit in this court ; to constitute which the Governor and at least three members of Council are necessarv."— « The terfof CotS"'' ''''"^'" 'T ^'' Shepherdf "if meml bersot Council, may^ice their reatons (or their former judgments, but not vote:'~2 Rep. W. I. C. 19. Criminal Court.—- Grand Sessions. hl^'^ a"'* " «of tjt^ted by an Act of Assembly, and is held on the second Tuesday in the months of February, June, and October, every year. "t"«iy> *l.;T^^ members of Council are virtute officii, judges of this court ; a circumstance which we hearS^ lamented. ^2 1 ^^ •"'!•" ^"r^u^"* composed of the Heutenant-gover- «or the justices of the Court of Kind's Bench and Com- mon 1 leas, snd the judge-surrogate of the Court of Vice- Admiralty. The judges sit by virtue of the ac, without any further writ, commission, or authority. Ihe attendance of witnesses is secured by subpoena; but, even in crimmal prosecutions in this island, deposi- ZLlT T'T^ \^^^T' in case of sickness or intended departure from the colony, before the trial, and are declared to be admissible in evidence, under the same circumstances as in civil cases. When a bill has been ignored, or when the prisoner has been acquitted or is discharged by proclamation, and the court certify the prosecution to have been frivolous vexatious, or malicious, the prosecutor is liable to the pav- ment of costs, which are to be taxed by the Clerk of the Crown; and m all cases where the prisoner is unable to pay his fees, tne court may direct them to be paid out of the treasury. ^ "m^ «£ The court has a power to order transportation of •i 7 « i^ m ST. VINCENT. 'If Judges. The chief justice receives His Majesty's warrant under the privy seal of the colony. He holds his office during the King's pleasure and his residence in the colony. The Governor has the appointment of the assistant justices. All the judges, holding their offices during pleasure, are removable by the authority of the Crown, and may be sus- pended by the Governor or Commander-in-Chief, by advice of the Council.— 2 Rep. 22, 51. Provost Marshal. The provost marshal general is here, as in the other islands, the executive officer of all the courts. The chief justice said, " he claims a right of acting as marshal in the Court of Admiralty." Coroner. There is one coroner in this island, appointed by the Governor. The inquisitions are returned and filed in the office of the clerk of the crown, and the coroner is bound to make his return six days before the sessions.~2 Ren. W. I. C. p. 23. ^ Admiralty Session s. There is no commission sent out to this island for hold- ing a Court of Admiralty Sessions.— 2 Rep. 24. ( 236 ) r 6 li under luring The slices, e, are e sus- idvice other chief n the y the n the ound Rep. lohl- TOBAGO. Tobago is one of the Caribbee islands in the West Indies. It is the most southerly of them, and lies in lat. 11'' 10' north, and 5i>» 40' long, west from London— about forty leagues south by west from Barbados, thirty, five S. E. from St. Vincent's, twenty S. E. from Grenadf,, twelve N. E. from Trinidad, and between thirty and fori y N. E. from the Spanish Main. It is somewhat more than thirty miles in length from N. E. to S. W. ; between eight and nine in breadth ; and from twenty-three to twenty-Sve leagues in circumference. (I) It is divided into seven districts called divisions, viz. North East, Queen's Bay, Great River, Courland Bay, Barbados Bay, Rockly, and Sandy Point divisions. It has an equal number of parishes, which are named St. An- drew's, St. George's, St. Mary's, St. Paul's, St. John's, St. David's, and St. Patrick's. There are two towns, George Town, and Scarborough, the latter of which is the capi- tal. (2) HISTORY AND CONSTITUTION, This island was first discovered by Columbus, from whom it received 's name. It was then inhabited by a native race of India. is, who being harassed in war by a hostile tribe on tho continent, afterwards abandoned their homes and took shelter in St. Vincent's. (3) The English visited this island very early, Sir Robert Dudley having been there in the reign of Queen Elizabeth. William, Earl of Pembroke and Montgomery, is said to have obtained a grant of this and two other small islands from Charles I. in 1628 ; but it does not appear that he took any steps to avail himself of the donation ; and after continuing many years uninhabited, the island fell into the (1) Encjrclopcedia Britaiuiica; 4 two miles and the greatest breadth Ed. 275. In the latter work it is said thirteen, that it is twenty-five miles to the north (2) 4 Edwards, 287. :i:; f til 226 TOBAOO. possession of the Dutch, who fourulcd a colony there. But another settlement was soon afterwards attempted by the Duke of Courland, whose claims being contested by the States-General, the duke entered into a treaty with Charles II. dated 17th November, 1(504, by which he put himself under the protection of that monarch, and con- sented to hold the island of him upon certain conditions. Nothing, however, was done in pursuance of that treaty, and Tobago remained in possession of the Dutch. That nation v .s, in 1677, driven out by the French, and the island once more became uninhabited, the conquerors not chusing to establish themselves there. The demise of the last of the Dukes of Courland, of the house of Kettler, which took place in 1737, put an end to all claims from that quarter ; and by the treaty of Aix-la- Chapelle, 1748, Tobago was, with the islands of St. Vin- cent, Dominica, and St. Lucia, declared neutral. However, by the treaty of Paris, in 17G3, Tobago, with St. Vincent's Grenada, and Dominica, was ceded in full sovereignty to the British crown, The English commenced the coloni- zation of it in 1765. (4) By royal proclamation, bearing date 7th October, 1763, it was declared that His Majesty had, by advice of his Privy Council, granted leKers-patent under the great seal erecting within the countries ceded by the treaty of Paris four distinct governments, one of which was to be " tlie Government of Grenada, comprehending the island of that name, together with the Grenadines, and the islands of Dominica, St. Vincent's, and Tobago," and that His Ma- jesty had directed the governors of such governments to summon General Assemblies in the same. (5) In pursuance of the above proclamation, a separate Le- gislative Assembly was convened in each of the principal islands, constituting the general government. That of Tobago was first convened in 1768— the legislative au- thority from 1763 to 1768 having been exercised by a Governor and Council only. In 1769 a Court of Common Pleas and Court of Error were established by Act of Assembly, but were afterwards superseded by an Act of 1775, providing a new establishment of Courts of Common (4) Encyclopasdia Britiiiinica and letters-patent noticed more fullv in Edwards, ubi sup. 276, 280. the acconi.t of Grenada. (5) See tliis proclamation and tlie TOBAOO. Pleas, Error, King's Bench, and Grand Sessions ; and in the same year was parsed an act for establishing a Court 01 Chancery. * IuhIV^'-'^'^I'"^'' ^"' *"''''" ^'y ^''^ French, (the capitu- lation having been signed on the ist day of June in that year,) and by the treaty of 1783. it was ceded to France lew I'renchmen, however, estubhshed themselves there, and the original colonists are saitl to have continued to ment!^ '*'""^ attachment to the English govern- ^h?n v''/^''' ^^ 'VV'' ^^^^' ^^'^ '^'^'"1 ^^8 i-etaken by he British arms, and the small number of French settlers r i^i?."'^*"^*^ ^''"" afterwards quitted the colony. (7) In 1794, during the mlministration of Governor Ricketts, this island IS siud "to have received a constitution from England. - But the charter of the constitution is under- stood to be now lost." (8) However, its general nature appears by the preamble of the Act of Assembly, passed 2Ist February 1794. This act recites that by^he con- ques of 15th April, 1793, "His Majesty acquiJ-ed a ri^ht o establish such government, and to impose such laws on the inhabitants of the said island, as might be most agree- able to his royal will and pleasure;" and "had been graciously pleased to declare it to be his royal will and pleasure that the government of the said island should be a separate government, and consist of a captain-general and governor-in-chief, a lieutenant-governor or othir com- mander-m-chief of the said island, for the time being, a Council appointed by His Majesty, and a House of Re- presentatives of the inhabitants of the said island, under the denommation of a General Assembly;" and that a General Assembly had accordingly been chosen and con- venea. ihe act then proceeds to recite that "bv the conquest of the island and the final establishment of the government thereof, as aforesaid, all laws heretofore en- acted by former legislatures of this island, ceased to be in torce, but it goes on to revive the act of 1775, above men- tioned, for establishing Courts of Common Pleas, Error Kings Bench, and Grand Sessions; and also a former (6) EncycIopiBdia Britannica ; 4 Edwards, 285, 287. (7) Encyclopsedia Britannica ; 4 Edwards, 286 ; Sd vol, p. 4S6, where tlic capture is said to have been on the 17tl. April. (8) 1 Rep. W.I. C. 71. tiiMiii im 228 TOBAGO. act for establishing a Registrar's Office; and provides that the records belonging to the former Registrar's Office shall be lodged in the new one. It has a like provision also with respect to the records of the courts of justice, which are transferred to the new courts respectively. (9) In 1802 Tobago was ceded to France by the treaty of Amiens, but in July, 1803, was retaken by a British force, and was ultimately ceded to Great Britain by the treaty ofParisinl814. (1) ^ Since this, its last restoration to the British Crown, the island enjoyed up to a recent period, as it did from 1794 to 1802, a separate and distinct government uncon- nected with any other colony, and possessed the same legislative and judicial constitutions as had belonged to it during that period. It now forms part of the general government of Barbados, but it is believed will still con- tinue to have, as before, its separate House of Assembly, and separate judicial establishments.— See ante, 123, 124. t COLLECTION OF LAWS. There is no complete printed edition, nor any compilation by authority, of the laws of Tobago. The originals are deposited in the Secretary's Office, where they may be consulted on payment of a fee. (2) A collection, however, of the Acts of Assembly, passed from 1768 to 1775, inclusive, was printed in London in 1776, and many of the more recent acts are also in print. Copies of the acts of this, as of other colonies, are preserved in this country in the office of the Secretary of State for the Colonies. m GENiSRAL LAW^S OP THE COLONY. (3) Upon the examination of the law officers of Tobago, under the late commission for inquiry into the administra- (9) The act lias words wliich seem sufficiently to revive also the jurisdic- tions of the Courts of Chancery, Ad- miralty, and Ordinary. But there is no express revival of the act of 1775, establishing the Court of Chancery. It is, however, understood to have been revived by an .ict passed in Fe- bruary, 1794. 1 Rep. W. I. C. 75, 76. (1) 4 Edwards, 287; 1 Rep. W. I. C. 124. (2) iRep. W.I. C. 71,122. (3) See the remarks (ante, p. 3 to 16,) on the general topic how far the colonies arc subject to the law of the niothcr country. n TOBAGO. 229 m 1): tion of justice in the West Indies, the chief justice thus expresses himself, " The common law operated in all cases not affected by colonial statutes. It has been considered that when we received an English constitution, in the time of Mr. Ricketts, we took with it all the acts of Great Bri- tain, adapted to the circumstances of the colony. I pre- sume that all English acts at the period of the cession, which are applicable to the colonies, are in force here, and all acts since passed in which they are specially in- cluded." J r J The Attorney-General states, « I apprehend that the common law, in so far as applicable to the situations of this colony, together with the general statute law, till the treaty of Paris in 1814, when the island became an integral part of the British empire, is operative here. From that pe- riod, of course, we are only affected by such statutes of the British Parliament as are expressly extended to us." (4) This colony is stated to have received a constitution from England during the administration of Governor Ricketts, in 1794, and is therefore supposed to have adopted with It, or at the period of the cession, all the Acts of Parliament of Great Britain suited to its condition and circumstances. The charter itself of the constitution is understood to be lost. The local acts now in force are certain Acts of As- sembly passed before the capture of the colony in 1793, and revived in 1794, and acts passed since.— 1 Rep. W. COURTS FOR THE ADMINISTRATION OF JUSTICE. . The courts for the administration of civil justice in the island of Tobago, are the Court of Chancery,the Court of Exchequer, the Court of Common Pleas, the Complaint Court for the recovery of debts under jflO, appointed by the Court Act; the Court of Ordinary, the Court of Escheat, and a special and occasional court—- the Court- Merchant. (5) The courts for the administration of criminal justice are the Court of King's Bench and Grand Sessions, and the Instance Court of Admiralty, and a Court of Quarter Sessions. There is also a special commission under which I t i Ml (4) 1 ttep. 124. (5) lib. 78. :# S30 TOBAGO. ijlli Admiralty Sessions may be held, as occasion requires ; and the Governor has always the power of issuing a special commission of Oyer and Terminer.— 1 Rep. W. I. C. 76. Court of Chancery. What was the original constitution of this court does not clearly appear ; but it is stated to have been revived shortly after the capture of the colony, by an act passed in Fe- bruary, 1794. The Governor is now sole Chancellor, and is supposed to possess all the authority of the Lord Chan- cellor of England.— 1 Rep. W. I. C. 76. Court of Exchequer. This court is recognized by the Court Act, and was therefore rather revived than established by Governor Ricketts in 1794, at which time a chief baron was ap- pointed. No court, however, is known to have been held il-'tVlfi' ;^^' ^^^^" *^^ appointment of chief baron, which had long been vacant, was again filled up, and puisne barons were appointed, and the court e:ic several days tor the first and last time, in the case of Cohens, a de- faulter. The authority of the court and its rules are alike unknown, as the charter of the constitution is missing, and no records of the court can be found in the island.-l Itep* W. 1. C 79, Court of Common Pleas. This court derives its authority from the Court Act, and possesses the usual jurisdiction of the Supreme Civil l^ourt m the colonies. A chief judge presides with three assistant-judges. The chief justice is appointed by the Crown, the assistant-judges by the Governor. All the judges did hold their offices during pleasure, but before the report was completed an alteration took place which the commissioners thus notice:— "The tenure of office of all the judges was during pleasure, but by the new Slave Act It IS provided that * the chief justice of the Court of Common 1 leas for the time being, and two purine judges to be appointed by his excellency tlie commander-in-chief for the time being, whose commissions shall hcquamdiu se bene gessertnt, shall be a court, &c.' " and was TOBAGO. 231. The salary of the chief justice was £3000 currency^ equal to £1200 sterling. By a late act it has been re- duced. The fees and perquisites of the office are, upon an average, about £150 currency. The assistant-judges have no salary, and do not usually transact that part of the business which is remunerated by fees.— 1 Rep. W. I. C. 79, 119. The decisions in this court are almost entirely governed by the laws, usages, and practice of the courts in Eng- land. The Court Act prescribes certain rules for plead- ing, but very few ; and when none are prescribed, the practice is governed by the practice in England. Actions are commenced by filing a declaration. Good service of process upon absent defendants who have no attorney upon record in the island, is by nailing up a copy of the declaration on the court-house door, and this applies equally to defendants who have never been in the island as to those who have just quitted it, (but see ante, 93.) A habeas corpus is obtainable both by common law and by the statute. Special juries are known in practice here^ and are struck in the same manner as in England. Executions are taken out and suspended, and used as securities which are assignable, but the assignee must proceed in the name of the assignor. Executions bind from the delivery. The marshal is directed by the act to minute the time they come into his hands, and to levy in the order and course in which they are received. When the person is taken, there is no allowance in this island to a debtor, a prisoner in execution. The verdict carries costs with it in all cases, except the costs are restricted by the Court Act. — 1 Rep. W. I. C. 81, 82. Court of Complaints, called at Barbados Bench Actions. In this court actions are brought for sums under of 10, and determined without a jury. The sitting is regulated by the Court Act, and takes place the day preceding the holding of Courts of Common Pleas, with a limited power of adjournment. Complaints may be tried before any judge of the Common Pleas, but the chief justice generally decides them. One day com- '1 If" ^82 TOBAGO. monly suffices for such business. The parties attend in person. An account filed by the plaintiff, of which a copy is served on the defendant, with a summons, is a sufficient allega* n of the plaintiff's demand, without a declaration. The whole costs of a complaint, up to the judgment, are not more than 27*. The judge has a fee of 5s. or 5*. 6rf.--l Rep. 82. Court of Ordinary. This court is held under instructions from the Crown, before the Governor alone, having cognizance of probates 0']J^jPs>. letters testamentary, and licenses for marriage. All wills are proved, and the originals are left with the registrar, and deposited in the office. All marriages are by license of the Governor as ordi- nary, on an affidavit before the secretary. The chief justice was not aware of any means by which separate maintenance can be obtained by a wife in this island; nor was it known what measures were used to compel payment of costs. There is no process of excom- munication, and nothing had been heard of any proceed- ings as on a contempt.— 1 Rep. W. I. C. 82, 83. Court of Admiralty. This court derives its power by commission from Eng- land. It has jurisdiction in this island only as an Instance Court ; matters of prize being decided in other colonies, where a Prize Court is instituted. There was no admiralty judge at the time the commis- sioners were in the island, and the business was "at a stand for want of a judge," though there were two cases ripe for trial against parties under prosecution for not inaking a return under the Registry Act. In other islands the chief justice of the Common Pleas is frequently also judge of this court. Admiralty sessions may be held as occasion requires, under a commission then recently arrived from England, for the trial of piracy, murder, and other offences committed upon the high seas. But no court had, at that time, ever sat under the commission. Costs are said lo be taxed in this court by the registrar, according to fees established by ysase. •' TOBAGO. 233 The registrar of this court gives no security.— 1 Rep. VV, 1. O. oo. Court of Appeal and Error. This court « is established by the Court Act." The Governor and Council are the judges. Where any of these sat judicially in the court below, they only attend in the Court of Error to "give information." The proceedings upon writs of error are attended with considerable expense. It is the same with appeals to His Majesty m Council, occasioned as the commissioners were told by the cost of taking out copies of papers.— I Rep. VV. 1. C 83. ml Court of Escheat. Thek-e is a Court of Escheat in this island. Cases of intestacy are not so frequent as formerly, but some occur every year. Slaves escheating are not considered as vir- tually freed. CRIMINAL COURTS. Court of King's Bench and Grand Sessions. The Court of Grand Sessions is established by the Court Act, for the trial of all offences committed by white or free coloured persons. The court is composed of all members of council and justices of the peace. The commission of the chief justice does not extend to this court. He sits in it with only the rank of a common justice. The indictment is drawn by the Attorney-General, to whom a fee has been generally paid for this service by the public. The case for the prosecution is opened by counsel (the Attorney-General), who is not confined to a mere statement of facts, but also makes observations. Counsel also ad- dress the jury on behalf of the prisoner. The evidence sometimes is, and sometimes is not, sum- med up by the judges. The judgment is supposed to be final. The chief justice said he knew not to what court a writ of error could be taken, for tliere was no Court of King's Bench with a superintending power. id Ifp# t. a iPM t m fill! m k ■' f , ' 'm 'Mtt TOBAGO. Prosecutors and witnesses are not allowed their costs and expenses.— 1 Rep- W. I. C. 83, 84. Court of Quarter Sessions. This court is directed to be holden on the third Tues- day in January, April, July, and October. The court has " leave to sit as long as it shall be necessary for hear- ing any business that may come before it," and is invested " with the same power as the Court of Quarter Sessions in England."—! Rep. W. I. C. p. 72. The Court of Quarter Sessions at Tobago is constituted similarly to those appointed to be held in Barbados, ex- cept that there is only one court estabhshed for the island. But, like them, it never sits ; the business that should be done there being all transacted at the Grand Sessions.— 1 Rep. W. I. C. p. 84. Attorney- General. The Attorney-General of this island has no salary nor stated fees, and performs various important duties re- quiring his anxious and unremitted attention without any compensation whatever. For drawing indictments and conducting prosecutions in capital cases, the fee has ge- nerally been paid by the public. The Attorney-General submits his account annually to the legislature, who deal with it in their discretion. Barristers and Attornies. There is said to be a rule among the manuscript rules and orders " that every person admitted to act as counsel in the courts of this island, must have been called to the bar in England," but such a rule, if it exists, has not been acted upon. Formerly an examination of a candidate for the bar, previous to his admission, took place before the Attorney-General or other Crown lawyer, and the judges afterwards admitted to the bar of their respective courts such persons as produced testi onials of their sufficiency." Now, " the Governor exercises the right of admission," said the chief justice, "as we understood, under the King's instructions." They are admitted to act only " during pleasure/' a form, it is said, directed by the in- TOBAGO. I 235 luch'T'.i^-^'^ commissioners thought the propriety of such an admission "very questionable, as it affects the independence of the bar." They observed.that if such p S? T' ^'*"*^^ ;** ^? " ^"""S pleasure," it ought at 1 Rep! wTcTt " ^""^ ^' ^'^'''^'' Pleasufe."- stit^f ;rfr'- \° ^"*^™^i«r solicitors, thev do not con- ^ ute, m this island, a different branch of the profession. Ihe same persons practise as barristers and as attornies cTtJ.!!l Rep'T'L C. sT ' '^"^'^^P ^" '^' ^''''' ''^" Justices of the Peace. r.Z^^'^'tu^'' ?"^'^'^^ ',° *^« °ffi«« «f ^ i"«tice of the ^ I c" 88' ^'^ '^""^ "' '" England.-l Rep. Coroner. .J^^\% ^ u *'? *^^'''"^''' ^" *^"« ^«^«» start of Essequibo, that, in 1774, the seat of government was removed from the latter, and Stabroek was founded From that period Essequibo, which had hitherto been the principal, became a dependency of Demerara. In the year 17G3, a rebellion x)f the slaves took place in Berbice but was suppressed after considerable exertion. Great numbers of the negroes were slaughtered. Those few who escaped have since occasionally been joined by fugi- BRITISH QUIANA. S39 tives from the estates, and these men are known by the name of "bush negroes." Six years 8ubse((iiently to this rebellion, Berbice was exposed to another calamity. The woods on the coast were set on fire, a crime which was at- tnbuted to the rebel negroes, (md the conflagration pro- gressively extended from the river Courantin to the Deme- rara, destroynig the forests and devastating several rich plantations. In the year 1785 these colonies were reduced by a small British force, but they did not long remain in the possession of their new masters, they being captured by the I rench in the succeeding year. By a convention signed at London on the I3th August, 1814, Demerara, t^ssequibo, and Berbice, became a part oi he British dominions. Since then the prosperity of these colonies has experienced a rapid in; rease, and is still gainins-- ground, so that the produce raised, and the shipping em- ployed, now equal in value and number more than one- third of the produce and shipping of the long settled and flourishing island of Jamaica. —4 Ed w. 24<9. Stabroek, or George Town, the capital of ])emerara, is situated in 6" 50' north latitude on the east side, and near the mouth of the river, which gives name to the colony. It is of an oblong form, about a quarter of a mile in breadth, and a mile m length ; it stands on a low and level site, and the principal streets are perfectly straight, with carriage roads. Ihe houses are of wood, two or three stories high, and raised on brick foundations. In the public buildings there is nothing which merits a particular description. Kingston Labourgade, Bridge Town, New Town, and Cumings' burgh, are villages in the vicinity of Stabroek. Thev all owe their erection to the British. The former capital of Berbice, called Zealandica, or Old Amsterdam, was built about fifty miles up the river by the first settlers. In process of time, however, as the' colony grew more peopled, and cultivation became more extensive, this situation was found to be subject to great inconvenience, from the difficulty with which vessels are worked up the winding river, and the frequency with which they grounded on the numerous muddy shoals whence it was sometimes impracticable lo get them oft* till they were set afloat by the rising of the spring tides It was accordingly resolved to remove the seat of govern- ment to a more suitable spot, within a mile of the sea. •*'-•" "-a waijiuvj iiuu uaccc in the year J795, Hi if .? 040 BRITISH GUIANA. iff r !|kjjiii' Nil At the confluence of the Canjc witli tlie Berbicc, a town was there laid out which was called New Amsterdam. The powers of government were said by Mr. Edwards (4 vol. 251,) to reside in the governor and a council called the College of Kiezers. This seems not now to be the case (see the commission to General D'Urban, post). The Court of Policy appears at present to be the recognised local legislature of the colony, and the College of Kiezers is in some respects a part of that legislature. The com- mission above referred to declares that the bodies politic heretofore existing shall be preserved, but that the num- ber of members of such bodies politic shall be aug- mented^ "as by your said instructions is directed in that behalf." Those instructions have not been laid before the House of Commons, and are therefore not accessible. As the institution of the college of Kiezers, or that of the Court of Policy, is but little known in this country, it may be as well to give a short description of both of those bodies, as well as of the origin of the Financial Representa- tives. The college of Kiezers appears somev/hat to resem- ble an electoral college in France. It is not the legislative body, but, as its name signifies, (the college of Kiezers, being literally, the college of Choosers,) it chooses or elects the legislative body. Yet the very small amount of its numbers, and the fact that the members of the college of Kiezers do not become members in right of any previously ascertained " qualification " in our English sense of the word, but are actually electod by the inhabitants at large, deprive it of its exact resemblance to the electoral colleges. The Court of Policy, anciently called also the Council, seems to have been nothing but an executive and administrative board, assisting the Governor in the dis- charge of his duties, and composed of the four chief servants of the Dutch West India Company and four in- habitants chosen by he college of Burgher Officers or Kiezers. The Court of Policy was afterwards made by the terms of the capitulation to the English in 1803, (see ante, p. 26,) a local Jegislature, and seems to unite the functions, except as to the levying of taxes, of the English Houses of Lords and Commons, and of the Privy Council. The Financial Representatives resembled, in having the direct power of taxation in their hands, the English House of Commons, but resembled it in that respect alone, for the power of making laws was not given to the Financial BRITISH OUIANA. 341 f^\ tho purpose only of raising, in conj.n.c ion with the Go- 'PI ' rV..^**"""'%' the accounts, s Pxfrl2 1 f ^'l^i ""t'°' ^' ^^^" "b'° *o '"cet with. It ttn^solfrci "'"' '' ^^^^ '^^" drawn from au. In 1732, the constitution of Berbice. then a proprietary rthrSt"al^T*" "'/"' r ^"*^' P- »^>) -- ena^^^^^^^^ by the htates-General to be as follows :-The govern- nent was to be administered by a Governor and CouncU Se sLI T r ^^^^.r^' ""^er a commission from r L«i 1 .K '-^ ^''"""^ '° "'""^'^t «f ^''^ persons, to be chosen by the Governor out of twelve nominated in the first instance by the inhabitants, afterwards by the re! maming Council. The Court of Criminal Justke to be appointed by the Council or Court of Policy. The Court selecll I'^h r '7°"'^'' f '^' ^"^^'•"°'" ^"d six membera of PoHcv I In ^T *T^?."""''"",^^^' ^'^^^ ^y the Court ot 1 ohcy, half by the inhabitants, three members to retire every two yeai^-the Governor to have but one vote! Wjl ?^- ^?*'.7 *? ^^^^ precedence of the Court of ap^^^^^^^^^^ "^ "'''^^''' ^'•"'" '^'^ ^^'^ «f their In 1739 the first constitution of the coUeee of Kiezers appears to have taken niace at the company's estaS! ment m Demerara, alttough the formal grant of the ettlement by the chamber of Zealand is dated in 174^ /ZT.'i , Ii '^ •*!,'™- ""^ i'"s grant Demerara was sub- In 177 Ith^^ jurisdiction of the elder colony of Essequibo. In 1773 the Courts of Pohcy and of Criminal and Civil Justice were hrst established in Demerara, at an isla.Id about twenty miles up the river, called ihe Borselen The courts consisted of the Commandeur (governor) of Demerara, the Commandant (chief military officer under the governor), the Fiscal, the Vendue Master, and four inhabitants, selected from a return of twice that num- ber made by the College of Burgher Officers, exercising snmlar functions to the Kiezers of Essequibo. In 1776 an nrth tlie Assembly of Ten. in Iloll.-iml. m«.p,l " that the College of Kiezers is nJt-considerS'a juSS R p^'l m 2i'2 BRITISH GUIANA. body, but as electors of burgher representatives in coun- cil, ' and another of 1778 stated " that the Kiezers, not being in the pay of the company, are not required to watch the interests of the company, but those of the colony only." In 1785, on the restitution of the colony to the Dutch, the Courts of PoHcy of Demerara and Essequibo were united at the former place. The inhabitants of De- merara petitioned the director-general, L'Espinasse, stating that on the taking of these rivers by the English, the Assembly of Ten released all their superior and in- ferior servants or ministers from their service or ministry, and that the said assembly now maintained that all the members of the then existing Court of Policy and Justice were included in such release, and in pursuance of such opinion, in resuming the possession and administratio;. of these colonies, had assumed the appointment of three colonial members, viz, Joseph Bourda, Cornelius Over- broek, and Peter Van Helsdingen; that the second named having departed this life, and the other two having declined the appointment, caused three vacancies ; that the director-general, by virtue of his instructions, had ap- pointed Messrs. C. J. Hecke and F. C. Changuion, as two members, and for the third sent a nomination to the West India Company : Against all which the colonists protested : —1st. Because the colonial or burgher members, selected from a nomination made by the elective college, could not be comprehended under servants oi- ministers of the West India Company ;— 2d. Because the burgher members are expressly distinct from the servants of the West India Company, viz. by instructions of the Assembly of Ten, 22d March, 1773, Art. 6. "In all cases of importance, and in the execution and promulgation of the laws, ordi- nances and regulations now in force, on the enactment or publication of any new orders, the commandeur shall convoke the Council, consisting of— 1st, the commandeur, —2d, the captain-commandant,— 3d, the fiscal,— 4th, the vendue-master, and four of the principal best informed and most respectable inhabitants ; and that, previous to tnese four assumed members taking their seats, they shall be sworn m due form." Tliat consequently the Courts of Policy and Justice consisted of the West India Company's servants (Bediendens) and four members assumed from among the burghers, which four could not be eonrpfc- hended among the Company's servants, but retained their functions, especially as these functions were reserved to BRITISH GUIANA. 243 them in the capitulations both to the English and French, w It ^,?i}^^^' antl lastly, by the instructions of the Westlndia Company of the28th October, 1783, requestinff them, as "the now existing Council of Demerara," to continue their functions, and take over the colonies from the commissioners of the King of France, wherefore they pray, 6cc. The Director-general referred the memo- rialists to the West India Company. On the 10th of July the mhabitants of Essequibo joined in this matter, and they all memorialized the States-General, who finally con- firmed the right of the Kiezers. On the 7th of September, 1812, Governor Carmichael issued a proclamation declaring the College of Kiezers of the united colony of Demerara and Esseonibo to be no longer a distinct and separate institi/ilon,' and directing that the College of Kiezers and the Financial Representa- tives should thenceforth be combined into and constitute one single college, and that the election thereof should be by other persons than those who had theretofore elected 1001^^3? colleges. By a proclamation dated 21st July, lUdl, Governor D'Urban announces that he had received instructions from His Majesty declaring that such pro- clamation of Governor Carmichael had never been con- hrmed at home, and that it was not authorized by the powers conferred upon him, and was therefore void ; and lurther providing that these two public bodies shall again be separated, and shall again exercise their respective functions. In pursuance of these instructions. Governor U Lrban proceeds to " constitute and appoint a College of Kiezers of the colony of British Guiana, for the purpose of electing members to fill vacancies in the Court of Policy of the said colony." The college was to consist of seven Kie- zers, to be elected for life. The Governor at the same time "constituted and appointed a body of Financial Represen- tatives of the colony of British Guiana, for the purpose only of raising, in conjunction with the Governor and Court of 1 obey of the said colony, the colonial taxes to supply the sums required by the annual estimate previously prepared by the said Governor and Court of Policy, and of examin- mg m conjunction with the Court of Policy, the accounts ot the colonial receiver-general for the preceding year." (4) to (4) Since the date of this proclama- tion the Financial Representatives have been constituted in the manner there prescribed. The autiior has beea r2 in 244 BRITISH GUIANA. The body of Financial Representatives was to consist of six members, the term of whose services was to be for two years. All inhabitants of the colony possessed of twenty- five slaves or upwards were called upon to vote at the election of the members of the College of Kiezers and of the Financial Representatives. In 1784, there was a resolution of the States-General that the Courts of Policy of Demerara and Essequibo should be united and hold all future sessions in Demerara alone. In 1812 all distinctions between the colonies of Demerara and Essequibo, whether of jurisdiction or otherwise, were abolished by proclamatian of Governor Carmichael, the office of commandeur of Essequibo and the judical establishment at Fort Island were discontinued, and the Court of Criminal and Civil Justice in both colonies were united in Demerara. The name of the capital was changed from Stabroek to George Town, and a board of police was appointed for its internal management. The hrst institution of the trial by jury in Demerara took place in lolo. Courts Criminal and Civil. The following account of the courts is taken from the report of the Commissioners of Legal Inquiry, and re- presents the condition of the colony at the time it was visited by them. The change in the judicial establish- ments ot the colony are of such a recent date (see Orders in Council, post,) that it is not improbable questions may tor some time arise upon decisions given under those for- merly existing. It has therefore been deemed advisable to preserve this sketch of their nature and jurisdiction. Ihe courts established in Demerara for the adminis- tration of criminal and civil justice respectively, are, a Supreme Court for the trial of criminal and ciVil cases. ul^rSoguiS.'^'"' '"' '"^"^^ of causes for sums informed that an important dispute lias arisen as to the limits of their pi)wers. They insisted, and with some shew of reason, that they were not constituted merely to go through the form ot voting the estimates which liiul heeii previouslv prepared hy the Governor and Court of J'olicy; hut Imd :. right to o^.TriM. iluir dhcrc Hon ni adopting or rejecting any por- «iou of IheHi. Thetiovcniordtuied this. The Financial Representatives insisted, and by withholding the sup- plies have for a time gained their point. 'J'ho right thus claimed by them has not, however, been recogni- zed by the home government; but it is to be hoped that as the colonists are in form allowed to elect n taxint; luidv, its authority uiay not l)e so restricted as to render it useless if not ridicu- lous. BRITISH GUIANA. 243 Superior Court. The Superior Court of Demerara consists of a Presi- dent and eight members, of whom four and the PrcS mus be present to constitute a court, ablp !ff ,V«';dent is appointed by the King, and remov- mlrchlt" Pf fr"'T ^H" «*^^^' "^^""bers are planters or ZhichtCc TTr""''^'' '^"*"'" ^ double number, from obliged fn i "'' °^ '{"'^^'^ "^^'^^^ ^ «^^^^tion. Th^y are theTonth of m'' ""f^' ^ P""^''y «^ ^'^ g^i'd^rs."^ In coSll^^^^^T'^^'.'^""^ y^^'' °»«-third of these CO onial members vacate their seats, beginning with the oldest member, and as their number is eight! three and two vacate every alternate second year. ^ Commissary Court. Superior Court, who serve in rotation, lit^.? '"""'""' "'' "'" ''''"'■' """y be challenged, in the he cxceS' f ^ ' •""""■ ""'' ^'""'''l '>'' not withdraw. 0^ The colonial members of the same colony receive no ariT,t' S".' ™ """""? "• "»■» '^-^^'"^ eertai/feerwhich nr,r.l,„ T "^^ "''" '■'*" P™^"'"! "'"' board and lodg- Sndarce'^ "^P""'" '' ""= «W-house during thetr i t B I i ^^■ I 1 4 *. > !? a i I- COURTS AT BERBICE. vn='Jfi^''^^'''^r.'''^ administration of criminal justice is justice in the Governor and six members. Berh.Vp'''?;'''?'^ ^"7* ^"^ ''^ ^°" ^^"^'t ^r« ^^'o held at th. M-fl' f 'T' ^^ ^''^ members of the full court, for tnc lul of causes for sums under 600 guilders, the latter by one member of the same court for the interlocutory proceed, ings on the Roll, (5) which is termed the inslucZnor (6) Such as liiiiig claim and de- aiid, or dcclaraiion, answer, rcnli- que. and dupliquc, inventorj^ of nesscs, &c. r •.:::. "si™' -r^-fs ^'^Si^trLlsl":?;;;- iffi 246 BRITISH GUIANA. ■11 ! I the cause. This member of the court is termed in France ^ le Juge dinslruction, (6) The Court of Criminal Justice IS composed of the Governor and six members, and, in cases of vacancy, the latter are selected by the Governor irom a treble number presented to him by the remaining Court of Civil Justice. The Court of Civil Justice is composed of the Governor and SIX members, of whom the Governor (as President) and ^tour ^members constitute a court.-2 Rep. ^d series, The members of the latter court are elected by the Go- vernor from a double number presented to him, as nomi- nated by the Governor and Council. Three members retire biennially, and their places are supplied by others. Any member may be recused for incompetency, enmity, consanguinity within the second degree, and for various other causes specified in the w-itten law. Ihe emoluments and privileges to which those Berbice members are entitled, are enumerated, (2 Rep. 2d series, w .1. u. p 5^,) and it will be seen that they also, as well as the members of the Superior Court at Demerara, are entitled to board and lodging at the public expense during their attendance on the courts. LAWS. (7) fl,J^!-*r''? ^or?^"^ these colonies, as guaranteed by the articles of capitulation on then- surrender to His Ma- jesty s arms, on the 18th September, 1803, are the old aw ot Holland, peculiar vernacular laws, and the Roman \a.-w,m subsidmm, particularly with regard to slaves. Ihe following is an extract from the "'Register of Re- sohtions of their High Mightinesses the States-General ^ (6) At Demerara this Roll Court IS held by two commissaries. (7) See the remarks (ante, p. 3 fo 16) on the general topic, liow far the colo- nies are subject to the Inw of the mo- ther country. The law bv which ]3ritish Gu'ana is chiefly governed is Ihe Ro- nian-Dutch law of the Seven United Provinces, (see unte, p. g;l, and 2 Rei). W. I. C. 2d series, 3, 53, 54.) A very able translation of •' the Laws of Holland " has been published by Mr, Henry, who was some time President of the Superior Court at Demerara, and who afterwards went thither as a coumiissioiicr lo inquire into and re- port the state of the Administration of Civil and Criminal Jusiice in the colony. BRITISH GUIANA. * 24i7 fwA^ United Netherlands." It is dated 4th October, ii ,?' ^^r \^. *"e authority by which the general law of Holland IS directed to be followed in the colonies of De- merara and Essequibo. *' f f/7^^>o»* i^e Register of Resolutions of their High Mightinesses the States-General of the United Nether- lands. Dated 4!th October, im<. " That it shall be further enacted, as it is by these pre- sents enacted accordingly, that all the laws of Holland in general, and more particularly all laws, statutes, resolu- tions, and ordinances of their High Mightinesses, or the lx)mmittee of Ten, with the approbation of their High Mightinesses, heretofore transmitted or hereafter to be transmitted to the Director-General and the Council of il-ssequibo, or to the Commandeur and Council of Deme- rara, shall be the rule of their judgments. "That in matrimonial questions they shall be regulated by the ordinance decreed by the States of Holland and West Friesland, on the 1st of April, 1780: and in matters relating to hereditary succession, ab intestato, by the law ot consanguinity, termed Aasdoms Veusterfrecht, as con- tained in the decree of the States of Holland and West J^ ne^and, dated the 1 8th of December, 1 599. " That in civil causes they shall be regulated by the manner of proceeding enacted by the Assembly of Ten ; m criminal causes by the criminal ordinance and style of proceeding of the year 1570, so far as the constitution of the colonies will permit it ; and that in every thing, not especially provided for, they shall have recourse to the written laws. " And an extract of these resolutions shall be sent to the representative of His Highness and to the Directors ot the West India Company in the Assembly of Ten, with orders to cause the foregoing regulations and further arrangements to be duly pubHshed." (Signed) Cocq. D. Haeften, Vt. Conformably to the aforesaid Register. (Signed) H. Fagel. ^iS regards the question how far English Acts of Par- liament are considered binding in these colonies, the Pre- sident of Demerara said he considered all English acts :» 5> HI r * if S4« "BRITISH GUIANA. relating to the colonies as in force in Demerara, although passed before that colony belonged to the British govern- ment. The members of the Court of Civil Justice at Berbice, stated that English acts were not generally considered as binding there. They enumerated the Navigation Acts, and those relating to the Slave Trade, as being in force in Jeir colony. Proofs for the recovery of debts, under the British act 5 Geo. 2, are admitted in both colonies.—^ Rep. 2d series, W. I. C. 3. ,11 i ^ 11 Mm. ri f Practice of the Courts. The pleadings in the Courts, both in criminal and civil cases, are carried on in the English language, under an order of His late Majesty when Prince Regent. By a rule of the Superior Court in Demerara, it appears that a party is prohibited from being heard therein in person, and the President thinks it could not be done away with without much inconvenience. At Berbice also, by a rule of their courts, a party is required to appear by attorney ; but (it was stated) he may, thus assisted, by ^ve of the court, be heard in person.— 2 Rep. 2d series, W. I. C. 4. In cases of error or misprision in pleading, relief is attorded by the courts, it being, as was stated to the com- missioners, uncommon to quash all the proceedings on that account. This is termed « Civil Relief" in the Dutch law. In neither colony does the Court state (said the exami- nants) the reasons of its judgments.— 2 Rep. 2d series, W . I. C. 5. In the case of a witness absent from the colony, his depo- sition on oath, attested according to the law of the country wliere made, is (said the President of Demerara) generally admitted without objection. The Fiscal doubted whether It could be obtained by any process issuing from the Civil Court. Where a witness is in the jurisdiction, but pre- vented from attending by sickness, his evidence is obtained by a process termed engueste valetudinair. As regards powers of attorney to be acted upon in De- merara and Berbice, it appears that they are held valid if executed according to tiie laws of the country where made. It requires a special poy.Lf to execute any deed conveying l^_^_.^_^^ ^^_ _^^ estate in the anv interest in lands t; it is not necessary iion> that such special power should be BRITISH GUIANA. 249 recited in the deed itself. The deed, however, must re- cite the authority or power of attorney, as being of record in the registry. When application is made to the court at Demerara to put ott a trial on account of the absence of a material wit- ness, an affidavit to such effect is (said the President) seldom called for. The court, however, requires to be sa- tisfaed that the evidence is material. At Berbice the course appears to be always to require an afhdavit m such case, and to examine into the mate- riahty of the evidence. Citation ad vahas curies (or nail process) is reckoned in Uemerara good service, both in the case of persons who have quitted the colony without leaving any agent or at- torney to represent them, and of those who, although they may liave a property in the colony, have never been tiiere. (o) At Berbice, however, a distinction was drawn by the examinants, as to whether the claim was against real or personal property. In the former case it was said that the owner being absent and having no representative, the suit would be instituted generally against the proprietor or proprietors, representative or representatives, and service ot process would be on the plan';ation; but if against per- sonal property, recourse would be had to arrest and cita- tion ad vahas curice, and served at the debtor's last domicile. It was added, at Berbice, that it had not been the prac- tice to consider persons holding property there as absen- tees.-2 Rep. 2 series, W. I. C. 6. The Superior Court, in both colonies, has an equitable jurisdiction, though at Berbice the examinants seemed to think their court had no power to relieve in the case of a deed or instrument lost. In cases of fraud, palpable error, 6jc. the Governor, as representative of the Sove- reign, IS authorized, on petition, to grant a mandament of rehet with comtmttimits to the Court of Justice, where the matter is tried on its merits. It has also extensive juris- diction over testamentary guardians and executors, where the interests of minors are concerned ; obliging such par- ties, on suggestion of misconduct, to render accounts, winch accounts are referred to the sworn accountant for (8)Butasl()tlu.firoctof this mode attempted tobc enforced in this country of service iij)on a jndijmcnt afterwards sec ante, 93, and the cases there cited.' I i a 4 f . I, ilfiO BRITISH GUIANA. Ill report, and afterwards approved or otherwise bv the court. ^ Though trusts are enforceable in these courts, the Pre- sident of Demerara said that they were not attended with all the rights and consequences which are given to them in the Courts of Equity in England. The Superior Court has authority to appoint curators over the person and property of idiots, prodigals, and lu- natics. " Though the writ of injunction is not known by name in these colonies, a remedy of a simila. nature (termed joewa/ mandament or interdict,) may be obtained by a party on pe- tition, to restrain proceedings which he considers iniurious to him. •* When a witness is old or infirm, or about to leave the colony, and it is desired to preserve his testimony, he may be examined before a commissary of the court, whe- ther a suit has been instituted or not. In the one case notice would be given to the defendant ; in the other, to the party m future to be interested, for the purpose of permitting him to cross-examine. The President of Demerara said, that he should require a witness so examined to be afterwards produced, if it were found practicable, provided either party wished it. 1 his mode of taking evidence de bene esse, is termed in the Dutch law, Enqueste Valetudinair, from the circumstance of the sickness or infirmity of the witness being the chief cause. The Fiscal of Demerara seemed to doubt whether to obtain the testimony of such witness, it was not necessary that a previous suit should 'jave been instituted. It appears that there is no difficulty or intricacy in these colonies in the mode of transferring or conveying real or personal property, it being, on the contrary, simple and convenient. Should the subject be real property, it is conveypd before the judge of the Commissary Court) after a previous public notification in the Gazette, in order that any creditor of the party proposing to alienate or burthen it, may have an opportunity of noting his opposition and securing his debt. Moveable property may (said the Fis- cal of Demerara) be conveyed or mortgaged in this manner, or by delivery. If moveable property (he added) be not mortgaged before the judge, and the mortgagor continue m possession, the same would be fraudulent against third persons.— 2 Rep. 2d series, W. I. C. 7, 8. m& BRITISH OUIANA. 251 to There is no process in these colonies similar to the H-ngUsh wnt of habeas coipus-. A person illeffally impri- soned would (said the President of Demera?a) be dis- charged on petition to the court. The Berbice examinants said, that a party in such case might complain to the Go- vernor, but if this commitment should take place by order ot the Governor himself; the want of this writ would then be felt. Foreign powers of attorney to recover, must, it would seem, be recorded. No time is limited in which parties may present their documents to be deposited or re- The following is the course adopted by a debtor who wishes to escape personal arrest, or obtain release from prison by a surrender of all his property to his creditors : —He applies for a writ o£ cessio bonorum, which issues in l^ngland, and is sent to the colony for trial, when the court, after hearing parties, appoints curators, who take the property and act for the benefit of the creditors. The trovernor, as representative of the Sovereign, has power (It was said by the examinants at Berbice) to issue this writ. The following is the law of prescription in criminal and civil cases, as stated by the examinants at Berbice. Civil actions are prescribed by the lapse of one third of a cen- tury, but sentences in civil actions are prescribed or rather become superannuated by a lapse of five years; but a mandament (m the nature of a scire facias) may be ob- tained to sue execution decreed on them in court. Crimi- nal actions are prescribed by a lapse of twenty years, except m cases of adultery, (9) when the prescription takes place m five years.— 2 Rep. 2d series, W. I. C. 8. Provision is made by the law in those colonies for pro- tecting the rights of absent foreign creditors, in the case of a sale of an insolvent estate, the practice being to insert advertisements m the Gazettes of England and Holland three several times, six months before such intended sale, calling upon the creditors to appear before the court to file their claims ; and the judicial sale never takes place under a civU injur;. FoMhe punishrntsL! '"" """ ^'"<^->-4, et aeq. ' ii!. I :«■ M ;|f # 252 BRITISH GUIANA. M: If , I i III 'I ^ar^frorn the time of scquestnitlon.-.^ Rep. 2d scries, ' President. i. TilLt»^M"'^^i> °(,I^e'"erara, as we have before scon, LS . P^\.?'-^«'J?nt." He is a barrister, and apl pointed by the King, with a salary of ^'3000 sterhng ,,\. annum, and his fees are accounted for to the government; iie IS also provided with a house and servants at the ao- vernment s expense. At Berbice the Governor acts as presirlo.t. .^ ,.tg^^.j^,^^j^^ jj^ .^ appointed Go- vernor by the King's commission, but it appears by his answers to the commissioners that he presides in court by virtue of his instructions frorr. the Secretary of State. He does not in the latter capacity receive any salary nor fees.— 2 Rep. 2d series, W. 1. C. 1 1. Fiscal. In the united colony of Demerara and Essequibo there ^''V7°x. "^^ (^^"^^ ''"^ second), at Her bice but one. Ihe fiscals in the united colony arc appointed and re- movable by the King, the lieutenant-governor having power to suspend or remove until His Majesty's pleasure be known; from this order an appeal would lie to the au- thorities m the mother country. The fiscal at Berbice stated that he derived his appoint- ment from the lieutenant-governor uf the colony, and held It during his pleasure. The powers and duties of the principal fiscal are very numerous and important, and at the same time differ in many points from those of a crown officer or attorney- general m the other West India colonies. He is, iiowever like them, a pubHc prosecutor. He is, by virtue of his office* a member of the Court of Policy or Legislative Assem- bly ot the colony, and is bound to give his advice to the court in all matters in which it shall be required. For a ftill account of his duties and privileges, see 2 Rep. W I C. 2d series, Ajipendix J. pp. 249, 250, 251. The following are the emoluments of the first fiscal At Demerara, as stated by Mr. Herbert:— a salary of 25,000 guilders from the colony, a sum of 7,200 guilders from the BRITISH GUIANA. 2:53 Kings chest, and an allowance of 2500 guilders for house rent. His fees (which average about ^'300 a year) arise from the entry and clearance of vessels, permits to ah p sailors certificates, and registering of landed slaves. h£ present emoluments amount to /^TOO sterling.-^ Ren 2d series, W. I. C. 12, 13. ^ P* Second Fiscal! of Demerara. This officer is appointed by His Majesty ; he is the chief evil magistrate and head of police in the district of Esse- quibo, and his duties, among other things, are to tik-,> cognizance of all crimes, breaches of the pekce or of the laws and regulations of the colony, committed within his district; also to hear complaints of slaves against their masters and others and of masters against their slave and to do justice between them in a summary way. (1 It IS also his duty to see that the slaves on the plantation are furnished with a sufficient supply of clothing and other necessaries, and that they are comfortably lodged and properly attended to in sickness. The amount ofS torn \ 1 'T '\'^^^- ^'T *^^ *^°^«"^«1 chest, and S200 guilders from the King's chest; and that he receives no oHier emolument whatsoever.— 2 Rep. 2A series, W. I. Colonial Secretary. This office is held in both colonies by warrant under the privy seal. There is no salary attached to the office of CobnialSecreta.y at Demerara, his em .lumen tsconsis of fees. At Bei uce that officer receives a salary of So stering per annul., m lieu of fees, which are carried toUie pubhc account. ^ At Demerara it is not the practice to permit parties to have access to the registry of the acts, or to throrSLul acts themselves, deposited in the secretary's office ?bu (1) By the Slavery Abolition Act no person but a specinl justice of die peace, appointed under that act, will in future poaspsi nn" 'uris'.'.ir.fion ovo- tlie apprenticed labourers. But as the commissioners reported strongly in farourof ihis branch of the Fiscal's ofTicc, It will probably continue to be exercised by him, „ot in the character ui fiscai, but under the authority of an appointment ns special justice of the peace. II 1 ; ! i i 1 1 i ' i !' III if m ' \0 £54 BRITISH GUI AN A. at Berbico, it appears tlint nil parties may examine the registry, and even without fee or reward. — 2 Rep. 2d se- ries, W. I. C. 14, Hi. Sworn Accountant. This office has been abolished by the Order in Council dated 23d April, 1831, (see post.) The duties of his office are in futin-e to be performed by the vice-president of the court of criminal and civil justice of Demerara and Essequibo, and by the vice-president of the court of civil justice and of the court of criminal justice of Berbice. Those duties are to examine the accounts of persons hold- ing trusts under the appointment of the court, either as sequestrators, curators, guardians, or trustees ; to examine the claims filed against insolvent estates, and to report thereon, and on all matters of account referred to him by the court. The sworn accountant has no salary but is paid by fees. There appears to be a diversity in the practice of the two colonies, as to the arranging the claims of creditors in cases of prce et concurrentice. At Demerara the court dictates its classification to its secretary. At Berbice the arrangement is made, in the first instance, by the sworn accountant, and submitted, with a report thereon, to the court, public notice at the same time being given to all parties. —2 Rep. 2d series, VV. I. C. 16, 17. Advocate pro Deo. The original design of this office was to assist such per- sons in the prosecution or defence of their rights before the courts of justice as were unable, from their poverty, to pay the regular fees of counsel or attornies. From the answers, however, of the gentleman who holds the ap- pointment at Demerara, and from the terms of his commis- sion, with which he furnished the commissioners, it would appear that he is entitled to consider himself as a law officer of the crown, and the legal adviser of the Governor, as well as advocate pro Deo ; and although, in practice it does not appear that he has frequently acted or been con- sulted in the before-mentioned capacity of law officer or adviser of the Crown, yet, as such a claim on his part may be found to clash with the duties of the first fiscal, the commissioners thought that some measure should be taken nRITlSII GUIANA. 255 ^1ZT?1 ^^n '^''"""? incongruity, the office of legal ad- viser to the Governor being generally considered as apper- taining to the first fiscal. »«"pper frnl' fV''"^'''''' '•'*'''; '' "" ailvocate pro Deo, but it appears irom the answers the commissioners recx'ived there that the practice, in cases requiring such asBistance, was to se- bflr wL v. "*^°"^''? ^''^ attornies practising at the Dor, Mho. if he succeeded, was entitled to costs from the opposite party. The salary of this officer (paid out of the Kincr's chests at Demerara is 7.500 guilders per anm.m, and ife is be- sides, entitled to costs in case he succeeds, if bv sentence of the court the defeated party should b^ condemned to The advocate pro Deo said that ho did not consider himselt authorized to undertake any cause pro Deo with out the authority of the Governor, or the court of jCtice, or the President.-^ Rep. 2d series, W. I. C. 17, 18 First Marshal. ^ The first marshal at Demerara holds his appointment bv virtue of letters-patent from His Majesty, and executes his duties by a deputy whose nomination has been confirmed ?Xi« .1*'°"''' ""f^ (^r^J^^mal and civil justice. Till the year l«lb, the nomination of the sub-marshals was with the *"?"/ °[J r'*/''^ ' ^"* ^y ^" °^''^^^' of the court of the 25th A ? « ^{^^'^^ X^^''' '^ "^^^ gi^^" to the first marshal. At Berbice the person filling this office derives his authority from the appointment of the court of civil ius- tice, and he performs its duties in person, assisted, how- ever, by a second marshal in services out of the town In neither colony is any salary attached to this office • Drossarf. This officer has the superintendence of the gaol, and th^ prisoners therein confined for criminal and civU offences, and for debt. He is appointed in each colony by the leutenant-governor thereof. At Berbice this offi- cer IS also called under-sherifTand gaoler. iKnn -ij " ^ , e-.^i^nicnta uuusisc oi a salary of 1500 guilders from the colony, and 1000 guilders from the i i Y I I 1 I 1 i 1 ( i ■ 1 \ ■ . ■ ■ ■ ' 1 \ ■ 1 1 I ': • ? .^ M 256 BRITISH GUIANA. 11 Crown, an allowance for house rent of 2200 guilders, and certain fees. At Berbice the salary is 12C0 guilders and fees. In both colonies the duties are stated to be executed in person. In Demerara a cipier, or sub-drossart, is appointed by the Governor, and at Berbice there are six dienaaren, or subordinate officers of justice, employed to assist the drossart.— 2 Rep. 2d series, W. I. C. 19. Counsel, AttornieSf and Notaries. Tkc practitioners of the law in Demerara are divided into practitioners in full (i.e. persons acting both as advo- cate and attorney,)and attornies and solicitors, the last being permitted to practise only in the Commissary Court. A person called to the bar in England, Ireland, or Scot- land, or who has taken a degree in law in any university, is admitted, without examination, to practise ; but persons not so qualified are examined by the President as to their fitness. The President added, that no practitioner in full hac^. been admitted to the courts since his arrival in the colony. The fiscal of Demerara, in answer to the first question under this head, stated, that there were certain rules in this matter, which, however, were never cbserved, and that an idea had generally prevailed that an English barrister could not practise in that colony, except through courtesy. He observed, however, that an English or Irish barrister, or Scotch advocate would be permitted, without examination, to practise at tbe bar there. At Berbice it appears that there are no counsel (properly so called) the attornies at the bar being employed and acting as such. They are admitted by the court as licentiates, without being required to show that they have been called to the bar in England, Ireland, or Scotland, or taken a degree in a foreign university. They usually, however, produce to the court certificates from a professional man as"to their ability and character. The exaininants at Berbice also stated that sometimes the admission of attornies to their courts was only pro- visional, ad tempus, to enable the court to judge of the capability of the party applying.— 2 Rep. 2d series, W. I. C. 21, 114, 115. BRITISH GUIANA. Court of Admiralty. 257 ft It There is an Instance Court of Vice- Admiralty in each of these colonies, having jurisdiction over cases of smug- gled goods, questions of right of property in vessels, dis- putes between masters and seamen, and breaches of the laws of navigation and trade. The power of trying prize causes is withheld from them ; the judges of these courts are appointed by commission under the great seal of the High Court of Admiralty in England; the judge at Demerara (who is indeed the same gentleman who holds the office of president of the courts) performing the du- ties in person, while the Berbice judge executes the office by deputy. These judges enjoy no salary, but are paid by fees, which in Demerara are ebtimated at an annual average amount of £60 sterling. On the commissioners inquiring what was the average at Berbice, the deputy-iudge surro- gate informed them that they could not be ascertained, as there had been no suits there for the last three o^* four years. The officers of these Vice-Admiralty courts, res^ ^i . tively, are a King's advocate, a registrar, and a marshal. On inquiry at Demerara, by whom these of*, ers were appointed, the judge informed the commissioners that they had up to that time been gazetted by the Governor on the nomination of a judge, and the nomination con- firmed at home by the granting of a commission.— 2 Rep. Sdseries, W. I. C.24. ^ Criminal Court, The first fiscal is the public prosecutor, under the Dutch law, at Berbice ; he receives 30,000 guilders per annum in lieu of costs chargeable by him against the colony for criminal prosecutions. At Demerara, if the criminal be condemned, and he has the means to satisfy the costs, the fiscal says he receives the fees from him, but not otherwise. The Governor, it appears, has the power oipolitica cfistodia, with a view to prosecution or political banishment. The prisoner's counsel, it appears, is furnished with co- liii J^*® BRITISH GUIANA. pies of all the documents to be used at the trial, and a sight of the originals.—^ Rep. 2d series, W. I. C. 26. Counsel are assigned to those prisoners, free or slaves, who, being too poor to fee counsel, apply to the court for that assistance.— 2 Rep. 2d series, W. I. C. p. 27. A majority of the court, consisting at least offivCt must concur before a criminal sentence can be passed.— -2 Rep. 2d series, W. I. C. 28. ^ By virtue of instructions sent out by the King of Eng- land, in 1821, to the Governors of both colonies, no punish- ment can now be inflicted there which cannot be inflicted under the English law.— 2 Rep. 2d series, W. I. C. 29. The sentence of the court in all capital cases, at Deme- rara, is communicated to the Governor before being carried into execution. In cases of severe corporal punishment this was not considered necessary, unless re- quired by the Governor ; but since the above mentioned order, prohibiting punishments not allowed by the Eng- lish law, the fiscal said he conceived it to be necessary that the Governor should be made acquainted with the nature of such sentence, and stated his determination to act accordingly. At Berbice, it will be remembered, that the Governor is president of the criminal court. In the Governor, as representative of the King, is lodged the power of reprieve ; he has also, by his instructions, the powor of pardoning in all cases except for treason or mur- der.— 2 Rep. 2d series, W. I. C. 30. Orphan Chamber. The duties of this department, as stated by the exami- nunts at Demerara, consist in taking possession of the property of persons dying intestate and other unrepre- senteu property, and administering the same for the benefit of the creditors and heirs. At Berbice the power is claimed of having the superintendence of minor orphans, and over such persons as have become or are considered by the honourable council of government incapable of ma- naging their own concerns, as also over all estates which devolve to it ah intestato. The duties of the Orphan Chamber ot Berbice are executed by five ir embers with a greffier (or secretary), and at Demerara by a president, two members and a BRITISH GUIANA. 259 greffier. The orphan board at Demerara is stated by the examinants to be under the superintendence of thJ court of justice, by which its members are elected for he term of two years. At Berbice the members are cho en en', thl"'^ ''"'^f ' *^' '^"^^l"*" '^' ^«^^r««r and Coun" wu ^ ^^''''^ ^"'' "" P^"°^ «f four years. When estates fall under the administration of this board r.?.T'T/u*^"P,'^'''^^^^«*^*^'lt« be to insert in7e anX'^to J^'?-°"^-*^"^ of London and Amsterdam! thdr claim, I ^ '""'^'^'^^^ *« ^'e and substantiate their claims, buch appears to have been formerly the course at Berbice; but the greffier of the board informed serted m the English and colonial Gazettes, its publica- Wills, It appears that the ancient law of distribution and de- scent «6e.^..^a^o, as it prevailed in North Holland is in force in these colonies, and that there is no distincUon " tLs respect between personal and real property. NdSier does it appear from these answers, that any complaint is made ol the ruks of descent or the power of di po W of twnfJ^;. f 1- P"""^'' ^'"^^^ the parent of disposing of L^fn ?Vr P'-^P^Jty by will, when he has not more than four children, or of half, if they exceed that number IS much better adapted to the present state of societv^han nr'^ht^fu ""^ P''''^^"^ P"^a<^f^ wills (i. e. wills not drawn or attested by a notary,) in these colonies is very simpTe as they are merely exhibited to the Colonial Seci^tarv /«; registration, and deposited with him, when, on seein^thal the will has the proper number of witnesses affixed % it he registers It, and gives ofF a grosse or notaria copy which copy IS received in the cou?t as evidence. No fS?- her proceedings take place until a question really ar ses upon the validity of the will so registered, when it is e- termined before the court upon a ?cgular pleadhig. Ihe solemnities requisite to the validity of a will in these colonies, are, that it should be signed in the pre- Hi It i i i i m 4 I IPI* 3G0 BRITISH GUIANA. i l>ii| sence of seven witnesses, males, or in the presence of a notary and two other witnesses.— 2 Rep. 2d series, W. I, C. 34. Mortgages. The doctrine of the Roman law, in these colonies, ad- mits of tacit or legal mortgages, that is, mortgages without deed, and consequently unregistered. The ancient prac- tice of securing debts due tc the state, by the fiscal seizing, on the part of the Sovereign, the property of the debtor, in the way of an extent, was found so oppressive that their High Mightinesses regulated this proceeding by Aplacaat, authorizing the judge of the bankrupt's domi- cile to settle and rank the preferences and priorities of the claims of the several creditors, including those of t|ie state, by the regular judgment of pr® and concurrence, ordi- nario modo, retaining the privilege of the sovereign to a preference when properly estabhshed.— 2 Rep. 2d series, W. I. C. 35. PrcB et Concurrentice. This is a process by the Dutch law to rank the claims and priorities of creditors on the real or personal estate of their debtors, when taken in execution or dis- tributed under the control of the court. Great complaints have always Leen made in Europe by forsigii creditors and mortgagees, of the delays experienced in the judgments of the praj and concurrence. The causes of their complaints may easily be remedied.— 2 Rep. 2d series, W. I. C. 36. Bankrupi::y. It appears that there are no bankrupt laws in force m these colonies similar to those in England, nor any law by which the debtor can obtain a complete dis. charge. He is therefore obliged, in cases of insolvency, to have recourse to the cessio honor urn, which is a writ issuing from the sovereign or those to whom he has dele- gated that power, and is granted ex dehitojustitia;, on the petition of the subject. The writ of cesdo honorvm has nearly the same eflect as tlv. Insolvent Act in England, with the exception, however, tnat it is regulated by com- mon law, and not like the latter by statute, and is only BRITISH .;ctiyely l>y this our < -„ mission, shaii not take effect uuti! '•^ our I nmission shall aeti Jy have been by you received in our said colonies or one of then \n.l we do hereby declare, ordain, and appoint that you, the said Sir . nja nin lyUrban, shall and may hold, execute, and enjoy the oHSce and piacc of our Governor and Commander-in-Chief, in and over our colony uf Bri- tish Guiana, together with all and singular the powers a A authorities hereby granted unto you for and during our will and leasur. In witnets, &c. &c. Given at our Court at Brighton, ih- 4th day d JMarcb, 183 1 , in the first year of our reign. By His Majesty's Command. (Countersigned) GODEIUCH. I Shortly after the colonies of Demerara, Essequ , and Berbice had been umted under one government the following Orders in Council were issued, abolishing the ancient courts, and appointing perfectly new judicial estabhshinents, not only for the colony of British Guiana, but lor those of St. Lucia and Trinidad. At the end of these orders will be found a summary of the alterations they have effected in the courts for the administration of justice in British Guiana, and this will be accom- panied by the regulations established by the Governor and Court of Policy as to the appointment of Assessors and the jurisdiction of infe- nor Courts. ( 267 ) GUIANA, TRINIDAD, \ND ST. LUCIA. Copiea of the Orders in Council oj the 23d April and mh Jme, 1831, /or the Adminiatration of Justice in British Guiana, Tri- nidad, and St. Lucia. At the Court of St. James's, the 23d day of April, 1831 ; Present, The King's Most Excellent Majesty in Council. i. Wheiieas His Majesty's Court of Criminal and Civil Justice in Demerara and I'ssequibo, and His Majesty's Courts of Civil .1 ustice and of Criminal Justice respectively in Berbice, and His Majesty's Courts of Criminal Trial, and of First Instance of Civil Jurisdiction respectively m Trinidad, nnd His Majesty's Royal Court in the island of St, Lucia are res,, actively holden by Judges the majority of vvhom in each of such courts are persons unlearned in the law : And whereas it is fit that the said courts respectively should henceforth be holden by persons of com- petent legal education; it is therefore ordered by the King's most Excellent Majesty, by and with the advice of his Privy Council, that henceforth the Court of Criminal and Civil Justice of Demerara and Lssequibo, and the Court of Civil Justice and the Court of Criminal Justice of Berbice, and the Court of Criminal Trial, and the Court of First Instance of Civil Jurisdiction in the island of Trinidad, and the Royal Court of St. Lucia, shall be respectively holden by and before three judges and no more; that is to say, each of the said courts shall be holden by and before Uie President for the time being of the Court of Criminal and Civil Justice of Demerara and Essequibo, and the Chief Judge for the time being of Trinidad, and the First President for the time being of the Royal Court of St Lucia, or by and before the persons who, during the vacancy of any such oflSces, or during the absence or incapacity of any of the said judges, may have received a provisional or temporary appointment to act as and in the place and stead of any such judges or judge. 2. And it is hereby further ordered that no Judge in any of the several courts aforesaid, and no Vice-President thereof, shall be the owner of any slave, or shall have any share or interest in, or any mort- i i t i 4 ! r ! it' % I hM IMAGE EVALUATION TEST TARGET (MT-3) // ^"^ . ^\^- ^9> X 6^ '*b 23 WEST MAIN STRECT WEBSTER, N.Y. 14580 (716) 872-4503 68 ORDERS IN COUNCIL. Sli ' i' . 'i '• gage or security upon any slave, or shall be proprietor of, or have .ny share or interest or mortgage or security upon, any land cultivated by the labour of slaves, or shall be or act as the manager, overseer, agent, in T^/', .'' °'' "P°" '°y V^^rH^tion orestate cultivated wholly o in part by the labour of slaves. 3. And it is further ordered, that for the purpose of holding the ZIT" TT '^T''^' '^' '""^ '^''' i^^S'' «hall from time to dad! ZTl^C ''''''"'' "^°"^^^ °' '''"''''-' ^-^-' ^'-^ 4. And it is further ordered, that two sessions at tlie least shall be ho den m each year in each of the said courts, and that the times of holding such sessions in suoh respective colonies, and the duration hereof m each, shall be determined by proclamations to be from time to time for that purpose issued in the said respective colonies by the respective Governors thereof. 5. And it is further ordered, that the Governors of the said respective other the times of holding such sessions as aforesaid in such manner as may best promote the administration of justice therein, and the com- mon convenience ^f the said respecUve colonies ; and in case of any difference of opinion between such Governors as to the time of holding any such sessions, or as to the duration thereof, the judgment of the Go- veraor of British Guiana shall prevail and be observed until His Majesty s pleasure therein shall have been signified through one of his principal Secretaries of State. 6. And it is further ordered, that Jn each of the said courts the Pre- sident for the time being of the Court of Criminal and Civil Justice of Demerara and Essequibo shall preside and take precedence over such other two judges as aforesaid; and the said Chief Judge of Trinidad shall m like manner, in each of the said courts, take precedence over the First President of St. Lucia. J: ^f '* VZ'^^' °"*''''*' ^^^' •" "*'^** °f ^^'^^ <=«virts the said uch indT •" '!!■ '"" ''''' ''''''' P«^^^^«' '^'''^^^' -°d enjoy such and the same jurisdiction, powers, and authority in every respect as the present judges of the said courts now have or lawfully possess, exercise, or enjoy and that the decision of the majority of such three judges shall m all civil cases at any time depending in either of the said courts, be taken and adjudged to be, and shall be recorded as, the judgment of the whole court. 8 Provided nevertheless, and it is further ordered, that upon the trial of any persons or person in any of the said courts for any crime or offence with which they, he, or she may be charged, three assessors shall be associated to the said three judges, in the manner thereinafter provided for, wh.ch assessor3 shall be entitled to deliberate and vote ORDERS IN COUNCIL. £69 with such judges upon the final judgment to be pronounced in every such criminal case; and no person shall be convicted of any crime or offence, or adjudged to suffer any punishment by any judgment or sentence of any of the said courts, unless a majority of the total number of such judges and assessors shall in open court vote in favour of such judgment or sentence. 9. And it is further ordered, that in each of the said courts the said three judges and assessors shall in all criminal cases have, possess, exercise, and enjoy such and the same jurisdiction, powers, and authority in every respect as the present judges of the said courts now have or lawfully possess, exercise, or enjoy, and that the decision of the ma- jority of the total number of such judges and assessors shall in all criminal cases at any time depending in any of the said courts, be taken and adjudged to be, and shall be recorded as, the judgment of the whole court. 10. And it is further ordered, that the Governor of each of the said colonies shall by proclamations to be by him from time to time for that purpose issued within the same, make and prescribe such rules and regulations as may be necessary to determine the qualifications of such assessors, the mode of convening them, the penalties to be inflicted on persons refusing to act as such assessors when thereunto lawfiiUy re- quired, and the mode of challenging such assessors, and what shall be lawful grftund of challenge, and how the validity of any such challenge shall be determined, together with every other matter and thing which may be necessary to the effective discharge by such assessors of the duty thereby committed to them; and every such proclamation shall forth- with be transmitted by such Governor for His Majesty's approbation, and shall in the meantime, and unless disallowed by His Majesty, and until such disallowance shall be made known to such Governor, be of the same force and effect as if the same had been contained in this pre- sent order. 11. And it is further ordered, that none of the judges nor any Vice- President of either of the said courts respectively, shall be Uable to challenge or recusation in or upon any action, suit, or proceeding, civil or criminal. 12. And it is further ordered, that during the absence of any of the said judges from the colony to which he may belong, for the purpose of holding such sessions as aforesaid, the Supreme Court of such colony shall be holden by a single judge, to be called the Vice-President of such court, and it shall be the duty of such Vice-President to hear and determine all such interlocutory matters arising in or upon any civil or criminal suit, action, or proceeding depending in the said court, as may be brought before him, and also to inquire into and report to the said judgef, in any such sessions as aforesaid upon any questions which may ■ I * ! < M y I.A.I "^"■""fl^ 270 ORDERS IN COUNCIL. by such judges at such their sessions have been speciaUy referred to any such Vice-President; and in the exercise of such jurisdiction, such Vice-President shall and he is hereby required to conform himself to and observe any such general rules or orders of court as may be made for his guidance in the manner hereinafter mentioned. 13. And it is further ordered and declared, that it shall be lawful for the said Supreme Courts respectively to review, reverse, correct, or confirm, as occasion may require, any judgment, sentence, rule, or order which may be made, given, or pronounced by any such Vice-President as aforesaid, in the exercise of the jurisdiction hereby vested in him, and that in the exercise of such jurisdiction, such Vice-President shall act alone and without any colleague or assessor, and shall have all such and the same powers and authority in that behalf as now p.re or is vested in the said courts respectively for the said respective purposes. 14. And it is further ordered, that it shall and may be lawful for the judges of the said courts respectively, and they are hereby authorized and required to make and establish such rules, orders, and regulations as to them shall seem meet concerning the forms and manner of pro- ceeding to be observed in the said courts respectively, and the practice and pleadings in all actions, suits, and other matters, both civil and criminal, to be therein brought, and concerning the duties and juris- diction of the said respective Vice-Presidents, and concerning the proceedings of the executive and ministerial offices of the said courts respectively, and concerning the process of the said courts, and the mode of executing the same, and concerning the admission of advocates, bar- risters, attornies, solicitors, notaries, and proctors in the said courts respectively, and concerning all other matters and things which relate to the conduct and dispatch of business in the said respective courts; and all such rules, orders, and regulations, from time to time,, to revoke, alter, amend or renew as occasion may require. Provided always, that no such rules, orders, or regulations shall be repugnant to this present order, and that the same shall be so framed as to promote, as far as may be, economy and expedition in the dispatch of the business of tlie said courts respectively, and that the same be drawn up in plain, succinct, and compendious terms, avoiding all unnecessary repetitions and obscurity, and be promulgated in the most public and authentic manner in the colonies to which the same may respectively refer, for fourteen days at least before the same shall be binding and take effect therein; and provided also that all such rules, orders, and regulations shall forthwith be transmitted to His Majesty, under the seal of the court, by the Governor for the time being of such colony, for his approbation or disallowance. 15. And whereas it may be expedient to establish within the said colonies courts having jurisdiction in civil cases of smaU amount and in ORDERS IN COUMCIL. 27 cases of breaches of the peace, assaults, and other petty oftencesj it is therefore farther ordered, that it shall be lawful for the Governor of each of the said colonies respectively, with the advice of the Court of Policy in the said colony In British Guiana, and with the advice of the Council of Government in the said colonies of Trinidad and St. Lucia, by any laws and ordinances to be from time to time made for th.at purpose, to erect, constitute, and establish courts having jurisdiction iu civil and criminal cases within the said respective colonies, provided that the jurisdiction of such Civil Courts shall not be extended to any case wherein the sum or matter in dispute shall exceed the amount or value of £20 sterling money, or wherein the title to any lands or tenements, or the title of any person to his or her freedom, or any fee, duty, or office may be in question, or whereby rights in fature may be bound ; and provided also, that the jurisdiction of such courts in criminal cases shall not be extended to any case wherein any person may be accused of any crime punishable by deaUi, transportation, orbanUhment; and that it shall not be lawful " any such Criminal Court to inflict any greater or other punishment than imprisonment, witii or without hard labour, for a term not exceeding three months, or fine not exceeding £20, or whipping not exceeding thirty-nine stripes, or any two or more such punishments within the '' xits aforesaid. ^ 1«. And it is farther ordeisJ, that the Judges of the said Supreme Courts of the said colonies respectively shall be and they are hereby authorized to make, ordain, and establish all necessary rules, orders, or regulations respecting the manner and form of proceeding to be observed in the said Petty Courts, and respecting the manner and form of carry- ing the judgments and orders of such courts into execution, with all such other rules, orders, and regulations as may be necessary for giving fall and perfect effect to the jurisdiotion of such courts respectively, and such rules, orders, and regulations from time to time to revoke, alter, and renew as occasion may require. IT. And it is hereby farther ordered, that it shall and may be lawfal for any person or persons, being a party or parties to any civil suit or action depending in any of the said Supreme Courts of any of the said colonies, to appeal to His Msyesty, his heirs and successors, in his or their Privy Council, against any final judgment, decree, or sentence of any of the said courts, or against any rule or order made in any such civil suit or action having the effect of a final or definitive sentence, and which appeals shall be made subject to the rules and limitations follow- ing; that is to say, in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sura or matter at issue above the amount or value of ^£500 sterling; or in case such judgment, decree, order, or sentence shall involve, directiy or indirectly any claim or demand to or question respecting property or any civil WBK 1r iH^H[ 1 nHH: t .^V 4 §'S A, i' i if aJtxassixsisssasssa ' -— l-TI li-||Tl1Hil| if 272 ORDERS IN COUNCIL. right amounting to or of the value of £500 sterling ; or in case such judgment, decree, order, or sentence shall determine or affect the right cf any perbon to his or her freedom, the person or persons feeling aggrieved by any such judgment, decree, order, or sentence may, within fourteen days next after the same shall have been pronounced, made, or given, apply to such court by petition for leave to appeal therefrom to His Majesty, his heirs, and successors, in his or their Privy Council; and in case such leave to appeal shall be prayed by the party or parties who is or are directed to pay any sum of money or perform any duty, such Supreme Court shall and is hereby empowered either to direct that the judgment, decree, order, or sentence appealed from shall be carried into execution, or that the execution thereof shall be suspended pending tf»e said appeal, as to the said court may in each case appear to be most consistent with real and substantial justice ; and in case such Supreme Court shall direct such judgment, decree, order, or sen- tence to be carried into execution, the person or persons in whose favour the same shall be given, shall, before the execution thereof, enter iuto good and sufficient sec-irity, to be approved by the said Supreme Court, for the due performance of such judgment or order as His Majesty, his heirs and successprs, shall think fit to make thereupon; or in case the said Supreme Court shall direct the execution of any judgment, decree, order, or sentence to be suspended pending the said appeal, the person or persons against whom the same shall have been given, shall in like manner, upon any order for the suspension of any such execution being made, enter into good and sufficient security, to be approved by the said Supreme Court, for the due performance of such judgment or order as His Majesty, his heirs, and successors, shall ihink fit to make thereupon; and in all cases security shall also be given by the party or parties appellant, to the satisfaction of such court, for the prosecution of the appeal and for the payment of all such costs as may be awarded by His Majesty, his heirs and successors, to the party or parties respondent; and if such last-mentioned security shall be ea'-red into within three months from the date of such petition for leave m .ppeal, then, and not otherwise, the said Supreme Court shall allow the appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to His Majesty, his heirs, and successors, in His or their Privy Council, in such manner aiid under such rules as are observed in appeals made to His Majesty in Council from his planta- tions or colonies. 18. Provided always, and it is hereby declared and ordered, that nothing herein contained doth or shall extend, or be construed to ex- tend, to take away or abridge the undoubted right or authority of His Mijesty, his heirs and successors, to admit and receive any appeal from any judgment, decree, sentence, or order of any of the said Supreme ORDERS IN COUNCTTi 273 Courts, on the humble petition of any person or persons aggrieved thereby, in any case in which and subject to any conditions or restric- tions upon and under which it may seem meet to His Majesty, his heirs and successors, so to admit and receive any such appeal. 19. And it is further ordered, that in all cases of appeal allowed by any of the said Supreme Courts, or by His Majesty, his heirs and suc- cessors, such court shall, on the application ai«d at the coats of the party or parties appellant, certify and transmit to JHis Majesty his heirs and successors, in his or their Privy Council,a tnie and exact 'copy of all proceedings, evidence, judgments, decrees, and orders, had or made m such causes so appealed, as far as the samo have relaUon to the matter of appeal, such copies to be certified under the seal of the said court. 20. And it is furUier ordered, that tlie said Supreme Courts respec- tively shall, in all cases of appeal to His Majesty, his heirs and succes- sors, conform to, execute, and carry into immediate effect such judgments and orders as His Majesty, his heirs and successors, jihall make there- upon, in such manner as any original judgment or decree of the said Supreme Couf-t can or may be executed. 21. And wi.ereas there are in the said courts, or some of them, divers unnecessary officers, being or claiming to be entitled to fees of hirge amount for senices by them rendered to suitors and others concerned m the proceedings of the said courts, to the great charge of His Ma- jesty's subjects, and to the obstruction of the due Jidmini'.»ration of justice; it is therefore hereby ordered, that the office of Sworn-Account- ant, as at present existing in Demerara and Essequibo, and in Berbice respectively, shall be the same and is hereby abolished, and that the du- ties heretofore performed by such sworn-accountants sh?V, henceforward but subject to the rules of court to be made as hereinc^.v.e, mentioned* be performed by the Vice-President of the Court of Criminal and Civil Justice of Dem«rara and Essequibo, and by the Vice-President of the Court of Civil Justice and of the Court of Criminal Justice of Berbice • and it is hereby further ordered, Uiat the office of Father-General of Minors, and thcj office of Defender of tlie Absent, and the office of Depositario-Gereral, and the office of Taxador, and the office of Judicial Referee, Liquidator, and Partidor, as at present existing in the said island ofTrinidad, shall be and the same are hereby respectively abo- lished; and thai the duties of the offices of the said .Judicial Referee Liquidator, and Partidor and Taxador, shall henceforward, but subject to the rules of court to be made as hereinbefore mentioned, be per- formed by the Vice-Presideu* of the Court of First Instance of CivU Jurisdiction ofTrinidad: and it is further ordered, that the office of Gurateur aux Successions Vacantes, and Regisseur des Biens dea Absens, as at present existing in St. Lucia, shall be and the same is T fin BRITISH GUIANA. hereby abolished; nnd tliat the duties heretofore performed by that officer shall henceforward, but subject to the rules of court to be made as hereinbefore mentioned, be performed by the Vice-President of the Royal Court of the Island of St, I.ucia. SJ2. And whereas various jurisdictions have heretofore been exercised by certain courts in the island of Trinidad, which by reason of the changes introduced into the administration of justice therein, it is no longer necessary to retain ; it is therefore hereby ordered, that the se- veral courts or tribunals following, that is to say, the Court of Criminal Inquiry, the Court of Audien9iB, the Complaint Court, the Court of the Alcaldes in Ordinary, and the Court of the Alcaldes de Berrio, and ftll ofHces in and connected with the said courts respectively, shall be and the same are hereby respectively abolished. 23. And it is hereby further ordered, that all orders heretofore made by His Majesty, or by any of his royal predecessors in his or their Privy Council, and all laws, customs, and usages now or at any time hereto- fore established or in force in any of the said colonies, so far as such orders, laws, or usages are in anywise repugnant to or at variance with this present order, shall be and the same ate hereby revoked, abrogated, rescinded, and annulled. S4. And it is further ordered, that for the purpose and within the meaning of the present order, any person lawfully administering for the time being the government of the said colonies shall be deemed and taken to be the Governor thereof. (Signed) C. C. GREVILLE. At the Court of St. James's, the 20th day of June, 1831 ; Present, The King's Most Excellent Majesty in Council. 1. Whereas, on the 23d day of April, 1831, an order was made by His Majesty, with the advice of his Privy Council, for improving the administration of justice in His Majesty's colonies of British Guiana, Trinidad, and St. Lucia .: and for that purpose it was thereby ordered, tliat the Chief Judges of the said three colonies should from time to time repair to the said colonies, for the purpose of holding in succession •therein the Supreme Courts of such colonies respectively : And whereas unforeseen difficulties may arise to delay vhe execution of. the said order, and it may be necessary to make provision for the administration of Justice therein ; in the meantime it is hereby ordered by the King's Most Excellent Majesty, by and with the advice of his Privy Council, that it shall and may be lawful for the Govfirnors for the time being of the said colonies of British Guiana, Trinidad, and St. Lucia, or for any ORDERS lli COUNCIL. 276 two of them, by a pioclumiition to be by them issued in Hjj Majesty's name in the said respective colonies, to suspend the execution of the said order of the 23d day of A;.ril, 1831, and the same shall thereupon be and remain suspended, until His Majesty's further pleasure shall be signified to the said respective Governors. 2. And it is further ordered, that during any such suspension of the said order of the 23d day of April, 1831, and no longer, the rules, orders, and regulations hereinafter made and contained shall be observed in the administration of justice ia the said respective colonies ; that is to say, in the first place, it is ordered, that henceforth the Court of Cri- minal and Civil Justice of Demerara and Essequibo, and the Court of Civil Justice, and the Court of Criminal Justice of Berbice, shall hence- forth be holden by and before three judges and no more, and that the first or presiding judge of the said court shall be called and bear the style and title of Chief Justice of British Guiana, and that the second and third of such judges shall be called and bear the respective styles and titles of First Puisne Judge and Second Puisne Judge of British Guiana. 3. And it is further ordered, that the court for the trial of criminal prosecutions, and the Court of First Instance of Civil Jurisdiction in the island of Trinidad, shall henceforth beholden by and before three judges and no more ; and that the first or presiding judge of the said court shall be called and bear the style and title of Chief Justice of Trinidad, and that the second and third of such judges shall be called and bear the respective styles and titles of First Puisne Judge and Second Puisne Judge of Trinidad. 4. And it is further ordered, that the Royal Court of St. Lncia shall henceforth be holden by and before three judges and no more; and that the first or presiding judge of the said court shall be called and bear the style and title of Chief Justice of St. Lucia, and that the second and third of such judges shall be called and bear the respective styles and titles of First Puisne Judge and Second Puisne Judge of St. Lucia. 5. And it is further ordered, that whenever and so often as the office of any chief justice or puisne judge of any of the said colonies shall become vacant by the death, absence, incapacity, resignation, suspen- sion, or removal of any such chief justice or judge, the Governor of such colony for the time being shall be and is hereby authorized to supply and fill up such vacancy by the appointment of some proper person, by a commission under the public seal of such colony, which commission shall be made to continue in force only until His Majesty's pleasure ■ shall be known. 6. And it is hereby further ordered, that none of the said judges of any of the colonies aforesaid sliall be the owner of any slave, or s\ have any share or interest in, or any mortgage or security upon any 'ii- !» I if f tSJ ff'TlP^ 1 m BaiTIfiH GUIANA. IT» Tj (, slave, or shall be proprietor of, or h-^venny share or interest in, or mort- gage or security upon any land cultivated by the labour of slaves, or shall be or act as the manager, overseer, agent, or attorney of, for, or upon any plantation or estate cultivated wholly or in part by the labour of slaves. 7. Provided nevertheless, that nothing herein contained shall prevent any such judge from acquiring any such property or interest as afore- said under any legal process, for the recovery of any debt or demand, or by testamentary or other succession, inheritffnce, donation, or other in- voluntary title, but all such property or interest as aforesaid which any such judge may so acquire, shall, within one calendar month next after the acquisition thereof, be by him communicated to the Governor of the colony, and shall be alienated and disposed of within six calendar months, unless His Majesty shall in any case be pleased to grant to any such judge a longer period for effecting any such alienation or disposal thereof. "^ 8. And it is further ordered, that in each of the said courts respec- tively, the said three judges of the said respective colonies shall in all cml cases have, possess, exercise, and enjoy such and the same juris- dicuon, powers, and authority, in every respect, as the judges of the said courts have heretofore lawfully possessed, exercised, or enjoyed; and that the decision of the majority of such three judges shall in all civil cases at any time depending in the said respective courts, be taken and adjudged to be, and shall be recorded as the judgment of the whole ot such court. 9. And it is further ordered, that upon the trial of any person or persons ,n any of the said courU respectively for any crime or offence. three assessors shall be associated to the said three judges, in the man; iier hereinafter provided for, which assessors shall be entitled to de, liberate and vote with such judges upon the final judgment to be pronounced m every such criminal case, or no person shall be convicted of any crime or offence, or adjudged to suffer any punishment by any judgment or sentence of any of the said courU, unless a majority of the total number of such judges and assessors shall in open c^urt vote in favour of such judgment or sentence, Jl' ^f '' "I""**"' °''^"'*'' '•'"' '" '""'^ °f the said courts the said three judges and assessors shall in all criminal cases have, possess uZ:; "^'^ "'^' "' ''' "™^ J"-^''^^-' power ad authority n every respect as the judges of the said courts respetively have heretofore lawfully possessed, exercised, and enjoyed, and that the deasion of themajority of the total number o^ shall ,n all criminal cases at any time depending in any of the said ORDERS IN COUNCIL. 277 11. And it is further ordered, that it shall he lawful for the judges of any of the said courts respectively to reserve the consideration of any question of law arising upon any such criminal trial as aforesaid, and to make order for the suspension or arrest of the judgment or tentence of the court, until the decision of such question of law, whicn shall be adjudged and decided by such judges alone, and without the concur- rence or interference of duch assessors therein. 12. And it is hereby further ordered, that the assessors of the said courte in Demerara and Berbice shall be chosen and appointed in such and the same manner as the members of the Court of Civil and Criminal Justice of Demerara have heretofore been chosen and appointed ; and that the assessors of the said court for the trial of criminal prosecutions inTri- nidad shall be chosen and appointed from and out of the members of the Cabildo of the town of Port of Spain in the said island ; and that the assessors of the said Iloyal Court of St. Lucia shall be chosen and ap- pointed in such and the same manner as the members of that court, other than the First President, have heretofore been chosen and ap- pointed. 13. And it is hereby further ordered, that none of the judges of either of the said courts shall be liable to challenge or recusation in or upon any action, suit, or proceeding, civil or criminal, but that such assessors shall be liable to be challenged on such and the like grounds as may be allege J as lawful ground of challenge against any petit juror impannel- led for the trial of any indictment in England, and the validity of every such challenge shall be decided by the judges presiding at any such trial, without the concurrence or interference of the assessors or any of them. 14. And it is further ordered, that it shall and may be lawful for the judges of the said courts respectively, and they are hereby autnorized and required to make, ordain, and establish a tariff or table of fees, to be had, taken, allowed, and paid by the suitors in the said respective courts, for and in respect of every sentence, judgment, order, and pro- ceeding which may be pronounced, made, or had in any suit or action depending therein, or which may or shall be paid or payable to any of the officers of the said court respectively, or to any advocate, oarrsster, solicitor, attorney, proctor or notary, or other practitioner of the law therein, and which tariffor table of fees shall, by the Chief Justice of each of the said courts respectively, be transmitted to the Governor for the time being of the colony to which such court may belong; and any such tariffor table being ratified and confirmed by any ordinance to be for that purpose made by the Governor and Court of Policy of British Guiana, or by the Governor, with the advice and consent of the Council of Government in the said colonies of Trinidad or St. Lucia, shall be binding upon all persons interested therein ; and all persons receiving * •5 ■I -I ^^ BRITISH GUIANA. any greater or higher or other fee or reward than shall by any such tariff- or table be allowed, shall be liable to refund the same by such summary process or proceeding as shall seem good to the said courto respectively in that behalf. 15. And it is further ordered, that it Hhail and may be lawful for the said Governor and Court of Policy of British Guiana, and for the Go- vernors of Trinidad and St. Lucia respectively, with the advice and consent of the respective Councils of Government thereof, by any ordinances to be by them for that purpose made, to prescribe the form •tnd manner of proceeding to be observed in the said respective courts for the prosecution and trial therein of all persons charged with the com- mission of any crimes and offences cognizable within the said courts respectively: provided nevertheless, that every such ordinance shall be transmitted for His Majesty's approbation in the manner required by law in reference to all ordinances passed and enacted in the said respective colonies. 16. And it is further ordered, that it shall and may be lawful for the judges of the said courts respectively, and they are hereby authorized and required to make and establish such rules, orders, and regulations as to them shall seem meet, touching the distribution of the business of the said courts between the respective judges thereof, and concerning the forms an.^ manner of proceeding to be observed in the said courts respectively, and the practice and pleadings in all civil actions and other civil matters to be therein brought, and concerning the process of the said courts and the mode of executing the same, and concerning the admission of advocates, barristers, attornles, solicitors, notaries, and proctors in the said courts respectively; all which rules, orders, and regulations shall be framed in such a manner as to promote, as far as may be, economy, method, and expedition in the despatch of the business of the said courts respectively; and the same shall be drawn up jn plain, succinct, and compendious terms, avoiding all unnecessary repetitions and obscurity, and shall be promulgated in the most public and authentic manner in the colonies to which the same may respec* tively refer, for fourteen days at the least before the same shall be binding and take effect therein. 1 7. Provided always, and it is further ordered, that no such rules, orders, or regulations as aforesaid be repugnant to this present order, and that the same be forthwith transmitted under the seals of such respective courts to the respective Governors of the said colonies respectively, to be by them transmitted to His Majesty for his approbation or dis- allowance. 18. And whereas there are established within the said colonies, or some of them, courts having jurisdiction in civil cases of small amount and m cases of breaches of the peace and other petty offences, and it is' ORDERS IN COUNCIL. 079 expedient that proviiiion b« made for the bettor odniiniatration of juntice in iud' arts ; it it therefore hereby ordered, that no court within any of the aaid colonies other than the »upremo courli hereinbefora men- tioned, shall be competent to hold jurisdiction in any civil case in which the sura or matter in dispute shall exceed the amount or value of £20 ■terling money, or in which the right of any alleged slave to his or her froedoro, or the title to any lands or tenements, or any foe, duty, or office, or Hit Majesty's Royal Prerogative may b« in question, or whereby righU in future may be bound ; and that no court within any of the said colonies, other than the Supreme Courtt aforesaid, shall be competent to hold jurisdiction in any criminal case wherein any per- •on shall be accused of any crime punishable by death, transportation, or banishment; and that it shall not be lawful for any court in any of the said colonies, other than the Supreme Courts aforesaid, to inflict any greater or other punishment than imprisonment, with or without hard labour, for a term not exceeding three months, or flne not exceed- ing £30, or whipping not exceeding thirty-nine stripes, or any two or more of such kind of punishments together, within the limits afoiesaid. 19. And it is further ordered, that it shall be lawful for the ivemor of British Guiana, with the advice and consent of the Court of Policy thereof, and for the Governors of Trinidad and St. Lucia, with the advice and consent of the respective Councils of Government thereof, to establish, constitute, and erect within the said respective colonies, inferior courts having jurisdiction in civil and criminal cases within the limits aforesaid, and for tliat purpose may abolish any such inferior courts as may be now existing therein, or modify the constitution of such courts as may be found expedient. 20. And it is further ordered, that the judges of the said Supreme Courts of the said colonies respectively shall be and they are hereby authorized to make, ordain, and establish all necessary rules, orders, and regulations respecting the manner and form of proceeding to be observed in the said inferior courts, and respecting the manner and form of carrying the judgments and orders of sucn courts into execu- tion, with all such other rules, orders, and reg-ilations as may be necessary for giving full and perfect effect to the jtirisdiction of'snch courts respectively, and such rules, orders, and regulations from time to time to revoke, alter, and renew as occasion may require; provided always, that all such rules, orders, and regulations as aforesaid shall be promulgated, and shall be transmitted to His Majesty for his approba- tion or disallowance, in the manner hereinbefore directed and required with respect to the rules, orders, and regulations of the said Supreme Courts. 21. And it is further ordered, that the office of Father-General of Minors, and the office of Defender of the Absent, and the office of !r S80 BRITISH GUIANA. h \ 1$ ■t.i. Depositario-General, as at present existing in the island of Trinidad, shall be and the same are hereby respectively abolished ; and that the office of Taxador, and the offio of Judicial Referee, Liquidator, and I'artidor, as at present exisMng in the said island, .ihall be and the same are hereby consolidated, and shall constitute one office. 22. And ii is further ordered, that the offices of Curaieurs aux Suc- cessions Vacantes, and RegisseurdesBiensdesAbsens, as at present existmg m St. Luna, shall be and the samo are hereby abolished. 23. And whereasvariousjurisdictions have heretofore been exercised by certain courts in the island of Irinidad, which, by reason of the changes hereby introduced into the administration of justice there, it is nc longer necessary to retain; it is therefore hereby ordered, that the seve«l courts or tribunals following, that is to say, the "Court of Cri- minallpquiry," the "Tribunal of Appeal, in all cases of condemnation o death, the "Superior Tribunal of Appeal of Civil Juried iction," the Tribunal of the Royal Andienjia," and all offices in and connected MTiUi the said courts respectively, shall be and the same are hereby respectively abolished. ' 24. And it is further ordered, that the Court of Sen^chaussde, in the island of St. Lucia, and all offices in and connected with »hat court, shall be and ihe sahie are hereby abolished; and that the Royal Court of the said island shall henceforth have an original jurisdicHon in all causes arising within the said island, in such and the same manner ^nd to such and the same extent as such original jurisdiction was heretofore vested in the said Coui jf Sencchaussee. 25. And it is hereby further ordered, that it shall and may be lawful lor any person or persons, being a party or parties to any civil suit or action depending in the said Court of Civil and Criminal Justice of De- nierara and Essequibo, or in the said Court of Civil Justice cf Berbice or m tne said Court of First Instance of Civil Jurisdiction of Trinidad! or m the said Royal Court of St. Lucia, to appeal to His Majesty, hii ;.c.rs.anr, successors, in his or iheir Privy Council, against a.iy final judgmenc, decree, or sentence, or against any rule or order made in any such civil suit or action, and having the effect of a final or definitive sentrnce, and which r.p^eals shall be made subject to the rules and limitations following : that is to say. First, Such judgment, decree, order, or sentence shall ' s given or pronounced for or in respect of a sum or matter at issue above the amou.t or value of f 500 sterling, or shall involve directly or indirectly the title to property, or to some civil right, amounting to or of the value of ^500 aterlmg, or shall determine or affect the right of some alleged slave to his or l.^r .'reedom : Secondly, The person or persons feolmg aggrieved by such judg- ment, decree, order, or sentence, shall, within fourteen days next aft?r ORD£RS IN COUNCIL. 281 the same shall have been pmnounned, made, or given, apply to the court by petition for leave to appeal therefrom to His Majesty, his iieirs, and successors, in his or their Privy Council : ITiirdly, If such leave to appeal shall be prayed by the party or parties who is or are adjudged to pay any sum of money or to perform any duty, the court shall direct that the juegment, decree, or sentence appealed from 3h?U be carried into execution if the party or parties respondent shall give security for the immediate perfcrmanoe of any judgment or sentence which may be pronounced or made by His Ma- jesty, bis heirs, and successors, in his or their Privy Council, upon any such apj eal, and until such security be given, the execution of the judgment, decree, order, or sentence appealed from shall be stayed : Fourthly, Provided nevertheless, that if the party or parties appellant shall establish to the satisfaction of the court, that real and substantial justice requires that pending such appeal execution should be stayed, it shall be lawful for such courts to order the execution of such judgment, decree, order, or sentence, to be suspended pending such appeal, if the party or parties appellant shall give security for the immediate per- formance of any judgment or sentence which may be pronounced or made by His Majesty, his heirs, and scccessors, in his or their Privy Council, upon any such appeal : Fifthly, In all cases security shall also be given by the party or parties appellant for the prosecution of the appeal, and for the payment of all such costs as r.ay be awarded by His Majesty, his heirs, and successors, to the party ur parties respondent : Sixthly, The court from which any such appeal as aforesaid shall be brought shall, subject to the conditions hereinafter mentioned, deter- mine the nature, amount, and sufficiency of the several securities so to be taken as aforesaid : Seventhly, Provided nevertheless, that in any case where the subject of litigation shall consist of immoveable property, or of any slaves, stock, utensils, or implements, held therewith or attached thereto, and the judgment, decree, order, or sentence appealed from shall not charge, affect, or relate to the actual occupation thereof, no securijy shall be demanded either from the party or parties respondent or from the party or parties appellant, for the performance of the judgment or sentence to be pronounced or made upon such appeal; but if such judgment, de- cree, order, or sentence, shall charge, affect, or relate to the occupation of ony such property, then such security shall not be of greater amount than may be necessary to secure the restitution, free from all damage or loss, of such stock, utensils, or implements, or of the intermediate profit which, pending any such appeal, may probably accrue from the inter- mediate occupation of such property; and each of the said courts is hereby authorized and [required to sequestrate any such immoveable r'l' 282 BRITISH GUIANA. n property, slaves, stock, utensils, and implements, in order still further to reduce the amount of such security, if the party or parties by whom such security is to be given shall make application to such court for that purpose, and the other party or parties shall not show good cause to the contrary : Eighthly, In any case where the subject of litigation shall consist of money or other chattels, or of any personal debt or demand, the security to be demanded either from the party or parties respondent, or from the party or parties appellant, for the performance of the judgment or sen- tence to be pronounced or made upon such appeal, shall be either a bond to be entered into in the amount, or value of such subject of litigation by one or more sufficient surety or sureties, or such security shall be given byway of mortgage or voluntary condemnation of or upon some im- moveable property or slaves (1) situate and being within such colony, and being of the full value of such subject of litigation, over and above the amount of all mortgages and charges of whatever nature upon or affecting the same : Ninthly, In any case where the subject of litigation shall be the right ofany alleged slave to his or her freedom, the amount of the security for the performance of the judgment or sentence to be pronounced and made upon any such appeal, shall in no case exceed the pecuniary value of such alleged slave, and shall be given either by such surety or sure- ties, or by such mortgage or voluntary coudemnation as afoiesaid : Tenth, The security to be given by the party or parties appellant for the prosecution of the appeal and *br the payment of costs, shall in no case exceed the sum of £300 steriiug, and shall be given either by such surety or sureties, or by such mortgage or voluntary condemnation as aforesaid : Eleventh, If the security to be given by the party or parties appellant for the prosecution of the appeal and for the payment of such costs as may be awarded, shall, in manner aforesaid, be completed within three months from the date of the petition for leave to appeal, then, and not otherwise, the court from which such appeal is brought shall make an order allowing such appeal, and the party or parties appellant shall be at liberty to prefar and prosecute his, her, or their appeal, to His Ma- jesty, his heirs, and successors, in his or their Privy Council, in such manner and under sucli rules as are observed m appeals made to His Majesty in Council from the plantations or colonies : Twelfth, Provided nevertheless, that any person or persons feelinjr aggrieved by any order which may be made by, or by any proceeding ot any of the said courts respecting the security to be taken upon an;r (1) See post, t!ie Slavery Abolition Act, ss, 9 and 10. ORDERS IN COUNCIL. 283 such appeal as aforesaid, shall be and is hereby authorized, by petition to His Majesty in Council, to apply for redress in the premises. Provided always, and it is hereby further ordered, that nothing herein contained doth or shall extend or be construed to extend to take away or abridge the undoubted right or authority of His Majesty, his heirs, and successors, to admit and receive any appeal from any judgment, decree, sentence, or order of any of the said Supreme Courts, on the humble petition of any person or persons aggrieved thereby, in any case m which, and subject to any conditions or restrictions upon and under which it may seem meet to His Majesty, his heirs, and successors so to admit and receive any such appeal. 26. And it is further ordered, that in all cases of appeal allowed by any ofthe said Supreme Courts or by His Majesty, his heirs, and succes- sors, such court shall, on the application and at the costs ofthe party or parties appellant, certify and transmit to His Majesty, his heirs, and successors, in his or their Privy Council, a true and exact copy of all proceedings, evidence, judgments, decrees and orders had or made in such causes so appealed, so far as the same have relation to the matter of appeal, such copies to be certified under the seal of the said court. 2r. And it is further ordered, that the said Supreme Courts respec- tively shall in all cases of appeal to His Majesty, his heirs, and succes- sors, execute and carry into immediate effect such judgments and orders as His Majesty, his heirs, and successors, shall make thereupon, in such manner as any original judgment or decree of the said Supreme Court can or may be executed. 28. And it is hereby further ordered, that all orders heretofore made by His Majesty, or by any of his royal predecessors, in his or their Privy Council, and all laws, customs, and usages now or at any time hereto- fore established or in force in any of the said colonies, so far as such orders, laws, or usages are in anywise repugnant to or at variance with this present order, shall be and the same are hereby revoked, abrogated, rescinded, and annulled. 29. And it is further ordered, that for the purpose and within the meaning ofthe present order, any person lawfully administering for the time being the government of any of the said colonies, shall be deemed and taken to be the Governor thereof. And the Right Honourable Viscount Goderich, one of His Majesty's principal Secretaries of State, is to give the necessary directions herein accordingly. (Signed) C. C. GREVILLE. ( 284 ) N#*f INFERIOR COURTS OF CIVIL JUSTICE. Under the authority of the 19th section of the preceding order an ordinance was passed by the Governor and Court of Policy on the 13th day of September, 1832. to repeal the ordinance passed on the 23d of May, 1832, entitled „/VJ. M t"*".*^*" t? estabhsh and constitute Inferior Courts o*- Civil Justice in British Guiana," and to make other ZTT ?' '""'^ ^i^^^"^"* ^^""^t^- I' recites and re- lows -—^ ordinance, and then proceeds as fol- • ^^®'^o«^H ^" order of His Majesty in Council, bear- of C vn T,?,r"'^°"u' *^/^ establishing of Inferior Courts cerS^n /,?. f ""!?'" -^"1 '°'^.?y' having jurisdiction to a certam extent as therein described. nnf 'w^ •' *^J^'P^*'''^^"^Hier enacted, that there shaU be one Inferior Court of Civil Justice for the district of De- meraia and Essequibo, and another Inferior Court of Civil Justice for the district of Berbice. 3. And be it further enacted, that the said Inferior onTnf /h^'p^" ^'i P ""^ ^'^^'^ *^e Chief Justice or one of the Puisne Judges, at such times as the Judges of the Supreme Court shall direct and appoint. Ci^l cHL I ;;^''*^?r ?"^eted, that the said Inferior Civil Court shall have jurisdiction in cases to the amount or value of twen^ pounds sterling, all claims in cuSency limitadon "^ ^ ''' ^"'"^ comprehended in this 5. And be it further enacted, that the Registrar or CWs Sr-r/ .^''t^} "^ '^' ^-^^P^^'i^e ^Supreme Courts of Civil Justice shall attend the sitting of the said respective nferior Civil Courts, and shall brentilLd to [hem certain fees for services respectively performed by 6 And be it further enacted, that when the Judges of the Supreme Court shall have made, ordained, andesta- bhshed all necessary rules, orders, and regulations re- ,K"!n ^T T""^':r^" •, ^^'"^ ^^ proceeding to be observed in the said Inferior Civil Courts, and respecting the man- ner and form of carrying the judffments and orrlprg nf ^h- BRITISH GUIANA. 285 said Inferior Civil Courts into execution, with all such other rules, orders, and regulations as may be necessary lor giving full and perfect effect to the jurisdiction of the said courts respectively, and as soon as the said rules, orders, and regulations shall have been duly promulgated this court shall thereupon frame the tariff fixing the amount of fees to which the respective officers of the f iid court shall be entitled for services performed by them in their respective offices ; and on promulgation thereof by this court, the said tariff shall have force of law, and be- come binding on all parties concerned. 7. And be it further enacted, that this ordinance shall come into full operation on the first day of November next coming. And that no ignorance may be pretended of the several orders contained in this ordinance, the same shall be printed and published as customary. PRACTICE OP THE COURTS. In consequence of the Orders in Council remodelling the Supreme Court, and the subsequent establishment of Inferior Courts, local regulations were made directing the mode of proceeding in the Supreme Court and in the In- ferior Courts of British Guiana. Many of these regula- tions can be of use only to the practitioners of law in the colony itself; but there are some which, as they may affect contracts made in this country, deserve to be extracted. The first three will give some idea of the jurisdiction of the courts now established in the colony. Manner of Proceeding to be observed in the Supreme Courts of Civil Justice in British Guiana, made and established by the Justices of the said Courts, in pur- suance of His Majesty's Order in Council, bearing date mthJune,lSm. * Sect. 1. A Court of Civil Justice shall be held in George-Town four times in each year, for the district of Demerara and Essequibo, and twice or three times, if ne- cessary, in each year, in New Amsterdam, for the district of Berbice. 2. A Ro)^ "curt shall be held in each district before a puisne judge, . n such days as shall from time to time be appointed by the Judges of the Supreme Courts, and shall be continued from day to day until the business M i It '* t 286 BRITISH GUIANA. m brought before it shall be disposed of. Provided how- ever, that no Roll Court shall be appointed to be held in the months ot August, September, and October. 8. Before the first Roll Court of every month, in which there shall be one or more Roll Court, shall be return- able all and every citation in civil causes over which the Mupreme Court has jurisdiction, except in cases of re- audition from the Roll to the Supreme Court. 27. It shall and may be lawful for the judge of the Koll, and he is hereby required to make, if need be, a special report to the court, touching the examination, and the conduct or absence of any witness or witnesses, or other persons therein, or relating thereto ; a copy of which report, in the event of any appeal to His Majesty in Council being granted, and the papers taken out shall be deli- vered with the same ; and it shall and may be lawful for the court, after the case shall have been closed on both sides and pleaded, to call up and examine any witness who shall have been examined in the cause. 43. No plantation under execution shali be sold until one year after levy, and the particular description thereof and notice of the sale shall, at least six months previously to the day of sale, have been three times advertised in AAA^ Gazette and Amsterdam Courant. 44. At the expiration of the year after due notice, as m s. 43 the court or chief justice, during non-session, upon petition of the marshal, shall fir a precise day of sale of such plantation, and after advertisement of such precise day for four successive Saturdays in the govern- ment newspaper of the colony, such plantation shall be sold at a credit of three, six, nine, and twelve months from the day of sale, payable in manner hereinafter stated; and m the event of the property to be sold con- sisting of several lots of land, with or without slaves or appurtenances, or of several lots of slaves, with or without buildings, and upon which lots respectively there shall be separate or distinct mortgages, liens, or claims, the holders ot such distinct mortgages, liens, or claims, shall be at liberty to petition the court or chief justice during non- session for an order to sell, as it shall seem most Advan- tageous to all parties under the circumstances of each particular case, and to enable the court to ascertain the rights of the respective parties on the decision of pre- ference and concurrence. 55. If the purchaser of a plantation or other immove- BRITISH GUIANA. 287 able property sold at execution sale, be a holder of a first or second mortgage on the same, he shall not be bound to turnish security, or pay, save and except to the extent of such claims as shall appear to the court to be preferent to such first or second mortgage, and of the amount for which the purchase-money shall exceed the amount of the sum due on such first or second mortgage, provided such ftrst or second mortgage, in virtue of which exemption trom security or any part thereof shall be claimed, shall be deposited with the registrar. 72 Every barrister, advocate, attorney, and solicitor, upon his admission to practise, shall have administered to him and shall take the following oath :— u l^v- 'l*^" fy^^^"^ ***** ^^" *"^ ^'•"^y yo" shall serve the Kings subjects, according to the best of your learn- mg and knowledge in the law, and you shall truly counsel and advise them that shall retain you according " to the best of your skill, and you shall not defer, pro- tract, nor delay their cause willingly, for lucre or hope "of reward. So help you God." ^ And no practitioner at the bar shall be allowed to appear for a plaintiff, without filing at the time of his appearance, a power, ad lites, unless by leave of the court, nor for any defendant without filing, at the time of his appearance, a copy of the citation served upon the defendant, or some other authentic voucher, as evidence of his being employed for and on the behalf of such de- fendant. 73. Whenever the secretary shall be called upon to pass or execute a power ad lites, in favour of any prac- titioner, care shall be taken to insert therein authority to receive monies and to grant receipts, and unless such authority be inserted in the powers oc? lites, the same shall be considered to have been intentionally withheld. 76. Edictal citations at the instance of an executor administrator, curator, guardian, or trustee, shall be confined to two, that is to say, the first edictal citation shall be issue(^ in the colony within one month after date of the order obtained from the chief justice, and the second, or last, so soon as the marshal shall have made his return of the edictal citation having been published three times in Europe, as in section 43, or in one month after the first^shall have been called at the roll, if the TJubUe«- nou iii iiiurope be not required. ' i I' l\ 288 BRITISH GUIANA. 11 Manner of proceeding in the Inferior Courts of British Guiana, as established by the Judges of the Stmreme Courts in pursuance of His Majesty's Order in Council of 20th June, 1S3L Section 19. There shall be no appeal from any sentence of these courts, and eight clear days after sentence shall have been pronounced, the party in whose favor the sentence is shall be at liberty to proceed in execution thereon. 28. Every one shall ba at liberty to appear personally in the Inferior Courts, to conduct his own cause, or to employ by power ad lites a duly admitted barrister, advocate, or attorney, and no other person to appear for him ; it being however understood that whenever such barrister, advocate, or attorney, is employed, he shall be remunerated by his own client, and no fee or remuneration paid to any barrister, advocate, or attorney, for appearing in the Inferior Courts, shall form any part or parcel of the bill of costs to be taxed against the party condemned. Qualification of Assessors. The order in Council of the 20th June, 1831, having directed that in certain cases therein mentioned, assessors should sit with the Judges of the Supreme Court, another order m Council of the date of the 15th August, 1832, was issued declaring the qualifications of such assessors. The second ovflev was published in the colony by the pro- clamation of the Governor, dated on the 25th October in the same year, and was in the following terms :— Whereas on the 20th day of June, 1831, an order was made by His Majesty with the advice of His Privy Council, for improving the administration of justice in His Majesty's Colonies of British Guiana, Trinidad, and St. Lucia, whereby it was, amongst other things, ordered, that the assessors of the courts therein mentioned in Demerara and Berbice should be chosen and appointed in such and the same manner as the members of the Court of Civil and Criminal Justice of Demerara have heretofore been chosen and appointed, and that the assessors of the said court for the trial of criminal prosecutions in Trinidad should be chosen and nnnninfprl frnm an A mif nf fU^ «n/>«v.u^~,. ^e ^.u- BRlTfSH GUIANA. 28J) Lucia should be chosen and appointed iu such and thl ait oflhr'dX of'^eLtt 's.:'"'! *" ^ rejpeoavely, all free adule mafeTnhaiuam: rflhe'Iw colonies possessing such quaUflcation as Treinafte^ '^ mentioned : it is therefore hereby ordered bvIli,M»^.. by and with the advice of his PrivvSl?,^!. "•'°''?' 60 years residing in any of the said colonies who shall tnefire^ier'f • ^""^ ^"*'*^^'^ *«' ^- his own use tnd Denetit, either in his own name or in trust for him within the same colonv. ten pounds by the year ab^e repiire S any immoveable property, or in r/nfo nV!.;^ ^ * ^ promts or proceeds^n/ourofTuchll:;:^^^^^^^^ S: t:rmo?Tv? *""^ "' ''«;' <" leasetSeX if™ of r: leteSb°ier:„';r„5frves" » Ss L „ril;,*f ^"'"r" "^ ™'«s or"as'SdTo"J^; airect tax or impost, or to any rate for the relief nff^i poor, or other local object, on a value oLot less th^^^^^^^ KM^'-a Snd ?iS ^« =t:s'^;^i^^t-eX^^lrerr{it of Scotland, und of the L„thera-n "ancf ^taeyctro'iit u # 1^ i i 3 li i 4 290 BRITISH OUIANA. in m ItfM all pneats of the Komnn Catholic faith, all persons who shall teach or preach in any congregation of Protestant dis- senters, and who shall follow no secular occupation except that of schoolmaster, all doctors of law, advocates, counsel, and barristers actually practising, all attorneys at law, solicitors, and proctors actually practising, all officers of the said courts actually exercising the duties of their respective offices; all jailors and persons actually em- ployed by and under them in the custody of prisoners ; all physicians, surgeons, and apothecaries actually prac- tising by virtue of any diploma, license, or certificate granted by any competent authority ; all officers in His Majesty s na y or army on full pay, all pilots duly licensed by any competent authority ; all officers of customs, and all officers actually employed as deputies or assistants to the marshals, or other executive officers of the said courts, giall be and are hereby absolutely freed and exempted from serving as such assessors as aforesaid. Provided also, and it is further ordered, that no man who hath been, or shall be convicted of any crime that is infamous, unless he shall have obtained a free pardon, shall serve as such assessor. And whereas it is necessary that provision should be made for ascertaining the names, places of abode, and descriptions, of all persons within the said respective colonies qualified and liable to serve as such assessors, and for making and revising from time to time, proper lists of such persons, and for the due summoning of them in some settled rotation to serve as such assessors, and for the impartial selection of a sufficient number of persons from those so summoned to serve on every criminal prosecution, . It is further ordered, that the chief justices and other judges of the Supreme Court of the said colonies re- spectively, shall be, and they are hereby authorized, to make, ordain and estabHsh, all necessary rules, orders, and regulations, respecting the manner in which the names, places of abode, and descriptions of persons within the said respective colonies, qualified and liable to serve as such assessors as aforesaid, shall be ascertained, and re- specting the making and preserving in the different districts and quarters of the said respective colonies, lists of all such persons, and respecting the public and other notices to be given preparatively to the compiling of any auch lists. an*l fh" «iiV>1''>ot!0" ^e ■^^•. V \:~i.-—i.-.. "'. BRITISH GUIANA. ^I compiled; and respecting the manner in which all persons whom It may concern shall be called upon or permitted to oppose or object to the insertion or omission of any name m any such hst; and respecting the manner in which every such opposition or objection shall be heard, tried, and determmed, and respecting the manner of reformint? correctmg, or allowing any such list; and respecting the manner and form in which all such lists, when corrected and reformed, shall be recorded; and also respecting the manner, order, and form in which all persons, whose nameg shall be comprised in any such record, shall be summoned to attend at any sessions of any such court, there to serve as assessors, and respecting the times at which, and the manner in which such summons shall be served: and also respecting the mode in which a competent number of assessors sha 1 be chosen, either by ballot or otherwise trom among the number so summoned to serve as assessors m the said courts; and also respecting the proper method ot proceeding to preserve a due rotation amongst such assessors; and also respecting the several officers bv whom, and the times and places at which the before- mentioned duties respectively shall be done and performed • and all such rules orders, and regulations from time to time to alter, revoke, and renew, as occasion may require. Provided always, that no such rules, orders, knd regu- Jations, as aforesaid be repugnant to this present order and that the same be forthwith transmitted under the seals of such respective courts to the respective governors, to confirm or disallow the whole or any part of such rules orders, and regulations, as to such respective governors maym their discretion seem fit ; and the same when so confirmed by such respective governors shall take effect , n w- '!ir*^^".^^'^f '''^^"' *^^^ '^''^ respective colonies unti His Majesty's pleasure shall be known ; and the same shal be transmitted to His Majesty for his approbation or aisallowance, in the manner directed and required by the said recited order of the 20th June 1831, with respect to the ru es, orders, and regulations of the said Supreme Court therein mentioned. ^ And it is further ordered, that if any public officer or other person within the said colonies respectively, who by any such rules, orders, and regulations as aforesaid snail be reouired or d>'v^''fnrl fr> v,^..p«,™, „_- i.,. "" -~ *•' i'--iOini any uuiy, or to u Q mi i I a m •«- I I > ! *1 It ' I mi 392 naiTisii r.uiANA. do any act in or about or connected with the several mat- ters aforesaid or any of tliem, shall refuse or neglect to perform any such duty, or to do any such act, every such officer or other person shall, for every such offence, for- feit n sum not exceeding £10 nor less than 40*., as to the judges of the Supreme Court of such colony wherein the same shall occur shall seem reasonable. And it is further ordered, that every personjwho, under the provision of this present order, or of any such rules, orders, and regulations as aforesaid, shall be duly sum- moned to serve as an assessor for the trial of any criminal prosecution in any of the said colonies, who shall not appear and serve as such assessor after being openly called three times, and on proof being made on oath of his having been duly summoned, shall forfeit and pay for every such his default, such fine, not exceeding ^'10 nor less than Xl, as the court shall deem reasonable to impose, unless some just and sufficient cause for such defaulter's absence shall be made to appear, by oath or affidavit, to the sa- tisfaction of th6 court. And it is further ordered, that every fine which shall be imposed by virtue of this pre- sent order shall be imposed by a summary proceeding before the said courts respectively, on the motion of the public prosecutor of and for any such colony, and shall, when so imposed, be levied and recovered in such and the same manner and by all such ways and means as any other fine or penalty imposed by a judgment of any such court ; and shall, when so recovered, be paid over to the treasurer or other receiver of His Majesty's revenue within such colony, in aid of the expenses of the civil go- vernment thereof and the administration of justice therein. And it IS further ordered, that in all criminal prosecu- tions before the said courts respectively, it shall be a good cause of challenge of any person summoned to serve as an assessor, that he is not qualified according to the provi- sions of this present order, or that hi ', an illiterate per- son and unable to read or write, and tl afc -wy other ca.,sfl which according to the law of Eng /< .oulu be a good cause of challenge of any man summoned and returned to serve as a common juror on the trial of any issue joined between the King and the prisoner on any indictment for felony or misdemeanor, shall also be good cause of chal- irtnge to any assessor summoned to serve on thp trial of ft DIUTISII OUIANA. fats any cr mmal prosecutuui u, any of the said colonies, m bo far i. hat part of the law of England k capable of beinu u.phed m the said colonies; and if any such cause of c aUenge «ha 1 be alleged, either by the |L,Iie proseeuto oi by aiiv Huch person or persons against whom any such p osccuuon may be brought, the judges of the court sha forthwith nroceed to enquire of. and consider tl»egroun Is any such challenge, and shall either allow or Overrule e ame. as may be just ; and unon such challenge being so allowed, ano her person shall be chosen to ?erve a! assessor m the p ace and stead of the person so challenged m so on, untd a sufHcient numblr of assessors sQ iin^shairL^^neg^i"" ""^' "^' "° j"^' ^--' ^' <=»-•- And it is further ordered, that after deducting six from the whole number of the persons summoned and actuaHy appearing to act as assessors on any criminal prosecution, the public prosecutor and the person or persons arm ns whom the prosecution may be brought, shJu each havTas nany peremptory cludlenges as shaTl be equal to oneLTf of the remaining number, or should the remaining number not be an even number, then the person or persons againsJ vhom the prosecution may be brought shall have one peremptory challenge more than the public prosecutor H.inl P '' fu^fl^er ordered, that before proceeding to the iial of any such criminal prosecution, each assessor shall, in open court, audibly pronounce and take the oath apl pointed by the law of England to be taken by pe t jurors impannelled for the trial of any issue joined be- tween the King and any person or persons ari Jg^d upon any indictment in His Majesty's Court of Kin|'s BeSch at Westminster. ° And it is further ordered, that the assessors so to be summoned and chosen as aforesaid, shall have, exercise, ami enjoy all such and the same rights, powers, and pri- vileges, and shall perform all such^nd the sai^e dudes as according to the provisions of the said recited Order mCouncd might be exercised, enjoyed, and performed uy tlie assessors therein mentioned. And it is further ordered, that this present order shall take effect and come into operation in the said respective CO onies so soon as the same shall have been promulgated within any such colony by the Governor thereof, and not n 4 m 294 BRITISH GUIANA. before ; and that for the purposes and within the meaning of this present order, the officer administering the govern- ment of any such colony shall be esteemed and taken to be the Governor thereof. And die Right Honourable Lord Viscount Goderich, one Oi His Majesty's principal Secretaries of State, is to five the necessary directions herein accordingly. C. Grevilk, i i ASSESSORS. Jn Ordinance to pro vide a sufficient number of Assessors to he associated with the Judges of the Supreme Courts of Criminal Justice of British Guiana, as enacted by the Governor and Court of Policy on the 5th December, 1831. Whereas, by an order made and passed by His Ma- jesty in Council, ])earing date the 20th June, 1831, it was amongst other matters provided that three assessors should be associated with three judges upon the tria' of any person or persons in either of the Supreme Courts of the colony for any crime or offence, such assessors being entitled to deliberate and vote with such judges upon the nnal judgment to be pronounced in every such criminal case. And whereas it was further provided that assessors shall be liable to be challenged on such and like grounds as may be alleged as lawful grounds of challenge against any petit juror impannelled for the trial of any indict- ment in England : And whereas the number of persons to be elected, chosen, and appointed to serve as assessors must be suffi- cient to provide for cases of cliallenges held to be valid : CI, 1. Be it therefore enacted, that there shall be for the Supreme Criminal Court of Demerara and Essequibo a number of twelve assessors, and for the Supreme Criminal Court of Berbice a like number of twelve asses- sors. 2. And be it further enacted, that the right to elect assessors is and shall be vested in the College of Kiezers of British Guiana, and in the exercise of this right the college shall be bound to make u double nomination of BRITISH GUIANA. 295 persons for the office of assessor, to be transmitted through the haruls of His Excellency the Governor to the judge of the Supreme Court, and that it shall be lawful for the said judges to select one of the persons nominated to nil u ^"/'«^«^o'*' '-^"'^ the like form shall be observed on each and every occasion of a vacancy occurrinff in the spe"cHvX' *^' '''^ "''"'''''' ^'' '^'"^ '^"'"''^■ .J: i^"i ^^ '' ''"'*^*^'' enacted, that notification shall be son wV f ^ff et«7 of the Court of Justice to each per- son who shall be selected in manner aforesaid, and in Jase ot any r Jrson who shall have been selected for an asses- sor refusing to accept the office, or neglecting to signify h,s acceptance by written communication dehvired to the secretary aforesaid, within fourteen days from the date of notification, such person shall be liable to a fine of 1500 guilders m behalf of .he colony, and the judges of the Suprrme Court shall certify to the Governir and Court ot l-ohcy that such a fine has been incurred, whereupon, unless good and valid reason for such non-acceptance oi? neglect be shewn to the satisfaction of the Governor and Court of Policy, the said court shall order and direct the Colonial Receiver to proceed for the fine according to 4. And be it further enacted, that each and every per- son who shall be selected in n anner aforesaid to serve as an assessor, shall, within the period of one week from the expiration of the term of fourteen days allowed to ^'^ul *^^^ a<^ceptance of office, and whose acceptance shall have been notified to the secretary, or withiS such period of fourteen days if he shall have accepted the office and desires to be sworn, appear before His Excel- lency the Governor, the Chief Justice or one of the Puisne Judges of the Supreme Court, and take and subscribe the following oath : — " You shall faithfully and truly discharge the duties of ^^ an assessor in the Supreme Court of Criminal Justice for Demerara and Essequibo (or for Berbice, as the ^^ case may be,) and shall deliberate and vote on the final ^judgment to be passed on all criminal trials on which you may s.t, without partiality, favour, or affection. So help you God. ' .Y {,!,, .,i)poin.,uieni oiiaii uc pubuciy iiotii^ied «. d i 2 ft '« » f ; 296 BRITISH GUIANA. f f! in the Royal Gazette of the colony ; His Excellency the Cfovernor or one of the judges being, nevertheless, em- powered to extend the time for taking such oath, if suffi- cient reasons be alleged to either of them to grant such extension of time. 5. And be it further enacted, that the Puisne Judges of the Supreme Court shall have the same power to admi- nister oaths in all cases, civil and criminal, as the Pre- siding Judge of the Court of Justice, styled under the Klt^fothad.'''"""^ *'^ Chief Justice, now has, and 6. And be it further enacted, that it shall be the duty ot each and every assessor to attend the sittings at each session ot the Supreme Criminal Court ; those assessors who are appointed for the Supreme Court of Demerara and tssequibo to attend the sittings to beheld in George- town, and those assessors who are appointed for the Supreme Court at Berbice to attend the sittings in New Amsterdam, respectively; and the proclamations of His r^!! . ""^i^^.^^'A^^""' ^°'' *^^ t'«^^ I'eing in the Royal Gazette of British Guiana, appointing the time of holding such sessions respectively, shall be due and sufficient notice to all such assessors. 7. And be it further enacted, that previous to the bringing up of any person for trial, the names of all the assessors who may be in office for the time being, in the aforesaid jurisdictions respectively, written on similar pieces of paper, shall be placed in a box by the secretary ot the Supreme Courts respectively, to be drawn there- irom in succession by the second puisne judge, and after three assessors are found to whom there is no legal ground of challenge or objection, the trial shall proceed. And that no ignorance maybe pretended of the several orders contained in this ^ordinance, these presents shall be published, affixed, and sent round for general in- lormation. ° There were two other clauses in this ordinance, but they have been repealed by the following ordinance:- BRITISH GUIANA. 297 An Ordinance passed by the Governor and Court of Po- licy on the 2Zd day of August, 1832, to ameid an Ordinance entitled " An Ordinance to provide a suM- ctent number of Assessors to be associated with the Judges of the Supreme Court of Criminal Justice of Jiritish Guiana.' '' Whereas we have deemed it expedient to amend an ordmance enacted on the 21st December, 1831, and pub- hshed on the 22d following, intituled "An OrdiWe to provide a sufficient number of Assessors to be associated df o^SgIV'^' '"^""^^ ^^"^-^ °^ ^"'"-^ •'- Be it therefore enacted that the 8th and 9th clauses of the said ordinance are hereby amended to the effect- that instead of the said clauses, the following shall be and are hereby substituted in lieu thereof respectively :— wl.^i, • u^^ '' further enacted, that if any person, who having been appomted an assessor and whJse name having been drawn as already prescribed in clause 7. shall not be present to answer thereto, or shaU decline to fin/' T^^^^^'l?'^ ^"y '"*^^ *"^^» he shall be Hable to a hne of 100 guilders unless good and sufficient cause be shown to the satisfaction of the judges that such asses- sor IS absent from unavoidable cause, or has good reason for dechnmg to sit on such trial ; and the iSdges shall. d^t"s^nh^''' ^'' r*^V" His Excellency tL governor wf^ 1?"^ ''" ^"^,' ^^' °' h^^« heen incurred; and His Excellency may thereupon, if he see fit, either grant authority to the colonial receiver to proceed by summly execution for the recovery of the said fine or fines, or submit the consideration of this proceeding to the Ho- nourable Court of Policy. "^i- xxo 9. And be it further enacted, that each assessor shall be liable to serve two years, and until the session is closed m which such two years may expire, should the same take place during any such session; and after having served for such period of two years, shall not be compellable to accept the office ofassessor, until after the expiration of two years from the end of such service, provided never- rp^ltl'.i ffi^"^ J^'*'"" ""^^ *^^' he^" elected and ac- cepted the office ofassessor may, at any time during such 298 ml BRITISH GUIANA. period of two years, be relieved from further service on mrtner seivice without the payment of such fine and it shall be competent to the Governor and Court of Policy perfon fro"n? "^^if /^T"^ ^^^"^ '^^^''^' 'o relieve such 1 able to be re-elec ed and to serve at the expiration of two years from the period of his former election orders ront?nJf"°'.?"'' "T^ ^" pretended of the several pushed Xr * "J «rd'"«nce, these presents shall be published, affixed, and sent round for general informa- LAWS. the Mnit" '^%°* *' f'"»™i»sion to General D'Urban An ordinance dated on the 2d Decemhpr ih'ii n«,i ur u j day following, "tb rnntinno .„f^^^™''^'^» 1831, and published on the heretofore pa^ssed en°cS tnH T" '^\''T^'J' ^'''^ ^"^^ ordinances Governor and rm.r^'nfp'r^"'^ ordamed by the Governor or Lieutenant- mate, enact, ordain, and establisr L° fo° S^rd*' f"t ?„r' '.° ooiLt1nretr^"Sf^'v1;e„TeUTL^Tef L°'''"''T '■ '° ( 299 ) St. LUCIA. f.'Sfi This island, one of the Caribbean chain, is situated be- tween the latitudes of thirteen and fourteen degrees nor A, and the longitudes of fifty-nine and a half and sixty and a half west It has Martinico on the north at the clistance of about twenty miles, and St. Vincent's on the south at a small distance.— 4 B. Edw. 261 The soil of St. Lucia is fertile. The finest part of the l^rUoU^ 'Tu^T^ quarter, which is well cultivated and thickly inhabited. The interior is nearly desert JoUnr^T-^'l''^ '^'%t^'''^ ''' ^^^^^-^ coffee, cocoa; cotton, and mdigo. The coffee is said to be sune nor to that of Martinico. Within the last thirty year." tublTtte^^ has perhaps been mor'e C wZ oVq ^ ^b PoP'^lation was 20,918 persons, of onlv 17 il? 7^'\^'h^t^«; The population in 1814 ias only 17 485, of whom only 1210 were whites. Since the C^Tr^V '^ ^r^' ?"^ '^' ^^^^^«" «f th- colony to incJeasfng. '"' '"' '"''''"''' ^'"""'^^ *" ^' °»^^ ™«re St Lucia is 'divided into eleven parishes or districts which bear the name of Castries, Ance la Raye, Souffriere Choiseul, Laborie, Vieux Fort, Micoud, p/as ling, D'E„: nejy Dauphin, and Gros Islet.-4 B. Edw. 274^ The island of St. Lucia was for the purposes of the aclministration of justice united to the colonies of Brit sh Sr'lsS? W r; ^'" "^•'^'^' ^"^°"""^ of the 23d April, A «.^ but that order was suspended by another of the date of the 20th June in the same yea^r. For the mode m which the courts are now constituted see the last of these orders, ante, 274. ^ HISTORY AND CONSTITUTION. The name of St. Lucia is derived from the saint's day on wnicli It was discovered. Jt was not <^;" i«'^" -^l- attempt was made to form a settlement on this island. It X i 4 4 (J I 300 SR. LUCIA. was then taken possession of by the English. Two years atterwards, however, the Governor and most of the set- tlers were murdered by the Charaibes, and the survivors were driven out.--4 B. Edw. 263. In 1650 it was seized upon by the French, but reco- vered by the English in 1664, who however again evacuat- ed It. From 1718 to 1730 disputes existed between the ii^nglish and trench settlers assuming to take possession under the authority of grants from their respective mo- narchs, when m the latter year it was declared a neutral territory. It was formally ceded to the French in 1763 at the time that Grenada, Tobago, St. Vincent's, and Do- minica were given up to the British Crown. It is at present a crown colony governed by Orders in Council, and the mhabitants have reason to regret the cession to the l^rench in 1763, which prevented their enjoying the ad- vantages of a representative assembly in the same man- ner as the colonies just mentioned. The island was cap- tured by the English in 1794, held by them till the peaie ^™iens then restored to the French, and again taken on the 19th June, 1803, and finally ceded to England at the peace of 1815.(1) fo " *»•' LAWS. (2) The laws in force here at the time preceding the last cession to France still prevail, except so far as they have been altered by Orders in Council, to which St. Lucia as a colony acquired by conquest is still subject. With this exception, therefore, it is governed by the ancient law of France, as it existed before the promulgation of the code of Napoleon. The old laws proceed from two very different sources or authorities; some were enacted by the Kings of 1^ ranee, or government at home, and others by the Go- vernor and Intendant jointly— the local authorities.— ?^®"?.oL^°"^™°"^' ^^P^""^ ^•e'^'^ive to the Slave Popula- tion, (1826,) p. 16. * (1) 4lh vol. Raynal's East and West Indies ; 4 Edwards and How- ard's Laws of Colonies. (2) See ante, p. 3 to 16, on tlie general topic, iiow far tlie colonies arc subject to tlie law of the mother coun- trv. ST. LUCIA. 301 The two principal laws emanating from the government at home are the Code Noir of 1685%pproved^ancl si^ by Colbert, and the edict of 1786. The last though seldom quoted, will be found to include soL very whofe- LAW OFFICERS. nrlf'V.r •^''^'' °^ *^? ^"^^^" ^'*^ ^n France bound to protect the interests, and are the professional advisers of all persons who from their youth or mental incapacity, or from being under the power and authority ot another (such as married women) cannot be called free agents. Ihe Procureur General and Procureur du Roi are not allowed to take private practice; their substitutes are, as they merely replace them occasionally. Pigeau's defini tion of the Ministere Puhlu, (Traite de fa Procedure « r\*"V* P- ^'^^/.^ ^^ particularly clear and in pobt. By the Mtnistere Public is to be understood the Pro- cureurs du Roz and their deputies in the tribunals. The law has established them to watch over its execution, and to act as guardians to all that which relates to public order the condition of men, the rights of those who are not able to defend themselves, and finally the regularity of all J urisdictions. It is therefore necessary that tu sub- jects of this nature should be communicated to them."— lb. lo. Mr. Jeremie, from whose papers these statements are th^'ll'n?" '"^ -a"^ *}'V" consequence of the terms of ^ • V *'^ considered the Procureur du Roi to be ex k i 1^ t • 4 1 4 H '« i! if PARTICULAR LAWS. Marriage Property. By the custom of Paris, and now by the general law of France, persons marrying place part of their property hi common (en communant^); of this the husband has the admuustration during coverture ; another part they re tarn for their private or separate use : tlu« i« the pro^l 302 ST. LUCIA. if ■■M: '!,. which should not be confounded with the propre au suc- cession; in the latter case, propre signifies a real estate derived by descent, as distinguished from a real estate acquired by purchase.— House of Commons' Papers on the Slave Population, (1826,) p. 3. Ranking of Creditors. In attachments of personal property the first creditor attaching is preferred. Creditors acquire a preference by the arrest or saisie in execution, and not by the date of the debt, or even of the judgment. This is the case in the city of London with respect to property hi the hands of a garnishee.— lb. p. 4. Mortgages, No proprietor, whose plantation is under mortgage, nor his attorney nor agent, shall sell or otherwise transfer any of his plantation slaves, and thus separate them from his plantation, on pain of being punished as a StelUonaire or person guilty of fraudulently transferring real property and such sales, transfers, &c. shall be null and void. StelUonat. This is a crime I have not found mentioned in Hale, Hawkins, or any other authors on the English Crown Laws. The punishment awarded by the law of France is either a fine or imprisonment, but the chief benefit derived by the creditor is that a debtor guilty of "stelhonar is liable to personal arrest, that no exemption will avail him, nor would he be admitted to make cession. >stelhonatus crimem etiam infamum irrogat, d 13. So that he becomes incapable of holding any pubHc office.- - lb. 4. A mortgage creditor wishing to recover the amount of his debts (to foreclose) obtains an order to take posses- sion of the estate ; this taking possession is called "saisie rtelle. He is then bound to let it for a given term of years ; the tenant is " le fermier Judiciairer durin^r this time the creditor goes through various forms required before he can obtain possession to sell it. The sale is called "V adjudication par decret;" and from the day the creditor took possession to the day of sale the estate is said to be " en saisie reelle." " HypotMques et privileges:'— Wivihge is I right of ST. LUCIA. 303 I pieference proceeding from the nature of the debts, as debts lor funeral expenses are said to be privilecred Hypothhiue is a kind of preference acquired by con- tract or judgment, and is totally independent of the nature ot the debt. ^ Hypoth^ques rank according to their dates ; privileges, in the order assigned them by law, without reference to tlie period at which the debt was contracted.—Ib 5 Landed property is here of little value, scarcely a ^elfth-part of the best cultivated estates is turned to use. Plantations, even with extensive buildings upon them produce, when sold, little, often nothing more than the estimated price of the slaves, and yet slaves are not hable to mortgage. It follows that mortgage deeds are, in eftect of no value or benefit to the holder; so that the West India merchant who had, when St. Lucia became a British colony poured large capitals into it upon the faith of contracts which he thought binding, now begins to dis- cover, what the planter who had so readily bon-owed was always well aware of, that he is not only deprived of the privilege or preference to which his mortgage seemed to entitle him, but that he has no kind of security whatever. Ihe slave cannot be withdrawn by the creditor from the land, and sold m satisfaction of a judgment. The person of the debtor is protected by law, and the remedy by saisie reelle it would be useless to adopt, since it is per- lectly evident that as long as the owner can sell and re- move his slaves, he will,-probably before the commence- ment, but certainly long before the conclusion of the suit,--thus leaving for his creditor the land and buildings """lb"**!! °^^ ' *^^ expense incurred to obtain them .'1 n I 4 Ik * COLLECTION OF LAWS. "Thlfrn^ TM*^''' ^'"m '\ *^''. """^^*^°" ^"titled rhe Code of Martinique," lately printed in live volumes. AH the papers, registers, and archives of the re^nstry of bt. Lucia having been burnt at the fire which destroyed the town of Castries in 17.90, there are at present existing m die registers of this depot only some laws, ordinances, and rules which have been made and published by the different English Governors since the re-establishment of 304 t ST. LUCIA. the tribunals by General Prevost in 1800, with the excep- tion ot some acts of the French government while it occupied the island after its restoration to the French by virtue of the treaty of Amiens, ui, to the conquest made by the British arms in 1803. liut these acts have not been much followed since the new conquest, as the colony was then ceded subject to the laws which ruled it before Its last restoration to the French government. -Howard's Laws of the Colonies, .579, 580. The Supreme Court * this island is now constituted according to the provisions contained in the Order in Council of 20th June, 1831. (See ante, 274.) f ',1 nil !i l I ■ ( 305 ) TRINIDAD. At the entrance of tlie Gulpli of Puriu, which it land- ocks, and stretching from the mouth of the Orinoco to the mountamsof Cumana, between the tenth and eleventh degrees of north latitude, and the sixty-first and sixty- third degrees of west longitude, is situated the island of irn)i(iad. Its extreme breadth from east to west is between sixty and seventy miles, and fifty miles from north to south. Irom its peculiar shape, however, its general breadth is much greater from north to south than trom east to west. In form it is compared by the Spa- niards to an ox hide ; but by a recent map constructed Ironi correct observations made by M. de Humboldt and m. Churucca, it appears rather to resemble a square with a semicircular piece cut out of its western side, so as to make on that side an irregular crescent, one horn of which IS turned towards the Orinoco and the other to the peninsular extremity of the province of Cumana. Circum- scribed by the main land and the island, is the Gulph of 1 aria, which affords to vessels of every dimension a secure shelter and an excellent anchorage. The channel be- tween the Orinoco and Trinidad is called the Serpent's Mouth ; that between Trinidad and Cape Paria is inter- spersed with islands, and bears the name of the Dragon's Mouth, which was given to it by Columbus. The name ot Irinidad was also given to the island by that illustrious navigator, from the circumstance of three of the highest peaks of the mountains having first appeared to him on his approach to the land.— 4 B. Edw. 288, 289. Trinidad is abundantly provided with excellent har- bours among the principal of which are Chagaramus, Puerto d Espana and Naparima, all on the Gulph of farm, and the sod is deep and fertile. The principal exportable. produce of Trinidad consists ot sugar, rum, coffee, indigo, cotton, and cocoa. The cocoa i I i i t 3 i 4 I X 306 TRINIDAD. of this ialnnd was always celebratud for Its excellent quality, being considered as superior even to that of Ca- ruceas.— 4 U. Edw. iii)5, U9(i. M ■ HISTORY AND CONSTITUTION. The island of Trinidad was discovered by Columbus on the 31st of July, 1498. The discovery was made in his third voyage, and the island was named by him after the J loly 1 rinity. It appears from the account of Ilerrera that he was drawn by the force of the currents caused by the descending waters of the Orinoco into the Gulf of Paria, which it IS said he called Golfo Triste, from his having at hrst despaired of finding an outlet, and consequently be- lieved that his labour was entirely lost. Having been in great danger in a violent storm he made a vow to give the name of the Holy Trinity to the first land he should find soon after which a sailor in the main-top saw three points ot and, whereby the name fitted every way to his vow. Columbus at length found egress through the channels on the north, to which, on account of the stormy navigation he gave the name of the Dragon's Mouth. The Spa- niards did not attempt to make any settlement on the island till ninety years subsequent to its discovery. Jf'J^as almost immediately afterwards captured by Sir W. Raleigh in 1595, on his way to Guiana in search of 1.1 Dorado, but it speedily fell again into the power of the Spaniards. Previously to the year 1783, so imall had been the efforts made to render this colony as valuable as its natural resources would have made it that a single vessel belonging to a Dutch house in St. Eustatia, and making annually two or three voyages, was sufficient to carry on the whole commerce of the island. M. Roume St. Laurent, a gentleman of Grenada, and Don Joseph Chacon, the Governor appointed from Spain, were the first persons to whom the colony was indebted for its prosperity. In 1 797 Trinidad was captured by the troops under Sir Ralph Abercromby. It was ceded by the Spa- niards at the peace of Amiens, and has since continued in OQ7 ^Qn^^^^^^" °^ ^^^ British.— 1 B. Edw. 71, and 4 lb. TRINIDAD. 307 LAWS. (1) hlhhcA iTtVn".*'"'''*' }'T "'^ ^^^ '"^» "^ Snain ns esta- blished at the time of the conquest by the Knelish with jm-h alteratons only as have been made in *^ em bv Inw P .1 • ^" *" 8^"^^'*' intention to alter the Spanish o hefr auth''-?"^;-"'-^'^^* ^""'^^^ ''«^ ^««" expresSas J^me fsn ""7',- '^^ '^ " proclamation dated on the 19th and win. ' ""'.^I'-^ct'ng »'ow appeals are to be allowed, and what security is to be given by appellants, are forma recent Ordfr. r V'^ P'-odamation, which, until the recent Orders m Council, was considered as the legal con- stitution of the colony, is in the following terms:- Trinidad. ^^ho n^?^? v^'®'?"^'' ^^^ P""^^ «*" Wales, Regent of the United Kingdom of Great Britain and Ireland, in the name and on the behalf of His Majesty. A Proclamation. Whereas, by our commission or letters-patent undpr the great seal of England, bearing date at ^our cou^'a M. James s the Slst day of October last past, we did fn the name and on the behalf of His Majesty ^onsSute and appoint our trusty and well-beloved Sir Ralph James Woodford, Bart., to be our Governor and Commander^ dad, as well as of all our forts and garrisons within the letrrs^nlt^^ ^J '^' -^"^^ ^"-P^^* ^^"'^^ commission or ' Jettf^rs-patent and our instructions therein mentioned and referred to will more fully appear: And whereas we acting m the name and o'n the behalf of HrMajesT? have thought fit to issue this our proclamation and we d^o therefore hereby in the name and on the behalf of ffis (1) See ante, p. 3 to 16, on the general topic how far the colonies are subject to the law of the mother countr^r. (2) Ante, 23. and Jolmston's Insti- tutcs of the Spanish Law, Preface, p, 7, x2 |: 3 308 TRINIDAD. 1 '': 'il Majesty publish, declare and proclaim that for the present and until our pleasure shall be further signified, the ad- ministration of justice and police in our said island should, as nearly as circumstances will permit, be exerc: ed by our said Governor in conformity with the ancient laws that subsisted within the same previous to the surrender ot the said island to us, subject to such alterations, regu- Jations, and improvements as may l.:we been since mado and approved of by us : and subject also io such direc- tions as our said Governor shall have received, or may hereatter receive from us, under our signet or sign manual, or by our order in our Privy Council, or through one of our principal Secretaries of State; or to such deviations in consequence of sudden and unforeseen emergencies as may render a departure therefrom manifestly expedient. The proclamation then went on to direct the manner in which appeals should be allowed from the inferior to the supreme courts in the colony, and from them to the King m Council This part of the proclamation is now super- ^^ ^^>^.^ x^^ ^^''^^^ ^" Council of 20ih June, 1831. (See ante, 280.) ^ Mr. Maddock and Mr. Dwarrishad prepared questions relative to the administration of justice in the colony when Mr Henry arrived there with authority to co-operate with them, and to act as aenior commissioner. Mr. Dwar- ris was unfortunately compelled, very shortly afterwards, to return to Kngland on account of ill health, and the examinations were taken by Mr. Henry and Mr. Maddock. Ihese two commissioners then sailed for St. Lucia, where, before the report on Trinidad could possibly be pre- pared, Mr. Maddock fell a victim to the climate. The examinations were afterwards brought to England by i; TU' "Jl^ *^^ ''^P'''"^ '''^« the joint labour of him- self and Mr. Dwarris. No English statutes are believed to be in force in this island, with the exception of the Mutiny Acts and those of navigation and trade, but there are a variety of local laws made by the authority of the King in Council or by proclamations of the Governor for the time being, by v-rtue of the powers incident to his office, which latter we shall mention more fully hereafter. The Spanish laws which are of authority in this colony are such as were in force at th^ Mm^ ,^ft\^a r^^^f-^^ „f *k1 island (l^ebruary, 1797,) and that have not since been re- TRINIDAD. 309 pealed by His Majesty the King of England. Of these aws there are some compilations and digests ; v^z wha! s termed the Dereoho Real de Castilla, t^e luer^jZio the /«^.o F,e;o rf. Castilla, the I'uero Real de Espat' ^L?f ^. "'v^"'' ^5^7, '^'•^'^^^'' Ordenannento Ti, vissima ^^r^^^f''?'^ d' <^«^'f «. the latest edition ; No. ttssima Recoptlacton, or such of them as were enacted ITZt!"" ''"'' '"' ^'^ iiecopilacion dei:™st ford^nsrt^™^*r io^^'^ Governor, Sir R. Wood- ford (18th December, 1813,) all Orders in Council and proclamatjons are ordered to be enrolled and recorded Spanish Laws in Force, (Observations on.) By a proclamation of the 19th June. 1813 the adm! mstration of justice and police is direct;d to be continued existed Z-^ '\'\ '■^"'^^"^ ^^"^ ^"^ institutions that sucrlr'T"' to the surrender of the island, subject to from timJto Ume" " "'«^'^ '^ "'^^^^"'^ *« ^^^^ ^'--" any"thr u'" ^^"'^''^^y' therefore, the ancient Spanish law, and the iioman law, as its auxiliary, in cases where the resSed f ^ '^ considered' so far as they're not ItltZt ''^^/"^^^^"^"t regulations) as the common and statute law of the colony, and as binding in all cases not otherwise especially provided for; and ?ha^he EnXh laws and statutes, except those regarding navicration" re srcrt'he"cV"''' r^' ^^^l Mutiny' Acts,\nd;h:rmade' cialTv nnhV r^"" °^^he colony, in which the island is spe- iv "°^'^^^' ^^6 "ot binding. ^ VVith respect to the British act 5 Geo. 2, c. 7, (for the 7 on'fl"^-'''"""'^ "^ '^'^'' ^" '^' plantations,) a variety ?t waTfnt"^ °P-T""'i '^^!? *« ^^^^ prevailed, whether hiTL, K^ considered in force or not in Trinidad ; but O der in r/''"?,' V' \' t^'tr^y ^y '^'^ '^^^ ^'^"^^ or.n lows :~ '^'^ ^^^ '^""^' ^^1^' ^hich is as fol- merctntlle^lfhr' '' ]' expedient to facilitate the proof of mercantile dents. nnrJ fn lo-r-ni;,,^ *i,o i--^:.^^ , h t , honk Iro^r.^^ ■ j~ "i '^"' "5^^5"^e ine icsumuuy ot clerks, book-keepers, and others employed by merchants ; it is k t i t I m 4 fi 4 f 310 TRINIDAD. '#^ hereby ordered and directed, that the declarations on oath of such persons, in all civil proceedings wherein their employers are parties, shall henceforth be taken to be good and admissible evidence in favour of sui-h their eiiiployers, any law to the contrary notwithstanding."— 1 rinidad Commissioners' Hep. 3'2. COLLECTION OF LAWS. There is no complete printed collection of the Orders in Council and proclamations, &c. by which changes or mo- dihcations have from time to time been made in the Spa- nish law ; though there is such a printed collection of those which have been promulgated since the administra- tion of the government by Sir Ralph Woodford ; most of the latter are to be found in Johnston's Institutes of the Caws of Spain. Of the MS. proclamations of former Go- vernors, the judge of criminal inquiry thought no person had a complete collection ; but the chief justice said they were deposited in the respective offices of the authorities by wluch the same had been issued, and that any person desirous of consulting them might be enabled to do so upon application to the respective authorities. These manuscript laws may be given in evidence by producing the originals or duly certified copies— Trinidad Commissioners' Report, p. 6. i : COURTS IN GENERAL. The courts established in this colony for the administra- tion of cml justice, at the time of the commissioners visiting the colony, were the Court of Intendant, the Complaint Court, the Court ofFirst Instance of CivilJurisdiction, the Instance Court of Vice-Admiralty, and the Superior Court ol Appeal of Civil Jurisdiction ; the Governor was besides vested with the special power of exercising the authorities and jurisdiction, whether appellant or original, which were theretx)fore exercised in the Courts of Audiencia in the city of Caraccas. The courts established for the administration of criminal justice, were, at that period, the Court of the Alcaldes in Ordinary, the Court of Criminal Inquiry, the Court for the trial of Criminal Prosecutions, and the Court of Appeal in ail cases of cnnr]pn-in»finn tn .lonfK " - ~ . G„.. -i* iU ijcrcjai ui llicac *%'fl TRINIDAD. dH courts and the offices connected with them have latelv been abohshed or remodelled. (3) ^ conns ITthlu "'"""^ appointed judges in the foregoing courts, with the exception of the Alcaldes in Ordinary "^1:::^:^ *'^ assistant.judges in the other colonTe Z) Barristers and Attornies. court^ "houlTn'"'^- *^'^' Pr°"!«ctingas counsel in these Sand Tl P•''^"'°"^'y .^^7 been called to the bar in c.ngiand. 1 hey are admitted to practise as licentiates by ^L^r^ tT' 7r'^'"g the powers of the Royal aI thefr office ^'^ ^" """^^ ^'^^ ^^'^ ^"^ performance of Then- license is not (says the chief justice) expressed to be during pleasure, and by the law s'lch licenses are re- vocable, upon just cause, by the Royal Audienoia. exnreLidtfbf ?""•"""' /""^"""^ ^'"'"^ **'^^ '^^ "^^"«« i« expiessea to be during pleasure UpiTni! """""'^^ '" ^^"' '^'^"^'^ ^° "°^ a^t as attornies or so- licitors, nor IS It required that these latter should have previously served a clerkship, or kept any number of terms in England or m the colony. It is the practice, however, for persons applying for licenses to act as attornies and solicitors, to p/oduce I cer ificate of some practising barrister of the service of ZlV^^''??! '" ^"' "^""' ^"^ "^^ ^"« knowledge of the practice of the courts. ^ For this license they pay no fees. dut'efofttirrffic^:'^ '"' ''' '"^ P^^'^'-'"^"^^ '' ^^^ There is no rule in any of the courts of this island pro- hibiting a party from being heard in person, or the resident bph^lT.Vr '" '•"' party from being heard in person on Dehalt ot ins constituent. (3) Tlie Court of Criminal In- quiry. Tribunal of Appeal in all cases of condemtiation to death, Superior Iribunal of Appeal of Civil .furis- diction, and Tribmml of the Royal Audiencia, hav< ,11 been abolished by the Ordtr ; tJouncil »f the 20th June, 1831. (^ ce ante, 280.) The offices of Father General of Minors. Defender of the Absent, and Depositario General, have also been abolished by the above order. And the offices of Taxador, Judicial Re- feree. Liquidator, and Partidor, have by the same order been consolidated, so us to constitute one office. i- k I I i t 3 } ^N 312 TRINIDAD. M4 1^ lu^L'^Tf^' *^^ •'"^S^ °^ ^"'"^"^^ •nqui'-y said, is to ™ilfori' fe^^^^ '' *'^^^ officers. Jrrin'idad Com- Court of the Intcndanl (and here' a of Escheats.) This court has jurisdiction for the trial of claims of the durhJ Ta ^ ^r' «^ E'^^^l^equer. in respect of debts anrlin, ./"''/'. *° ^^'^ ^•'"*^"' escheat, and the like, ana in matters relatmg to crown lands. rntl '^ .'"''"'"^ ""^ i;^''""^ '^ ^^^« the power of fining for annrlT^ 'i ?/ ^nforcmg (the judge of criminal inquiry apprehends) the payment by imprismnnent. ^ ^ 1 he Governor sits as judge in this court, and is assisted by his assessor They receive in these capacities no salaries. Anohl TloA%- /'"Jol 'h^^ ^'"^ e"t''l«d to under the docket of 23d July, 1816, are paid into the .best of the Property does not often esclieat to the crown for want oi neirs. The chief justice whs not aware of any precedent of slaves bem declared escheated ; but slaves when es- cheated would be taken possession of by the escheator- general, and worked for the benefit of the crown. Cases ot intestacy among the unmarried coloured inha- bitants are not, it is said, frequent. Illegitimate children of an intest te, whose property has escheated for want of heirs at law. are entitled to one- sixth allowancr^^'^^ ancestor, by way of alimentary The chief judge said he was not aware of any inconve- nience having arisen from the mode of administration of Rf ^\ 's ''^'^' escheat.-Trinidad Commissioners' Court of Criminal Trial. SpI^'\''''"[1 ,?'^?oS^^l''''^^ hy ^" <^"Jer in Council of September 16th, 1822, which declares that it shall consist vin 'T •'."'.? ^-^ president), the assessor of the Go- nlS V-u ^'?'^;Vn ordinary, and the escribanos of the herein )""" ^ ''''^ ^"^ ^''^ '" *^^ '^"^^ ^^P^^^'y The court sits in the town of Port of Spain, whenever there is any cause before it for trial. TRfNIDAD. 813 The subject-matters of its jurisdiction are all criminal mtv'theZ""^' ", '^' -l-d»-ith the excepti of petty thefts and misdemeanors, which are heard before anS TstT °^ ^'\^ f '^t^^ ^" ^'-^--y' ""der the 18th and 19th clauses of the above-mentioned Order in Council. court. ^"«^"ey-General prosecutes offenders in this sla?.f nf ' J0'"»»itted by free coloured persons against slaves as well as others, are tried in this court; but the tlTr t'^ (^P"^l^"» «^' «fl^'--« by fre; pe sons agamst slaves) " none such have yet been brought before undl7fbp''^''f" ^'n^^ ^f'.^"'' ^''^ *"^^ i" this court under the Order m Council of the 16th September, 18^2, and the proceedings, as regards the modes of trial and its lespect the same as those against free persons. Leffal assistance is afforded to themrif the owner will notinfur the expense. "ii-ui All offences which would be capital in a free person are also capital m a slave. Prosecutions are opened by counsel, who are not limited There is no jury in this court, but counsel address the court for the prisoner, and no inconvenience, it is stated has been found to result from this practice. * 1 he depositions of the witnesses before the iudffe of criminal inquiry are, by the practice of the court, always and'i4"Jve^^^^^^^ but ..'.a .oee evidence is also r'equirJd uZ^V''f''T'\^ "1^ P^^^' '" ^^'' ^«"^* ^^^'' fro"' those used n England ; they are entered in record, and such records are preserved in the office of the deputy-secretarv and registrar of the Cabildo. ^ ^ s>ecretary The trial is according to the Spanish law, subiect to the Oi;der in Council of 16th September, 1822. ^ Ihe chief judge alone, a^ president, sums up the evi- dence to the court, and afterwards takes their opinion as to the guilt or innocence of the prisoner, commencing with the junior member. He also, as president, pronounces the sentence of the court. ^ "uuces The judgment of this court cannot be arrPsfPd after trial, but is final in all cases, except those of condemnation t i t m 4 % i 4 :P 314 TRINIDAD. m. ill i! to death, in which case an appeal lies to the Governor m Council, under the order of 16fh September, 1822. The Governor has the power to reprieve and respite, and to pardon in all cases except treason and wilful murder. lie tounds his opinion, it is supposed, on the original pro- ceedings and on the report of the chief justice. A nolle prosequi is never entered up by the Attorney- General ; this power is not defined by the Spanish law, nor by the Order in Council constituting this court. The records of all prcr. -f -, in this court are deposited in the office of the c. ; ecretary and registrar.— Trini- dad Commissioners' ^. 9, 11. Court of First Instance of Civil Jurisdiction. This court derives its authority under the Order in Councd of 16th September, 1822. The subject-matters of its jurisdiction are all civil suits and actions m the colony. It is said also to have jurisdic- tion over matters in aquity. It is composed of the chief justice, the judge of criminal inquiry (when the duties of his office will permit), and the two alcaldes in ordinary. The chief justice receives a salary of £2000 sterling per annum, his fees are regulated by the docket of 23d July, 1816. The chief judge, and judge of criminal inquiry, and one ot the alcaldes m ordinary are sufficient to form a court. The chief judge and judge of criminal inquiry are lawyers by profession. The alcaldes in ordinary are cho- sen by the board of C biido, from the most respectable inhabitants of the colony. The officers of the court are one escribano (or secre- tary), one clerk to the judge, and one judicial referee, hquidator, and partidor, all appointed by the Governor and holding their offices during his pleasure. ' The clerk of the judge receives a salary of £500 cur- rency per annum, and no fees. The pleadings and the rules of evidence in this colony are derived from the Spanish law. The latter have been, however, in some respects, altered by the several procla- mations issued for that purpose. In case of an absent defendant having no attorney in this island, the rules of this court require seryice of pro- cess against him to be made upon the defender"of the I K' TRINIDAD. 315 absent, and among absentees are included those persons who have never been in the island. There is no power of arrest before judgment or execu- tion, except under very special circumstances. Ihe attachment of debts due to a defendant in the hands ot a third person is seldom resorted to here Jt is no^ however, attended with much expense. Ihe chief justice does not consider the act of 5 Geo 2 c. 7, for facilitating the recovery of debts in the West Indies, to be m force in Trinidad. The judge of criminal s:^5:Tm.!:Lo:^; -" *'^ ^""- («"' -« In an action on a bill :>f exchange or promissory note, the practice is for the plaintift' to present his account fo^ principal, interest, damages, and expenses ; and if such statement be objected to by the defendant, it is either es- tablished by proof, or referred to the judicial referee for his report. 1 jF^,f"t'0" operates first against personal property; in default thereon against real property ; and in default of both, against the person. Executions are never, when taken out, suspended and used as securities. The costs in this court are taxed by an officer appointed tor that purpose. There is no process in the Spanish law exactly re- sembling the action of ejectment ; but a remedy is afforded lor the attainment of the same end. With respect to adverse possession as a bar to eject- ment, the chief justice said ten years' possession, with title and good faith, if the real owner were present and of aee wou d be a bar ; if absent, twenty years ; but thirty years would be a good bar in any case, except as against the crown and the church. The judge of crimintl inquiry said the rule of prescription was thirty years generally as to realty, &c^, even though possession was acquired with- out good faith ; forty years as to the crown, except as to criminal and civd jurisdictions, and duties and tributes J^orty years are considered time immemorial. It appears that this court has jurisdiction to relieve in cases where a deed has been lost, or where a mistake has been made m preparing a deed. A mortgagor can in all cases redeem the mnrtoao-P ».r«- perty by paying the mortgage money and interest. °Mort- !T !■ I i; i m 4 ',i if ? 316 TRINIDAD. I gages in fee do not seem to be known to the Spanish A mortgagee can recover his mortgage money not paid at the tune appointed, or obtain possession of the mort- gaged property by a suit in tliis court. Tacking seems to be known in practice at Trinidad as well as in England. Trusts are enforceable in this court, and executors or trustees can be called upon to give an account; such account IS taken by the court itself, or by reference to the judicial referee. It is not necessary that every agreement respecting real or personal estates should be in writing; such agreement can be specifically enforced or annulled. Frauds are considered in this court, and relief given where fraud is established. ^ The property of intestates is distributable according to the rules of succession and descent by the civil law. Ihis court has jurisdiction in cases of bankruptcy and infancy, and m respect of the guardianship and main- tenance of infants, also in cases of lunatics and idiots. tession of 2Jroperti/, I e. where a debtor voluntarily cedes all his property into the hands of the court for the benefit of his creditors, is in practice here. It is not limited to any particular class of persons. So also is the compulsory remedy originating with cre- ditors to obtain payment from insolvent debtors, which is termed a concurso of creditors. The court has jurisdiction in cases of application by a wite for separate maintenance on account of the miscon- duct of the husband. The chief justice said he was not aware of any means of obtaining a divorce. Legacies can be sued for in this court; and if a hus- band sue for a legacy left to his wife he is not bound to make any settlement on his wife or children in respect thereof. *^ There are no proceedings in this court similar to in- junctions m England ; but the law affords a remedy in all those cases in which injunctions are usually applied for such as to stay waste, &c. by an action to restrain, or to obtain security till the question is decided. The court has jurisdiction in all cases of manumission by deed or will. Formerly a preference was given to all debts necessarily TRINIDAD. 317 as 7,7 '■„"'' •"'""• '*ri'i^'' Colonies. "'" no?]'refuiir?n'r™'°" '■■":,fPP«»l '■> oase of .he Gover- iior s reiusal to receive a will for proof Cases of contested wills are decided'in this court All wil s to take effect ought to be registered wiH.?^ one month after the decease, of the testator or « J. .k executor has notice of his de^eas^ andTf l^'o^n ap^^^^ rSe'rbri t- '^ "^^""^^ ''''' ^» cleedrsh3d be" U^ In V ""^ ^•"'^ '^ prescribed for such reeistrv Hills are. however, admitted to be reaistered a ITr^' after the expiration of the month. DeTentsare/ui^^^^^^^^ t^s^cdony by civil law.-Trinidad CommissiS^Re" Appeals to the King in Council. Anpeals to the King in Council were provided for hv proclamation of 19th June 1813 whpro^ir • ^ Court of Admiralltj. •8' 1 II' I* 4 m aiB TRINIDAD. Ill The officers of the court are a registrar and marshal, if, ^^Sl^^t"'"'' 's u patent officer, the marshal is appointed by tiie Governor. They hold their offices during plea- sui-e, and they give no security. They are, however, under the control and superintendance of the court; they nave no salaries, but receive fees. The court follows, in its decisions, the civil law for ma- ritune cases, and the acts of parlian^ent for revenue cases. I roceedings for the recovery of seamen's wages are very seldom mstituted in this court. There are no Admiralty Sessions held in Trinidad, and no authority exists there for the trial of piracy and the like.— Tnn. Comm. Rep. p. 19, 94. Complaint Couri.(4) The Court of Complaint in this ialand has a summary jurisdiction in i-espect of demands not exceeding 1000 dollars (or £500 currency), the power of which is exercised by the chief judge, under a proclamation of 31st Ja- nuary, 1823. He receives no salary in this especial capa- city. The fees which he receives are those allowed by the docket of 25th November, 1823, which also regulates the costs on suits in this court. This court tries cases of unliquidated damages. Advocates and solicitors frequently plead in this court, but the parties may, in all cases, support their own causes. The plaintiff' and defendant may be examined on oath in this court, under all circumstances. Court of Alcaldes in Ordinary. (5) The Alcaldes in Ordinary (who, it will be observed, sit with the Chief Justice in the Court of First Instance of (4) By the 22d section of the Order in Council of the 23d April, 1831, the Court of Criminal Inquiry, the Court of Audiengia, the Complaint Court, the Court of the Alcaldes in Ordinary, and the Court of the Al- caldes de Barrio, were all abolished ; but that order has been suspended by the order of the 20th June, by the 23d section of which only four of these courts, namely, the Court of Criminal Inquiry, the Tribunal of Ap- peal in all cases of condemnation to death, the Superior Tribunal of Ap- peal of Civil Jurisdiction, and the Tribunal of Royal Audien^ia. are abo- lished. During the continuance of the suspension of the first order, the three last courts mentioned in it at abolished, will of course continue their functions. See ante, srd, 280. (5) See the last note. TIUNIDAD. 319 Civil Jurisdiction, as assistant judges,) are also empowered to hold a separate court by an Order in Council of Ist fhT""^ '''/^ff' ^'"'^> "•'^"^^^ *«t»> «"^l »9th, directs that the alcaldes in ordinary shall, by turns, two days in each week or oftener if necessary, sit in open court fo? the earing and determining of all such petty thefts, assaults, breaches of the peace, contraventions of the police laws and regulations, and all similar misdemeanors, as by the chiet of police, or by his assistants, shall be brought be- ore them ; and the alcalde shall have power to adjudne the prisoner, on a verbal and summary hearing of the parties in the prisoner s presence, to a fine not exceeding £60 cur- rency or to imprisonment for any term not exceeding two months, with or without hard work, or to work in chains in cleaning the streets, or other public work, for any time not exceeding the like term, or to corporal punishment." llie alcaldes in ordinary are appointed annually by the lenTr'r'''^^ "^ C«i.-Wo, and confirmed by his Excel- lency the Governor, as president of that board. 1 hey are chosen from among the most respectable in- habitants of the colony. They receive no salary, fees or other emoluments.-Trin. Comm. Rep. 20, 21. ' Alcaldes de Barrio. (6) By proclamation of 19th January, 1814, iurisdiction is Inf r ^^'^ -T'^' "^ P^^^' °^ ^^•'t to t»»e amount of twenty dollars, with an appeal M the chief judge if made withm five days after sentence. ^ The Alcaldes de Barrio arc also officers of the govern- ment for the police of the town. ^ They are elected by the illustrious board of Cabildo from among the freeholders of the town, and continue in olhce for one year. Re^l'liToiiTsr '^'^'^ ""' emoluments.-Trin. Comm. Escribano, or Registrar of the Supreme Court. This officer is appointed and removeable by the Gover- nor. Mo confirmation from home is necessary. It % 4 1 *,-•" (6) Sec the note (4) in the preceding page. im THINIUAU. ■ » I h r t ft He liu8 no salary, but is paid by fees. lie records the proceedingh of the court, takes iniiuites of legal pointH, fiigtiH ()r(U;rs, and issues the notices of these orders to the several parties in the cause, (for which he charges by the tariff,) and in cases of bankrujjtcy or concurm he notifies the fact to each creditor, however trifling his chtinia, (which is very burdensome to the estate.)— Trin. Connn. Hep. Ji4, 178. liegistruj of Deeds and Wills. This is a patent office, and its duties are discharged by a deputy. He is paid by fees and acts as clerk of the council, which duty is attached to his office of registrar.— Trin. Comm. Rep. 25, 18Ji, lUG. Algiiacil, Mayor, or Provost Marshal. This officer is appointed by the Governor and remova- ble by him. He gives security in .^J^OOO. He is paid by fees according to the tariff, and executes process, &c. in the different districts of the island, by de- puties appointed by him.— Trin. Comm. Hep. 26, 18G. Cabildo. The " Illustrious Cabildo," as it is termed, of the town of Port of Spain, may be described as being in the nature of a corporate body and possessing the right of making- certain municipal laws and regulations. ** Its powers originally were very extensive, and certain of its members (for instance, the Hegidors, who had equal rank and honours with the nobility,) were entitled to oreut privileges. ** One of these, it is said, was the power to suspend the execution of any of the orders of the government that might be deemed impolitic or unjust, until a representation could be made to the Sovereign ; and on the proposed introduction of the Order in Council, 10th March, 1824, for regulating the treatment of slaves, application was ac- tually made to the Cabildo to exercise their powers, which they very prudently declined to do. Since, however, Trinidad has been in possession of the EngHsh, and a council has been established, the greater part of those TRINIDAD. 321 functions of such nt least us under the new system it was found desirable to retain.) have been transferred to the Governor and Council. And the powers of the Cabildo seem at present to be confined entirely to matters of mU nor police, such as to regulate the price of provisions, the S"ren!;^'Vr^'"'^'^'^^ T} "^^^^^«' ^»'^ construction anc repairs oflugh-roads and bridges. &c. &c. in Ordin.? .? " ;;>'nP"«cd of the Governor, two Alcaldes Of thn M^ ''f Procurator Syndic, and ten Ilegidors. Ut the latter, two have been rendered perpetual by the present Governor, the others, like the alcaldes, serve in rotation, lour going out of office annually, after having, in conjunction wuh the remainder of the Cabildo, electeS IT V. 7f '^u ^h^" successors, whose names are then irep""50 ''"°' ^"' ^"' ^PProval-Trin. Comm Caol At tome?/. This officer is appointed and removeable by the Cabildo or city corporation ; he has a salary of £300, but no fees.' We IS liable for escapes. In certain cases he acts on be- lawv5 ^H^"^'' ""' '*'''."' ^^^"c^t^. though he is not a lawyer. He never receives a prisoner without a written commitment stating the nature of the offence.-Trin Comm. Kep. p. 27. Persons of Colour. Free persons of colour can sue and be sued, and labour under no disqualification as regards their evidence. Ihey are tried for capital and lesser offences as white and other persons are, and in the manner prescribed by THn.^'comm.'s.'^^"""'' ^'*' September, ^8...-Rep! Particular Laws. — Ganancias. The right of the wife to a partnership in the property acquired during marriage by onerous title, is teamed "ganancias." This right is founded on the partnership or society supposed to exist between the husband and the wife ; because she, bringing her dote, gift, and parapher- nalia into co-partnership, and he, his estate and property which he possesses, it is directed that the gains resulting r ■k' Ik t i x f 322 TRINIDAD. :j from the joint employment of this capital be equally di- vided between both partners. " Ganancial property is all that which is increased or multiplied during marriage by onerous cause or title, and not that which is acquired by a lucrative one, as inherit- ance, donation, &c. " Immediately upon a division being made of this ga- nancial property, each acquires an absolute dominion as to their moieties. " All property of the husband and wife is presumed common or ganancial, until it be proved to be the sepa- rate property of either. " Prize money obtained in war by the husband is not ganancial, unless his outfit as a soldier for the campaign was at the joint expense of husband and wife. " The fruits, proceeds, or rents of every description of property belonging to both husband and wife, are con- sidered gananciales. " The crime of one does not forfeit the property of the other in the ganancial partnership. " Gains and losses being common, the debts contracted during marriage are to be paid out of the common pro- perty. " But if the wife renounces the ganancias, she does not pay half the debts." Nova Recop and Fue Real.—Trin. Comm. Rep. 34, 35. Wills. It appears that there is no Court of Ordinary at Tri- nidad, but that wills are proved before the Governor under the 8th clause of the proclamation of 5th February, 1814, and that there is no provision for appeal in case of his refusal to receive a will for proof; nor indeed can there well be, when he is the sole judge of the Court of Appeal in the island. This seems to call for some re- medy.— Trin. Comm. Rep. p. 51. There are two sorts of wills, open (abierto), and closed {cerrado). The open or nuncupative will ought to be executed before a public escribano and three witnesses (7) (7) By Order in Council, 8th June, 1816, all wills, &c. made within the island of Trinidad shall be attested by three male witnesses, domiciliated inhabitants of the place and quarter wherein the same shall be made, or two such witnesses and the command- ant of such quarter. % TRINIDAD. SfS'J a?v Inr f .H^ If .tl.e testa or is blind, five are neees- XL' ^^^"^ '' "** escribano, five witnesses of the nZliT "^9,f ««?;y' "r seven non-residents. The closed or written will, which is made in secret, is delivered to the escribano, signed on the outside by the testator anS se- ven witnesses, with the attestation of the escribano 1 he spendthrift cannot make a testament. He shall be pro iibited by the judge from alienating Hs proper J pose of his property, it is an indisputable principle of the laws of Castile that if he have children or grand-chSdren LT:*-"^"'"'^/"^*^'"^^ '^'^ ^'^ ^^'-^ «"d ean only iZZZ^^TA^Af'T^^'' ^^™°"g ^^°™ ^«"ateral re- lations are included) of the remnant, of one-fifth of hia property. In default of these descendants he must devfse thllT''^ 'v/T"' °^ ^'^ ascendants, father, grand! Inst nVtl,'%^''^ ^'c ^''."P''°" °^ one-third._Johnston's Inst, of the Laws of Spain, 110 to 11 5. Mortgages and Hypothecations. thP.h!f T- K^^^f ^^'^^ ^y *^^ SP^»i«h law, except that the subject of mortgage is considered incapable Sf hvei^e^' '"^j^'^' ""^ hypothecation may be de- Ist'^a HEnV°.i!^^°™ *^^. P^^^g^ ^« "^'^^ acquires, in! pI t " *^.^ *^"^ constituted a security for tl^e sum 3d%hp;!Lv *^ ^'^ cof idered a species of alienation™ hf is'p'aidThttbr "" ^'^ p'^'^^ ("p°" "°^-) -^- The thing being once mortgaged cannot be mortgaged a second time, except to the amount which it may eSceed in value the first debt. He who mortgages property already mortgaged shall be fined, if he feted from bad faith.— Johnstons Inst. Laws of Spain, 156 to 162. Prescription. There is a prescription of three years as to the posses- sion of personal property, (except with mortgagees or lessees who being in upon the title of another ?an never prescribe against him,) and the salaries or wages of apo- thecaries, spice-vendors, and other tradesmen %r mecha- '^ ^■^^'= Oi aa\uuiufs ana coiicitors. Y S ,1: t i 'i a 4 '4 r 324> TRINIDAD. There is a prescription of ten years in which real pro- perty IS acquired among persons present, and in which if- ^^^^^^^^^ action is barred. Another of twenty years, which prescribes the right of absent persons to real pro- perty, and the personal action and execution granted thereon. Actions, real, hypothecary, and mixed, are prescribed ino *'^ years.— Johnston's Inst. Laws of Spain, 105 to Proceedings in Cases of Bankruptcy and Concursos. By the ancient Spanish law on this head, the insolvent debtor is at liberty to make a cession of his property, which is termed concurso voluntario y preventivo ; and any person, whether a trader or not, may adopt this measure. But when the cession takes place at the instance of the creditors, it is termed concurso necessario. In both cases the property is distributed, and the creditors ranked under a judicial proceeding which is termed a concursus creditorum. By Order in Council of 5th August, 1832, all future privileges or preferences, for repairs or supplies, are de- clared to cease; and by the same order, reciting the previous ones in this matter, all sugar, coffee, cocoa, or other estates are rendered liable to be taken in execution without regard to the value of the estate or the amount of its debts, but it gives the court a discretionary power of staying the sale of the whole, or any part thereof, under equitable circumstances. Some doubts having arisen under that clause of this order, which gives the court a discretionary power of stay- ing sales, without any limitation of time, it was by a subse- quent order of February 2d, 1825, declared that it should not be competent to the court to stay the sale of the whole or any part of the estate at any time for a longer period than six months, or for more than two years on the whole. — Trin. Comm. Rep. 51, 52. Execution. All instruments, promissory notes {vales), and writings acknowledged by the debtor, are entitled to prompt execu- TRINIDAD. 325 tion. In the same manner are bills of exchange, as against the acceptor, after being accepted, and against the driwer, provided they be protested and he acknowledge them.J Johnston s Institutes of the Laws of Spain, 3^^, 353. Costs. It appears that the advocates charge what they please lor retamers, conferences, writing of letters, &c., and that such costs are never taxed— Trin. Comm. Rep. 53. Coroners. The office of Coroner does not exist in this colony.— Irin. Comm. Rep. 54. Arrests. There is no power of arrest in this colony upon mesne process except on the authority of the Roman law, when the party is suspectus de fugd. Each person about to leave the country must obtain a pass from the Governor, and advertise his intention to leave, which advertisement may be underwritten and stopped at the secretary's office by any creditor.-Trin. Comm Rep. 54. • ^ '1 ; «* t i t ^ a « r 4 i hi ' !- \* F ^ i : 4 ' !. , 1 -i '« } »,; it 1 h 4- l> 'K "' si C 326 ) HONDURAS. (1) This possession of Great Britain, though one of consider- able extent and importance, has not yet been dignified with he name of a colony. On one occasion it was ex- pressly decided not to be entitled to the appellation of a territory belonging to His Majesty, at least so far as the I^avigation Acts were concerned. (Chitty on Commerce, vol. J, p. bdb.) According to this decision ships built there would not be privileged to engage in the direct trade between the United Kingdom and the British possessions IS- ?^'ur ^^^, 'i^'^^"* Navigation Acts have removed this disability, and have in terms recognized the settle- ments at Honduras as " British." The 3 & 4 Wm 4 c. 54, s. 14 expressly enacts " that all ships built in the -British settlements at Honduras, and owned and navigated as British ships, shall be entitled to the privileges of Bri- TT -/I^v-^'^^ ^^'P' ^" ^" ^•'•ect trade between the United Kingdom or the British possessions in America and the said settlements." The settlement at Honduras is governed by an officer styled a Superintendant, who is appointed by the Crown. ,,n^''''" h-"*aT'. «^"c'i,oned by an officer in commission under His Majesty, framed many years ago, has been since tacitly at least recognized by the Crown, and is still acted upon; and as a decisive mark of the sub- ordination of the settlement to the power of this country, appeals are entertained by the Privy Council from the decisions of the courts in the settlement, one of which . /on" ^:?"?ituted by two acts of the British Parlia- ment. (2) Although, therefore, it still continues inferior to our acknowledged colonies in titular dignity, it may wen deserve some notice in this place. The settlement of Honduras is situated in the province of lucutan, between the seventeenth and nineteenth degrees (1) See ante, p. 1, n. (j)and p. 19. (•2) 3 Hup. W. I. C. 2(1 series, p. , I'i, See post, 329. HONDURAS. 327 of north latitude, and the eighty-ninth and ninetieth degrees of west longitude. The Hne which includes it commences at the mouth of the Rio Hondo, follows the course of, and afterwards runs parallel with that stream for about thirty miles, then turning southward passes through New River Lake in a straight line to the river Balize, up which it ascends for a considerable distance, and then again pro- ceeds south till it reaches the head of the Sibun, the windings of which river it pursues to the coast. (3) HISTORY AND CONSTITUTION. From the earliest period of the settlement up to 1763, the right of cutting logwood in the Bay of Campeachy was a matter of vehement dispute between the English and Spanish governments on behalf of their respective subjects. On the general pacification, which took place m that year, the King of Spain agreed to allow the set- uV^ reside within a certain distance on condition that all the fortresses then existing should be destroyed, and that no other should be erected. On his part he under- took, in case of a war, to grant six months for the removal of British proper*^y. In 1779 this undertaking was grossly violated. At the close of the war which then ensued, the settlers, though they obtained no indemnity for the previous injury, were re-established on the same terms as formerly, and the rivers Balize and Hondo were assigned as their limits. ^^^^Q *^°"^^"t^o" which was concluded with Spain in 1786, these limits were extended southward to the Sibun, m consideration of the British relinquishing their establishments on the Mosquito shore. Honduras was not mentioned either in the treaty of Amiens or at the general pacification in 1815; but though the right of Great Britain was not on either of these occasions recog- nized, neither was it disputed ; and the fact that it was not expressly referred to, affords a strong ground for believing that it was considered, by the persons who negociated these treaties, as a settled acquisition of Eng- land, and therefore no more required to be recognised as such than did Barbados or Jamaica, or any other long t t 3 4 (3) 4 13. Edw. 25'i. 32B HONDURAS. acquired and undisputed possession. There seems there- tore but httle ground for tlie alarm felt by the settlers at not having been mentioned at the peace of Amiens, nor the doubts that some of them are believed to have enter- tamed in consequence of the similar omission of all notice ot the settlement in the treaty of 1815, the more so since the condition on which their right to a settlement was recognised, namely, the relinquishment of the establish- ments on the Mosquito shore, has been strictly per- formed. "^ ^ In the year 1765 the inhabitants agreed to a code of regulations presented to them by Sir William Burnaby, the commanding officer of His Majesty's ships on the Ja- maica station, to the strict performance of the articles of which code they bound themselves by an instrument under their hands and seals. Jn pursuance of these regulations five of the principal inhabitants were chosen from amongst themselves as ma- gistrates, who were invested with power and authority to hold courts of justice, and to try and determine all dis- putes. A jury of thirteen was chosen in the s^une manner tor their assistance, and the determination of this court was declared to be final.-3 Rep. 2d series, W. I. C. p. 3. Ihey further covenanted together to abide by and obey a 1 such orders and regulations as might thereafter be made by the justices, in full council, being first ap- proved of by a majority of the inhabitants ; and that the commanding officer for the time being of any of His Ma- jesty's ships of war which might be sent thither, should have full power to enforce and put the above into execu- tion. Regulations were at the same time agreed to re- specting the levying and collection of taxes, the cutting of logwood, &c. &c. This code, which bears Sir William Burnaby's name was printed at the expense of the settlement in 1809, with such additional regulations and alterations of the original articles as had in the intermediate time been found ne- cessary. Since the last named period, further additions to this code have from time to time been made by t: inhabitants at their public meetings,— by committees chosen for that purpose,— and by the magistrates presiding in the several tribunals which were created as above mentioned ; which regulations, though of course Jey cannot exactly be con- |i i HONDURAS. 329 sidered as having the effect of law, any more than the ori- ginal code, are yet by common consent of the inhabitants deemed to be bmdmg upon them, and as such are strictly acted upon and enforced. It may not perhaps be alto- gether improper to state here briefly, the course which is generally pursued when an individual of the community is desirous of introducing a new regulation which is to undergo the solemnity of an " enactment." Such indivi- dual causes a public notice or requisition to be posted at the court-house at Belize, calUng a meeting of the ma- gistrates and inhabitants of the place, on the particular day expressed in the notice, whichiit is understood must be stuck up at least twenty-one days before the day named for the meeting. On the arrival of the day ari pointed lor the purpose, the magistrates and inhabitants assemble when the proposition contained in the notice is discussed, and the majority of those present on the occa- sion determme the question; after which, if the measure agreed to at the meeting receive the assent of the Super- mtendant, it is considered a law of the settlement, but not otherwise. In this anomalous state of things, say the commissioners. It is a matter of considerable surprise that the meetings dignified with the name of courts should be conducted with a regularity and decorum which will bear no dis- advantageous comparison with the proceedings, in this respect, of the regularly constituted tribunals in most ?x/t r.*^°!P^'^^''^^'*^'* ""^^'' the commission.— 3 Rep. VV. I. C. 2d series, p. 4. ^ ft i t is 4 COURTS IN GENERAL. The only court that can strictly be said to be legally constituted in this settlement is that created under authority of the British Acts of Parliament 53 Geo. 3, c. 53, and 59 l;reo. 6, c. 44., for the trial of murders, manslaughters, rapes, robberies, and burglaries. The other tribunals in which criminal and civil justice respectively are administered, are courts instituted by vf rT7R7 ^^f ^"¥,bit^"ts among themselves about the year 1787 The titles and jurisdiction of these latter were described as follows :— The Grand Court, instituted by an enactment of the public meeting for the recovery of debts above the sum of f^ W' 330 HONDURAS. mi in llH .flO, trespasses, assaults, and batteries, actions of damafre. and attachments. '^ The Summary Court for the recovery of debts of cflO and under, and assaults of a minor degree. There is no Court of Vice- Admiralty here; and in answer to questions on this head, the commissioners were told that when cases occur requiring the decision of such a court they are sent to Jamaica, to the very great incon- venience of the settlement. The law of England, it was said, was always applied, •; except where local circumstances prohibited its applica- tion, and on inquiry from what source the settlers de- rived their local laws, the commissioners were answered, "from the establishment of the settlement, and before the British government gave it protection, the inhabitants formed an assembly for the enactment of laws, which re- mains m existence to the present period ; but since the granting protection by the British government it has been invariably the custom to obtain the sanction of His Ma- jesty's Superintendant, who possesses the power to allow or disapprove of such part as he shall deem fit." This is the form of government created by the inhabitants them- selves and described above. The English act, 5th Geo. 2, c. 7, " for the more easy recovery of debts in the plantations," is considered in lorce here, and " practically acted upon." The writ of /tabeas corpus is not known in the settle- ment, and in the event of illegal imprisonment the usual method of redress is described to be " by an action of da- mages issued out of the Grand Court, and addressed to the provost marshal general." Bail is said to be admissible here *' accordine to the law of England." s ""c The principles of the English law of descent are said to be applied here ; but there is no such thing as freehold property known in the settlement, British subjects being supposed (though it would seem erroneously, see ante, S27,) to possess no territorial rights there. The laws which in England govern the distribution of personal property in cases of intestacy, are also acted upon here, with this peculiarity, that where no legitimate heir appears, "illegitimacy inherits by next of kin." In the event of persons in the settlement dying without a will when the (known) heirs or next of kin are absent, HONDURAS. 331 the magistrates -acting as a Court of Ordinary, issue am v« • "fy>"^ '"''" •• security from the Lstees ana < xamme their accounts annually/' .vli'-^^ *u '°' '" *''^ execution of the same functions, Lr?!- r^'f ' ''^ ^PP°'"*'"g guardians when necesi IH: I .^ bonds to ensure the faithful administration of ;Lc w \' ?,^^™'n'"g their accounts, &c.-3 Rep. 2d se- ries, W. 1. C p. 4*. ♦k \" fc *^^^® °^ "^Z"^' ^^^ °"'y P^'oof required seems to be that of the testator s signature before the magistrates acting as a Court of Ordmary, if the will be in the settlement ; if m a toreign country, before a competent tribunal. Wills are required to be recorded. Nuncupative wills are admitted agreeably to the prac- tice in England ; and there are no restrictions or limita- sonal, by wilE''''^' disposing of property, real or per- As regards powers of attorney, if they are executed according to the forms of the country in which they are made, they are held good and valid in the settlement! JNo counsel, attornies, or solicitors act professionally in any of the courts here, nor indeed are there any in the settlement, as no encouragement is afforded them, the parties interested in the suits appearing and being heard m person. ^ o ^ « Persons incapable of paying the necessary expenses of a suit are allowed to prosecute and defend their claims in the courts at the expense of the settlement. No marriage can be celebrated here without a license hrst obtained from His Majesty's Superintendant or pub- hcation of the banns; and the widow is considered as entitled to one-third of the whole property of the deceased atter payment of his debts. The rights of the Crown are, it is said, vested in the person of the Superintendant. The courts of the settlement will respect and confirm the judgments of foreign courts of competent jurisdiction, m all cases except that of outlawry. Six months' resi- dence in Honduras is required before a stranger, though a 15ritish subject, is considered to have acquired a right of establishing himself in trade as an inhabitant. There are no regulations in this settlement similar in principle or effect to the English bankrupt laws. Twenty-one days' notice of intention to depart is re- m\ IF! ;it ■n t 'A m i 332 IIONDUUAS. Ill quired to be given before a person can leuve the settle- ment, and it is also necessary to obtain u pass from the Superintendant. Creditors can prevent such departure by entering a caveat in the secretary's office, but they may be called upon in this case, at the superintendant's discretion, to give security to answer condemnation in costs and da- mages, upon subsequent judicial proceedings on the part oftiie person whose departure is so prevented.— 3 Rep. 2d series, W. I. C. 5. * High or Supreme Commission Court. The judges (none of whom, it may be remarked, receive any salary or other noluments of office,) are directed by the act 59 Geo. 3, c. 54, to be " such four or more dis- creet persons as the Lord Chancellor of Great Britain, Lord Keeper, or Commissioners for the custody of the Great Seal of Great Britain, shall from time to time think fit to appoint " in the manner therein specified. By vir- tue of this power, a commission under the great seal has been issued, nominating seven persons to try, hear, deter- mine, and adjudge the crimes therein enumerated, any three of the said persons constituting a court. The judge advocate, who is also appointed by the judges of this court, conducts all prosecutions. A grand jury, to the number of thirteen, is impannelled, being se- lected from a number summoned by the provost marshal general from amongst the most respectable inhabitants of the settlement. They choose their own foreman, and are sworn by the same form of oath as is prescribed in England. The bills of indictment are sent to them from the court by the hands of the officer of police, who is sworn as keeper of the grand jury. It appears to be the practice of the grand jury to exa- mine witnesses, both on the part of the Crown and the accused. A petit jury, to the number of twelve, is also summoned for this court by the provost marshal general ; they are chosen in the usual way by ballot, and sworn before the HONDURAI. 350 InVjJt^^'!^''''' ^•^'''"^' ^^^ ^"""^ P«^^" "*" challenge in respect to them as is accorded by the law of England hi. w!; ''"'''"7 '"^y •'!'^"'''^ ^"^^''^^ the attendance of Ins witnesses by a writ of subpoena. It seems to be Z^:l;{en:T '" '"'""'" ^■""^' *" ^^"°" "^^"--« dp^^^f^.?^""*^""*^"* ''*■ *^^ settlement, acting as presi- tlent of the court, pronounces its sentence ; and he it pa?don.' exercised the power of reprieve ind .nA'^'v^T^^' '^''''" acquitted is immediately set at liberty, expenses '' "" "^'^''^' ^"^ ^''''' '^' P"^''^ P^^^^g «» The following are the officers of this court, who are all the clerk of the court, the assistant clerk of the court, the provost marshal general, and the police officer. Ihe salary of the judge advocate is fixed at £50 (cur- rency) for every court that is held; the other officers sTpn^? '^' ^W''r^ emoluments arise from fees.~ d Hep. 2d series, W. I. C. p. 6. Grand Court. The magistrates who act as judges in this court, are appomted annually to the number of seven ; butthre^ are held sufficient to form a court. They are chosen from among those inhabitants considered best qualified to fill tne situation, and their services are gratuitous. They sit three times a year, in the town of Belize, taking cog- nizance as a court of criminal jurisdiction of all olencls not specified in the commission constituting the Supreme Court, with the exception of minor assaults, whicli are tried in the summary courts ; and, as a court of civil ju- risdiction, "of all matters of debt above the sum of £10 trespasses, actions for damages, &c." ' The proceedings of this court, on its criminal side, are similar to those m the Supreme Commission Court, with the exception that there is no grand jury, though there is a petty jury. Its judgments have hitherto been final, but M^£T'"2"'' "?* ^^^^^^red. the privilege of appeal to His Majesty s Superintendant. It seems not to be the prac- !; t i i !^, 1 t a m 3 It > i k W: t«' t J? \ H 33i' HONDURAS. tice, except in particular cases, to allow their expeiiaeu to prosecutors or witnesses. As a court of civil judicature, the magistrates sit three times a year, taking cognizance, as has heen already sta- ted, ot all matters of deht above the sum of ill 0. tres- passes, actions for damages, &c." It also tries titles to land (4) by wr^s of replevin. Ac- tions, however, for the recovery of debts, are the most prevalent; and debts by specialty and on simple contract arc proved m the usual way.— a Rep. 2d series, W. I. ly. 7. All cases are decided by juries, the jurors being chosen rom the white population, British subjects, and domici- liated in the settlemerit. No arrest before judgment is permitted here. 1 he awarding the costs in civil actions is considered t •) be the province of the jury, wlio " usually express the same in their verdict." Costs, it is said, are limited by the law of the settle- ment. The court considers itself entitled to grant equitable rehei against the strict rules of law, when a case is made out tor the exercise of such power. Five hundred pounds is the lowest sum in dispute for which appeals to the King in Council are held allowable, according to the general tenor of His Majesty's instruc- tions, in this respect, to the Governors of his several colonies. There is no regulation in this settlement in the nature of an Insolvent Act, nor is there any time prescribed for the discharge of prisoners whose debts are under £100 — 3 Rep. 2d series, W. I. C. 8. Summary Court. One ofthe magistrates of the settlement acts as judee ot this court, and sits once a month in the town of Belize U) dispose of actions where the sum in dispute is under ^10, in which case a jury of three is impannelled. The same judge also disposes of assaults and minor offences (4) Possessory titles only. See ante, 327, 330. HONDURAS. 885 Free Coloured Persons. inlmbUantl^f ni'"'.'"' experienced by this class of the SbktrfiUM ' % '"'r'' *»!"* ^»'«y '^■•e not considered c'lgioic to hll the ofhce of magistrate or juror. The mode of proceeding aga nst the.n h. the crin.inal cour is prl^ pSnr "' '" '''"' "^'"^'^^^^ '" '^'' ^-« °f other ?ree lon^ill"''"""'''*"''^ "^ ^''^ '^^''"^ of whites with that ofco- oued persons .s considered here, as it is to a certain ex- reriUwTri/."' ' ' '''^' tofreedom.-3Ilep.?d Magistrates. The magistrates of this settlement are annually elected to the number of seven, at public meetings of the inhabi- tants themselves, and their services are gfatu tous. The r election ,s subject to the approval of tht Superin tendan tedt;Cw.^^c;/A;^^^ ^^^'^^^^ n,iLonduct.!::^3 Provost Marshal and Gaol. r^Jr!^^ ^T^^f ""'''^^^ ""^ ^^'^ settlement holds his ap- pointment under a commission from the Superintendan? who would remove him in the case of neglect of duty oi misconduct.— 3 Rep. 2d series, W. I. C. 11. ^ Cler/c of the Supreme and Lower Courts, and Keeper of the Records. These offices are executed by the same individual in conjunction with an assistant ; both of them are apSed by the Supenntendant at the recommendation ofTe ma. gisiiates. Before registering a deed or will, proof is required of am^Tof r '"h ""''^^ P^"°" "'° '^'^ executed the same, or of the subscribing witness or witnesses thereto and after registry the original instrument is returned on application to the party who had lodged it. '^'"'"^'*' ^" \ 1 i 3 336 HONDURAS. * No wills, it is stated, are received for record until after the death of the testator.— 3 Rep. 2d series, W. I. C. 12, 13. Coroner. By the custom of this settlement the junior magistrate, or, in his absence, another of the magistrates, performs the duty of coroner. His services are gratuitous. The formalities usual in England seemed to be observed on the proceedings on inquests here, and the coroner is vested with the powers of the same officer in England, in regard to summoning witnesses, committing if necessary, and the like. No new regulations on this head appear to be required.— 3 Rep. 2d series, W. I. C. 13. Notary. There is a notary in the settlement, whose appointment is derived from the Prerogative Court of Canterbury. In the event of his death or absence, protests are made be- fore the magistrates, and if extended, are signed by three of the same functionaries, and a certificate from the Super- mtendant is annexed.— 3 Rep. 2d series, W. I C. 13. Police Officer. This oflScer is appointed and removable by the Superin- tendant, with a salary of £60 and certain fees. In addi- tion to the functions usually prescribed to such an officer he has charge of the prisoners confined in the gaol, and superintends all punishments and carries into execution all sentences of the Criminal Court, except those decree- ing death. He also executes all the official orders of the Superin- tendant and the magistrates.— 3 Rep. 2d series, W. I. C. Arbitrations. Arbitrations appear to be frequently resorted to in this settlement; the arbitrators being appointed by the court and their award being entered up as its judgment, which IS then enforceable by writ of execution.— 3 Rep. 2d se- ries, W. I. C. 13. HONDURAS. 337 Appeals. memVfTv l7i? '^' *" the.King in Council from the judg- ment of any of the courts for a less sum than ^"500 sterl ing, in the computation of which sum costs arp^n." included Oaly one instance of such appeal U a^Lrs SeTdr/u'pr ^°^" ""'-'^ ^"^ ^" ^'^^^ -- " ^' --v?; tai^fvl.'i?T''''°"^'' '^^ ^^'^y ^°»^d "«t collect with cer- tarn y whether any intermediate appeal, or for what sum would he to the Superintendant.-lRe'p. 2d series? w"^! I ^■^1 ( 338 ) JAMAICA. W' ' 9 Jamaica, which, according to Mr. Bryan Edwards, (1) "since the loss of America, has always been justly reckoned the colonial gem of the British Crown," now de- mands our attention. It was discovered by Columbus upon his second voyage, on the 3d of May, in the year 1494, when coasting round Cuba with a view to discover ; whether that place was an island or a part of the main-" land. (2) The name is said to be Indian, and to signify a country abounding in springs. Jamaica is situated in the Atlantic Ocean in aboyit 18<^ 12' north latitude, and in longitude about -76° 47' west from London. (3) The north and south sides of the island are separated by a chain of mountains extending from east to west. Its chief natural productions are sugar, indigo, coftee, and cotton; but it produces many other valuable commodities in sufficient abundance. It is 150 miles in length, and, on a medium of three measurements at different places, about forty miles in breadth. Accord- ing to Mr. Edwards's statement 1,740,000 acres were cul- tivated, and, including the superfices of the mountains, it was supposed to contain altogether about 4,000,000 of acres. (4) The island of Jamaica is divided into three counties, named Middlesex, Surry, and Cornwall. The first is com- posed of eight parishes, one town and thirteen villages. The town is that of St. Jago de la Vega or Spanish Town, the capita), of the island. It is situated on the banks of the Cobre, about six miles from the sea. The Governor has a handsome place in the town, and the House of Assembly and the Courts of Justice are also held in it. The county of Surry contains seven parishes, two towns and eight vil- lages. The towns are Kingston and Port Royal. The (1) 4 B. Edw. 249. (2) 1 B. Edw. 152, 153 (3) 1 B. Edw. 193, 197, and the autliurities tliere referred to. (4) 1 B. Edw. 237 to 260. JAMAICA. gon ^ZZZ ""1 ^°""^'^ ^" *^^^- Cornwall contains five parishes three towns and six villages. The towns are bavanna le Mar, Montego Bay, and Falmouth! HISTORY AND CONSTITUTION. May^mr N? ,P"«!^«^i«« ^^ the island on the 4th of June im K^^t ^"•"'^'r f^'^^'^"'-^'^' "" th« 24.thof oTl { "" ""^'^'^^"^ ^"^^^^'g"' ^°" Diego cSbus sf t was Ufe ''.ffrrr^'^i ?^ Hispaniola, to^hich Jamaica ma c Juan dfr ' ^"^ ^^^PP^i^ted as his deputy in jZ maica Juan de Lsquivel, who, as he was the first so he isTand ™r ''"' ^^ '^f ^P^"^^'^ Governor 'of tie ^land, Tins governor founded a city, which he cal Ui founded ,y Don DiegJ^C^^lilt, t^:f ^^^ of St. Jago de la Vega, a namo *hat about twenty years afterwards was adopted as the title for a marquis ate for his eldest son and heir, as one of the terms oHhch that nobk. person sui-rendered to the Emperor CharTes V the almost regal privileges which had been in form conferred upon Christopher Columbus, but which, thougTi no" capa- ble of being legally disputed by the Spanish nrna'chs there were only about 1500 inhabitants, incluin J women and chldren; that many of the valuable com°modides which Jamaica has since produced in such sreat ah n dance were either altogetlLr unknown, ofveTscanX cultivated; and that the principal exnoW hlJLl ^ consisted of hogs' lard and hides. Fo?^^^^^^ S[:til'"i'^"^'!^^. ^"^!^^'^ -maineTunX-milh ; or tne island, and of the efforts made to settle and im prove It bv fhp P.-nfo,,f^« :„ ..- u. -> , . , "^ ?"" "^i" , .vvv.,.., xo lu be found in tiie admirable t ft I 340 JAMAICA. work of Mr. Ldwards, who gives to that able ruler the honour of obtaining and securing this valuable and im- portant possession, and to Colonel D'Oyley the credit of havuig zealously and nobly seconded his efforts. Imme- diately after the restoration, Charles 2, confirmed Colonel 1) Oyley m the command by a commission which bore date the l^th February, 1661. The commission directed him to erect Courts of Judicature, and, with the advice of a council to be elected by the inhabitants, to pass laws suitable to the exigencies of the colony. Lord Windsor was afterwards appointed Governor, and carried over a proclamation containing a declaration by the Crown that all free born subjects in Jamaica should, from their re- spective births, be reputed to be free born denizens of l^ngland. By the treaty of 1670, the island of Jamaica was formally ceded by Spain to England, " together with all lands, countries, islands, colonies, and dominions what- ever, situated in the West Indies or any part of America, winch the King of Great Britain and his subjects did then hold and possess." In 1678 an attempt Vas made by Charles to govern this island by laws passed in the Privy Council. The scheme is described by Mr. Edwards (5) in the following words,-" A body of laws was prepared by the Privy Council of England, among the rest a bill for settling a perpetual revenue on the Crown, which the l!.arl of Carlisle was directed to offer to the Assembly, re- p-uring them to adopt the whole code without amendment or alteration. In future the heads of all bills (except money bdls) were to be suggested, in the first instance, by tlie Governor and Council, and transmitted to His Ma- jesty to be apprr ved or rejected at home; on obtaining the royal conf: mation, they were to be returned under the great seal in the shape of laws, and passed by the General Assembly, which was to be convened for no other purpose than that, and voting the usual supplies ; unless in consequence of special orders from England." The suc- cess of the experiment upon Barbados (6^ had probably sti- mulated the King and his ministers to this attempt, which in grossness, indeed, exceeded the former. The people of Jamaica, however, possessed three advantages over their brother colonists of Barbados ; they had an existing As- (r>) 1 B. Edw. 221. (6) See ante, 178. JAMAICA. 341 could^not h -^ established -their titles to their lands could not be impeached under a fraudulent grant to a court favourite -and there had been a degree of i^ acdon so eager to please royalty at the expense of all that was ustor honest as they had been when Charles first re turned among them. Thus assisted by circumstances the colonists were successful in their resistance. The great of a perne'S "" '' '^'"," ^" '^^'""'^^ '^^' -"'ement ot a perpetual revenue, and this object was adopted by all that 7r"''r"T^'' ^'""^ '^''^""^ «^ Charles I to mat ot Oeo. 1, and was constantly, but vainly endea voured to be enforced. At length, in IT^ri compro" mise was effected. The Assembly consented, uponTr-" tain conditions, to settle on the Crown a standingTrrevo- cable revenue of ^8000 a year. The first of thes^e condl IstLl'd' f ^uAf "'"*^^^^^^^ ^•^^'"'" *h- i^lamlThen estimated at of 1460 per annum) should constitute a part of such revenue. The second and third conditions were tlXZinr^T' ^" ."•^^^- ^« ^^'"P-l submission o Crown " ' "^'T'"/"* "^^"'^^^''^^ ^^^ recommended the Crown to suspend from time to time the confirmation of in ir K^'f ^' '^' .^^^^™b'y' «"d it was^so "eft s?a?utP l7 f F ' ?"^/"^ ^^"* P^^'* °f the common and statute law of England was in force in the colony. It was therefore stipulated, 2dly, that the body of tLir llws should receive the Royal Assent, and 3dly, that « all sS laws and statutes of England as had be^n at any dme for ovei » Tl! "''^r ^ ^"^ '°"*^""^ '^^ »^^« of Jamaica venurApf Jl^ ^«"ditions were agreed to, and the Re- venue Act ot Jamaica was passed. Each parish, or precinct, consisting of an union of two wt^fSr ^"' ' '°'^ of justicefunlimitJby The vestries are composed of the custos and two other magistrates, the rector and ten vestrymen. The latter are elected annually by the freeholders. Ihe legislature of Jamaica is composed of the Car^ain- General or Commander-in-Chief, of V Council non-.l^ated of a!. J"' ^""^^^^"g of twelve gentlemen, and a House liff !^l^*y' ^T'T^^S forty-three members, who are e.Cv,..« uy uie ireehoiders, namely, three for the several ^■\i !1^ >4 18 •0 I* 'f d4« JAMAICA. Ill' towns and parishes of St. Jago de la Vega, Kingston, and rort Koyal, and two for each of the other parishes. The quahhcation required in the elector is a freehold of oflO per annum in the parish where the election is made ; and m the representative a landed freehold of £300 per an- JaOOo" "^"^ ^^^^ "^^ *^° ^^^^'^^' ^^ ^ personal estate of ^Innn ?«7^"o/ receives £2500 per annum out of the ^8000 fund. A further salary of £2500 is settled upon him during his residence in the island, by special act of the legislature passed at the beginning of his administra- tion, and IS made payable out of some of the annual funds provided by the Assembly. In certain emergencies the commander-in-chief, with the advice and consent of a general council of war, (in which the members of the Assembly have voices,) may proclaim martial law. His power is then dictatorial, and all persons are subject to the articles of war. (7) COURTS IK GENERAL, AND THE LAWS THEREIN. The courts established in this colony for the adminis- tration of criminal and civil justice, are the High Court of Chancery the Courts of Appeal and Error, the Supreme Court of Judicature, the Court of Assize, Oyer and Ter^ miner and Gaol Delivery for the counties of Surry and Cornwall, the Court of Ordinary, the Court of Vice- Admiralty, the Vice-Admiralty Sessions, a Court of Quarter Sessions, a Court of Common Pleas in each Pa- nsh (except the parish of St. Catherine), and a court for the trial of Maroons, and a Slave Court in each parish. LAWS. (8) By the Colonial Act 1 Geo. 2, c. 1, all such laws and (7) The facts stated in the above .account are taken from different parts of Mr. Edwards's History, vol. i. pp. 201 to 236, and 260 to "285. See also 1 Rep. W. I. C. "2 series, p. 6 to lO, for a sketch of the constitution of Jamaica. (8) See ante, p. 3 to 16, on the general topic how far the colonies are subject to the law of the mother country. It may here be mentioned, that in the extracts from the Commissioners' Report on tliis Colony, whenever the word " ac(. " occur, unless otherwise expresscui, Colonial Acts are meant. Whf'uever the word '• pounds " oc- JAMAICA. 343 Statutes of England as had theretofore been acted upon Lpn^T'^!! ^'% ""^^^ perpetual; and it maybe stated generally, hat the statute law of England (not being at 2le7:^:'V^1 '''' ^^^^^ colony)is''acted uponin Is exnr. i . ?' ^u' ^'^ "°* '" ^'^"^^' "">««« extended by tornpvr ' °»^t'°^^T "or unless," added the At- orney-General " they relate to trade and navigation, or L .nir'^""'?'''^^"*' «' ^'^ i» ^'^' or are amendments of tne common law. . The common law of England prevails as far as local IS. (IS- COLLECTION OF LAWS. hvThf f "^"^,^^'« are printed by commissioners appointed scission oTlt^r-p^^^'f^ "'" "''"P!^^^ *° theclose of the sess on of 18^5. Private acts remain in manuscript. Ihe ongmals or manuscripts of all acts, public or pri- vate are deposited and recorded in the secretary's office, where they may be consulted or transcripts obtained on SeTGeos'^^'lt"^ secretary's fees, as regulated by the obth Geo. 3, c. 19, and the 6th Geo. 3, c. 23 nA^r^^^'^^''^^ ^'1 '^"' *^ ^'' Majesty's Secretary of State for the Colonial Department, and to the clerk of the Privy Council.-l Rep. 2d series W. I. C. 44. Governor. To an inquu-y whether the Governor had the power ofcommitting and continuing persons in prison, and de- laying tneir trial the commissioners were told he had not, except, said the chief justice, "in the case of aliens curs, it is to be understood, unless otherwise expressed, as raeaniiig " pounds currency of Jamaica." The proportion between that currency and the currency of England is as follows : viz. £110 of Jamaica currency is, in ordinary calculation, equal to £100 sterling ; and consequently £l cur- rency represents about 14i. 3d. ster- Img ;— but in large transactions the course of exchange varies, and is re- gulated by the current premium or discount on bills drawn on Great Bri. tarn, a variation, which, entirely inde- pendent and exclusive of the ordi nary exchange above mentioned has extended, at different periods, to' nn- wardsof30 percent. ' 4 18 f 344 JAMAICA. whom he may, under the provisions of the Alien Act, 5 ^eo. 4, c. 18, commit to prison and send off the island." He has no power in civil cases of staying execution or suspendmg proceedings ; but in criminal cases he can par- don, murder and high treason only excepted. In these he T^A 5?^ ^'^ecut'on till the King's pleasure be known. And Mr. Burge(the Attorney-General) remarked that, in criminal proceedmgs, as representative of the King, he may direct the Attorney-General to enter a nolle prosequi, or, by virtue of His Majesty's prerogative, mi^ht respite the execution of any sentence. " Particular Laws of the Colony. nrT!!f ^^''^ ^^^tJ^eas Corpus is issued by the chancellor or judges of the Supreme Court in term time ; and by the v«r.f ^u ^ ''"S'^, J"'^^^ «^ *'^^ Supreme Court in vacation. 1 he proceedings are similar, and the writ is granted under the same circumstances as in England, excepting" (the chief justice said) " in the case of a per- son committed under the Alien Act, who must in the first instance appeal for redress to the Governor in Council, and cannot apply for a habeas corpus, unless the appeal remain unheard for fourteen days.'' The law of descent and the law governing the distribu- tion of personal property, in cases of intestacy, do not differ from the law of England on those subjects ««;^^.S aV^^ ^^J^"^' ""^^^^ ^^^^ «^ ^^^isee are assets, said the Attorney-General, for the payment of all classes ot debts owing by the ancestor or testator, by means of a A^nV/J, I??"'' ^^ Chancery on behalf .f his creditors. And the chief justice stated, that they stand charged with specialty and also simple contract debts, when the latter have been put on judgment and notice of a writ of extent has been served pursuant to the 24th Geo. 2, c. 19. He also referred to the (British) statute 5 Geo. 2, c. 7, a J/ debts '" ^^'^ ^''^°"'^' ^""^ ™^^^ "^^^^ ^'^ '^'''^^ a^^rT-^'^f '^i'' ""^^'' specially exempted, are always applied m the first mstance in exoneration of the real estate; and in marshalling assets, slaves are considered and dealt with as personalty, next after the assets purely personal have been exhausted. II: JAMAICA. 845 Foreign Judgments. A judgment recovered in England, or elsewhere, by de- th"''' ?' '" eo«^;a^i^^ono, against a person resident in the colony would be considered merely as evidence of the plamtiff s demand, and the chief jusLe beHeved tha a for^gn mdgment " has always been 'received as evidence in the colony, without going into the merits on which it was pronounced." The onus of impeaching the jurmen fendant! ^"^''^^^-^'^^^r-'' -«"& devolVe oi Se de! There is no judgment of outlawry in this colony. 1 he foreign appointment of guardians to minors and committees or curators to idiots ov lunatics, would .otgTve any control over property in the colony. ^ i.,rt5t^ "'^^ ^r'* °*' C'^«»^ery would exercise original jurisdiction m such cases; but examinants conceived that from comuy or curtesy, it would (in the absence of any other claim, said the chief justice,) confirm such appohit^ ment, and conform its orders to those of the cS of Chancery m England. tarWI f^.^'^^"'"/^ ^T^>'-"ded that the disability at- tached to an idiot or lunate, by virtue of the foreien appointment, would cease on his coming to reside in g" colony, and that such foreign proceedings would be merely considered by the colonial court as efidence tend! ing to invalidate his acts.-l Rep. ^d series, w! I C 45 Court of rh^*^''"^^"^^!;^''*^ remarked, that the Cobnial Court of Chancery would revoke such appointment, when It was made to appear that such disability had ceased! Bankruptcy. With respect to the force of an assignment and certifi TnlTt J" En^ish or foreign commission of bant ruptcy, the chief justice declared that the colonial courts wouW give no effect to them against a creditor not claiminl under the commission ; but would, he apprehended,Te? fer?ed folhr^'^t t^^^^^^^^^^ ^^- J ^ --!!, ui xTii. ^.^^nrj, wucu Ciller justice 18 •0 I 846 JAMAICA. ii* of Dcmerara, in the case of Odwin v. Forbes (confirmed on appeal in the Cockpit), and remarked tliat the Into chief justice of Jamaica had entirely adopted that au- thority, and held that the defendant's' English certiticate barred the plaintiff from recovering a debt owing to him in reB\w.i't of ;• consignment made by him to the defend- ant reeid nl in England ; and added, " I take it now to be the h" of tnis country that a similar effect would be given to a certificate when the debt was contracted in Enff- land." ^ And as to the force of the assignment, it was his opinion that *• the title of the assignees would not he recognized with reference t' the bankrupt laws; and their right to possess the property assigned to them would depend on the validity of the instrument assigning or conveying it, and not on any title under the bankrupt laws." From inquiry respecting the preference of claims between fo- reign and colonial creditors, (the latter having notice of the bankruptcy ahroad,) the chief justice made this dis- tinction,— that supposing the bankrupt to have been formerly in the island, but to be absent and unrepresented by attorney, the colonial creditors would, he conceived, as to personal property, obtain a preference by attachment under 23 Car. 2, c. 23 ; but if the bankrupt were resident in the island, or represented there, the same preference might be obtained, both as to the personal and real pro- perty, by putting the demand in suit. After assignment under the foreign commission, the bankrupt would (according to the chief justice) be allow- ed to sue in the colony in respect of such property. And supposing the assignees to be in possession of the bankrupt's property and his outstanding debts in the colony, by permission of the colonial court, under the foreign assignment, he apprehended that the foreign cer- tificate would be no bar to the suit of any colonial creditor desirous of proceeding personally against the bankrupt (then in the colony) for debts proveable, but not proved under the foreign commission. The chief justice considered that the notice of an in- solvent debtor that he intended to take the benefit of the Insolvent Act was not sufficient for the protection of foreign creditors. There is no law of the colony simdar to the act 21 James 1, which makes personal property, left in the pos- JAMAICA. 347 Marriage and Dower. A married woman is entitled to dower as in Fnrrl„n^ and to a s,^i ar provision (subject to her hu ba„d'. t"s) out of the slave property undisnospd nf in V . j.*;"^. '^"; in he color it "" uT'"'^ r'""S "f » "'"■■•i'"! woman There is no jurisdiction in tilis colonv comnetent t„ Aliens. officers, ,„ trust for the aUen, and that he ma;su7in'S naturahzation of foreign Protestants anfoLers but th^! are generally acquired by letters of naturahzS from th^ Governor, under the provisions of the S.^i Thllr °™ ^^'^ (t t 4» ' ^ ^^^%^W1WR:»t*»sv"f "■' ""■■'P';«^<'""=d. the the 3*1 Car. 2, c a3 ^ ^ ■"*5" """'^''ment under Counsel. 3 350 JAMAICA. Jamaica, the chief justice gave as his opinion " that per- sons acting as counsel here must have been previously called to the bar in England." An order to sue in forma pauperis may be obtainnd under tiie same circumstances and by the same mode of application as in England.— 1 Rep. W. I. C. 2d series, 49. Supreme Court of Judicature. This court was established under the royal instructions m the reign of Charles 2, and more completely secured in Its present jurisdiction by an act of the legislature of the colony, 33 Car. 2, c. 23, s. 1. Three judges are necessary to form a court. The chief justice is appointed by the Governor and confirmed by the King, and the other judges are appointed by the Governor. They all hold their offices during His Ma- jesty's pleasure, but by the second clause of an act of the island, 21 Geo. 3, c. 25, and 57 Geo. 3, c. 17, may be suspended by the Governor (or person exercising the functions of governor) with the advice and consent of a majority of the coancil. The chief justice's emoluments are fixed by the acts of l^Geo. 2, c. 1, 43 Geo. 3, c. 25, 47 Geo. 3,;c. 13, and 58 ^oreo. 3, c. 18 ; and those of the present chief justice amount jto £5720 currei^cy per annum. The Attorney-General says the present chief justice's salary is £5600 currency, besides £\20 currency from His Majesty's appropriated revenue, and .^hat the salary of £5600 is given in lieu of all fees, perquisites, and emoluments. Of the other three judges the two seniors alone derive any benefit from their offices. They each receive salaries of £700 per annum currency, under 51 Geo. 3, c. 27, and the two seniors of the Assize Courts £300 currency per annum each, under the same act. Since the year 1803, the person appointed chief justice has been a barrister. From the summary of legislative provisions given by the Attorney-General, it does not ap- pear essential to the appointment of chief justice with a salary of c£'4000 per annum, that he should be a barrister, though he must be such to be entitled to the additional salary of c£1600 currency. JAMAICA. 351 res^eni^tf" •^"''?f%^''^ ^^"'^'•^"y appointed from the that fh/ f";!fV^ ^^'^ ^^'^"'^' ^"^l^t is not required thaMhey should have gone through a course o? legal as theSr?f fl-^',' %T^' ?""""«•' ^nd mixed, as fully che^trrln^l^r^'^^"^'' ''^"^"^^" Pleas, and Ex^ itsIrimfnaTi"-!^"' P'"''^^ ^^"*h"^- *h^ ««»rt sits under c! 'm S, To!' " '"'""' J-isdi.tion.-l Rep. W. I. Criminal Jurisdiction and Practice of the Supreme Court of Judicature and Courts of Assize. is Isistplj'f -^f ^'''^ ^'^''"^^^ ^* ^^^h ^^ these courts, and IS £^bisted by two assistant judges. Ihe chief justice says these courts have the same power as the Courts of Assize, Nisi Prius, Over and S ' "nn'^'tbfco^r^ Delivery in England, and Z'^il^ cannot be continued longer than three weeks, but are J- nemly closed m eight or ten days. uc aie ge as cmni'^^?'"^' and proceedings of these assize courts, as courts of oyer and terminer and gaol deliverv nvi stated by the Attorney- General to be ^'?„deS7nf of and not under the control of the Supreme CoSrt of Judfl miS^ M^''^'' attending the Supreme Court on the cri- ninal «,de are the Attorney-General, Provost Marsha CleiK of the Court, and Clerk of the Crown. ' m the Assize Courts the deputies of these officers at end, except in the Assize Coun of Surry, afwh^h the Attorney General and Cl.rk of the Crown fa'ttend '" cases of « ' ? 1 '^'^ ?hief justice, " has the power in the adminiff'T'^'^V P'lsdemeanor, immediately affecting the admmistrution of justice, or the peace and hapninesf cf society, to make orders for the filing ofT.i nfnal in fori^ations ;" but this power (he adds) is sellm eCLeS" And the Attorney-General of this sland has the .me Engtnd."'""^^^^ '''' Attorney-General pUess::": The form of prosecution and the proceedin<^s boforp uieiu, ny«a«. and capias adsaZ faciendum. Thus, upon a judgment taken as of June Cxi and Court, a writ of execution is lodged, returnable the afttrl'' .T"'"^ ""^'^'^^ ^°" '' -^1 immedlatS; aftei, the plamtift may issue his writ venditioni exponas. In judgment of ejectment the writ of possession does not ssue till twenty days after the judgment has been ob tained.-l Rep. W. I. C. 2d series, h. In order to give a judgment a priority, it is necessary that an execution should be lodged*. A subsequent judg! ment on which a writ of execution was lodged would have priority over a judgment previously obtained, if there had not been an execution lodged on that judgment. If the nominal writ of execution be not lodged within a year, the judgment must be revived with scire facias, the proceeding on which are the sime as in England. secuiS'°"' ^'^ *^''^" """' """"^ suspended and used as A judgment is assignable, and after execution lodged becomes a security upon slaves. ^ A A it '4 j: 354 JAMAICA. An equity of redemption is not liable to be sold under an execution issued under a judgment atlaw.—l Rep. W J. C. 2d series, 56, 57. Revenue Jurisdiction of the Supreme Court: This court derives its authority as a Court of Exche- quer under the act of the island, 33 Car. 2, c. 23, s. 1, before referred to, which estabHshed the Su^ sme Court. A defendant may be arrested and held to bail in this court, in like manner as if he were sued by a private indi- vidual. This court has jurisdiction as a Court of Escheat by virtue of the island act, 33 Car. 2, c. 22, s. 2. The juris- diction of this court, in cases of escheat and forfeiture, is incident to its general authority as a Court of Revenue. As a Court of Escheat it entertains jurisdiction in cases in which re- 1 (or personal estates, said the solicitor of the Crown,) or slaves, is or are claimed as belonging to the Crown, in consequence of the former proprietor having died without leaving heirs heritable, and in cases of lands forfeited for non-payment of quit-rents. When property has become escheatable to the Crown any individual may petition the Governor for letters of preference. If during the twelve months after office found there appears no claimant, judgment passes for the Crown. The Governor grants the letters of preference to such of the illegitimate descendants as would have succeeded by descent, if legitimate, except where the proprietor has left an invahd testamentary disposition, in which case the letters of preference are granted to the person or persons whom the testator intended to take the property, and ex- cept also, where in the first case the descendant is unable to cultivate the property or to take care of the slaves, and in that event, letters of preference are granted to some friend or responsible person, upon the condition of paying the descendant a certain proportion of the appraised value. " In short," says the Attorney-General, " in granting let- ters of preference on escheated property, every care is taken that the illegitimate descendants of the intestate shall derive the full benefit of the escheated property, or of its value." To the question, whether the Crown can attach debts JAMAICA. 355 or other dues owing to its accountants in the hands of third persons m this colony? the chief justice reDlfed"/ am aware of no proceeding" by which S ca„ be done The foreign attachment law of the island does not seem to contemplate the case of the Crown •" hntVn ?hl quest on the Attorney-Generalstrd^^ the island foreign attachment law, 33 Car 2 c SsTs fll ckbt^: "'^.^Y ^"?*^^"^^^ -ay'attach debts' owing tot he Fn ;\ ' ^""'^' i **"^^ P^'-^^"^ i» the colon?; but ixep. w. J. c. s?d. series, 57, 59. Court of Error, s.t as ^ member of this court ; but the clSfZtke if he mavTb "rl "^ "'" """' P^nouncing the udgment may, if he thinks proper, attend the court iS^fZS. reasons for the decision of the court uZ::Ci^:^ Writs of error oi ippeals lie fiom the Supreme an.1 ceeos ±dUO sterhng in value, except in the case of i irH^ ment m ejectment, or where any tax, duty, o o^heVrifh.' stlted' rrV' 'T''''' "^^^« the va4 nJ^S" otte stated. The plamtifFm error enters into a bond for ^500 to prosecute, to obey the decision -inrl in «. ^°i^^"" fRep'-^Tc'Sre^r the Governor of jS: Court of Chancery. IV e v^icn mat ot the Court of Chancery in Endand • bnf tins court has no jurisdiction in addition t'o its genttuity AAg ^ ^ 3 r f 356 JAMAICA. jurisdiction, except in cases subjected to it by private acts of the legislature. There is also a common law or petty bag side of the office. The chancellor's jurisdiction, in cases of idiotcy and lu- nacy, is derived from an express grant in the letters-patent appointmg him Governor. This court has also jurisdiction in matters of dower and partition, and to stay waste by injunction. ^ It also appoints guardians to infants. Those above sixteen name their own guardians, those under that age, or absent from the island, have, on petition, verified by aftdavit and signed by counsel, a guardian appointed, who gives bond to account, with surety, before a master. It has also jurisdiction to decree the sale of lands for payment of judgment debts, on a suit by a judgment cre- ditor ; but this proceeding is seldom resorted to, and only m the cases of incumbered real estates, as the Insolvent Debtors' Act and Extent Law of the island are, according to fhe registrar, calculated to meet most cases, both during ttit life and after the death of the debtor. The writ of iie exeat insula issues from the Court of Chancery in Jamaica, under the same circumstances as the writ of ne exeat regno does in England, and is in- dorsed to the provost marshal to take bail, and the amount marked thereon. The proceedings and practice in the equity side of the court are as analogous to those of the Court of Chancery m England as local circumstances will permit. Every bill of injunction must have annexed to it an amdavit verifying the matters of fact therein stated. Bills are entertained on behalf of married women for a separate maintenance, and from the like necessity that existed during the Commonwealth in England— the want oi an Ecclesiastical Court to decree alimony. The appointment of receivers to estates is much more frequent in Jamaica than in England, and forms a very important part of the jurisdiction of the court, and the appomtment is solely and strictly with the chancellor,, witliout any reference to the master. The appointment IS , liide on petition, verified by affidavit, and all parties in- terested are at liberty to propose a fit person. The receiver enters into a recognizance, with a surety, hm JAMAICA. 367 before a master, to the amount of the estimated value of two, and sometimes three crops, or other annual produce ot the property, notice of which, with the name of the surety, IS served on the other party six days before ; (9) and this security is enforced by scire facias in the Su- preme Court. They account annually before the master, except when the account of sales is to be produced from ±.ngland, when some further time is necessary.— 1 Rep. W. I. C. 2d series, 61, QS. ^ They are entitled to six per cent, on the gross pro- ceeds, which forms an item to their credit in the ac- counts. By the answers to the question, Whether the Court of Chancery in England ever appoints receivers, or makes any orders or decrees respecting real property in this colony ? It appears that such orders are not frequent ; but they would, as stated by the Attorney-general, be en- lorced in every respect by the Court of Chancery at Ja- maica. ■' The mode of marshalling the assets under a decree to account is the same as in England.— 1 Rep. W. I. C. »d series, 64. It seems that tacking (or the practice of permitting the holder of a third mortgage to take precedence of the se- cond by redeeming the first mortgage and annexing his security to the third mortgage,) is not allowed at Jamaica, because such a doctrine would interfere with the priority acquired by the time of recording mortgages or obtaining judgments where slaves are concerned. Ihe costs in this court are taxed by the registrar as between party and party, and frequently as between soli- citor and client, on application to the court. The masters in ordmary of this j^'^urt are at present three m number. They are appointed by the chancellor and removable by him, and he is not limited as to the number. They reside at the seat of government in fepanish-Town. There are also some few individuals re- siding m the country who have master's commissions, and to whom occasionally references are made, and who, with the masters extraordinary, administer oaths and take re- cognizances. The registrar is not aware of any qualification being US 111 >4 c >. ^ ^ ^ ^ (9) T.'U is enjoined to be done bj- tlie master by the act 4 Geo, 4. c. 21< under a penalty of £600. -x, v. *.* 358 JAMAICA. necessary beyond the reputation of being a good account- ant.— 1 Rep. W. I. C. 2d series, U5, 66. Court of Ordinari/. nZi'nn .'n "J? n""^"' ^*' l"*'^°"*y ^^«"» *^^^ King's com- mission to the Governor, who (or the person administering judg? "'^'"'"^"^ ''' ^ ''"'*"^ ^^'^'^^^^ Ordinary and sole nrPf «»bject-matters of the court's jurisdiction are the fhp orV '\'' """^ ^T"*'"S letters of administration, and the ordmary also decides in all cases of contested adminis- tration and as to the validity of wills. iskml !!'"' ''^'^''*i"^ 'f^^ ^"^ P^''^""^'' property i» this island are proved in this court, in common or in solemn exSSl V'"*i'' P'''''^'^ ^" ^ '^^^^^^^ form, articles are wh.n .h ^ **?^ Promovent; an answer is filed; and S^LlTs^xltT"^^ interrogatories are exhibited Probate of the will as to personalty is conclusive, and TeZ\:f"i '° ''^"'^ Attorne^-Gencral ^as'held so even as to real property. civln b/'ihrr"? "^""tl "^ P'^"'"^ ^'"« uncontested was given by the Colonial Secretary, who is clerk of the court: 7ot fo /oT%!' ^'''"*'-^ ^^ ^^^^ Governor to certain per- sons to take the examination of witnesses attesting the iWs To" "^ ?? 7k^- ^ ^^'^"""^ ^'- ^^ the same^ime issues to qualify the executors named in the will, and another dedimus issues to qualify certain persons as ap- Season: : *'? '^'•^'1' -companiid by a w^arrant to suc'h bv Tn IT f '"'^' ^PPi-aisers. A bond is also signed by the quahtied executor, with proper securities, duly to administer according to law. When those severd forms have been complied with, letters testamentary are granted to the executor, as his authority for acting. ^ in S"^'"""^ "fS ^^t' th^y h^^e been proved and recorded in the secretary's office, are carefully preserved there and never agam permitted to be taken out except by oXr of the Governor, but the instances are very raJe. sessm'o^n^h'""' "^" f^"" '^ ^"' "^^^'t' without any as- ses^oi or other person to assist his judgment. of divnrr"'* ^'i"" '""f.^'^tio" to pronounce a sentence ot divorce, or to decree alimony. It has no power of enforcing obedience to its sentences. JAMAICA. 359 It has no authority to excommunicate, nor is it armed witn any other process to punish contempt or carry its orders mto execution. For this reason no costs are dven m this court. ° Neither the probate of a will nor the grant of letters of admmistration authorizes the executor or administrator to ^^^^^j*"^'^ possess himself of the real estate of the de- « Very frequently, however," added the Attorney- i:reneraJ, the executors and administrators possess them- selves of such real estate when the heir is absent from the island and unrepresented." A record is kept of the proceedings of the court in the secretary s office. The secretary of the island is clerk of the court.-! Rep. W. I. C. 2d series, 69, 70. Court of Vice-Admin iy. This court derives ,its authority from letters-patent under the great seal of the Admiralty. The present judge holds his appointment by virtue of a commission under the hand and seal of the Governor. Ihere is only one judge, who is designated Judge and Commissary of the court. He is appointed during His Majesty s pleasure, and liable to be removed at his com- mand. 1 he only remuneration which the present judge receives consists of fees upon civil proceedings in this court; those fees in 1824 amounted to ^£1467 14*. cur- rency, or £104. 15*. M. sterling. The judge practises at the bar in the Courts of Chan- cery and Common Law. The officers of this court, besides the judge (who has three surrogates for the examination of witnesses) and the advocate-general, are the registrar and marshal. The two latter are appointed by patent under the seal of the Admiralty, or by the Governor, when there is no Admi- ralty appomtment.-l Rep. W. I. C. 2d series, 70, 71. t It '.ii I 1^ Court of Admiralty Sessions. The court derives its jurisdiction from an act of the Colonial Legislature, Z3 Car. 2, c. 8, s. 2. The Gover- nor is authorized by that act to issue a commission di- rected to a judge of the Admiralty and other substantial aeo JAMAICA. III? persons, who arc invested with the same power for the trial ancl punishment of treasons, murders, pi,aci( s, ami other offences committed on the seas, as commis mers apj)c.nited m England under the statute 28 ilen. 8, c. 15. for pirates.' This is the Admiralty jurisdiction or' dinarily resorted to. T*'^*"u ®]!^»«t«' however, another of modern institution, under the Act of Parliament 46 Geo. 3, c. 54. A commission under the great seal of Great Britain may be directed to such four or more discreet persons as the Lord Chancellor of Great Britain may think fit to ap- point. 1 hese commissioners have also the same powers and over the same ofiences committed upon the sea, as commissioners appointed under the 28th Hen. 8, c. 15, have for trial in England. The commission issued Iv the Governor under the authonty of the Colonial Act, has always been directed o tjfF r '^'^ ^r" ""^ Vice-Admiralty (as the Pre^i- W/' t»eComniander-in-Chief of the squadron, the mem- bers of His Majesty's Council, the Chief Justice and Assi^ant Judges of the Supreme Court, the Captain of the Navy on the station, the Judges of Assize, Barristers th.7' the Secretary of the Island, the Receiver-General, nf H- J •^'^'^' ^"'^ *^^^ Collectors and Comptrollers of His Majesty s Customs at the different ports. InA. **"'/ """^^er, three constitute a court, of whom the Judge of the Vice-Admiralty is required to be one. His Sge's oVa" izT"""^ '"° '' *^^ ^^«'^'^"* '^"^g-' - Letters-patent of His late Majesty George 3, bearinL^ de 'tS^. rr? i^>^^^ V^^" transmitted to^Jamaica,un"- del the statute 46 Geo. 3, c. 54, directed to the Govei'nor, the Lieutenant-Governor, the Judge of the Court of Vicel Admiralty, the Chief Justice, the^Senior Member of the «nT"n '^ •'' ,<^o™n^ander-in-Chief of the naval forces, ana all admirals, captains, or commanders of ships within inii jurisdiction. * tn ^«^"''^' are tried before either jurisdiction according to the course of the common law, and with the assistanc? of a grand and petty jury. PvL?"'''"^' ^""^ *^^ ^"^^' ^^ ^ challenge to the same extent as upon a trial for an offence committed upon Ji.Ti%'?u^"fr P'''''^'^ ^y^^^ commissioners can only be averted by the exercise of the prerogative of pardon. ki JAMArCA. 3(;| Seritn^li'^'r'' «''-'^"«^' <^^eept in treason and murder, when the Governor can only reprieve until the pleasure ofHis Majesty is signified. clerk orfrrZ ""^ ^^'? .V""'* of Admiralty Sessions are the Clerk ot .irraigns and the marshal. Aheaipointment of the Litter is permanent the lormer i« nominated by the judge of the cSurt of Vice-AdSty ZL, ^47™'''«" ^^'"g issued. -1 Hep. W. I. C. 2d Custodes and Justices of the Peace. The custom is appointed by commission under the hand and seal of the Governor, or person exercising ] e functmns of Governor. His duties are similar to Those ot the custos rotulorum of a county in England. His iu- hetT' 'n "t^l!TJ^ beycfd the piish foi whi'cl^ no^s pleVsure ^"^^" ^"' ""^'^ '^"""^ '^'^ ^^'''^ He has the appointment oi the clerk of the peace. Justices of the peace are also appointed by the Gover- nor, by whom they are removable at pleasure. Their duties are those wlich belong to that office in England pulation. Their jurisdiction is limited to the parishes for which they are respectively appointed. ^ Ihere is no qualification of property requisite to their appointment, but they are generally freeholders. I he custos generally recommends a person to the office ot justice, but such recommendation is not essential to the appointment. '"^ The justices of the peace have a judicial criminal juris- diction under certain acts of the legislature, reguS the police of their parishes, exclusive'of their jurisdiction Skve Court^ '' """ '^ '^'' ^"'"^'"^ ^^^^^°"^ ^"^ Two justices of the peace, under the act 55 Geo. 3 c 19, can hear and decide in a summary way matters in disi similar way civil cases between party and party to the amount of forty shillings. " party to the The proceedings in these cases are not removable into another court.-l Rep. W. I. C. 2d series, 75, 76 Ml t I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ^ ii& ill 2.0 1.8 M 1116 ^h ^ n (yi ^/). '^> -^ .f^ //a <^ Photographic Sciences Corporation ^ iP V :\ V \ ^9) V c.^ ^^ ^^ "%^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 '"<^'*% V.4^ I 362 JAMAICA. Court of Quarter Sessions. ^u ^^ V^"*'*^ ^^ composed of three or more magistrates : three, however, are required to form a court. as chalrma***^* °'' ^" ^'^ absence the senior magistrate, sits The jurisdiction of the Court of Quarter Sessions, as a court of criminal judicature, is co-extensive with that exercised by the Court of Quarter Sessions in England, and the court is assisted by a grand and petit jury. Ihe indictments are prepared by the clerk of the peace, and prosecutions are conducted by him. Counsel occasionally attend, attornies at law frequently; but m most mstances the parties act for themselves. I his court has a concurrent jurisdiction with the Su- preme and Assize Courts in those criminal cases which do not extend to life, or in which an exclusive jurisdiction is not given to the latter courts. The punishments which can be inflicted by this court are hne, imprisonment, and whipping ; and its sentences are carried mto execution by the provost marshal or his deputy.—l Rep. W. I. C. 2d series, 77. « ' 1 1 Insolvents. There are no bankrupt laws in this colony, but there is ail Island Act for the reliet of insolvent debtors, the 4th ixeo.4.,c. 11 under which an insolvent debtor may ob- tamliis discharge by a surrender of all his effects, and there is no distmction between the cases of trader and non-trader.-l Rep. W. I. C. 2d series, 87. Attorney- General. This officer is appointed by letters-patent from His Ma- jesty and removable by him alone. He may be suspended by the Governor with the advice of the council until His Majesty s pleasure be known. He is usually appointed a member of His Majesty's i^ouncil, but IS not necessarily so. With respect to all criminal prosecutions, the office is JAMAICA. 863 anrclerkorofficf ^P'"^™"™'™'' '"« '-" ""owed cem^thf ?•■'' ""ii*! "^"'^ "' ''I''* <=»"»»«> attend, ex- act for him there. ^PI""'"'' * ''an-ister to He possesses and exercises the same power as th. Attorney-General of England in enterin/» !L;! Colonial Secretary, He has leased his office to the present actins secretarv recT^JL'tt'lSe'rre oSf " "^jf* 1 "^ r™"' The remainder nf 1, V! i ' ""*' """"'er of ,«20. act 56 Geo 3 c 19 """'"'""■"^ ^"-^ established by the Clerk of the CouneU ^ ^*^ ^''' '^^ ^''^^^^^^ '^"d aveTa^of" /8^'^'^'^ ^'''"'^'"^ ^"« emoluments at an « s s y • I i . i NORTH AMERICAN COLONIES. THE BAHAMAS. The first m the list of those colonies, which are usually denominated the North An-.rican Colonies, are the Ba- hamas, or Lucayan Islands. The chain of islands which bears this nam^ is of vast extent. The islands lie from latitude 21^30' to 2^ 30', and from 74« to 80" wlS loT gitude. rhey are composed of innumerable rocky islets, called keys and islands, of which not more than 12 or 14 ai-e inhabited The settled islands are stated to be New Turk^Tf' 1'%7^'t ^^1^'^"' *^^ ^^Pit^^' is situated,) Turks Island, Eleuthera, Exama and its keys. Harbour vadnr ^^if \"^!' ?'"°¥ '^^^"^' ^°"g I«^«'^i St. Sal- vador (the first place discovered by Columbus, and so named because it was discovered within the three days, at the end of which he had been compelled by his mu- tinous crews to promise to return to Spain, if before the expiration of that time they did not see land,) the r^i^os, Wathngs Island^ Rum Key and Henegua. Some .f the largest of the Bahamas, such as the Great Bahama and Lucaya, are still uninhabited. On their first discovery the Spaniards carried off or destroyed the inhabitants and until about 1629, the whole of the islands are said to have remained unpeopled. They rise, it is said, almost perpendicularly from an immense depth of water, and seem to have been formed ti-om an accumulation of shells and sand. At the utmost depth to which the inhabitants have penetrated, nothing has been found but calcareous rock^^ an intermixture of shells. (1) T he calcareous (1) 4 B. Edwards, 224, citing M'Kinnen. THE BAHAMAS. 967 depth. The climate is healthy. There are no rivers and streams, but water is easily obtained by diffginir wells Cotton, salt mahogany, dying woods, turtle.^Lcf fru ,' are the exportable commodities of these islands. HISTORY AND CONSTITUTION. New Providence was settled in 1629 by the Endish but they wer^e expeUed in 1641 by the SpankrdT who though they did not settle there, seemed determinedThat* no one ^ .se shou M d^ so. The colony was reTettled by the Enghsh m 1666, but they were again expelled hi a combined French and Spanish fleet in 17ol. New Providence then became the resort of pirates, whosl fe im '' ^r.t r P^".^^ '''' goverLent%oTnter. lere m 1718, and they determined to resettle the colony. ind^of rLT-' ^"PP^^i by a force under the S: Kfn f ,^^P*^J» Wj'odes Rogers. Settlements again began to be made, and in 1740 the town and harbour of Nassau were fortified. The islands were attacked L PhiLjS°™™°.'^°'".**,«P^^"^' ^i^h a squadron from ui nP^'^^^?^ capUulated in 1781 to a Spanish force under Don Galvez. By the treaty of 1783 they were res ored to the British crown, but Vhile that tSywas under consideration in Europe, the islands the^ ^iTes WCoBd/' " ' "^T ^^"^"* -dromantfcuJne by Colonel Deyeaux, an Ameucan royalist. At the close many'o?;^:''' " ?'f' ^"-^^^"'^ ^^^ ^^^ then engagS! Tnpw P -7^^''' P'I'y '"^"^^"S *b^ Americans settled m New Providence. In 1787 Nassau was declared a lTde';eU"u'al" \lf *'^ ^"^"T '^^^^^ » -« maae perpetual. It has ever since been numbered amona nid tde^^^r *'' """ '" **^^ ^^^^ relating to^S of ll?r^l;eT'"' ^^ 'PP''^"^^' ^y '''' ^--^ -n-t« The House of Assembly is composed of members re turned by the different island.. Their nuX Ts bT tween twenty and thirty. (3) The possession ofloo acres it Ml (.9 It] 4B. Edwltm!'" "^J'^*' ' "^ * ^- *' ^•^^' 368 THE BAHAMAS. of cultivated land, or of property to the value of £2000 currency, is the qualification required in a candidate. Ihe electors are all free white persons, who have resided twelve months within the ffovernment, for six of which they must have been householders or freeholders, or in de^tault of that, must have paid duties to the amount of ACTS OP THE LEGISLATURE. These, at the period of the commissioners' visit to the colony, were comprised in four printed volumes, and in four parts of a fifth volume, extending to the date of De- cember, 1824. See the third Report W. I. C. second series, 21 . 4 Geo. 3, c. 1, An Act "for the public registering and recordmg all deeds or conveyances that are or shall be made of any lands, tenements, or hereditaments, negros vessels, goods, or effects, within the Bahama Islands •" subsequently amended by 46 Geo. 3, c. 16, and bv the 2Geo.4,c. 36. ^ The twelfth and last clause of the 46 Geo. 3, c. 16 declares, that deeds or conveyances first recorded shall have priority of other deeds or conveyances of the same lands, &c., although of prior date. 40 Geo. 3, c. 2, An Act " to declare how much the laws of England are practicable within the Bahama Islands, and ought to be in force within the same." This is what is termed the Declaratory Act of the Bahama Islands, and does not admit of abridgment. It gives a full and clear account of what part of the law of the mother country shall be deemed to be of force and binding in the colony, instead of leaving it to the varying discretion of the judges from time to time, as is the case in many of the other colonies. The preamble of the act is curious. It declares, that "whereas the common law of England is the best birth- right of Englishmen and of their descendants, but never- theless is not in all respects applicable to the circum- stances and condition of new and distant colonies ; and whereas doubts have arisen how far the acts of parlia- ment in which the colonies and plantations are not ex- pressly mentioned or included under general words, do extend to these colonies and plantations ; by reason whereof your Majesty's liege subjects of these islands THE BAHAMAS. ^^ ^ave sometimes been in ^„ « the benefit of many" L^od fnd "^h "?''"« ^^P'^^^^ of whereas it is expedfenf that afj T^t.T" ^*^«' ^^^ concerning a subject of such ii^^ ^^ ^'^^^^ «^«y therefore declared that fV! ^'^^ importance; be it a 1 cases, where^l'tme haTn„?H^" °( ^"?'^"^ >n of the acts or statutes h^reinafL °' *"""" ^'*"'«^ ^y any act or acts of the AssemMv p .u^""™''*'^ted, or by any niuch thereof as hath ^^^l^ l^'f' "'«"?«, (o^^Jptsl nures, to outlawries in civi Nn!. .*H ""^'^"^ fe"* " the Court of ViceS^: ™' h*'court ^f A?'^"?' sessions, the Inferior Court for the IsUnd of 6''""{?"y vidence, and the Inferior Court for the Turt°<.7?/™" Tlie system of laws wl.,,.1, J "'.".^"'ks Islands. describe/to belSd „^t tKs'"ftl""?7' •'^ (0 See ante, p. 32, n. 5. B B^ it 1 (At A l\ 372 THE BAHAMAS. ij t fl been altered by any of the said statutes or acts of Parlia- ">ent, or by any act of the Assembly of these islands." Where a question arises, whether or not a certain Kn^hsh act of Parliament be in force in the colony, the decision of course rests with the judges of the court before whom the point is raised ; but the following was laid down to the Commissioners as the general principle by which such a question would be determined ; premising that by His Majesty's commission the Governor of the settlement is appointed Captain Genera! and Governor in » il" '^"^ °^®'" " °"^ Bahama Islands in America:' "The law of England extends to the colony, if the Bahama Islands eo nomine be included, as in the 28 Geo. 3, c. G, and in some of the revenue and in the free port acts; or if the words of the law are so general as necessarily to include them, a.«. for example, the statute 8 Geo. 1, c. 24, for the more effectual suppression of piracy, which extends by the very words of it to Asia, Africa, and America, and the late acts of Pailiament for abolishing the slave trade, and for making the same felony and piracy." "The act also of 19 Geo. 2, c. 30, for the better er- couragement of His Majesty's Sugar Colonies in America, (which prevents seamen in the merchant service from being impressed,) has been held on many occasions, by the general court of this colony, to be in force therein." The acts of the legislature of this colony are in the first instance, as in the other colonies, prepared by the mem- bers themselves, who bring them forward, and not by one or more individuals of legal knowledge appointed for the purpose, and are promulgated by printing. The commis- sioners recommend the latter as the preferable course. 1 hey are deemed to be in force from the time they have been assented to by the Governor, unless, of course, they contain, as in some they must, a suspending clause, and they are taken notice of by the courts judicially and ex officio. '' The Ifabeas Corpus Act, 31 Car. 2, c. 2, is in force tion^d"" "^ Colonial Declaratory Act before men- The writ issues, ex- debito jnstitia, out of the general court, and would also (although an instance had not been known) be issued out of the Court of Chancery. The act 5 Geo. 2, c. 7, « for the more easy recovery of debts in the plantations," was adopted by the Colonial THE BAHAMAS. gyg ^""c '*f ^^lin f ''• ^; ^"*' ^''^^ »*«^"*^ «f ^''•^"Js (29 Car. inr^^uv'^^^''^'' '••'•*'^' «"J also the following acts fiv ^g the hmuation of time for criminal proJSon'a.ui c 44 a^to „n/ '''''''"'« ".*^ ""'^^ 5" ''»^' ^t'^t- 24- Geo. 2, 1^1 z.c. o, concernmg informers ; and the 7tli Wm .'J c ohrI:son'^'"'Thf "-'^ T -«- of treason and Z^rt^:;^ amis thlrpJn ; '^ r*/'"^ *'l^ ^'">« within which certain lanus therem specihed must be put in suit. Counsel and Attornies. prSrsio 'nf ".• ''^' '7"^'^' '^"o'""'^^' «oJ'"tors, and ii^itl;r^^^£-^- Bench or r '"•"''* T,? ""^"''^y '" ^l>^ Court of Kinoes have se/vedTfi-^^^^^ England or Ireland, or slmll Practice of the Courts. hZtT.'\'^'' ^°''^* regulation prohibiting a party from bemg heard in person in any of the courts here ^ ;« fn ''^'^^^'^^ a.^e opposed to persons applying to sue T//e General Court. latTre^Tl'l'^^Yfn^'^'^"^ ^^ ^" ^^^ o^ *»>^ 'o<^al legis- three di^Zf r If ^'°; '^' ""^J^ -'"Powered to exercise cn'min.] .^ ^^^' •"' "'^''^^ "^ jurisdiction, viz. a civil, '"T .K ^"*^ ?l'""' jurisdiction, but the latter, it ap- aS^dXHs^ir^^^ '''''''''' - distinct from i^a f 3. ii 3 '1*: i I 3' 374 THE BAHAMAS. There are three judges of this court, who all sit, what- ever may be the class of jurisdiction the court is then exercising, vtz. a chief and two assis ant justices, who are appointed by the Crown during pie? d. st^rling),but no other emoluments, except in ; he absence of the chief justice, when the senior assistant &^r^^ entitled to receive the fees of the chief.— 3 Rep. W. I. C. 2d series, 58. ^ \> f £f 'm Criminal Jurisdiction of the General Court. This court sits at the court-house in Nassau, (the seat ot government,) during three terms in each year, com- mencing respectively on the third Tuesday in January, April, and July. It exercises the same jurisdiction as the Court of Kings Bench in England, and is a Court of Uyer and rermnier and General Gaol Delivery. 1 he proceedings of the court are, in all material points (such as being grounded on previous exami.nations before a magistrate . i oath, the signing them by the party, and heiv being bound over to prosecute, and the like,) toge- ther with the form of indictment, pleading, &c. the same as m iiiUglapd. Only one instaijce was known of the court having or- dered a crimmal mformation to be filed, which was in the aT a gross misdemeanor; but the powers of the Attorney-General to file such informations ex officio, were conce'ved to be similar to those of the Aitornev-General iii iiingiand. % THE BAHAMAS. 375 anP ff f"' '™P^°"^""'g' ^"'^ securing the attend- ZlidlFf J^'T f ^ '^' ''S^' «*" Mhnge, &c are man of 1' ^y ^J^^^ act (46 Geo. 3, c. 4.) The W man of the grand jury is appointed by the com^ the petit jury chooses its own &an. The grand iurv is charged by the chief justice or presiding juXe Sre entering upon the discharge of its duty. "^ ** on beSnf'^vf ^^''''- ^ "P°^ '^^ *"^^ *« address the jury on behalf of the prisoner in al! cases, and the comm^? sioners were informed that no ineonie^ence had eve" Tl T^*° '^'"^' ^'^'^ «"«^^ a practice. lUe chief justice or presiding judge sums ur> the evi Thfifo ^'T*""""^ r'^' *^^ ^^'^^»» taking notes n; ^j*^,,^«orney-GeneraI has frequently, it is said exer- cised the power of entering a nolle i;oL/« , both h ca^ tal cases and in prosecutions for miL offences. clerk o??br *^^ '?";' ^'^ '^'^ P^«^°«t "marshal, the Clerk ot the crown, and the crier of the court- th^ fir«f IS appointed by the Crown, the secL^X Governot nffirl A "^"^^ '^ '^^ ^*^'^^" J^^tJ^e- They all hold thelv offices during pleasure.-3 Rep. W. I. C. /d series, 59, 6a Civil Jurisdiction oft/ie General Court. The General Court sits as a court of civil jurisdiction at the court-house in the town of Nassau, dSg three jaTui;ritir"'i'ri"^"^^?^.«" ^^^ thi;d'SdayT January, April, and July, and has jurisdiction in all ac- tions of which the Court of Common Pleas in England wpl^^fv/^^^^^'^r^*^*^^^ by which this court is guided stanHudtes'" l7''' ^^?^^ ^^ '^'^ *'^^" chief a^nd as- sistant judges, and do not differ in any material resnect slmlr""^^ '"i '''' ^-''^ of C^ommoTpieasr^^^^ f^mpl P^"'*'S^" England. The pleadings are dso The dower of a married woman may be barred bv pri- va e examination before a judge, and by a law of ?hs colony now m fnvPA rn^ n^J q^. -.^^ .^, , " ^} ^"l^ now in force (51 Geo: 3 o.^r. ^ l„,V""" -" --' «.ay by deed convey the estate of ihe^wiCor";!' the hIiL' a is •4 I's "*3 A. ■I ' ^6 THE BAHAMAS. band and wife jointly, situate in the colony, without fine ol' recovery. The action of ejectment is the usual action resorted to lor the trial of titles to land, and may be barred by twenty years adverse possession. Personal actions are commenced by writ of capias. served by the provost marshal or his deputy, and a de- fendant may be held to bail for any sum above £20 cur- rency, upon affidavit of the debt made before one of the judges or the prothonotary, and filed, but not otherwise. 1 here appears to be no legal mode by which a plaintiff can attach, m the hands of a third person, debts due to the defendant—S Rep. W. I. C. 2d series, 60, 61. Written depositions of witnesses are allowed to be given m evidence, provided it be proved by affidavit that the witness IS not m the colony at the time his deposition is tendered ; and they are taken under the usual precautions otrfeA^«em^ examinations, according to the provisions of the General Court Act.-3 Rep. W. I. C. 2d series, 62. Judgment ijiay be entered up at any time after the ex- piration of eight days next after the trial of the last cause m term (which is here called the adjournment day), and execution may issue on the day after sucn adjournment Lands are bound by the judgment from the time of its being signed by the judge and filed with the prothonotary. (which IS equivalent to docketing in England,) and such lands may be sold under the writ of fieri facias. Goods f« In5 i* IS'ft^^^""'^ °"'y *'''°'" *h^ ti™e the execution IS Jodged with the provost marshal. No elegit, nor any process in the nature of such a writ IS known m practice here. ' rJ^^^^f^::^!^'^'' superannuated, and use^r strtfe"' '' '' "^'' ""''' ^^"^""y ^"^P-^^'l -^ tl.f^r'^f V^'u *!f"^' °*'*^^ ^^'"^ °^' ^^v'«ee a^'e "able for Infh^t °^*^^^^^^^or or ancestor, if the personal assets m the hands of the executor or administrator are insuffi- cient to pay the same. Hni^" ^"^"f^ of redemption may be sold under an execu- tion issued on a judgment of this court. An appeal lies from this court to the Court of Error K^-....i,^.^a ui i,iu vxovemor ami Council) in all cases THE BAHAMAS. 377 ^vhere the sum in dispute amounts to £300 sterling, and the proceedings m the court below are at once stayed by the writ of error.-3 Rep. W. I. C. 2d series, 63. ^ Revenue Jurisdiction of the Superior Court and Escheats. It appears that the General Court has never exercised any distinct revenue jurisdiction as a Court of Exchequer, whether m regard to escheats or the like, but in cases of persons dying intestate and without heirs, or legal per- sona representatives, seised or possessed of real or per- sonal estate, (which however is not of common occurrence Pernor ?s T'^ *?." ^'^''^^t^' ^'^ laid before the Go- InH W ^^,^""^"°^' a« t« the escheat of the real estate, and before the Governor, as ordinary, with regard to the iSri ^T^-'-^' '^' ""™'"^^ °f *l^^ crown^btaining de?ea:ed^l";S^^^^^^^^^^ *" *'^ ''''''' ^"'^ ^^^^'« ^' ^^^ The practice with regard to the cases of such coloured persons, possessed of moderate property, as may diefn- testate, leaving only illegitimate children, appeL very liberal. It not being usual for the Attorney-Generalor escneat.— .) Rep. W. I. C. 2d series, 63, 64. Inferior Court. This court, over which one judge alone presides, who is appointed by the king's representative and ho ds his office during pleasure, was estabhshed by colonial enac - the time of the commission (viz., 45 Geo. 3, c. 22,) had jurisdiction over "all debts whether by bond, note account, book debt, assumpsit, or otherwise, and dso all Se'the\£b/"fPfr^' ^^"^S^'^' «^^"j""- «"«^ned wheie the rights of the crown, and the titles of lands are not concerned, provided the debt sued for, or the damages £20 1 'f i^""'"'^ '¥ f""^ «^ ^^' ^"d be not more t¥an ^20 lawful money of these islands." The jurisdiction of the court has since been raised to £40 currency. • 1 1 'V. Vt — ;v'"' "" "" '^""it us-ienas Deyond the island of New Providence to all other islands ™d keys 11 tie k Is f I I'i: 378 THE BAHAMAS. ^'^}''\^^'^8oyevnment except Turk's Islands, which have decision of this court to any other tribunal.-Sd Rep. w . 1. c Sid series, 64. * Courts of Appeal and Error. Pvi!:l!5^r^ "^'' ^^^^'^ *J^^ "S^* ^PP^^»"s to be rarely exercised here, from the judgments of the General Court, to the Governor and Council as composing a Court of unZ' ^f "'-^^^ latter tribunal to the King in Council. Com. i ! PrTT' ""^ f^^ ^^*^ ^^'^ti^n of the General Com t Act (Bah. Law, vol 2, p. 7,) as amended by 6 Geo. % c. », and of an express article in His Majesty's in- t?ttT ° *''^ ^^'f "°"^ ^"' "« weal will lie in the No judge who sat as a membpr of the court below, when the judgment appealed from was pronounced, can sit as a member of the Court of Error upon the hearing of the appeal from his decision ; but he is at Hberty to be present at such heanng, and to assign the reasons of the judgment given m the court below. '' "^'"*'""' Twenty days is the time limited within which the writ of error, (which is obtained on application to the governor and giving due security to prosecute,) must be procured, and on the issuing of the writ, all process of the court below is at once stayed. Costs are considei;ed in the discretion of the court, and aj-e taxed by the clerk of the council, who is also ea: officio clei^ and registrar of the Court of Error. His feefare, as indeed all the fees in this court, the same as those charged in the Court of Chancery. Court of Chancery. The judges of this court are the Governor of the colony h; m • ?^. ^^'"^' .*7''" presides,) and the members of liis Majesty s Council. The court possesses the same ordinary jurisdiction, within the colony, in addition to its general equity juris- diction, as is exercised by the Court of Chancery in iingland. In the cases of idiotcy and lunacy, a special power IS delegated to the Governor, by the express words 01 his instructions THE BAHAMAS. 379 In the case of infants the court has authority to anncmf guardians to their persons and estates. ^ ^^ "' Ihis court has no jurisdiction to assign dower- hut it may cause partition to be made of lands S i'n io„t tenancy, or tenancy in common, or coparceuarr '' Ihe proceedmgs of this court are, in all material nolni^ analogous to those in England, and the LXof ^^^^^^^^^^ which are used there, govern the practice and proceedings en^vtlinea T'^^*""*^ *^" 'f'^^^'^y °f witnesses are entei tamed by this court, and it also issues commissions to examme witnesses de bene esse. commissions wom^I,' r"'* "^""^^ entertain a bill on behalf of a married woman for a separate maintenance, on account of mfs Xiw' t" '".f"'' "^ '¥ 8^°-^ *'-* the wiffwouTd" Tnl ¥. ^"h«" remedy, inasmuch as a divorce propter sa^yztzam could not be obtained in the Courrof Ordinary in this colony, the jurisdiction of ^lich is ex- loTf 7b 'r *'^ ?:!,*y ^^'^^^^^ trmoriag "s "by ' ction 10 of the Consolidated Court Act under wh,V^ ♦? i pi;opertyofthemortgagor,whLsu;da^ may be taken m execution and sold. ^ ^^' In this colony no preference, it is said, is ffiven to cl^hfc a'SeJ """"l-'^"- *¥ ^^P^-- «f - plaS n, such as charges for supplies and repairs necessary to render thp etate productive In other colonies, wheJ^e th^op^^^^ alsJaPf",r.^"' °^™^«*^^« ^"ached to this court (and who also act as examiners) is not fixed or limited. dufe^ir offic"""'^ '"• *^^^ ^"^ '^-^-^•^- of the It is not requisite that a master should be a birn«f»,. ncn-^i^any particular qualification necessarrto'hreli: nffiT^^"' ;*"*^^^«^e *'ie same as are required of the liJcP oflicers of the Court of Chancery in England. ^^ ^.It^^::^:^^ --^«f thS suitors in their under the decree of the court. ^ ^ ^^^^^^"^ lb Ml I* 380 THE BAHAMAS. The public secretary, or registrar of records of the colony, discharges the duties of registrar of this court, which are stated to be generally the same as those executed ^y^^^}}^^ officer or his deputies in England.— 3d Rep. W. I. C. 2d series, 65, 66. * Court of Ordinary. The jurisdiction of the Court of Ordinary in the ^ahamas, is derived, as in all the other colonies, from the Kings commission to the Governor, and a special article in the governor s instructions. He possesses no jurisdiction to pronounce a sentence of divorce or alimony. All wills affecting real or personal property are proved in this court by oath of the executor and one at least of the subscnbing witnesses, should the latter be within the colony, if not, by the executor and some person acquainted with the handwriting of the testator. Probate thus passed has no other effect than to authenticate the right ot the executoi-, so far as relates to the personal estaXe of the deceased, nor does the objectionable practice prevail here, as it does m many of the other colonies, of the exe- cutor assuming the right to interfere with and possess himselt ot the real estate. Tl^ office of Registrar of this court is exercised (quasi ex officio) hy ihei^uhWc secretary of the records of the colony, and with him all the original wills, after they have been proved, are left, in order that they may be put on record, and afterwards remain in the registry. The probate is recorded with the will; inventories and ap- praisements of the estates are recorded also. The proceedings in this court in contested cases are w T r oA ^"^'°g^!i« *« those in England.-3d Rep. W . I. C. 2d series, 67. * Court of Vice-Admiralty. The jurisdiction of the Vice-Admiralty Court in these islands, is derived from His Majesty's commission of Vice- Admiral to the Governor. The judge is removeable at the pleasure of the Crown. He receives no salary, nor do the officers of the court, the registrar and marshal, but they arc all paid by fees, which THE BAHAMAS. 381 are established by an Act of Assembly of the colony (7 In no case is the court aided by a jury. The subject-matters of its jurisdiction are, generally speaking cases of revenue seizures. Cases of salvage and suits for seamen's wages are, it is said, rarely brought before the court. ^ ^ The laws which this court follows in the discharge of Its tunctions are those by which the High Court of Ad- miralty m England (sitting as an Instance Court of Admi- ralty) would be governed. The jurisdiction of this court extends to cases of smuggled goods. Parties desirous of appeahng from this court to the High Court of Admu-alty in England, must pray for such appeal withm fourteen days after judgment, and enter into a bond m i-^OO sterling to prosecute the same.-3 Kep. W. I. C. 2d series, 68, 69. Court of Admiralty Sessions. This court derives its jurisdiction from a Colonial Act passed m the year 1805, which empowers the Governor to issue a commission under the great seal of these is- lands, directed to the judges of the Vice-Admiralty Court for the time being, the judges of the General Court, and such other substantial persons as by his Excellency shall be named, for the trial of all murders and other offences Sdiction*"" ^'^^ ^^''^* '^^^''^ '^^ Admiralty hath The sentences of the court, which are in all cases sub- mitted to the Governor before being carried into execution are npt considered by the local authorities subject to re- vision by any other court, but a motion in arrest of jude- ment might, they said, be made in this as well as ii the General Court. fi, J^^ f^Tl""^ *^'' court are the provost marshal and the clerk of the crown, the former o/^whom is appointed by the Crown and has a salary of £50 currency, the latter by the Governor with a salary of £40 currency; they re- ceive no fees, and are removable at pleasure.-3 Rep". W I. C. 2d series, 69. ^ ' Justices of the Peace. The justices of the peace in this colony are appointed by the Governor, and are removable at h-'s pleasure. sat THE BAHAMAS. Their duties generally are of the same nature as is exercised by justices of the peace in England ; and, in ad- mtion, they are empowered by a local act (la Geo. 3. c. 1 ) to decide m a summary way " civil claims for all manner of debts, trespasses, or damages, to the value of £3 Bahama ceraed''"* "'' "" '* wherein the title to lands is not con- Their mode Qf taking examinations on criminal charges En ,^^^j°^"'*^"^«« ^o«s not di^er from the practice in Free Coloured Persons. By the Colonial Act, 29 Geo. 2, all persons above three degrees removed m a lineal descent from the negro an- cestor exclusive are deemed whites, and entitled to all the privileges of that class, provided they are free and brought up in the Christian religion. Escheats. In cases of escheats, slaves, it was said, would become the property of the Crown. This rule must of course be subject to alterations as to the possession of such pro- perty now introduced by the Slavery Abolition Act. Insolvents. There are no bankrupt laws in this colony, and the examinants said that their introduction would be bv no means desirable. Bv the law at present iu force, under which no frauds have been committed, and which indeed the examinants said, in express terms, « has been found to be a sufficient security to the creditor," a prisoner for debt, on delivering up upon oath in the usual form, all his property to his creditors, and making affidavit that he IS unable to maintain himself, is entitled to an allowance from the creditor of 1*. 6d. per diem, and on failure of payment of the same to be discharged.— 3 Rep. W. I. C. 'vCi series, to. Ill Attorney and Solicitor-General. The duties of these officers differ in no respect from those of the Attorney and Solicitor-General in the ether THE BAHAMAS. 383 coloniea visited under the commission, and thev in lik^ ^Zre:'"" "PP""'^' '^^'^^ ^-- -^ rSle'at Court Act. The Solicitor. JeneraH^as no L/a^ Colonial Secretary, The duties oMuT^ml f • , ^*^^"ng Per annum. gives any security to the coloni. """^^'^^"^^^^the persons cretai^J^'^tf^" ffi ^""^^'"^ *^" appointment of colonial se- cietaiy, this officer is ex officio c\f^r]c nf t\^^ ^"*"I"«i se- Provost Marshal. be " 178? H ' "k' "PPoin'-nent (1835) aince SVptem- .flOOO currency General Court) in H s emoluments are thus enumerated by hfm !^"'as " o " ^p^ - b?e ntST V,d'ff S" the Admiralty its;,; £^*'t-™'=?--'." """•*»'. "^ the Inferior Court for "' ' ' "" " 3 s Kecovery of Small Debts m 964 THE BAHAMAS. E ■■1.11- i^rn^nT'"!'".'? '^^^^.^""ency. These emoluments are arf^nl ^p^^^'^^t^^^^'"^ regulated by colonial en. actments.— 3 Rep. W. I. C. 2d series, 74. There are two coroners within this government on? IsLndl'^ Providence, the other for the Turk's Their duties, powers and authorities, were stated to be similar to those of the same officer ii England Thev C.7d series! 76:"'''""'^ ""^ '"'^ inquest.-3 Rep. W. I. Police Magistrate or Officer. wJJl'tf^f ' '' appointed by the Governor and remova- ble at his pleasure. His duties at the time of the com- mission were regulated by the Colonial Act. 57 Geo. 3 c 8 and smce by the 8 Geo. 4, c. 2. They do not seem to fl^ ^»y particular observations. He has a salary of c£800 currency, with certain fees as regulated by the Co lonial Fee Bill.-3 Rep. W. I. C. 2d Lies, 76.^ Appeals to the King in Council. An appeal to His Majesty in Council lies immediatelv from the decree (but in no case from the inTeriocutorv order) of the Court of Chancery, provided thesum in d'X pute (exclusive of costs) exceeds ^500 sterling, Sid that the appeal be craved and entered within fourteen days . an appeal lies also to the same tribunal from the Court of eZrfZrl """ '" '^^" ^""^^ '^^^h- fr- the It is the province of the Governor, and to him must Coundl ' ^"^ ^'^"* ^" ^PP^^^ *^ ^^^ Ki"r^n Personal security is it seems, admitted m cases of ap- peal.— 3 Rep. W. I. C. 2d series, 76. ^ Foreign Judgments and Contracts. A judgment obtained in England, or elsewhere, is held THE BAHAMAS. 38.5 tLZhl^^'! ^'"''' ^"^ ^^'"'J" *^^ ^'^"rts Of this colony than that upon an action of debt brought in the co onv hew'vTJet' 'fm ^''^'^'y authenticated wouft face of i?T.nf f '^'^*' '"PP°""« °^««""« that, on the lace of It It did not appear unjust and contrary to reason The judgments of an English court of competenUuiis* diction, ,n cases of bankruptcy, have been held in thl" stS^fthe^h^" ^^^' tL'assigneesrve'Xn ^o ! session of the bankrupt's personal property, and brought actions against others for debts due to the bankrupt The rea estate of the bankrupt has been in such cases "wZ'nt '^^ V.**^^ '?"'^^"P' *« the asdgnees! ' h..hl ?^g"«^d»an of a minor, appointed in England Sertv nf"r''''^".' of d sposing of or incumbering thf pro perty of his ward within the colony, it has been usual it :ZZ\t '''"" '''^""t r-^'^'"^ priv^teTctTis! Absentees. No process can issue from the courts here acainst a person who has never been in the colony. If aTrme? resident has removed and been absent twelve months,Ter' vice of process at his last place of abode will be good parture.— J Kep. W. I. C. 2d series, 77. Marriages, Marriages are usually solemnized in this colony by a minister of the established church, after the publication of banns or by hcense from the Governor as ordinary. (2^ Where there is no resident minister (as in the out islands the Governor, by license, authorizes some magistrate to perform the ceremony The only Act of Parlfament re- lating to marriages in force here is the 32 Hen. 8 c 8 On a question which was put by the commissioners as to the effect of a marriage celebrated abroad according to the law of the country, ^-here the same was had be- 3 (2) See ante, p. 32, CC 9» THE BAHAMAS. I twecn persons poHsessed of real property, in regard to thii property, supposing the law of the two places to differ thereon, the examinants stated as their opinion that the wite would in such case be entitled to dower in the real estate, according to the laws of England which prevail here, and they thought it would make no difference in this respect whether the marriage had been celebrated hon& Jiae, or mfraudem legit domicilii originis. The examinants further stated that a marriage cele- brated out of the colony, between parties who had children before such marriage, would not have the effect of legiti- matin|r guch children in this colony, although a contrary law might prevad where such marriage was solemnizecL as in Scotland, for example.-3 Kep. W. I. C. 2d series, • 7| 7o. Wills, Intestacy, %c. In regard to the power of devising and bequeathing real and personal estate in this colony, and the solemnities requisite to the validity of a will disposing of the same. the law of England is followed here; and no distinction prevails in this respect between the wills of white or of coloured persons. In the case of a devise of lands in this colony by a will executed abroad, the examinants said the same would be invalid, unless the provisions of the statute of frauds (29 Car. 2, c. 3,) in regard to the number of subscribing wit- nesses had been complied with. The law of descents in this colony, and the law for the diati-ibution of personal estates in cases of intestacy, follow in all respects the laws of England regulating the same matters.-3 Rep. W. I. C. 2d series, 78 ^ Passes to Quit the Colony. By an act of this colony (1 Bahama Laws, p. ,>),3,) eVery person who has been resident therein for thv-ty ijavp or upwards, wishing to depart, is obliged to affix : . ' .ume to a paper in the colonial secretary's office, and to give fifteen days' notice of such his intention, before he can obtain what is called a pass. This pass may be withheld at the instance of any creditor of the person so announc- i •V,' THE BAHAMAS. S87 I :!h cc3 ifb'ii ( 888 ) THE BERMUDAS OR SOMERS' ISLANDS. «M The Bermudas are situated between the 31st and 32d degrees ofnorth latitude, and the 64th and 65th of west longitude. Their first name is said to be derived from John Bermudez, a Spaniard, who touched upon them in 13^-» -."lonj— — = -»v -ect to the laws oi- the mother country. on3„„re=ub- 902 THE BERMUDAS. trfbution^^''' ^ebts of deceased discovered after such dis- Governor may grant administration cum testamento an- nexo as heretofore. Q AT^5«»t^'^7n?twithstanding; nevertheless, the led r.n f ""T'"? ^''"°*' '^' '^^' "°'hi"g here^« con- tained shall for the future extend or be Construed to h ndei any person or persons who shall have any claim or twT/T'T" °'; ^'^^^r-^'*' *« any lands, &c. within these islands ; but that all such persons may claim or atTnl /' ""' -r' '"'* °' ^"*^^"' ^"'l prosecute the same at any time withm twenty years from the cause of action to Pfflf •''T ' ^"? ^^' ^^"* «^^"ch <^'^'"» «r prosecution for .vt '" ^'^ ''^^"^'' *° ^^ ""^^^y disabled and barred ..3!°.*^'"^ contained in this act shall extend to any feme oSr''T°S""'fu"^ ™"^d' "'^^"t' person imprisoned, or otherwise hindered beyond the seas ; but that any such person or persons, notwithstanding the said twenty years anv'fhrt ™- ^ claim «r bring his or their suit or action, any thing herein contained to the contrary notwithstandl ing Provided that every such person shall put in his suu ConrTnf R P^o^ccute the Same effectually within some Court of Record within these islands, within the term of seven years next ensuing after their discoverture, comino- nVbto r"^- r ^^^^",'gc, being at hberty, and return^ mg into these islands, otherwise to be for ever excluded. 19 Geo. S.--An Act directing what Conveyances shall be sufficient to pass the Real Estates of Women under Co- verture.^22d May, 1779. All wills, deeds, or other conveyances heretofore made ana executed by any woman under coverture, for valuable THE BERMUDAS. 393 consideration for the passing of any lands or tenements m these islands, shall be deemed and are hereby declared to be as good and sufficient for the conveying of such lands and tenements, to the grantees or devisees in such deeds or wills named, as if such woman had not been un- der coverture ; unless it can be m ide clearly to appear that such deeds or wills were executed contrary to the will and desire of the feme coverts who executed the same. Any deeds or other conveyances executed by any wo- men under coverture, and their husbands, for any lands or tenements m these islands, shall be as sufficient and ettectuai for the conveying and assuring such lands or te- nements to the grantees in such deeds or conveyances named, as if such women h«d not been under coverture : provided that the woman executing such deeds, &c., being for that purpose privily examined by the Chief Justice of the Courts of Common Pleas, KiL's Bench, and Assize, (4) for the time being, do confess that she executed such deeds, &c. voluntarily, and without the fear, thieai, or compulsion of her husband, and a certificate of such confession, under the hand and seal of such chief iw ' ^! i^'^T'^f """^ ^^^ ^^""^ «^ «"ch deeds, &c., and that such deeds, &c be recorded in the secretary's office of these islands within six calendar months next after the execution thereof. 43 Geo 3.~An Act in Addition to an Act intituled « An Act directing what Conveyances shall be sufficient to ^Tstf 4:180^" ^^' '^^"^'^ ""'''' ^^^^^"— The chief or any assistant justice may issue a commis- sion to any person to take the private acknowledgment of any feme covert who may have executed with her husband any deed for passing her real estate, such acknowledg- ment to be indorsed on, or annexed to such deed, under the hand and eal of the commissioner. Any deed made by a feme covert of her realty, and acknowledged by her before the chief, or if none, or ab- sent, any assistant justice or a commissioner, to bar such teme covert of her dower in such realty. (4) Or a commissioner, sec 43 Geo. 3. Sd4> THE BERMUDAS. if ^^Srf; ^T/!"- "^'^ ''*, ""'^^f^ *^' Limitation of certain ment7ftffr ""^/T*^^^ '^«^'''^ ^^M the Amende All warranties made by any tenant for life of any lands, &c., the same descending or coming to any person in re version or remainder, sLu be void and ofTone effecT and hkewise all collateral warranties made or^ny lands! &c. by any ancestor who has no estate of inheritance in possession in the same, shall be void against Ws£. ^^MortalZf" "^^A *"" ^'"T"' ^'•««''* ««^ Abuses in SToI MatfTSr^^^^^^ '^'^''^^^«''^^* «^ ^- anf exerZ^ ^^^^'"^ mortgages, &c. which shall be made fnfn ,t ^^"*^^ ^y any person of these islands, shall give mto the secretary's office of these islands the names of the 71 ZT T^ "^-^'tg-gee, the date of such mortgage &c cZ^ilCtL'^'''^^^^^^ ^'" and tfeimse! Zrtai tlKh'^f \'^'^ "7 P"''^^" ^^^^^S such mortgage, &c. fehall omit or neglect to comply with thp directions before mentioned, that then any perrjn who tSSrnf ) f * r*' '° *^^ '^'^ secretary's office Uie substance of such subsequent mortgage, &c.; in such ^ra'l'r"^'^" '^^^^'^^' ^^^" 'ei'eme^' the first mortgagee of such property, and recover the sum or sums CoZyr'^'f- by ^-^^h «"bsequent mortgage! any Couit of Record m these islands, in the sami Sanner as hirtnTtLfall^'.^^" ^"^ conditionally ~ed Jo ^^\hl^ that all other mortgages, &c. shall take place and their validity be ascertained and determined in such s^rt^VroT"- ?.*'^^ ^hallberegisterrLthe sa^S secretaiy s office, in the manner before directed. Ihe secretary for the time being, or his deputy shall kepTthTsuh'; "^"^^V" ^ '^°^^«' *^^^ p-p-e tt kept, the substance and contents of any mortgage, &c in the manner hereinbefore directed, together wfth the th^e when such report shall be to him made. 26 Geo. S.~An Jet for the better Recovery of Debts duP ObulT'''^ fj,^-' -^ '^- AssignZ^tofBoX Obligations, and Notes.—lOth May, 1786 ^"""*' ,.|„f ^lTl™^y b^ l^^ft^/ .% any person ^r persons to a««%n any bouu, ac. oy which the payment of any mo- , 'a , THE BERMUDAS. 895 nes shall be secured to such person or persons to any oi r.r''°" ?>• P^'^^""^ whatsoever, and that the assignee Xr S""''!.'"'^^''"" ""' indorsees, of such bond, &c®. by f. 1 nl r^ assignment or indorsement, shall have law- m1?^T- """"^"^^ ^"^ prosecute any suit at law, in dphf,! K *'''"u"^^°'*o"''™^«' f«^ the recovery of any rntl^ 1 5^,r'> ^"^^' ^"- «« *h^ «rst obligee might or could lawfully do: Provided that in any bond, &c. so made, assigned, indorsed, or transferred, the plaintiff shall allow a discount of all demands which the defendant the firTnS- l^*;"'* *^^ P'^'"*iff ^™««^f o"- against tint^A ^ ''?*'""^ '" *"°''^^ *•" ''""« 1st. 1796. (Con- tinued by subsequent acts to June 21st, 1826.) 27 Geo. 3.-~An Act declaring Houses, Lands, Tene- ^entsana other HereditanTents aud Real EsLtesin \e^T}t^^^' in the Bermuda Islands are declared sub- ixtPnlJ" ^T^'-f^debts of every kind, and may be seized, extended, and sold as personal estate for the like tjurl poses. r"^ Co^I'n^rl;^ '^^"^*' Of deceased are insufficient, the w. . ^^ancery may empower the executor or adminis- trator to sell all or sufficient part of deceased's real estate Sr . r- r?P''^^ **lP^y ^^' ^^^b^^' ^"d such exe! cutoi or administrator may then convey such real estate to Z^:^t:^j:''''' --'- ^^ '^ ^pp^^^ - -- orde^ agaTnttro^r "" "' "^^ ''''''' ^'^ ^^^^^^ -<* 29 Geo 3 --An Act to enable the Holders of Small Par- eels o Zand wM. the Bermuda Islands, in ZtZl MndTff- '"?,' '^ ^'' ^'"'P^'' ^^d directing the Mode oj doing the same.— l5ih July, 1789. Tenants in tail of not exceeding five acres mav aUpv Ztt 'Til ' 'T"^T '" ''' ^y bargainT/sdef f It ment, or lease and release recorded in the secretary's office : Provided that this act is not to be ccnstmed fn confirm or better any original title. Such conv^-ts ^vhcu cxecutea by married women, to be accompanVed 'I 1 396 THE BERMUDAS. w^rti the requisites prescribed by the !9 Geo. 3, ante, p. 60 Geo. 3.-An Act for the Relief of Insolvent Per- sons. (5)— 7th January, 1820. diihlr^! ^''^!? °^ P^"°"' discharged to vest on their discharge in the provost marshal, who, or his deputv must assign the same to such creditors as mayappWh; nine months, or to such of them as the majority LfeLt" onnJl^ assignees to have the same power of selling or conveying such estate as the debtor himself had. ^ heKt?r ?o;^Verdito"ll *'^ ^^-^^^^^ ^^--^ ^^ ^^ debts' '"^ ^'^''^"' '''^^''°" *'""S*"" «^*'«n« fo'^ tlieir an^I;^.o^R^"'^'*'*"*f ^^ *^^"^« ^«« been held not to apply to Bermuda, and therefore that a real estate there cTted ifth?^ ' "^" ™^'^ ^"i '''' ^°'-y though notte! .o^Kr^i^iSKx sfLjsir '- "--- - ( 397 ) •■^ THE CANADAS, This country lies between the 45th and 52d decrees of north latitude, and the 63d and 81st of west longitude ^om Greenwich. The territory of Hudson's Bay or ±iast Maine is its northern boundary. The Gulph of St. Lawrence, the River St. John, and part of the Labra- dor coast bound it on the east. Its southern limit is lormed partly by New Brunswick and pa:-tly by a portion of the territory of the United States, viz. the district of Maine, the province of New Hampshire, the state of Ver- mont, and that of New York. The western boundary was settled by the Act of Parliament of 1791, dividing the province of Quebec. The hne running between the provinces of Upper and Lower Canada is by that act di- rected to commence " at a stone boundary on the north bank of the lake St. Francis, at the Cove of Pointe au Baudette, in the limit between the township of Lancaster and the seignory of New Longueil. then along the north- ern boundary of the seignory of Vaudreuil running north twenty-five degrees east until it strikes the Ottawa river, to ascend the said river into the lake Temiscaming, and trom the head of the said lake by a line drawn due north until It strik'^s the boundary line of Hudson's Bay, in- cluding all the territory to the westward and southward of the said line to the utmost extent of the country known by the name of Canada."— Bouchette's Topography, pp. 1,3. Supp. Encylopaedia Britannica. The boundary line between the province of Upper Canada and the United States was finally settled by the King of the Netherlands. HISTORY AND CONSTITUTION. In the year 1497 Sebastian Cabot, holding a commission from Henry 7, of England, discovered the countries si- tuate on the south-west of the St. Lawrence. The Eng- 398 THE CAMADAS. hsh, however, did not make any use of the discovery, but the French began to fish for cod on the banks of New- toundland and along the coast of Canada early in the six- teenth century. ^ »n Ji^?7rJw °''L"°'' ''""''I' ^y *^^ ""'"^ of Canada was w^h /l '" ^^l possession of France, and, together with the remainder of her possessions in that part of nSic France "'""'"' '^ '''' appellation 'of La P.fnf'"! *^^ r^.' '^ ™ry «'^P<*'^'*ion« had sailed from France o colonize Canada, but an of them seemed to have failed most miserably. About 1605 Quebec was built, and from that time the settlements went on increas- !?*• l\}^^ ^v"^^* ^""^ ^"^^"^ ^y the English, but was Frtlt -.J." '?J'"'^ estimation as to be returned to the French withm three years afterwards. In 1663 Canada, which had till that period been a pro- prietary government, was raised to the dignity of a royal government, and from that time its Governors were ap- pointed by a regular commission from the King In 1759 it was conquered by General Wolfe. By the second article of the capitulation of Quebec, dated 18th September, 1759, the inhabitants were to b; maintained m the possession of their houses, goods, effects, and pri- TfT'r If- ''''*p article guaranteed the free exerdse nf th! .„ -^1 .• '^''?T; ^yf^^ twenty-seventh article of the capitulation of Montreal and the province of Ca- nada, the free exercise of the Catholic religion was guaranteed ; and the forty-sixth article secured all the privileges of trade to the Canadian merchants as to the other subjects of His Britannic Majesty. By the treaty olT,' |i?"!f. 7th. February, 1763, the Canadas were ceded to His Britannic Majesty, under certain provisions, founded in some measure on the articles of capitulation vfr'fhr^"''"*-*^- 1^" ^^\^'^ °^ ^^*«*>«^ ^» the same year the King issued a proclamation, the objects of which 7S i'l'u' • ^''^^ ^y '^^ capitulation and by the treaty ot Pans the inhabitants of Canada were treated as British subjects ;-in conformity with that understanding the pro- clamation was issued, and no distinction whatever was made between the old and newly-acquired subjects. The English criminal and civil law was established, with the laws of the Admiralty, and the trial by jury was to be em- ployed m both criminal and civil cases. In 1 774 a portion THE CANA0A8. of the old laws, chiefly relating to real property, was re- establiahed by the authority of an Act of Parliament, called the Quebec Act. Tiio effect of the general man- ner in which this act was worded, was to take away the habeas corpus and the trial by jury, but these were re- established, the first in 1784, and the second in 1785, by two ordinances issued under orders from England. In the year 1791 an Act of Parliament, which divided Ca- nada into the two provinces of Upper and Lower Canada, conferred on the people of both provinces their present representative governments. Mr. Pitt stated, on moving for leave to introduce the bill, that its object was " to put an end to the competition between the old French inhabi- tants and the new settlers from Britain or British colonies, which had occasioned the disputes and uncertainties re- specting law, &c." The legislative body was to be com- pDsed of the Governor, the Legislative Council, and the House of Assembly. The administrative body consisted of the Governor and an Executive Council. The Execu- tive Council of Lower Canada is composed of twelve members. (1) The Legislative Council is composed of thirty-three members, who are appointed by the Gover- nor.— Report of Select Committee on Canada, July 22d. 1828. ^ ' The House of Assembly in each province is elected every four years. By a proclamation of Sir A. Clarke, in 1792, the province of Lower Canada was divided into twenty-one counties, and the number of members to be returned was fixed at fifty. The qualification required IS " f (1) This statement is in part taken from Mr. Bouchette's book, the mostre- cent work on Canada, in which the de- tails of the form of government in that province are referred to. The Alma- nack for Lower Canada, for the year 1828, disagrees from Mr. Bouchette as to numbers, in this and one or two other instances. Tlie Alma- nack gives a list of the members, who amount only to eleven, including tlie Lord Chief Justice of the pro- vince and the Lord Bishop of Quebec, both of whom appear to hold seats in the Coiujcil in virtue of their respec- tive offices. The list of names of the members of the T^^gjslativc Council, in like manner, amount only to twenty- seven, including the Lord Chief Jus- tice of the Province, who is Speaker of the Council, and the Lord Bishop of Quebec. The list of the members of the House of Assembly of the Lower Province contains the names of fifty persons. The same Almanack gives tUe names of seven members of the Executive Council for Upper Ca- nada, of twenty members of the Le- gislative Council, and of forty-seven members of the House of Assembly there. The number of representa- tives for Lower Canada has since been altered by Act of Assembly. {JSee post.} 400 THE CANADAS, '■ ' n w ■ f f ii for a member h to have real property yieldinff 60*. a By a bill amended by the Legislative Council and Trlt l'8J^»^^^ """"T "^/--"bly on the 11th of March, 182i), the number of representatives for Lower Canada was fixed at eighty-four, the principle of which is to give two members for every 4000 inhabitants and up- Zve'l(^^ one for every number less than 4000 and loZ tlT' \ *^'! >?l^ab.tants are less in number than lUOO they are to vote m the next county. As?p"mw' ^%f^^'S}'' 18^0' ^«8 passed an Act of the Assembly of Upper Canada, reciting that from the rapid increase of the population of the province the number of representatives was too limited, and enacting that in fu- ture each and every county was formed and organized, or which shall or may hereafter be formed, the population of which shall amount to 1000 souls, shall be represented m the Provincial Parhament by one member, and when it amounts to mO by two members; and thit every town in which the Quarter Sessions for the district are held containing a population of 1000, shall likewise be repre' sented by one member. "-Report of the Select Commit- tee on the Civil Government of Canada, 22d July, 1828. House of Commons' Papers, 569. All the judges are appointed by the Governor. (2) The sheritt is an officer of the court removable at the will of of hi?dutier'*' ^""^ '*^''^'''^' "" '^^"^ ^''' *^^ performance The Governor of the respective provinces has power also, from time to time, by an instrument under the great seal of the province, to appoint and remove the speakers of the Legislative Councils of such provinces respectively. All questions before the Legislative Council and Assem- bly are determined by a majority of the persons present; and if they be equally divided in opinion, then the speake^ of the Council or of the Assembly, as it may be, has a casting vote. j » o » When a bill which has been passed by the Legislative Council and by the House of Assembly, in either of the (2) Query, is not this a mistalte ? The appointment may in form be under his warrant, but the higher judicial officers at least are believed to receive their appointments from home. This is the case at least in the other colonies. THE CANADAS. 401 provinces, is presented for His Majesty's assent to the Governor, he must, according to his discretion, but sub- ject to the provision of 31 Geo. 3, c. .31, und such instruc- lons as may horn time to time be given him in that be- liait by His Majesty, declare that he assents to such bill in ills Majesty's name, or that he withholds His Ma- jesty s assent from such bill, or that he reserves such bill tor the signification of His Majesty's pleasure thereon. And no bill which is reserved for the signification of rtis Majesty s pleasure thereon has any force till the Governor ot the province makes known, either by speech or message to the Legislative Council and Assembly of such province, or by proclamation, that such bill has been aid before His Majesty in Council, and that His Majesty lias been pleased to assent to the same. An entry is made in the journals of the Legislative Council of every such speech, message, or proclamation ; and a duplicate of it, duly attested, is delivered to the proper officer, to be kept among the public records of the province. Unless His Majesty's assent to such bill so reserved be so signified within two years after it is presented for liis Majesty s assent to the Governor, it has no force whatever. (3) COURTS OP LOWER CANADA. The judicial establishments of the colony are few and simple m their construction. At both Quebec and Montreal there is a separate inde- pendent court,~the first, the Court of King's Bench for Uie district of Quebec, the second, the Court of King's Bench for the district of Montreal. Both these courts have a criminal and a civil side. There is also an Admi- ralty Court, in which a single judge presides. He is generally one of the judges of the Court of King's Bench. At lUree Rivers there is a Provincial Court, over which a single judge also presides, and Gasp6 and St. Francis possess each a court of the same description. From all these courts, except the Admiralty Court, there is an ap- peal to a Court of Appeals at Quebec, composed of the (3) Howard's Laws of the Colonies, vol. ii. p. l, 5. But see ante, p. 44. i he order in Council there referred to says three years. m \'h ^2 THE CANADAS. Governor, or Lieutenant-Governor, the members of the The Court of King's Bench Consists of one Chief Justice, who is stvlerl ThW ^,a .ce of Ae Province of Lower dnada, a„?of 'hre'"! J^J fhl^^'J"^ "^'"^ °f *^ "o™ ="•« 'he Procureur du Roi The r™ ""f ?T?''.''"4*'' Advocate-General ' PK- f . "" "^'^ ,'^'"«" Ben* at Montreal consists of a of mLS?„ .*? ,V°"' "t'^'^S"^ B^"«h for "ri s°r « 01 Montreal, and of three other judges. Jus^trof mI^'^'T' ^' '^'l'"' '^■^■■'' ''^^'^ *« Chief judge,! P"'*'"'"'- "^^'^'ed ''y t''" o'l>« on Jljnrr"^"''" 9"?' '^^ "'<' «™« district consists of tTe:,::*;e^„"e'?r:vf„ J^a? jS^r "' '''"^'^ «-^'' »' «- anltthe\r"d;s^?"yt'",?°"*'?'^'™i°^«»'>^ over by one provindaSjudge. ""«'"'' '"''' ^"'"^'^ Court of Vice-Admiralty. Coroners. There are three coroners, one for the district of O,,. that adopredin Il^^l'^" "' P™'^«««"S - ^'"'^^ 'o Quarter Sessions. Thtll:Jran7at"oi!i'' =" «-"-. »' M-'-al, at THE CANADAS. 403 Salaries of Public Officers. From a paper printed by the House of Commons in the year 1830, (House of Commons' Papers, No. 73,) it ap- pears that in 18^9 the Lower Canada Assembly voted the following sums for the salaries of the various public offi- cers;— for the Governor-in-Chief £4500; Lieutenant- Governor £1500 ; Lieutenant-Governor of Gasp6, .£300 ; nine members of the Executive Council i'lOO each (4) ; the Speaker of the Legislative Council £900 (5) ; the Speaker oftheHouseof Assembly £900; the Lord Chief Justice of the province £1500; the Chief Justice of Montreal efllOO; six Puisne Judges (three at Quebec and three at Montreal) £900 each ; and three Provincial Judges i:600 each. The Judge of the Court of Vice-Admiralty (the senior Puisne Judge of the Court of King's Bench at Quebec) of 200 ; the Procureur du Roi £300 ; the Solici- tor-General ci'200; the Advocate-General £200; the Coroner at Quebec oflOO; the Coroner at Montreal c£100 ; the Coroner at Three Rivers ^50 ; the Chairman of the Quarter Sessions at Quebec ^£500; the Chairman of the Quarter Sessions at Montreal o£'500 ; the Chair- man of the Quarter Sessions at Three Rivers cf^SO ; the Chairman of the Quarter Sessions at Gaspe £225. COURTS IN UPPER CANADA. The courts for the administration of justice in Upper Canada appear, from the acts of the province, to be a Court of King's Bench, a Court of Assize for each dis- trict, a Court of Appeal, a District Court for each dis- trict, a Court of Quarter Sessions for each district, some petty Courts of Requests, a Court of Probate, and a Surrogate Court for each district ; there is also a Court of Chancery, but the laws give no information respecting It (4) This would shew Mr, Bou- chette's statement as to the number of the Council to be mistaken. The Lord Chief Justice of the province and the Lord Bishop of Quebec, who sit in Council in virtue of tlieir office, would of course receive no salary on thai accuur.t, and there would tiien remain, as staled in the Almanack, nine ordinary members. (5) In the Canada Almanack, the S|)eaker of the Legislative Council is stated to be the Lord Chief Justice of the province. In the most recent charters of Justice for other colonies the chief justice or any puisne judge is forbidden to accept any other office, aiidiiis acceptance, it is declared, shall vacate his office of chief justice or puisne judge. D d2 404 THE CANADAS. that, nor indeed any other courts than those which have been just enumerated.— Howard, vol. ii. p. 14. Court of King's Bench. \J^^r^ H Court of Record (6) and is styled "His Ma- jesty s Court of King's Bench for the Province of Upper Canada It possesses "all such powers and authorities as by the law of England are incident to a superior court of civil and criminal jurisdiction," and holds "pleas in all manner of actions or suits, as well criminal as civil, real, personal, and mixed, arising, happening, or being within the province ; and is authorized to proceed in such ac- lons, causes, or suits, by such process and course as will tend to JUS ice and despatch, to determine the same, and to hear and determine all issues at law, and by a iury of twelve men determine all issues of fact that may be joined in any such action, cause, or suit, and judgments thereon 8've, and execution thereon award, in a. full and ample manner as may be done by the Courts of King's Bench, i^ommon Pleas, or, in matters which regard the King's revenue, by the Court of Exchequer in England." ^ 1 le judges are a chief and two puisne judges. Ihis court must sit in a place certain, that is, in the city, town, or place where the Governor usually resides ; and the periods for Its sittings are during the four terms L ;iv Tiii'' ""?' ^- ^ 9^^^'>' 'r^^''"' ^J»ch commences on the thiul Monday i„ January and ends on the Saturday tl i^^r'^"^'""^' ''"^K' ^'''f^^' '1^^"^^' ^^J»ch commences on the IV.onday next after April IGth and ends on the Sa- ^n-day m the ensuing week ; Trinity Term, which com. mences on the first Monday in July and ends on the Sa- ^^7 ^"'"'"? ^^^^ 5 ^"^ Michaelmas Term, end onTrs"f ' r *'V' !"''' ^^""^^y "^ November and ends on the Saturday of the next ensuing week. Where ^' «nffl^- f F""-^ '^^'"" *^ ^^''^^'^ that there will not be sulTic.ent business to require its daily attendance thi-oughout term, it may adjourn on any return day to ?he next immediate return day.— g Howard, 14, 15 ^6) 32 Geo. 3, c. 2, L. C. (7) 3 Geo. 4. L. C. passed 17th Jan, 1 822. "■II THE CANADAS. 405 Courts of Assize. The Governor may, between Hilary and Easter anil between Trinity and Michaelmas Terms, issue commis- sions of Assize and Nisi Prius into the several districts of the province, for trying all issues joined in the Court of King's Bench, in any action arising in such districts. He may also issue a special commission at any time when ne- cessary.— 2 Howard, 15. ,. r Court of Appeal. ^ The Governor, Lieutenant-Governor, or person admi- nistering the government of the province, or the chief justice of the province, with any two or more members of the ^xecutive Council of the province, compose this court. But when any person having given the judgment appealed Irom IS a member of the Court of Appeal, he may assign to the court his reasons for delivering such judgment, but not give his vote in the decision of the question before the court. An appeal lies to this court from all judgments given in the Court of King's Bench, in all cases where the matter of controversy exceeds £100, or relates to the taking of any annual or other rent, customary or other duty, fee, or any other such like demand of a general or public na- ture affecting future rights, of what value or amount soever the same may be, upon proper security being given by the applicant that he will effectually prosecute the ap- peal and answer the condemnation, and also pay such costs and damages as may be awarded in case the judg- ment appealed from shall be confirmed, and upon exe- cuting such security, execution is stayed in the origiral cause. The judgment of the Court of Appeal is final in all cases where the matter in controversy does not exceed the value of £500 sterling, except it relates to the taking of any annual or other rent, customary or other duty or fee, or any other such demand of a general and public nature affecting future rights, of what value or amount soever the same may be, in which case an appeal lies to the -^mg in C incil, upon proper security being given by the appellan effectually to prosecute his appeal and an- 9U US ns a ^?- ¥ 406 THE CANADAS. swer the condemnation, and to pay such costs and da- mages as shall be awarded by His Majesty in Council in Zlttr^'T'l- '-^PPf '^V-n, slJll I affirrdTanS upon the perfecting of such security, execution of the ippKthVK^''""^'^*^^.,^"^^ deirminati. "of such appeal to the King m Council.— 2 Howard, li>, 16. District Courts. In «^ach district within the province there is a Court of Record called -The District Court of ,»wSis held before one judge or more, appointed under the grea seal of ^le province. They hold^'pleas from the valS of tdn tniln' A ""i'^" *^^, ^"^°""* '' i'qui^ated and cer- tarn to £40 ; and also in all matters of tort respecting per- Zfedil't' ^^T^: *¥ damages recoverershaS ^not question ' ^^ *'''' '° ^""^^ ^^ »°' brought in They commence their sittings on the Monday of the week m which the Quarter Sessions lor the district com! HowTi'dHl '" '^' ^'^"'^^^ '^ '^' "^^' ^«^k!~2 Court of Probate. This court is styled "The Court of Probate of the Province of Upper Canada/' (8) and has ft i power and authority to issue process and hold cognizance of all mat- letteis of administration ; and also to grant probates of wills and commit letters of administration of tlfe goods of persons dying intestate, having personal estates! rights and credits within the province? ^ ' vinT^ ^^T" .'^d™"'«tering the government of the pro- vince presides m the court -to hear, give order, decree or pronounce judgtnent in all questions, causes or suks that may be brought before him relative to the matters aforesaid, and that for . icii purposes, he may from t me to time, when he shall be so disposed call such perTon^r ILTw?.h V ' '' "^i'"^ P/°P^' *« ^' assessor^or asses- sois with him. —2 Howard, W. <8) 33 Geo. 3^ c 8, L. C. f THE CANADAS. 407 •► Surrogate Courts. Each district of the province has also a Surrogate Court for the purpose of granting probates of wills and letters of administration of the goods of persons dying in- testate, having personal estate within the limits of each district respectively. The surrogate is appointed by the Governor, but when the deceased leaves goods, chattels, or credits to the amount of £5 in any district other than where he usually resided at his decease, or when he leaves such bona notabilia in two or more districts, then the Court of Probate alone has jurisdiction over such pro- perty. The Surrogate Courts for the several districts com- mence their sittings on the Monday of the week on which the sittings of the Quarter Sessions for the district com- mence, and end on the Saturday of the next week. — 2 Howard, 16. Law Officers of the Crown. In Upper Canada the law officers of the Crown are an Attorney and Solicitor-General. In this province too there is an officer called a Reporter, but it is difficult to say whether his office is similar to that of a master of the Court of King's Bench in England, and he reports his opinion on cases referred to luin by the court, or whether he p'lforms the duty of an official reporter of the judg- ments of the court on cases argued before them, as was the practice during tlie time when the Year Books were published in England. The only mention of this officer -bich the author has been able to find is in the list of the judges and officers of the court contained in the Alma- nack. Justices of the Peace. The members of the council are justices of the peace throughout their respective provinces. There are also justices commissioned for each district in both Upper and Lower Canada. :5a ■^, THE CANADAS. Barristers and Attormes. Persons called to the bar of any superior court (nnt whth thrj ^"y .^"^'^^ province in North America in producin/'r -P^r''?? '^ ^"^^^'^ '^ Upper Canada; on Ter to hf ^^TV'^rT tj^^^^f «nd of good cha ac- Set the C^'; /"^rP^''^^" i« adnissible to prac tise n the Court of King' - .^h as an attorney, unless he have previously served articles for five years with some practising attorne> .. the province. ^ ^Ecclesiastical Establishments. sist^tf thf/^''^^! establishment of the Canadas con- the twn n ^ '"^ ^''^.P ^^ ^"*^^^^' ^^^'« presides over the two provinces, and is assisted by an Archdeacon of Quebec, an Archdeacon of Kingstoi/and an Archdeaco^^^ laws. (9) of The \"Z?\ ^""T ^""'"^f '"^''^ ^ ""'^ture of the Acts ^mltLf V?^'^'''"""*^^'^'^^^^^t«"d to the colonies, is adminfi V^'"!^ ^'^ ^' *^^^ ^'-^"^^ "s in England, and IS admmistered in the same manner. the s°ame .t t f""? '?"^"1* ^^^^'^ «^ ^pper Canada are way aTd bv th. ^^ '".'^' ^"^ "'"^ administered in the same way and by the same functionaries. or lords1n"T7P°"r'^"'J' '-""^ ''^ ^'^^'^ ^^ '^'^ ^^igneurs hold o? l^r^" ^T^": '' t''^^^ 5 ^l»en- undertenants mo hehl in F n'TT^"' •" '^" ^^y •" ^^hi^l^ copyholds fine unL ,?"S^,^"^' P^yjng ^ small annual ren and a paynZrof ^?'''r''- '^^ '''^^ "^'^ "^^^ ^n^J^^' to the 'uppo"?f'theSr ""'f' ^'"T '•'^''"'' ^^^* ^^^ a iLt^e Re^ident^ ^^' ' ^'""^'' "' '^^^ ""^ ^''^^ ^y It is a general rule that in commissions and instructions to Governors, and in Orders of Council and Acts of Par! ,i. ni4'?„'::.isv'-,Lia;,'j„';r ri™„'r.r'"' '"''' "°" '" "■= "'- THE CANADAS. 409 liament, there should be a direction that the laws or ordi- nances passed in any colony should not be " repugnant to the laws of England, but as near as may be agreeable thereto." The peculiar circumstances of Lower Canada, where the great body of a large population had been ac- customed and had become attached to other laws, re- quired a departure from this rule, at least with respect to the tenure on which the inhabitants of that province held their lands. Several Acts of Parliament have been passed recognizing this exception to the general rule. (1) Upon these acts doubts have arisen, and for the especial pur- pose of quieting those doubts the act of 1 Wm. 4, c. 20, was passed. As that act recites the former acts and the doubts that have been entertained upon them, as it will be a sort of constitutional charter for the colony, and as it is not very lengthy, it has been thought advisable to insert it here. (2) (1) Sec, on this subject, ante, ^(i, and note. (2) 1 Wm. 4, c. 20.— An Act to explain and amend the Laws relating to Lands holden in Free and Com- mon Soccage in the Province of Lower Canada.-30th March. 1831. Whereas, by an act made in the thirty-tirst year of the reign of His Majesty King George the Third, inti- tuled, An Act to repealcertain parts of an act passed in the fourteenth year of His Majesty's reign, intituled, "An Act for making more effectual provi- sion for the government of the pro- vince of Quebec in North America, and to make further provision for the government of the province," it was, amongst other things, enacted, that in every case where lands should be thereafter granted within the province of Lower Canada, and where the grantee thereof should desire the same to be'granted in free and common soc- cage, the same should be so granted, but subject, nevertheless, to such al- terations, with respect to the nature and consequences of such tenure of free and common soccage, as might be established by any law or laws which might be made f)y His Majesty, his heirs or ruc.pr-.ojs, l>.y and with the advice and consent of his or their Trivy Council : And whereas, by an act passed in the sixth year of his late iMajesty Kincr George the Fourth, in- tituled, " An Act to provide for the extinction of feudal and signiorial rights and burdens on lands held a title de Jief, and d titre de cent, in the province of Lower Canada, and for tiie gradual conversion of those te- nures into the tenure of free and com- mon soccage, and for other purposes relating to the said province," after reciting that doubts had arisen whe- ther lands granted in the said pro- vince of Lower Canada by iiis said late Rlajesty King George the Fourth, or by any of his royal predecessors, to be holden in free andcommon soccage, would be held by the owners thereof, or would subsequently pass to other persons according to the rules of de- scent and alienation in force in Eng- land, or according to such rules as were established Ly the ancient laws ofthe sail province, for the descent and alienation of land situate therein, it was thereby declared and enacted, that all lands within the said province of Lower Canada which had thereto- fore been granted by his said late Majesty, his heirs, and successors, to ail}' person or persons, their heirs or assigns, to be holden in free and 1^ ■Ifta k 410 THE CANADAS. rule however it was excenf^rl ihaf :* « u 1 1 **0"»/"is .n free and common soccage, if so desired, buUhat such common soccage, or which should or might thereafter be so granted by his said Majesty, his heirs, and succes- sors, to any person or persons, their heirs, and assigns. held,Sgranted, bar- gained, sold, aliened, conveyed, and disposed of, and might and should pass by descent, in such manner and torra, and upon and under such rules and restrictions, as are by the law of Jingland established and in force in reference to the grant, bargain, sale, alienation, conveyance, disposal, and descent of lands holden by the like tenure therein situate, or to the dower or other rights of married women in such lands, and not otherwise, any iaw, custom, or usage to the contrary m anywise notwithstanding ; and it was thereby provided that nothing therein contained should extend to prevent His Majesty, with the advice and consent of the Legislative Coun- cil and Assembly of the said province ot Lower Canada, from making and enaciing any such laws or statutes as might be necessary for the better adapting the before mentioned rules of the law of England, or any of tnem. to the local circumstances of the said province of Lower Canada and the inhabitants thereof. And whereas doubts have arisen how far It IS competent to His Majesty, with the advice and consent of the said Le- gislaUve Council and Assembly, to make and enact any laws or statutes establishing rules respecting the de- scent of lands so granted in free and common soccage as aforesaid, or re- specting the grant, bargain, sale, alien- ation, conveyance, or disposal of such lands, or respecting the dower or other rights of married women in or to such lands m any case wherein such rules are repugnant to or at variance with the laws of England; and it is expe- dient that such doubts should be re- moved : Ue it therefore enacted. &c. that it shall and may be lawful for His Majesty, his heirs, and succes- sors, to assent to, or to authorize his or their assent to be given to any bill or bills which have heretofore been or which may hereafter be passed by the said Legislative Council and Assem- bly, for regulating the descent, grant. Dargain, sale, alienation, conveyance or disposal of any lands which are now. or which may hereafter be holden in free and common soccage within the said province of Lower Canada, or for regulating the dower or other rights of married women in such lands, any repugnancy, or supposed repugnancy of any such regulations, to the law of England, or to any of the provisions in the before recited acts of i-arliameut or either of them contained to the contrary notwithstanding. THE CANADAS. 411 ■ grants should be subject to such alterations, as to the na- ture and consequences of that tenure, as might be made by the Provincial Legislature with His Majesty's appro- bation.— Rep. Select Committee, House of Commons' Papers, 569. A bill has also been passed to encourage emigration, by which foreigners may purchase and hold lands in this pro- vince, and convey the same in fee simple; and at the ex- piration of five years, having complied with certain condi- tions of registry, &c. and taking the oath of allegiance shall be considered natural born subjects of His li^jesty and be admitted to all the privileges of subjects, with the right, under the provincial statutes, of voting at elections and being returned to serve in the Provincial Parliament after having completed a residence of seven years in the* province. This bill is one of those reserved for His Majesty's pleasure.— Quebec Mercury, March 3 1st, 1829. The author has not been able to learn whether this bill has been assented to, but most probably it has, for there is nothing in it which cannot be justified by the prece- dents of acts in other colonies. (See the Colonial Acts of Jamaica, 35 Charles 2, c. 3, and of Antigua, 1 Anne, 28th June, 1702.) Indeed, but for the purpose of fixing the period of naturahzation at the end of five years' residence m the colony, there would have been no necessity for this colonial act, for by the act 13 Geo. 2, c. 7, foreigners living seven years in any of the British colonies in Ame- rica, and who shall not have been absent therefrom more than two months at any one time, are to be deemed na- tives upon taking certain oaths therein mentioned in open court before the judges of the colony where they reside. By the act of 1 Wm. 4, sess. 1, c. 54, (1830 ) (t IS now provided that all persons naturalized by any' act of the Legislative Council and Assembly of the pro yince of Lower Canada, assented to by His Majesty his heirs or successors, shall henceforth be deemed compe- tent m the law to be summoned to the Legislative Coun- cil of the said province of Lower Canada, and to vote at the election of members to serve in the Legislative As- sembly of the said province, and to be elected at any such election. Such bill of naturalization in the province must be reserved for His Maiestv's nlpaanre a^A «o«.,^i. u. ^ J — J - X ^} •-.••i.i vMiiiiut wc as- sented to by the Governor. g i w ( 412 ) NEW BRUNSWICK. (^errt™utor!r.°"1""'''' P-' °f Nova Secia. erected in o a 3LhL '° ""»'• '"""• I" >™*i' "«» charter it is now «ove„,eV 1.. [" T""^""'''' "j'."' ""^ and a House of AssSly ^ " '^''"'"'°'' " ^'""«^"' '««^herf:'tfcuJ!:J'''T\'^ ^°"»-'^ "f eleven COURTS. of one chief juS'td llt!;Z:^]^s71" "'"""''' anrS™?„1°"'Llt Sr'T """V-S for hearing The Governorls Z • "^ to marriage and divorce. puisnejuS of t e .'.T""™' "^ """ """■'■ '">' "f ">« the'S of''pii°c;'a°n7''=r^'''"''""^' ="■<• " """ f- The latterl^^i- 1fcoieSf"?h,"''rf •''' •'"S'' -"»• judges of the Supreme Co" /• '?h,, J"''-'''' ''"'' '•'<' over by a commissioner ' '^'™'' '^ T^"'"''^'^ ?f prnit^tir 'Ti':Xk':rt.;' cT" "^^rr-""* .s the^registrar of .Ms co^uril'lJe^kVuZU-iitS The salary of the chief justice is ^7W fTi«^ .f .k assistant justices ^500 each. The e is a Couvrnf P mon Pleas in Psnli /,„.,«* r .i ^"^"^.^s a L/Ourt ot Com- «trc:o7£5S"»^-=:"^^ NEW BRUNSWICK. 413 , Registration of Deeds and Wills. 26 Geo. 3, c. 3. An Act for the Public Registering of all Deeds, Conveyances, and Wills, and other incum- brances which shall be made of, or that may affect any J^ands, lenements, or Hereditaments within this Pro- vince. Sect. I. Deeds and wills affecting lands to he registered at length, or (as to deeds) to be void against subsequent purchaser or mortgagee, whose deeds are first registered, and as to wills to be void. 52 Geo. 3, c. 20. An Act supplementary to the Acts(l) now m force for the Public Registering of Deeds, Con- veyances. Wills, or other Incumbrances of, or which may affect any Lands, Tenements, or Hereditaments within this Province, and for the more effectually secur- ing the Title of Purchasers of Real Estates against Claims ot Dower. Sect. 1. If grantor in deed of land live in a foreign state, the acknowledgment of proof thereof may be had before a British envoy there, and certified thereon under his hand and seal ; or if in the United Kingdom, before a chief magistrate of, and certified under the seal of a city, borough, or town corporate, or the seal of office ot such chief magistrate. Such acknowledgments or proofs to be registeiftd with the deeds, pursuant to 26 Oreo. 3, c. 3. 2. Deeds acknowlddged or proved before any court or pei^on horetofore or hereby authorized to take the same, and duly registered, deemed efft aial without livery of seisin or other ceremony. Wills, 26Geo.3, c. 11. An Act relating to Wills, Legacies. iLxecutors, and Administrators, and for the settlement and distribution of the Estates of Intestates. Sect. 1. Devises to be signed by devisor, or in his presence and by his directions, and attested by three wit- nesses. 2. Devise revocable only by another will or other writing, signed before three witnesses declaring same, or by destruction of the first will. ^9m t ( 1) 26 Geo. 3, c. 3 ; 27 Geo. 3, c. 9 ; 32 Geo. 3, c. 2 ; 33 G eo. 3, c. 5. 414 NEW DRUNSWIRK. hv • .^ P r"''^'''" °^"^°^^ -^^^ bad. unless proved by oath of three witnesses, and testator bid persons pre- sent witness same, and unless same be madl in l" st^ill ness of deceased and where he dwelt for ten (hiys before ,h ^T'.'"' """"^''f *'•'"'" speaking such will, no proof thereof to be received, unless pt in^riting in s\k days 5. No probate of nuncupative will to be granted till Strcited^' '''*"'"''' '^'"^^' "°'' ^'^ ^'^^^^ *^' n^ 't Dei/*. 26 Geo. 3, c. 12. An Act subjecting Real Estates in the Province of New Brunswick to thePayment of Debts and directing the Sheriff" in his proceedings thereon chftS for'lh"! ^u^ose"'^^ '°^' °^"'^^^' ^^^^«' -^ ^^^^ ing D^bTorf: " ''' ^" ^*^* '°^' ^- ''' ^S^-«^ A»^--d- Sect.l. Where debtor absconds or conceals himself his creditors may prove same on oath before judge of bupreme Court, who may issue warrant to the sheriff* to attach and keep the debtor's estate; such sheriff" with two Jf^.}T ^^ T^^ inventory of such estate, and return same to the judge. Made perpetual by 47 Geo. 3, c. 15. Frauds and Perjuries. 26 Geo. 3. c. 14. An Act for prevention of Frauds and . erjuries, for prevention of many fraudulent practices which are commonly endeavoured to be upheld by periurv and subornation of perjury. "J' perjury Sect. 1. AH estates and interests in land not in writing and signed by the parties making the same, or their agenfs authorized in writing, to be estates at will only. 2. Except leases for terms not exceeding three vears at rack rent. ® yeais, 12. Judgments as against purchasers to be such onlv from signing thereof. J' IS. Executions to bind personal estate from deliverv ttTol d^itV ^"''' "•■" ■»-' "•'•''- '"-o" S m NEW BRUNSWICK. 415 , Hate of Interest. In^re?^"'^' "' ^^' ^^ "^'^ ^''' ^«*«blishing the Rate of The legal rate of interest to be £G per cent, uer an- num, and all securities reserving more to L void. ^ Absent Projmetors. tn fn ^^o^' ""' ^-^^ ^'l ^""^ *° °^^l'Se Absent Proprietors Highway^"'""'" '' "'^^ ^*"^"^ ^'•«^«^' -'1 ^« -pa" Sect. 1. Every proprietor of land to pay his quota of county rates, and do liis proportion of coinly labour, r. J: f k"^ '"*' • P^"P"f 'or be absent, and no person ap- pear for him ,n SIX months after public notice to pay. or do his quota of rates or labour, and i.e have no sufficient distress, any three justices ot the peace, quorutn unus niaylet sufficient of his lands for the purpose ; or Tno ion Jh " ^' ^'"^' ™"'" «^'^^^'' «^^"ft' t^ ^«» the same at auc^ tion, who may execute proper conveyances to the pur- chaser, and put him in possession. ^ ^n.1,- '"?'''''' P^r^" '' ''"^^'^ "'y ^6 Geo. 3, c. 45, in the commissioners of sewers. Dower. th5rS!'';?ir'\^" "^^^ ^°'' »»ore effectually securing Do/ef 1 "^^h^^^^'-^ «f Real Estates against^claims fo? PT^ufoi*'^ ^^' V"^^^^e^^ ^^o'»an of dower must be by her executed, and she must be examined touching her free- will therein by one of the Council, or a judge ouL Supreme Court, or of an inferior Court of cimmon Pleas ieg.trrnrsLcTi:r^ ^^^•"^""^^" ^-^--^ - -^ mV^''^ ^' a?-- -^1 ^"^ '" amendment of an Act Si ff rf ^."'^ Purchasers of Real Estates against owi right ™^ ""^ '■'"'' "'""' "'-y "''yl'oW in S deet'.„'bafdtf..7fr..f?'i:jf-,T^__'^''"-'ei'=- « judge of King's Bench; or Com™™ pS:".r'Eir. s ■<) li 416 NEW BRUNSWICK. quer, or Master in Chancerv n,. T i t . cil or Session in Scotland^'^ i f-^^ °" ^^^'^ ^^ ^oun- dominion, before a iudie of ^^ « '" ^"^ °*^'' ^'^^'^'^ cature; such acknoifcnt to h^'^^ ^.'^ °^ ''"^J" certificate to be authentilT^' to. be certified thereon, and under the hand and seaUnhf^V^^ plantations, the United Kingdom bv -m «ffl i^-r''"^'.!''^''^' «»^^ >*" '« seal of some corpo adon the, p'' ' f^'f^''^ ""^^^^ ^^e knowledge such dml befo e a ' R?V 1'^''"''' '"">' «^- same to be certified thereon nnrL^^-^u'' f"''"^ ^^^o^^J 2. The acknowledgment of T !!' ^'"^ ^"^ ^^^^• women of their lancr ^"1 L^" -^^ '''^^\^y ™a''"ed certified in like manner as 1.^"^' T^ ^" *^^^" «"d 33 Geo. 3, c 5 An A./- ^^'^^ *^^'" ^^ '^o^er. tuled "An Ac" ttLteffSf '"'"'.^' \" ^^^' -*^- Purchasers of Real JEst^fJl^ " / f P"rmg the Title of The acknowledgm^^^^^^^^ agamst clanns of Dower." wherein the consiSion mnrT'^ ^'^™"" "^ ^"^ deed may be made before a usZ^^^^^^ "°' exceed i'200, wick, or the reSar of r f ' '" Pu"^'" ^" ^^^ ^runs- premises lie. ^ ^ ^ ^^^^' "^ ^^e county where the Absconding Debtors. tuifd ^An\c;lr^:iif;i:rt1f''^",*« ^?.^^^' -*^- Sect.l. All real a d ^!, i'^^'^''"^'"^ I^efctors." debted in 40./repartb/S"N/'R'' '^-P^^^^ ^»" proceeded against accmfinl to ^cTc ^T'^^'o^' "^^^ ^^ cant for suSh process mnff^ f^* ^' ^- ^^- ^ppli- province after de^btncurrd \CT ''''' '^'^'''' ^'^' ^^^ for six months previou t J^f.h "^' ^'"^"^^^ ^^^^^ein trustees may be appdnted til d ^PP^l^^^'^^"' and no notice given^accordhfg to sue Lr m"^ ^^''' P"'^"« 47 Geo. 3, c. 15. ^^^^ perpetual by Laws of the Province. before the erection ™f The ftwL" 'Tm '^ ^n°™ S-^""" shall be of force in this province ' ^"^ B»inswick, pro^ce^l Sr 'cts*' it '-"^ r-'""- °f •■"' Brunswick. '"nswick to be in force in New This act not to ha "Tc it rc trospective operation, NEW BRUNSWICK. 417 and Estates Tail. Irrg'StyT^Jf" """ «-y^- of conveying Li ,•« «^f ••*■ P"^"* 'n *ail of land, the reversion whereof cat^d Za ^r'';:^ri^^^y hy deed duly made, authenti- cated, and registered, bar the entail, and such deed having words sufficient to pass a fee, shall have the same tirnsT; ,ff '^ ?" '^'''^'' ^^^ ^''''^ ^ fi"« -ith proclama. tions or suttered a recovery. ^cLhT^'^^TT "Restates tail by a feme covert, the taken ind^r".-«^''''^' '?.*^ ^'' examination, must be taken and certified according to 27 Geo. 3, c. .9, or 32 Geo. 3, c. 2, (see ante, 415.) , , ui u<« Insolvent Debtors. 47 Geo. 3, c. 2. An Act for the further relief of Debtors with respect to the Imprisonment of their Persons oect. 1. Any creditor or his executor may declare his consent to the discharge of his debtor in exertion with- ^.^.)F T'J!^'''"^^? "S^' *S^^"«' ^"^^ 'Jebtor's estate, and «uch int*''' ^^'" """"'• "^'!^ ^^ *«^^» i» e'^ecution on such judgment, or m any action thereon. '9m i E £ ( 418 NEWFOUNDLAND. Newfoundland is a large island of North America, lying between the 46° and 51° of north latitude, and 53° and 58° of west longitude. The form is that of an irregular triangle, the base, or south side, being 80 leagues in extent, the east side is the longest, the whole circumference being about 150 leagues. It is bounded on the north by the Straits of Belleisle, which separate ic from Labrador, on the east and south by the Atlantic Ocean, and on the west by the Gulf of St. Lawrence. The climate is rather severe, and the soil on the sea coast not fertile. The country withih land is mountainous, and abounds with timber. There are several rivers, which are plentifully stored with fish, and the island possesses besides abund- ance of deep bays and many good ports. — Ency. Brit. Newfoundland, like other new-discovered lands in America, was endeavoured to be settled and improved by means of charters granted by the crown. Such charters were granted at five different times. The first was in 1578 to Sir Humphrey Gilbert, who had thereby full power given him to possess all lands in Newfoundland not in actual possession of any Christian prince. By virtue of this authority, he in 1583 landed in St. John's Bay, and, we are told, that calling the Enghsh and strangers, then fishing, together, he took possession of the country in the Queen's name, and erected the arms of England upon a pillar of wood, in testimony of her Majesty's sove- reignty. The second charter was granted in 1610 by James I. to the Earl of Northampton, Sir Francis Bacon, and several others, by name of the Treasurer and Company of Adventurers and Planters of the Cities of London and Bristol for the Colony of Newfoundland. Two other cliarters were granted in like manner, the first to Sir George Calvert of a tract of landj called the Province of Avalon, and the second, to the Marquis of NEWFOUNDLAND. 419 Hamilton, Earl of Pembroke, Earl of Holland, Sir David Kirk, and others; and under the pretence that Lord Baltimore, the heir of Sir George Calvert, had deserted the plantation, this grant included the province of Avalon, (*fe post, w.(3), p. 422.) In these grants the free liberty of fishmg, salting and drying of fish, was expressly se- cured to the EngKsh in general. In 1615 Captain Richard Whitburne was sent out with a commission from the High Court of Admiralty, autho- rizing him to impanel juries, and to make inquiry upon oath of sundry abuses and disorders committed every year among the fishermen on that coast. On the 20th of February, 1633, a fifth charter was granted by the Star Chamber to the merchants and traders of Newfoundland, laying down certain rules re- specting the management of the fishery. In 1650 the Council of State gave to John Treworgay, a merchant, who was then in the island, a commission to order affairs there for the best advantage of the state. After the Restoration, Lord Baltimore obtained orders m 1660 for the restitution of the province of Avalon. Some appHcation seems to have been made to the go- vernment for a Governor for the colony, for in 1667 peti- t'ons from Totness, Plymouth, and Dartmouth, all of which were engaged in the Newfoundland fishery, were re- ceived against such an appointment, and the petitioners alleged the inability of the colony to support such an ex- pense. These petitions were supported by evidence. The objections of the petitioners were adopted, but in order to regulate the affairs of the colony, it was recommended by the gentlemen, to whom the petitions had been re- ferred by his Majesty, that a chaplain should be sent out m the convoy ships, and that the captains of the said ships should have power to regulate abuses there. " Additional rules" were afterwards passed in the council for the purpose of the regulation of the colony, and finally it was ordered, that a bill should be prepared to pass the great seal, for the confirmation of the last charter with these additional powers, and that Mr. Attor- ney-General should present to the board some way of judicature for the determining of causes in Newfound- land. A special report was afterwards made on the sub- ject of sendinff out a Gnvf>rnnv niul f^nnrUnr. o ««!«»,,, and the project was discouraged chiefly on the ground that the colonists would get their wants supplied from E E 2 eg as M ^ ^ 420 NEWFOUNDLAND. .? .^!Ir ^^ ""^ '"'^f^^^ ""^ ^""^"^ ^•^•"^5 and their lordships hZ^ZFl7"T^' '•^^'Z" P>«"t-ti"ns in Newfound! hP p1 J'^ '^'T'^^^^' and in order thereunto, that tcllTTn^'ulf '?" '°""°y ^^^""^^ ^^^^ commission to .i!.T.!k " *^'^ P^^",'^^ ''^ '^^•"^ voluntarily away, or «ut n^n ' ^f'^rn charter should from time to time be fnhni^f w-^k''"-'''"'.''^''^^"'' ^" P^«»t^r« were forbid to CanP R^n "/'^'™i?.^''°™ ^^^«''^' ^^'^*" Cape Race to Conn.,? ""''**• V''l ^'^P°^* f^-^^ the L^rds of the Council was approved of by his Majesty. ^onvov R. ^"'^ was sent out as commander of the .onvoy. He was specially directed to lay before the council the state of Newfoindland as he found it with reference to the planters and the western adventurers statement Zi if * .tf'''""* ^^^""^^^ contradicted all the statements made by the western adventurers, on which he found' .•'^°''. ^'^ 1^'^" *"°""^^^- The question of The^nfpt ."""fl^ '°^°"y ^"^ "g^'» <^'«eussed in 1696. tPr wJl nf • *^^ ''^'*^'"" adventurers under the char- and 11 W^ "i ^ ^f/! ^^^'^^ predominant. In 1698 (10 ZJ .1 'u- ^^'^ "^^^ P^'^ed the first act of Parlia- Sp To M 'f^''.'^ ^f}^^''^ "An Act to encourage the trade to Newfoundland," but in that act the policy of lieeve s Hist. Newfoundland, 1 to 31 Inn^ K ^^^ Pf ""^ of Utrecht the condition of Newfound- Henrv o!r ^ '" ^^^^ ? commission was issued to Captain the Go?ernr%r°^'"l '^-""^^ ^^ ^^^ commission to menf of . " f.u^7^ ^^°*'^ ^'•^ ^-el^ted to the govern- ment of any of the forts in Newfoundland; and it went der. n S't ^T^ ^^^°^'"^ ^°^^»'»°»' ^^^ ^omman! land o. f . ^f °^^V «»'• said island of Newfound, land, our fort and garrison at Placentia, and all other fXnd'ltfhJr'"' V'''"^ S' *« b^ ^^--ted in tha o an;o;n/- ?• ^^''%^'V"' ^"*h°"*y t« administer oaths, to appomt justices of the peace, with other necessary tfeanVtp" •"''*'/;! ^°^' '^' ^^"^^' administration of jus^ nee and keeping the peace and quiet of the island -. Reeve's Hist. 32 to 75. ^ isiana.— mis\"io J CaJLin'o I *^'''* "'i'^-"^* '¥ '-^"th^rity of this com- "f tre iustS o?^^^^^^^ "^^'T^ V'^^''' ^y tl^e means y me justices of the peace whom he had annointarl f« impose upon thp Jr,h„|,:t„^*„ _ ._ ^,"'*", appointed, to K.,;i T ^ ". -••'"ifvitaijia ii lax lor tile Durnnsp nf bu.ld.ng a pnson. This attempt was resisted, T„d a cas. i'^ k I* . NEWFOUNDLAND. 421 was laid before Mr. Attorney-General Yorke, in which the commission was stated, and his opinion desired upon ***« ?u -^"o^'^ey-^^eneralCl) reported as follows :— * I have considered the said quaeries, and upon the farst thereof do conceive that the justices of the peace had not sufficient authority to raise money for building a prison, by laying a tax upon fish caught, or upon fishing boats, the rather because the act of the 10 and 1 1 Wm. 3, lor encouraging the trade to Newfoundland, directs that it shall be a free trade. "As the justices of the peace in Newfoundland are, by their commissions, to act according to the laws of Eng- land, I apprehend they ought to have pursued this act of ir'arhament as near as the circumstances of the case would admit. " Neither Captain Osborne nor the justices of the peace have power to raise any tax for repairing churches, or any other public works, except such works for which power is given to justices of the peace in England to levy money by particular acts of Parliament." The exercise of the new Governor's authority was also <^PPOsed by the western adventurers, who by themselves and their fishing admirals thwarted every measure that was projected. The opinion of the Attorney-General Yorke was taken on the question, how far the commission of Captain Osborne had the eftect of superseding the junsdiction formerly exercised by the fishing admirals, and he reported his opinion in favour of the powers granted to Captain Osborne, whose authority was thus declared to be legally established. Nothing material appears respecting the civil govern- ment of Newfoundland till the year 1737, when the Board of Trade listened to the representation that had frequently been made by the Governor, of the inconveni- ence of sending over to England for trial persons who had committed capital felonies. The board prepared a commission to Captain Vanbrugh, containing a clause authorizing him to appoint commissioners of oyer and ter- miner, but the Privy Council, when the commission came before them, struck out this authority. In 1750, when Captain Rodney was Governor, he pressed the Secretary of State for such a power to be granted. The Board of Trade fibnna-hf tlio »YiQffpi. might uQ manageu wy an in' 1, ,1 id (1) a Clml. Opin. 232. 422 NEWFOUNDLAND. etrucUo" buf th»f T'"" " ""'s"" >« Prescribed by L o thfAJXtTsT?'''!;^^'' ''^."■'' ^-■•<' of Trad seizurp nf a .U; Ti "^^'"^" »" the affirmative, upor the S'L^'f iSs 'r xL-rSf '' !^^^"^ P-ided^ith a is somewhat cS 7* • ^'scussion, at such a period, hefoTheen ZZir'" T'^'^'^T' ««^«^'« ^^^ long the Board of Trde4hlrrf ??' ^''^' «^"* °"* ^f 1729. was a bundle Inf -^ ^'l* ^^^^rnor Osborne ii trade and navSi„ of f ^'T- *^" "'/^ ^^^^*^"g '« t»»e placed a^s'tJohnf ' ^"'^^ ^' Vice-Admh-alty 'was first Englttls:^,!^'^;^^^^ — ^-^ to in the year 1790--f79i T ^'V^ J"'*'''^' ^^« P^^^ed ---_JL__Il^-_^^«s only to continue for one (S) 2 Chal. Opin. 241. (3) Tlie question had already been decided m the case of New Ham» slnre, where lands originally granS on cond.t.o„ of bcin'g setdid and planted, were resumed bv the crown on the nonperformance of the condi- RvH., ,,"T,'^ "'"' ^''licitor-General ODin iTo^^^.""■''{ "'P'"'"^ (1 Chal. 2 : ^^ *^"' '""^y ^^'-^ clearlv of opin un that the crown might resume the lands granted on condition of It i- !■ settling ni three years, where there A?r w /f '. •"" "" settlement. Mr. West had in 17g3, in T man- ner reported, that -it was a maxim oflavvthat a utte to the possession ot lands ,n the colonies must neces- sarily be supported by an actual cul- ture and planting, and that conse- quently the- eglect of the one would esen,g,»5h the other." Z Clmi. Opin. (4) Reeve's Hist. 73. NEWFOUNDLAND. 423 year. After the end of that period another act in 1792 was proposed, making some alterations in the method pre- scribed by the former act. This latter statute was also to continue only for one year. Other statutes were after- wards passed, but that under which Newfoundland is at present governed, is the 5 Geo. 4, c. 67, under the autho- rity of which its present charter of justice has been issued. (See ante, p. 22, «. (7).) As Newfoundland has now received the grant of a Le- gislative Assembly, (see ante, pp. 22 and 80,) and as the instructions and proclamation under which it is convened may be of importance in ascertaining its powers, and those of the Governor with relation to the courts esta- bUshed by the Charter of Justice, it has been deemed advisable to present them in this book. They will be found at the conclusion of the following Charter of Jus- tice. CHARTER OP JUSTICE. George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, and so forth. To all to whom these presents shall come, greeting: Whereas by an Act of Parliament passed in the fifth year of our reign, intituled « An Act for the better administration of Justice in Newfoundland, and for other purposes," it is (amongst other things) enacted, that it shall and may be lawful for us by our charter or letters-patent under the great seal to institute a superior court of judicature in Newfoundland, which shall be called « ITie Supreme Court of Newfoundland." And it is thereby further enacted, that the said Supreme Court shall be holden by a Chief Judge and two Assistant Judges, being respectively barristers in Eng- land or Ireland of at least three years standing, or in some of our colonies or plantations. And it is thereby further enacted, that it shall and may be lawful for us by any such charter or letters-patent as afore- said to institute Circuit Courts in each of the three districts in which the said colony may be so divided as in the said act mentioned. And it is thereby further enacted, that it shall be lawful for us, our heirs and successors, by such charter or letters-patent as aforesaid, or by any order or orders to be thereafter issued by and with the advice of our or their Privy Council, to make and prescribe, or to authorize and em- nower the aairl Simrorna Cn-iir* i^C Kl ^— ,_Ji-. i . i_ 5- • i, — I""-' "«iT ot iicTTiuuiiuiuitia, unaer such uraita- tions as we shall deem proper, to make and prescribe such rules and orders touching anu concerning the forms and manner of proceeding in Ski a it Wl '? is ^ w \ I ' IklL 424 NEWFOUNDLAND-CIIAKTEII OF JUSTICE, the said Supreme Court and Circuit Courts respectively, and ti.e prac- t ce and pleadings upon all indictments, informations, actions, suits and other matters to be therein brought; or touching or concerning the appoinung of commissioners to take bail and examine witnesses; the taking exam>uat.ons of witnesses de bene es,e, and allowing the same as evidence; the granting of probates of wills and letters of administra- .on ; the proceedings of the sheriff and his deputies, and other minis- terial officers; the summoning of assessors for the trial of crimes and misdemeanors m the said Circuit Courts; the process of the said court and the mode of executing the same; the empannelling of juries ; the admission of barristers, attornies, and solicitors; the fees, poundage or perquisites to be lawfully demanded by any officer, attorney, or soli- citor in the said courts respectively; and all other matters and things whatsoever touching the practice of the said courts as to us, our heirs and successors, shall seem meet for the proper conduct of business in the said courts; and such rules and orders from time to time to alter, amend, or revoke, as to us, our heirs and successors shall seem requisite. And It IS thereby further enacted, that it shall and may be lawful for us feelZ r Tu °' '^"^■•^-P^*^"^ to allow any person or persons fe ling aggrieved by any judgment, decree, order, or sentence of the sa.d Supreme Court, to appeal therefrom to us in council in such man- ner, within such time, and under and subject to such rules, regulations, and 1 mitations as we by such charter or letters-patent shall appoin! and direct. Now know ye, that we, upon full consideration of the premises and of our especial grace, certain knowledge, and mere mo- Zln; T ''"TT' '"^ ^y ''""^ °^ '^' '^'^ ^^' °f Parliament, thought fit to grant, direct, and appoint, and by these presents do ac CO Inn^ f r"'; "T' '"'* 'PP°^"'' '^^' '^''^ '^^^^ b« Within our said colony of Newfoundland a court, which shall be called "The Supreme tu"; e safd's ''t •'' ^"' "^ •^^ '^'^'^ "'■'''^' --^' -d consti! ute the said Supreme Court of Newfoundland to be a Court of Record, and do direct and appoint that the same shall be composed of and ho en byone Chief Judge and two Assistant Judges. ' And we So above' 'T.'r 'T '' '" -id Chief Judge rank and precedence above and before all our subjects whomsoever within the colony of Newfoundland aforesaid, and the islands, territories, and places de- pendent thereupon, excepting the Governor or acting Governor for the time being of the said colony, and excepting all such persons as by law or usage take place in England before our Chief Justice of our Court of King s Bench And we do hereby give and grant to our said Assist- ant Judges rank and precedence within our said colony, and the shnds territories, and places dependent thereupon, next after our said Chief Judge, the said Assistant Judges taking precedence between themselves according to the priority of their respective appointments to r NEWFOUNDLAND — CHARTER OF JUSTICE. 425 the said office, or where they may be both appointed at the same time, then accord 1 ig to their seniority as barristers. And we do further grant, ordain, and appoint, that the said Supreme Court of Newfound- land shall have and use, as occasion may require, a seal bearing a de- vice and impression of our royal arms within an exergue or label sur- rounding the same, with this inscription, " The Seal of the Supreme Court of Newfoundland." And we do hereby grant, ordain, and ap- point, that the said seal shall be delivered to and kept in the custody of the said Chief Judge. And we do further grant, ordain, and declare, that the said Chief Judge and Assistant Judges, so long as they shall hold their respective offices, shall be entitled to have and receive the following salaries, that is to say, our said Chief Judge a salary of £1200 sterling money by the year, and each of our said Assistant Judges a salary of £700 like sterling money by the year. And our Governor or acting Governor for the time being of the said colony is hereby directed and required to cause such salary to be paid to the said Chief Judge and Assistant Judges out of the revenue of the said colony, by four quarterly payments at the four most usual days of payment in the year. And we do further grant, ordain, and declare, that the said sa- lary shall commence and take place in respect to any person who shall be resident in Great Britain or Ireland at the time of his appointment, upon and from the day on which any such person shall thereupon em- bark or depart from Great Britain or Ireland for Newfoundland to take upon him the execution of the said office; and that the salary of any such Chief Judge or Assistant Judge, who shall at the time of his appointment be resident in Newfoundland aforesaid, shall commence and take place from and after his taking upon him the execution of such his office, and that such salary shall be in lieu of all fees of office, perquisites, emoluments, and advantages whatsoever; and that no fee of office, perquisite, emolument, or advantage whatsoever, other than and except the said salary, shall be accepted, received, or taken by such Chief Judge or Assistant Judges in any manner or on any account or pretence whatsoever. Provided nevertheless, that it shall be lawful for the said Chief Judge or Assistant Judges to occupy and inhabit any official house or residence within the said colony of Newfoundland, which hath been or may hereafter be provided for their or any of their residence and occupation without paying to us, our heirs and succes- sors, any rent for the same, and without being obliged to repair, up- hold, or maintain any such house or official residence at his own costs and charges. And we do further grant, appoint, and declare, that no Chief Judge or Assistant Judge of the said Supreme Court of New- foundland shall be capable of accepting, taking, or performing any other office or place of profit or emolument, on pain that the acceptance of any such other office or place as aforesaid shall be, and be deemed I; 'M ,'m r 436 NEWFOUNDLAND-CHARTER OP JUSTICE. sistanT t f "" »"/^°*^»"«'^ of '''e office of such Chief Judge or As- Tnthl/ '";' '\' '■"" "''^^'' »"^ '^' s 'ary thereof shall cease ceDtanl 'r' '' "T """' ^'^^"''"S'y ^^"^ ^''« '-« of such a ute and anno" 7 "T' ""^^ " P'"" ^"^ -"^ ^^^ ^^-^^y cor,st - tute and appoint our trusty and well beloved Richard Alexander ot';^Zi:r;:t ''S n"\^'J^^ '"'^^ ^^•'^^ -'^ Supreme Conn conftitute Id f"" '''"'^'"^ '^"^ "P^"''"- ^"•^ ^' do hereby Des Bates and '/rw^n!^ '^f ^ ^"' "^" ''^^'''^^ ^"'^-'"' Walle' Ba reslT John w'n TT '^°"'*' ^''^ ^«'^ ^"^^''^^^ ^«»«' ^es years standi . ^ ^°"'^ '^'"^ respectively barristers of three arpl h 'he^e shTf ' • v' "^ '° J'ereby grant, direct, and thTarcuUC-^^ .',:"'''" '"' ««id colony of Newfoundland th said cobnv Iv', H ft " '"'^ ''^^'^^ "'^^^ ^•«'"<=»« -'« -»^'ch men And we dnV' K ''''^ '" ^"""^"^^ ''^ »»'« ^^'^^ ^ct of Parlia- land afor Laid aT f'7- °' ''' '"P"'"^ ^°-' ^^ Newfound- of Ltn i ^""^ ^° ^"''' ""-^ «PPO'"'' that the Chief Judge of the said Supreme Court shall be always at liberty to decide which of Assi?::: xTshairb r '' '^''^^ '''^-' -^ that thrt':; Assistant Judge shall be always at liberty to decide which of thp twn remaining Circuit Courts shall be holde/by hiT And we do heX ordain, appoint, and declare, that there shall be and belong to the s^d bei g ha I rom r '''^f /"<^^^ ^^ '"^^ ««'d Supreme Court for the time being shal from time to time appear to be necessary for the administra Th ch'rlre"d * d '"^ "";'°" '' ^" ^'^^ P°-"^ and atlio e Which are granted and committed to the said Supreme Court and Cir leu 'rn:Tr-?d'^ ''' f' ""'' '' P-'>' -nt 'rby tTeset etters-patent. Provided nevertheless, that no office shall be created in he sa,d courts or any of them, unless the Governor or acting Govel: the hand of such Governor ^U::^:::::^:::^"!::^^ do further ordain and direct, that all persons who shall and may be ap pointed to the several offices of Master. Registrar, Accountant Gene al or Prothonotary of the said Supremo Court or circuit Courts iu New- ndland, or to any office in the said courts or any of them, whereof the duties shall correspond to those performed by the Master, Regist ar Accountant-General, or Prothonotary of any or either of our ^1 "f Pvccurd at \> estminster shall be so appointed by our heirs and sucies': NEWFOUNDLAND— CHARTER OF JUSTICE. 427 sors by warrant under our or their royal siern manual to hold such their offices during our or their pleasure; and that all persons who shall and may be appointed to any other office within the said Supreme Court of Newfoundland, or within the said Circuit Courts of Newfoundland, shall be so appointed by the Chief Judge for the time being of the said Supreme Court, and shall be subject and liable to be remove d from such their offices by the said Chief Judge upon reasonable and suffi- cient cause. And we do hereby authorize and empower the said Supreme Court of Newfoundland to ai)prove, admit, and enrol such and so many persons having been admitted barristers at law or advo- cates in Great Britain or Ireland, or having been admitted writers, attoriiies, or solicitors in one of our Courts at Westminster, Dublin, or Edinburgh, or having been admitted as proctors in any Ecclesiastical Court in England, to act as well in the character of barristers and ad- vocates as proctors, attornies, and solicitors in the said Supreme Court of Newfoundland; and which persons so approved, admitted, and en- rolled as aforesaid, shall be and are hereby authorized to appear and plead and act for the suitors of the said Supreme Court, subject always to bo removed by the said Supreme Court from their station therein upon reasonable cause. And we do further authorize the said Supreme Court of Newfoundland to admit and enrol as barristers, advocates, proctors, attornies, or solicitors therein, such and so many persons as may have served a clerkship under articles in writing for the term of five years at the least to any barrister, advocate, proctor, attorney, or solicitor of the Supreme Court aforesaid. And we do declare, that no person or persons other than the persons aforesaid shall be allowed to appear, plead, or act in the said Supreme Court of Newfoundland for or on behalf of the suitors of the said court or any of them. Provided always and we do ordain and declare, that in case there shall not be a sufficient number of such barristers at law, advocates, writers, attor- nies, solicitors, and proctors, or of persons so admitted and enrolled as aforesaid to act as such within the said colony competent and willing to appear and act for the suitors of the said Supreme Court, then and in that case the said Supreme Court of Newfoundland shall and is hereby authorized to admit so many other fit and proper per- sons to appear and act as barristers, advocates, proctors, attornies, and solicitors as may be necessary, according to such general rules and qualifications as the said Supreme ('')urt shall for that purpose make and establish. And we do hereby authorize the said Supremo Court to make and prescribe such rules and orders as to them may seem expe- dient and necessary with regard to the admission of persons to practise the law, and appear and act in the character of barristers and advo- cates, proctors, attornies, and solicitors m the said Circuit Courts re- spectively. And we do hereby ordain and declare, that the Gover- nor or acting Governor for the time being of the said colony of New- 3U I M I is 11 ' ' ' )( t 4 :£l 428 NEWFOUNnLAND-CIIARTER oF JUSTICE. appoint some fit and proper person to act as and be the Sheriff for our ^luhXt r/Tl"'1;"' '^ ^dependencies, (other thanand apnoled sha 1 """'^ '"^ '"^^ ^^^^ «"«"'"*?• ^^ich Sheriff, .ben ente° uoo; hi. Z T ^^ ^°--'^"»'y "-y be and before he shall of our saTd 1 '' f ^ '"'"" '" '^'°^^'"°'' ^ -""8 ^-ernor duUe, o , uch 7' « °^"'i'''"''""y«"'' impartially to execute the offil / .. " °'"''' '"'^ '""'^ ^''^"«' «''^'» <=o"ti""e in such his office during the space of one whole year, to be computed from the s id Monday next fol bw nc thp fir«f ,lnv ««• r • ■ another ShprifT .K i. k ^ "^''"""'"y '" ^'^^'^ ye^-"' a^^l ""til another Sheriff shall be appointed and sworn into the said office • and n case any such Sheriff shall die in his said office, or depart fo^ ou e TZer nf Tt"' "' ''^ dependencies, then' and Tsu:! case another person shall, as soon as conveniently may be after the death or departure of such Sheriff, be in like manner appointed and sworn in as aforesaid, and shall continue i„ his office frtCmainder .C:hrs"roffi:;"'r°;''" Tr'-'-' '- ^-^ »pp-'^^ -"-- into the said office. And we do further direct and appoint that it shall and may be lawful for the Governor or acting Cover o' of our sa d afd offipfr ^ n' 'Pl'°'"''^ *° '^'' '''^^"»'°" '^"d discharge of the vntten n' r' ''°"^"" '' ^^''"^ Governor shall conform to such wn ten instructions or commands as may from time to time be signified by u , our heirs or successors, to him through one of our oi the" Principal Secretaries of State. And we do further direct, that b o'e of Newfn^lr . u '^'^"^"■^^"^^ ^° "« '» 'he said Supreme Court of Newfoundland in the sum of £5000, with two good and sufficien of he duties of such his office, and for the due and punctual payment of al such sums of money as may by him or his lawful deputleTbe levied or received by virtue of any process, rule, or ^rder of th a^ Supreme Court and Circuit Courts or any of the.;. And we d fur r direc , that the said Sheriff shall, on the first Monday of each ca lenda month, produce before the Chief Judge or one of the Assi ,nt Ju"l aforesaid, a written account of all the money by him or by his lawfu deputies received during the calendar month last precedinVand stadl. LZ^T *dT" '-' '' ''' ^^™^ -yVhimorThemh been applied; and also stating the exact balance of such monies then remaining m the possession of himself or his said deputies so far as the returns received from such deputies enable him to make out the"a c account. And we do further order, that th« «.JH r.y,,f r.^.e or A t •••^- ■ "-Kigs or Assist- NETVFOUNDLAND — CHARTER OF JUSTICE. 429 ant Judges, as the cnsc may be, shall cause the said account to be pub^ licly exhibited in the office of the Protiionotary or llegistmr of the said Supreme Court for the spuce of one calendar mouth next after the same shall have been so rendered, and shall then cause the same to be enrolled among the records of the said court. And we do further order, direct, and appoint, that the said Sheriff and his successors shall by themselves or their sufficient deputies, to be by them ap[K)inted and duly authorized under their respective hands and seals, and for whom he and they shall be responsible during his or their continuance in such office, execute, and the said Sheriff by liimself or his lawful deputies is hereby authorized to execute, the writs, summonses, rules, orders, war- rants, commands, and process of the said Supreme Court and tl>e said Circuit Courts, and make returns of the same, together with the manner of the execution thereof, to the Supreme Court and Circuit Courts re- spectively; to receive and detain in prison all such persons as shall be committed to the custody of such Sheriff by the said Supreme Court and Circuit Courts respectively, or by the Chief Judge or Assistant Judges or either of them. And we do further direct, order, and ap- point, that whenever the said Supreme Court or any oT the said Circuit Courts shall direct or award any process against the said Sheriff, or shall award any process in any cause, matter, or thing wherein the said Sheriff, on account of his being related to the parties or any of them, or by reason of any good cause of challenge, which would be allowed against any Sheriff in England, cannot or ought not by law to execute the same, then and in every such case the said Supremo Court or the said Circuit Court, as the case may be, shall name and appoint some other fit person to execute and return the same ; and the said pro- cess shall be directed to the person so to be named for that purpose, and the cause of such special process shall be suggested and entered on the records of the court issuing the same. Provided always and we do hereby ordain and declare, that the said Supreme Court and the said Circuit Court shall respectively fix certain limits, beyond which the said Sheriff shall not be compelled or compellable to go in person, or by his officers or deputies, for the execution of any process of the said courts respectively; and upon occasions where the process of any of the said courts shall be to be executed in any place or places beyond the limits so to be fixed, we grant, ordain, and direct, that the said Supreme Court or Circuit Courts respectively, as the case may be, shall, upon motion, direct by what person or persons, and in what manner, such process shall be executed, and the terms and condition which the party at whose instance the same shall be issued shall enter into, in order to prevent any improper use or abuse of the process of the said courts ; and the said Sheriff shall, and he is hereby required to grant his special warrant or deputation to such person or persons as ,r t 430 NEWFOUNDLAND- CHARTER OP JUSTICE. process, and m that case we direct and declare, that the said Sheriff h. hears, executors, or administrators, shall not be responsible or S nrocess ' 1 .",' " °'' " ^^ -y -^Pe^ting the execution of such process, und.r and by v.rtue of such special warrant; and that any 'ar„tVr::d "' ^^T' -^--^y-tue'of suchr^e al warrant, shall and may see^ their remedy under any security which may have been directed to be taken upon the occasion, and which Se court ,ssu,ng such process is hereby authorized to dire t to be tak « And U ,s our further will and pleasure, and we do hereby for u ou^ heirs and successors, grant, ordain, establish, and appoint, that the 'said Supreme Court shall grant Probates under the seal o'f the^aid 1^ ' the last wills and testaments of all or any of the inhabitants of the said colony and Its dependencies, and of all other persons who shall die and eave personal effects within the said colony and its dependencies, and to commit etters of administration under the seal of the said Sup eme Court, of the goods, chattels, credits, and all other effects whauZr ot the persons aforesaid who shall die intestate, or who shall not have named an executor resident within the said colony and its depend- encies, or where the executor being duly cited shall not appear and sue forth such probate, annexing the will to Mie said letters of adminLm- tion when such persons shall have left a will, and .o sequrer t^e gooas, chattels, credits, and other effects whatsoever of such persons so dying, in cases allowed by law, as the same is and may be now used in thea.oceseof London; and to demand, require, take, hear, examine, and allow, and if occasion require, to disallow and reject, the accounts of them m such manner and form as is now used or may be used in the said diocese of London, and to do all other things whatsoever needful and necessary m that behalf. Provided always, and we do hereby au thore and require the said Supreme Court in such cases as aforesaid, where "t ters of administration shall be committed with the will annexed for want of an executor appearing in due time to sue forth the probate, to reserve in such letters of administration full power and authority to revoke the same and to grant probate of the said will to such executor whenever he sTau' ddy appear and sue forth the same. And we do hereby further authorize and require the said Supreme Court of Newfoundland to grant and commTt such letters of adminiscration to anyone or more of the lawful next of kin of such person so dying as aforesaid, being then resident within the juris diction of the saiH Supreme Court, and being of the age of twenty o J years Provuled always, that probates of wills and letters of admi- nistration to be granted by the said Supreme Court shall be limited to such money, goods, chattels, and effects as the deceased person shall be entit ed to within the said colony and its dependencies. And w! do hereby runner enjoin and require that every person to whom such NEWFOUNDLAND—CHARTER OF JUSTICE. 431 letters of administration shall be committed shall before the granting thereofgivesufficent security, by bond to be entered into, to us, ouJ thh onP r''^''"' '""^ P^^™^"* of a competent sum of money v^ithone, two, or more able sureties, respect being had in the sum therein to be contained and in the ability of the sureties to the value of the estates, credits, and effects of the deceased, which bond shall be deposited ,n the said Supreme Court among the records thereof and there safely kept, and a copy thereof shall be also recorded among the proceedings of the said Supreme Court, and the condition of the said bond shall be to the following effect-" That if the above bounden ad- ministrator of the goods, chattels, and effects of the deceased do make or cause to be made a true and perfect inventory of alland singular the goods, credits, and effects of the said deceased which have or shall come to the hands, possession, or knowledge of him the said administrator, ., to the hands or possession of any other person or persons for him. and the same so made do exhibit or cause to be exhibited into the said Su- preme Court of Newfoundland at or l ibre a day therein to be specified and the same goods, chattels, credits, and effects, and all other the goods, chattels, credits, and effects of the deceased at the time of hit death or which at any time afterwards shall come to the hands or pos- session of such admiaistrator or to the hands or possession of any other person or persons for him, shall well and truly administer accordinjr to lavv, and furOier shall make or cause to be made a true and just account of his said admmistration at or before a time thereinto be specified and afterwards from time to time, as he, she or they shall be lawfully re quired and all the rest and residue of the said goods, chattels, credits, and effects which shall be found from time to time remaining upon the said administration accounts, the same being first examined and aUowed of by the said Supreme Court of Newfoundland, shall and do pay and dis- pose of in a due course of administration or in such manner as the said court shall direct, then this obligation to be void and of none effect or else to be and remain in full force and virtue." And in case it shall' be necessary to put the said bond in suit for the sake of obtaining the effect thereof for the benefit of such person or persons as shall appear to the said Court to be interested therein, such person or persons from time to time giving satisfactory security for paying all such costs as shall arise from the said suit or any part thereof, such person or per- sons shall by order of the said Supreme Court be allowed to sue the same in the name of the Attorney-General for the time being of the said colony, and the said bond shall not be sued in any other manner. And we do hereby authorize and empower the said Supreme Court to order that the said bond shall be put in suit in the name of the said Attor- ney-utueral. And we further will, order, and require that the said 0< 432 NEWFOUNDLAND— CHARTER OF JUSTICE. Mt Supreme Court shall fix certain periods when all persons to whom pro- bates of wills and letters of administration shall be granted by the said Supreme Court shall, from time to time, until the effects of the deceased person shall be fully administered, pass their accounts relating thereto before the said court, and in case the effects of the deceased shall not be fully administered within the. time for that purpose to be fixed by the said court, then, or at any earlier time, if the said Supreme Court shall see fit so to direct, the person or persons to whom such probate or admi- nistration shall be granted, shall pay, deposit, and dispose of the balance of money belonging to the estate of the deceased then in his, or her, or their hands, and all money which shall afterwards come into his, her, or their hands, and also all precious stones, jewels, bonds, bills, and secu- rities belonging to the estate of the deceased, in such manner and unto such persons as the said Supreme Court shall direct for safe custody. And we require that the said Supreme Court shall from time to time make such order as shall be just for the due administration of such assets, and for the payment or remittance thereof or any part thereof, as occasion shall require, to or for the use of any person or persons', whether resident or not resident in the said colony and its dependencies, who may be entitled thereto, or any part thereof, as creditors, legatees, or next of kin, or by any other right or title whatsoever. And we 'do hereby, in exercise and in pursuance of the powers in us by the said Act of Parliament in that behalf vested, authorize and empower the said Supreme Court of Newfoundland, under such limitations as hereinafter mentioned, to make and prescribe such rules and orders as may be ex- pedient touching and concerning the forms and manner of proceeding in the said Supreme Court and Circuit Courts respectively, and the practice and pleadings upon all indictments, informations, actions, suits, and other matters to be therein brought; and touching and concerning the appointing of commissioners to take bail and examine witnesses, the taking examination of witnesses de hem esse, and allowing the same as evidence; the granting of probates of wills and letters of administra- tion; the proceedings of the sheriff and his deputies and other ministerial officers; the summoning of assessors for the trial of crimes and misde- meanors in the said Circuit Courts, the process of the said courts, and the mode of executing the same; the impannelling of juries; the admis- sion of barristers, attornies and solicitors; the fees, poundage, or per- quisites to be lawfully demanded by any officer, attorney, or solicitor in the said courts respectively; and other matters and things whatsoever touching the practice of the said courts as may be necessary for the proper conduct of business therein, and such rules and orders from time to time to alter, amend, or revoke, as may be requisite : Provided always, that no such rules or orders be in anywise repugnant to the NEWFOUNDLAND— CHARTER OF JUSTICE. 433 rnil'^'?'"^"""?'"* '"■ *^'' °"'' '^"*''' = ^'^''^'^ <■"'*«>•. that all such rules and orders be promulgated in the most public and authentic man- ner ,n our said colony for three calendar months at the least before the same shall operate and take effect, and that the same be by the first convenient opportunity transmitted through the Governor or acting Governor of our said colony to us, our heirs, and successors, for the signification of our or their pleasure respecting the allowance or disal- owance thereof: And we do hereby direct, ordain, and appoint tiiai any person or persons feeling aggrieved by any judgment, decree, order, or sentence of the said Supreme Court, may appeal to us, our heirs, and uccessois, in our or their Privy Council, in such manner, within such time, and under and subject to such rules, regulations, and limitations as are hereinafter mentioned, that is to say, in case any such judgment, decree, order, or sentence of the said Supreme Court shall be given or pronounced for or in respect of any sum or matter at issue above the amount or value of ^,500 sterling, or in case such judgment, decree, order, or sentence shall involve, directly or indirectly, any claim, de- mand, or question of or respecting property or any civil right, amount- ing to or of the value of £500 sterling, the person or persons feeling aggrieved oy any such judgment, decree, order, or sentence of the said Supreme Court may, within fourteen days next after the same shall have been pronounced, made, or given, apply to .' said Supreme Court, by petition, for leave to appeal therefrom to us, our heirs, and successors, in our or their Privy Council, and in case such leave to appeal shall be prayed by the party or parties who is or are directed to pay any sum of money or perform any duty, the said Supreme Court shall be and is hereby empowered either to direct that the judgment, decree, order, or sentence appealed from shall be carried into execution, or that the execution thereof shall be suspended pending the said appeal, as to the said court may appear to be most consistent with real and substantial justice • and in case the said Supreme Court shall direct such judgment, decree order, or sentence to be carried into execution, the person or persons in whose favour the same shall be given shall, before the execution thereof, enter into good and sufficient security, to be approved by the said Supreme Court, for the due performance of such judgment or order, as we, our heirs, and successors shall think fit to make there- upon; or in case the said Supreme Court shall direct the execution of any such judgment, decree, order, or sentence to be suspended pending the appeal, the person or persons against whom the same shall have been given shall, in like manner, and before any order for the suspen- sion of any such execution is made, enter into good and sufficient se- curity to the said Supreme Court for the due performance of such judgment or order as we, our heirs, or successors shall think fit to make F F 5* 434 NEWFOUNDLAND— CHARTER OP JUSTICE. thereupon ; and in all cases we will and require that security shall also be given by the party or parties appellant, to the satisfaction of the said Supreme Court, for the prosecution of the appeal and for the payment of all such costs as may be awarded by us, our heirs, and successors to the party or parties respondent; and if such last-mentioned security shall be entered into three months from the date of such petition for leave to appeal, then and not otherwise the said Supreme Court shall allow the appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to us, our heirs, and successors, in our or their Privy Council, in such manner and form and under such rules as are observed in appeals made to us from our plan- tations or colonies: And we do hereby reserve to ourself, our heirs and successors, in our or their Privy Council, full power ana authority upon the humble petition, at any time, of any person or persons feeling themselves aggrieved by any judgment, decree, order, or sentence of the said Supreme Court, to refuse or admit his, her, or their appeal there- from, upon such terms and upon such limitations, restrictions, and regu- lations,as we or they shall think at, apd to reform, correct, or vary such judgment, decree, order, or sentence, as to us or them shall seem meet ; And It 18 our further will and pleasure that in all case, of appeal allowed by the said Supreme Court, or by us, our heirs, and successors, the said bupreme Court shall certify and transmit to us, our heirs, or successors, ,n our or their Privy Council, a true and exact copy of all evidence, proceedings, judgments, decrees, sentences, and orders, had or made jn such causes appealed, so far as the same have related to the matter of appeal, such copies being under the seal of the said court: And we -lo furtiier direct and ordain tliat the said Supreme Court of Newfoundland sh^U in all cases of appeal to us, our heirs, and succes- sors, conform to and execute or cause to be executed such judgments and orders as we, our heirs, and successors shall tliink fit to make in the premises, in such manner as any original judgment, sentence, decree, decrf.i order, or other order or rule of the said Supreme Court of Newfoundiand could or might have been executed : And we do hereby strictly charge and command all Governors, Commanders Ma- gistrates, Ministers, civil and military, and all our liege subjects within and belonging to the said colony, that in the execution of the several powers, jurisdictions, and authorities, hereby granted, uade, given, or created, they be aiding and assisting and obedient in all things, as they will answer the contrary at their peril: Provided always, that nothing in these presents contained, or any act which shall be done under the authority thereof, shall extend or be construed to extend to prevent us our heirs, and successors, as far as we lawfully may, from repealing these presents or any part thereof, or from making such further or other ,:isF ...,1 . T > NEWFOUNDLAND— CHARTER OF JUSTICE. 435 provision, by letters-patent, for the administration of justice, civil and criminal, wiUiin the said colony and the places now or at anytime hereafter to be annexed thereto, as to m, our heirs, and successors shall seem fit in as full and ample a manner as if these presents had not been made, these presents or any thing herein contained to the contrary not- withstanding. In witness, fifc. .„ , Witness, &c. Patent dated 19th September, 1825. NEWFOUNDLAND.—ROYAL INSTRUCTIONS. Instructions to our trusty andwelUeloved Sir Thomas John Cochrane, Knight, our Gotemor and Commander-in-Chief of our Island of Newfoundland, or in his absence to the Lieutenant-Governor or officer adminiitering the government of our said Island for the time being. Given at our Court at St. James's, the 26th day of July, 1832, in the third year of our reign. 1. With these our instructions you will receive our commisMon under our great seal of the United Kingdom of Great Britain and Ireland constituting you our Governor and Commander-in-Chief in and over our said island of Newfoundland and its dependencies. You are therefore with all convenient speed to assume and enter upon the execution of the trust we have reposed in you. And you are forthwith to- call together the following persons, whom we do hereby appoint to be members of our Council in our said island, any three of whom to be a quorum : viz. The chief justice for the time being of our said island; the chief officer in command of our land forces for the time being in our said island next after our Governor thereof for the time being; the attorney-general for the time being of our said island ; the collector or other chief officer of customs for the time being of our said island; the colonial secretary for the time being of our said island, and William' Haly, Esquire. 2. And you are with all due and usual solemnity to cause our said commission, constituting you our Governor and Commander-in-Chief as aforesaid, to be read and published at the first meeting of our said Council, and shall then take, and also administer to each of Vue members thereof, the several oaths therein required, 3. You shall administer or cause to be administered the several oaths mentioned in our said commigsion to all judge?, justices and other FF2 Vm r 436 NEWrOUNDLAND—ROYAL INSTRUCTIONS. I f f * 4 r persons who hold any place of trust or profit in our said island, without the doing of which you are not to admit any person whatsoever into any public office, nor suffer those who may have already been admitted to continue therein. 4. You are to communicate forthwith such of these our instructions to our said Council, wherein their advice and.consent are mentioned to be requisite, and likewise all such others from time to time as you shall find convenient for our service to be imparted to them. 5. You are to permit the members of our said Council to have and enjoy freedom of debate, and vote in all affairs of public concern that may be submitted to their consideration in Council. 6. And that we may be always informed of the names and cha- Mcters of persons fit to supply the vacancies in our said Council, you are from time to time, whenever any vacancy shall happen therein, forthwith to transmit unto us, tlirough one ofour principal Secretaries of State, the names of three persons, inhabitants of the said island, whom you shall esteem the best qualified for the trust. 7. And whereas by our commission you are empowered in case of the death or absence of any of the members of our said Council to fill up the vacancies therein to the number of three, and no more, you are therefore from time to time to send to us, through one of our principal secretaries of state, the names and qualifications of any members by you put into our said Council by the first opportunity after so doing. 8. And in the choice and nomination of the members of our said Council as also of the judges, justices, and other officers, you are always to take care that they be men of good life, well aft'ected to our government, of good estates, and abilities suitable to their employ- ments. 9. You are neither to augment nor diminish the number of the members of our said Council as already established, nor to suspend any of them without good and sufficient cause, nor without the consent of the majority of the said Council, signified in Council after due exami- nation of the charge against such Councillor, and his answer thereunto • and in case of the suspension of any of them you are to cause your reasons for so doing, together with the charges and proofs against such Councillor, and his answer thereunto, to be duly entered upon the Council-book, and forthwith to transmit copies to us, through one of our principal Secretaries of State. Nevertheless, if it should happen that you should have reasons for suspending any of the members of our said Council, not fit to be communicated to our said Council, you may in that case suspend such member without their cnusent. But you are thereupon immediately to send to us, througii one of our principal Secretaries of State, an account of your procceiiings th.^rein, together NEWFOUNDLAND— nOYAL INSTRUCTIONS. 437 Willi your reasons at large for such suspension, and also your reasons for not communicating the same to our Council. 10. And whereas effectual care ought to be taken to oblige the members of our said Council to a due attendance therein, and thereby to prevent the inconveniences that may happen from the want of a quorum to transact business as occasion may require, it is our will and pleasure that if any of the members of our said Council shall hereafter absent themselves from the said island, and continue absent above the space of six months together without leave from you or our Com- mander-in-Chief for the time being first obtained under your or his hand or seal, or shall remain absent for the space of two years succes- sively without leave given them under our royal sign manual and signet, their place or places in the said Council shall immediately tliereupon become void; and that if any of the members of our said Council, then residing within our said island, shall hereafter absent themselves when duly summoned without a^ufficient cause, and shall persist in such absence after being thereof admonished by you, you suspend the said Councillors so absenting themselves till our further will and pleasure therein be known, giving immediate notice thereof to us, through one of our principal Secretaries of State: and we do hereby will and require that our royal pleasure be signified to the members of our said Council and entered in the Council-hook as a standing rule. 11. And whereas by our aforesaid commission you are authorized and empowered to summon and call General Assemblies of the free- holders and householders within our said island, in such manner and form, and according to such powers, instructions, and authorities as are granted or appointed by these our instructions in that behalf, you are therefore, for the purpose of electing the members of such Assemblies, liereby authorized to issue proclamations dividing our said island into districts or counties, towns or townships, and appointing the limits thereof, and declaring and appointing the number of representatives to be chosen by each of such districts or counties, towns or townships respectively, and from time to time to nominate and appoint proper persons to execute the office of returning officer in each of the said districts or counties, towns or townships ; and you are, so soon as you shall see expedient, to issue writs in our name, directed to the proper officers in each district or county, town or township, directing them to summon the freeholders and householders thereof, to proceed to the election of persons to represent them in the General Assembly according to the regulations and directions to be signified in the proclamation to be issued by you as aforesaid. 12. You are to observe in the passing of all laws, that the style of enacting the same be by the Governor, Council, and Assembly. 'As i 438 NEWFOUNDLAND— ROYAL INSTRUCTIONS. 13. And we do hereby req; ire and command that you do not, on any pretence whatever, give your assent to any law or laws to be passed by jvnich the number of the Assembly shall be enlarged or diminished, the duration ascertained, the qualifications of the electors or the elected tixed or altered, or by which any regulations shall be established with respect thereto, until you shall have first transmitted unto us, through one of our principal Secretaries of State, the draft of such bill or bills, and shall have received our royal pleasure thereupon, unless you take care m the passing such bill or bills that a clause or clauses be in- ser ted therein suspending and deferring the execution thereof unti' our will and pleasure shall be known thereupon. 14. And you shall not re-enact any law to which the assent of us or our royal predecessors has once been refused, without express leave for that purpose first obtained from us, upon a full representation by you, to be made to us through one of our principal Secretaries of State, of the reason and necessity for re-enacting such law. 15. And it is our express will and pleasure, that no law for con- stituttng any court or courts of judicature, or for establishing the mihfa, shall be a temporary law; and that no law for granting unto us any sum or sums of money by duties of impost, tonnage, or excise, be made to continue for less than one whole year; as also that no other laws whatsoever be made to continue for less than two years, except only ui cases where it may be necessary for some unforeseen emergency to make provision by law for a service in its nature temporary and contingent. i- j •« 16. You are also, as much as possible, to observe in the passing of all fews, that each different matter be provided for bv a different law without intermixing in one and the same act such things as have no' proper relation to each other ; and you are more especially to take care that nodause or clauses be inserted in, or annexed to. any act which shall be foreign to what the title of such respective act ii, ports ; and that fao perpetual clause be part of any temporary law; and that no act whatever be suspended, altered, continued, revived, or repealed by general words, but that the title and date of such act so suspended, altered, continued, revived, or repealed, be particularly mentioned and expressed in the enacting part ir. And you are particularly enjoined not to pass any law, or do any act, by grant, deed, conveyance, or otherwise, whereby our revenue may be lessened or impaired without our especial leave or command thereon 18. It IS our will and pleasure that you do not give your assent to any bill or bilU for raising money by the institution of any public or private lotteries whatsoever until you shall have first transmitted unto NEWFOUNDLAND — ROYAL INSTRUCTIONS. 439 us, through one of our principal Secretaries of State, a draft or drafts of such bill or bills, and shall have received our directions thereupon. 19. It is our will and pleasure that you do not, on any pretence whatever, give your assent to, or pass any bill or bills in our island under your government, by which the lands, tenements, goods, chattels, rights and credits of persons who have never resided within our said island, shall be liable to be seized or taken in execution for the re- covery of debts due from such persons, otherwise than is allowed by law in cases of a like nature within our realm of England, until you shall have first transmitted unto us, through one of our principal Secretaries of State, the draft of such bill or bills, and shall have received our royal pleasure thereupon, unless you take care, in the passing of such bill or bills, that a clause or clauses be inserted therein, suspending and deferring the execution thereof until our royal will and pleasure shall be known thereupon. 20. It is our further will and pleasure that you do not, upon any pretence whatsoever, give your assent to any bill or bills that may have been or shall hereafter be passed by the Council and Assembly of the island under your government for the naturalization of aliens, nor for the divorce of persons joined together in holy matrimony, nor for establishing a title in any person to lands, tenements, and real estates in our said island, originally granted to or purchased by aliens antece- dent to naturalization. 21. Whereas great mischiefs have ariien by the frequent passing of bills of an unusual and extraordinary nature and importance in the plantations, which bills remain in force there from the time of enacting until our pleasure be signified to the contrary, we do hereby will and require you not to pass or gi^^e your assent to any bill or bills passed in the Assembly of an unusual and extraordinary nature and importance, whereby our prerogative or the property of our subjects may be prejudiced, nor to any bill or bills whereby the trade or shipping of this kingdom shall be in anywise affected, until you shall have first trans- mitted unto us, through one of our principal Secretaries of State, a draft of such bill or bills, and shall have received our royal pleastire thereupon, unless you take care in the passing any such bills as afore- mentioned that there be a clause inserted therein, suspending and deferring the execution thereof until our pleasure shall be known concerning the same, a 22. You are also to take care that no private act be passed, wliereby the property of any private person may be affected, in vvhich there is not a saving of the rights of us, our heirs and successors, all bodies politic and corporate, and of all other, except such as are mentioned in the said act, and those claiming by, from, and under themj and IS r. rfUl << in • t 1 • < f t t t » *' < / / »■ t * * i « / / f •> 4 t |t it t i 1- >< 9 440 NEWFOUNDLAND-ROYAL INSTRUCTIONS. further you sl.all tukc care that no such private act bo passed ^vithouta U ^^'^ ^"^ "'" '''^'"''"" ''"-'^^'"^ ""'" »'-' -■"^- «»•«" '-vo th avou do' ? "J''^^"^"*'^"- J' - '•''<■-!- our ..U and pleasure bire vou /' r'"' T' T''' '' ""^ '"■•^^'^' ^^' "•"'' P-°f be made before you m Councd, and entered in the Council-hook, that public t hcat^^^^ ... ,..d., ./ the parties' intention to apply for such L act hr e Wav "^^ ^^''^'^ "''"^ "'^ ^''^'^'^^^ '"1"-'-" '-' f- nto th. A '' "V'''*?".^^^'^'^'^' b'^f^''-' «"y «"^>' act shall be bro ght .no the Assembly, and that a certificate, under your hand, be trans- m.tted vvuh, and annexed to every such private act, siRnifyi^g that the same has passed through all the forms above mentionecL ourLdTl"''.'"'"'' '•"■' '''"■ " ''" '-^^ ''''^''' to be pushed within PeLlties t ' '" "'' "" '°'' ''^y'"« """-^y °^ '-P°«U fines and penalties express mention be made that the same is granted or apnldldl""' '° «"«''^.'-«"y P"'>lio money whatsoever, whether it be sameK T' !•'"""'" '''"''' °^ "°' ^^ f'"^ ^^^^ granting the Tand . V r"^ °; ^'"^"''^ of otherwise than^by warrant under your tT; accQu^ tr '""''"f '"'" ''""' '' ^""'^ '° -- -d examine n LTk n ^'^ °' '"'"' °^ '"°"^y ^'«P°««d «f ^'y virtue of law, made by Uiem, as there shall be occasion. 25. You are not to permit any clause whatsoever to be inserted in iai Tot b "''7 IT'''''' ''' ^^'^ °f — y' -hereby tl an " shall not be made I.able to be accounted for unto us, here in this ZtZ'X tT 7 ^T"---- «f our Treasury, 'or ol I !^^ rreasurer for the time being; and we do particularly require and enjoin you, upon pain of our highest displeasure, to take carf 1 at f^ o Tr atrv or t'"' rTl'*^ """^"'"^'^ ^"^ "^"^ Commissioners of book? Shan be Ti ' "^"""^ '^^ *'^ ^'"^^ ^^•"^' -^ '» -hich Z>, ''^'VV^"^ '"''^ particular sum raised or disposed of made, to the end we may be satisfied of the right and clue application of the revenue of our said island, with the probability of the increase and diminution of it, under every head and article ^hereof. vo^^* lV\r ''"' '"'' P''"'"" "'=^'y°" ^° •" ^^^ things conform yourself to the provisions contained in an Act of Parliamenf passed" t^^^'rrT::'"'' °' '' ^"^ ^^^^^^'^ ^^'--^ George trxl. intituled. An Act to prevent paper bills of credit hereafter to be "sued ,n any of His Majesty s colonies or plantations i„ Hill NEWFOUNRLAND —ROYAL INSTRUCTIONS. '141 from being declared to be a legal louder in payment of money, and to prevent tl.e legal tender of such bills tm arc now subsisting from benig prolonged beyond tl.e periods limited for recalling in and sinkmg the same;" und also ol an act passed in the thirteenth year of the reign of his late Majesty to explain and amend the above-recited net passed in the fourth year of his reiga as aforesaid ; and you are not lo give your assent to, or pa.s any act whereby bills of credit may Im struck or issued in lieu of money, or for payment of money, either to you, our Governor, or to any person whatsoever, unless a clause be inserted in such act, declaring that the same shall not take effect until the said act shall have been approved and confirmed by us, our heirs or successors. 27. You are to transmit an authenticated and separate copy of every law, statute or o.Jinanco that at any time hereafter shall be made or enacted within the island under your government, under the public seal, unto us, through one of our principal Secretaries of State, within three months, or sooner, after their being enacted, upon pain of our highest displeasure, and of the forfeiture of that year's salary wherein you shall omit to send over the said laws, statutes and ordinances as aforesaid, within the time above-mentioned, as also of such other penalty as wc shall please to inflict: but if it shall happen that no shipping shall come from our said island within three months after the making such laws, statute and ordinances, the same are to be transmitted by the next conveyance after the making thereof, whenever it may liappen, for our approbation or disallowance of the same. 28. And it is our further will and pleasure that the copies and duplicates of all acts that shall be transmitted as aforesaid be fairly abstracted in the margents, and there be inserted the several dates or respective times when the same passed the Council and Assembly, and received your assent ; and you are to be as particular as may be in your observations, lo be sent to us through one of our principal Secretaries ol State, upon every act; thai is to say, whether the same is productive of a new law, declaratory o^ i former law, or does repeal a law then before in being, and you are h .owise to send to us, through one of our principal Secretaries of State, the reasons for the passing of such laws, unless the same do fully appear in the preambles of the said i. Is. 29. You are to require the Secretary of the island under your government, or his deputy for the time being, to furnish you with transcripts of all such acts and public orders as shall be made from time to time, together with copies of the journals of the Council, and that all such copies be fairly abstracted in the margents, to the end the same may be transmitted to us, through one of our principal Secretaries of 'Am lib 4 < ■ I :4 ' **2 NEWFOUNDLAND— noYAL INSTRUCTTONS. State, whicl. he U duly to perform upon pain of incurring the for- reUurfi of his office. 30. You arc also to require from the clerk of the Assembly of the said land or other proper officer, transcripts of all the Journals and other m ?«. h ? '" ?' '"'^«'""' '^ "" ^"^ '^' --"^ ">«y i" ''•'« manner be transmitted as aforesaid. 31. You shall not appoint any person to be a judge or justice of the pcaeejuhout the advice and consent of the majority of the Council of our said island signified in Council. And it is our further will and n rnlV J "";«'""!•"'«"' t° be granted by you to any person or ZZTa r ^^\' J"'"''' "'■ *''^ P*'"'^^' ^-^ °'bor necessary officers, he granted during pleasure only. officers or muusters, without good and sufficient cause, which you shall « gnify ,n the fullest and most distinct manner to us, througl. one of our principal Secretaries of State, wdf«r/ n?'I"^ of the greatest importance to our service, and to the m . 7 ?r '' ''^'^ J"'"'^^ ^' everywhere speedily and duly administered, and that all disorders, delays, and othei undue practices m the adm.n.sti'at.on thereof, be effectually prevented ; we do parti- cu arly require you to take especial care that in all courts where you are authorized to preside, justice be impartially .administered ; and that in all other courts ostablished within our said island, all judges and other persons therein concerned do likewise perform their several duties tvithout any delay or partiality. You shall not erect any court or cott or ' ffl"''"r ";' ''''^' '''"''^ °'" '^'^^^^'^^^^ nor dissolve any order. '^^ ''''''** °'' ^''^^^''^''^> ^'^bout our especial folt/r""'' ^"V-'"' *"'""■ "^''"'"i^t^ti"" of justice, to endeavour fo get a law passed ,n otir said island, wherein shall be set the value of men s estates, either in goods or lands, under which they shall not lie capable of serving as jurors. 35. You are to take care that all writs be issued in our name throu-h^ out our said island under your government. " 36. Whereas, in pursuance of an act passed in the fifth year of the rei.^n of his late Majesty, King George the Fourth, intituled, "An Act ibr '.he belter administration of justice in Newfoundland, and for other purposes, by our charter or letters patent, issued under the great seal ot the United Kingdom of Great Britain and Ireland, a supreme o. tZf'"'r\t^"^l''' "'"P^"^"^ ^'^"'^ of Newfoundland," was er cted and established in our said island, with certain powe^ and attthonties> and utider certain regulations therein specified, you afe *t NEWFOUNDLAND— ROYAL INSTKUCTIONS. 443 hereby reqiiircd to take care that the same be duly complied witli, and put in execution. J7. You are, with the advice and consent of our Council, to take es|)eciul care to regulate all salaries and fees belonging to places, or paid upon emergencies, that they b« within the bounds of moderation, and that i.o extortion be made on any occasion whatsoever, as also thirt tables of all fees be publicly hung up in all places where such fees are to he paid ; and you are to transmit copies of all such tables of fees to us, through one of our principal Secretaries of State. 38. You shall not by colour of any power or authority, hereby or otherwise granted or mentioned to be granted to yon, take upon you to give, grant, or dispose of any office or place within our said island, which now is or shall be granted under the great seal of this kingdom, or to which any person is or shall be appointed by warrant under our sign manual and signet, any further than you may, u|»on the vacancy of any such office or place, or upon the suspension of any such ofHcer by you, put in any fit person to officiate in the interim till you shall have represented the matter to us, tiirough one of our principal Secretaries of State, which you are to do by the first opportunity, and have received our further directions therein. 39. You are to transmit unto us, through one of our principal Secretaries of State, with all convenient speed, a particular account of all establishments of jurisdictions, courts, offices and officers, powers, authorities, fees, and privileges, granted and settled, or which shall be granted and settled within our said island, as likewise an account of all the expenses attending the establishment of the said courts, and of such funds as are settled and appropriated to discharge the same. 40. It is our express will and pleasure that you be at all times aiding and assisting unto the officers appointed for the managing, levying, collecting and receiving public revenues, and such duties and re- venues as are or shall hereafter be laid and imposed within y*ar government, and the seizures, forfeitures, and arrears which shall accrue and grow due by reason thereof. 41. And whereas complaints have been made by the officers of our customs in our plantations in America that they have been frequently obliged to serve on juries, and personally to appear in arms whensoever the militia is drawn out, and thereby are much hindered in the execution of their employments, our will and pleasure is that you take " effectual care, and give the necessary directions that the several officers of our customs be excused and exempted from serving on any juries, or personally appearing in arms in the militia, unless in case of absolute necessity, or serving any parochial offices which may hinder them in the exectttioa of their duties^ •I X '5 •f s € I a. :'i S » |l»i 444 NEWFOUNDLAND— KOYAL INSTRUCTIONS. 42. And in case of ti.e vacancy of the collector, or any of our officers of the customs by death, removal, or otherwise, and in order that there rnay be no delay given on occasion of such vacancy to the masters of sh.ps or merchants m their despatch, youare hereby empowered, subject to such mstructions as you shall receive from our Commissioners of our CuTV\r- "'f . T'-easurer, or from the Commissioners of our Customs or the t.me being in this behalf, to appoint other persons duly uahfied to execute such offices, until further directions shaU be receted ^om our Commissioners of our Treasury, or our High Treasurer, to tZ IT" '' ''? "°'" °' ^"^'' appointments b/the first oppot tun.ty, takmg care that you do not, under pretence of this instructL our tZ " 'T" "' "'■^''^'"^^ ^^^^" '^ -^ -'d Coul by ComnZ *r "' ""' ^"-^^"^^^ °^ '''' "'g'^ Treasurer, or by the Commissioners of our customs, of ft ^°" !l-'" "°' ?""*' '"^ '^""^ "^' ^''"•'■^'^"''^^ ^^^^'^v^r above thcsum unto o' "r '°" " '"^ '"'"^"^^^ "^^^^--^ "«ti' "P- signifyi g unto our Commissioners of our Treasury, or our High Treasured for the .me bemg, the nature of the offence and the occasion of suchfines and forfeitures, with the particular sums or valuethereof(whichyouarodo ^Uh all speed,) you shall have received our directions thersin, but Z.ZX """"" "^''"' ^'^ P^^""^"^ '' ^'- said fines' and 44. It is our will and pleasure that you do not dispose of forfeitures or escheats to any persons until the provost marshal or other i rop offi r ...ve made mqu.nes by a jury upon their oaths into th tme value thereof, nor until you shall have transmitted to our Commis- sioners of our Treasury, or to ou. H^gh Treasurer for the time be" a particular account of such forfeitures and escheats and the value hereof, and shall have received our directions thereupon, and you "e to take care that the produce of the said forfeitures and es^^hLts n case vje shal think proper to give you direction to dispose of tL s 'nil be duly paid to the receiver of our casual oevenue; and that a Mi account thereo be transmitted to our Commissioners of our Treasu^ o to our High Treasurer for the time being, with the names of the persons to whom disposed of. 45^Whereas you will receive from our Commissioners for executing the office of H.gh Admiral a commission constituting you Vice-Admiral of our said island, you are h.reby required and directed carefully tZ in execution the several powers thereby granted to you 46. And whereas commissions have been granted in our colonies and plantations for trying pirates in those parts, pursuant to the acts for the more effectual suppressson of piracy, our will and pleausure is, that in all matters relating to pirates you govern yourself according to the NEWFOUNDLAND—ROYAL INSTRUCTIONS. 445 intent of the acts before mentioned, and any commission you may receive in reference thereto. 47. And whereas there have been great irregularities in the manner of granting commissions to private ships of war, you are to govern yourself, whenever there shall be occasion, according to the commission and instructions granted in this kingdom : but you are not to grant commisssions of marque or reprisal against any prince or state or their subjects in amity with us to any person whatsoever without our special command. 48. Whereas we have thought it necessary for our service to con- stitute and appoint a Receiver-General of our rights and perquisites of the Admiralty, it is therefore our will and pleasure that you be aiding and assisting to the said Receiver-General, his deputy or deputies, in the execution of the said office of Receiver-General ; and we do hereby enjoin and require you to make up your accounts with him, his deputy or deputies, of such rights of Admiralty (effects of pirates included) as you or your officers have received, or shall or may receive for the future, and to pay over to the said receiver general, his deputy or deputies, for our use, all such sum or sums of money as shall appear upon the foot of such accounts to be and remain in your hands, or in thehands of any of your officers : And whereas our said Receiver-General is directed, in case the parties chargeable with any part of such our revenue refuse, neglect, or delay payment thereof, by himself or sufficient deputy, to apply in our name to our Governors, Judges, Attorney-general or any other our officers or magistrates, to be aiding or assisting to him in recovering the same, it is therefore our will and pleasure that you, our Governor, our Judges, our Attorney-general, and all other officers whom it may concern, do use all lawful authority for the reco\ cring and levying thereof. 49. And whereas by letters patent under the Great Seal of our United Kingdom of Great Britain and Ireland, bearing date at Westminster the 10th day of May, 1825, the island of Newfoundland was constituted to be part of the see of the Bishop of Nova Scotia, and the said bishop was thereby duly authorize-! to exercise jurisdiction, spiritual and ecclesi- astical, in the said colo.iies, it is our will and pleasure that in the administration of the government of our said island you 'lould be aiding and assisting to the said bishop, and to his commissary or commissaries, in the execution of their charge, and the exercise of such ecclesiastical jurisdiction, excepting only the granting licenses for marriages and probates of wills. 50. We do enjoin and require that you do take especial care that Almighty God bo devoutly and truly served throughout your govern- ment, the book of common prayer, as by law established, read each •k4 ■an t«m 'I i S 446 NEWFOUNDLAND— ROYAL INSTRUCTIONS. Sunday and holiday, ifrd tlie blessed Sacrament administered according to the ntes of the Church of England. You shall be careful that all orthodox churches already built there be well and orderly kept, and that more be built, as our island shall, by God's blessing, be improved. And that besides a competent maintenance to be assigned to the mmister of each orthodox church, a convenient house be built at the common charge for each minister, and a competent portion of land for a glebe be allotted to him. And you are to take care that the parishes be so limited and settled as you shall find most convenient for the accomplishing this good work, and in all matters relating to the celebration of divine worship, the erection and repair of churches, the mamtenance of ministers, and the settlement of parishes throughout your government, you are to advise with the right reverend father in uoa the Bishop of Nova Scotia for the time being. 51. Upon the vacancy of any ecclesiastical benefice in our said island, you will present to the said Bishop of Nova Scotia for the time being, for institution to such vacant benefice, any clerk in holy orders of the United Church of England and Ireland, who shall have been actually resident within the said diocese, and officiating there as a clerk in holy orders, for six calendar months at the least next before such benefice shall have become vacant, whom the said bishop may certify to you to be a fit and proper person to fill such vacancy, and to be a person of good life and conversation, and conformable to the doctrine and discipline of the said United Church. But if at the time of any such vacancy occurring there shall not be resident within the said diocese ony clerk in holy orders of the said Uuited Church who shall have been resident and officiating therein as aforesaid, in whose favour the said bishop shall think proper so to certify to you, or if no such certificate shal be received by you from the said bishop within three calendar months next after such vacancy shall occur, then and in eithor of such cases you shall forthwith report the circumstances to us, through one of our principal Secretaries of State, to the intent that we may nominate so.ne fit and proper person, being a clerk in holy orders as aforesaid, to fill l^.e said vacancy. And we do enjoin and command you to present o the suul bishop for institution to any such vacant ecclesiastical benefice any clerk who may be so nominated by us, through one of our principal Secretaries of State. ^ "i yui 52. You are to inquire whether there be any minister within your government who preaches and administers the sacrament in any orthodox church or chapel, without being in due orders, and to give an account tl:ereo( to the said Bishop of Nova Scotia 53. And whereas doubts have arisen whether the powers of granting licences for marriages and probates of wills, commonly caUed 7e NEWFOUNDLAND— ROYAL INSTRUCTIONS. 447 Office of Ordinary, which we have reserved to you,our Governor, can be exercised by deputation from you to any other person within our said island under your government, it is our express will and pleasure, and you are hereby directed and required not to grant deputations for the exercise of the said powers, commonly called the Office of Ordinary, to any person or persons whatsoever in our said island under your «ro^ vernment. •' ° 54. And you are to take especial care that a table of marriages esta- bhshed by the canons of the Church of England be hung up in every orthodox church and duly observed. 55. The Right Reverend Father in God, Edmund, then Lord Bishop of London, having presented a petition to His Majesty King George the First, humbly beseeching him to send instructions to the Governors of a I the several colonies and plantations in America, that they cause all laws already made against blasphemy, profuneness, adultery, tornication, polygamy, incest, profanation of the Lord's day, swear- ing, and drunkenness in their respective governments to be ri- gorously executed, and we, thinking it highly just that all persons who shall offend ,n any of the particulars aforesaid should be prosecuted and punished for their said offences, it is therefore our will and pleasure that you take due care for the punishment of the aforementioned vices and that you earnestly recommend that effectual laws be passed for the restraint and punishment of all such of the aforementioned vices against which no laws are as yet provided. And also you are to use your en- deavours to render the laws in being more efTectnal, by providing for the punishment of the aforementioned vices, by presentment upon oath to be made to the temporal courts by the churchwardens of the several parishes, at proper times of the year to be appointed for that purpose- and for the turther discouragement of vice and encouragement of virtue' and good hvmg. you are not to admit any persons to public trusts or employments m the island under your government whose ill fame and conversation may occasion scandal. m. Jtisour further will and pleasure that you recommend to the egislatureto enter upon proper methods for the erecting and main- taming schools in order to the training up of youth to reading, and to a necessary knowledge of the principles of religion. You are not how- ever, to give your consent to any act respecting religion without a clause suspending its operation until our pleasure s'mll have been sijr- n.fied thereupon, unless a draft thereof shall have been previously transmitted by you for our consideration and ai)proval r>7. And we do furU.er direct that in .11 matters arising within your government connected with the education of youth in the principles of the Chnstjan religion according to the doctrine of the said United 'S 'im ■''4 "m It ;> l< :i 1% ( : 448 NEWFOUNDLAND- -ROYAL INSTRUCTIONS. Church of England, or connected with the prevention of vice and pro- faneness, or the conversion of negroes and otlier slaves, or connected with the worship of Almighty God, or the promotion of religion and virtue, you be advising witli the bishop for tlie time being of the said diocese of Nova Scotia, and be aiding him in the execution of all such designs and undertakings as may be recommended by the said bishop for the promotion of any of the objects before mentioned, so far as such designs and undertakings may be consistent with the law, and with your said commission and these our instructions. 58. You are to transmit to us, 'iirough one of our principal jecreta- ries of State, regular monthly returns of the militia of our said island whenever and so long as the same shall be embodied, with a particular state of their arms and accoutrements; and for the due preservation and security of which you are to establish such regulations as you shall judge to be most effectual for that purpose. 59. You shall not upon any occasion whatsoever establish or put in execution any articles of war, or other law martial, upon any of our subjects, inhabitants of our said island, without the advice and consent of our Council. 60. And in case of any distress of any other of our plantations, you shall, upon application of the respective Governors thereof unto you, assist them with what aid the condition and safety of our island under your government can spare. 61. You shall, from time to time, give unto us, through one of our principal Secretaries of State, an account of the wants and defects of the island under your government, what are the chief products thereof what improvements have been lately nade, and what further improve- ments you conceive may he made, or advantages gained by trade, and m wh.if ,vay we may contribute thereunto. 62. If any thing shall happen which may be of advantage or security to our island under your government, which is not herein or by our commission provided for, we do hereby allow you, with the advice and consent of our Council, to take orders for the present therein, giving unto us, through one of our principal Secretaries of State, speedy notice thereof, that so you may receive our ratification, if we shall approve the same: Provided always, that you do not, under colour of any power or authority hereby given to you, commence or declare war without our knowledge and particular commands therein first obtained leave for so doing from us, under our sign-manual and signet, or by our order in our Privy Council, 63. And whereas we have thought fit, by our commission, to diiTct that m case of your death or absence, and there be at that time no per- son withm our said island commissioned or appointed by us to be i&-; NEWFOUNDLAND— PROCLAMATION. 449 Lieutenant-Governor, or specially appointed by us to administer tho government within our said island, that the councillor whose name is first placed in our instructions to you, Sunless it shall therein be other- wise signified,) and who shall be, at the time of your absence, residing vvithm our said island, and who shall take the oaths appointed to be taken by you or the Commander-in-Chief of our said island, shall take upon him the administration of the government, and execute our said commission and instructions and the several powers and authorities therein contained, in the manner therein directed. It is, nevertheless, our express will and pleasure that in such case the councillor so admi- nistering the government shall forbear to pass any act or acts but what are immediately necessary for the peace and welfare of the said island, without our particular order for that purpose; and that he shall not take upon him to dissolve the Assembly then in being, cr to remove or sus- pend any of the members of our Council, nor any judges, justices of the peace, or other officer, civil or military, without the advice and consent of at least seven of the Council, nor even then without good and suffi- cient reason for the same, which the said President is to transmit, signed by himself and the respective Council, to us, through one of our prin- cipal Secretaries of State, 64. And whereas we are willing to provide in the '.jest manner for the support of the government of our said island, by setting apart suflfx- cient allowances to such as shall be our Governor or Commander-in- Chief, residing for the time being within the same, oui will and pleasure IS, that when it shall happen that you shall be absent from our said island, one full moiety of the salary, and of all perquisites and emolu- ments whatsoever, which wouul otherwise become due unto you, shall, during the time of your absence, be paid and satisfied unto such Lieutenant-Governor or President of the Council for the time beings which we do hereby order and allot unto hiui for his maintenance, and for the better support of the dignity of our government. 65. And you are upon all occasions to send to us, through one of our principal Secretaries of State, a particular account of your pro- ceeedings, and of the conditions of affairs within your government. (Copy.) WILLIAM R. A Proclamation. Will. ;v -UE Fourth, by the Grace of God, of the (Jnited Kingdom of u..at i^vitain and Ireland King, Defender of the Faith, kc. 1.0 all to whom these presents shall come, greeting; Whereas by our letters-putert under the great seal of our United Kingdom aforesaid, bearing datt at Westminster the 2d of March, GG t a Is X I / S: 4«0 NEWFOUNDLAND— PROCLAMATION. I83'i, in the second year of our reign, we !\ave given and granted to our trusty and well-beloved Sir Thomas John Cochrane, Knight, our Governor and Commander-in-Chief of our island of Newfoundland, full power and authority to summon and call a General Assembly of tho freeholders and householders witliin our said island ; it is therefore our pleasure, and we do hereby declare and make known to all our loving subjects within the same, that for the purpose of the election of the members of the said Assembly, the said island shall be divided into nine districts, to be called respectively, The district of St. John. The district of Conception Bay. The district of Togo. The district of Bona.'ista. The district of Trinity Buy. The district of Ferryland. The district of Placentia and St. Mary. The district of Burin. The district of Fortune Bay. And it is our further will and pleasure, and we do hereby declare, that the bfibre-nientioned district of St. John shall consist of and in* elude all that part of our said island bounded by the shore which is situate and lying between Petty Harbour and Broad Cove. And that the before-mentioned district of Conception Bay shall consist of and include all that part of our said island which, bounded in like manner, is situate and lying between Broad Cove and Bay Verd's Head. ^ And that the before-mentioned district of Togo shall consist of and include all that part of our said island which, bounded in like manner, is situate and lying between Cape St. John and Fogo Island, including that island. And that the before-mentioned district of Bonavista shall consist of and include all that part of our said island which, bounded in like manner, is situate and lying between Cape Freels and Cape Bonavista. And that the before-mtntioned .' .strict of Trinity Bay shall consist of and include all that part of our said island which, bounded in like manner, is situate and lying between Cape Bonavista and Cape Verd's Head. And that the before-mentioned district of Ferryland shall consist of and include all that pari of our said island which, bounded in like man- ner, is situnte and lying between Petty Harbour and Cape Race. And that the before-mentioned district of Placentia and St. Mary shall consist of and include all that part of our said island which, ■: if. NEWFOUNDLAND— PROCLAMATION. 451 bounded in like manner, is situate and lying between Cape Race and xvushven. And that the before-mentioned district of Burin shall consist of and include all that part of our said island which, bounded in like manner, 13 Situate and lying between llushven and Garnish. And that the before-mentioned district of Fortune Bay shall consist of and include all that part of our said island which, bounded in like manner, is situate and lying between Garnish and Bonne Bay. And we do further signify and declare our pleasure to be that the said district of St. John shall be represented in the Assembly by three . members. And that the said district of Conception Bay shall be represented in the said Assembly by four members. And that each of the said districts of Fogo, of Bonavista, of Trinity Bay, and of Ferryland, shall be represented in the said Assembly by one member. And that the said district of Placentia and St. Mary shall be repre- sented in the said Assembly by two members. And that each of the said districts of Burin and Fortune Bay shall be represented in the said Assembly by one member. And it is our will and pleasure that the Governor for the time being of our said island do appoint some fit person to be the returning officer within each of the said districts. And we do further declare our pleasure to be that our said Governor do issue in our name writs for the election of the members of the several districts before mentioned, which writs shall be addressed to the several returning officers aforesaid, and shall by them be returned to the Colo- nial Secretary for tlie time being of our said island. And it is our will and pleasure tliat every man, being of the full age of twenty-one years and upwards, and being of sound understanding, and being our natural born subjoci, or liavingbeen lawfully naturalized, and never having been convicted -n due course of >aw of any infamous crime, and having for two years next immediately preceding the day of election occupied a dwelling-house within our said island as owner or tenant thereof, shall be eligible to be a member of the said House of Assembly. And it is our further will and pleasure that every man who for one year next immediately preceding the day of election hath occupied a dwelling-nouse within our said island as owner or tenant thereof, and who in other respects may be eligible, according to the regulations aforesaid, to be a member of the said House of Assembly, shall be com- petent and entitled to vote for the election of members of the said Assembly ,n and ior tiie district within which the dwelling-house so occupied as aforesaid by him may be situate. qg2 i X I « I r . 'I Si 452 NEWFOUNDLAND—PROCLAMATION. And it is our pleasure that the votes for the members of the said As- sembly shall be taken by the said several returning officers at such one or more place or places within each of the said districts as shall for hat purpose be appointed in the body of the writ addressed to the re- turnmg officer of every such district respectively, and at or within such t.me or times as shall for the purpose be therein limited : but inasmuch as by reason of the difficulty of internal communication within our said island many persons entitled to vote might be prevented from the exer- cise of such their franchise, if in every case it were necessary to attend m person for that purpose, we do therefore declare our pleasure to be that in respect of any dwelling-house situate at the distance of more than (1) miles from the nearest place of election, within any of the said districts, the vote of any householder, duly qualified as aforesaid, may be given without his personal attendance, by a written notice subscribed by such voter, in the presence of two credible witnesses, and duly at- tested by their signatures; which notices shall be in such form as our Governor for the time being of our said island shall from time to time direct. And it is our further pleasure, that if any candidate or voter at any such election shall object to any vote then tendered, it shall be the duty of tlie returning officer to hear such objection, and what may be alleged m support of, or in answer to, the same, and to examine on oath the parties by or against whom sucii objection may be raised, and any per- son or persons who may be adduced as a witness or as witnesses on either side; and upon such hearing, to admit or to overrule any such objection as may to such returning oiTicer appear just and right. And we do further declare our will to be, that the persons in favour of whom the greater number of votes shall be given in any such district shall be publicly declared by such returning officer to be duly elected to be the representatives thereof in the said General Assembly, and shall thereupon be returned and take their seats accordingly: Provided always, that in cases of peculiar doubt or difficulty, it shall be compe- tent for any such returning officer to make a special return, setting forth the grounds of such doubt, upon which the said House of Assembly shall afterwards decide. And it is our will, and we do further declare, that the Assembly so to be chosen as aforesaid shall continue only during our pleasure, and that the said Assembly shall not proceed to the dispatch of any business, unless six members at the least shall be present at and during the whole of the deliberations of the said House thereupon. (1) Left blank in the House of Commons' Paper, 1832, No. 704. lie said As- at such one s shall for [] to the re- vithin such t inasmuch in our said n the exer- y to attend sure to be, ;e of more any of the esaid, may subscribed i duly at- rm as our le to time ter at any 3 the duty be alleged 1 oath the I any per- nesses on any such t. in favour h district ly elected and shall Provided ! compe- ting forth Usembly bly so to and that Jusiness, le whole N ICWIOUNDLAND— PROCLAMATION. 453 And whereas it may be necessary, in order to the complete execution of the several purposes aforesaid, that further regulations should be made for the conduct of the said elections, and the return of members to serve in the said House of Assembly, we have therefore authorized, and do hereby authorize, our Governor for the time being of our said island, by any proclamation or proclamations to be by him from time to time issued in our name and on our behalf, to make such further re- gulations as may be necessary for the conduct of the said elections, and tor the return of members to serve in the said House of Assembly, and for the due discharge of the duties of the said returning officer ; and . which regulations shall be of full force, virtue, and effect, until provision be otherwise made by law, it being, nevertheless, our pleasure that the regulations so to be made as aforesaid be not repugnant to, or incon- sistent with, the several provisions hereinbefore contained, or any of them. ' Given at our Court at St. James's, on the Twenty-sixth day of July, One Thousand Eight Hundred and Thirty-two, in the third year of our reign. i. ( 464 ) NOVA SCOTIA. ■11 ".f ' *il • ,» t i \ '■1 1 * 1 / 1 ! ' ■ • w \ t This colony is situatfid between tlio i,3° jnul 49° of north he norVhv ll' r° -^^^^^-^^ '""^itucle. is bounded " Gulf nf ^h«y. T ^'^'^' ^'- ^,^^^»'e»<=^' on thr east by the C»nL?! n Vli* ^^;r''^"«e «"d the Atlantic Ocean, and by Canada and New England on the west. In the year 1784 Srof}r'''TV'^' t''^'''^ ^'"*° ^''^ governments/of Nova the l.Tw ^'u ^i:""«^^=^- "l>e latter is bounded on the westward by the River St. Croix, and by a line drawn due north from thence to the southern boundary bnnnir r ^^ ^^^^ec ; to thfe northward, by that boundary as far as the western extremity of th^ Bay de fn ttT.;i ' firv'"''''^' ^y *''^^^ ^^y *« ^he Bay Verte, n the Gulf of St. Lawrence ; to the south, hyaline in ttlT.^":^^'^^?''\f^''''''^y'^ ^»«'" tl>« River^St. Cro X on .V 'f *''', ^^"^^^"'"^^ l^'^^^'J by that river to its source, and from thence by a line due east across the s X Wu^ ' f ^?K^'^ Verte, including all the islands within SIX leagues of the coast.— Ency. Brit. HISTORY AND CONSTITUTION. lZ^! T^'f f-"""' °^ ^^"^' ^" *'"« "oJony ^vas given by James I to l^is secretary, Sir William Alexander, from ^ttled in the colony, and gave it the name of Acadia. Jf Newfe^'"? "^'''V' ^»f-"^y^J^en the settlemen ?.. 1 iT^v ""^ '"'''' ^'^^ estabhshed in its neighbour- Sers in^r''^''''PrP.^'"^"y ^''""''''^ between tl.ese- if tV S^ ^^° ?°''^"'^'' *^" Acadia was, at the peace of Utrecht, ceded to England. In 1749 the minSv having begun to think that the province was one of con! s^derable importance, offered great advantage to all se"- InT375,0 tf '^^ ''''^T r' ''^'''' "^ Nova Scot^ The Jm!,l^f' accordingly went thither in that year l\%f;:o'^:^Vc;:mr''' '^ ^^^'- ^^'^"'-- - '^^^ Prince Edward's Island, then called the Island of St John, was annexed to the government of Nova Scotia by NOVA SCOTIA. 455 the commission to Governor Parr on the Uth September, 1784, wliich commission directed the Governor to call General Assemblies for the diftbrent colonies placed under his command. By the instructions to the Governor of Nova Scotia also dated 11 th September, 1781, he was directed not to call a Genr -l A.aonibly of the island of Cape Breton, snch Aseciii.^iy being then inexpedient. By tlie commission to the Duke of Rjchni** d of the lOthAmil, 18H), his Grace was C(jnstituted Governor- G neral over the province of Nova Scotia, the island of Pi ince Edward, (formerly St. John,) and the island of Cape Breton ; and he was authorized to summon General Assemblies of the freeholders and planters within his government, which General Assemblies were to make laws for each of the three places respectively, '• not repugnant, but as near a -al circumstances will permit, to the laws of Great Baitain." A similar instruction as before, relative to Cape Breton, accompanied this commission. By the commission of the 27th April, 1820, to the Earl of Dalhousie, he was appoint ed Governor-in-Chief over the C;inadas, the proviut. s of Nova Scotia, New Bruns- wick, and Prince Edward's Island ; and it was expressly dn-ected and declared, that Cape Breton should in future form part of the province of Nova Scotia. The Gover- nor was authorized to summon a General Assembly for Nova Scotia and for Prince Edward's Island respectively. The instructions of the same date refer to and confirm the express declaration respecting Cape Breton in the commission, and directs the Governor to summon to the Assemblies of Nova Scotia such a number of freeholders from. Cape Breton as were usually summoned to such Assemblies before the time when the said island was first separated from the province of Nova Scotia. A proclamation was issued on the 9th of October, 1820, by Sir James Kempt, the Lieutenant Governor of Nova Scotia, making the necessary regulations for carrying into effect the re-annexation of Cape Breton to Nova Scotia, and dissolving the separate council of the latter place. By an act of Assembly of Nova Scotia, dated 22d December, 1820, the civil government and administration of justice in Cape Breton was directed to be conformable to the usage and practice of the Province of Nova Scotia. The act recited, that Cape Breton was in future to be 9 yi hi I e I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 1^ M& m !4£ m i^ m us k& 11^ u •- . hiUL. ILLS. U 11.6 % 7 ^,. /;-*■ ^''^ ^•? -^-^ ""^ qW. Photographic Sciences Corpomtion 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 % '%^''\ ^^j > '^^ 456 NOVA SCOTIA. known by the name of the County of Cape Breton -uul memVer""^'' ^" '''' Assen.b/of the ^r^vbctb; Co The Supreme Court was chrected to be held bv the Chief .Tust.ee, or in his absence by two of the Assistant nisStio^nT'^Jf ^^Pr^^t^ «^^i»s and of letters of admi- mstiation for the said county were to be done at Sydney The barristers and attornies of the Supreme Couitwere to be allowed to practise in that and all the other courts adm^^^r"'!' ^S' "°' "'^^^^^^^ «"t oUhe county, uXss ^Pape?s'"rpW^T'T.' ^""^'^ ^' "^'^^^^ i" Nova Scotia tnSSr J f^'^'V '^^ re-annexation of Cape Breton ^3d'Sre,'l^3^^^ """"^ ^' ^°'"«^^-' Papers,'N. lie? . The constitution of Nova Scotia is, bv roval rnmmic The Legislative Assemb'v is comnn«P.l «p <• * LAWS. (1) All causes, both civil and criminal, are determined .r cording to the common and statute W of Sa^^^^^^^ the statutes of the province. The bankrupt hwf of En ' land are said not to extend to (his province.(2) ^" COURTS. ^^^^^_^^^;^^^_f_^^^ to correspond with (2) But see ante, pp. 102, 103, 104, <:■ l NOVA SCOTIA. 457 those of Lnglaiul. The practice of the Court of Chan- cery IS agreeable to that of England. The Governor is chancellor, but there is also a Master of the Rolls. The Supreme Court of Judicature is modelled after the Court ot Hmg s Bench in England, and closely follows its prac- Uce. It possesses also the peculiar jurisdictions of the Cour s of Common Pleas and Exchequer. The Supreme Court consists of one chief justice, three puisne judges, and an associate judge. The law officers of the CrSwn are an Attorney and Solicitor-general. There is a Court of Common Pleas in each of the ten counties into which the province is divided. Their iuris- diction extends only to civil actions within the county. Justices of the peace take cognizance of breaches of the peace, and of matters of debt not exceeding £5. Appeals from all the inferior courts may be made to the ^upreme Court, and from the Supreme Court to the King in Council. There is a Court of Quarter Sessions in each county. There is a Court of Error and of Marriage and Divorce, composed of the members of the Council. There is a Court of Escheats and Forfeitures, presided over by one commissioner, and a Court for the probate of wills and grantmg letters of administration. The juris- diction of this court is entrusted to an officer styled the Surrogate General of the Province. The general expense of the judges and courts of ius- tice is stated m the account of the Colonial Revenue to amount to i'5000._2 Maegregor's Brit. Amer. and Alma^ CAPE BRETON Is an island near the eastern continent of North America lying between 45° and 47° of north latitude. It is se- parated fix)m No^a Scotia by a narrow strait, called Causo, and is about 100 miles in length, and 50 in breadth It IS surrounded by little sharp-pointed rocks, separated trom each otlierby the waves, above which some of their ops are visible. All its harbours are open to the east, turning towards the south. Except in the hilly part, the surface of the country has but little solidity, being every a is 5 T t 458 NOVA SCOTIA. il / »r ct:«e "cold!' " "^'" ■"»" ""'' '""^ -'«• The HISTORY AND CONSTITUTION. a^Tards'hv vZ ^'^^.«^^T^ »>y Sebastian Cabot, and artei wards by Verazani, who named it Isle du Can t^e FrS^'. 'TT^ *° '^' '«^«"*^ ^^^»'y summer, bT; nerlv Z fl ^^^*"?'^ possession of it in 1713, were pro- Lie Rovi' ^y^^bitants. They gave it the name^ of of ther/il f '^^^"Pon Port Dauphin as the place nLachin. • ™?*- ?" "*'?""* *^^ *^« difficulty of ap- CS t'->; place, the settlers subsequently changed to fiSonoTf **^.\^^*^^'«« t« which was lasier."^ Theforti- TheTl^ll v!- r'^ r'^',"*'' ^'^^^^er begun till 1720. I he island, which is the key to Canada, was attacked bfthXSv^W '''•'' -t^rXo^Frte caVtuLrin"l7l8 Tk'^^'P""".' ""^ ^^^'^ «"«<^k« 470 CAPE OF GOOD HOPE. authority, and eight volumes in manuscript have been col- i n"^-^ ^^^^^^ ^^ ^^^ contents is in preparation. A collection of the proclamations and orders that were considered to relate to the administration of justice in the country districts was printed and distributed among the landdrosts. It was not however complete. The commissioners (in 1826) recommended that the whole territory of the Cape of Good Hope, which is now subject to His Majesty's dominion, should be separated into two provinces, (3) to be called the Western Province and the Eastern Province. The free population of the hrst they stated might be estimated at 45,014, and the saves at 28,934; that of the latter at 39,513, and the slaves at 6,575. The chief justice is required to certify that the laws and ordinances that may be passed by the Governor in Coun- cil contain nothing that is inconsistent with the laws of the colony, or with that part of the law of England which IS m force here. The Burgher Senate originated in the appointment of two persons by Commissioner Van Goens, in the year lb37, to deliberate in criminal matters and to assist in the trial of freemen, as contradistinguished from those who were m the service of the Dutch East India Company. In the tol owing year this number was h.creased to four, under the appellation of" Burgher Raaden," or Burgher Council, and their jurisdiction was extended to civil causes. I hey continued to exercise these functions until 1784, when a Court of Justice was estabhshed, composed of a i'resident, who was a member of the Council of PoHcy, and twehre members, six of whom were servants of the JJutch East India Company, and six were members of the tSurgher benate, who were made permanent. They continued to exercise their share of the judicial functions until the courts were remodelled in 1792 by the Dutch government. They have since formed a kind of Admi- nistrative Council.— Rep. Commissioners of Inquiry into the Administration of Government at the Cape of Good Hope, House of Commons' Papers, May, 1827, No. 282. juSkVio'tSr'"''"''"" " "°^ '"■"''^ '""• '""'"'• ^'"' "'" ^'''"'''=^ °f CAPE OF GOOD HOPE. 471 Cape Town. Six burghers constitute a senate for the government of the town. Their functions are similar to those of our aldermen. They mediate between the boors of the coun- try and the tradesmen of the town. They have not the power of inflicting any punishment, but report crimes and Misdemeanors to the fiscal, who is mayor of the place and Attorney-General of the colony.— An Account of the Cape. COURTS. The only members of the Court of Justice at the Cape, who had any professional education, at the time of the commissioners' inquiry, were the fiscal and the secretary. The jurisdiction of the court extended to the trial of offences committed by the military. In all such cases, however, the Governor, as commander-m-chief, had the power of nominating two military oflicers to sit on the trial and give their votes with the ordinary members. The decision was by the majority of votes. Two of the members in turn formed a monthly commission, before which written evidence was produced by the at- tornies of the parties and every information collected against the full meeting of the court, which was held once a fortnight. All suits under MO were decided in an in- ferior court, called the Court of Commissaries for trying Petty Causes. In the country districts the landdrost and heemraaden were empowered to give judgment in all cases where the damages to be recovered did not exceed £30. The Court of Commissaries was also a court for matrimo- nial affairs (4) and consisted of a President and Vice-Pre- sident and four members, whose situations were merely honorary and their appointments biennial. It granted licenses for marriage where, on examination of the parties, there appeared to be no legal impediment. If either of the parties had been married before and had children, a certi- (4) Mr. Barrow (vol, i. p. 252,) mentions, as in force in his time, an absurd law by which the parties in- tending to marry were obliged to be swer certain interrogatories and pass the forms of office there, the chief in- teat of which was to see that no im- proper marriage took place. Of course the journ<;y was purely vexatious, for the consummation frequently pre- ceded the ceremony, which was never refused, at icast if the man, afier having satisfied his passion, was still ready to perform his promise. lis GM •I 472 CAPE OF GOOD HOPE. 51:;* I ficaie was produced from tlie Secretary of the Orphan Uiamber, or from the notary a],pointed to administer the attmrs of the children, that the laws of the colony relating to inheritance had been duly complied with. fl,n M- . '''^^^'""■' *"'* ^'■P'^^" Chamber, for managing the eftects of minors and orphans, was one of the original nstitutions of the colony, and was modelled on those es- tabhshments of a similar kind that are still found in every City and town of Holland. ^ The Orphan Chamber consisted of a president, four members, a secretary, and several clerks. Their eraolu- men s arose from a per centage of 2i per cent, on the amount ot all property coming under their administration, and from sums of money accruing from the interest of unclaimed property, and the compound interest arising from the un- expended incomes of orphans during their minority— 2 nn^'7 i^^^r"' °x^ ^^V*^^'" ^^"^^- This chamber is now abolished, see the Charter of Justice, post, 483. By their laws of property the estates and moveables of two persons pntering into matrimony became a joint stock, tj't't ^f\r'% ^^^ifn equal participation, and on the death of either the children were entitled to that part pt the joint stock whicli belonged to the deceased, unless it was otherwise disposed of by will, which was only permitted under certain restrictions and limitations. A ^^ Supreme Court of the colony of the Cape of Good Hope has been estabhshed by charter (see post.) The ^n r f^n^^Y^ ^rl''V' ''^^^^ "^ the Cape Almanack to be £2m, that of the Puisne Judges £1500 each. Insolvent Law. Ordinance 64, passed August 6th, 1829. Sect. 4. Any person departing, or remaining absent from the colony or departing from his dwelling, or otherwise absenting himself with intent to defeat o" delay his I e- ditors, or not satisfying a sentence, or not pointing out c^?nnrh*'7P''V' ^°' ''\ «^''«f^^^tion, or when sufficient trTn? ^^.,?""'^'. «^' "^fkmg any fraudulent alienation, transfer, gift, cession, delivery, mortgage, or pledge of any of his effects, shall be considered insolvent. ^ 16. Creditors of a company may petition against all, or ZV^T'" *^^^^" P^^'t»^^'« ; but this is not to prevent mrfnn!."/i""" "J ^ company from proceeding against any paitner thereof m respect of debts due by such company! CAPE OF GOOD HOPE. 473 19. Orders for sequestration are to be forthwith lodged at the sheriff's office for registration; whereupon the master, if the order has been made at the instance of creditors, shall cause the same to be notified in the Ga- zette, and the insolvent is then to lodge with the master ^ OA °* '^^."^»"es and places of abode of his creditors. .A. Petitioning creditors may, on obtaining orders for sequestration, cause the debtor to be summoned before the buprenje Court, to show cause why his estate should not be sequestered. 26. In case of unfounded, vexatious, or malicious peti- tions, the court may, on proof, award damages, or leave the party to his action. 29. After order for sequestration, all judgments shall be stayed, but creditors may in such cases prove for both debt and costs ; and property attached, but not sold, shall be placed under sequestration, and the person holding the judgment shall be entitled to such preference over the proceeds as by law is created over such property in vir- tue of the attachment. 30. After order for sequestration, all pending actions tor debt shall be stayed, and the plaintiff may prove for botli debt and costs. 35. In cases of mutual credit the balance only shall be proved or paid on either side. 38. No person whose debt depends upon a contingency or condition, shall be entitled to petition or vote in the choice of trustees or otherwise, so long as the contingency %a "?* ^^PP^" °^' ^^^^ condition shall not be performed. 39. In case of absence of a claimant from the colony, or in any other case where the court is of opinion tiiat the debt can eventually be proved, it may allow such claim to be entered on the proceedings, give reasonable time for proof, and make an order for securing the amount, in case ot Its being afterwards estabhshed. 43. Creditors may vote by agents duly authorized. 91. Any agreement, &c. made by an insolvent in order to obtain the signature of creditors, is null and void. 93. A trustee becoming insolvent, and being indebted to the estate for which he was trustee, shall not be dis- charged therefrom by obtaining his certificate. as <4 4 neriff. The office of high-sheriff was originally created on the 474 CAPE OP GOOD HOPE. for iTZ^/ '^^^/ ""^^^* '^« provisions of the royal charter in thi o^ ''i?.™^'*^ "^^^'*"«» administration of justice St the nVh'r"^«'"'^J"'' *^ *^^ regulations contain- cariv ntn fv ' f''''*,/\'' P^«'-) The sheriff's duty is to Sp.^ nf ^"*' v"^" ^^^ sentences and decrees of the di^tnl! ♦^PPT ^ deputy-sheriff for each of the country their nffi.ll°J'^.-°"u*^.^ "^'^"y' ^°' ^^ose conduct in aU !amP f,n '^"- ''\^^ ^' '^'P^"^^^^^' «»dwho act in the Ihft^^^^^^^^^^ the head oV thes^h^;w\^'^{,'''-'^^ V* ^« ""'^^'^^ »>ythe court that the cou n^'o";r *^"^'' ^ay of every item,, exhibit to mln?T ' ?" °**^i a.stafement of all his receipts and pay- ^eafne^t n^o!/ ^'^^i, ^'^^ "^^^ ^"""^ ^^^ ^««^« «' « S,^nf ^Tf'""^ the same term, and specifying in such XtTclm. ' T/ **^r '"r^" ^» his handsfand on Wm 3T ' "'^ ^"l"* ""^^^^ t'^^ ««™e ^ere received by and'shaJl i J -"P^" ^^''..'"^^ sheriff shall be entitled to and shall receive a certificate thereof. and tlTi 't«*^"?^n' ^^all be filed with the master, all r^LnnJll !-P'''"'"'.'^ *° ^"y ^"orney of this court, at trac7« r^'^ ^''"''V*^ ^"^P"^' th^ ««°»^ and to take ex- tiacts therefrom without fee." Cowr/ of Vice-Admiralty. -Po/tce Cowr/. • i'^^.'\J''"r' '' ^^^'^ ^^^'^^^ t^e Judge of Police and Re- i^eco^^ery of Small Debts in the Cape District. tn Thl r^'^'T/'P \""? ""^^'' -^^^ »*ec«»''se must be had to the Court of the Judge of Police in Cape Town, or to that of the Resident Magistrate in the cou^ry. dpfpVtlJl* t ''^''^" °^. V^^ magistrate, if the evidence be Whin • f'^^TI ^'^t'" P^^^"*^^' «^ defendant on oath. TT_.i. ji.«5.a,,„t has wcwi given, a warrant is handed CAPE OP GOOD HOPE—CHARTER OF JUSTICE. 475 over to the messenger, wliich he is bound to execute on «ie defendant, if resident in town, within twenty-four Matrimonial Court for Cape Town and Cape District. The Judge of Police is generally the Judge of this court. Ihe Matrimonial Courts in the country districts are composed of the Resident Magistrate and the Clerk of the 1 eace, where these officers exist, and where there is no Uerk of the Peace, of the Resident Magistrate and his clerk only. Extract from Patents of the Second Year of the Reign of King William the Fourth. CHARTER FOR SUPREME COURT OF JUSTICE AT THE CAPE OF GOOD HOPE. William the Fouhth, by the grace of God, of the United Kinedom of Great Britain and Ireland King, Defender of the Faith, To all to whom these presents shall come greeting: Whereas it is expedient to make provision for the better and more effectual administration of justice in our colony of the Cape of Good Hope, and in the several tcmtones and settlements dependent thereupon, and for that purpose to constitute within our said colony and its dependencies one Supreme Court of Justice, to be holden in the manner and form hereinafter menUoned. Now know ye, that we of our special grace, certain know- ledge, and mere motion, have thought fit to grant, direct, order, and appoint, and by these presents do accordingly for us, our heirs and suc- cessors, grant, direct, order, and appoint, that there shall be witliin our said colony of the Cape of Good Hope a Court, which shall be called " The Supreme Court of the Colony of the Cape of Good Hope." And we do hereby create, erect, and constitute the said Supreme Court to be a Court of Record. And we do further will, ordain, and appoint, that the said Supreme Court of the colony of the Cape of Good Hope shall consist of and be holden by and before one Chief Justice and two Puisne Judges, and that the said Chief Justice shall be called and known by the name and style of "The Chief Justice of the Colony of the Cape of Good Hope;" and which said Chief Justice and Puisne Judges shall be respectively banisters in England or Ireland, or advocates admitted to practise in our Courts of Session of Scotland, or in the said Supreme Court. And which said Chief Justice and Puisne Judges shall from •S Ml c •J r> I i ll tf 5^1, 476 CAPE OP GOOD HOPE— CHAIlTliR OF JUSTICE, time to time be nominated and appointed to anch tlieir offices by us, our heirs and successors, by letters-patent under tlie public seal of tlie said colony, to be issued in pursuance of any warrants or warrant, to be from time to time for that purpose granted by us, our heirs and successors, under our or their sign manual. And we do hereby declare, ordain, and grant, that upon the death, resignation, sickness, or incapacity of the said Chief Justice or any of the said Puisne Judges; or in the case of the absence of any of them from the said colony, or in case of any such sus- pension from office as hereinafter mentioned, of any such Chief Justice or Puisne Judge, it shall and may be lawful to and for the Governor of our said colony for the time being, by letters-patent, to be by him for that purpose made and issued under the public seal of the said colony, to nominate and appoint some fit and proper person or persons to act as and in the place and stead of any such Chief Judge or Puisne Judge so dying or resigning, or labouring under such sickness or incapacity as aforesaid; or being so absent as aforesaid from the said colony, or being so suspended, until the vacancy or vacancies so created by any such death or resignafon, or sickness, or incapacity, or absence, or suspension, shall be supplied by a new appointment, to be made in manner aforesaid by us, our heirs and successors, or until the Chief Justice or Puisne Judge so becoming sick, or incapable, or being absent, or suspended as afore- said, shall resume such his office, and outer into the discharge of the duties thereof. And we do further will, ordain, and grant, that the said Chief Justice and Puisne Judges shall hold such their offices during their good behaviour. Provided nevertheless, that it shall and may be lawful for the Governor of our said colony for the time being, by any order or orders to be by him for that purpose made and issued under the public seal of the said colony, with the advice of the executive council of go- vernment of the said colony, or the major part of them, upon proof of the misconduct of any such Chief Justice or Puisne Judge as aforesaid, to suspend him from such liia office and from the discharge of the duties thereof, provided that in every such case the said Governor shall imme- diately report for our information, through one of our Principal Secre- taries of State, the grounds and causes of such suspension. And we do hereby reserve to us, our heirs and successors, full power and authority to confirm or disallow sucli suspension from office as aforesaid of any such Cliief Justice or Puisne Judge. And we do hereby further reserve to us, our heirs and successors, full power and authority, upon sufficient proof to our or their satisfaction of any such misconduct, to remove and dioplace any such Chief Justice or Puisne Judge from such his office. And we do hereby give and gi-ant to our said Chief Justice for the time being rank and precedence above and before all our subjects whomsoever within the said colony of the Cape of Good Hope and the territories and places dependent thereupon, excepting the Governor or Lieutenant-Governor for CAPE OF GOOD HOPE — CHARTER OF JUSTICE. 477 the time being thereof, and the Commnnder-in-chief of oiir forces for tlio time being within the same, and excepting all such persons as by law or usage in England take place before our Chief Justice of our Court of King's Bench. And we do hereby give and grant to the said Puisne Judges for the time being rank and precedence within our said colony cf the Cape of Good Hope and the territories and places dependent there- upon, next after our said Chief Justice of our said colony for the time being. And we do hereby declare, that the said Puisne Judges shall take rank and precedence between themselves according to the priority of their appointments respectively. And we do further grant, ordain, and appoint, that the said Supreme Court of the colony of the Cape of Good Hope shall have and use, as occasion may require, a seal bearing a device and impression of our royal arms within an exergue or label surrounding the same, with this inscription, « The Seal of the Supreme Court of the Cape of Good Hope." And we do hereby ordain, grant, and appoint, that the said seal shall be delivered to and shall be kept in the custody of the said Chief Justice, with full liberty to deliver the same to any Puisne Judge of the said court for any temporary pui-pose; and in case of vacancy of or suspension from the office of Chief Justice, the same shall be delivered over to and kept in the custody of such person as shall be appointed by the said Governor of our said colony to act as and in the place and stead of the said Chief Justice. And we do further grant, ordain, and declare, that the said Chief Justice and the said Puisne Judges, so long aj they shall hold their offices respectively, shall be entitled to have and receive such salaries as shall be granted to them by us, our heirs and successors, which salai-ies shall be in lieu of all fees of office, perquisites, emolu- ments, and advantages whatsoever; and that no fee of office, perquisite, emolument, or advantages other than and except the said salaries shall be accepted, received, or taken by any such Chief Justice or Puisnt Judge on any account or any pretence whatsoever. And we do further ordain, appoint, and declare, that no such Chief Justice or Puisne Judge as afore- said, shall accept, take, or perform any other office, place of profit or emolument within our said colony; and that the acceptance of any such other office or p^ace as aforesaid, shall actually vacate and avoid such his office of Chief Justice or Puisne Judge, as the case may be, and the salary thereof shall cease accordingly from the time of the acceptance of any such other office or place. And we do hereby ordain, appoint, and declare, that there shall be attached and belong to the said court the fol- lowing officers (that is to say), one officer to be styled the Registrar or Prothonotary and Keeper of Records of the said Court, and one other officer to be styled the Master thereof, together with such and so many other officers as the Cliief Justice of the said court for the time being shall from time to time appear to be necessary for the administration of justice, and the due execution of the powers and. authorities which are :3 -a -<-^" .■A.^agiit^idfcii.i i,. ,1 ,. ^ ^ 478 CAPE OF GOOD HOPE—CHARTER OP JUSTICE. granted and committed to the said court by tliese our letters-patent. Provided nevertheless, that no now oftico shall be created in the said court, unless the Governor of the said colony or Licutcnant-Oovernor for the time being shall first signify his approbation thereof to the said Chief Justice for the time being in writing under the hand of such Governor or Lieutenant-Governor. And wo do further ordain and direct, that all persons who shall and may be appointed to the offices of Registrar or Prothonotary and Keeper of Records or Master of the said court, and that all persons who shall bo appointed in the said court to any offices of which the duties shall correspond to those performed by the Master or Prothonotary of any or either of our Courts of Record at Westminster, shall be so appointed by us, our heirs and successors, by warrant under our or their royal sign manual ; and that all persons who sholl and may be appointed to any other office within the said Supreme Court, shall be 80 appointed by the Governor for the time being of the said colony. And we do further direct and appoint, that the said several officers of the said court other than and except the said Chief Justice and Puisne Judges thereof, shall hold their respective offices therein during the pleasure of us, our heirs and successors. And wc do hereby authorize and empower the said Supreme Court of the colony of the Cape of Good Hope to approve, admit, and enrol such persons os shall have beeu ad- mitted as bairisters in England or Ireland, or advocates in the Court of Session of Scotland, or to the degree of doctor of laws at our Univer- sities of Oxford, Cambridge, or Dublin, to act as barristers or advocates in our said Siipreme Court. And we do further authorize and empower the said Supreme Court to admit any persons to practise as barristers and advocates therein, who previously to the promulgation of these presents within the said colony have been actually admitted to practise as advo- cates in the Supreme Court of Justica heretofore existing within the same. And we do further authorize and empower the said Supreme Court to approve, admit, and enrol, any persons being attomies or solici- tors of any of our Courts of Record at Westminster or Dublin, or being proctors admitted to practise in etiy Ecclesiastical Court in England or Ireland, or being writers to the signet in Scotland, or being now entitled to practise as proctors or notaries in the said Supreme Court of Justice heretofore existing within the said colony, to act as attomies, solicitors, or proctors, in the said Supreme Court of the colony of the Cape of Good Hope. And we do further authorize our said Supreme Court to approve, admit, and enrol, as such attomies, solicitors, or proctors as aforesaid, such and so many persons as may be instructed within our said colony in the knowledge and practice of the law, by any barrister, advocate, attorney, solicitor, or proctor, duly admitted to practise in the said court, and which persons shall be so approved, admitted, and enrolled according to and in * pursuance of any general rule or rules of court to be for that purpose CAPE OP GOOD HOPE— CHARTER OF JUSTICE. 479 made in manner licreinafter directed. And wo do ordain and declare, that persona approved, admitted, and enrolled as aforesaid, ahall bo and they are hereby authorized to appear and plead and act for the Buitora of the said Supreme Court, subject always to be removed by the ■aid Supremo Court from their station therein upon reasonable cause. And we do further ordain, that no person or persons whatsoever not so approved, admitted and enrolled as aforesaid, shall be allowed to appear, plead, or act in the said Supremo Court for or on behalf of any suitors m the said court. Provided always, and wo do further ordain and de- clare, that the functions and office of barristers and advocates shall not be discharged in the said court by the attornies, solicitors, and proctors thereof; and that the functions and office of such attornies, solicitors, and proctors, shall not be discharged by such barristers at law or advo- cates. Provided nevertheless, and wo do further declare our will to bo, that in case there shall not be a sufficient number of barristers and advo- cates within the said colony competent and willing to act for the suitors of the said court, the said court shall and is hereby authorized to admit any ofthe attornies, solicitors, or proctors thereof, to appearand act as barristers «nd advocates during the time of such insufficiency only; and in case there shall not be a sufficient number of attornies, solicitors,' and proctors within the said colony competent and willing to appear and act in that capacity for the suitors of the said court, the said Supreme Court shall and is hereby authorized to admit any of such barristers or advocates to practise and act in the capacity of attornies, solicitors, and proctors, during the time of such insufficiency only. And we ordain and declare, that the Governor for the time being of the said colony of the Cape of Good Hope shall, on the first Monday in the month of Ja- nuary in each year, by warrant under his hand and seal, nominate and appoint some fit and proper person to act as and be tJ^ 3 Sheriff for our said colony of the Cape of Good Hope and its dependencies for the year ensuing, which Sheriff, when appointed, shall, as soon as conveniently may be, and before he shall enter upon his said office, take an oath feith- fuUy to execute the duties thereof, and the oath of allegiance before the said Governor, who is hereby authorized to administer the same. And we do direct, that the said Sheriff shall continue in such his office during the space of one whole year, to be computed from the said first Monday in the montii of January, and until another shall be appointed and sworn into the said office; and in case such Sheriff shaU die in or i^ sign his said office, or depart from our said colony of the Cape of GoonA ,.«♦;! o«„»i.__ bheriff shall be duly appointed and sworn into the said offica. And we C ■4 r J m 4g^ CAPE OP OOOD HOPE— CIIARTF.R OF JUSTICE, do fl,rther order, direct, and appoint, that the Haid SI.erifT fi.r tl.o time being .hull, by lumHclf or hi. nnfliciont depnticH. to be by him appointed and duly nnthonze.! under hi. band and .e«l, and for whom be .hall !«. ro,pon..blo during hi. continuance in .ucb office, execute, and the .ni.l Bhenffby bi,n.elf and hi. ,aid doputie. arc hereby authorized to execute, «n the sentence., decree., judgn.cn :«, writ., .ununonBo., nde., order., wnrran . command., and procc.e. of the .aid Su,,reme Court of the Capo of Good Hope, or of the Circuit Courts of the said colony bereafler mentioned; and shall make a return of the same, together with the manner of the execution thereof, to the Supremo Court of the Cape of Cood Hope, or to the said Circuit Court., as the case may be; and .hall receive and detain in pri.on all ,uch person, a. shall bo committed to the custody of .uch Sheriff by the Supreme Court of the Cape of Clood I ope, or by the .aid Circuit Courts, or by the Chief Justice, or by any other judge of the said courts. And we do further authorize our Gover- nor for the time being of the said colony of the Capo of Ciood Hope in each succeeding year to re-appoint the same person to fill the oflice of Bhcnff, ,f u shall appear to our said Governor expedient so to do. Pro- vided nevertheless, and we do hereby require our said Governor in the selection of any person to fill the said oflice of Sheriff of the Cape of Good Hope, to conform himself to such directions as may from time to time bo given m that beludf by us, our hciis and successors, through one of our or their Principal Secretaries of State. And we do further direct ordain, and appoint, tliat whenever the said Supreme Court of the Cape of Good Hope, or the Circuit Courts hereinafter mentioned, shall direct or award any process against the said Sheriff, or award any process in any cause, matter, or thing, wherein the said sheriff, on account of his being related to the parties or any of them, or by reason of any good cause of cliallenge whicli would be allowed against any Sheriff- in Eng- and, cannot or ought not by law to execute the same, in every such case the said Supreme Court of the colony of the Cape of Good Hope, or the said Cn-cmt Court., as the case may be, shall name and appoint some other fit person to execute and return the same; and the said process shall be directed to the person so to be named for that purpose, and the cause of such special proceedings shall bo registered and entered on the records of the said courts respectively. And we do hereby fvMher ordain, direct, and appoint, that tlie said Supreme Court of the colony vf (1, ^ Cpe of Good Hope shall have cognizance of all pleas and jur .i -,-, „. ■]] causes whether civil, criminal, or mixed, arising within ine said colony with jurisdiction over our subjects and all other persons whomsoever reading and being within the said colony, in as full and ample manner an'' to all intents and purposes as the Supreme Court of Justice now ex7.tmg within the said colony now hath or can lawfully exercise the ?am... \ V ;1 yre do further give and grant to tlie said Supreme Court of CAPE OF GOOD iropR—rilAnTEIl OF JUSTICE. 481 «.o colony of tl.o Capo of CJocl Hope full ,K>wor. authority. „nd U»i^ diet,.., to apply judge. auU .Ictonnino upon, and nccordiug to the llt^ now n. force w.thi.. our «„id colony, „ud «„ ,.,eh other IawV«. In a nny t.,..e hereafter ho n.ado and estaUi.hed for the peace, onll nj government thereof by u,. our hein. and successor., wi h the JZ 7u\ o o7 the TT' T ; ""^ "' ''''" P"^^ -'-'• - ^y »'•« «ov - nent tier 7 A 7* ^"" "'"" "' *'" '"^'^''^''^^ '^"""^" "^ govern- Co, rt A,1I power. jur.8d,ctio„, and authority, to review theproceed.L of nlhnfenor courts of justice within our said colony, and if necessary to Hctas.de or correct the s«.„e, and ia the exercise of such STctiol powe». and authorities as aforesaid, our will and pleasure s hTt th^ onler^ r " "l!' ""^ ''^^ «-'«"-'•!«--. JudKn.ents. and " a,iti^^^^^^^^^ '^'^^•'"^'^ "-P- court, aninot other. snail be in the tnghsh language; and that in all criminal cases the ^tnesses against and. for any accused person or persons si all deli «^e.r evidence u..i voce and in open court. And wo do further w 1 Ui Oct, andappo.nt. that for tho conduct and decision of all cnS s^^' « hons and causes depe„di..g before the said Supre.ne Courrand of a 1 quesuons. matter, and things arising in the coL of any Lh civi «Us action, or cause, any two of the judges of the said Sup'rem Co shall form a quornm. and shall be competent to execute all a.^ everyle power, j,.r.sd.ction, and authorities hereby granted to and vestlb he sa Id Supreme Court; and that in tho event of any difierence of opb on between such two judge, the decision of the said c'ourt sha" n Ly "u h case be suspended until all the three judges shall be presen t,^nd "he decision of such three judges when unanimou, or of the Ljoi" ty of su h three judges m case of any difference of opinion, shall in all cases be deemed and taken to be the decision of the' whole cour And we J^ fimher ordain direct, and appoint, that in any criminal case dlrdin^ tL% r ""^ °"' r ""'"' "^ '^' J"''^^' «f »he said court and a jury (o) of nine men, who shall concur in every verdict to be given on "3 J m M (5) The following was the jury law of the colony under an ordinance issued in pursuance of the charter of "Ordinance of his Honoui the Lieuteuant-General in Council for determining the qualification of per- sons to serve on grand and petit iu- nes, and the mode of making out and returning lists of the same." Passed February 4, 1828. Sect. 1. Whereas by His MostGra- cjous Majesty's charter, bearing date the 24th day of August, 1827, it is ordained, directed, and appointed, that in any criminal cause dependintr before the Supreme Court of U.is co- lony, the trial of the party or parties I I 482 CAPE OF GOOD HOPE— CHARTER OP JUSTICE. 7f «••! t:$ Jl:i *,(• ■8! ' tf ,tf mi »*', •Mkb. •''"Sill ' »'' JB51 I? '■Ml., tha trial of any such accused party or parties ; and every such verdict ahall be delivered in open court by tlie moutli of the foreman of every such jury, and sliull be thereupon recorded and read over to such jury before tliey arc discharged from attendance on the said court, Provided nevertheless, and we do further declare ojul direct, timt no person within the said colony who may be otherwiso competent 10 servo on any such jury as aforecaid, shall bo or be taken to bo incompetent to serve on such accused shall lo before one or inoro of the judges of the said court and r jury of nme men, who shall concur in every verdict to be given on the trial of any such accused party or parties. And whereas by the said charter it is also directed, that all c.irues ond offences cognizable in the Circuit Court of this colony, shall be inquired of, heard, and determined by the Circuit Judge aid a jury of nine men, unless upon the trial of any crime or offence before any of the said Circuit Courts nine good and lawful men, being duly summoned, shall not appear to fortn a jury, tlien and in ill such cases such trial shall bo had before the judge, and any number of the jury wiio shall appear, not being less than six, who shall be sworn, ana shall have the same power as if tiie usual number of nine had appeared : now, therefore, in pursuance to the powers and directions aforesaid in the said charter contained, be it enacted by his Honour the Licutenant-Gover- nor in Council, that from and after the passing of this ordinance, every man, except as hereinafter exceptecf, betweeen the ages of 21 and 60 years, residing within the colony and its de- |>endencies, who shall have the posses- sion of any land situated within tliis colony, held on perpetual quit-rent or on loan, and for which he is liable to pay an annua! rent of not less than one pound seventeen shillings and six- pence sterling, or of freehold land of the same annual value, or who shall be liable to pay in Cape Town and the district thereof a sum not less than twenty shillings sterling, and in any and every other part of this colony a sum not less than fifteen shillings sterling for or on account of taxes already imposed or hereafter to be ini- Eosed D^ any law or ordinance, shall : quaiiiicd aud shall be liable to serve on juries in all criminal cases in the Supremo and Circuit Courts, such cases being triable in the district re- spectively in whicii every man so qua- lified shall reside. 2. Provided always, and be it fur- ther enacted, that all judges of the Supreme Court, all clergymen in holy orclers, all priests of the Roman Ca- tholic faith, all persons licensed to teach or preach in any congregation assembled for religious worship, all attornies and proctors duly admilted by the Supreme Court or Court of Vice- Admiralty, and actually praotis ■ ing, all officers ot any courts of supe- rior or inferior jurisdiction, exercising tiie duties of tlieir respective offices, all gaolers and keepers of houses of correction, all persons duly admitted to practise as physicians, surgeons, or apothecaries, and actually practising, all officers in his Majesty's army and navy on full pay or in active employ- niont, all persons employed in the civil service of his Mnjesty's govern- ment in this colony, and all field-cor- nets, sheriffs' officers, constables and clerks, shall be and are hereby abso • lutely freed and excepted from being returned and from serving upon any jury whatsoever. 7. And be it further enacted, that no person shall be put on trial on any indictment at any criminal session of the Supreme Court, unless the bill shall first have been presented to a grand jury, and shall have been re- turned by them a true bill. 8. And be it further enacted, that every such grand jury shall consist of not more than seventeen men, and not less than nine men, between the ages of 21 and tiO years, of good fame and condition, possessing properly in land or houses within Cape Town of the value of £2000 sterling. CAPE OP GOOD HOrE— CHARTER OP JUSTICE. 483 jury by reason of his ignorance or supposed ignorance of the English angunge. And wo do further ordain and direct, that all the dutiea heretofore performed by the Oqihan Chamber within our said colony, shal henceforth be peiformed by the Master for the Umo being of the said Supreme Court, and that the said Orphan Cimmber shall be and the same 18 hereby abolished. And we do further direct and appoint, that the said Supreme Court shall at all times be holden at Cape Town In our said colony. And we do further ordain and direct, that it shall and may be lawful for the CJovernor of the said colony by any proclamation or proclamations, to be by him for that purpose issued, to apportion and divide the said colony into two or more districts, and to fix and ascertain the boundaries and limits of every such district, and such boundaries and limits from time to tim. to alter as occasion may require. Provided always, that srch apportionment of the said colony into suca districts sb aforesaid be made in such manner as to such Goverjiior may arpear to be best adapted for enabling the inhabitants of the said colony to resort with ease and convenience to the Circuit Courts to be therein established as after mentioned. And we do further grant, ordain, and appoint, that courts to bo calle.1 Cii ult Courts shall be holden twice at the least in each year m each of the districts into which the said colony may be so divided ar aforesaid, and each of the said Circuit Comts shall be holden by the thief Justice, or by one of the said Puisne Judges of the said Supreme Court of the colony of the Cape of Good Hope, at such times and at such one or more place or places within each of the said districts as he Governor of the colony of the Cape of Good Hope shall from time to time direct and -appoint. And we do further direct and appoint, that each of the said Circua Courts shall be respectively Courts , : Record, and shall, within the district in which it may be holden, have and exercise all such and the same jurisdiction, powers, and authority as is hereby vested in he said Supreme Court of the colony of the Cape of Good Hope throughout the whole of the said colony: and that al crimes and of- fences cognizable in the said Circuit Courts shall be inquired of, heard, and determmed by the said Circuit Judge and a jury of nine men, and that the verdict of such jury shall be pronounced and recorded in the manner before directed respecting the verdicts of juries to be ..iven in the said Supreme Court; and that the provision hereinbefore contained respecting the ignorance or supposed ignorance of tha English language of any person otlierwise competent to serve on any jury in the said Su- preme Com-t, shall Jso extend and apply to persons serving or who may be required to serve as jurors in the said Circuit Courts or any of them. 1 rovided nevertheless, and we do further ordain and direct, that if upon the trial of any crime or cllence before any of the said Circuit CoiVrts mne good and lawful men, being duly suimnoned, shall not appear to torm a jury, then and in all such cases such trial shall bo had before the I I 2 i a 48i CAPE OF GOOD HOPE — CHARTER OF JUSTICE. Circuit Judge nnd any number of the jury who shall appear, not being Jess than six, who shall be sworn and have the same power as if the full number of nine had appeared. Provided also, and we do further direct and appoint, that all civil suits or actions depending in any of the said Circuit Courts shall be tried and decided by the judge of such court alone and without a jury ; and that in all cases where the sum or matter at issue in any such suit or action shall exceed or be of the value of more than one hundred pounds sterling British money, the judge of the said court respectively shall cause the evidence on every such hearing or trial as aforesaid to be taken down in writing by the clerk or other proper officer in open court in 'le presence of the witnesses respectively giving the same, and the evidence so taken shall be entered upon the proceed- ings of the said courts and be of record ; and in every case in which any appeal shall be made and allowed under the provisions of this our charter from any judgment of the said Circuit Courts, copies of all documents and papers which shall have been produced and given in evidence shall be certified and transmitted by the said clerk or other proper officer as authentic, and also copies of any documents and papers which shall have been produced and tendered in evidence and rejected, shall, if required by the party producing the same, be in like manner authenticated and marked by such officer as aforesaid as rejected, in order that all such copies niny be annexed to the record as part thereof in case of appeal. And we do further direct and declare, that it shall be lawful for the judges of the said Circuit Court respectively, on the application of either of the parties, plaintiff or defendant, at or before the trial of any civil suit or action commenced in the said Circuit Courts respectively, to permit the evidence on such trial to be recorded and certified as afore- said, although the sum or matter at issue may be less than one hundred pounds sterling, provided that it shall be made to appear to such judge that such judgment, decree, order, or sentence which may be given, made, or pronounced in suoh suit or action may be of such importance OS to rendor it-proper that an appeal should be permitted; and if ailer giving or pronouncing such judgment, decree, or order, the said judge shall be of opinion that such judgment, decree, order, or sentence is of such importance as to make it proper that an appeal should be pep. mitted, it shall be lawful for the said judge to allow either of the said parties, plaintiff or defendant, to appeal to the said Supreme Court in like manner and luider and subject to the like niles and regulations as in and by this our charter are directed in other cases of appeal from the said Circuit Courts. And we do flirther direct and appoint that it shall be lawful for the plaintiff or plaintiff's, defendant or defend' ants, against whom any sentence, judgment, or decree or order of tho said Circuit Courts respectively shall be given, for or in resnect of my Bum or matter at issue above or exceeding the value of one hundred CAPE OF GOOD HOPE— CHARTER OF JUSTICE. 4^85 pounds sterling, to ai)peal therefrom to the said Supremo Court; and the party or parties appealing from such sentence, judgment, decree, or order shall within fourteen days from the passing thereof give notice to the adverse party or parties of such appeal, and within fourteen days trom and afler such sentence, judgment, decree, or order, enter into sufficient security, to be approved by the Judge of the said Circuit Courts respectively, to satisfy and perform the said judgment, decree, or order, in case the same shall be affirmed or the appeal dismissed, together with such further costs as shall be awarded thereon; and in all cases of appeal Where notice shall be given and security perfected as aforesaid, execution sliallbe stayed, and not otherwise; and the said Supreme Court shall and may mqmre mto, hear, and decide all questions whether of law or fact arising upon any such appeal, but shall not admit or receive any evidence which was not tendered to the Circuit Court from which such appeal may be brought on the hearing or tr-'al of any such suit or action thcrem. And we do further direct and appoint, that as often as any action or smt shall be brought in the Supreme Court or in either of the said Circuit Courts respectively, and it shall be made to appear to the court before which such action or suit may be pending, that sach action may be more conveniently heard or determined either in the said Supreme Court or in some other of the said Circuit Courts, it shall be lawful for such court to permit and allow such action or suit to be removed to such other court, and such allowance shall be certified by the judge, together with the process and proceedings in such action or suit, to the coi..:t into which such action or suit shall be intended to be removed, and thereupon it shall be lawful for such last-mentioned court and such court is hereby required to proceed in such action or suit in like manner as if the same had been originally commenced and prosecuted in such last-mentioned court. And we do further ordain and direct, that no judgment or sentence, either of the said Supreme Court or of any such Circuit Court as aforesaid, in any criminal case whereby any person shall be condemned to death, or transportation, or banishment from the said colony, shall be carried into execution until a report of all the pro- ceeduigs upon any such trial hath been laid before or transmitted to the Governor of the said colony by the Chief Justice or Puisne Judge pre- s.dmg at any such trial, nor until such Governor shall have authorized and approved the execution of such sentence. And we do further grant ordain, direct, and appoint, that it shall and may be lawful for the said Supreme Court, by any rules or orders of court to be by them from tune to time for that purpose made and published, to frame, constitute, and establish such rules, orders, and regulations as to them shall seem meet, touching and concerning the time and place of holding the said Supreme Court and touching the forms and manner of proceeding to be observed in the said Supreme Court and Circuit Courts respectively, 31 ! 486 CAPE or GOOD HOPE— CHARTER OF JUSTICE. !■■' ■^ w ■ .mm and the practice and pleadings upon all actions, suits, and oilier mat- ters., both civil and criminal, indictments and informations to be therein brought, the appointing of commissioners to take bail and examine witnesses, the examination of witnesses de bene esse, and allowinp^ the same as evidence, the proceedings of the sheriff and other ministerial officers of the said courts respectively, the process of the said courts and the mode of executing the same, the summoning, em- panneliing, and challenging of jurors, the admission of barristers, advo- cates, attornies, and solicitors, and proctors, the fees, poundage, or per- quisites to be lawfully demanded by and payable to any officers, attor- nies, solicitors, and proctors, in the said courts respectively, and touching and concerning all such other matters and things necessary for the proper conduct and dispatch of business in the said Supreme and Circuit Courts respectively, and all such rules, orders, and regulations, from time to time to revoke, alter, amend, or renew, as occasion may require. Provided always, that no such rules, orders, and regulations shall be repugnant to this our charter and that the same shall be so framed as to promote, as far as may be, economy and expedition in the dispatch of business of the said Supreme Court and Circuit Courto respectively. And that all such rules and forms of practice, process, and proceeding, shall, so far as the circumstances of the said colony may permit, be framed with reference to the corresponding rnles and forms in use in our Courts of Record at Westminster, and that the same be drawn up in plain, succinct, and compendious terms, avoiding all unnecessary repetitions and obscurity, and promulgated in the most public and authentic manner in the said colony for three months at least before the same shall operate and take effect. Provided always that all such rules, orders, and regulations shall forthwith be transmitted to us, our heirs, and successors, under the seal of the said court, for our or their appro- bation or disallowance. And whereas it may be expedient and neces- sary to make provision respecting the qualifications of jurors to serve in the said courts, and the mode of enforcing the attendance of such jurors, and it may also be expedient and necessary to make provision for the ex- tension of trial by jury in the said Supreme Court or Circuit Court in civil cases : Now we do further ordain, direct, and appoint, that it shall and may be lawful for the Governor for the time being of our said co- lony, with the advice of the Legislative Council of Government thereof, to make and establish all iuch wholesome laws, statutes, and ordinances, as to them may seem meet, respecting the matters aforesaid, which laws, statutes, and ordinances shall forthwith be transmitted to us for our approbation or disallowance in the manner prescribed by law respecting all other the laws, statutes, and ordinances made or to be made by the Said Governor, with the advice of the said Council. And whereas it may be expedient to establish wilhiu our said colony Courts of ilequest I CAPE OP GOOD HOPE— CHARTER OP JUSTICE. 4^7 and other courts Imving jurisdiction in civil cases of small amount or value, and in cases of crimes or offences not punishable by death or transportation : Now we do hereby authorize and empower the Cover- nor for the time being of our said colony, with the advice of the Legis- lative Council of Government thereof, by any laws and ordinances to be from time to time made for that purpose, to erect, constitute, and esta- blish all such Courts of Request and other courts having jurisdiction in civil and criminal cases within our said colony: Provided that the jurisdiction of such civil courts shall not be extended to any case wherein the sum or matter in dispute shall exceed the amount or value of £40(6) sterling money, or wherein the title to any lands or tene- ments, or any fee, duty, or office, may be in question, or whereby rights in future may be bound. And provided also, that the jurisdiction of such courts in criminal cases shall not I. extended to any ca?e wherein any person may be accused of any crime punishable by death, transport- ation, or banishment from the said colony. And we do hereby authorize and empower the said Governor, by and with the advice of the said ^hief Justice and Puisne Judges of the said Supreme Court for the time being, to make, ordain, and establish all necessary rules, orders, or regulations respecting the manner and form of proceeding in any such last-mentioned courts, and respecting the local limits within which the jurisdiction thereof is to be exercised, and respecting the manner and form of carrying the judgments and orders of such courts into execu- tion, and all such other rules, orders, and regulations as may be neces- sary for giving full and perfect effect to the jurisdiction of the said courts. And we do hereby grant, ordain, and direct, that it shall and may be lawful for any person or persons, being a party or parties to any civil suit or action depending in the said Supreme Court of the colony of the Cape of Good Hope, to appeal to us, our heirs and suc- cessors, m our or their Privy Council, against any final judgment, decree, or sentence of the said court, or against any rule or order made in any such civil suit or action, having the effect of a final or definitive sentence, and which appeals shall be made, subject to the rules, regula- tions, and limitations following, that is to say, in case any such judg- (6) Under tlic cimrt. of 1827 District Courts had been appointed, the jurisdiction of which did not ex- tend in the Cape District to cases where more than £20 were in dispute, nor in otlie places to a larger amount than £10. Whoever, in the Cape Dis- trict, had a claim on another for more than £20, was obliged to apply to an attorney at !er.sf fhrco or four da^s before the matter could be brought into court. If his claim was founded on a note or bond already due, no witnesses were required, and it would have been sufficient to submit the do- cument to his attorney, who handed it to an advocate, by whom it wag submitted to the court on Tuesday, the day appointed for such claims, for provisional judgment, which was im- mediately jjraiiicd if no one appeared in defence. mm M i 488 CAPE OF GOOD HOPE—CHARTER OF JUSTICE, ment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter at issue above the amount or value of X500 sterlmg, or m case such judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand, or question to or respectmg property or any civil right amounting to or of the value of *500 sterlmg, the person or persons feeling aggrieved by any such judg- ment, decree, order, or sentence of the Supreme Court may, within lourteen days next after the same shall have been pronounced, made, or given apply to the said Supreme Court, by petition, for leave to appeal therefrom to us, our heirs, and successors, in our or their Privy council. And in case such leave tc appeal shall be prayed by the party or parties who is or are directed to pay any sum of money or per- torm any duty, the said Supreme Court shall and is hereby empowered either to direct that the judgment, decree, order, or sentence appealed irom shall be carried into execution, or that execution thereof shall be suspended pending the said appeal, as to the said court may in each case appear to be most consistent with real and substantial justice; and m case the said Supreme Court shall direct such judgment, decree, order, or sentence to be carried into execution, the person or persons in whose favour the same shall be given, shall, before the execution thereof, enter into good and sufficient security, to be approved by the said Su- preme Court, for the due performance of such judgment or order, as we. our heirs and successors, shall think fit to make thereupon ; or in case the said Supreme Court shall direct the execution of any judgment, de- cree, order, or sentence to be suspended pending the said appeal, the person or persons against whom the same shall have been given shall, in like manner and before any order for the suspension of any such execution IS made, enter into good and sufficient security, to be approved by the said Supreme Court, for the due performance of such judgment or order, as we, our heirs and successors, shall think fit to make there- upon. And in all cases we will and require that security shall also be given by the party or parties appellant, tc the satisfaction of the Su- preme Court, for the prosecution of the appeal and for the payment of all such costs as may be awarded by us, our heirs and successors, to tne party or parties respondent; and if such last-mentioned security shall be entered into within three months from the date of such petitions Ti, I? *° "PP^"'' *''^"' ^""^ "°* otherwise, the said Supreme Court Shan allow the appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to us, our heirs, and successors, in our or their Privy Council, in such manner and under such rules as are observed in appeals made to us from our plan- tations or colonies. And we do hereby reserve to ourselves, our heirs and successors, in our or their Privy Council, full power and authority upon the humble petition, at any time, of any person or persons ag. CAPE OF GOOD HOPE—CHARTER OF JUSTICE. 489 grieved by any judgment or determination of the said Supreme Court, to admit lus, her, or their appeal therefrom upon such other terms and upon and subject to sucli other limitations, restrictions, and regulations, as we or they shall think fit, and to reverse, correct, or vary such judg- ment or determination as to us or them shall seem meet. And it is our further will and pleasure that in all cases of appeal allowed by the said Supreme Court, or by us, our heirs and successors, the said court shall certify and transmit to us, our heirs and successors, in our or their Privy Council, a true and exact copy of all evidence, proceedings, judg- ments, decrees, and orders had or made in such causes appealed, so far as the same have relation to the matter of appeal, such copies to be cer- tified under the seal of the said court. And we do further direct and ordain, that the said Supreme Court shall in all cases of appeal to us, our heirs and successors, conform to and execute such judgments and orders as we shall think fit to make in the premises, in such manner as any original judgment, decree, or decretal order, or rule, by the said Supreme Court of the colony of the Cape of Good Hope could or might have been executed. And we hereby strictly charge and command all Governors, Commanders, Magistrates, Ministers, civil and military, and all our hege subjects, within and belonging to the said colony, that in execution of the several powers, jurisdictions, and authorities hereby granted, made, given, or created, they be aiding and assisting and obedient in all things, as they will answer the contrary at their peril, 1 rovided always, that nothing in these presents contained, or any act which shall be done under the authority thereof, shall extend or be con- strued to extend to prevent us, our heirs and successors, from repealing these presents or any part thereof, or from making from time to time, as occasion may require, such further or other provisions by letters-patent for the administration of justice, civil and criminal, within the said colony and the places now or at any time hereafter to be annexed thereto, as to us, our heirs and successors, shall seem fit, in as full and ample a manner as if these presents had not been made, these presents or any thing contained to the contrary therein in anywise notwithstand- ing. And whereas our royal brother and predecessor, his late Majesty Iving George the Fourth, by letters-patent under the great seal of tiie United Kingdom aforesaid, bearing date at Westminster the twenty- fourth day of August, in the eighth year of his reign, did grant, direct, order, and appoint that there should be within the colony of the Cape of Good Hope a court which should be called the Supreme Court of the Colony of the Cape of Good Hope, and it was thereby, amongst other things, provided that nothing therein contained should extend or be construed to extend to prevent us, our heirs, and successors from lepeaiing the said letters-patent or any part thereof, or from makin- such further or other provision by letters-patent for the administration 490 CAPE OF GOOD HOPE— CHARTER OF JUSTICE. "flit;: I Of justice, c.v,l and criminal, within tj.e said colony and the places then or at any t.mc thereafter to be annexed thereto, as to us, our heirs and uccessors should seem fit, in as full and ample a manner as if the said letters-patent had not been made, the said letters-patent or any thing contained to the contrary therein in anywise notwithstanding. Now we do hereby, m virtue and in pursuance of the powers so reserved to us befotTr '" ^1"^ ^^ *'•' ''''' letters-patent, repeal and revoke the before.ment.oned letters-patent and each and every part thereof : Pro- ^It ^T r r^' ^^ '•'' '''''''' ^^'^'^''^hed by, or by the judges appointed under the said letters-patent, or by any or either of such courts or judges and that all general rules, orders, and regulations of court made under and in pursuance thereof, and that all proclamations issued by any Governor of the said colony in virtue thereof, and that alllaws and ordinances promulgated by the Governor of the said colony, with he advice of the Council of Government thereof, for carrying th^ said letters-patent or any part thereof into effect, shall to all intents and pur- poses be as binding, conclusive, good, valid, and effectual as if these presents had not been made. And we do further ordain and direct that Irriv^l r""- rT '"''^ '"'""^ "^ '^' ^'P' ^^ ^ood Hope, upon the arrival herein of these presents, shall by proclamation notify to the in- Labilants of the said colony the time when the courts hereby established wil be open, and as soon as the judges of the said Supreme Court sha 1 have assumed and entered upon the exercise of their jurisdiction the r«l fV . r ''''"'''°^'^ "'^ ^"P^^'"^ Court of the colony of he Cape of Good Hope and the Circuit Courts now established within al rr 'l^'\'f"'^''<^'^^^ «f the said courts respectively shall be such tr ;"' T^' '''■' '' '"'"'''^'' ^''^^h shall be depending in upon f th!"^" 'T "^P^^'^^^>^' ^'^^'f-'^ ™^y be proeefded upon ,„ the Supreme Court instituted under and by virtue of these CTuriJ/" ''*'?. °'/'^ '''^ Circuit Courts which shall and may of CooTu 7*'^'" '^'' ^'^'"'^^ '' P'^^^ •" '^' <="l«"y of the Cape ot Good Hope where such action or suit or other matter, civil or crimi- ItrjrT^^ """! depending, and all proceedings which shall there- after be had in such action or suit or other matter, civil or criminal respectively, shall be conducted in like manner as if s'uch action oTsui' or ot.'' 7T'"Z '"■^"•"'"''''' had been originally commenced in one or other of the sa.d courts instituted under these presents, and all the records mumments, and proceedings whatsoever of and belonging to he sa.d Supreme Court and Circuit Courts established by the said recited letters-patent, shall, from and immediately afler the opening of the said courts respectively instituted by these presents, be delivered over and deposited for safe custody in such of the said wurt. re- if I ICE. f placcii tlieti ut heirs and ks if tlic said >r any thing [ling. Now served to us revoke tlie Jreof: Pro- 9, rules and the judges such courts ns of court ions issued at all laws olony, with ng the said ts and pur- as if these direct that !, upon the r to the in- sstablished 5me Court iirisdiction ! colony of led within y shall be tion, corn- ending in proceeded ! of these and may the Cape or crimi- lall there- criminal, >n or suit cd in one d all the )nging to the said )ening of lelivered uris fe- CAPE OF GOOD HOPE— CHARTER OF JUSTICE. 491 spcclivfly instituted under these presents, as shall be found most con- venient, and all parties concerned shall and may have recourse to the said records and proceedings as to any other records or proceedings of the said courts respectively. And we do hereby further declare and direct, that during the absence from our said colony of the Cape of Cood Hope of the Governor thereof, or if there shall be no person com- missioned by us, our heirs and successors, to be the Governor of our said colony, then and in every such case all and every the powers hereby granted to and vested in the Governor for the time being of the said colony shall and may be executed by and vested in the Lieutenant- Governor thereof, or the officer for the time being administering the government thereof. In witness, &c. Witness, &c. the fourth day of May, 1332. By Writ of Privy Seal. ( im ) SIERRA LEONE WITH THE SETTLEMENTS AT GAMBIA AND ON THE GOLD COAST. 5f:jiiF'«" f f'i'MtWf SS:'*!' "=f foX m?' ""i'i'^/^'^ Majesty by tlie nativi chiefs, m^ Af r. ^^ ';"T^^'"S "" ^^y^"'" *« ««"^« Europeans a V ew of forming a settlement upon this part of the coast. 1 Ins tract was clearly defined at the time of its grant to atpiesentknown,is bounded on the north by the river mnnT r. T""' °"/''^ '°"*^' '''"'^ ^^^^ '^y '''^ sea and Cal- Wate.w'.""l. *'^' f'7' ^y f ^'"^ "P t''^ Calmont to the is> in fact part of the Sierra Leone river. These limits comprehend a tract of about eighteen miles nort to south and twelve east to west. The land is described as far from fertile beyond the first season rffter clearing. HISTORY AND CONSTITUTION. The colony was at first settled by blacks M'ho had come mo^riod"f "1 ''1 ' "^' °^^''^ ^•"^^•^•^" ^"' •' «"d had been piovded for by being conveyed to Sierra Leone to make a settlement there. This settlement was unfortunate 1 he next was macl. by the Nova Scotian settlerstiml: Ihey were inhabitants of the southern States of the Union who had been employed in the royal army, and n rsrunon' 1T\ ' -"'m^ ^^"S"^ '^'^ ^^^^* --'^ -"^-^ "tils so ill T.1 1 v/".,^^'^''' ?'"**'^- T^»« <^l™^te however offer of^bf/ ''^'"^' '^''^' they gladly embraced the otter of the company to convey them to Sierra Leone. filRRRA LFONE. 49.'} This sett cmcnt. however, wns as unfortunate as the last. Jn 1800 the population of the colony was increased by the accession of 550 maroon settlers. The maroon population appears to have favourably settled here, and to be on the increase in numbers, intelligence, and prosperity. At the time of the commissioners' visit some of the maroon inhabitants filled oflices of trust in the co- lony. In 1819 some negroes of Barbados, who had been concerned in an insurrectionary movement in that colony, were brought as prisoners to Sierra Leone, and at first kept under restraint, but subsequently they were released, and they appear to have become useful and industrious settlers. 1 he number originally brought was eighty-five. Of these thirty-four are known to be living, twenty-six dead, and the remaining twenty-five cannot be accounted tor. home have found employment in trade, and many Have been sought after on account of their knowledge of tropical agriculture. To these four classes have been added the disbanded soldiers of some black regiments. Ifiesemen appear to have unwisely congregated about the chief seat of the colony, but the commissioners seemed to think they would be a valuable addition to its strength and importance. Great numbers of liberated Africans have also been sent to the colony, but on the whole It seems that these various additions have never been able to keep up the population at the amount to which It was brought by their settlement in this colony. Ihis mixed population was, in April, 1826, stated to be about 13,020. The Maroons alone seemed to be on the increase.— Keport of Commissioners of Inquiry into the state of Sierra Leone, p. 1 to 21. Judicial and Civil Establishments. The institutions for the administration of government and the dispensation of justice are founded on the pro- visions of the charter granted in 1802 to the Sierra Leone Company. This charter was subsequently revised, and (with some alterations) confirmed first in 1808, when the settlement was transferred to the Crown, and next in 1821, when the forts and possessions of the late African Company on the Gold Coast were annexed to the colony. —Sierra Leone Cora. Rep. 89. 404 SIERRA LEONE. t? -hnTi 1 ?'^^' "' ^'^^^ '^^"^'^ '" ^821, ordalna that there shall be nine or more councillors advising and assisting the Governor, five of them to be a quorum,) that u, h? makmg or passing of laws the Governor (or in the al once of the Governor, he Lieutenant-Governor or Commander- .n-Cluef for the time being.) shall have a negativrvoice and that m certain casea tT.e Governor shall hale power' L'liri'* councillors, and when the number in the cTny shall be less than nme to appoint others, subject to His Majesty s approval. 1 he councillors first named in the charter are councillors e. officio, namelv the SlfJu ! t^ce the Kmg^s Advocate, the Coloniuf Secretary, and the Surveyor of Lands. The Chief Justice, though S in counc.1 .s declared ineligible to succeed to the admin s tration of the government. The King's Advocate, as next m order 18 consequently the person to succeed >« tem- pore m the event of the absence or death of the'covet nor, unless a Lieutenant-Governor has been previously appomted, wlucli appointment may in certain^sredfied tTou^h^t'thT?^^^*''' Governor.^ The commSners tSn f '^ *• "' '"^ preferring the King's Advocate to the cluef justice as the temporary successor of the Gover^ nor, imperiously required alteration. LAWS.(l) The law of England is understood to be and in practice Council are empowered to make such laws as they may deem necessary to the welfare of the colony, subject^hX^ ever to certain restrictions which are specified in Xe from dm. 7.^^^ *'"'"■ «^^«^^^"gJy e-ercised this power n Z Ti T as circumstances seemed to them to re- quire. Ihe colonial enactments have generally been i)re- K?^ 'Y ^¥^ ^^T^*^' ^"^ ^" ^^^- in^stance by other members of Council, and being passed after three readings, they are recorded in the minute book and be- come Taws It has been customary to promulgate the bv tZ r *^" '"''"^r ^y "i^'^"^ ofVoclLationstsued by the Governor. The previsions of the Act for the Re- lief of Insolvent Debtors are not in force at Sierra Leone jecVt^o?h"rofL':;tie;2m;r""'*°p^^ SIERRA LEONE. 495 nor is there nny colonial enactment analogous to it. Trial by jury is a part of the liw and is advantageously in nractice. There are no other qualifications re(|uired than his being an inhabitont ot' the colony and of sufficient ogc and of good character.— Sierra Leone Com. Hep. 89. I COLLECTION OF LAWS. An attempt was lately made to arrange such liws as are in force, with a view to their being printed ; the ob- ject however was but partially accomplished, and there being but one manuscript copy in the colony ( 1 826) few of the magistrates have the means of referring to it.— id. ib. COURTS. The Governor and Council constititute a Court of Re- cord to hear and determine appeals from the Court of the Recorder or other Superior Courts of the Colony, and when the matter in dispute exceeds the value of i'400, an appeal lies to the King in Council. The colonial courts are as follows— the Court of Royal Commission, the Court of Vice- Admiralty, the Court of the Recorder of Freetown, the Courts of Quarter Sessions, Oyer and Terminer, the Court of Requests, and the Po- lice Court. An authority is vested in the Governor and Council to establish such other courts and to issue such special com- missions as the due administration of justice may seem to require. The Governor has also the power of conven- ing courts as Chancellor and Ordinary. Court of Royal Commission. The Commissioners of the Royal Court constituted un- der the great seal are the Governor, the Chief Justice, Commissary Judge of the mixed Courts, King's Advocate, Colonial Secretary, and others specified in the commis- sion, three of whom may form a court, one of the four first-named always presiding. This court was established for the trial of offences committed on the high seas, and for offences relating to the slave trade, in places where no local British jurisdiction existed. It has not often been called into operation. a 3 a 8 m It 496 SIERRA LEONE. Vice-Admiralty Court. The Chief Justice is judge of this court, wliich has power and jurisdiction similar to those of the corresponding courts m the West India Islands, hut since the establish- ment of the courts of mixed commission the business of tins court has been very much reduced. !;?:•-- *■'">«!; Si' n '■ 'Mffeli ■-ait 'fflUn 1 -'"" ■r '"•«» Cotirt of the Recorder of Freetown. The Chief Justice, as Recorder, presides in this court, aiKl IS aided by the assistant judges appointed by the C^overnor from amongst the members of Council. This court IS stated by the chief justice to resemble most c osely the Court of Common Pleas in England, and to be also a Court of Equity. Although two assistint judges are appointed, one of these in addition to the chief ius- tice, or m cases where lie is a party, the two assistants only may constitute a court. In all cases where the number of voices shall be equal, the chief justice, or in his absence, the senior assistant judge present, has two voices. Ihis court is empowered by charter to hear and deter- mine all civi suits, actions, or pleas which may happen within the colony, or any of the forts, islands, &c. subject thereto. In a 1 cases where the action would, if the par- ties were resident in England, be tried by a jury, it is directed that such action shall be tried before a jury in the Court of the Recorder according to the practice in England, or as near thereto as circumstances will permit. Court of Quarter Sessions of the Peace and of Oyer and Terminer. The Cijief Justice and two other members of Council usually preside at this court. The practice is regulated by that of the judges on circuit in England. Court of Requests. Uulft "^'i"'' ""^ ^f^ ^^'^ ^°"''* °f ^ecim^t, esta- blished by the former charter was abolished, but the Go- vernor was directed, with the concurrence of the Council to appoint justices or other commissioners for particular SIERRA LEONE. 497 districts, upon whom the authority of the abolished court would devolve, and who were to determine all matters of debt or damage under 40*. in the same manner (as near as circumstances would admit) as it was lawful for Com- missioners of Requests to do in England. This was done ; and by an act of the Governor and Council in 1825, the jurisdiction of the commissioners was extended to actions amounting to i'lO, provided that if the sum exceeded 40*., appeal might be had, if in Gambia or on the Gold Coast, to their respective Courts of Common Pleas, and in any other part of the colony to the Court of the Re- corder of Freetown. The commissioners are empowered, in default of payment, to commit the debtor to prison for various specified times, such commitments to be in full sa- tisfaction of judgment. Commissioners of Requests sit once a week at Freetown, and form what is there called a Court for the Recovery of Small Debts. The Police Court of Freetown, This court may be held twice a week before two ma- gistrates, (a member of council being one,) so that by the presence of two a kind of petty sessions should be formed, the member of council always presiding. The proceedings are to be recorded by a clerk of police, who is maintained on the civil establishment for the purpose. JUDICIAL ESTABLISHMENT. The judicial establishment in 1826 consisted (inde- pendently of the Governor and Council) of the Chief Justice, the King's Advocate, the Sheriff, the Clerk of the Crown and the Recorder's Court, the Coroner of Free- town and two Practising Attornies, seven Justices in the Commission of the Peace, the Mayor of Freetown and three Aldermen, eight Commissioners of Requests, be- sides eight District Magistrates, three of whom are Coro- ners for three country districts. The King's Advocate. This officer is understood to be the Governor's legal adviser, and tiie public prosecutor. He also practises as an advocate or attorney in the courts. K K 4 ,M 498 SIERRA LEONE. Sheriff. The sheriff is annually appointed by the Governor and Council. His duties correspond to those of sheriff in England. Clerk of the Crown. This officer is also clerk of the Court of the Recorder, and one of the writers in the office of the Colonial Secre- tary. Coroner. The Coroner of Freetown was stated by the chief jus- tice to have been sometimes appointed by the Governor and sometimes elected by the freeholders. Attornies and Solicitors. Neither of the two individuals practismg as attornies and solicitors has been professionally educated. One is an European, who acts as King's Advocate and Registrar of the Vice-Admiralty Court ; the other a person of co- lour, born and educated in England, and engaged in mer- cantile pursuits. Justices. One of the seven justices is a military officer ; the other six hold civil situations under the government. The Mayor and Aldermen of Freetown are appointed by the Governor and Council. Of the Commissioners of Requests three are magis- trates and five are persons engaged in trade. The district magistrates, three of whom are also coro- ners, are either local superintendants or hold situations in - their respective districts as clergymen or teachers under the Church Missionary Society.— Sierra Leone Com. Rep. 89 to 96. GAMBIA. The executive powers of the Commandant are pretty much confined to matters of police or local regulations for the town of iiathurst. SIERRA LEONE. 4^ There are at present resident in St. Mary's eight jus- tices of the peace, one of whom acts as sheriff, and the other seven are Commissioners of Requests. Since the formation of the settlement only two Courts ot Oyer and Terminer and General Gaol Delivery have been held, at which Mr. Kendall, the Chief Justice of bierra Leone, acted as president.— Rep. Com. Sierra 1 «97 \ T^^** House of Commons' Papers, 29th June, GOLD COAST. No distinct judicial establishment exists upon the Gold t^oast ; the only civil authority is that vested in individuals as justices of the peace, who act also as Commissioners of Kequests. In the latter character they have decided cases where the matter in dispute was upwards o£ £30 in value.— Id. ib. CHARTER OF JUSTICE. Ninth Part Patents of the Second Year of King George the Fourth. George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, to all to whom these presents shall come, greeting: Whereas by an Act of Parliament made and passed in the thii ty-first year of the reign of his late Ma- jesty King George the Third, our dearest father, intituled, « An Act for establishing a Company for carrying on Trade between the Kingdom of Great Britain and the coasts, harbours, and countries of Africa, and for enabling the said company to hold by grant from His Majesty, his heirs, and successors, and from the native Princes of Africa, a certain district of land, commonly called the Peninsula of Sierra Leone, now vested in his Majesty or belonging to the said princes, for the better enabling the said company to carry on the said trade," it was, amongst other things, enacted, that the several persons therein named and described should be and they were thereby created one distinct and separate body politic and corporate, by the name or style of "The Sierra Leone Company;" and it was also enacted, that it should be lawful for his saiH late Maje. y, his heirs, and successors, to make unto the said company a grai by letters-patent, under the great seal of K k2 31 4 if 'l||b>ii* ti »r8: Hi •1 *f' «n>ii> n (laji mtei ma civuiiuil, IHKC the oath of office and the oath of allegiance before the Governor of the J 50 !• b I 8f'i:M»nii " f' ■ aFtkk llii I ■ 'J 'is"""' it '"^ • 'i SIERRA LEONE- CHART rUl OF JUSTICE. utncilZ'""'' ';' '■" '""^'' °"- '" '"^ =^^'«^""-' 'he senior of ll.o Uunc I then res.du.g at Sierra Leono, and sl.ould continue in such reJov d"r ': ''^- ""'"^ "' ''''' '''''' ''^''' '^ --^''''' - •"- nv Jer'n ' ™"""" "' ''"^'''"'"^'" "^^ mentioned; and that if ThX :r """ " '""•""" ^'""'^^ "^Slector refuse to accept vi hin four! ;'■"' ' ''T''''' ^'''"^^ ''''' ^-"S' »»^ «»^-ld not shoudfoTf V f'S'''"^^' '''^" ^"'J »n such case every such person b fixe^!: "' Py "'^^^ - «" for' that puVc be fixed and agreed on by the Court of the Mayor and A dermen U.ee.nafter constituted, with t..e a,>probation and consent of heTaJ Governor and Council of the said colony for the time bein. or the sero:rtl:Co"''f:^^^°'?-^^^^'' Govlnor,orin histe^e I senior of the Counc.l then residing at Sierra Leone, to be one,) to be bv hem s,gn.fied to the said court in writing : And did further by tls.dd tnsh::dr:^p^^^^^ f?omtt !/.%";'■''"'■" '' ^"''^P^' '' «''«"'d °»''«r^i«^ be absent the t ml h '''r"''''' ''"^' "^ '^' «^'d Governor and Council fo i his ab£ " 1 "'^^ P"' °' ''''"'' ^^"^^-^^ '^^ -d Governor or in lus absence, the senior of the Council then residing at SierrJ Leone, to be one,) should allow, or should become the said compa X th prerofficrr' ^°"t' ^^^^^^ '''' ^^^°"^' - --^ - "- and it ,1 . r f''""^ '"'•' ™'y°^ •''• alderman should be void; and u should and m.ghtbe lawful to choose another mayor or aldermat^ dead Andtff .'"','"'u "'^°^ "^ "'^^™^" ^^^^ "^^^n "^turally mfht'htl f , 'V^'^^''"^^*''*"^ ^PP°^"*' 'hat it should anJ m ght be lawful to and for the said Governor and Council of the said colony for the time being, or the major part of them, (whereof the aid Governor, or in his absence, the senior of the Council ihen re L ng at S.erra Leone, to be one,) to remove any of the said aldermen, upon rasonable cause provided that a complaint in writing were fist ex" Inbued against h.m, and that he had a reasonable time given hrn for residet::;."';"," """"i"' ^°^ '''' P-P-' - -e he "hlTd b resident within the limits and precincts of the said town of Freetown ; sent nce"or"ar7 P'"°"5^°"'^ '^ink himself aggrieved by any such sentence or adjudication of removal, such person might, within one alenar month after notice of such removal,' appeal to'the s id Cour oasfucTsTnt"'" "T r"'^^^° P^^'*"^^-'^ of such appeal in roneall ?H '°' '^^J"^'^^*'^" should be affirmed, although such iZt bvT "? r^^'"' *'^ ^''^^"^'°" °^ «"^h sentence : Id did Indaldei r;'',f"^^""J^'"' ''"'''''^^' ^PP-"'^ that the mayor and aldermen for the time being of the town of Freetown aforesaid Kf\ri SIERRA LEONE— CHARTER OF JUSTICE, she 'd be, and tliey were Uiereby constituted, a Court of Record, by tlic nan.e of " The Mayor's Court of Freetown ;" and that tl.cy, or any two or more of them, (whereof the mayor, or llie senior alderman for the time being residing there, to be one,) might, and they were thereby authorized to try, hear, and determine all civil suits, actions, and pleas be»ween party and party that should or might arise or happen, or that had already arisen or happened, within the said colony of Sierra Leone, or any of the factories subject or subordinate thereunto, except sucli suits or actions as should be between natives of Africa only not become settlers within the said colony or factories, in which case his said late Majesty willed that the same should be determined among themselves, unless both parlies should by consent submit the same to the determi- nation of the said Mayor's Court, and also except where the cause of action or suit should not exceed the value of 40s. ; Provided, that if the said mayor, or any of the said aldermen, should be in any ways interested in the event of any such action or suit, no such mayor or aldermen so interested as aforesaid should sit or act as judge in such suit or action, but that the same should be heard and determined by such of them, the said mayor and aldermen, as should be no ways in- terested therein ; and that in all cases where the number of voices should be equal in the determination of any action or suit, the mayor, or in his absence, the senior alderman present, should have two voices : And did further by the said charter direct, that the person constituted first sheriff of the said colony in and under the same, should, at a time to be appointed for that purpose by the Governor, or in his absence, by the senior of the Council then residing at Sierra Leone aforesaid, within fourteen days after notice of the said charter, take an oath duly to execute his office, together with the oath of allegiance, wiiich oaths the said Governor, or in his absence, the senior of the Council then residing at Sierra Leone aforesaid, was thereby empowered to administer; and that from the time of taking the said oaths of office and allegiance the said sheriff should continue in the said office until another should be duly elected and sworn into the said office, as thereinafter was directed; and that the Governor and Council of the said colony for the time being' or the major part of them, (whereof the said Governor, or in his absence] the senior of the Council then residing at Sierra Leone, to be one,) should' yearly, on the first Monday in the month of September, assemble them- • selves, and proceed to the election of a new sheriff for the year ensuing, to be computed from the 29th day of September next after such election', which sheriff, when elected, so soon as conveniently might be, and' before he should enter upon his said office, should take the usual oath of office and the oath of allegiance before the said Governor for the time being, or in his absence, the senior of the Council then residing at Sierra Leone, who were thereby authorized to administer the same, and H HI ■ 50C STRRRA LEONE—CIIARTER OF JUSTICE. («■ ,J mm* if. m"m ' ■■'•■"■I should continue in such ofTicc during the space of one whole year, from the said 29th day of September, and until another should be duly elected and sworn into the said office, unless his said place should be avoided in such manner as thereinafter was mentioned ; and that in case any such sheriff should die in his office, or should remove from the said town of Freetown, or be absent from the same by the space of three calendar months, unless for such reasonable cause as the said Governor and Council for the time being, or the major part of them, (whereof the Governor, or in his absence, the senior of the Council then residing at Sierra Leone, to be one,) should allow, then the said Governor and Council, or the major part of them, (whereof tho Governor, or in his absence, the senior of the Council iticn residing at Sierra Leone, to be one,) should and might, as soon as conveniently might be after the death, removal, or absence of such sheriff, assemble and choose another person to hf sheriff in his room, who should be sworn as aforesaid, and continue in his office for the remainder of the year, and until another should be duly elected and sworn into the said office; and that the said sheriff thereby appointed, and every other sheriff so to be elected and sworn as aforesaid, should, during his and their continuance in such office respectively, have full power and authority to summon juries, execute and make return of all process of the said court, and of any other court erected by the said charter within the districts aforesaid ; and in case of the absence of any such sheriff for such reasonable cause, to be allowed as aforesaid, the deputy or under-sheriff, to be appointed by such sheriff, should return all process, and do all nets in the name of and by virtue of the authority of such sheriff: And did further by the said charter direct, ordain, and appoint, that upon complaint, to be made in writing to the said court, by or on the behalf of any person or persons against any other person or persons whomsoever, then residing or being, or who, at the time when such cause of action had or should have accrued, did or should reside or be within the said town or elsewhere in the said colony of Sierra Leone, or any of the factories subordinate thereto, of any of the causes of suit aforesaid already accrued, or which should or might thereafter accrue, unless the same should be between the natives only of Africa, not become settlers within the said colony of Sierra Leone or the said factories, or unless such cause of suit should not exceed the value of 40s., the said court should and might issue a summons in writing, under the hands and seals of two of the judges of the said court, (whereof the mayor for the time being, or in his absence, the senior alderman residing witiiin the said town of Freetown, to be' one,) to be directed to tiie said sheriff, requiring the party or parties, defendant or defendants, to appear before them at a certain time and place therein to be appointed, to answer the said complaint, and in default of appearance upon return of the said si-.mmons at such tiiiie SIERRA LEONE— CHARTER OP JUSTICE. 507 or, or in his ^eone, to be and place, the said court «lionld and might issue forth a wannnt, luulcr the hands and Heals of any two of the judges of tlic said court, (whereof the mayor for the time being, or tlic senior alderman tlicn residing within the said town of Freetown, to be one, unless the said mayor or senior alderman should be a party in such action or suit, and in that case under the bonds and seals of any other two of the judges of the said court,) di- rccted to the said sheriff for tlie time being, to toke the body or bodies of such defendant or defendants, and bring him or them before the said court, at a certain time and place therein to be appointed, to answer to the said complaint ; and in case of appearance or an-est of the body or bodies of such defendant or defendants, to let such defendant or defendants out to bail upon giving sufficient security (which his said late Majesty did thereby empower the said court to take) to abide and perform tlie final order and judgment of the said court, or sucli final order and judgment as should or might be given upon any appeal to be brought in the said cause, or to surrender himself to the said court to bo charged in execution till the said judgment should be satisfied ; and in default of finding bail, or giving such security as aforesaid, to detain such defendant or defendants in custody, until he, she, or they should have found such bail, or have given such security as aforesaid, or should have judgment or sen- tence given for him, her, or them for such complaint; and after such bail-bond or security given as aforesaid, or in case such defendant or defendants sliould be detained in custody for want of bail or security, his said late Majesty did thereby for himself, his heirs, and successors, ordain, direct, and authorize the said court to proceed to the examination of tlie matter and cause of complaiot, either upon the oath or oaths or solemn affirmation of any witness or 'vitnesses, to be taken in the most solemn monncr; that is to say, the oath or oaths of such v/itness or witnesses who should profess the Christian religion in be taken upon the Holy Evangelists, unless such witness or witness should be of the persuasion of the people called Quakers, in which case a solemn affirma- tion should besufllcient; and upon the oath or solemn affirmation of any of the natives, in such manner as they should esteem to be the most binding on their consciences to oblige them to speak the truth, for which puri)osc, the said court was empowered and required by the said letters- patent to administer such oath or affii-mation to such witness or witnesses as should be produced on behalf of either party, (plaintiff or defendant,) or by the confession or admission of such defendant or defendants in liis, her, or their answer, upon the like oath or affinnation, according to his' her, or their religion, sect, or caste respectively, which oath or affirmation the said court was also by the said letters-patent empowered to adminis- ter ; and that thereupon it should be lawful for the said court to give judgment and sentence according to law and equity, and to award and issue a warrant or warrants of execution under the hands and seals of if" :: £ SBlf™ 008 SIEURA LEONE— CHARTER OP JUSTICE. •*, two oftho jiuIgoH of the Huid comt, (whereof the mayor of the said town of I-Vcotown for tlie time being, or the senior iihlernian then residing witliMi tijo sftid town, to be one, unless they or either of them shoidd be interested tlierein, and in tlmt case, under the Imnds and bcuIs of any two of the aldermen not interested therein,) to be directed to the sheriff for the time being, for levying the debt, duty, or damages adjudged or decreed to the party or parties, complainant or complainants, together with their costs of suit, upon the goods and chattels of sucli defendant or defendants, or to cause sale to bo mado of his, her, or their goods and chattels, rendering to the party the i .-plus, if any were ; and for want of sufficient distress, his said late Maj'sty did thereby give full power and authority to the said court to imprison the defendant or defendants until satisfaction was made by him, her, or them to the plaintiff or plaintiffs of the debt, duty, or damages decreed or adjudged, together with the costs of suit ; and in case judgment were given for the defendant or defendants, full power and authority were thereby likewise given to tho said com: to award costs to such defendant or defendants, and to issue the like process and execution for the same as in cases where costs were n warded to any plaintiff or plaintiffs ; and that if any action or suit should be brought oif commenced against the mayor of the said corporation for the time being during his being or continuing in his office, it should and might be lawful for the said Mayor's Court to proceed in and deter- mine such suit, in the same manner as in any other action or suit de- pending before them, but such mayor should not sit as judge or appear on the bench during the hearing of the said cause or making any order therein ; and that if any action or suit should be brought against the said sheriff during his being and continuing in his office, it should and might be lawful to and for the said Governor and Council for the time being, or the major part of them, (whereof the Governor or the senior of the Council residing at Sierra Leone to be one,) to nominate end appoint a proper person to execute the process and orders of the said court against such sheriff for the time being; and to the intent that due provision might be made that there might be no failure of justice, if the defendant or defendants, who was or were resident within the said town of Free- town or elsewhere within the said colony, or any of the factories or set- tlements subordinate thereto, at the time when any cause of action did accrue should withdraw himself, herself or themselves out of or should not be found within the jurisdiction of the said court, his said late Majesty did by the said charter give, grant, will, direct and appoint that in case the sheriff should make return to such summons or warrant of arrest that the party or parties, defendant or defendants therein mentioned, or any of them, was or were not to be found within the jurisdiction of the said court, it sliould and might be lawful to and for the said court, upon an affidavit of proof verifying the demand of the plaintiff or plaintiffs in such SIERRA LEONE — CHARTER OF JUSTICE. fi09 suit to the satisfnction of the said court, to grant a sequestrntion to seize the estate and effects of such porty or portles, defendant or dofend- onts, to such value as the said court sliould think reasonable and should direct in such process of sequestration, and the same to detain in the hands of a proper person, to be appointed by the said court, till such party or parties should appear to the said complaint and give security an aforesaid ; and in case the party or parties, defendant or defendants, should not appear and give security as aforesaid within the spocc of six months, unless it should be shown to the said court on behalf of such de- fendant or defendants, that he, she or they was or were residing in Great Britain or Ireland, then that it should and might be lawful for the said court to proceed to hear and determine the snid cause, and to give judg- ment therein as aforesaid ; and in case judgment should be given for the plaintiff* or plaintiffs in such suit, to direct the effects so seized to be sold, and out of the produce thereof to make satisfaction to the idaintift'or plaintiffs for the debt, duty or damages, and costs recovered, rcturniiig the overplus (if any should be) unto such defendant or defendants ; and in case such produce should not bo sufficient to make satisfaction to the plaintiff" or plaintiffs, that then it should and might be lawful to and for the said court to award execution for the residue of the debt, duty, or da- mages and costs, recovered in manner aforesaid : provided nevertheless, that in all cases where the action to be tried would, if the parties had been resident in this realm, have been tried by a jury in some court of law, every such action should be tried in the said mayor's court before a jury, according to the practice of the said courts of law in this realm, or as near thereto as the circumstances would admit of; and his said late Majesty did thereby empower the said court to administer to such jury the usual oath taken ia like cases in this realm : And for the considera- tions therein recited, his said late Majesty further, by the said charter, willed and ordained that all such money, securities and effects of the suitors of the said court as should be ordered into court, or to be paid, de- livered or deposited for safe custody, should be paid or delivered unto or deposited with the Governor and Council of the said colony, to be by them kept in deposit, subject to such orders and directions as the said mayor's court should from time to time think fit to make concerning tlie same for the benefit of the suitors ; and did also give and grant unto the said Court of Directors of the said Company, or the major part of them full power and authority from time to time to name and appoint an officer, under the name of accountant-general of the mayor's court of Freetown, and the same at their pleasure to remove and another to ap- point, who should act, perform and do all matters and tilings necessary to carry into execution the orders of the said mayor's court relating to the payment or delivery of the suitor's money, effects and securities unto t)ie Governor and Council of the said colony, and taking the same out •I ill •f" si' r9i»>:mmm "f' ■ m'jkum »if ' •i««uaii H •"i;-T> rf'r* 'f W«hliV Sfi R1U:» »* irjkfttft li • jf!|«*l i* :P. r» ■l^.,« 510 SIERRA LEONE— CHARTER OF JUSTICE. again, and keeping the accounts with the said Governor and Council and registrar or other proper officer of tl,e mayor's court, and other matters relative thereto, under such rules, methods and directions as should from time to time be made and given by the Court of Directors of the said Company, which rules, methods and directions his said late Majesty thereby willed and directed should be according to such as were observed by the accountant-general of the High Court of Chancery of Great Bri- tain, or as near thereto as might be, and as the situation and circum- stances of affairs would admit ; and did further thereby authorize the said mayors court to administer oaths and affirmations, and to frame such rules of practice, and nominate and appoint such clerks and officers, and to do all such other things as should be found necessary for the adminis- tration of justice, and the due execution of all or any of the powers given to them by the said charter, so as they from time to time should give an account thereof unto the said Company, and so as the same should be subject to the approbation, controul and alteration of the said Court of Directors of the said Company, whom his said late Majesty did likewise will and ordain to have full power and authority to make such rules and orders for the better administration of justice as they should from time to time thmk fit and necessary ; but such rules and orders so to be made by the said mayor's court, so far as the same should be repugnant to any rules or orders afterwards made by the said Court of Directors of the said Company as aforesaid, should nevertheless be in force until the same should be revokeri or altered by the said Court of Directors, and notice thereof given unto the said mayor's court: And did further thereby require and command that a table of fees to be allowed to such clerks and officers should be settled by the said mayor's court, and approved and signed by the Governor and Council of the said colony for the time being and should be written out fair, and constantly fixed up in some visible and open part of the room or place wheje the said court should be held, and that It should be lawful for the said mayor's court, with the approbation of the said Governor and Council for the time being, or the major part of them, and also to and for the Court of Directors of the said Company, to vary and alter such table of fees in such manner as they should think fit • And It was further by the said charter ordained and established, that if any person or persons should think him, her or themselves aggrieved by any judgment, sentence or decree of the said mayor's court, such person or persons should or might, within fourteen days after such judgment, sentence or decree of the said court should be entered of record, appeal to the Governor and Council of the said colony for the time being, whom for any two or more, whereof the Governor, or in his absence, the senior of Uie Council then residing at Sierra Leone, to be one) his said late Majesty did thereby for himself, his heirs and successors, constifnfp. nn,>,;.„.o .ind appomt to be a court of record for that purpose to receive such appeals, U...: SIERRA LEONE — CHARTER OF JUSTICE. 511 and to hear and determine the same, and to do all other acts, matters and things neceasarUy mcident thereto; provided, that if the said Governor and Council shoiUd be anyways interested in the event of any such action or suit, no person so interested should sit or act as a judge upon such ap- peal, but the same should be heard and determined by such of them, the said Governor and Council, as should be no ways interested therein, or any two or more of themj and that in all cases wherein the number of voices should be equal in the determination or judgment upon such appeal, the Governor for the time being, or in his absence, the senior of the Council who should be present, and not interested, should have two voices, which determination should be final if the debt, damages or things directed to be paid, done or delivered, or matters in dispute should not exceed the value of ^400; but in case the same should exceed the value of £400, any person or persons who should think him, her or themselves aggrieved by such judgment, sentence or decree made on such appeal, should and might, within fourteen days after the same should be entered of record, appeal to his said late Majesty, his heirs and successors, in Council, (as is usual in cases of appeal from any of the colonies in the West Indies) upon giving security to pay interest (not exceeding the rate of interest which should prevail at the time of pronouncing such judg- ment, sentence or decree) for the thing adjudged or decreed to be paid, done or delivered, and the costs of such appeal, in case the said judgment^ sentence or decree should be affirmed: And did further will and direct that the judgments, sentences and orders of his said late Majesty, his heirs and successors, and of the said Governor and Council, made upon such appeals respectively, should and might be put in execution by the said mayor's court, in such manner as an original judgment of the said court should or might have been, and they the said court were thereby required and commanded to execute the same accordingly; and in case the said mayor's court should refuse or neglect to cause such judg- ments, sentences or orders to be executed within fourteen days after application made to them for that purpose, then that it should be lawful for, and the said Governor and Council were thereby required and com- manded to execute or cause the same to be executed by such ways and means as the said Mayor's Court might have used or employed in exe- cuting the same : And did further direct and appoint that there should be within the said town of Freetown a court, which should be called " The Court of iiequests for the town of Freetown, and the Factories and Settlements thereof;" and for that purpose willed and required the said Governor and Council, as soon as conveniently might be after the arrival of the said charter, to nominate and appoint some of the principal inha- bitants of the town of Freetown aforesaid, not more than twenty-four nor fewer than eight, to be Commissioners to hear and determine suits in a summary way, under such rules, orders and regulations as should from <■ tf'^mj'Mt^.imsamiagsmR 512 SIERRA LEONE — CHARTER OF JUSTICE. time to time be given or sent to them imder tlie bands of tlie Court of Directors of the said Company, which Commissioners, any three or more of them, should have full power and authority to hear and determine all such actions or suits as should be brought before them, where the debt, duty or matter in dispute should not exceed or be more than the value of 40s. ; which Commissioners so to be appointed should sit one day in every week from the hour of nine to eleven in the forenoon, or longer if the business should require, to hear and determine all such causes as should be brought before them not exceeding the value aforesaid : And did further by the said charter will, ordain and establish that the Go- vernor and Council of the said colony for the time being should be jus- tices of the peace, and liave power to act as justices of the peace in and for the said town of Freetown and throughout the said colony of Sierra Leone, and all the factories and settlements subordinate thereto, in "the same or the like manner, and with the same or the like powers, as justices of the peace constituted by any commission or letters patent under the great seal of Great Britain, for any county, city or town corporate in that part of Great Britain called England, did or might exercise such office : And did further will and provide that the said Governor and Council for the time beiiig, or any two or more of them, (whereof the Governor for the time being, or in his absence the senior of the council then residing at Sierra Leone, to be one,) should and might hold quarter sessions of the peace four times in the year within the district aforesaid, and should at fill times thereafter be a Court of Record in the nature of a court of oyer and terminer and gaol delivery, and should from time to time and at all times thereafter be commmissioners of oyer and terminer and gaol delivery for the trying and punishing of all offenders and offences (high treason only exeepted) had, committed or done, or to be had, committed or done within the said town of Freetown or elsewhere within the said colony of Sierra Leone, and any of the said factories or settlements sub- ordinate thereto ; and that it should and might be lawful to and for the said justices of the peace and commissioners of oyer and terminer and gaol delivery respectively to proceed by indictment or by such other ways, and in the same or the like manner, as was used in that part of Great Britrin called England, as near as the condition and the circum- stances of the place and inhabitants would admit of; and for that purpose to issue their warrant or precept to the sheriff of the said district for the time being, com.inanding him to summon a convenient number of the principal inhabitants within the said district to serve and attend as a grand and petty jury at the said court respectively ; and that the said justices of the peace and commissioners of oyer and terminer and gaol delivery re- spectively, should and might administer to them the usual oath taken in F.nglnnd by grand and petty juries, and also administer to the witnesses who should be produced for or against the party to be tried a proper oath SIERRA LEONE— CHARTER OF JUSTICE. 513 or affirmation, in such manner as they should esteem most binding on their consciences to oMige them to speak the truth, and that the said justices and commicsioners should and might respectively proceed to the arraignment, trial, conviction and punishment of persons accused of any cnmes or offences, (high treason only excepted,) in the same or the like manner and form, as near as the condition and circumstances of the place and inhabitants would admit of, as any justices of the peace or commissioners of oyer and terminer and gaol delivery in that part of Great Bntam called England usually and legally do ; and that the said court might assemble and adjourn at and unto such times and places as they should judge convenient: And did thereby direct that the said Go- aToTb ?."> I „''?'■' '^' ^°"""" *'"'^' °^ *'- ^'J'^ P-rt of them, take an oath faithfully to execute the said offices of Governor, Justice of the Peace, and Commissioner of Oyer and Terminer and Gaol Delivery together with the oath of allegiance, which oaths they were thereby em- powered to administer; and after the taking such oaths, did thereby au- horize the said Governor to administer an oath to the Council faithfully to execute the said offices of Council, Justices of the Peace, and Commis- sioners of Oyer and Terminer and Gaol Delivery, together with the oath of allegiance: And did by the said charter further ordain, establish and appoint, that when any person should die within the said town of Free- town or elsewhere within the said colony of Sierra Leone, or any of the factories or settlements subordinate thereto, and should by his will appoint any person or persons within the said town or colony, or the factories or settlements aforesaid, to be his executor or executors, then and in such case that the said Mayor's Court, upon proof made of the due execution of the said will, should and the same was thereby authorized and re- quired to grant probate of the said will under the seal of the said court (which seal the said court was authorized by the same to use for that and other purposes) whereby the person or persons so named executor or executors should have full power and ample authority to act as such, as touching the debts and estates of his, her or their testator; and where any person should die within the town or factories, or limits thereof in- testate, or not having appointed some person or persons to be executor or executors residing within the said town, colony, factories or settlements that m either of these cases the said Mayor's Court should, and the same was thereby empowered and required to grant letters of administration or etters of administration with an authentic copy of the will annexed, (de- terminable upon any executor named in such will appearing in court and praying probate thereof,) as touching the debts and estate of the person dying intestate or not naming such executor as aforesaid that should be ir"-^ '^ *!•' -'f'" "*'°'''"^^' *° '"^^ P^"°" «^ Persons then re- Biduig withm the jurisdiction of the said court «» «K„,.u u. „„„. ^. ,_• to the person so dymg or his residuary legatee, and in case there should I I. h fiil: ti-:^::iX\ 514' SIKRRA LEONE -CHARTER OF JUSTICE, be no such person within the said jurisdiction then to the principal cre- ditor of the person so dying, and for want of any creditor appearing, then to such other person or persons as should be thought proper by the said court, every such person or persona to whom such administration should be granted first giving security by i^ond (respect being had to the value of the estate) to the mayor of the ad town, with condition in the form usually given in courts ecclesiastical within that part of Great Britain called England, or as near thereto as the nature and circumstances of the case wou d admit; and that such person or persons to whom administra- lon should be so gi-anted should and might act in all respects as adminis- trator or administrators touching the debts, effects and estates of such person or persons to whom he, she or they should take out administration as a.oresa.d, which should be or arise within the said limits : And where- as m pursuance and by virtue and authority of the said letters-patent, such Governor and Council, Mayor's Court, and such other courts and officers as are therein mentioned, were fully constituted, elected and ap- pomted withm the said colony of Sierra Leone, and entered upon and thenceforward exercised the various jurisdictions and authorities, offices and functions respectively granted to and vested in them in and by the said charter, and divers laws and statutes and ordinances fit and neces- sary for and.conceming the government of the said colony, and not re- pugnant to the laws and statutes of this realm, were from time to time made, enacted and declared as well by the said Governor and Council as by the said Court of Directors of the said Company, and divers rules and orders for the better administration of justice were also from time to time made by the said Mayor's Court in further pursuance of the said charter: And v^hereas by an Act of Parliament passed in the forty-seventh year of the reign of his said late Majesty, intituled, " An Act for transferring to his Majesty certain possessions and rights vested in the Sierra Leone Company, and for shortening the duration of the said Company, and for ^Z th"f rT 7.- " r"*'^'"^ '■" *'^^ '"^'"g - -»-"^ "f Slaves tWint . T/^'r." ^""''" ^^"'^"^ '^' -'^ A^' of Pariiament th rem first recited, and in part reciting or mentioning the said letters- patent hei-einbefore recited ; and further reciting that the said company, convmcedof the expediency of relinquishing the government and ma- n gement of the sa d colony, had expressed a desire to make and had humbly entreated his said late Majesty to accept a surrender to his said lat Majesty of all the tract or district of land granted to them by the said letters-patent or charter of justice, or of wMch the said company addUirtHh ' "n'1 ^'^^ ''' """ ^"J"^ ^^ P"^^^-« - °«--wise in addition to the said lands so granted as aforesaid to the said company, and that they were further desirous that their existence as a body politic and taan that limited and declared in and by the said first herein recited SIKRRA LEONE— CHARTER OF JUSTICE. 515 statute, as was deemed by the said company sufficient for them in which to settle their affiiirs: And whereas, for confirming and giving effect to such intended surrender and for limitine the duration of the said com- pany, it was in and by the said now recited act enacted that the said letters-patent or charter of justice and grant therein mentioned and here- inbefore recited, and every matter, clause and thing therein contained, should and the same were thereby declared to be thenceforth null and void, and that the said company should be and they were thereby divested of and from all that tract or district of land commonly called and known by the name or description of the Peninsula of Sierra Leone, and of and from all forts, castles, buildings or estate which had been after purchased or other- wise acquired by the said company in addition thereto, or which then were possessed or claimed by the said company in or about the said pe- ninsula, and that the said tract or district of land, and all forts, castles, buildings or estate so purchased or otherwise acquired, possessed, en- joyed or claimed by the said company, should thenceforth be, and the same and every of them were and was thereby declared and enacted to be fully and absolutely vested in his said late Majesty, his heirs and suc- cessors for ever : And whereas it was in the said act now in recital further enacted, that at the expiration of seven years from and after the passing of the said act the said Sierra Leone Company should cease to be a body politic and corporate to all intents, constructions and purposes whatsoever, anything in the said herein first recited act to the contrary thereof in any wise notwithstanding; provided always and it was thereby further enact- ed, that it should not be lawful for any person or persons whatsoever in- habiting or being, or who should at any time thereafter inhabit or be within the said peninsula or colony of Sierra Leone, either directly or in- directly, to deal or traffic in, buy or sell, or to be aiding or assisting in the dealing or trafficking, in the buying or selling of slaves, either within the said peninsnla or elsewhere : And whereas, in pursuance of the said Act of Parliament last recited, the said company did on or about the 27th day of July, in the forty-eighth year of the reign of his said late Majesty, actually and fully surrender to the Governor for the time being of the said colony, by his said late Majesty in that behalf appointed and autho- rized, the possession of the said colony or peninsula, tract or district of land, and all forts, castles, buildings and estate, which by the true intent and meaning of the said last recited Act of Parliament ought to have been so surrendered, and the same were thenceforth in the jiossession and under the government of his said late Majesty : And whereas, it being necessary to provide for the immediate government and administration of justice within the said colony, his said late Majesty did soon after the passing of the said act transmit instnictions to the said Governor thereof for the time being, directing him to continue in all respects the adminis- tration of justice, and theinterlorgovernmentof the said colony, according L I, 2 f I '■I if: ' "ii ■,„,.»•■( f j -IKK MM WmM 516 SIERRA LEONE — CHARTER OF JUSTICE. to the provisions and directions, powers and authorities contained in the said in part recited letters-patent or charter of justice, as if tl>e same were Btill in force ; and the said Governor and Council, Mayor's Court and other courts so constituted and appointed as aforesaid, and the councillors, judges and officers thereof respectively, and other judges and officere subsequently elected and appointed pursuant to the directions of the said charter, did accordingly continue to exercise their former jurisdictions, functions and authorities, and divers proceedings as well judicial as minis- terial were had by and before them, and judgments given and decrees or orders made in the said courts, and wills proved and administrations granted in the said Mayor's Court pursuant to the provisions of the said charter; all which acts and proceedings, subsequent to the annulling of the said letters-patent or charter of justice, it was deemed expedient to ratify and confirm: And whereas it was his said late Majesty's royal will and pleasure, that for the better administration of justice within the said colony, a chief justice thereof should from time to time be appointed during pleasure, who should have such jurisdictions and authorities as are hereinafter mentioned, and who should also be judge of a court of vice- admiralty by his said late Majesty then lately constituted for the said colony, with such jurisdictions as then belonged to courts of vice-ad- miralty in the West India islands in general, and should be judge also of a court of prize, with such limited jurisdiction therein as his said late Majesty thought fit to grant by his prize commission in that behalf; but that in all other respects the laws and constitution of the said colony, and all the judicial and municipal authorities therein, should during his royal will and pleasure continue such as they were constituted and appointed to be by the said recited letters-patent or charter of justice, or under the authority thereof, as far as the said surrender made to his said late Ma- jesty by the said company, and other the changes of circumstances would allow: And whereas his said late Majesty, in order to provide for the then future government of the said colony or peninsula of Sierra Leone, and all territories thereon depending in Africa, and for the administration of justice therein, did by letters-patent, under the great seal of Great Britain, bearing date at Westminster, the 9th day of August, in the forty ninth year of his reign, direct that the person appointed or to be appointed Captain-General or Governor-in-Chief of the said colony, after the publi- cation of the said letters-patent, should in the first place take the oaths appointed to be taken by an Act passed in the first year of the reign of King George the First, intituled, " An Act for the further security of his Majesty's Person and Government, and the succession of the lown in the Heirs of the late Princess Sophia being Protestants, and for extin- guishing the hopes of the pretended Prince of Wales, and his open and secret Abettors," as altered and explained by an Act passed in the sixth year of his reign, intituled, " An Act for altt.'ng the Oath of Abjuration SIERRA LEONE— CHARTER OF JUSTICE. 517 and tlie Assurance, and for amending so much of an Act of the seventh year of her late Majesty Queen Anne, intituled, ' An Act for the im- provement of the Union of the two Kingdoms,' as after the time therein hmited requires the delivery of certain Lists and Copies therein men- tioned to Persons indicted of High Treason or Misprision of Treason ;" and should also make and subscribe the declaration mentioned in an Act of Parliament made in the twenty-fifth year of the reign of King Charles the Second, intituled, " An Act for preventing Dangers which may hap- pen from Popish Recusants ;" and should likewise take the oath usually taken by the Governors in his Majesty's plantations, for the due execu- tion of the office and trust of Captain-General and Governor-in-Chief in and over the said colony or peninsula of Sierra Leone and the territories depending thereon, and for the due and impartiaF administration of jus- tice ; and further should take the oath required to be taken bv Governors of plantations to do their utmost that the several laws relating to trade and the plantations be duly observed ; which said oaths and declarations the Council of the said colony, or any two members thereof, were thereby empowered and required to tender and administer unto him, and in his absence to the Lieutenant-Governor, if any in the place, or if none, to such person to whom the administration of the government was com- mitted, in manner as thereinafter provided; which being performed, that the said Governor should administer to the Chief Justice therein nominated and appointed during pleasure, and the other members of the Council of the said colony, as also to the Lieutenant-Governor, if any in the place, the oaths mentioned in the first recited Act of Pariiament, altered as above, as also should cause them to make and subscribe the aforesaid declaration, and administer to them the several oaths for the due execution of their places and trusts ; and did further give and grant unto the said Goveraor full power and authority from time to time and at any time thereafter, by himself or by any other to be authorized by him in that behalf, to' ad- minister the oath mentioned in the said first recited act, altered as above, to all and every such person or persons as he should think fit, who should at any time pass into the said colony of Sierra Leone, or any of the factories and settlements within his government, or should be resident or abiding there; and that the said Governor should have full power and authority to suspend any member of the Council of the said colony from sitting, voting or assisting therein, if he should find just cause for so doing; and if there should be any Lieutenant-Governor, him likewise to suspend from the executon of his command, and to appoint another in his stead until his said Majesty's pleasure should be known : And did further by the said letters-patent ordain, will and direct, that the Go- vernor, or in his absence the Lieutenant-Governor or Commander-in- Chief for the time being of the said colony, together with the Council of the said colony, or the major part thereof, should have full ill -' ...... ;:5 it4 »4' 518 SIERRA LEONE— CHARTER OF JUSTICE, power and authority to make, onnct and ordain laws, Btatutc-s and or- dinance, for tl,o peace, welfare and good government of the said colony, •0 a. Buch law«, statute* and ordinances were not repugnant to the aws and statute, of this reahn. but as near as might be agreeable tl>ereto: provided that all such laws, statutes and ordinances, ^flh^ nature or duration soever, were within six n.onths or sooner after the making thereof transmitted by the Governor. Lieutenant-GovernoVo other Commande..in-Chief of the said colony for the time being, mito his aid ate Majesty for his approbation or disallowance of the same Jo diiphcate, thereof by the next conveyance, and in case all or a.; of te - d hjws. statutes and ordinances, being not before confirmed by'h.^ saS «u late Majesty, h.s heirs and successors, and it should be so sig,^fied irivy Council, unto the Governor. Lieutenant-Governor or other Com nt":? 'r "'-fv^^' ^"""^ '-' ''' '-' ^^•'"^' '^'^ '>>"'-'' -^ so many of the said laws, statutes and ordinances as should be so dis- approved and disallowed, should from thenceforth cease, dtrmin ^d 1 wlv/r; T "''' '" "'" '""'''"'^ thereof notwithstanding; provided 0— 11 r """^' '" ^ "''^ '^"^" P»'-' ahoufd author e w thZthe a d .T 7 "f ''""""• '' ""''"° ""y '"'^^ - ''"ties witl„„ the sa.d colony, except such as might thereafter be found necessary for making roads, erecting and repairing public buildings, or other pm^ poses of local convenience and eeconomy. and for the intior wS: f the said colony : provided also, that no law. statute or ordinance, whereby three months, should be of any force or effect until the same should receive Ins smd late Majesty's approbation: and did by the said letters pat nt further will and establish, that all laws, statutes and ordin nces wh ch hl^or: "t ^'^ *", ^'° """""'"^ '''' -^ '«"- paten? or charter of justice therein and hereinbefore in great part recited were in force within the said colony, whether ordained and made by the «S charter, or in execution of any authority thereby granted, or otherwise howsoever should be and continue of the same forct and effect in the! d colony as If the said charter had not been annulled and made void exce^^ tt::i s""V^''^' *" '" territorial or other rights and i'nteres^ of the said Sierra Leone Company, and to the government, administration jurisdiction and authority of the said Company in and over tt S cobny. under the said charter, until such laws, statutes and ordinan s to be made by the Governor. Lieutenant-Governor or Commandei-i„ Chief for the time being of the said colony, and the Council of the same pursuant to the powers vested in them by the letters patent now in rec U : SIliRKA LliONIi— CHAIlTKIl OF JUSTICE. 51V uiid that all ju(lp:mentf, decrees, Bcntences, orderB, probates of wills, grants of letters of adn, titration, and other judicial or ministerial acts and pro- ceedings, made, pUHs I or had subsequent to the onnuUing of the said charter, and before the publication of the letters patent now in recital in the said colony, should bo and bo deemed and taken to be of the same force and validity as if the said charter had not been annulled or repealed, but stin continued in force : And did further ordain, will and direct, that the Governor, or in his absence the Lieutenant-Governor or other Com- mander-in-Chief of the said colony for the time being, and the Council of the same, should have, use, exercise and enjoy all and singular the offices, jurisdictions, powers and authorities within the said colony, which in and by the said charter therein and herein recited were given and granted to the Governor and Council which the Court of Directors of the said Sierra Leone Company were thereby empowered to constitute and api)oint, save and except as was otherwise directed or provided in and by the said letters patent now in recital. And did further thereby give, grant and appoint, that there should be within the said town of Freetown a body politic and corporate, by the name and style of the Mayor and Aldermen of Free- town ; and that such body politic and corporate should consist of a Mayor and three Aldermen, ond should have perpetual succession, and should and might be able and capable in law to sue and be sued in any courts and causes whatsoever, and should have a common seal for the business snd affairs of the said Corporation, which common seal they and their successors might break and change at their pleasure ; and that the persons bearing the offices of Mayor and Aldermen of Freetown at the time of the publication of (he letters patent now in recital, by virtue of an election or appointment made under and by authority of the soid annulled charter, though since the same was annulled, should be and continue respectively Mayor and Aldermen of Freetown, upon the conditions and under the limitations contained in the said charter ; and that all the regulations and provisions contained in the said charter in respect to the annual election of the Mayor and the determination of his office, and that of the Alder- men, and the filling up of their places when vacant by death, absence or removal, should be observed and carried into execution in respect of the said Mayor and Aldermen constituted by the letters patent now in recital, as fully as if the same had been therein repeated. And did further will and ordain that the person bearing the office of sheriff at the publication of the letters patent now in recital, by virtue of any election or appoint- ment made under and by authority of the said annulled charter, should notwithstanding retain such office until the time appointed in the said charter for the annual determination of such office, to act until the 29th day of September then next ensuing, and should then be succeeded by a new Sheriff, to be elected and appointed by the Governor and Council of i!i-_ sau! colony, at tae time and in juariiiOi^ and funn as diructuu by the •' sii:;r -I; ..i^M. • fl.'llilW* lit:: •^' 520 SIERKA LEONE— CIIARTEK OP JUSTICE. •aid charter; and tliat the (Jovernor and Council of the said colony should have the same powers of electing and appointing the Sheriff as were in and by the said annulled charter given to the O, vernor and Council ap- pointed by the said Sierra Leone Company and its Directors; and did farther direct that the said Sheriff so appointed or to be appointed as aforesaid should execute and perform all such or the like offices and duties, and have, possess and exercise all such or the like powers and authorities, as the Sheriff appointed under the said annulled charter, while the same remained in force. And did further by the said letters patent will and 8r,)oint that the Chief Justice of the said colony during his con- tinuance ii, the snid office, and his successors the Chief Justices of the said colony, should be Recorders of Freetown, and with the Mayor and Aldermen of Freetown for the time being, should be and they were thereby constituted a Court of Record, by the name of » The Court of the Recorder of Freetown," and that the said Court should have, use and exercise the like jurisdictions, power.) and authorities in all respects within the said colony of Sierra Leone, in like cases, and between the like persons and parties, as might have been had, used and exercised by the said Mayors Court of Freetown, under and by virtue of the said tlerein and hereinbefore recited charter of justice, while the same remained in full force and virtue, except only where it was otherwise therein expressly declared or provided; and that the said Court of the Recorder of Free- town should also proceed in the same manner and form, and subject to the same rules as to trial by jury and otherwise, and to the same remedy or right of appeal, as were in the said therein and hereinbefore recited charter directed and provided in respect of the said Mayor's Court of Freetown, except as aforesaid; and that all rules of practice made by the said Mayor's Court of Freetown, and then or at the time of the annulling of the said charter remaining in force, should be observed and followed in and by the said Court of the Recorder of Freetown, until by the authority of that court the same should be varied or repealed : provided always, and it was thereby further ordained and directed, that the Chief Justice and Recorder should preside in the said court, which should be held before him and the Mayor and Aldermen of Freetown for the time being, or three of them at least, that is to say, either the Mayor and two of the said Aldermen, or the three Aldermen, except when such Chief Justice and Recorder was a party to or interested in any suit, action or proceeding depending in the said court, in which case it was provided that such suit, action or proceeding should be adjudged, tried and determined by the Mayor and Aldermen alone, the Mayor presiding; and if two or more of the said Judges should be parties to or interested in any such suit, action or proceeding, then that the remaining Judges of the said court should and might adjudge, try or determine the same, the senior Alderman presidhig when the Chief Justice and Recorder, and Mayor, iL SIERRA LEONE — ClIAUTER OF JUSTICE. 5^1 •hould be for the reason aforesaid incompetent to sit. Provided ftir- ther, that in case of the death, absence or long incapacity by sickness of the Chief Justice and Recorder, the Governor, Lieutenant-Governor or other Commander-in-Chief of the said colony for the time being, should and might appoint the most competent and proper person within thecolony to act as Chief Justice and Recorder during such absence or incapacity, or in the case of death, until a successor should be appointed by his said late Majesty, and should enter on the duties of the said office, whi h acting Chief Justice and Recorder should be competent to preside in .he said court, and to exercise all the jurisdictions, offices, functions n.id authorities of the said Chief Justice and Recorder, until superseded by hiS return, or his becoming again capable, or by such new appointment as aforesaid. Provided also, that in case of any difference in opinion between the judges of tlie said court, touching the giving of any judgment or sentence, or the decision of any question depending before iliem, tho majority should determine; and further, that when opinions should be equally divided, the Chief Justice and Recorder, or the judge presiding in his stead, should have a double or casting voice. And did further direct and appoint, that from and after the publication of the said letters patent in the said colony at the period thereinafter appointed, the authority and functions of the said Mayor's Court of Freetown should cease and deter- mme, to be thenceforth assumed and exercised by the said court of the Recorder of Freetown; and that all actions, suits and proceedings then depending in the said Mayors Court of Freetown should be respectively transferred in their then present condition to, and subsist and depend respectively, and be prosecuted, tried and determined respectively in the said court of the Recorder of Freetown, just as if the same had been com- menced respectively in the said last-mentioned court ; and that all records, muniments and proceedings whatsoever of or belonging to the said Mayor's Court of Freetown, should be delivered over to and deposited with the records of the said court of the Recorder of Freetown ; and that from and after the same period, the said court of the Recorder of Freetown should have and exercise such and the same jurisdictions, powers and authorities to grant probates of wills and letters of administration as were theretofore had and exercised by the said Mayor's Court of Freetown, pursuant to the said annulled charter. And did further will and appoint, that the Go- vernor, Lieutenant-Governor or other Commander-in-Chief, and Council, for the time being of the said colony, should nominate and appoint a proper person to be Accountant-General of the said court of the Recorder of Freetown, who should execute and perfori . the same offices, trustP, matters and things as the Accountant-General of the said Mayor's Court of Freetown was directed and empowered to execute and perform by the said annulled charter therein and hereinbefore recited, (save and except as to the direction and controul of the Court of Directors of the Sierra V f t ill", 1 . -i ■ Ml* f li I ( 1 ., •I"f""»' 1 i.' " I , r.,, 'J Hiit'J 522 SIERRA LEONE— CHARTER OF JUSTICE. Leone Company), .ubject to the order, of the said court of the Recorder ot t reetown. and to such direction, in respect to the itivestincnt or .ecurity ot the money belonging to suitor, of the 8uid court, and the Hecuring and accountmg for the same, as n.ight be given from time to time by the •aid Governor, Lieutennnt-CJovernor or other Commander-in-Chief, and Council of the .aid colony for the time being, or by hi. .aid late Majesty n hu Pnvy Council. And did further thereby will and establish, that the Governor, Lieutenant-Governor or other Commander-in-Chief, and Council, of the said colony for the time being, .hould be, and they were thereby constituted a Court of Record to receive, hear and determine appeal, from the .aid court of the Recorder of Freetown, in the like cases, and subject to the like limitations, and rules and directions, a. to their proceedmg therein, and subject alBO to the like right of appeal from their judgment, sentence or decree to his said late Majesty in his Privy Council when the debt, damage, or thing or matter in dispute should exceed the' value of 400/., and upon the like condition as to security to be thereupon given by the appellant, as were in and by the said annulled charter di- rected and provided in respect of appeals to the Governor and Council appointed by the said Sierra Leone Company or it. Director., and from them to hi. aaid late Majesty in hi. Privy Council respectively. And did ftirther thereby ordain, will and establish, that there should be within the •aid town of Freetown a court, which should be called " The Court of Requests for the Colony of Sierra Leone," and which should have and exercise such and the same jurisdiction, power and authority in all action. and suits brought before them, wheie the debt, duty or matter in dispute should not exceed the value of 40s., in the same way, and subject to the same rules and regulations, as were in and by the said recited letters patent or charter of justice mentioned, contained and provided in respect of the Court of Requests thereby constituted. And did further ordain and appoint that the Governor. Lieutenant-Governor or Commander-in- Chief, and the members of the Council of the said colony for the time being, should be, and the same were thereby constituted and appointed to be justices of the peace in and for the said town of Freetown, throughout the said colony of Sierra Leone and all the territories dependent thereon, wit 1 all such and the same jurisdictions, powers and authorities as lawfully could or might be exercised by justices of the peace uuly constituted by Ins said late Majesty in that part of the United Kingdom called England, withm the county, city or town corporate for wliich they were so consti- tuted, so far as the laws of this realm were applicable to and in force in the said colony. And did further ordain, will and establish, that the Chief Justice and other members of Council of the said colony for the time being (without the Governor, Lieutenant-Governor or Commander- in-Chief) should and might hold quarter-sessions of the peace four times in the year within the said colony, and should from time to time and at •lERRA LEONK— CHARTER OP JUSTICE. 523 all timei thereafter be Coinmiaiioners of Oyer and Terminer and Gool Delivery, for the trying of all crimes and miidcmeanour* hud, committed or done, or to bo had, committed or done within the laid town of Free- town or elsewhere within the Haid colony of Sierra Leoi.e, or any territory dependent thereon ; at.d that it should and might he lawful to and for the •aid Justices of the Peace and Commissioners of Oyer and Terminer and Gaol Delivery respectively, to proceed by indictment, or by such other ways and means, and in the same or like manner, as were used in that part of the United Kingdom called England, as near as the condition and circumstances of the said colony and the inhabitants thereof would admit of; and for those purposes to issue tlieir warrants or precepts to the sheriff of the said colony for the time being, commanding him to summon a con- venient number of the principal inhabitants within the said colony to servo and attend as grand and petty jurors at the said courts respectively; and that the said Justices of the Peace and Commissioners of Oyer and Ter- mnier and Gaol Delivery respectively should and might administer to such jurors the oaths usually taken in England by grand and petty jurors respectively, and also should and might administer a proper oath or afflr- mation to the witnesses who should be produced for or against the party accused; and that the said Justices and Commissioners should and might respectively proceed to the arraignment, trial, conviction and punishment ot persons accused of any crimes or offences, in the same or the like manne^r and form, as near as the condition and circumstances of the place and inhabitants would admit of, as any Justices of the Peace or Commis- sioners of Oyer and Terminer and Gaol Delivery usually and lawfuliv do withm that part of the United Kingdom called England; and that the said courts might assemble and adjourn at and to such times and places as they might adjudge convenient. And did further direct and appoint «iat as well the said Justices of the Peace and Commissioners of Oyer and Terminer and Gaol Delivery, as the said Chief Justice and Recorder, and other Judges of the said Court of the Recorder of Freetown, should prior to their entenng upon the execution of their said respective offices take an oath before the Governor, Lieutenant-Governor, or Commander-in- Chief, and Council, for the time being, faithfully to execute their said respective offices, together with the oath of allegience, which oaths the said Governor. Lieutenant-Governor, or Commander-in-Chief, and Council or the time bemg were thereby empowered to administer. And did fur- ther by the said letters-patent give and grant unto the Governor of the said colony for the time being full power and authority from time to time to constitute and appoint all such officers and ministers as might be necessary in the said colony for the better administration of justice and putting the laws in execution, and for whose appointment his said late Majesty had not otherwise therein provided, and to administer or cause to be administered to them the usual oath or oaths for th« ^u. ..^„r.^„ „r 524, SIERRA LEONE— CHARTER OF JUSTICE. •'• iaHiiMi'9 SfiivKiaa •ncMI •if '■*»»• 7tu r ^"" PT" '"'^ ''""^°"'>'' ^'^^^ ^« «'>«"Jd see cause, or should judge any offender or offenders, in criminal matters, or for any fine pa don all such offenders, and to remit all such offences, fines and for. he should have power upon extraordinary occasions to grant reprieves to the offenders, untd and to the intent that his said late Majesty's'pleal mght be known therem. And did further authorize and empower the said Governor to collate any person or persons to any churches chape s or eccWieal benefices within the said colony, as o'ften as a'; ofl^^^^^ Governor by himself, or by his captains and commanders by him to be empoy all persons whatsoever residing within the said colony and the territones dependent thereon, and as occasion should demand'to ma ch lirstand; "7 n" '° "°'"''' " '"^ ^'"'"^^ *''^-' ^- «- resisting and withstanding of all enemies, pirates and rebels, both at sea and land and sucu enemies, pirates and rebels, if there should be occasion pls^e so please God, them to vanquish, apprehend, and take, and being taken e her according to law to put to death, o. to keep and preserve flive aj his discretion- and to execute martial law in tiL of Invasion, wl o other times when by law it might be executed, and to do and execute ol and eveiy other thing and things which to the Captain-GenerTani Gove^or-in-Chief of the said colony did or of right should bdong A ' d^ further give and grant unto the said Governor full power and u7ho rl 'Tt Z ''t ''"" ^"' ^""""* '' *^- -<^ ---1. to erect raise, and build m the said colony of Sierra Leone, and the terri orTes depending thereon, such and so many forts and platforms, castles, cits boroughs, towns, and fortification, as he by the advice aforesaid shouTi juge necessary, and the same or any part of them to fortify and S with ordnance, ammunition, and all sorts of arms fit and necessary for the curity and defence of the said colony, and by the advice aforesaid, he same again, or any of them, to demolish or dismantle, as might be most convenient: And forasmuch as divers mutinies and disor'ders might happen by persons shipped and employed at sea during the time of war. durinr T r' ''f "^'^ '' ^'^^"^^ '^^ «^'PP^^ -' -ployed at seJ during he time of war might be better governed and ordered, his said la e Majesty -d by the said letters-patent give and grant unt^ the sad Gov rnor o the said colony full power and authority to constitute and appoint captains, lieutenants, masters of ships, and other commanders and officers, and to grant to such captains, lieutenants, masters of ships, and other commanders and officers, commissions to execute the law mlrtial SIERRA LEONE— CHARTER OF JUSTICE. 525 during the time of war, according to the directions of an act passed in the twenty-second year of the reign of his said late Majesty King George the Second, intituled " An Act for amending, explaining, and reducing into one Act of Parliament the laws relating to the government of His Majesty's ships, vessels, and forces by sea," as the same is altered by an act passed in the nineteenth year of the reign of his said late Majesty Kmg George the Third, Our royal father, intituled " An Act to explain and amend an Act made in the twenty-second year of the reign of his late Majesty King George the Second, intituled ' An Act for amending, explaming, and reducing into one Act of Parliament the laws relating to the government of His Majesty's ships, vessels, and forces by sea ; ' " and to use such proceedings, authorities, punishments, corrections, upon any offender or offenders who should be mutinous, seditious, disorderly, or any way unruly, either at sea or during the time of their abode and residence in any of the ports, harbours, or bays of the said colony, as the case should be found to require, according to martial law, and the said direc- tions during the time of war as aforesaid : Provided that nothing therein contained should be construed to the enal, ,ig of him, or of any by his authority, to hold plea or to have any jurisdiction of any offence, cause, matter or thing committed or done upon the high sea, or within any of the havens, rivers, or creeks of the said colony and territories under his government, by any captain, lieutenant, commander, master, officer, seaman, soldier, or other person whatsoever, who should be in his said late Majesty's actual service and pay, in or on board of any ship of war or other vessel acting by immediate commission or warrant from the com- missioners for executing the office of lord high admiral of the United Kingdom of Great Britain and Ireland, or from the lord high admiral for the time being, under the seal of the admiralty; but that such captain, commander, lieutenant, master, officer, seaman, soldier, or other person so offending should be left to be proceeded against and tried as their offences should require, either by commission under the great seal of the United Kingdom of Great Britain and Ireland, pursuant to the statute of the twenty-eighth of Henry the Eighth, or by commission from the said commissioners for executing the office of lord high admiral for the time being, according to the afore-mentioned act, intituled "An Act for amending, explaining, and reducing into one Act of Parliament the laws relating to the government of his Majesty's ships, vessels, and forces by sea," as altered and amended by the said act passed in thfi nineteenth year of the reign of his said late Majesty, and not otherwise; provided nevertheless, that all offences and misdemeanors committed on shore by any captain, commander, Meutenant, master, officer, seaman, soldier, or other person whatsoever, belonging to any ship of war or other vessel acting by immediate commission or warrant from the said commissioners or lord high admiral ior the time being as aforesaid, might be tried and ** ti »*' »•■• «# » sr SririB: wnaMU if en* •t tz 52G SIERRA I.EONE—CIIARTKR OF JUSTICE. punched nccordmg to tl.e laws of the place where any such offences or misdemeanors should be so committed o., shore, notwithstanding such offenders were ,n h.s said late Majesty's actual service, and borne in his pay on board any such ship of war or other vessels acting by immediate commission or warrant from the said commissioners or lord high admiral for the time bemg as aforesaid, so that such offender shall receive no pro- tection for the avoiding of justice for such offences so committed on shore, from any pretence of his being employed in his said late Majesty's service at sea : And did further wiU and appoint that all public monies which should be raised by any law, statute, or ordinance to be thereafter made withm the said colony, should be issued out by warrant from the sau governor, by and with the advice and consent of the council of the said colony, and disposed of for the purpose directed and appointed by such law, statute, or ordinance, and not otherwise : And did further give and grant unto the said Governor full power and authority, by and with tlie advice and consent of the said council, to settle and agree with the inhabitants of the said colony for such lands, tenements, and hereditamenls as then were or thereafter should be in his said late Majesty's power to dispose of, and them to grant to any person or persons, upon such terms, and under such moderate quit-rents, services and acknowledgments to be thereupon reserved unto his said late Majesty, as he the said Governor, by and with the advice aforesaid, should think lit ; which said grants were directed to pass and be sealed by the seal of the said colony, and being entered upon record by such officer or officers as were or should be appointed thereunto, were declared to be good and effectual in law against lus said late Majesty, his heirs and successors: Provided always, and it was thereby further ordained, that no grant, lease, or demise at any time theretofore made by or under the authority of the said Sierra Leone Company, prior to the said surrender to his said late Majesty of their territorial rights and interest in the said colony and its dependencies pursuant to the Act of Parliament aforesaid, whether the same were by deed or writing, or by parol only, should be in any manner impeached or avoided but that the same should be and be taken to be as valid and effectual to all intents and purposes, against his said late Majesty, his heirs, and successors, as if the said surrender pursuant to the said Act of Parliament therein and hereinbefore recited had not been made ; and that al such grants leases, and demises of lands or tenements within the said colony should be confirmed by the said Governor under the seal of the said colony, If the grantees, lessees, or parties beneficially interested therein should apply for and request such confirmations: And did further give and grant unto the said Governor full power and authority to order and appoint fairs, marts, and markets ; and also such and so many ports harbours, bays, havens, and other places for the convenience and security of shipping, and for the better loading and unloading of goods and mer- canui^e, m such and so many places as by him, by and with the advice SIKRRA LEONR — CIIARTKR OF JUSTICE. 527 of the said council, should bo thouglit fit and necessary : And did further require and command all officers and ministers, civil and military, and all other inhabitants of the said colony and the territories dependent thereon, to be obedient, aiding and assisting unto the said Governor, in the execu- tion of the several powers and authorities in the snid letters patent con- tained ; and in case of his death or absence out of the said colony and the territories dependent thereon, to be obedient, aiding, and assisting unto such person as should be appointed by his said late Majesty's Lieu- tenant-Governor or Commander-in-Chief of the said colony for the time being, to whom his said late Majesty did by the same give and grant all and singular the powers and authorities therein granted to the governor of the said colony, to be by him executed and enjoyed during pleasure, or until the arrival of the Governor within the said colony ; and if, upon the death or absence of the Governor from the said colony and territories dependent thereon, there was no person in the place commissioned by his said Majesty to be Lieutenant-Governor or Commander-in-Chief of the said colony, then that the member of council next in seniority to the Chief Justice for the time being (to which Chief Justice his said late Majesty did by the said letters-patent grant rank and precedency above and before all subjects whomsoever in the said colony, the Governor, Lieutenant- Governor, or other Commander-in-Chief of the said colony for the time being only exceptetl ; and that the said Chief Justice should be a member of council by virtue of his office, and preside the... . in the absence of the Governor or Lieutenant-Governor; provided always, that he should in no case succeed to the chief command of the said colony), who should be resident within the said colony, should take upon him the administra- tion of the government of the said colony, and execute the several powers and authorities contained in the said letters-patent until the return of the said Governor, if absent from the said colony, or until, in case of the death of the said Governor, his said late Majesty's further pleasure were known therein. And whereas, by an Act of Parliament made and passed in the first and second year of our reign, intituled " An act for abolishing the African Company, and transferring to and vesting in his Majesty all the Forts, Possessions, and Property now belonging to or held by them," it was, among other things, enacted, that from and after the 3d day of July, 1821, the said corporation of the company of merchants trading to Africa should wholly cease and determine and be abolished, and the said Company of Merchants trading to Africa should no longer be or be deemed to be a body politic or corporate ; and that all grants made to the said Company by or under or in pursuance of certain therein recited Acts of Pariiament, or any or either of them, or in pursuance of any thing therein contained, should, and the same were thereby declared to be thenceforth null and void ; and that the said i^.,.ny O..VU1U uv, ttiju lilt; saiu i^ompany were thereby divested of and from all forts, castles, buildings, possessions, or estate or rights which 528 SIERRA LEONE — CIURTFR OF JUSTICE. ft:..,,, mm Si FPann were gwen to the said Company by or under or in pursuance of the said therein recited acts, or any or either of them, or which liad been since purchased or otlierwise acquired by the said Company in addition thereto, or which then were possessed or claimed or held by the said Company on the said coast; and that the said forts, castles, buildings, possessions, estate, and rights so acquired, possessed, enjoyed or claimed, or then held by the said Company, should thenceforth be, and the same and every of them were, and were thereby declared and enacted to be fully and absolutely vested in us, our heirs, and successors for ever : And whereas it was further . enacted m and by the said Act of Parliament, that from and after the passing of that act, it should and might be lawful for us to order and direct that all or any of the forts and possessions therein and hereinbefore-men- tioned, and also any territories, islands, or possessions on the west coast of Africa, between the twentieth degree of north latitude and the twentieth degree of south latitude, which then did or at any time thereafter should or might belong to us, should be annexed to or made dependencies on the colony of Sierra Leone ; and that from the date of their being so annexed or made dependencies on the said colony, they should be subject to all such laws, statutes, and ordinances as should be in force in the said colony, or as should at any time thereafter be made, enacted, or ordained by the Governor and Council of the said colony, and should not be dis- allowed by us, in the same manner as if the said forts, possessions, terri- wries, or islands had originally formed part of the said colony of Sierra Leone: Now know ye, that we, having considered the premises, and being willing and desirous to provide for the future good government, as well of the said forts and possessions so heretofore acquired, purchased, enjoyed, claimed, or held by the said African Company, as of all and every oth.<. the territories, islands, or possessions on the west coast of Africa, between the twentieth degree of north latitude and the twentieth degree of south latitude, which now do or at any time hereafter shall or may belong to us, our heirs, and successors, do by these presents, by virtue and in pursuance of the said recited act, and of our special grace certain knowledge and mere motion, order, direct, and appoint, that all and every of the said forts and possessions so heretofore acquired pur- chased, enjoyed, claimed, or held by the said African Company, and also all territories, islands, and possessions which now do or at any time here- after shall or may belong to us, our heirs, and successors, on the west coast of Africa, between the twentieth degree of north latitude and the twentieth degree of south latitude, shall be annexed to and made dependen- cies on, and the same are hereby annexed to and made dependencies on the said colony of Sierra Leone; and that from the publication of these presents in the said colony of Sierra Leone, as hereinafter directed, the same shall be and they are hereby made subject to all such laws, statutes, and ordinances as shall be in force in our said colony, or as shall at any time hereafter be made, enacted, or ordained by the Governor and SIERRA LEONE — CHARTER OP JUSTICE. 529 Council of the said colony, and shall not be disallowed by iis, our heirs, and successors, in the same manner as if the said forts, possessions, terri- tories, or islands had originally formed part of the said colony of Siena Leone : And we do further by these presents, for us, our heirs, and suc- cessors, will, establish, and ordain, that from and after the publication of these presents, there shall be nine or more councillors, advising and assisring to our Governor of our said colony of Sierra Leone for the time being: And we do by these presents nominate, make, ordain, and con- stitute our trusty and well-beloved Edward Fitzgerald, our chief justice, or our chief justice of our said colony for the time being j our trusty and well-beloved Daniel Molloy Hamilton, our advocate, or our advocate of our said colony for the time being; our trusty and well-beloved Dudley Feriday, our secretary, or our secretary of our said colony for the time being ; our trusty and well-beloved Thomas Stuart Buckle, our surveyor of lands, or our surveyor of lands of our said colony for the time being • our trusty and well-beioved Kenneth Macaulay, esquire, our trusty and well-beloved Alexander Grant, esquire, our trusty and well-beloved Joseph Reffell, esquire, our trusty and well-beloved John O'Neill Walsh, esquire, our trusty and well-beloved Thaddeus O'Meara, esquire, our trusty and well-beloved Andrew Nicoll, doctor of medicine, our trusty and well-beloved John Hope Smith, esquire, and our trusty and well-beloved William Dawson, esquire, thenceforth councillors of our said colony, to continue in their said office of councillors during their natural lives, unless suspended from their said office, or absent from the said colony for the space of one year without leave given them under our royal signature, or until other councillors shall be chosen and appointed by us, under our signet and sign manual, in their stead : And we do further hereby give and grant to our said Governor full power and authority to suspend any of the members of our said council from sitting, voting, or assisting therein, if he shall find just cause for so doing ; and if it shall at any time happen, that by the death, departure out of our said colony, or suspension of our said councillors, or otherwise, there shall be a vacancy in our said council, (any five whereof we do hereby appoint to be a quorum,) our wiU and pleasure is that our said Governor do signify the same unto us by the first opportunity, that we may, under our signet and sign manual, constitute and appoint others in their stead; but, that our aflJairs at that distance may not suffer from want of a due number of councUlors, if ever it shall happen that there be less than nine of them residing in our said colony, we do hereby give and grant unto our said Governor full power and authority to choose as many persons out of the principal inhabitants thereof as shall make up the full number of our said council to be nine, and no more ; which persons so chosen and appointed by him shall be to all intents and puiiioses councillors in our said colony, until either they shall be confirmed by us, or that, by the nomination of others by us under M M mm It 'i#ili sr I' if 530 SIERRA LEONE— CHARTER OF JUSTICE. our sign manual and signet, our soid council shall have nine or more councillors in it resident in our said colony : And wo do further by theso presents ordain, will, ond appoint, that our Governor of our said colony, or hi his absence, our Lieutenant-dovernor or Commander-in-Chief for the time being of our said colony, together with our council of the some, or the mjyor port thereof, shall linvo full power ond outhority to make, constitute, and ordain lows, statutes, and ordinances for the public wel- fore and good government of our soid colony, under the like conditions, and subject to the some limitotions and restrictions, as those imposed in thot behalf on the Governor ond council of our said colony in the letters- patent of his said lote Mojesty hereinbefore recited j but, to the end that nothing may bo done or posscd to the prejudice of us, our heirs, and successors, by our said council, wo ftirther ordain by theso presents, that our Governor of our said colony, or in his obsencc, our Lieutenant- Governor or Commondcr-in-Chicf for the time being, may and shall have a negative voice in the moking and passing of all laws, statutes, and ordinances as aforesaid: And we do fiirther by these presents will, ordain, «a<1 appoint, that from and after the publication of these presents in our said colony of Sierra Leone, as horeinofter directed, our court of record in oiir said colony, called and known by the name of "The Court of the Recordf 1 .-f Freetown," shall consist of our chief justice of the said colony for the time being, and two such members of the council as shall be appointed by the Governor of our said colony for the time being assistant judges thereof, in lieu of the mayor and aldermen of Freetown for the time being, as ordained and appointed in and by the letters patent of his said late Majesty hereinbefore recited ; and we do hereby will and ordain, Uiat they or any two of them (whereof our said chief justice for the time being resident in Freetown to bo one), shall, and the same are hereby authorized to hear and determine all civil suits, actions, and pleas between party and party that shall or may arise or happen, or that have already arisen or happened within our said colony of Sierra Leone, or any of the forts, settlements, islands, or territories subject or subordinate thereto, except when the cause of action or suit shall not exceed the value of 40s. : Provided always, and it is hereby further ordained and directed, thot if such chief justice and recorder^ or any of the said as- sistant judges, should bo any ways interested in the event of any such action or suit, no such chief justice and recorder or assistant judge, shall sit or act as a judge in such suit or action, but the same shall be heard and determined by such of them as shall be no woys interested therein ; and in all cases where the number of voices shall bo equal in the determination of any action or suit, the chief justice, or in his ab- sence the senior assistant judge present, shall have two voices: And we do furtlier direct, that the said Court of the Rocorder of Freetown hereby constituted shall proceed in the same manner aud form, and sub- SIERRA LEONE—CHARTER OP JUSTICE. 581 jeot to the same rules aa to trial by jury and otherwiw, and to the tame remedy and right of appeal, as were in and by the said letters patent hereinbefore recited, directed, and provided in respect of the Court of the Recorder of Freetown, constituted by such letters patent; and that all rules of practice made by the one court, and now or at the time of the publication of these presents remaining in force, shall be observed and tollotved in and by the other, until by the authority of that other the same be varied or repealed: And we do fUrther will and direct, that no action, cause, suit, or proceeding depending in the said Court of the Hecordor of Freetown at the publication of these presents, shall be avoided, abated, discontinued, or annulled for or by reason of any change in the constitution of the said court effected by these presents, but that the same shall be respectively transferred in their then present condition to, and subsist and depend respectively, and be prosecuted, tried, and de- termined respectively, in the said Court of tlie Recorder of Freetown hereby consUtuted and established to all intents and purposes as if they had been respectively first commenced, had, brought, and prosecuted in the said Iust-mcnt.oned court: And we do further will and direct, that each person so nominated or appointed one of the assistant judges of the said Court of the Recorder of Freetown as aforesaid, shall, prior to the entering upon the execution of his said office, take an oati> before the Governor, Lieutenant-Governor, or other Commander-in-Cl«ief for tlie time being, for the due discharge of the same, which oath the said Governor, Lieutenant-Governor, or Commander-in-Chief for the time being, is hereby empowered to administer: And we do further by these presents will and establish, that our said Governor, Lieutenant-Goven^or, or other Commander-in-Chief, and council, of our said colony for the time being shall be, and they are hereby constituted a court of record to receive, hear, and determine appeals from as well the said Court of the Recorder of Freetown, as from any other superior court of common law now established or to be in future established in our said colony pursuant to these presents, in the like cases, and subject to the like limitations, rules, and directions as to their proceedings therein, and subject also to the like right of appeal from their judgment, sentence, or decree, ♦o us m our Privy Council, when the debt, damages, or things, or matter in dispute shall exceed the value of 400/., and upon the like condition as to security to be thereupon given by the appellant, as were in and by the said letters patent hereinbefore recited, directed, and provided in respect of appeals to the Governor and Council of the said colony, and from them to his said late Majesty in his Privy Council respectively : Provided always, and it is hereby ordained, that no such member or members of our said council as shall be at that time judge or judges of the court from which such appeal shall be made, shall be entitled or permitted to vote upon such appeal ; provided also, that no appeal be allowed from any M M 2 h 532 SIERRA LEONE— CHARTER OF JUSTICE. sentence, order or decree of our Courts of Chancery of our said colony, n dispute shall exceed the like sum or value of 400/. sterling; and that suca appellant do also give good security that he will effectually prosecute such appeal, and answer the condemnation money, and pay also such costs and damages as shall be by us awarded in case such sentence, order, or decree so appealed from be afflrmed: Provided nevertheless, and ou^ further will and pleasure is, that when the matter in question relates to the takmg or demandmg of any duty payable to us, or to any fee of office or annual rent, or other such like matter or thing, where the right judgment of our said Governor and Council as aforesaid, or from the 3ntence, order, or decree of our Court of Chancery of our said colony, to us m our Privy Council, though the immediate sum or value appealed for w.l\ TT"' '^'" *°^'' ''''""S= And our further pleasure is, and we do hereby direct and appoint, that our said Governor shall and may keep and use the public seal of our said colony of Sierra Leone for s"al- "ig all instruments whatsoever that do and ought to pas. the great seal quiry of idiots and lunatics may and ought to issue out of our Court of great trouble and charges may arise if occasion be to resort unto us, our anTtW rr"'' ?\^''T'-- '•«^P««*-g B"eh idiots and lunLtics, Gov nor foil' """ ". '^ ?"' P''"^"'^ ^^^^ «"^ ^'""^ ""^° «"^ -^ to jr f ^°'^"' '"^ '"'''°"'y '° ^^' °^^^" «»d warrants from time InlTh! rr""^ ^""'' "^ *''' ''''''^''' «^ ^"'^'^ '^'«'« «"d lunatics and their estates as are or shall be found by inquisition thereof, taken or to be taken, and returned or to be returned into our said Court of Chan- eery ot our said colony, and thereupon to make and pass grants and commitments under our great seal of our said colony, of 'the cullrof all and every such idiots and lunatics and their estates, to such person or usT:„"d oTaT " T ''''!? " "^'^^''"^s *° '"^^ -'- ^' --' -'i ^^^ ruT / T '" ^"'" """^ '^' "^^ '''''' '^« «^«" J"«^g« "^^et for that trust , the said grants and commitments to be made in such manner and Io.^Ja-''' T ^'' '"'^^'' "' ^"''' ''-*°^«''^ ^^^» "«ed and accus- tomed m making the same under the great seal of this kingdom, and to contain such and the like apt and convenient covenants, conditio'ns and agreements on the part of the couimittees and grantees to be perfomed, ftm L f/ i'' by these presents order, direct, and establish, that fiom and after the expiration of three months from the publication of aZ TT T'""^'"' '^"'''''^' '^'' "»*J'°^->ty «f 'h« Court of Re- Withm the said colony, as constituted by the letters patent of his said lato SIERRA LEONE— CHARTER OP JUSTICE. 533 Majesty hereinbefore recited, shull cease and be abolished : And we do by these presents authorize and require our said Governor, by and with the advice and concun-ence of our said council, prior to the expiration thereof, to nominate and appoint certain justices or others commissioners in and for particular districts, upon whom the authority of the said court thenceforward to cease and be abolished in and throughout the said colony as aforesaid may regularly devolve ; and that the said jus- tices or other commissioners may and shall proceed to the hearing and determining of all matters of debt or damage under 40*. value, in the same or the like manner and form, as near as circumstances will admit of, as any commissioners of requests usually and lawfully do within that part of our united kingdom called England ; and that such commissi- oners shall assemble at such times and places as our said Governor, with the advice and concurrence of our Council as aforesaid, shall from time to time appoint : And we do further hereby direct and establish, that from and after the publication of these presents, our Governor, Lieute- nant-Governor, or Commander-in-Chief for the time being of our said colony, shall and may do, execute, and perfoi-m all that is necessary for the granting of licences for marriages, as also for the probate of wills and granting of administrations for, touching or concerning any interest or estate which any person or persons shall have within our said colony or its dependencies, in such or the like manner and form as our Go- vernors, Lieutenant-Governors, or other Commanders-in-Chief of our provinces in America, are used and authorized to do, execute, and per- form the same : And our further will and pleasu^-e is, that from thence- forth such jurisdictions, powers, and authorities as were given to the Court of the Recorder of Freetown aforesaid, and to the said Mayor of Freetown, in and by the said letters patent hereinbefore recited, in re- spect to grants of probates of wills and letters of administration, shall cease and determine; but we do nevertheless will and ordain, that no probates issued or letters of administration granted in the said court pursuant to the provisions of the said letters patent, prior to the publica- tion of these presents, shall be impeached or avoided by the cessation of the authority and functions of the said court in the premises, but that the same shall, and the same are hereby ordained to remain in as full force and effect as if the said court still possessed the powers and autho- rities to grant probates of wills and letters of administration conferred upon it by the said letters patent : And we do further by these presents give and grant unto our said Governor full power and authoiity, with the advice and consent of our said Council, to erect and constitute judica- tories and courts of record, or other courts, to be held of us, our heirs and successors, for the hearing and determining all and all manner of causes, as well criminal as civil, arising or happening within our said colony, or between persons inhabiting or residing there ; as also to issue I !ll 584 SIKRIIA LEONE— CHARTER OF JUSTICE, from time to time «pecinl commissions of oyer and terminer and gaol de- livery, l„„,ted to tl.e districts nn.l crimes or misdemeanors specified in such commissions, and for the awarding and nmking out execution there- upon; to which courts and judicatories we do hereby give and grant full power and authority from time to time to administer oaths for the better discovery of truth in nny mntter in controversy or depending before them, together w,... ,. ...,y, ,. 'sonable and necessary powers, authorities, fees, and prv>W^;.:s btio'-ring thereto: And we do hereby furthei give and grant uutn oui said Governor full power and authority to constitute and appomt judges, and in cases requisite, commissioners of oyer and ter- mmer, justices of the peace, and other necessary officers and ministers inand through our said colony, for the better administration of justice and puttmg the laws in executir), n... ♦o administer or cause to be ad- mmistered to them their several and respective oaths for the due and faithful performance of their duties in their several and respective offices, before undertaking the execution of the same; provided nevertheless, and be it further ordained, that no election or appointment of any sheriff or other officer or minister, pursuant to these presents, shall or shall be deemed or construed to alter or abridge the power and right of the sheriff of our said colony, appointed pursuant to the letters patent hereinbefore recited, to summon juries, or to execute and make return of all pro- cesses and the like, of the said Court of the Recorder of Freetown or of any other courts erected or to be erected within that tract or district known by the name of the Peninsula of Sierra Leone, bounded as afore- said: And in case of the death, absence, or removal of our Lieutenant- Governor of our said colony, we do further by these presents authorize and empower our Governor of our said colony, being at the time of such appointment personally resident within our said colony, to nominate or appoint any person resident within our said colony, whom he shall judge the most proper and fitting, to be our Lieutenant-Governor thereof, until our pleasure thereupon shall be known,; provided it shall appear to our said Governor that the administration of the government of our said co- lony, by the member of our said council next in seniority to the chief justice thereof for the time being, may not tend to the good of our ser- vice and the welfare of our said colony: And we do further ordain, will, and establish, that within thirty days after these presents shall arrive withm our said colony of Sierra Leone, our Governor, Lieutenant-Go- vernor, or other Commander-in-Chief of our said colony for the time being, shall can ,- these our lotters patent to be published and proclaimed, and the contents thereof to be publicly known within the said colony, and that from and immediately after such publication the same shall be m full force and effect within our said colony: Provided always, and we do hereby reserve unto ourself, our heirs and successors, full power and authority to revoke, vary, alter, annul, and make void these presents, and SIERRA LEONE — CHARTER OF JUSTICE. 535 'IS every or any clause, matter, or thing herein contained, and to make such new, other, or further ordinances and appointments for tho government of our said colony, and for the administration of justice within the same, as to us, our heirs and successors, in tliat behalf shall seem meet : And we do lastly by these presents, for us, our heirs and successors, direct •na appoint that our Governor of our said colony of Sierra Leone, and hii successors the Governors thereof, during our royal will and pleasure, may and shall have and exercise the several powers and authorities given and granted to them by these presents, together with and superadded to tie several powers and authorities conferred on the Governor of the said colony by the letters patent of bis late Majesty King George the Third, our dearest father, hereinbefore recited ; and that the constitution and Jaws of our said colony of Sierra Leone, and all j^idicial and municipal authorities therein, shall for the present and during our royal will and pleasure, continue such as they were constituted and appointed to be by the said letters patent of his said late Majesty, or under the authority thereof, so far as the possessions heretofore held by the African Com- pany, and also the territories belonging to us, our heirs and successors, on the west coast of Africa, between the twentieth degree of north lati- tude and the twentieth degree of south latitude, being annexed by these presents to our said colony of Sierra Leone, and other changes of cir- cumstances within our said colony, whether consequent upon the same or howsoever accruing, will permit, and save also and except as the same are altered by the. presents. In witness, &c., witness, &c., the 17th day of October. By Writ of Privy Seal. Examined with thn record in the Petty Bag Office in the Court of Chancery, the 22d day of April, 1834. J. BENTALL. ;!} fi ( 53(i ) ii COLONIES IN THE INDIAN SEAS. CEYLON. :f ' «•«•* 1 -f'S ' tit ! 5ll u4l i 1 Ceylon is an island in the East Indies, lying betweer the sixth and tenth degrees of north lutitide^ and U.e eventy-innth and eighty-seeond degrees of e^sJlong" !"l K 'V'f'^""^'^ "' ^^'^ entrance of the Jiay of Ben- gal, by which ,t IS bounded on the north. On t^he nmth- Gulf nf m''^'"'"*"^ ^^'^'^ *^>^ Coramandel coast b^ the uult ot Manaar, a narrow strait full of shoals and im- ofrndi?^ T? r"'V/''?'°"*^^"'" P«'' "^ tl'^ peninsula its who ; .•' 'f"^^^' " .""^'q""! "t different places, but m les Tl, ' ".f''T"'f '.' i^o'^Puted to be about 900 no 2ern J t'""" ' '''"",'*.°^ Jaffnapatam is situated at its nami T,? "''{' '''}^ ^"""^ ?«»'' °^ ^^'^ ^'^^rict of that Tsland". iV"^7"'ee ll^s on the north-eastern part of the «^nn;i, . '''' on Its eastern coast; and Colomba on ien re of Z 'r- i ^^l^'- *^^" ^^P^^«^' ^« "^^^ly in the an el t/j^r "n' '"'"''^ "\ ^^^'^P" ^°™^"^»^t ^^^^'^^les hHlv^f,/ ■ [• 'r • ^^""^'^^ ^'P'^^^^ of tJ^e country is varioni fv ' ir'',"*^''*^ P'°,^""" '« ^^>y considerable, and various travellers have spoken of its beauty in terms of almost extravao-ant nrlm mfS^^r. ti .i.A. simnl,7«VV"'r ^u''' ^v'^^y ^" consequence of a deficient SE/ / f'' ^^^ ''^""***^ «" th^ ^^'^ole is much more thr«fr f " ''"i ^''^ <^«"tinent of India, at least where the sea breezes have room to circulate. The principal o?Cormbr ^""^""^^^^^' Po^"* d« Galle, and the Roads s«; Jfh.f fi"^"'''" *'*^^ ^' indigenous to the island, and it is Ind ft, 1 are annually gathered two crops of oranges, and that almost all the West India fruits, together with CEYLON. 5.37 some that are pcculiur to Ceylon, grow in ubuudancc and come to great perfection. •il HISTORY AND CONSTITUTION. The first knowledge of the existence of this island ap- pears, accof'ing to Arrian, to have been brought into Europe by Nearchus and Onesicritus, who were comman- ders of the fleet that Alexander despatched from the Indus to the Persian Gulf. Still however little was kn^wn of the state of the island till the reign of the Emperor Claudius, when the collector of the Roman customs in the Red Sea having been driven by a storm upon it, he gave such an account of Rome to the Ceylonese monarch that the latter despatched four ambassadors thither. In the latter part of the thirteenth century Ceylon was visited by Marco Polo, who, on his return, published an account of It, which was deemed, in many parts, to be fictitious, till a further acquaintance with the island proved the general accuracy of the statements made by the Venetian traveller. About lialf a century afterwards, Ceylon was visited by Sir John Mandeville, whose account of the place was however not published till 1588. In the year 1505 the island was first visited by the Portuguese under Lorenzo D Almeida, the son of the Viceroy of Goa, who had been sent by his father to intercept some Moorish vessels in passing the Maldives. Even upon their first visit the Portuguese appear to have had address enough to pro- cure a treaty of alliance, by which the Portuguese gua- ranteed to defend the Emperor against all his enemies, while he undertook to pay his new allies an annual tribute of 250,000 pounds of cinnamon. Don Lorenzo erected on the shore of the Bay of Galle a marble pillar, on which were engraven the arms of Portugal. In 1518 Alverenga, another Portuguese commander, sailed to Ceylon with a fleet of nineteen ships, and proceeded to erect a fort. Fordoing this he had the authority of his own sovereign, and he pretended to have the permission of the Emperor of Ceylon. The permission however was denied ; the Singalese attempted to impede the progress of the work, and some of them were killed in the affray. Alvarenga attacked them and compelled them to submit to a treaty in which, among other conditions, it was stipu- lated that the Portuguese should be at liberty to erect a 538 CEYLON. , "' :a;r , "('■•Ml 'I ;j •"•■ ■ 9^' SSI f()rt at Colombo, that the Emperor should pay to Kiiiff 'J^C Dutch ^ii^'f',""^^ 1^^0,000 pouucis of cinnamon, xiie Uuteh, who hud somo time before begun to visit dcUnI"'thr'?- '" ?^l' ^"""^">^ ^^^"^^ i" t« assist nTe- th mfe 5 Kn ?r"''V^''''"V" *^« "^«J candidates to the t rone of Kandy. I rom that time they befjan to possess n/Tir f'"*' •" the count^j, cultfvated tl e Sd! dr vinl^ h! p"f '^'' ""'^ "* ^^'^S succeeded in totally French llZ'^M^TfT "^ ^^^^^^^ '" ^^^g th^ r rencn, under M. de la Haye, made an attempt to esta- Wish commercial relations with the Emperor of Ceylon Hva 'trut^'n. :r °^''-i"g.«t hand a pLer'that (vJ^a the Bav of T • '' ^T""^"'^ .^'^^"^ ^^"^^ to build a fort in the Hay of Inncomalee, assisted them in the work and r"on" d'pT H^'' 7" ^"^J^^^^ *« f-'«' P- 't of^he gar- nson. De la Haye then sailed ^or the Cofamandel coast ven?edTom F'"'"^*'? ""S^"™' "»^'^'^ '^"^^--^ he wa p.^: Tho toorrlf n?^, • ' ^l'' ^'"' ^"^ ^''^P^''^'^^^ by the Dutch, TK n . I °! ^f ^''•P'' '^"^^ ^'''ove the rest into Surat The Dutch adnnral then sailed to the Bay of THncomaiec and made hm^elf master of the fort, fn 178^ " Sh fleet under the command of Sir Edward Hucrhes and some land forces under that of Sir Hector MuSro made themselves masters of Trincomalec. They were ^oon afterguards dispossessed by the French. ThlEn 'lish 1 bodv^of fil! ' " ^°"'l"^'' ^^'^^ ^"^'^y achieved by a body of forces unaer the command of Colonel Stuart The conquered provinces were for a short time subiected o the jurisdictioii of the Presidency of Madras, bu were afterwards transferred to the crown of Great B ita^n, and rendered wholly independent of the East India Con^^any Pfi .T"''''^^^ Frederick North went out in 1798 as the first Governor of the British possessions in the Lsland Ion 1 ^oT^^^"^'^''^" ' ^^' ^^"°^^^«) History of Cey- In 1815 the cruelties of the reigning sovereiffn had alienated the affections of his subfects.^nd compelled the chief men of the country to throw themselves on the British authorities for protection. In addition to 1 is m tn "'l'''.^"' own subjects, the Kin. had barbarously put to death ten inhabitants of the British settlements. CEYLON. 589 who had resorted to a village within the Kandian limits for their usual purposes of traffick, and who, without having committed any crime or even having any imputed to them, were seized and conveyed to prison. They were all mutilated in a most shocking manner. Seven died upon the spot, and the remaining three arrived in Colombo witlv their arms, noses, and ears cut off. T\m act of hor- rible cruelty was no doubt perpetrated by way of retalia- tion for the protection afforded by the British to the King's own subjects who had fled from his desperate and atrocious cruelties. It left however no alternative but a submission which the King was not likely to offer, or an appeal to the sword. The first was deemed utterly hope- less, and the second was resolved on. Although deprived of the expected aid of some troops from India, General Brownrigg, relying as much on the universal hatred felt for the tyrant as on his own means of attack, advanced with the force under his command, amounting to no more than 3000 men, to the overthrow of the Kandian govern- ment. His anticipations of the result were not miscalcu- lated, and without the loss of a single man he obtained possession of the town of Kandy, and of the person and family of the tyrant. (1) On the 2d of March, 1815, a conference was held in the audience-hall of the palace of Kandy, between the Governor on the one part, the Adikars, Dessaves, and other principal chiefs of the Kandian provinces on the other part, on behalf of the people, and in presence of the Mohottales, Coraals, Vidaans, and other subordinate Headmen fi-om the different provinces, and a great con- course of inhabitants. — Governor's Bulletin.— Narr. 66. The convention there agreed on declared that the Raja Sri Wikrenje Raja Sinha, by the habitual violation of the chief and most sacred duties of a sovereign, had forfeited (1) This summary of the cause, the manner, and the result of the very short but important war which put the whole of L,eylon into the posses- sion of England, is drawn from a pamphlet published by Egcrton of Whitehall, and entitled "A Narra- tive of Events that have recently hap- heped in Ceylon, by a gentlem'an re- sident on the spot"." Most of the circumstances described in the Narra- tive, especially that of the mutilation of ten British subjects, are st 'f-d in the Governor's proclamation ana other official documents appended to tha Narrative. This pamphlet is quoted with respect by the author of the His- tory of Ceylon, which was originally published under the assumed name of Philalethes, but which in the copy deposited in the British Mubcum is attributed to I\Ir. R. Fellowes. 540 CEYLON. I in 'HSU it; •turn kin''''tha? it* f"'- '"^ T f "P?.^^^ ^^'^"^ '^'^ office «f vesfed inl ^ ^r>"'«» f the Kandian provinces was vested m the Sovereign of the British Empire, to be exer- Zfn^nf' ^J^,.««--^"T ^"'^ *'^^- acLdited agent , authoiity of the British government, the rights, privilecres the CX.f '''frrf^' '^'^'> -d ^« alfclassef of the people the safety of their persons and property with Jns'dnr^ "^^5 ""^ immunities, according to^ the kws inswutions, and customs established and in force amongst The religion of Boodho, professed by the chiefs and in a^f r ;s"rf '"^T' -^-^^b^^' -d i. 1^:1 tinil"; tected ' "P ''^'^ *^ ^^ maintained and pro' limb'^mLr''"' ""^ ''^'^^'^ *°^''"^'"' '-^"^ ^» mutilation of N^TeTfPn^' %''i^''!' ^'''' prohibited and abolished, excent on Z °lf ''*'' """^ '^ ^ ^^^'"^^ ^^^^ ^^^^"tion a re?n -f of i ''""^" "^T"* °^ *'^^ Governor, made on a report of the agents of the government, in ^^lose pre- sence all criminal trials were to take place. ^ iusSm Hi 'm •' '/''" r^^^ "'\ '^' administration of justice till His Majesty s pleasure should be known and stiJti^^t^'iiSiirliiiJ^^^^^ IptW L*''"T"f ^'^g"^^t^?"s were introduced. (Those re- lating to judicia matters have since been abolished by the Cliarter of Justice.)-See the Charter, post, 544. ^ . jjj;^.f^^.^"t^^e and judicial authority was delegated to ™ts °^ '°"^""^«^°ners, and occasionally to resident respe^tfo^ffn^LIX^^^^^^^^ ^^ pay proper marks of H..f^nf "nV^**'^ P'°^"^^ ""^ "^^ grounds was claimed in lieu ot al former taxes, except in certain loyal districts where only one-fourteenth was levied. ^ tusciicts. The lands of many individuals distinguished for loyalty hiring the rebellion, those belonging to temples, to pub- lic officers of the state, and the Chalias or cinnamon peelers, were exempt from all taxes. The causes of minor importance were heard by the go- CEYLON. 641 vernment agen^ or second commissioner alone ; more im- portant cases by the same persons, assisted by two or more native chiefs ; and capital cases by the Resident, or second commissioner, and similar assistants. A right of appeal from inferior to superior courts, and ultimately to the Governor, was established. — Ency. Metr. PECULIAR OFFICES AMONG THE CEYLONESE. The Singalese have certain established national laws or old customs, according to which most things are deter- mined, where the will of the King does not interpose to make any alteration. The children inherit the landed property, which does not descend exclusively to the eldest son ; but where the right of primogeniture is allowed, the individual is obliged to support the mother and children. No man may marry a woman who has run away from her husband until the husband has married another woman. The children of a freeman by a mother who is a slave, are born slaves, but the children of a slave by a fi'ee woman are free. A thief who cannot make a sevenfold restitution becomes a slave. Old people who run in debt barter their children for the amount, or pawn them as a security for the payment. In a part of Valentyn's work, entitled " Extract uyt de Consideration van de Heer van Rheede over Ceylon," dated in the year 1677, it is said that a ganima, or village, is composed of several hamlets ; a pattu, or district, of several villages ; a corle, or county, of several pattus ; and a dessaveny, or province, of several corles. — Hist. Cevlon, 323, n. ^ A coraal is the overseer or president of a corle or county, who has two, three, or four attacoraals under him, according to the size of the corle and the number of pattus into which it is divided. He has moreover from six to eight lascaryns, pamideas, or messengers, subject to his orders. The attacoraals are to see that these orders are punctually executed. Cariacoranno, or the majoraals, may be denominated the bailiffs of a village. They vary from one or two to six or more, according to the size, culture, and population of the village. It is their business to attend to the pay- ment of the annual imposts, to see that the land is sp>yed V iiil I • SI:**.-. % 542 CEYLON. and the harvest got m at the proper time, and to render a good account to the lord or proprietor of the soil. When the lord visits the village it is their duty to see that proper apartments are prepared for him, that they are hung with white calico, and his stool covered with the same. Thev are also to attend to the supply of his food during his stay. " Lianno is the same as clerk or scribe of the villatre who keeps an account, which he gives to the lord, of ''all the products and dues thereof. Canganeme is an officer who musters the people of the vdlageand calls them together when any work is to be Mananna is a measurer of grain ; when the harvest has Deen got in it is his business to measure out that grain which is a common stock, to the different proprietors. He was also particularly to measure the corn that was due as an impost to the King. Gamhewaja,^ village lascaryn, who at the orders of the Kadan of the village calls the people together, and goes Irom house to house to announce on what day they ai-e to meet. Haindes execute the work that is to be done in a vil- lage, and work by turns for the King or the proprietor. Loohes, porters of all kinds of burdens and bearers of the pa lanqums. These coolies are of the cast or race of tlie velhUas, who sprang up in the time of the Portuguese. Kefore their time there were no coolies among the vellalas, but only among the inferior casts. COURTS. JSm^T'^' ^PPO'nted by the Charter of Justice are- 1 he Supreme Court of *he island of Ceylon." It is to consist of one Chief Justice and two Puisne Judges to be appointed by letters-patent of the island, in pursuance of Warrants from England. The judges to hold office during pleasure.— Ss. 5, 6. Ihree circuits are to be formed, the northern, southern, and eastern.— S. 21. District Courts, consisting of one judge and three as- sessors, are to be established throughout the island. The distnct judges to hold office during pleasure.— Ss. 23, 24. Ihe Supreme Court to be holden at Colombo.— -S. 28. CEYLON. 548 The District Courts to have jurisdiction over all civil matters within the limits of their respective districts, and over all criminal matters, except where the punishment is death, transportation, or banishment, or imprisonment for more than twelve calendar months, or whipping exceeding 100 lashes, or a fine exceeding of 10.- -Ss. 29, 3C. They are also to have the care of persons of unsound mind, s. 31; of matters relating to wills and intestacies, s, 32 ; oi' revenue, s. 33. Their decisions are to be pronounced in open court. —S 35. The Supreme Court is to have an appellate jurisdiction over matters previously decided in the District Courts, and over those matters which the District Courts cannot inquire into. — S. 36. Civil and criminal sessions are to be holden by some one of the judges of the Supreme Court, in each of the circuits into which the island is divided. — S. 37. Prosecutions for criminal offences to be by a public officer,— Ss. 46, 47. Civil and criminal sessions shall be held at Colombo. — S. 52. Questions of law may be reserved at these sessions, and general sessions shall be held at Colombo to decide on them.— Ss. 53, 54. Writs of Habeas Corpus may be issued by the Supreme Court. — S. 57. The judges of the Supreme Court to make general rules and orders. — S. 60. The right to present appeals is limited and regulated by s. 61, and the right of the Crown to admit appeals not coming within such limitations and regulations, is re- served. — S. 62. All laws, &c. now in force in the island, and repugnant to the present charter, abrogated. — S. 65. The charter to come into effect within two months after its arrival on the island. — S. 67. ( 5U ) ' ' Sf'.fnawi .5 •" •J •"• CEYLON CHARTER OF JUSTICE, 1833. WTttiAM the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, &c. to all to wliom these presents shall come, greeting : 1. Whereas his late Majeoty King George the Third, by three several charters and letters-patent under the great seal of the United Kingdom of Great Bnlaiu and Ireland, bearing date respectively at Westminster the 18th day ot April, in the year of our Lord 1801, the 6th day of August, m the year of our Lord 1810, and the 30th day of Ootober in the year of our Lord, 1811, did establish within his said late Majesty's settlements of tho Island of Ceylon and the territories and dependencies thereof, a certai-, court called the Supreme Court of Judicature in the Island of Ceylon, and a certain other court called the High Court of Appeal in the Island of Ceylon, and did make certain other provisions for the due administration of justice in the said settlements, territories and dependencies: And whereas since the day on which the last of the sam several charters and letters-patent bears date, a certain territory in the mteno. of the said Island of Ceylon, called the kingdom of Kandv or the Kandyan provinces of the Island of Ceylon, hath become and now IS subject to his Majesty, whereby the whole Island of Ceylon with Its dependencies has become and now is part of his Majesty's domi- niqns : And whereas it is provided by each and every of the said seve- ral charters and letters-patent, that nothing therein respectively con- tained, or any act which should be done under the authority thereof re- spectively, should extend or be deemed or construed to extend to pre- vent Ins said late Majesty, his heirs and successors, from making such further or other provision for the administration of justice throughout the said settlements and territories in thesaidlslandof Ceylon with their dependencies, at his and their will and pleasure, and as circumstances might require, his late Majesty meaning and intendiii!- fully and abso- lutely, and to all intents and purposes whatsoever, to reserve to himself his heirs and successors, such and .Le same rights and powers in and over the sa'd settlements, territories, and dependencies and eveiy part thereof, and especially touching the administration of justice therein, and all other matters and things in and by the said several charters and letters-patent provided for, as if the said several charters and letters-patent had not l)een made, anything therein contained, or any law, cu torn, usage, matter or thing whatsoever to the contrary in pnywise notwithstanding: And whereas it is expedient to make more CEYLON— CHARTER OF JUSTICE. 545 general and more effectual provision for the administration of justice in the said island and its dependencies: Now know ye, that we upon full consideration of the premises, and of our certain knowledge and mere motion, have thought fit to revoke and annul, and do hereby re- voke and annul each and every of the said charters and letters-patent, such revocation to take effect at and from after the time when (as here. isTand"" ™'"''°°'''^ '*"'' ''"' ''^^'^^' ^'" ^°"'« '"to operation in our said 2. And whereas in the several districts and provinces of the said island there now are several courts appointed to administer justice by he exercise of original jurisdiction to the inhabitants of the said dis- tricts and provinces, known respectively by the names and titles of the Provincial Courts, the Courts of the Sitting Magistrates, the Court of the Judicial Commissioner, the Court of the Judicial Agent, the Courts ot the Agents of Government, the Revenue Courts, and the Court of the Sitting Magistrate of the Mahabadde: And whereas such courts differ among themselves in respect of their constitution, of their rules of procedure, and of the kinds and degrees of the jurisdiction which they exercise within the limits of their respective districts or provinces : Now know ye, that we upon full consideration of the premises have thought fit to direct, ordain, and appoint, that the said Provincial Courts, the said Courts of the Sitting Magistrates, the said Court of the Judicial Commissioner, the said Court of the Judicial Agent, the said Courts of the Agents of Government, the said Revenue Courts, and the said Court of the Sitting Magistrate of the Mahabadde, shall be and the same are hereby respectively abolished, such abolition to take effect at and from aft^r the t:me when (as hereinafter mentioned) this out charter will come into operation in our said island. 3. And whereas the Governor of our said island for the time being, and the said Court of the Judicial Commissioner have hitherto exer- cised an appellate jurisdiction for tiie administration of justice in cer- tain cases arising in the Kandyan provinces of our said islands: And whereas certain courts called the Minor Courts of Appeal, and certain courts called the Minor Courts of Appeal from revenue cases, have hitherto exercised an appellate jurisdiction for the administration of justice m certain cases arising in the maritime provinces of the said island: And whereas the existence of several independent appellate judicatures in the said island tends to introduce uncertainty into the administration of justice there: Now know ye, that we upon full con- sideration of the premises, have thought fit to direct and ordain, and do hereby direct anr" ordain, that the said appellate jurisdictions of the (governor of the said island, and of the said Court of the Judicial Com- rnissioner respectively, shall be and the same are hereby respectively abolished, and that the said Minor Courts of Appeal, and the said N N , I il I Si If*"* 54G CEYLON — CHARTER OF JUSTICE. Minor Courts of Appeal for revenue cases, and such their appellate jurisdiction, shall be and the same are hereby abolished. 4. And to provide for the administration of justice hereafter in our said island, our will and pleasure is, and we do hereby direct, that the entire administration of justice, civil and criminal, therein shall be vested exclusively in the courts erected and constituted by this our charter, and in such other courts as may be holden within the said island under any commission issued or to be issued in pursuance of the statutes in that case made and provided for the trial of offences com- mitted on the seas, or within the jurisdiction of our Lord High Admiral or the commissioners for executing his office, or under any commission issued or to be issued by our Lord High Admiral or by the com- missioners for executing his office for the time being. And it is our pleasure, and we do hereby declare, that it is not and shall not be com- petent to the Governor of our said island, by any law or ordinance to be by him made with the advice of the Legislative Council thereof or otherwise howsoever, to constitute or establish any court for the admi nistration of justice in any case, civil or criminal, save as hereinafter is expressly saved and provided: Provided nevertheless, and we do hereby declare, that nothing herein contained shall extend or be con- strued to extend to prevent any persons from submitting their differ- ences to the arbitration of certain assemblies of the inhabitants of vil- lages known in our said island by the name of Gansabes. 5. And we do hereby grant, direct, ordain, and appoint, that there shall be within the said island of Ceylon one Supreme Court, which shall be called "The Supreme Court of the Island of Ceylon." 6. And we do direct and appoint, that the said Supreme Court of the island of Ceylon shall consist of and be holden by and before one Chief Justice and two Puisne Justices, and that the Chief Justice shall be called and known by ths name and style of "The Chief Justice of the Island of Ceylon;" and that the said Chief Justice and Puisne Jus- tices shall from time to time be nominated and appointed to such their offices by letters-patent, to be issued under the public seal of the said island, in pursuance of warrants to be from time to time issued by us, our heirs and successors, under our or their sign manual, and shall hold such their offices during the pleasure of Us, Our heirs and succes- sors. 7. And we do further direct and appoint, that upon the death, re- signation, sickness, or incapacity of the said Chief Justice, or any of the said Puisne Justices, or in case of the absence of any of them from the said island, or in case of any such suspension from office as herein- after mentioned, of any such Chief Justice or Puisne Justice, it shall and may be lawful to and for the Governor of our said island for the time being, by letters-patents to be by him for that purpose made and CRYLON— CHARTER OV JUSTICE. 547 issued under the public seal of the said island, to nominate and ap- point some fit and proper person or persons to act as and in the place and stead of any such Chief Justice or Puisne Justice so dying or re- signing, or labouring under such sickness or incapacity as aforesaid, or being so absent as aforesaid from the said colony, or being so sus- pended until the vacancy or vacancies so created by any such death, or resignation, or sickness, or incapacity, or absence, or suspension, shall be supplied by a new appointment to be made in manner aforesaid, or until the Chief Justice or Puisne Justice so becoming sick or incapable, or being absent or suspended as aforesaid, shall resume such his office, and enter into the discharge of the duties thereof. 8. And whereas cases may arise in which it may seem necessary to our Governor for the time being of our said island, that a judge of the said court should be suspended from the exercise of his functions therein provisionally until our pleasure can be known, and it is expe- dient that no such act of suspension should take place except upon the most evident necessity and after the most mature deliber Mon; and that in any such event the judge who may be so suspended should receive the most early, complete, and authentic information of the grounds of such proceeding against him ; We do therefore declare, direct, and appoint, that it shall and may be lawful for the Governor of our said island for the time being, by any order or orders to be by him for that purpose made and issued under the public seal of the said island, with the advice and consent of the Executive Council of the said island, or the major part of them, upon proof of the misconduct or incapacity of any such Chief Justice or Puisne Justice as aforesaid, but not otherwise, to suspend him from such his office and from the discharge of the duties thereof; provided that in every such case the said Governor shall immediately report for our information, through one of our prin- cipal Secretaries of State, the grounds and causes of such suspension; and provided also, that a full statement be entered on the minutes of the said Executive Council of the grounds of such proceeding, and of the evidence upon which the same may be founded, a full copy of which minutes and evidence shall by such Governor be transmitted to such judge, together with the order suspending him from such his office. 9. And we do hereby reserve to Us, Our heirs and successors, with the advice of Our or their Privy Council, full power and authority to confirm or to disallow any such suspension from office as aforesaid of any such Chief Justice or Puisne Justice. 10. And We do hereby give and grant to Our said Chief Justice for the time being rank and precedence above and before all our subjects whomsoever within the said island and its dependencies, excepting the Governor or Lieutenant-Governor for the time being thereof, and ex- N N 2 51-8 CEYtON—CHARTER OF JUSTICE. !:;f. iwnM : ; »^' cepting such persons as by law or usapo in England take place before our Chief Justice of oiu Court of King's Bench. 11. Anfl w. Jo hereby give and grant to the said Puisne ^Mstices f( ' the time being rank and precedence above and before all our subjects whomsoever within the said island and its dependencies, excepting the Governor or Lieutenant-Governor for the time being thereof, the said Chief Justice, and tho uillcer for tlie time being commanding o ir forces in the said island and its dependencies, and excepting such persons as by law or usage in England take place before our Puisne Justices of our Court of King's Bench. 12. And we do hereby declare, that the said Puisne Justices shall take rank and precedence between themselves according to the priority of their appointments respectively. 13. And we do further grant, direct, ordain, and appoint, that the said Supreme Court of the island of Ceylon shall have and use, as occa- sion may require, a seal bearing a devi e and imjiression of our royal arms, with an exergue or label surrounding the same, with this inscrip- tion, "The Seal of the Supreme Court of the Island of Ceylon;" and that the said seal shall be delivered to and shall be kept in the custody of the said. Chief Justice, with full liberty to deliver the same to any Puisne Justice of the said court for any temporary purpose ; and in case of the vacancy of or suspension from the office of Chief Justice, the same shall be delivered over to and kept in the custody of such person as shall be appointed by the said Governor of the said island to act as and in the place and stead of the said Chief Justice. 14. And we do further direct and appoint, that no such Chief Justice or Puisne Justice as aforesaid shall be capable of accepting, tak ng, or performing any other office, place of profit or emolument within the said island, on pain that the acceptance of such other office as aforesaid shall be ipso facto an avoidance of such his office of Chief Justice or Puisne Justice, as the case may be, and the salary thereof shall cease accordingly from the time of such acceptance of any other office or place: Provided nevertheless, that no such Chief Justice or Puisne Jus- tice shall be rendered incapable of holding his office, or shall forfeit his salary by accepting the office of Judge of the Court of Vice-Admiralty in the said island, or of commissioner for the trial and adjudication of prize causes and other maritime questions arising in India. 15. And we do hereby constitute and appoint our trusty and well- beloved Sir Charles Marshall, Knight, to be the first Chief Justice of the said Supreme Court, and our trusty and well-beloved William Rough, Esquire, Serjeant-at-law, to be the senior Puisne Justice of the said Snpreme Court, and our trusty and well-beloved William Norris, Esquire, to be the second Puisne Justice of the said Supreme Court. 16. And we do hereby direct, ordain, appoint and declare, that there CEVLON— CHARTER OF Jl sTICE. im shall be attached and belong to the said . .art an officer to be styled t2ir' r' ^"'"^ °' ^^'^°^'^ °' ''' ''''' --'' -'^ -ch and . rn.ny other ofhcer, as to our Chief Justice of the said court for ihe nes which are granted and committed to U.e said court by thest our : TaTcr '^"'':' "^^^'''^'^"' that no office shallVeVrerr: hal first !,T . '^" ''"' ' ""'■ °'' '^' ''''^ ■■^''^"^ fo' 'he time beiu. .hall fir t s,g„,fy h.s approbation thereof to the said Chief Just ir, for the time be ng m wrUmg under the hand of such Governor. 17. And we do further di.vrt and declare our will to be thu nil th^ omces by us, or by the Governor of tho said island on our behalf l.v cornm,ss,ons to be for that purpose issued under the publ sea f t e tached to or hold any office in the said court, as clerk or private secre tlir.'';j^^^ ''' ""^ ^^'"^ -"cm such person may so serve in any' J^: .t"« ""' ^^ ^""''" '^'"''' ^'^'^ «PPO">'. that the several officers of the said Supreme Court shall hold their respective offices duZTthe pleasure of us, our heirs and successors, .„d sLu be sub t to be su all such persons, bemg of good repute, as shall upon examination byor^ or more of the said Justices of the said Supreme Court appear to L of competent knowledge and ability : Provided always, that whenever the sazd Supreme Court shall refuse to admit and enfol any person a pi .ngtobeadmmed and ..rolled as an advocate or proctor in the said ^.preme Court, the judges of the said court shall in open court ass.Vn and declare the reasons of refusal. ^ J'^'A''^ ? '^^ f"'' '"^ ^''^'''' '^^' "° P^^«°" whatsoever not so admitted and enrolled as aforesaid, shall be allowed to appear plead or act m the said Supreme Court, for or on behalf of any othrp'erson being a suitor in the said court. ^ 21. And we do further declare our pleasure to be, and do hereby ordam and appoint, that for the purpose of the administration of ju tTce under h,s our charter, the said island of Ceylon shall be divided 1 the district of Colombo, and three circuits to be called respectively he th^h" ;7'V''^ '°'^""" ^^^^"•'' ^"^ the Eastern ctuf and hat the said Northern Circuit shall comprise the district of Jaffna to.e- her with the several districts which are parcel of the maritime p 'v Lees of the said island, and which lie to the westward of the Kaniyan p o IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Ifi^ III ^^^^= Hi 122. Hill • I.I 11.25 2.5 ■^ li 12.2 s "^ IIM WUu ill 1.8 U IIIIII.6 V^^' / 1% *> o ■^ I 1 V I *t}mt ' IT 550 CKYLON — CHARTER OF JUSTICE. vinces of the said isknd, between the said district of Jaffoa and the district of Colombo; and that the said Southern Circuit shall comprise the district of the Mahagampattoo, and all the districts parcel of the maritime provinces of the said island lying to the westward and south- ward of the Kandyan provinces of the said island, between the district of the Mahagampattoo and the district of Colombo; and that the said Eastern Circuit shall comprise all the Kandyan provinces of the said island, end all the districts parcel of the maritime provinces of the said island lying to the eastward of the Kandyan provinces of the said island, between the district of Jaffna and the district of the Mahagam- pattoo: Provided nevertheless, that it shall be lawful for the Governor for the time being of our said island, on any application to him for that purpose made in writing, under the hands of the judges for the time being of the said Supreme Court or the major part of them, but not otherwise, by any proclamation or proclamations to be from time to time for that purpose issued, to alter as occasion may require the before mentioned division of the said island as aforesaid, and to esta- blish any other division or divisions thereof for that purpose which may appear to the said Governor and the whole or the major part of such judges, more C9nducive to the public convenience and the effective administration of justice in the said island. 22. And we do hereby authorize and require the Governor for the time being of our said island, with the concurrence of the judges of the said Supreme Court, or the major part of them, but not otherwise, by any proclamation or proclamations to be by him for that purpose from time to time issued, to subdivide into districts each of the circuits into which the said island, exclusive of the district of Comlombo, is or shall be in any manner aforesaid divided ; and from time to time with the like concurrence, but not otherwise, to revoke, alter, and amend any such proclamation or proclamations, as occasion may require, and which appointment of the said circuits and districts shall be made in such a manner as may best consist with and promote the prompt and effectual administration of justice therein as hereinafter mentioned : Provided always, that until the said circuits shall in manner aforesaid be divided into districts in pursuance of this our charter, the existing divisions of our said island comprised within the respective limits of the said circuits respectively, shall for the purposes hereof be deemed and taken to be such districts as aforesaid. 23. And we do further grant, direct, and appoint, that within each and every district of the said island there shall be one court, to be called the District Court of such district; and that every such District Court shall he holden by and before one judge, to be called the Dis- trict Judge, and three assessors, and that every such District Judge shall be appointed to such his office by letters-patent, to be for that purpose issued under the public seal of the said island, by the Cover- CEYLON — CHARTER OF JUSTICE. 551 nor thereof for the time being, in pursuance of warrants to be for that purpose addressed to him by us, our heirs and successors; provided that such Governor may and he is hereby authorized and required to issue such letters-patent as aforesaid provisionally and subject to the ftture signiBcation of the pleasure of us, our heirs and successors, and without any such warrant or warrants as aforesaid, on any occasion or occasions on which it may be necessary to make any such appointment or appointments, before the pleasure of us, our heirs and successors can be known. 24. And we do hereby declare, that the said district judges respec- tively shall hold such their offices during the pleasure of us, our heirs and successors. 25. And we do further direct and appoint, that the before mentioned assessors shall be selected from amongst our subjects inhabiting the said island, whether natives thereof or otherwise, and being respectable men of the full age of twenty-one years and upwards, and possessing suoh qualifications as shall from time to time be determined by any rules or orders of court to be made in the manner hereafter mentioned, and not having been convicted of any infamous crime, nor labouring under any such bodily or mental incapacity as would render them unfit for the discharge of that office. 26. And we do hereby reserve to ourselves, our heirs and successors, the right of appointing in each of the said District Courts one person to act as a permanent assessor, but in respect of all assessors until any such appointment shall be made, and after any such appointment shall be made in respect of all assessors not so appointed, it is our pleasure, and we do hereby direct and declare, that they shall be selected, sum- moned, and required to serve in the said office, in such manner as shall be provided by such rules and orders of court as are hereinbefore particularly mentioned. 27. And we do hereby further direct, that the ministerial and other subordinate officers of the said District Courts respectively shall re- spectively be appointed to and shall hold such their offices therein in such and the like manner in every respect as is hereinbefore provided with regard to the ministerial and other officers of the said Supreme Court; and that the admission and enrolment of persons to appear to plead or act in any of the said District Courts as advocates or proctors, shall be regulated and provided for by such general rules and orders of court as are hereinafter mentioned. 28. And we do further direct and appoint, that the said Supreme Court sh?.ll be holden at Colombo in the said island, excepting for the purpose of such circuits as are hereinafter mentioned, and that every such District Court as aforesaid shall be holden at such convenient place within every such district as the Governor for the time of our said island shall from time to time for that purpose appoint by any J ,. 552 CEYLON — CHARTER OF JUSTICE. ppoclamatlon or proclamations to be by liim in manner aforesaid issued for such division as aforesaid of the said island into districts. 29. And we do further grant, direct, and appoint, that each of the said District Courts shall be a Court of CivilJurisdiction, and shall have cognizance of and full power to hear and determine all pleas, suus, and actions in which the party or parties defendant shall be resi- dent within the district h which any such suit or action shall be brought, or in which the act, matter, or thing in respect of which any suit or action shall be brought, shall have been done or performed withm such district: Provided nevertheless, that no such District Court as aforesaid shall be competent to hold jurisdiction of, or to hear, or to determine any cause, suit, or action, wherein the judge of such court shall himself be a party, plaintiff, or defen'lant; but that every cause, suit, or action, which according to the provisions aforesaid would have been cognizable in any District Court, if the judge of such court had not been a party thereto, shall in that case be cognizable in the court of any district immediately adjoining. 30. And we do further grant, direct, and appoint, that each of the said District Courts shall be a Court of Criminal Jurisdiction, and shall have full power and authority to inquire of all crimes and of- fences committed wholly or in part within the district to which such court may belong, and to hear, try, and determine all prosecutions which shall be commenced against any person or persons for or in re- spect of any such crimes or offences, or alleged crimes or offences : Provided always, that such criminal jurisdiction as aforesaid shall not extend to any case in which the person or persons accused shall be charged with any crime, which, according to any law now or hereafter to be in force within the said island, shall be punishable with death, or transportation, or banishment, or imprisonment for more than twelve calendar months, or by whippinei exceeding 100 lashes, or by fine ex- ceeding £lO. 31. And we do further grant, direct, and appoint, that each of the said District Courts shall have the care and custody of the persons and estates of all idiots, lunatics, and others of insane or nonsane mind resident within such districts respectively, with full power to appoint guardians and curators of all such persons and their estates, and to take order for the maintenance of such persons, and the proper manage- ment of their estates, and to take proper securities for such management from such guardians and curators, and to call them to account, and to charge them with any balance which may be due to any such persons aforesaid, or to their estrues, and to enforce the payment thereof, and to take order for the secure investment of any such balances, and such guardians and curators from time to time to remove and replace as occa- sion may require. CEYLON— CHAIITER OP JUSTICE. 653 32. And we do further give and grant to the said Distritt Courts re- spectively, in their said respective districts, full power and authority to appoint administrators of the estates and effects of any persons dying within such respective districts intestate, or who may not have by any last will and testament appointed any executor or trustee for the admi- nistration or execution thereof, and like power and authority to inquire into and determine upon the validity of any document or documents adduced before them as and for the last will and testament of any person who may have died within such districts respectively, and to record the same, and to grant probate thereof, with like power and authority to appoint administrators for the administration or execution of the trusts of any such last will and testament as aforesaid, in cases where the executors or trustees thereby appointed shall not appear and take out probate thereof, or having appeared and taken out such probate, shall by death or otherwise become incapable to carry any such trusts fully into execution. An' -ve do further authorize and empower the said District Courts in thei. said respective districts to take proper secu- rities from all executors and administrators of the last wills and testa- ments of any deceased persons, or of the estates and effects of any persons who may have died intestate, for the faithful performance of such trusts, and for the.prori accounting to such courts respectively for what may come to their liands, or be by them expended in the execution thereof, with like power and authority to call all such execu- tors and administrators to account, and to charge them with any ba- lances which may be due to the estates of any such deceased persons, , and to enrorce the payment thereof, and to take order for the secure investment of any such balances, and such executors and administrators from time to time to remove an"^ replace as occasion may require. 33. And whereas doubts might arise whether by virtue of the provi- sions aforesaid, and without an express authority in that behalf, the said District Courts would be competent to entertain suits therein brought for the protection of our revenue, and for the punishment of offences committed against the revenue laws of our said island : Now therefore, for the removal of such doubts, we do hereby expressly de- clare, that all causes affecting our revenue arising within our said island, and all prosecutions for the punishment of offences therein com- mitted against the revenue laws thereof, shall be cognizable within the said District Courts respectively in such and the same menner as any other suits and prosecutions; saving nevertheless and reserving to all Courts of Vice-Admiralty established or to be established within our said island, all such rights, powers, jurisdictions, and authority as are by law vested in them, as fully as if this our charter had not been made : Provided nevertheless, that no such prosecution for any offence com- mitted against the revenue laws shall be cognizable within any such 55i CEYLON—CHARTER OF JUSTICE. District Court, in cases where the punishment may be of greater degree or amount than such District Court can, under the provisions aforesaid, award upon prosecutions for any other offence. 34. And we do further grant and declare, that the several jurisdic- tions so vested as aforesaid in the said District Courts, is and shall be an exclusive jurisdiction, and shall not on any plea or pretext whatso- ever be assumed or exercised by any other court, tribunal, or judge withm our said island, save and except in so far as cognizance of the same suits, causes, actions, prosecutions, matters and things, is herein- after expressly given by way of appeal to the Supreme Court aforesaid or to the respective judges thereof, and also save and except in so far as an original jurisdiction in certain suits, causes, actions, prosecutions, matters and things, is hereinafter vested in the said Supreme Court, or in the respective judges thereof, and also save and except in as far as respects the jurisdiction of the Court of Vice-Admiralty in the said island. 85. And we do further direct and appoint, that every final sentence or judgment of the said District Courts respectively, and that every interlocutory order of the said courts having the effect of a final sen- tence or judgment, and that every order of any such court having the effect of postponing the final decision of any cause or prosecution there pending, and any other order which to the judge of any such court may appea. of adequate importance; shall by such judge be pronounced in open court, and that such Judge shall in all such cases state, in the presence and hearing of the assessors before mentioned, what are the questions of law aid of fact which have arisen for adjudication, and which are to be decided upon any such occasion, together with his opi- nion upon every su:h question, with the grounds and reasons of every such opinion, and that every assessor shall also in open court, and in the presence and hearing of the judge and the other assessors, declare his opinion and deliver his vote upon each and every question which the judge shall have previously declared to have arisen for adjudication whether such questions shall relate to any ater of law or to any matter of fact: Provided nevertheless, that in oase of any difference of opinion between any such judge and the majority or the whole of such assessors upon any question of law or of fact depending before any such District Court, t.lie opinion of such judge shall prevail, and shall be taken as the sentence, judgment or order of the whole court; but in every such case a record shall be made and preserved among the re- cords of the saiH court of the questions declared by the judge to have arisen for adjudication, and of the vote of such judge and of every such assessor upon each such question. 36. And we do hereby grant, declare, direct, and appoint, that the Su- preme Court of the island of Ceylon shall be a Court of Appellate juris- CEYLON — CHARTER OF JUSTICE. 655 diction for the correction of all errors in fact or in law which shall be com- mitted by the said respective District Courts, and shall have sole and exclusive cognizance by way of appeal of all causes, suits, actions, pro- secutions, matters and things, of which such District Courts may, in pursuance of the provisions of this our charter, or any of them, take cognizance by way of original jurisdiction. And we do further grant to the said Supreme Court power, jurisdiction and authority to hold an original jurisdiction for inquiring of all crimes and offences committed throughout the said island, and for the hearing, trying and determining all prosecutions which shall be commenced against any person or per- sons for or in respect of any such crimes or offences, or alleged crimes or offences. 87. And to provide for the due execution of the powers and autho- rities and jurisdictions so vested as aforesaid in the said Supreme Court, it is our further pleasure, and we do direct, ordain and appoint, that civil and criminal sessions of the said Supreme Court shall be holden by some one of the judges thereof in each of the circuits into which our said island is or shall be so divided as aforesaid. 38. And we do further direct and appoint, that such sessions as aforesaid of vhe said Supreme Court shall be holden twice in each year within the northern, southern and eastern circuits of the said island re- spectively hereinbefore described or referred to, at such places within such respective circuits, and at such particular times in each year as the Governor for the time being of our said island shall, after previous con- sultation with the judges of the said Supreme Court, by proclamations to be by him from time to time for that purpose issued, direct and ap- point: Provided always, that the times and places for holding such civil and criminal sessions of the said Supreme C . ' on such circuits shall be so arranged as that all the judges of the said Supreme Court shall never at the same tiff j be absent from Colombo, and that all such judges shall be resident at the same time at Colombo not less than one month twice in each year. And we do direct and appoint, that the Chief Justice of the said court shall first choose the circuit on which he will proceed for the purposes aforesaid, and that the second choice shall be made by the senior Puisne Judge for the time being. 39. And we do further direct, ordain and appoint, that at every civil sessions of the Supreme Court to be holden on any such circuit as aforesaid, three assessors shall be associated with the judge, and that every criminal sessions of the Supreme Court to be holden on any such circuit, shall be holden before such judge and a jury of thirteen men, which assessors and jurors shall be selected, summoned and required to appear and serve in such manner and form as shall be provided by such general rules and orders of court as hereinafter mentioned. 40. And we do will, ordain and appoint, that within each and every 556 Jf>». •f'l m lifisss T t CEYLON— CHARTER OF JUSTICE. of the said circuits respectively all and every the appellate powers, jurisdictions and authorities hereby vested in the said Supreme Court shall be exercised by the judge for the time being of such circuit, and the assessors so to be associated with him as aforesaid ; and that within each and every of the said circuits respectively, all and every the ori- ginal powers, jurisdictions and authorities hereby vested in the said Su- preme Court shall be exercised by the judge for the time being of such circuit, who, upon the trial of any crimes made cognizable by the said Supreme Court by way of such original jurisdiction as aforesaid, shall be associated with such jurors as aforesaid. 4!. And we do further direct and appoint, that at every civil sessions of the said Supreme Court so to be holden as aforesaid on every such circuit, the said court shall proceed to hear and determine all appeals which may be then pending from any sentence, judgment, decree or order of any District Court within the limits of such circuit, and to affirm, reverse, correct, alter and vary every such sentence, judgment, decree or order, according to law, and, if necessary, to remand to the District Court for a further hearing, or for the admission of any further evidence, any cause, suit or action in which any such appeal as afore- said shall have been brought; and upon hearing every such appeal it shall also be competent to the said Supreme Court to receive and admit, or to exclude and reject, new evidence touching the matters at ' issue in any such original cause, suit, or action, as justice may require. 42. And we do further direct and appoint, that the Supreme Court aforesaid at every civil sessions to be holden on any such circuit as aforesaid, shall have full power and authority to grant and issue man- dates, in the nature of writs of mandtimus, procedendo, and prohibition, against any District Court within the limits of such circuit, and to make order for the transfer of any cause, suit or action depending in any one District Court in any such circuit to any other District Court within the same circuit, if it shall be made to appear to the satisfaction of the said Supreme Court at any such civil sessions as aforesaid, that there is any sufficient caus^ or reason to conclude that in such particular cause, suitor action, justice would not probably be done in the District Court in which the same had so been commenced ; and in every such case the District Court to which any such cause, suit or action shall be so trans- ferred, shall take cognizance thereof, and have power and jurisdiction for the hearing, trial and decision of the same, as fully and effectually to all intents and purposes as the District Court in which the same was originally brought could or might have had. 43, And we do further direct, declare and appoint, that the judge of the Supreme Court holding any such civil sessions thereof as aforesaid on any such circuit, shall in open court state and declare, in the pre- sents and hearing of the assessors before mentioned, what are the H ; CEYLON— CHARTER OF JUSTICE. A57 ame was questions of law and of fact urising for adjudication upon every appeal brought before the said Supreme Court at such sessions, and which are then to be decided, and shall then pronounce his opinion upon every such question, with the grounds and reasons of every such opinion; and that every such assessor shall thereupon also in open court, and in the presence and hearing of such judge and the other assessors, declare Ins opinion and deliver his vote upon each and every question which the judge shall have previously declared to have arisen for adjudication, whether such question shall relate to any matter of law or to any matter of fact; and in case of any difference of opinion between any such judge and the majority or the whole of such assessors, upon any ques- tion of law or of fact depending upon such appeal, the opinion of such judge shall prevail, and shall be taken as the sentence, judgment or order of the whole court; but in every such case a record shall be made and preserved among the records of the said Supreme Court of the questions declared by the judge to have arisen for adjudication, and of the vote of such judge and of every such assessor upon every such ques- tion. 44. And we do further direct, ordain and appoint, that at every crimmal sessions of the said Supreme Court to be holden on any such circuit as aforesaid, such court shall proceed to hear and determine all appeals which may be then depending from any sentence or judgment pronounced by any District Court within the limits of any such circuit in any criminal prosecution, and to affirm, reverse, correct, alter and vary every such sentence and judgment according to law: and upon hearing every such appeal it shall also be competent to the said Su- preme Court to receive and admit, or to exclude and reject, new evi- dence touching the matters at issue in any such original prosecution as justice may require; and it shall also be lawful for the said Supreme Court at any such criminal sessions as aforesaid, to make order for the transfer of any prosecution depending in any one District Court in such circuit to any other District Court within the same circuit, if it shall be made to appear to the satisfaction of the said Supreme Court at any such criminal sessions as aforesaid, that there is any sufficient cause or reason to conclude that in such particular prosecution justice would not probably be done in the District Court in which the same had been so commenced ; and in every such case the District Court to which any such prosecution shall be so transferred shall take cognizance thereof> and shall have power and jurisdiction for the hearing, trial and decision of the same, as fully and effectually to all intents and purposes as the District Court in which U»e same was originally brought could or might have had. 45. And we do further declare and ordain, that notwithstanding t right of appeal hereby given from the judgments and sentences of the 558 CRYLON — CMAUTEn OF JUSTICK. L' 1 ill 55 Ijf- . ^1 1— •* i •» .M • i 1' r; :■ ;■ ;!•- K i'''l1ll, i "1 •», ftti k ■ - ■;.5' «sa; ■ Maid Dialricl Courli upon sucii criminal prosecutions as aforenaid, no •uch appeal shall have the effect of staying the execution of any sen- tence or judgment pronounced by any such District Court upon any prosecution, unless the judge of such District Court shall in the exercise of his discretion see fit to muko order for the stay of any such execution pending such appeal. 46. And we do further direct, ordain and appoint, that at every cri- minal sessions of the said Supreme Ccurt so to be holden as aforesaid on every such circuit, the said Supreme Court shall inquire of all crimes and offences committed within the limits of any such circuit, for the trial of which such original jurisdiction as aforesaid is by this our char- ter vested in the said Supreme Court, and which the King's Advocate or Deputy King's Advocate shall elect to prosecute befo-e such Supreme Court, and shall hear, try and determine all prosecutions which shall be commenced by the said King's Advocate or Deputy King's Advocate against any person or persons for or in respect of any such crimes or offences, or alleged crimes or offences. 47. And we do further direct and ordain, that all crimes and offences cognizable before any of the courts constituted by these presents, or de- riving authoiity from the same, shall be prosecuted j and that all fines, penalties and forfeitures recoverable therein to our use, shall be .sued for and recovered in the name of our Advocate Fiscal of our said island, and by him or by some Deputy Advocate Fiscal,(l) by an information to be exhibited without the previous finding of any inquest by any grand jury or otherwise : Provided nevertheless, that it shall be compe- tent to the said Supreme Court, by such rules and orders of court as after mentioned, to make any other and more convenient provision for the prosecuting before the said District Courts breaches of the peace, petty assaults and other minor offences of the like nature. 48. And we do further direct and ordain, that all questions of fact upon which issue shall be joined at any such criminal sessions as afore- said of the said Supreme Court, on any such circuit as aforesaid, shall be decided by such jury of thirteen men as aforesaid, and that the ver- dict of such jury shall be pronounced in open court by the mouth of the foreman; and that if such jury shall not agree upon their verdict, then the verdict of the major part of such jury shall be received and taken as the verdict of the jury collectively. (1) Though the terms "Advocate Fiscal" and " Deputy Advocate Fis- cal" are used here, LordGoderich in his Despatch, dated 23d March, 1833, accompanying the charter, and ad- dressed to Sir R. J. Wilmot Horton, the Governor, declares the objections that exist to these titles, and ob- serves, that " the titles of those offi- cers are altered by the charter" to the King's Advocate and Deputy King's Advocate. The use of the former titles in this place seems there- fore to be an accidental error. CEYLON— CHARTER OP JIJgTICR. 559 I crimes or 49. And we do further direct and ordain, that all queitions of law which ihall arise for adjudication at .ny such criminal sessions as aforesaid of the said Supreme Court ia any such circuit as aforesaid, shall be decided by the judge presiding at such sessions, who shall pro- nounce his judgment thereupon in open court, and assign the grounds and reasons of such judgment; saving nevertheless to every such judge the right of reserving such questions for the decision of the judges of the said Supreme Court collectively at their general sessions, in manner hereinafter mentioned. 50. And w#do further appoint, declare and direct, that in every case where any person shall be adjudged to die by any sentence of the Supreme Court of our said island at any such criminal sessions as afore- said, the execution of such sentence shall be respited until the case of such person shall have been reported by the Chief Judge or Puisne Justice who shall have presided at such trial to the Governor of the said island for the time being, which report shall be made as soon after the passing of such sentence as conveniently may be. 51. And wo do further appoint, declare, and direct, that the judge on any such circuh as aforesaid, holding the said criminal sessions of the said Supreme Court, shall and may issue his mandate under liis hand, and directed to all and every the fiscals or other keepers of prisous within the limits of his circuit, to certify to the said judge the several persons then in their or any of their custody, committed for and charged with any crimes or offences whatsoever; and the said fiscals or other keepers of prisons shall and are hereby required to make, certify, and transmit due returns to such mandate, by specifying in a calendar or list, to be annexed to such mandate respectively, the time and times when all and every of the said persons so in their custody was or were committed, and by whose authority particularly, and on what charge or charges, crime or crimes respectively, in writing; and to the said list or calendar shall also be annexed such information or informations, upon oath, as may have been taken against them or any of them, and be then remaining in the hands of the said fiscals or keepers of prisons, or true copies thereof attested by the said fiscals or keepers of prisons re- spectively; and if ueed be, according to the tenor and exigence of such mandate, such fiscal or keepers of prisons shall bring the said persons so in their custody, or any of them, before the said judge, wheresoever the said judge shall then be holding the criminal sessions of the said Supreme Court, together with such witness or witnesses whose name or names shall appear to be written or indorsed on the respective commit- ments, by virtue of which such prisoners or prisoner were or was de- livered into their custody respectively, in order that such prisoners or prisoner may be dealt with according to law : Provided always, that wherever any party or parties shall, after the making out of any such 560 CEVt.ON— CIIAIITEB OP JUSTICE. calendur or list, and white such judge shall be holding the criminal set- •ions of the said Supreme Court in the town or place wherein such calender or list was delivered, be apprehended or committed on any criminal charge, it shall and may be lawful for the officer of such Su- preme Court to insert the name or names of such person or persons in such calendar or list. 52. And we do further direct, declare, and appoint, that any judge of the Supreme Court remaining at Colombo, shall within the limits of the district of Colombo exerciie the same jurisdiction, and hold such and the same civil and criminal sessions, as the said judges of the Su- preme Court are by these presents directed, appointed, and ordained to exercise and to hold on their respective circuits within the limits of their respective circuits. 53. And we do further ordain and appoint, that whenever any ques- tion of law, pleading, evidence, or practice, shall arise for adjudication at any civil or criminal sessions of the said Supreme Court, at any such . circuit as aforesaid, or within the said district of Colombo, which shall appear to the judge presiding at such sessions to be a questio of doubt and difficulty, it shall be lawful for such judge to reserve such question of law, pleading, evidence, or practice, for the decision of the judges of the said Supreme Court collectively, and to report any question so re- served to ihe said judges at some general sessions of the said Supreme Court to be held for that purpose as hereinafter mentioned. 54. And we do further direct and appoint, that the judges of the said Supreme CJourt shall from time to time, as occasion may require, col- lectively hold a general sessions at Colombo to hear and inquire oi'any question of law, pleading, evidence, or practice so reserved as aforesaid, and to decide the same according to law. 55. And we further authorize and require the respective judges of the said Supreme Court on such circuits as aforesaid, and at the sessions so to be holden for the district of Colombo, to inspect and examine the records of the different District Courts; and if it shall appear that con- tradictory or inconsistent decisions have been given by different District Courts, or by the same District Court upon different occasions, upon any matters of law, evidence, pleading, or practice, then and in every such case the said judges of the Supreme Court shall report to the judges of the Supreme Court at Colombo, at such general sessions as aforesaid, any such contradictions or inconsistencies; and the said judges of the Supreme Court shall, after due consideration of the mat- ters so brought before them, prepare the draft of such a declaratory law upon any matter of law or evidence in respect of which such contra- dictory or inconsistent decisions shall have been given, as the occasion shall appear to them to require, and shall transmit such draft under the seal of the said court to the Governor for the time bein of our said CEYLON— ClfARTKR OP JVSTICB. Ml island, who shall thereupon lay the draft of ouch declaratory law hefore the Le[ ' jve Council of the aaid island for their consid*;ration. 56. And we further direct and ordain, that the laid Judges of the Supreme Court shall, in pursuance of the powers hereinafter vested in them, after due consideration of any reports so to be made as aforesaid by any such Judge, of any such contradiction or inconsistency as afore- said, in any matter of pleading or practice, make or establish such general rules and orders of court for the removal of any doubts respect- ing any such matters, as the occasion shall appear to them to require. 57. And we do further ordain aad appoint, that the said Supreme Court, or any Judge thereof, at any sessions so to be holden as aforesaid on any such circuit as aforesaid, or in the district of Colombo, or at any general sessions of the Judges of the said Court collectively, shall be and are hereby authorized to grant and issue mandates in the nature of writs of habeas corpus, and to grant or refuse such mandates, to bring up the body of any person who shall be imprisoned within any part of the •aid island or its dependencies, and to discharge or remand any person so brought up, or otherwise deal with such person acct rding to law. 58. And we do further direct and appoint, that the said Supreme Court, or any judge thereof, at any sessions so to be holden on any such circuit as aforesaid, or in the district of Colombo, or at any general sessions of the said court collectively, shall be and they and he are and is hereby authorized to grant and issue injunctions to prevent any irre- mediable mischief which might ensue before the party making applica- tion for such injunction could prevent the same, by bringing an action in Rny District Court : Provided always, that it shall not be lawful for the said Supreme Court, nor for any Judge thereof, in any case to grant any injunction to prevent any person from suing or prosecuting a suit in any District Court, or to prevent any party to any suit in any Dis- trict Court from appealing or prosecuting an appeal to any Court of Appeal, or to prevent any party to any suit in any Court of Original Jurisdiction, or in any Court of Appeal, from insistirjupon any ground of action, defence, or appeal. 59. And whereas it may be expedient that the Judges of the said Supreme Court at Colombo, previously to the commencement of any such circuits as aforesaid, should be enabled to inspect and examine the records of the said District Courts in cases upon which appeals may have been entered ; and it may also be convenient that, with the consent of the litigant parties, the hearing of such appeals should take place before the judges of the said court collectively at their general sessions at Colombo, and not at such circuits as aforesaid ; and it may also be convenient, that in certain cases the Judges of the said Supreme Court o o 1l •ait iX'""' WW is n! 5619 CEYLON — CHARTER OF JUSTICE. t^ collectively, at such general sessions, should be authorized to decide in a summary way, and without further argument, questions arising upon any such appeals; we do therefore iurtlier will, direct, ordain, and ap- point, that it shall be lawful lor the Judges of the said Supreme Court, by such general rules an.l ciders as hereinafter mentioned, to requik-e the sai-i District Courts to transmit to them at Colombo the records of such District Courts in any cases upon which appeals may have been entered, and we do authorize and empower the Judges of the said Su- preme Court collectively, at any such geceral sessions as aforesaid, with the consent of all the litigant parties, but not otherwise, (save ashereiu- after provided in cases appealed to us in our Privy Council.) to hear any such appeals, or to decide the same, or any particular question or questions arising thereupon, in a summary way and without further argument, and to rsmit any such records, with such their final decision thereupon, to such District Courts, to be by them carried into execu- tion. 60. And wheveas, for carrying into effect the various provisions of this present charter, and for the more prompt and effectual administra- tion of justice in our said island, it is necessary that regulations should be made respecting the course and manner of proceeding to be observed and followed in all suits, actions, and criminal prosecutions, and other proceedings whatsoever, to be brought, commenced, had, or taken within the said District Courts and the said Supreme Courts respec- tively, which regulations cannot be properly made except by the Judges of the said Suprem Court ; we do therefore hereby fuither declare our pleasure to be, ana do will, ordain, direct, and appoint, that it shall be lawful for the Judges of the said Supreme Court collectively, at any general sessions to be by them holden at Colombo as aforesaid, from time to time to frame, constitute, and establish such general rules and orders of court as to them shall seem meet, touching and concerning the time and place of holding any general sessions of the Judges of the said Supreme Court collectively, and any civil or criminal sessions of the said Supreme Court on any such circuits as aforesaid, or in the district of Colombo and the said several District Courts, as shall not be incon- sistent ^vith the authority hereinbefore granted to the Governor of our aid island respecting the appointing of the times at whict. and the places to which the Judges of the said Supreme Court shall perform their circuits, together with such general rules and ci '.ers as to them shall seem meet, and touching and concerning the foim and manner of proceeding to be observed in the said Supreme Court at any general sessions, and at such civil and criminal sessions as aforesaid on such circuits Rs aforesaid, or in the district of Colombo and in such District Courts respectively, and touching and concerning the practice and n CEYLON — CHARTER OP JUSTICE. 563 pleadings upon all actions, suits, and other matters, boJi civil and crmiinal, to be therein brought, the proceedings of the flscals and other ministerial officers of the said courts respectively, the process of the said courts, and the mode of executing the same, the qualifications, sum- moning, impannelling, and challenging of assessors, and the summon- ing, impannelling, and challenging of jurors, arrest on mesne processor in execution, the tak,ng of bail, the duties of gaolers and others charged with the custody of prisoners, in so far as respects the making due returns to the respective Juf'ges of the said Supreme Court of all pri- soners in their custody, and respecting the mode of prosecuting such appeals as aforesaid from the said District Courts, the admission of advocates and proctors in the said courts respectively, together with all such general rules and orders as may be necessary for giving full and complete effect to the provisions of this present charter, in whaUoever respects the form and manner of administering justice in the several courts hereby constituted, and all such rules, orders, and regulations from time to time to revoke, alter, amend, and renew, as occasion may require : Provided always, that no such rules, orders, or regulations shall be repugnant, to this our charter, and that the same shall be so framed as to promote, as far as may be, the discovery of truth and economy and expedition in the despatch of business of the said several courts respectively, and that the same be drawn up in plain, succinct, and compendious terms, avoiding all unnecessary repetitions and obi scurity, and pronulgated in the most public and\uthentic manner In the said island, as long before the same shall operate and take effect as to such Judges may appear practicable and convenient, and provided always, that all such rules, orders, and regulations shall forthwith be transmitted to us, our heirs, and successors, under the seal of the said court, for our or their approbation or disallowance. 61. And we do further grant, ordain, direct, and appoint, that it shall be lawful for any person or persons being a party or parties to any civil suit or action depending in the said Supreme Court, to appeal to us, our heirs, and successors, in our or their Privy Council, against any final judgment, decree, or sentence, or against any rule or order made in any such civil suit or action, and having the effect of a final or defi- nitive sentence, and which appeals shall be made subject to the rules and limitations following; that is to say, First, that before any such appeal shall be so brought, such judgment, decree, sentence, will, or order shall be brought by way of review before the Judges of the sfid Supreme Court collectively, holding a general sessions at Colombo, at which all the said Judges of the said Supreme Court shall be present and assisting, which Judges shall by such rules and orders as aforesaid regulate the form and manner of proceeding to be observed in bringing o oJ^ 564 CEYLON— CHARTER OF JUSTICE. ' i , 'ft*' •« , t'/'Xt -•" every such judgment, decree, sentence, rule, or order by way of review before them, and shall thereupon pronounce judgment according to law, the judgment of the majority of which Judges shall be taken and recorded as the judgment of the said court collectively. Secondly, every such judgment, decree, order, or sentence from which an appeal shall be admitted to us, our heirs, and successors as aforesaid, shall be given or pronounced for or in respect of a sum or matter at issue above the amount or value of £500 sterling, or shall involve directly or indirectly the tide to property or to some civil right exceeding the value of £500 sterling. Thirdly, the person or persons feeling aggrieved by such judgment, decree, order, or sentence, shall within fourteen days next after the same shall have been pronounced, made, or given, apply to the said Supreme Court at such general sessions as aforesaid, by petition, for leave to appeal therefrom to us, our heirs, and successors, m our or their Privy Council. Fourthly, if such leave to appeal shall be prayed by the party or parties who is or are adjudged to pay any sum of money or to perform any duty, the said Supreme Court shall direct that the judgment, decree, or se-ilence cppealed from shall be carried into execution, if the party or parties respondent shall give security for the immediate performance of any judgment, decree, or sentence which may be pronounced or made by us, our heirs, and suc- cessors, m our or their Privy Council, upon any such appeal, and until such security be given the execution of the judgment, dncree, order, or sentence appealed from shall be stayed. Fifthly, provided nevertheless, that if the party or parties appellant shall establish to the satisfaction of the said Supreme Court, that real and substantial justice requires that, pending such appeal, execution should be stayed, it shall be law- ful for such Supreme Court to order the execution of such judgment, decree, order, or sentence to be stayed pending such appeal, if the party or parties appellant shall give security for the immediate per- formance of any judgment, decree, or sentence which may be pro- nounced or made by us, our heirs, and successors, in our or their Privy Council, upon any such appeal. Sixthly, in all cases security shall be given by the party or parties appellant for ihe prosecution of the appeal, and for the payment of all such costs as may be awarded by us our heirs, and successors, to the party or parties respondent. Seventhly, the court from which any such appeal as aforesaid shall be brought, shall, subject to the conditions hereinafter mentioned, determine the nature, amount, and sufficiency of the several securities so to be taken as aforesaid. Eighthly, provided nevertheless, that in any case where the subject of litigation shall consist of immoveable property, and the judgment, decree, order, or sentence appealed from shall not change, aflect, or relate to the actual occupation th .reof, no security shall be CEYLON—CHARTER OF JUSTICE. 565 demanded either from the party or parties respondent, or from the party or parties appellant, for the performance of the judgment or sentence to be pronounced or made upon such appeal; but if such judgment, decree, order, or sentence shall change, affect, or relate to the occupa- iion of any such property, then such security shall not be of greater amount than may be necessary to secure the restitution, free from all damage or loss, of such property, or of the intermediate profit which, pending any such appeal, may probably accrue from the intermediate occupation thereof. Ninthly, in any case where the subject of litigatioa shall consist of money or other chattels, or of any personal debt or demand, the security to be demanded, either from the party or parties respondent, or from the party or parties appellant, for the performance of the judgment or sentence to be pronounced or made upon such appeal, shall be either a bond to be entered into in the amount or valtfe of such subject of litigation, by one or more sufficient surety or sureties, or such security shall be given by way of mortgage or voluntary con- demnation of or upon some immoveable property situate and being within such island, and being of the full value of such subject of litigation, over and above the amount of all mortgages and charges of whatever nature upon or affecting the same. Tenthly, the security to be given by the party or parties appellant for the prosecution of the appeal and for the payment of costs, shall in no case exceed the sum of £300 sterling, and shall be given either by such surety or sureties, or by such mortgage or voluntary condemnation as aforesaid. Eleventhly, If the security to be given by the party or parties appellant for the pro- seculion of the appeal and for the payment of such costs as may be awarded, shall in manner aforesaid be completed within three months from the date of the petition for leave to appeal, then, and not otherwise, the said Supreme Court shall make an order allowing such appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to us, our heirs, and successors, in our or their 1 nvy Council, in such manner and under such rules as are observed in appeals made to us in our Privy Council from our plantations or colonies. Twelfthly, provided nevertheless, that any person or persons feeling aggrieved by any order which may be made by, or by any pro- ceedings of the said Supreme Court respecting the security to be taken upon any such appeal as aforesaid, shall be and is hereby authorized by his, her, or their petition to us in our Privy Council, to apply for redress in the premises. 62. Provided always, and we do further orduin, direct, and declare, that nothing herein contained doth or shall extend to take away or abridge the undoubted right or authority of us, our heirs, and successors, to admit and receive any appeal from any judgment, decree, sentencp. «r m CEYLON — CHARTER OF JUSTICE. ISJ! order of the said Supreme Court, on the humble petition of any person Or persons aggrieved thereby, in any case in which, and subject to any conditions or restrictions upon and under which it may seem meet to us, our heirS) and successors, so to admit and receive any such appeal. 63. And we do further direct and ordain, that in all cases of appeal allowed by the said Supreme Court, or by us, our heirs, and successors, such court shall, on the application and at the costs of the party or parties a^Jpellant, certify and transmit to us, our heirs, and successors, in our Or their Privy Council, a true and exact copy of all proceedings, evidence, judgments, decrees, and orders had or made in such causes so appealed, so far as the same have relation to the matter of appeal, such copies to be certified under the seal of the said court. 64. And we do further ordain and direct, that the said Supreme Court shall, in all cases of appeal to us, our heirs, and successors, con- form to, execute, and carry into immediate effect, such judgments and orders as we, our heirs, and successors, in our or their Privy Council, ihall make thereupon, in such manner as any original judgment or de- cree of the said Supreme Court can or may be executed. 65. And we do further ordain and direct, that all laws, customs, and usages, now or at any time hereafter established or in force in the said island, so far as such laws or usages are in anywise repugnant to or at variance with this present charter, shall be and the same are hereby revoked, abrogated, rescinded, and annulled. 66. And we do further declare, that for the purpose and within the meaning of the present charter, any person lawfully administering for the time being the government of the said island, shall be deemed and taken to be the Governor thereof. 67. And we do further ordain and direct, that at the expiration of two calendar months next after the arrival within the said island of these presents, or at such earlier period as the Governor for the time being of the said island shall, by a proclamation to be for that purpose issued, appoint, this our charter shall come into operation within the said island; and from that time forward every suit, action, complaint, mat- ter, or thing which shall be then depending before any court administer- ing justice by original or appellate jurisdiction in the said island and its dependencies, shall and may be proceeded upon in the court in which it ought to have been instituted, or to which it ought to have been carried up in appeal, if it had been instituied or carried up in appeal after the time when the provisions herein contained shall have come •into operation ; and all proceedings which shall hereafter be had in such suit, action, complaint, matter, or thing respectively, shall be conducted in like manner as if such suit, action, complaint, matter, or thing had beeo instituted or carried up in appeal in or to such last-mentioned CEYLON—CHARTER OP JUSTICE. 567 court ; and all the records, muniments, and proceedings whatsoever belonging or pertaining to any such suit, action, complaint, matter, or thing, shall, when the provisions herein contained shall have come into operation, be delivered over by the court in which such suit, action, complaint, matter, or thing shall be then depending to the court in or to which such suit, action, complaint, matter, or thing ought to have been instituted or carried up in appeal, if it had been instituted or car- ried up in appeal after the time when the provisions herein cor »»n^«tering justice, in a distant tbns w«f T ^f ^""'i'^" P^^P^^ """«^d t« our institu- riX' Jfn PITk"^ and executed, it has been thought nght to insert it here ; ihe more especially since the most STffecTin &f 1" TT *'^^ '^«P' 'd ^ *'e C piest ettect m Ceylon has been since advantaseouslv imi tated with respect to our East Indian possessions.] ^ From the year 180? the period at which the first roval Charter of oTustice for the Island of Ceylon was nublishp^ nTsterel tt' S *'^ ^T ''''' J"«*'- haTl'e'en'admt n isteied in the Supreme Court of Ceylon, both in civ 1 and criminal cases, by two European judges, accordiiirto Tn/juryf '' in Holland the DStch-Uan Wrwl^h'oit in VuTnA ""nn i^'"»™'"^d by His Majesty's ministers in l^ngland, on the representation of Sir Alexander Johnston, that the two European Judges of the Weme Court on that island should for the future, fn crhninal cases, be judges only of the law, and that jur e comp^^^^^^^^^ of the natives of the island should be judges of the factin NoTemW "iSn '"^ "l'^^ f-oners'wefe concerned J^ ^oyember, 1811, accordingly, a new royal Charter of Justice under the great seal of England, was puSfshed m Ceylon, by which, amongst other Ihings, it wa^s in sub- stance enacted that every native of the inland, of what- ever caste or religious persuasion he might be, ihenS for a criminal offence before the Suprlme ciurt, sho" H have the right of being tried by a jury of his own caste and hat the right of sitting upon juries, in al such cases' should extend, subject to certain qualifications" to every half-caste and to every other description of na live upoJ L'iifbdl^r ^^'^'^^^^' ^^^'^ - religious persuasio/he The following part of the account is extracted from Sir ^fContd^^^'"^^^^^^ ^''''' on the subject to the Board " Every native of Ceylon, provided he be a freeman has attainfifl the aoo «f fw-Mf-- -r-- ^ • »*cciiian, ^ -- --^ ~^^^i iWcHtj uhl-, ana is a permanent: resident m the island is qualified to sit on juries. The fiscal or sheriff of the province, as soon as a criminal ^^' I s> lit m 582 CEYLON. sessions is fixed for his province, summons a considerable number of jurymen of each caste, taking particular care that no juryman is summoned out of his turn, or so as to interfere with any agricultural or manufacturing pursuits in which he may be occupied, or with any religious ceremony at which his caste may require his attendance. On the first day of the sessions the names of all the jurymen who are summoned are called over, and the jurymen, as well as the magistrates and police officers, attend in court and hear the charge deHvered by the judge. The prisoners are then arraigned ; every prisoner has a right to be tried by thirteen jurymen of his own caste, unless some reason why the prisoner should not be tried by jurymen of his own caste can be urged to the satisfaction of the court by the advocate-fiscal, who, in Ceylon, holds an office very nearly similar to that held in Scotland by the Lord-Advo- cate, or unless the prisoner himself, from believing people of his own caste to be prejudiced against him, should apply to be tried either by thirteen jurymen of another caste, or by a jury composed of half-castes or Europeans. As soon as it is decided of what caste the jury is to be composed, the registrar of the court puts into an urn, which stands in a conspicuous part of the court, a very considerable num- ber of the names of jurymen of that caste out of which the jury is to be formed ; he continues to draw the names out of the urn, the prisoner having a right to object to five peremptorily and to any number for cause, until he has drawn the names of thirteen jurymen who have not been objected to ; these thirteen jurymen are then sworn, ac- cording to the form of their respective religions, to decide upon the case according to the evidence and without par- tiality. The advocate-fiscal then opens the case for the prosecution (through an interpreter if necessary) to the judge, and proceeds to call all the witnesses for the pro- secution, whose evidence is taken down (through an in- terpreter if necessary) in the hearing of the jury, by the judge, the jury having a right to examine and the prisoner to cross-examine any of the above witnesses. When the case for the prosecution is closed, the prisoner states what he has to urge in his defence, and calls his witnesses, the jury having a right to examine, and the prosecutor to cross-examine them, their evidence being taken down by the judge ; the prosecutor is seldom or ever, except in very pafticular cases, allowed to reply or call any wit- nesses in reply." \W'* "!'; > lonsiderable ticulai* care or so as to ; pursuits in IS ceremony e. On the irymen who aen, as well 1 court and le prisoners to be tried ome reason 'men of his le court by office very -secutor to n down by except in ii any wit- ( 583 ) MAURITIUS. Mauritius IS a small island in the Indian Ocean, lying between 19° 56' and 20° 30' south latitude and 57° 17' and 57 47 east longitude. It is nearly elli*ptical in form, and measures about 12 leagues from north to south, and 10 ti-om east to west. Its circumference is between 60 and 70 miles.. The little island of Bourbon lies to the south- west of It. The heat of the climate is very great upon the coast, but the higher parts of the island are more temperate. The soil produces in great luxuriance every kmd of tropical vegetable. Sugar, coffee, spices, and ebony are the principal exports; rice, salt provisions, and manufactured articles, the chief imports. The population, now estimated at above 80,000, is stated to have qua- drupled in the last 20 years. Plantations are scattered all over the country, and the only town is Port Louis, situated at the bottom of the harbour in a valley enclosed by lofty and rugged declivities. It was formerly built for the most part of wood, but the greater portion having been accidentally destroyed by fire in 1816, it has since been rebuilt m a better manner. HISTORY AND CONSTITUTION. The island was discovered by the Portuguese, under one of the family of Mascarenhas, early in the sixteenth century. They called it at first Ilha do Cerne. The Dutch however first planted it, and they gave it the name It now bears from Prince Maurice of Nassau. Their set- tlement was formed on the south-eastern shore of the island before 1639, and seems to have been abandoned in 1644, and resumed in 1650, but the settlers were finally compelled to abandon it in 1710. The French, who had possessed themselves of the neighbouring Island of Masca- renhas, which they named the island of Bourbon, took nns- session gf the Mauritius as soon as the Dutch had quitted it. W^ 584 MAURITIUS. ' . " f In 1723 a Governor and Council were appointed. In 1734 vi?^2 1 Bourdonnais was appointed Governor, and in 170b he was succeeded by M. Poivre. Both Governors materially benefited the colony, the first by selecting a new port on the north-western coast of the island, as the situation for the capital, on account of its being on the leeward side of the island, and allowing the free entrance and egress of ships, which, though they could easily enter, could not readily quit the old port chosen by the Dutch: and the last, by procuring at great pains ana expense plants of cloves and nutmegs from the islands of the ^.astern Archipelago, notwithstanding the positive direc- tions given by the Dutch government to root them up and destroy tlienri. The island was captured in December, 1«10, by a force under General Abercrombie, and ^^as ceded to Great Britain at the peace of 1814. It is now put upon the footing of our other sugar colonies.— Ber- nardin du St. Pierre, Voyage de I'Isle de France, and Ency. Metrop. ; 3 & 4 Wm. 4, c. 56, s. 9. 1 his island is governed, like our other crown colonies, by Urders m Council, and the executive government is intrusted m them to a Governor and Council. The Go- vernor receives a salary of £8000 a year. The President and Members of the Council receive no salary in that capacity. The salary of Colonial Secretary was ^"3000 a year. There is an establishment for mortgages and registrations. The salary of the Chief Commissar? of Po- lice IS £1000 a year. The Chief Judge, who is also Com- missary of Justice and Judge of Vice-Admiralty, receives a salary of £3500 a year. The Attorney-General, who was also standing English Counsel, received about i'850 a year fAm^ ^i^\r^ *^if ^T'^ of Appeal the further .um of ^560. The Vice-President of the Court of Appeal received i'840 a year and four Judges of the Court £560 each. The President of the Court of First Instance received a salary of ^-700 a year, and his fees were esti- mated at £200. The two Assistant Judges i'560 each, ^u . Ln"'^u''^*^'^"' received fees to the amount of about .tbO. The Procureur-General received £840 a year in that character, and a further sum of i'360 as Kind's Attorney to the Land Court. The first and second sulb- stitutes of the Procureur-General received £560 each. 1 he Government Advocate, who was also King's Advo- cate m the Vice-Admiralty Court, received et4S0 a year, [ >4 MAURITIUS. 585 nf wA . .''' ^'"^"nt'ng to about ^"500. The Curator office In ? ' r";^ ''^ " per ccntage on sums paid into the isSOa ear"" ' ""^'^ calculated to amount to about rplfilf Jfinn^ Government Agent of the Seychelles re- a vp.r T? ' rV"^ '^'^ Chief Justice of'Peace £m r J ■ 1 r '^ *'"'* Assistant Justices had no salary, but to ir bli'aToiitr-^^^^^^^^^^ ^'^^ ^^-^^ - ^--» ^ LAWS.(l) The island capitulated on the 3d of December, 1810. By the 7th ai-tice of the capitulation it was stipulated, hat property of the inhabitants should be respected and by the 8th that the inhabitants should preserve tlS; religion, their laws and customs. By a proclamation dated on the 5th December. 1810. It was dec ared that the rules hitherto observed for the administration of civil justice and of poUce shou?d be preserved and that the laws and usag?es in force up to that day should also be continued. V rZ!!,^ inhabitants were promised all the advantages of commerce enjoyed by others of His Majesty's subjects As to the administration of the different branches of gol vernment, It was declared that a new proclamation woSld announce the method in which it should be carried on. Ihe proclamation, dated on the 28th December, 1810. (afterwards conhrmed in substance by another of the date of January, 1814,) was accordingly published. By the It article of that proclamation, all the ecclesiastical esta- bhshments and the religious functionaries were continued under the same laws as heretofore. . By the 2d article, all the establishments, as well iudi- cial as those of police, were to be preserved and con- tinued durante bene placito under the English govern- J»ent^pon the same footing and subject to the same lo'iH W Slle'JStier' ZX^""''"' '"^'^' ""^ ^" ^''^ -'-'<=« "« -'>J-t 686 MAURITIUS. ' i regulations as those whicli existed at the time of the capi- tulation, under the following modifications :— that all judgments should be ^iven in the name of His Majesty the King of Great Britain and Ireland ; that all decrees of the Court of Appeal established in the island, from which an appeal might formerly have been made to the Superior Courts in France, should be, until otherwise ordered, the subject of appeal to the Governor of the islands, who, after having transmitted them to the Judicial Assessor and Magisti o of the colony for his advice and opinion thereon, should give his own decision. An appeal was to be allowed to the King in Council in all matters where the subject in dispute exceeded the value of 4-000 piastres. (2) Courts. At the time of the conquest by Great Britain the co- lony was governed by four out of the five codes which had been promulgated by Napoleon. (3) Some of the courts however had been instituted before or during the existence of the French Republic. By a decree of the Council of State of the 3d of Ger- minal in the year 1 1 , the Tribunal of the First Instance, and the Tribunal of Appeal were established. The Tri- bunal Terrier was directed to be composed of the Cap- tain-General, Prefect, the Commissary of Justice, or of four members of the Tribunal of Appeal, who should be chosen by the Captain-General. By a subsequent ordi- nance it was declared, that the tribunals of this colony should be composed of the Tribunal of Appeal and the Civil Tribunal. The Tribunal of Appeal was to consist of a president, a vice-president, three judges, four super- numeraries, a commissary of the government, a substitute, exercising in case of need the functions of the commissary, and a secretary. The Civil Tribunal was to consist of one judge, of one substitute, of a commissary of the government, and a se- cretary. The Civil Tribunal was to have cognizance over all affairs civil and criminal, matters of commerce, admiralty, and police. The Tribunal of Appeal was to decide in the last resort (2) The sum is now settled by the charter at £1000 sterline. (3) See ante, 23. * )f the capi- : — tluit all [is Majesty all decrees iland, from ade to the otherwise nor of the he Judicial advice and An appeal all matters le of 4000 ain the co- )des which ne of the during the MAURITIUS. 587 JdofGer- t Instance, The Tri- P the Cap- ;ice, or of should be uent ordi- ;his colony al and the to consist our super- substitute, mmissary, ^e, of one and a se- 3 over all admiralty, last resort upon all judgments in the Court of First Instance in the tollowmg manner:— In civil matters the tribunal waste be composed of five judges, and of seven in criminal matters. When all civil jurisdiction was taken away from religious nersons, a decree was passed by the Captain- Ueneral Decaen, declaring that it was indispensable to establish a civil commissary in each district of the colony, to prepare, receive and preserve public acts. Such an otticer was accordingly appointed, and charged with the keeping of the registers of births, marriages and deaths. He was to be appointed by the Captain-General, upon the recommendation of the Colonial Prefect and of the Commissary of Justice. The Court of Appeal was modified from time to time by proclamations of the Governor. It is now finally reffu- lated by the Order in Council. ^ Codes of Laws. By a decree dated on the 25tli of Vendemiaire in the year 14, the Code Civil was promulgated in this colony, and again, with the necessary changes required by the ?onu ^' Zl^ declared to be in force upon the 21st April, iWb, Ihe Code de Commerce (with a few alterations) was promulgated upon the 14th July, 1809. The Code Pr«Q *'^i,^*'*^^' i" ^^'^^ ^'"^^ t'>e ™onth of December, i The Code Penal established in the colony, is that which was agreed to by the Colonial Assembly on the 7th August, 1793, and confirmed by a proclamation ot Crovernor Farquhar as to all the population, free or slaves, on the 6th November, 1816. It was provided, however, that this should not affect the regulation of slaves by the provisions of the Code Noir. The Colonial Assembly, upon the 1st of August, 1793, promulgated a code upon municipal and correctional po- 11C6* The code of Civil Procedure was adopted from France on ( le 20th July, 1808, with a few alterations rendered necessary by the circumstances of the colony. Colonial Council. , This body_was created by a decree of the 29th Septem- Der, I5i0. The decree recited that the colony was bound * ' W8 MAuniTitrs. to contribute its assistance to the expense of providing fcureur-General of the said island, or his substitutes, are and shall be relieved from the duty heretofore incumbent on them of making their conclusions for the assistance of the said tribunals : And it is further ordered that no Judge oi the said Cour d'Appel, nor the Judge of the said Tribunal de Premiere Instance, nor the suppliant of the said tribunal, nor the Procureur-General of the said island, nor the Advo- cate-General thereof, nor the Judge of the Court of Vice-Admiralty, nor any surrogate of such judge, shall be the owner of any slave, nor be the proprietor of or have any share or interest in any land cultivated by the labour of slaves, either directly or by any person or persons as a trustee or trustees for him ; and each of the said several officers is hereby declared incompetent to be or act as the manager, overseer, agent, or attorney of, for, or upon any plantation or estate within the' said island or its dependencies .: Provided nevertheless, that nothin- herein contained shall prevent any such officer as aforesaid from hiring Q q2 596 MAURITIUS— CHARTER OF JUSTICF. for and employing in the domestic service of himself, or any members of his family, any number of slaves, if it shall be first made to appear by such officer, to the satisfaction of the Governor of the said island, that it is not in his power to hire free persons to perform such domestic services : And it is further ordered, that there shall be in the town of Port Louis in the said island, a Petit Court, to be holden by a single judge, to be called the Juge de Paix of the said town, for the decision of all civil causes of small amount arising within the said island, and for the trial of all crimes and offences of a low degree committed therein, and that fr^. - i irdgments, sentences, and orders of the said Petit Court, no apv- He to any other tribunal orjudgeinthe said island or elsewh . . and that 'here shall also be in any one or more of the dependencies of the Mauritius, which the Governor of the said island, with the advice of the council of government thereof, may select, a Petit Court, to be holden in like manner by a single judge, to be called the Juge de Paix of such dependency, for the decision of all civil cases of small amount arising therein, and for the trial of all crimes and offences of a low degree which may be there committed ; and that the Governor of Mauritius, with the advice and consent of the council of government of the said island, shall, by any ordinances to be from time to time for that purpose made, define and limit the extent of the jurisdiction, both civil and criminal, of any such Petit Court, and fix and regulate the forms of proceeding, the rules of practice, and the nature of the process to be observed therein respectively : And it is hereby further ordered, that it shall and may be lawful for any person or persons, bemg a party or patties to any civil suit or action depending in the said Cour d'Appel of the said island of Mauritius, to appeal to His Majesty in Council, his heirs and successors, or his or their Privy Council, against any final judgment, sentence, or decree of the said court, or against any rule or order made in any such civil suit or action haviug the effect of a '^muI or definitive sentence, and which appeals shall be made subject to the rules, regulations, and limitations follovving- that IS to say, in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter at issue above the amount or value of £1000 sterling, or in case such judgment, decree, order, or sentence shall involve, directly or indirectly any claim, demand, or question to or respecting property, or any civil right, amounting to or of the value of £1000 sterling, or in case the same shall affect the right or alleged right of any person to freedom, the person or persons feeling aggrieved by any such judgment, decree, order, or sentence of the said Cour d'Appel, may within fourteen days next after the same shall have been made, pronounced, or given, apply to the said Cour d'Appel by petition, for leave to appeal therefrom to MAUniTIUS -CHARTER OF JUSTICE. 597 His Majesty, liis lioirs, and successors, or his or their Privy Council; and in case sucii leave to appeal shall be prayed by tlie party or partie* who is or are directed to pay any sum of money, or perform any duty, the said Cour d'Appel shall and is hereby empowered either to direct that the judgment, decree, order, or sentence appealed from shall be carried into execution, or to direct that the execution thereof shall be suspended pending the said appeal, as to the said court may in each case appear the most consistent with real and substantial justice; and in case the eaid Cour d'Appel shall direct such judgment, decree, order, or sentence to be carried into execution, the person or persons in whose favour the same shall be given shall before the execution thereof enter into good and sufficient security, to be approved by the said court, for the due performance of sucU judgment or order as His Majesty, his heirs, and successors, shall think fit to make thereupon ; or in case the said Cour d'Appel shall direct the execution of any such judgment, decree, order, or sentence to be suspended pending any such appeal, the person or persons against whoiii the same shall have been given shall in like manner, and before any order for the suspension of any such execution is made, enter into good and sufficient security, to be approved by the said court, for the due performance of such judgment or order as His Majesty, his heirs, and successors shall think fit to make thereupon : And it is further ordered, that in all cases security shall also be given by the party or parties appellant, to the satisfaction of the said court, for the prosecution of the appeal, and for the pay- ment of all such costs as may be awarded by His Majesty, his heirs, and successors, to the party or parties respondent ; and if such last- mentioned security shall be entered into within three months from the date of sueh petition for leave to appeal, then, and not otherwise, the said Cour d'Appel shall allow the appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to His Majesty, his heirs, and successors, in his or their Privy Council, in such manner and under such rules as are observed in appeals made to His Majesty in Council from his plantations and colonies : Provided nevertheless, and it is further declared and ordered, that nothing herein contained shall extend or be construed to extend to take away, diminish, or derogate from the undoubted power and authority of His Majesty, his heirs, and successors, in his or their Privy Council, and upon the humble petition at any time of any person or persons aggrieved by any judgment or determination of tiie said Cour d'Appel, to admit, his, her, or their appeal therefrom upon such other terms, and upon and subject to such other limitations, restrictions, and regulations, as His Majesty, his heirs, and successors, shall in any such special case think fit td prescribe : And it is further ordered, that in all cases of appeal allowed f I; 598 MAURITIUS — CHARTER OF JUSTICE. by the said Cour d'Appel, or by His Majesty, his heirs, and successors, the said court shall certify aud transmit to His Majesty, his lieirs, and successors, in his or their Privy Council, a true and exact copy of all proceedings, judgments, decrees, and orders had or made, and of all evidence received or given in such causes so appealed, so far as the same have relation to the matter of appeal; such copies to be certified under the seal of the said court : And it is further ordered, that the said Cour d'Appel shall in all cases of appeal to His Majesty, his heirs, and successors, conform to and execute such judgments and orders as His Majesty, his heirs, and successors shall think fit to make therein, in such and the same manner as any judgment, decree, or order of the said Cour d'Appel could or might have been executed. And the Right Ho- nourable the Lord Viscount Goderich, one of His Majesty's principal Secretaries of State, is to give the necessary directions herein accordingly. e, and of all ( 599 ) THE AUSTRALIAN COLONIES. irein, in such The name of Australia has of late years been affixed to those two islands in the southern hemisphere, sepa- rated by Bass's Straits and the islands circumjacent, called by the early Dutch navigators New Holland. The change of name was introduced by the celebrated French geographer, Malte Brun, who, in his division of the globe, denominated these islands Austral-Asia, which has since, for the sake of brevity, been called Australia. Australia, properly speaking, consists of many islands, but one is so much larger than every other island on the face of the globe, that it is clashed as a continent, in order to convey to the mind a just idea of its magnitude. Stretch- ing from the 115th to the 153d degree of east longitude, and from the 10th to the 37th of south latitude, it aver^ ages 2700 miles in length, 1800 in breadth, and balanced, as it were, upon the tropic of that hemisphere in which it is situated, it receives the fiery heat of the equator at one extremity, while it enjoys the refreshing coolness of the temperate zone at the other. Van Diemen's Land is the second island, but is very inferior in extent to the first. By the colonists the larger island is generally called Aus- tralia, and the smaller one Van Diemen's Land, or Tas- mania. On the eastern coast of the former is the colony known as New South Wales, and on the western coast is the Swan River Settlement, commonly called Western Australia. The settlements at Van Diemen's Land occ'ipy each of the four coasts of that island. *^* The chapters upon the Aus- tralian settlements were contributed by my friend, Henry W. Parlier, Esq. of Gray's Inn, Barrister at Law.Pthe author of a work upon Van Diemen's Land.— C.C. ^< i" MO •I •-a* ( (iOO ) NEW SOUTH WALES. This colony, which in the commissions appointinir tlie Governors IS called His Majesty's Territory of New &outh Wales, IS situated on the eastern coast of New Holland. An Order of Comicil dated the 6th December, 178b, and the Kings warrant, dated 3d April, 1787, for etters-patent appointing a Vicc-Admiral and a Judge of the \ ice-Admn-alty Court for the new settlement, declare Its limits to extend " from the northern cape or extremity of the coast called Cape York, in the latitude 10° 37' south, to the South Cape, the southern extremity of the coast ,n the latitude of 43° 39' south, and inland to the westwai;d a« far as 135- east longitude, reckoning from the meridian of Greenwich, including all the island? adia- a7.V". *''^.^fV'^'- ^cean witiiin the latitudes aforesaid." At that period It was not known that Van Diemen's Land was not part of the main island, as the channel separating It was not discovered until the year 1797. An Order in Council, dated 14th June, 1825, declared Van Diemen's w"li .T u"'rP-"''^"? °^*^^ ^°W at New South Wales, thereby limiting the southern boundary of the co- lony to the shores of Bass's Straits. Norfolk Island.(l) on which a settlement was formed by Lieut. King, shortly after the colony at Sydney Cove was established, is one nnMn Ih Z'^^'" ^^'^ ^T^'^^^ «^ ^^^^ boundary marked out in the order of council. ( 1 ) This settlement was abandoned some years since, but in 1825 the island was again occupied, apd there IS now formed there an establishment lor the reception of convicts of the first class— malefactors, whose crimes denote them to be hardened offenders. —Parker's Van Diemen's Land, p. (2) One of the judges of the Su- preme Court, when the prisoners de- tamed m custody ou diaiges of hav- ing committed offences within the island amount to any considerable number, proceeds from Sydney, ac- companied by military or naval ofli- cers for a jury, and a counsel ap- pointed by the Governor to defend the prisoners, and holds a court of oyer and terminer at this island. This course has been adopted, as it was found that convicts frequently com- mitted offences merely for the sake of going to Sydney to be tried. NEW SOUTH WALES. 601 . 7io v*'''**''^ or settled parts of the colony arc divided into 19 districts (3) and contain several towns, the chief of which are Sydney, the seat of the colonial government and now a free warehousing port, Paramatta, Windsor! Newcastle, Liverpool. Maitland. &c. The generality of the land is not accounted fit for the plougli^ but it pro- duces herbage upon which sheep thrive, this and the fine climate has tended to produce those superior fleeces which now comnete in the English market with the far- tamed baxon and Spanish clips. HISTORY AND CONSTITUTION. New Holland is said to have been discovered by the lfS?Q' K Navigator. Don Pedro Fernando de Quiros, in ii • 1 1 *,.''' '' T""^' '•^««°" t" l^^^I'^'ve that the land north of New Holland. In 161G it was visited by Theo- donc Hertoge. who called that part on which he landed na?f nf'?^ ^'"'' T^•"J^'^ ^^"^'>*^" ««^ '-another pait of the coast, which he named Arnheim Diemen Jan Van Edels in 1619 gave his own name to a por!ioTof the southern coast. In 1687, and again in 1699, Damnier surveyed the western shores of the isknd, and the Dutch navigator Carpenter shortly afterwards surveyed the gulf which he named Carpentaria; but from that time, until Captain Cook m 1770 explored the eastern coast, little or nothing was known of this extensive country The description Captain Co ;, on his return to Eng- land, gave of Botany Bay, (so called from the number of new plants discovered on the shores by Mr. afterwards Sir Joseph Bankes, and Dr. Solander,) induced the eo- vernment to fix upon it as a place to which convicts sliould be transported; and His Majesty by two separate Orders m Council, dated 6th December, 1786, declared and appointed the place to which convicts should be transported, to be the eastern coast of New South Wales or some one or other of the islands adjacent within the limits before described. The ships appointed to proceed (3) These 19 districts or counties are, Cumberland, Camden. St. Vin- cent, Gloucester, Durharaj Hunter, Cooic, Westmoreland, Argyle, Mur- ray, King, Georgiana, Bathurst, Rox- I'urgh, Phillip, Hrishnne, Bli-h, Mk~ quane, and Wellington. ff «'W eo£ NEW SOUTH WALE8. to the eastern coast were His Majesty's slup Sirius, and llis MujcHty's brig Supply, with seven transports and three store-ships, hiivintr on hoard, besides the ofKcers of the new settlement, soldiers and marines, 7G8 male con- victs. (4) 22'2 female convicts, and 27 children. The ex- pedition sailed from the Mother-bank on Thursday the 10th March, i787, and arrived at IJotany liay on the 20th January, 1788. Captain Phillip, who had been appointed Governor of the -Htlement, immediately proceeded to examine the shore.^ of Botany Bay, but not finding there a situation well calculated for the site of a town, he re- moved to Port Jackson, and on the banks of one of its coves he resolved that the new colony should be esta- blished. Every person belonging to the settlement had disembarked on the Gth February, and being assembled in the presence of the Governor, the Judge-Advocate (Captain Collins) read His Majesty's commission and the letters-patent for establishing courts of civil and criminal judicature. The Governor was invested with the power of pardoning malefactors sentenced to death by the crimi- nal court; (5) but if he thought the sentence ought to be carried into execution, he was required to give a warrant under his hand and seal to the Provost-Marshal, who was to cause the judgment to be executed according to the in- structions contained in that warrant. The Governor was empowered to act as judge in the Court of Appeals, and in that court to hear and determine cases of appeal from the Civil Court, where the debt or thing in demand should exceed £300. He was also constituted a justice of the peace, with the same power that a justice has in England, and Vice-Admiral of the territory, with powers similar to those usually given to persons appointed to like offices in the British colonies in America: he was also invested (4) Two years after the settlement was formed several convicts stated, that the respective periods for which they had been sentenced had expired, and it was then, and not till then, discovered, that the papers necessary to ascertain these important particu- lars had been left in England. The prisoners were therefore detained until the documents were received. (5) The extensive powers of par- doning given to thg Goveiuor by this commission form an exception to the general rule. In all the other colo- nies the Governors are expressly pro- hibited from granting pardons in cases of murder or treason ; and they can only respite criminals convicted of these offences till His Majesty's plea- sure shall be known. Probably this exception was occasioned by the pe- culiar circumstances under which this settlement was established — C. C. NEW SOUTH WALES. 608 with authority to hold general courts-martial, to confirm or to set aside tiie sentence, and also to make orders lor the good government of the colony. aJw^ ^'!;"' ^'^^ ®* parliament relating to the colony ia the ^Oeo.3, C.2; It enacted, that "it shall be lawful for Wis Majesty by his commission under the great seal to authorize the Governor, or in his absence the Lieutenant uovernor, to convene from time to time, as occasion may require, a court of criminal jurisdiction for the trial and punishment of all such outrages and misbehaviours as if committed within this realm would be deemed and taken according to the laws of this realm, to be treason or mis- prision thereof, felony or misdemeanor." The court was to be a court of record, and to consist of the judge-advo- cate and such six officers of the sea and land service as the Governor by precept issued under his hand and seal i^-u?^ J- *° "^^^'"b'e. The letters-patent, dated ^d April, 1787, directed that a court of criminal jurisdiction should be instituted, and they empowered it to inquire of, hear, determine, and punish all treasons, misprisions of treason, murders, felonies, forgeries, perjuries, trespasses, and other crimes or offences whatsoever that might be com- mitted in the colony. The mode of proceeding was this : ■—the charge against an offender was reduced into writing and exhibited by the judge; witnesses were examined upoS oath, and according to the opinions of the majority of the court th' prisoner or defendant was adjudged to be guilty or not gudty.(6) If guilty, and the offence was capital, the court pronounced judgment of death in like manner as It the prisoner had been convicted by the verdict of a jury m England, or awarded such corporal punishment as the major part of the court deemed meet ; and in cases not capital the court adjudged such corporal punishment as the majority of the members determined upon. No ottender, however, could be sentenced to suffer death unless five members of the court concurred in findincr him guilty, or if five members did not agree in the award, until the King's pleasure was signified thereupon. (6) Mr. Judge-Advocate Wylde used to retire with the members of the court, after the evidence in each case was concluded, to deliberate This practice was continued until 1820, when the Judge- Advocate, on the suggestion of Mr. Commissioner i3igge, charged the members of the court in the presence of the prisoner and the pubiic— Mr. Com. Plgges Rep. p. 14, 1 r«,-,.J * 604 NEW SOUTH WALES. A Vice-Admiralty Court for the trial of offences com- miWecl upon the high seas was also constituted. (7; The letters-patent dated ith February, 1814, recited the part of the former patent of the 2d April, 1787, re- latmg to the institution and appointment of the criminal court, and made no change in its mode of procedure, its powers, or in the extent of its jurisdiction. The criminal laws continued to be administered under the same autho- rity until the act 4 Geo. 4, c.96, was passed; that act authorized his Majesty to remodel the courts for the ad- ministration of the criminal law, and the charter of justice, dated 13th October, 1823, which followed, placed the courts upon their present footing, there having been no new charter issued since the passing of the 9 Geo. 4, c. 83, (8) the provisions of which last-mentioned act did not materially vary from the 4 Geo. 4, c. 96. The authority under which the first civil judicature of the colony and its dependencies exercised its functions, was derived solely from His Majesty's commissions and let- ters-patent, for no act of parliament(9) empowered His Majesty to establish any form of civil judicature; and the form marked out and established was as great a departure from the laws and usages of England as that of the cri- minal judicature. The Civ.il Court, consisting of the Judge- Advocate and two inhabitants of the settlement appointed by the Go- vernor, heard and determined in a summary w^y all pleas of lands, houses, debts, contracts, and all personal pleas whatsoever. The court was empowered to summon the parties, to examine witnesses on oath, and to issue execu- tion under the hand of the judge-advocate. A party, feeling aggrieved by a decision of this court, was at liberty to appeal to the Governor, and from him, where the debt or thing in demand exceeded the value of ftfffc (7) Collins' (Judge- Advocate) ac- count of the colony of New South Wales. Barrington, in his work upon New Soutli Wales, also states, that the Vice-Admiralty Court had the power to try otf'enders ; but Mr. Went- worth, in the second edition of his woris, publislied in 1820, says, tiiat "the Court of Vice- Admiralty con- sists of the judge-advocate, nnd takes cognizance of captures, salvages, and such other matters of dispute respect- ing property as arise on the high seas, but it has no criminal jurisdiction. It is probable that when the court of criminal judicature was instituted, that the criminal business of the Vice- Admiralty Court was removed to it." (8) See the Charter, post. (9) The 27 Geo. 3, c. 2, only au- tlionzed His Majesty to estabhsh a^ court of criminal judicature. NEW SOUTH WALES. 605 ^■300, to the King in Council. This court was also em- powered to grant probates of wills and administrations of the persona estates of intestates dying within the colony. 1 he civil and criminal judicatures were united under the presidency of one person holding the office of iudse- advocate until the year 1814, when an alteration was nn.?. li Vu"^"^ commission and letters-patent, dated on the 4tli February in that year. The change consisted of a separation of the civil and criminal judicatures, and of the appointment of three new civil courts, viz. Supreme Court, Governors Court in New South Wales, and Lieu- tenant-Governor s Court in Van Diemen's Land.d) The principal court at this period was the High Court of Appeals, which was presided over by th? Governor, assisted by the Judge- Advocate. (2) In this court apl peals were heard against decisions of the Supreme Court, and Its judgments were final in all cases where the sum sued for did not exceed .£3000, but where it exceeded that amount, an appeal lay to the King in Council. The Supreme Court was composed of a judge of the court, and two magistrates appointed by precept from the Go- vernor, and had jurisdiction in all pleas where the matter in dispute exceeded £50 sterling. The Gover- nor s Court consisted of the Judge- Advocate and two in- habitants appointed by precept from the Governor, and took cognizance of all pleas (not arising between party and party at Van Diemen's Land,) (3) where the amount sought to be recovered was under £50 sterling, and from Its decision there was no appeal. These courts regulated their decisions by the laws of i^ngland, but the judge of the Supreme Court endea- voui-ed to give effect to the local regulations (4) published at different periods by the authority of the Governor of the colony when he found them to be conformable to the spirit or to the provisions of the law of England, and to (1) Mr. Comm. Bigge's Report, p. 2. ' (2) 2d edit. Wentworth, p. 341. (3) The Lieut.- Governor's Court in Van Diemen's Land had a similar jurisdiction in that island. (4) Mr. Commissioner Bigge's Re- s^---- — .. 5. ..ntVTi^rui, lu lac sccuna edition of his work, denies this, and says, " these courts take no notice whatever of the laws and regulations which have been made at various times by the local government. The enforcement of these is left entirely to the magistracy, who assemble weekly in the different towns throughout tiie colony, and take cognizance of all in- fractions as weil of tiie colonial as of the criminal code." , i 606 NEW SOUTH WALES. :l m ,*».':,' •I'm!) |?f— . I'k — , 1, '«.•«• , 1 V •»,•;> . § £»J i r** 1 S'^ i^P be beneficial in their operation, or even where he thought that they were essential for the support of the system by which the colony was governed. (5) The act 4 Geo. 4, c. 96, followed by a charter of justice framed in pursuance of its provisions, effected as great a change in the mode of administering the civil as it did in that of the criminal law of the colony. Since then the 9 Geo. 4, c. 83, has made some slight changes, but not such as to render a new charter actually necessary. CIVIL GOVERNMENT. The Governor of this colony is appointed to his office by two letters-patent, the first constituting him Governor of the territory of New South Wales, and the second, Captam-General and Governor-in-chief of Van Diemen's Land. (6) The Governor is the principal member of the Executive Council, consisting, besides himself, of the Lieutenant-Governor, the Colonial Secretary, the Colonial Treasurer, and the Archdeacon. He presides and votes at the sittings of the Legislative Council, and when the numbers on a division are equal he has the casting vote. The Governor is authorized to impose on importation into the colony duties not exceeding 10*. a gallon upon spirits, the produce and manufacture of the United King- dom, or the produce of British West India colonies ; not exceeding 15*. upon all other spirits ; not exceeding 4*. per lb. upon tobacco, and not exceeding il5 per cent. (5) The Governor issued proclama- tions and orders upon any subject — sometimes, but not always, the courts required them to be obeyed. Gover- nor Macquarie did even more, for upon one occasion, without issuing any public order or proclamation, he di- rected two constables to conceal them- selves in a place where the inhabit- ants of Sydney were accustomed to walk, and to arrest those who tres- passed on a particular spot. Three freemen, three convicts, and two wo- men were arrested, and immediately taken to gaol; the nest day the Go- vernor, without seeing or hearing them in defence, ordered 25 lashes to be inflicted on each of the three free- men and on one of the convicts, 30 lashes on the other two convicts, and directed the women to be confined for 48 hours. This illegal act of the Go- vernor created universal alarm among the colonists.— See Mr. Com. Biffffe's Hep, p. 48. (6) The warrants for appointing General Bourke, the present Governoi, to these offices, are severally dated 30th May, 1831. He is the first Go- vernor appointed since Van Diemen's Land was declnred independent of New South Wales. NEW SOUTH WALES. 607 es, but not upon goods, wares and merchandize, not being the growth, prouuee or manufacture of the United Kingdom. (7) The Governor is also empowered to levy upon colonial manufactured spirits a duty not exceeding the duty upon imported spirits. (8) O' 1"" The 20th section of the 9 Geo. 4, c. 83, declares it to be at present mexpedient to call a legislative assembly for the colony, and in lieu of one provides, that it shall be lawful for His Majesty, by warrants under his sign ma- nual, to constitute and appoint a council of such persons resident m the colony, not exceeding fifteen nor less than ten, as His Majesty shall be pleased to nominate and ap- point. In case of death, absence, removal, or resignation ot a member of the Council, the Governor may appoint another to act in his stead until His Majesty's pleasure be known. In concert with at least two- thirds of the members of the Council on the list, (exclusive of the Go- vernor or presiding member,) the Governor has the power to make laws and ordinances for the peace, welfare, and good government of the colony, such laws and ordinances not being repugnant to the act 9 Geo. 4, c. 83, or to any charter or letters-patent, or order in council, or to the laws of England, but consistent with such laws so far as the circumstances of the colony will admit. The Go- vernor has the initiative of all laws and ordinances to be submitted to discussion in the Council ; and it is pro- vided, that notice of the general objects of every act proposed to be brought into consideration, shall be sent by the Governor to one or more of the newspapers for insertion, eight clear days at least before a law shall bo passed, or in case there be no newspapers, such notice shall be given by some other mode of public advertise- ment ; but in cases of emergency, or where actual danger would arise from the delay of eight days, the notice may be dispensed with. If a majority of the members dissent from any bill, and enter the grounds of their dissent in the minutes of the Council, the bill cannot be passed into a law. Any member of the Council may request the Governor to introduce a bill for the consideration of the Council; and if the Governor shall decHne, he must lay his reasons in writing, together with a copy of the bill, (7) 3 Gro. 4, c. 96, eontiaucd in force by 9 Geo. 4, c. 83, s. 26. (8) 69 Geo. 3, c. 114, continued by 3 Ceo. 4, c.9G, and subsequently made perpetual by 9 Geo. 4, c. 83, s. 26. 608 NEW SOUTH WALES. before the Council; and any member disapproving of such refusal, may enter upon the minutes the grounds of his disapprobation. (9) Every bill passed by the Council must be transi ed within seven days to the Supreme Court to be enrolled, and after fourteen days from the date of such enrohnent it comes into operation. It is provided, however, that if the judges shall represent to the Governor that such bill is repugnant to the act 9 Geo. 4, c. 83, to the charters or letters-patent, or to the laws of England ; then the Governor inust suspend such bill until it has been brought, together with the representation, under the review of the Council, and if the Governor and Council upon review of such bill, differ from the opinions of the judges, and still adhere to the proposed law, a written notice of such resolution is to be transmitted by the Governor to the judges, and such law shall thenceforward take effect and be binding until His Majesty's pleasure shall be known, notwithstanding any repugnance or supposed repugnance to the laws or charters. (1) The Governor and Council are c^ipowered to impose taxes for local purposes, but the duties levied by the Go- vernor by authority of 52 Geo. 3, c. 114, and 3 Geo. 4, c. 96, are to be applied to such purposes as the Governor may appoint by any law or ordinance. (2) The members of the Council are justices of the peace by virtue of their office, (3) and they take an oath faithfully to advise and to assist the Governor.(4) COURTS. The Supreme Court. The 4 Geo. 4, c. 96, empowered His Majesty, by his letters-patent, to appoint the Supreme Court, and ac- cordingly His Majesty issued letters-patent under the great seal, bearing date 13th October, 1823, by the authority (9) 9Geo.4, c. 83, S.21. (1) $22. Should such a difference of opinion exist, the judges are re- quired to state in writing fully and at length the grounds of tiieir opinion, and copies of their reasons are to be transmitted to Ihn Kiiic (2) 9Geo.4, c.83,"s.27. (3) 9 Geo. 4,0.83,8.30. (4) 'i'hey were formerly sworn not to reveal anything which should be- come known to them in their capacity of members, but since the last act has come into operation the oath has not been administered, NEW SOUTH WALES. 609 of which the Supreme Court still maintains its iurisdic- tjon (5) The 9 Geo. 4, c. 83, did not make it nicessary innni ""Z^^^'/f ""^ Justice should be issued, as the second section of that act enacted that until other letters- Eflf m'-^7 ''T'^' '^^ ^""Vreme Court " so instituted by datP^i'i'l'^^l' 'f "^T??^'"J^ ""^'"•* ^^'^ g"-^^' ««^>' bearing date the I3th day of October, in the fourth year of His Majesty s re.gn (1823,) shall retain and exercise the juris- diction and power m such court vested by His Maiestv's said letters-patent, so far as the same may not be altered beVn;nS,tr,-""^-r' ^""r-^'y- if'such courts been instituted m virtue and pursuance of this act ; and t lings made and done m pursuance of the powers and authorities vested ,n His Majesty in and by the said act ostv rrl^^,^*' ^ ^^^g" of his present Ma- ^es y, (Geo. 4th, shall be of the same force and effect as the same had been issued, made, done, and performed by virtue and m pursuance of this act." 1 he Supreme Court is a Court of Record, and has cog- nizance of all pleas, civil, criminal, or mixed, and jurisdU tion in all cases whatsoever, as fully and amply to all intents and purposes in New South Wales and all and eveiy the islands and territories which now are or hereafter ToLn? '"bjf.^<^ *«.«'* dependent upon the government tliereof, as His Majesty's Courts of King's Blnch. Com- mon Pleas and Exchequer at Westminster, or eilher of them, lawfully have or hath in England. On the trial of every issue of fact joined between the parties in any action at law cognizable in the Supreme Court, where the sum or value of the matter in dispute exceeds £500 sterhng, and where the trial shall not be by iury. the judges cause the evidence to be taken down in writing by a clerk or officer, and to be repeated in open court to the wi nesses giving the same, and the evidence so taken is entered upon the proceedings of the court as matter of record ; and in every case of appeal to His Majesty in Council copies of all the documents and papers that are produced and given in evidence, or rejected, are required (5) The Registrar is the responsi- ble keeper of Ihe archives of the Su- preme Court, liaviiig the custody' of wills, &c. He is the depositary of the mtiiioriais of jvgisli^^ of all lilies of lund ond securities upon land in the colony, the only oilicer empowered to receive such memorials upon oath : moreover, the Registrar has sole charge of intestates' estates, — New South Wales Magazine, November 1, 1833. p. H)4. R R r I: 610 NEW SOUTH WALES. to be duly authenticated by the clerk and annexed to the record as part thereof The powers that the judges have who are appointed to preside in the court, are as extensive as those of the Judges of the Courts of King's Bench, Common Pleas, and Exchequer, in England. The Sirpreme Court is a Court of Oyer and Terminer and Gaol Delivery; it is also empowered to inquire of, hear, and determine all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences, of what nature or kind soever, committed or that shall be committed upon the sea, or in any haven, river, creek, or place where the admiral hath power, authority, or jurisdiction, or commit- ted or that shall be committed in the islands of New Zealand, Otahcite, or any other island, country, or place situate in the Indian or Pacific Oceans, and not subject to His Majesty or to any European state or power, by the master or crew of any British ship or vessel, or any of them, or by any British subject sailing in or belonging to, or that shall have sailed in or belon^^cd to, and have quitted any British ship or vessel to live in any part of the said islands, countries, or places, or that shall be here living ; and that all persons convicted of any of the offences so to be inquired of, heard, or determined in the said court shall be subject and liable to, and shall suffer all such and the same pains, penalties, and forfeitures as by any law or laws now in force persons convicted of the same would be subject and liable to in case the same had been committed and were respectively inquired of, tried, heard, and determined and adjudged in England, any law, statute, or usage to the contrary notwithstanding. (6) The Supreme Court is also a Court of Equity, and has power and authority to administer justice, and to do, exercise, and perform all such acts, matters, and things, necessary for the due execution of such equitable juris- diction, as the Lord High Chancellor can, or lawfully may, within the realm of England ; and all such acts, matters, and things as can or may be done by the said Lord High Chancellor within the real of England in the exercise of the common law jurisdiction to him belonging. The Charter of Justice expressly authorizes the Supreme (6) An information or indicf^ont apon 9 Geo. 4, c. 83, s. 4, must aver that the oft'ender is a British subject, and that the ship is a British ship ; and evidence must be given to sup- port both these allegations! See Hex V. Helsham, 4 Car. & Payne's Rep. p. 394. ^ NEW SOUTH WALES. Gil Court to appoint guardians and keepers of infants and then, estates, and also of the persons and estates of natural derstanding or reason by the act of God. so as to be unable to govern themselves and their esta e %hich the o?r.r/ '"^"''" °5 ^'l''' «"^ determine by' i^s^ecto^ of the person or such other ways and means by which the truth may be best discovered and known. ^ *^^ shall Lv?''°'i'-''- .^^,' ^"^^'^ *^^<^ the Supreme Court Dower nn 1 ^""'^l^'^fl'^'^^ jurisdiction, and shall have ful power and authority to administer and execute such ecc esiastical jurisdiction and authority as hath been or t± ^ committed to the said Supreme Court by ffis iSecf L'r^* '^T'' «^^f "ers-patint so issued o7to be issued as aforesaid ; provided that in all cases where the executor or executors of any will, upon being duly cited shall reftise or neglect to take out probate, of where the next of km shall be absent and the effects of the deceased shall appear to the said courts to be exposed and Sp o rutSiir'^^ '^ '^^'"^ '^i!' '''' -'^ coTt-es;! et erial oScer n? tlf ""^'T « '^' ''^''''^' «' ^^^er minis^ effec s am blll^ ''i'^ ^^P^'"'^" ^^^''^ ^^ «°"cct such eitects, and hold or deposit or invest the same in such such" Ide,*^ P'T',-""^ "P°" ^"^'^ ^^^""^y -"d «"bje t to such orders and directions as shall be made, either as applicable m all such cases or specially in any case! by ituhereT " "^^"^ ^' '''' ^' ^^^^ '' contr'ol,r dlX The Charter of Justice gives the court full power to of the inhabitants of that part of the said colony and ks dependences situate in the island of New Holland and of all other persons who shall die and lefve personal effects within that part of tlie said colony!" and where or7oer„T '"^"^'^ *" '''' "^ '^'' testator^dies"nteItate! or does not name an executor resident within the colonv to commit letters of administration with the wi 1 annexed* l^t:"fPT''r '^'' ^"°^^ ^"^ ^^hattels and credits and other effects whatsoever of such persons so dying, in cases aUowed by law as the same is and may be^now used S the diocese of London, and to demand, require, tike hear examine, and allow, and if occasion require to cHsalbw and reject the amounts nf the^i 'V ^,.^k ~ - "'f^i^o^ as ,s „o«, used or may be used in the said dSe™f R R 2 i liif' ^ki:; 61S NEW SOUTH WALES. London. The court however is required, where letters of administration shall be committed with the will annexed, for want of an executor appearing in due time to sue forth the probate, to reserve the power and authority to revoke the same, and to grant probate of the said will to such executor whenever he shall duly appear and sue for the same. The court may grant letters of administration with the will annexed to any one or more of the lawful next of kin of such person so dying and being then resident in the colony and of the age of twenty-one years ; and in case no such person shall be resident, or being cited shall not ap- pear and pray the same, then to the registrar of the court, or to any other person or persons as the court sliall see fit. The probates are not to extend to money, goods, chattels, or effects not within the colony. The court, before granting letters of administration, is bound to require a bond of every person to whom they shall be committed, and also to require sureties for the due administration of the effects. The court has the power to allow an execu- tor or administrator such commission or per centage out of the assets as shall be just and reasonable for his pains and trouble, if the executor or administrator shall have passed his accounts and obeyed the orders of the court. The Supreme Court is empowered by an Act of the Legislative Council to appoint trustees to discover, collect, and receive the estates and effects of insolvents, and to make orders for the distribution of the produce of such effects equally and rateably among the creditors. It may be observed that the laws in force within the colony upon the subject of insolvents' effects, are based upon the In- solvent Debtors' Act in operation in England, and that the powers of the court in this respect are precisely the same as the Insolvent Debtors' Court in England, except- ing that the Judge of the Supreme Court has authority to grant certificates discharging the insolvent from future liability, with the consent in writing of the major part in number and value of the creditors, with a restriction, how- ever, that such certificate shall not be allowed a second time to the same person, " unless his or her estate, when collected and realized, shall be sufficient to pay at least 15*. in the pound ; and also that no person or persons who shall be declared insolvent a third time or oftener shuii he entstiCu to any such ccriiucatc." NEW SOUTH WALES. Cil3 An Order in Council, datcil October 19th, 1824 au- "rXln " ^^'«f ^«*|f.- «f the Supreme Court to make rule, and orders touching and concerning the time and place of holding the sittings of the Supreme Court, the forms and manner of proceeding, and the practice and pleadings upon all indictments, informations, actions, suits, &c and all other matters to be brought therein." Accord- fIIW^^ ^?^ ''?"' *^^?' '^'^ C^'^^ J"«tice, Francis fU «f ii '^•' 'f»ed several orders regulating the prac Ztfn uT\ The first was. perhaps, the most im- fnrlL 1 '"'"'"^ r *^^* ^^^ respective rules and orders, forms and manner of practice and proceeding of and in s^v ^IT^ \^'TiP'^^ 9T^' ^' Westminste?, that is to say he Courts of Icing's Bench and Exchequer and the r^f!\'T ^^C'l^ncery, and of and in the Ecclesiastical rZ u'u *^ ^'°'^r f London, called the Consistory Court, shall from and after the date of this order be adopted and followed m the exercise of the several juris- dictions of the said Supreme Court of New South Wales, so tar as the circumstances and condition of the said colony shall require and admit, and so for as such rules and orders and forms of practice shall or may not be herein or at any time hereafter altered by some rule or order specifically provided and adapted to the conduct of business in the said Supreme Court." The second order provided that the proceedings within the several and re- spective jurisdictions of the Supreme Court should be ThlT'^A T^ continued in a distinct and separate form. 1 he third order provided that the fees for business should be the same as those charged by and allowed to the prac- titioners and officers of the courts in England. There bTn at^gatfd."^^ ""'"'^'^ '' "^"^' ^"' '^^^ ^^^ -- J^ePoV^^K*^'/^^'*^"™^?"' ^^^^' '^""^^^^ new rules were wWi?\ ni! ^'r ^^^""'ed that "every action at law which shall hereafter be commenced shall be entered in a short manner, setting forth the form of the action, and the nature of the process which may be required, in a l?^*?u^^MPV." f^^ °^^^ «f the Supreme Court, to be called the ' clerk s book,' for such purpose ; and shall be attorney The ordinary process of the court is a sum- mons calling upon the defendant to appear on a day named to answer in an action commenced ; the nature of 614 NEW SOUTH WALES. the action is then set forth, according to the form in which It has been already entered in the clerk's book, and the process concludes "as will » lore particularly be set forth in a declaration to be then and there exhibited." The third rule gives the form of a warrant of arrest, and the next declares the times when process shall be returnable. The fifth rule alters the times previously fixed for the terms, declaring they shall commence and determine on the first and last days of the months of March, June, Sep- tember, and December ; provided " that if the said months shall commence or end upon a Sunday, the said terms shall commence the Monday following or end the Satur- day preceding." The ninth rule directs that the manner of appearing shall be by a brief entry in the "clerk's book " under the entry of the action appeared to ; but if the defendant shall fail to appear on the day required by the process, the plaintiff shall enter an appearance and proceed as if the defendant had appeared. The tenth rule IS one of rather a novel character, for it allows a de- fendant or defendants, when he or they cannot be found by the sheriff, to be summoned to appear by advertise- ment in the Sydney Gazette, and in case the defendant or defendants do not appear on the day mentioned in such notice " the plaintiff may, upon duo proof thereof, enter a suggestion to such effect in the said court, and the same shall be minuted in the clerk's book ; and the plaintiff may thereupon proceed in such action in Hke manner as if such defendant or defendants had been (7) outlawed by due course of law." The eleventh rule requires a de- claration or a particular of demand to be filed before the day on which the defendant is to appear, in default of which a non pros may be entered. The twelfth rule allows particulars of demand to be filed instead of a de- claration in all cases where the Courts at Westminster require particulars to be given. The same rule directs that when a declaration is filed it shall set forth "in a plain, simple, and compendious manner, the true cause for which the plaintiff brings his action, and particularly avoiding all superfluous forms and unnecessary matter." The thirteenth rule provides that no nonsuit or demurrer shall be allowed for mistake between actions of trespass (7) See anle, 93, n. (9), and ilie cases there cited. NEW SOUTH WALES. 61^ and case. The fourteenth, fifteenth, and sixteenth rulea require that pleas or demurrers shall he filed within eight days from the return of the writ ; but allow the general issue to he filed "as often as the nature of the defence intended to be relied on will admit of a general denial of the plaintiff's cause of action," or, instead of a special plea, the general issue and the filing notice of the special matter upon which the defendant intends to insist in evidence. But if any new matter shall arise during the proceedings, a judge may allow the defendant to amend nis notice, and then evidence of such new matter may be received. A replication must be filed within twelve d va from the return day of the writ. The twenty-third ru.e allows witnesses, whose evidence is necessary in any action, and who are about to leave the colony, to be examined before a judge, and the depositions to be read at the trial ; and the twenty-fourth rule directs that judges may issue commissions for the examination of witnesses de bene esse in cases where the witnesses shall be beyond the seas, or aged or infirm, or otherwise disabled from attending the trial. The twenty-fifth rule provides that the original pleadings in the cause, and the book of mi- nutes relating thereto, shall be in the place of, and of the like force and eflfect as, a record of nisi prius regularly made up and passed. By rule 26 the verdict is to be entered by the clerk in his minute book. Rule 31 pro- vides "that immediately after judgment shall be pro- nounced it shall be entered in the clerk's book, and such entry shall set forth the debt, damages, costs, or thing recovered, and the day on which such judgment was pronounced. And the party obtaining such judgment shall, before execution, file in the office of the Supreme Court a roll of such judgment, wherein shall be set forth in a compendious manner the substantial parts only of the proceedings ; viz. the style of the court, the term and time of signing judgment, the names of the parties and of their respective attornies, the nature of the action, the material parts of the pleadings, and the judgment of the court. By rule 43 execution may be taken out at any time after judgment obtained and entered. The attorney for the party is required to indorse on the writ the sum bona fide due, and the sheriff is to levy accordingly. The defendant may point out the lands he desires to be first sold; and should they not realize the amount levied for, li'fel ^16 NEW SOUTH WALES. •the sheriff is to procoetl to sell the rcmaimlev ; and in case there shall be any surphis arising from the sale, the aheriffis tocause it to be paid to the defendant, or his attorney, within six days after he shall have received the same. By rule 41 it is declared " that where any judg- ment by default shall be obtained against any person who at the time of such judgment shall have been absent (8) from New South Wales, and such person shall, at any time within two years after the passing of such judgment, appear before the court and allege that more money hath been levied under such judgment than was due, the court shall, in a summary way, proceed to inquire into the case ; and if it shall be proved that more money hath been so levied or paid than was justly due, the court shall order the surplus, together with the levy fees thereon, to be restored by the plaintiff, and upon his refusal to make such restitution, the sum so ordered to be restored, toge- ther with the costs, shall be levied by execution. Rule 42. '* That where judgment shall pass by default against any infant or person being non compos mentis, such judg- ment may be inquired into and set aside in the like sum- mary manner bv the said court, at any time within five years after such disability shall be removed ; provided, however, that no such summary proceeding shall be allowed in cases where, by the laws of England, infancy IS not assignable for error." The forty-third rule pro- vides that no judgment shall be entered up on a warrant of attorney unless it shall appear, by the subscription of a justice or an attorney duly admitted in the Supreme Court, to have been made in his presence. The forty- fourth rule allows the representatives, when a party to a suit dies, if such action, suit, or other proceeding might have been originally prosecuted or maintained by or against the heirs, executors, or administrators, to be made parties to such suit, and liiereupon a suggestion of the death of the original party and the admission of his heirs, executors, or administrators in his stead, shall be entered in the clerk's book, and such action, suit, or other proceeding shall be continued in like manner as if such heirs, executors, or administrators had been originally parties thereto. The forty-fifth rule declares '♦ that it (8) See ante 93, n. (9), and the cases there cited. sr; and in ic 8ulc, tlio ant, or hia jceived tho any judg- lerson \»ho absent (8) lall, ut any judgment, loney hath , the couit ) the case ; th been so shall order 3on, to be d to make jred, toge- on. Rule ult against mch judg- like sum- within five provided, shall be d, infancy rule pro- a warrant iption of a Supreme rhe forty- larty to a ing might 3d by or rs, to be gcstion of ion of his I, shall be ;, or other IS if such originally " that it NEW SOUTH WALIia. 617 shall be lawfid for a plaintitt" or defendant in nny.suit where a party being a feme sole at the commencement of tlln Rlllt: hIi.'iII lir(^/irurn.. and exe- ind orders ler as any or other few South officers of ;rnor, but made up to the policy itutional bo- lot itnproba- NEW SOUTH WALES. G21 nt\A •V ;tcm Issues of fact are tried by a judge and two assessors, being magis rates, and liable to be challenged; but either plaintitt or defendant may apply for a trial by jury to the court, which has the power to grant or refuse the motion. fl,i o^ aIu''^''^ ^'^ appointed by the Governor, and tliey and the judge decide upon matters of fact. It has been usual for the judge to require the asses- sors to receive the law upon the matter in dispute from liim, and only to decide upon contested matters of fact : but in cases where the assessors have differed, the judge has also decided the matter of fact, that is to say, his vote upon the matter of fact has created a majority in the The Attorney-General. The Attorney-General is invested with the peculiar power of mstituting proceedings of a criminal nature in the bupreme Court, or at the Courts of Quarter Sessions, as not on y are all offences prosecuted by information in his .lame, but he has the power of finding or refusing the information there being no grand jury. He is therefore 'rl^ c"^ Jn the light of public prosecutor. 1 he Supreme Court, however, may allow any individual to exhibit a criminal information against any person or persons for any crime or misdemeanor not punishable with death, but even then the proceedings are conducted m the name of the Attorney-General. Judges, Barristers, &^c. The act 9 Geo. 4, c. 8iJ, allows His Majesty to appoint not more than three judges of the Supreme Court, and this number has been completed. The requisite qualifica- tion for a judge is, that he shall be a barrister in England or Ireland of not less than five years' standing, and he is appointed by His Majesty, but holds ofiice only durii.o- pleasure. ° In case however of the absence, resignation or death 01- incapacity from disease or infirmity, of a judge, the Governor may appoint some person to act in his stead until the judge returns to his duties, or another appoint- ment IS made by the King. The judges of the Supreme Court aru authorized by the charter to admit and enrol such and so many persons 622 NEW SOUTH WALES. having been admitted barristers at law or advocates in Great Britain or Ireland, or having been admitted writers, attornies or solicitors in one of the courts of Westminster, Dublin or Edinburgh, or having been admitted as proctors in any ecclesiastical court in England, to act as well in the character of barristers and advocates as of proctors, attornies and solicitors in the said court. (3) imx LAWS. (4) Acts of parliament, as far as they can be applied to the present circumstances of the colony, are in force, and when any doubt arises as to their applicabiUty, the Go- vernor and Legislative Council decide the question, (5) if there is time to refer to them ; but if not, the opinion of the judge presiding must guide the suitor. The principal acts of parliament particularly relating to this colony and its dependencies, and now in force there, are the 54 Geo. 3, c. 15 ; 4 Geo. 4, c. C3 ; 5 Geo. 4, c. 84 : 6 Geo. 4, c. G9; 9 Geo. 4, c. 83 ; and 2 & 3 Wm. 4, c. 69. The 54 Geo. 3, c. 1.5, intituled " An Act for the more easy Recovery of Debts in His Majesty's Colonies of New South Wales," was passed with a view to enable traders in Great Britain to sue their debtors in the courts of the colony; it enacted, that in any suit or action depending (3) A rule by the chief justice, dated March 7, 1829, requires that every person who shall intend to apply to be admitted an attorney or solicitor of the Supreme Court, shall for the space of one full term, previous to the term in which he shall apply to be admit- ted, cause his name, &c. to be affixed in the office of tlie Supreme Court, and to give notice of his intended applica- tion by advertisement in the news- papers. By a subsequent rule it is provided, that no person shall in fu- ture be admitted as an advocate un- less he be one in Great Britain or Ireland ; and that no persons shall be eligible to act as solicitors or alter- nies, unless admitted as solicitors, at- tornies, proctors, or writers to the signet, in sorr-s one or other of the King's Supreme Courts within the United Kingdom of Great Britain or Ireland, or unless he has been arti- cled to some practising solicitor or at- torney in New South Wales, and has served the term of five years, or unless he has duly seived part of the five years of articleship in New South Wales, and the other part in England, or vice versd, or shall have served the term of five years as a clerk in the office of the Supreme Court. This lat- ter rule, however, is not to come into operation until His Majesty's pleasure is known, it being repugnant to the charter. (4) See ante, p. 3 to 16, upon the general topic how far the colonies are subject to the law of the mother-coun- try. (5) 9 Geo. 4, c. 03, s. 24. NEW SOUTH WALES. (m for or relating to any debt or account, wherein any person residing in Great Britain shall be a party t shaU and may be lawful to and for the plaintiff o^r defeLan and also to and for any witness to be examined or made use of in such action or suit, to verify or prove any matter or thing by affidavit or affidavits in writing upon oa^h or in case the person making such affidavit be^^one of the people called Quakers, then upon his or her solemn as! surance made before any mayor or other chief magistrate ?1 Jfi^"7' ^^'°"^^ ""' ''^^^ ^•°^P°r-'*t« i" Greft Bri- tain (6) where or near to which the person inakinc. such affidavit or affirmation shall reside, and certified ancftrans mitted under the common seal of such city, borough or town corporate, or the seal of the office of such mayo • or other chief magistrate, which oath and solemn affirma- tion every such mayor and chief magistrate shall be and IS hereby authorized and empowered'to administer^ and every affidavit or affirmation so made, certified and tVans- nutted, shall m all actions and suits be allowed to be of the same force and effect as if the person or persons making the same upon oath or solemn affirmation as aforesaid had appeared and sworn or affirmed the matters contamed m such affidavit or affirmation vivd Ze in open court, or upon a commission issued for the examina- tion of witnesses, or of any party in any such action or suit respectively: provided that in every such affidavk oi afirmation there shall be expressed th^ addition of the party making such affidavit or affirmation, and the par- ticular place of his abode." ^ The second section of the same act permits, in any action or suit instituted by or on behalf of His Maiestv in the colonial courts, the affidavits of witnesses Ke used m the same manner that they may be used in actions by subjects ; and the third section declares, that if any one shall wilfully swear or affirm anything that is false he shall be deemed guilty of perjury. ' The fourth section of the same act is one of great im- portance to creditors; it enacts, that houses, lands, and other hereditaments and real estates situa e or being within the saul colony of New South Wales or Usde (6) It will be observed that this act uocs not permit an affidavit to be sworn hefore tlie mayor or chief magistrate of any city, borough or town corporal-.; in Ireland. *^ M^^A 624 NEW SOUTH WALES. li»-- pemlencies belonging to any person indebted, sball be liable to and chargeable with all just debts, duties and demands of what nature or kind soever, owing by any such person to His Majesty or any of his subjects, and shall and may be assets for the satisfaction thereof." Convicts are now transported to these colonies under the authority given to His Majesty to appoint places to which felons may be sent by the 5 Geo. 4, c. 84, the 9tli section of which act vests the property in their service in the Governor. In order to facilitate the proof of the con- viction of convicts in the colonial courts, section 24 enacts, that the clerk of the court having the custody of the re- cords of the court where the sentence or order of trans- portation has been passed or made, is to make out on request of any person on behalf of His Majesty, and give a certificate in writing, containing the effect and substance only of the indictment and conviction of the offender, and of the sentence or order of transportation ; which certifi- cate is evidence of the conviction and sentence or order of transportation. By the 3d section 6 Geo. 4, c. GO, one or more justices may take cognizance of and punish convicts, whose sen- tences have not expired or been remitted, for any crime or misdemeanor not punishable with death, and may take cognizance of complaints made against such convicts for drunkenness, disobedience of orders, neglect of work, absconding or desertion, abusive language to their, his or her employers or overseers, insubordination or other tur- bulent or disorderly conduct, or for punishing such of- fences or any of them: provided that no such justice or justices shall exercise any such powers, authorities, or jurisdictions as aforesaid, in any case where any court of general or quarter sessions shall be appointed to be held within one week after the complaint shall be preferred against any such offender, at any place not more than twenty miles distant from the place at which the offence shall be charged to have been committed. The 4th section authorizes the Governor to transport from the colony any convict again convicted to places which he may appoint. (7) By section 2, 2 8c 3 Wm. 4, c. 62, it is enacted, " that (7) Convicts re-convicted are sent from New South Wales to Norfolk Tr,lany ^^^^ ?S V-^er printed under fnJfnn 1 Zvi Newspaper editors, printers, proprie- S thP rff^ • tr' "'" '"^"''•^^ *« ^^^Se an affidavit tT en?er S ^^'^^^^'y^ '^^l^'^S their abode, &c., and to enter mto recognizance with sureties to pay al pe- nalties they may incur in cases of libel beforJ tLy p Jb- blasreZ^r "^ * r.-P^P^^L ,^^^«°"« ^^^^^ convicted of blasphemous or seditious hbels to be banished the settle- nun Jh \TJ^'"*'"^ to convicts give magistrates power to punish them summarily, and allow them to be sent to penal settlements for various offences. A free peLn TEn 1 1 ^'''^'^'' °' °*^^' «ff^»^^« f«r which tEe law mav hf . .""f ^"' transportation as the punishment, may be treated as a convict sent from England and ahould he again offend, he may be sent to Tptal settL CHARTER OF JUSTICc;— NEW SOUTH WALES. 13th October, 1823. George the Fourth, by the grace of God, of the United Kingdom of G.eat Britam and Ireland, King, Defender of the Faith, to all to Xm these presents shall come, greeting: Whereas by an A^t passed TZ Fourth year of our reign, intituled "An Act to provide unlth" Is for the better Admmistration of Justice in New South Wales arv"a Djemen s Land, and for the more effectual government thereof and for for u ZT" '^'"^ '''"''°'" '' ^^^ ^"^^'^^ ^-* it should be lawfu forus,ourhe,rs, or successors, by charters or letters-patent under the great seal of our United Kingdom of Great Britain and Irdand to S:n"s tT ''"''.^ r''"''"^"^^ ^" ^^^ South Wale tnd V : Diemens Land respectively, which should be styled "The Supreme hours and others, to execute in Eng- land agreements, (without stamps!) bmding themselves to work for seven years m the colony for the person, his heirs or assigns, who shall convey tliem there. If mechanics, &c. should not adhere to the agreement entered into in England when they arrive in the colony, they may be punished either under the colonial act or the y Geo. 4, c. 03. S SS iil m ■i G28 NEW SOUTH WALES— CirARTER OF JUSTICE. Court of New South Wales," and "The Supreme Court of Van Diemen's Land ;" and that each of sucli courts respectively slmuld be holden by one judge or chief justice, and should Iiave such ministerial or other officers as should hu necessai^ for the administration of justice ii, '1- 'ji'> oarts respectively, and for the execution of the judgments, deci iders, and process thereof; and it was enacted that the said judges should from time to time be appointed by us, our heirs, and successors, and that the said ministerial and other officers of the said coyrts respectively should from time to time be appointed to and re- moved from their respective offices in such manner as we, our heirs, and successors should by such charters or kuers-patent as aforesaid direct; and " „t ilie said judges should be respectively entitled to receive such reasonable salaries, as we, our heirs, and successors should approve and direct, which salaries sliould be in lieu of all fees or other emoluments whatsoever : Now know ye, that wo, upon full considera- tion of the premises, and of our especial grace, certain knowledge, and mere motion, have, in pursuance of the said Act of Parliament, thought fit to grant, direct, ordain, and appoint, and by these presents do ac- cordingly for us, our heirs, and successors grant, direct, ordain, and appoint that there shall be within that part of our colony of New South Wales situate in the Island of New Holland, a court, which shall be called a Supreme Court of New South Wales ; and we do hereby create, direct, and constitute the said Supreme Court of New South Wales to be a court of record; and we do further will, ordain, and appoint that the said Supreme Court of New South Wales shall consist of and be holden by and before one judge, who shall be and be called the Chief Justice of the Supreme Court of New South Wales, which Chief Justice shall be a barrister in England or Ireland of not less than five years standing, to be named and appointed from time to time by us, our heirs, and successors, by letters-patent under our and their great seal of the Ignited Kingdom of Great Britain and Ireland ; and Buch Chief Justice shall hold his office during the pleasure of us, our heirs, and successors, and not otherwise : And we do hereby give and grant to our said Chief Justice rank and precedence above and before all our subjects whomsoever within the colony of New South Wales aforesaid, and the islands, territories, and places dependent thereupon, excepting the Governor or acting Governor for the time being of the said colony, and excepting all such persons as by law or usage take place in England before our Chief Justice of our Court of King's Bench : And we do further grant, ordain, and appoint that the said Supreme Court of New South Wales shall have and use, as occasion may require, a seal, bearing a device and impression of our royal arms within an exergue or label surrounding die same, with this impression, "Tne Seal of the Supreme Court of New South Wales;' and we do NEW SOUTH WALES— CHARTER Of JUSTICE. C2D hereby prant, ordain, and appoint that the said seal sliall be delivered to and kept in the custody of the said Chief Justice : And we do further grant ordain, and declare that the said Chief Justice, so long as he shall hold his office, shall be entitled to have and receive a salary of £2000 sterling by the year; and our Governor or acting Governor for the time being of the said colony is hereby directed and required to -riuse such salary to be paid to ti.o said Chief Justice by four quarterly p yments, at the four most usual dayj of payment in the year, in bills of exchange to be drawn by such Governor or acting Governor as aforesai-J, o„ the Lords Commissioners of our Treasury in England, payable to or to the order of such Chief Justice, and which bills shall, by our said Governor or acting Governor, be accordingly delivered to the said Chief Justice • And we do further grant, ordain, and declare that the said salary shall commence and take place in respect to any person who shall be resi- dent in Great Britain or Ireland at the time of his appointment, upon and from the day on which any such person shall thereupon embark or depart from Great Britain or Ireland for New South Wales, to take upon him the execution of the said office; and that the salary of any such Chief Justice who shall at the time of his appointment be resident m New South Wales aforesaid, shall commence and take place from and after his taking upon him the execution of such his office : and that sucli salary shall be in lieu of all fees of office, perquisites, emolu- ments, snd advantages whatsoever, and that no fee of office, perquisite, emolument, or advantage whatsoever, other than and except the said salary, shall be accepted, received, or taken by such Chief Justice in any manner or on any account or pretence whatsoever : Provided never- theless, that it shall be lawful for the said Chief Justice to occupy and inhabit any official house or residence within the said colony of New South Wales which hath been or may hereafter be provided for his re- sidence and occupation, without paying to us, our heirs, and successors any rent for th< same, and without being obliged to repair, uphold, or maintain any such house or offi( al residence at his own cost and charges : And we do further gra. , appoint, and declare that no Chief Justice of the said Supreme Court . New South Wales shall be capable of accepting, taking, or performing any other office or place of profit or emolument, on pain that the acceptance of any such other office or place as aforesaid, shall be and be deemed in law dc facto an avoidance of his office of Chief Justice, and the salary thereof shall cease and be deemed to have ceas d accordingly from the time of such acceptance of any such other olhce or place : And we do hereby constitute and appoint our trusty and well-beloved Francis Forbes, esquire . to be the first Chief Justice of the said Supreme Court of New South Wales, the said Francis Forbes being a barrister in England of five years' s and upwards : And we do hereby ordain, appoint, and declare tli imor f § GSO NEW 80UT1! WALES— CHARTER OF JUSTICE. ! ! Pt*-^ shall be and belong to the said court the following officers, that is to say, a Ilegiitrar, a Prothonotary, a Master and Keeper of Jlecords, and such and so many officers ns to the Chief Justice of the said court for the time being shall from time to time appear to be necessary for the admi- nistration of justice, and the due execution of all the powers and authorities which arc granted and committed to the said court by these our letters-patent : Provided nevertheless, that no new office shall be created in the said court, unless the Governor or acting Governor for the time being of our said colony shall first signify his approbation thereof to our said Chief Justice for the time being, in writing, under the hand of such Governor or acting Governor as aforesaid : And we do fur- ther ordain and direct that all persons who shall and may be appointed to the several ofiices of Master, Registrar, Prothonotary or Keeper of Re- cords of the said Supreme Court of New South Wales, or to any offices in the said court, whereof the duties shall correspond to those performed by the Master, Registrar, Prothonotary, or Keeper of Records of nny or either of our Courts of Record at Westminster, shall be so appointed by us, our heirs, and successors, by warrant under our or their royal sign manual ; and that all persons who shall and may be appointed to an) other office within the said Supreme Court of New South Wales, shall be so appointed by the Chief Justice for ihe time being of the said court. And we do further direct and appoint that the several officers of the said court so to be appointed as aforesaid by us, our heirs, and succes- sors, shall hold their respective offices during our and their pleasure; and that the several officers of the said court so to be appointed as' aforesaid by the Chief Justice thereof, be subject to be removed by the said court from their offices therein upon reasonable cause : And we do hereby authorize and empower the said Supreme Court of New South Wales to approve, admit, and enrol such and so many persons having been admitted barristers at law or advocates, in Great Britain or Ireland, or having been admitted writers, attornies, or solicitors in one of our courts at Westminster, Dublin, or Edinburgh, or having been admitted as proctors in any Ecclesiastical Court in England, to act as well in the character of barristers and advocates, as of proctors, attor- nies, and solicitors in the said court; and which persons, so approved, admitted, and enrolled as aforesaid, shall be and are hereby authorized to appear and plead and act for the suitors of the said court, subject always to be removed by the said court from their station therein, upon reasonable cause ; and we do declare that no person or persons what- soever shall be allowed to appear and plead, or act in the said Supreme Court of New South Wales, for and on behalf of such suitors, or any of them: Provided always, and we do ordain and declare that in case there shall not be a sufficient number of such barristers-at-Iaw, advo- cates, writers, attornies, solicitors, and proctors within the said colony, NEW SOUTH WALES—CHAnTER OF JUSTICE. 631 competent and willing to appear and act for tlio suitors of the said court, then and in that case the said Supremo Court of New South Wales shall and is hereby authorized to admit so many other fit and proper persons to appear and act as barristers, advocates, proctors, at- tornies, and solicitors, as may be necessary, according to such general rules and qualifications as the said court shall for that purpose make and establish : Provided, that the said court shall not admit any person to act in any or either of the characters aforesaid, who hath been by due course of law convicted of any crime, which, according to any law now in force in England would disqualify him from appearing and acting in any of our Courts of Record at Westminster, And we do hereby ordain and declare that the Governor or acting Governor for the time being of the said colony of New South Wales shall yearly, on the first Monday in the month of January in each year, by warrant under Ills hand and seal, nominate ard appoint some fit and proper person to act as and be the sheriff for our said colony of Now South Wales and its dependencies, other than and except the Island of Van Diemcn's Land, for the year ensuing, which sheriff when appointed shall, as soon as conveniently may be, and before he shall enter upon his said office, take an oath faithfully to execute his office, and the oath of allegiance, before the Governor or acting Governor, who are hereby authorized to administer the same ; and such sheriff shall continue in such his office during the space of one whole year, to be computed from the said first Monday in the month of January, and until another shall be appointed and sworn into the said office ; and in case such sheriff shall die in his office, or depart from our said colony of New South Wales, then another person shall, as soon as conveniently may be after the death or de- parture of such sheriff, be in like manner appointed and sworn in as aforesaid, and shall continue in his office for the remainder of the year, and until another sheriff shall be duly appointed and sworn into the said office : And we do further order, direct, and appoint that the said sheriff and his successors shall by themselves, or their sufficient deputies to be by them appointed and duly authorized under their respective hands and seals, and for whom he and they shall be responsible during his or their continuance in such oflfice, execute, and the said sheiiff and his said deputies are hereby authorized to execute all the writs, sum- monses, rules, orders, warrants, commands, and process of the said Supreme Court of New South Wales, and make return of the same, together with the manner of the execution thereof, to the Supreme Court of New South Wales, and to receive and detain in prison all such persons as shall be committed to the custody of such sheriff by the said Supreme Court of New South Wales, or by the chief justice of the said court : And we do further authorize our Governor or acting Go- vernor for the time being of the said colony of New South Wales, to 632 NEW SOUTH WALES— CHARTER OP JUSTICE. re-appoint the same person to fill the office of sheriff from year to year, if it shall appear to our said Governor or acting Governor expedient so to do ; so nevertheless as that such appointment shall be annually re- newed and be not ever made for more than one year : Provided never- theless, and we do hereby require our said Governor or acting Governor of our said colony, in the selection of any person or persons to fill the said office of Sheriff of New South Wales, to conform himself to such directions as may from time to time be given in that behalf by us, our heirs, and successors, through one of our or their principal Secretaries of State : And we do further direct, ordain, and appoint, that whenever the said Supreme Court of New South Wales shall direct or award any process against the said sheriff, or award any process in any cause, matter, or thing wherein the said sheriff, on account of his being related to the parties or any of them, or by reason of any good cause of challenge which would be allowed against any sheriff in England, cannot or ought not by law to execute the same, in every such case the said Supreme Court of New South Wales shall name and appoint some other fit per- son to execute and return the same, and the said process shall be directed to the person so to be named for that purpose, and the cause of such special proceedings shall be suggested and entered on the records of the said court: Provided always, and we do hereby ordain and declare, that the said Supreme Court of New South Wales shall fix certain limits beyond which the said sheriff shall not be compelled or compellable to go in person, or by his officers or deputies, for the execu- tion of any process of the said court; and when the process of the said court shall be to be executed in any place or places beyond the limits so to be fixed, we grar.t, ordain, and direct that the said Supreme Court of New South Wales shall, upon motion, direct by what person or per- sons, and in what manner such process shall be executed, and the terms and conditions which the party at whose instance the same shall be issued shall enter into, in order to prevent any improper use or abuse of the process of the said court, and the said sheriff shall and he is hereby required to grant his special warrant or deputation to such per- son or persons as the said court shall direct for the execution of such process ; and in that case we direct and declare that the said sheriff, his executor, and admmistrators, shall not be responsible or liable for any act to be done in or in any way respecting the execution of such process, under and by virtue of such special warrant, and that any per- son or persons being aggrieved under or by pretence of such special warrant, shall and may seek their remedy under any security which may have been directed to be taken upon the occasion, and which the said court is hereby authorized to direct to be taken. And whereas in the said Act of Pa-liament it is enacted, that the said courts shall have cognizance of all pleas, civil, criminal or mixed, and the jurisdiction of NEW SOUTH WALES—CHARTER OP JUSTICE. 633 the said courts in all such cases is thereby settled and ascertained ; and it is thereby enacted, that the said courts shall be courts of ecclesiastical jurisdiction, and shall have full power and authority to administer and execute within New South Wales and Van Die- men's Land and the dependencies thereof, such ecclesiastical juris- diction and authority as shall be committed to the said Supreme Courts by our charters or letters-patent: Now we do hereby for us, our heirs and successors, grant, ordain, establish and appoint, that the said Su- preme Court of New South Wales shall be a court of ecclesiastical jurisdiction, with full power to grant probates, under the seal of the said court, of the last wills and testaments of all or any of the inhabit- ants of that part of the said colony and its dependencies situate in the island of New Holland, and of all other persons who shall die and leave personal effects within that part of the said colony, and to commit letters of administration under the seal of the said court of the goods, chattels, credits, and all other effects whatsoever of the persons afore- said who shall die intestate, or who shall not have named an executor resident within that part of the said colony and its dependencies ; or where the executor being duly cited shall not appear r.nd sue forth such probate, annexing the will to the said letters of administration, when such persons shall have left a will without naming uny executor or any person for executor, who shall then be alive and resident within that part of the said colony and its dependencies, and who being duly cited thereunto will appear and sue forth a probate thereof, and to se- quester the goods and chattels, credits and ot.. • effects whatsoever of such persons so dying, in cases allowed by law, as the same is and may be now used in the diocese of London; and to demand, require, take hear, examine, and allow, and, if occasion require, to disallow and' reject, the accounts of them in such manner and form as is now used or maj be used hi the said diocese of London, and to do all other things whatsoever needful and necessary in that behalf: Provided always, and we do hereby authorize and require the said court in such cases as afore- said, where letters of administration shall be committed with the will annexed, for want of an executor applying in due time to sue forth the probate, to reserve in such letters of administration full power and authority to revoke the same, and to grant probate of the said will to such executor whenever he shall duly appear an, sue forth the sar-e. And we do hereby further authorize and require the said Su- preme Court of New South Wales to grant and commit such letters of admmistration to any one or more of the lawful next of kin of such person so dying as aforesaid, and being then resident within the juris- diction of the said court, and being of the age of twenty-one years, and in case no such person shall then be residing within the jurisdiction of the said court, or being duly cited shall not appear and pray the i-. 634 NEW SOUTH WALES— CHARTER OF JUSTICE. 185 same, to the registrar of the said court, or to such person or persons, whether creditor or creditors or not of the deceased person, as the court shall see fit: Provided always, that probates of wills and letters of ad- ministration to be granted by the said court, shall be limited to such money, goods, chattels and effects as the deceased person shall be enti- tled to within that part of the said colony situate within the island of New Holland : and we do hereby further enjoin and require that every person to whom such letters of administration shall be committed, shall before the granting thereof give sufficient security by bond, to be entered into to us, our heirs and successors, for the payment of a com- petent sum of money, with one, two or more able sureties, respect being had to the sum therein to be contained, and in the ability of the sureties, to the value of the estates, credits and effects of the deceased, which bond shall be deposited in the said court among the records thereof and there safely kept, and a copy thereof shall also be recorded among the proceedings of the said court; and the condition of the said bond shall be to the following effect :— " That if the above bounden administrator of the goods, chattels and effects of the deceased do make or cause to be made a true and perfect inventory of all and sin- gular the goods, credits and effects of the said deceased, which have or shall come to thj hands, possession or knowledge of him the said admi- nistrator, or to the hands or possession of any other person or persons for him; and the same so made do exhibit or cause to be exhibited into the said Supreme Court of New South Wales, at or before a day therein to be specified, and the same goods, chattels, credits and effects, and all other the goods, chattels, credits and effects of the deceased at the time of his death, or which at any time afterwards shall come to the hands or possession of such administrator, or to the hands or pos- session of any other person or persons for him, shall well and truly administer according to law, and further shall make or cause to be made a true and just account of his said administration at or before a time therein to be specified, and afterwards from time to time as ho, she or they shall be lawfully required, and all the rest and residue of the said goods, chattels, credits and effects which shall be found from time to time remaining upon the said administration accounts, the same being first examined and allowed of by the said Supreme Court of New South Wales, shall and do pay and dispose of in a due course of admi- nistration, or in such manner as the said court shall direct, then this obligation to be void and of none effect, or else to be and remain in full force and virtue ;" and in case it shall be necessary to put the said bond in suit, foi- the sake of obtaining the effect thereof for the benefit of such person or persons as shall appear to the said court to be in- terested therein, such person or persons from time to lime giving satis- factory security for paying all such costs as shall arise from the said NEW SOUTH WALES— CHARTER OF JUSTICE. C35 suit or any part thereof, sucli person or persons shall by order of the said court be allowed to sue the same in the name of the Attorney- General for the time being of the said colony, and the said bond shall not be sued in any other manner; and we do hereby authorize and empower the said court to order that the said bond shall be put in suit in the name of the said Attorney-General. And we do further will, order and require, that the said court shall affix certain periods when all persons to whom probates of wills and letters of administration shall be granted by the said court, shall from time to time, until the effects of the deceased person shall be fully administered, pass their accounts relating thereto before the said court; and in case the effects of the deceased shall not be fully administered within the time for that purpose to be fixed by the said court, then, or at any earlier time, if the said court shall see fit so to direct, the person or persons to whom such probate or administration shall be granted, shall pay, deposit and dispose of the balance of money belonging to the estate of the deceased then in his, her or their hands, and all money which shall afterwards come into his, her or their hands, and also all precious stones, jewels, bonds, bills, and securities belonging to the estate of the deceased, in such manner and unto such persons as the said court shall direct for safe custody; and we require that the saiJ court shall from time to time make such order as shall be just for the due administration of such assets and for the payment or remittance thereof or any part thereof, as occasion shall require, to or for the use of any person or persons, whether resident or not resident in the said colony and its dependencies, who may be enti- tled thereto or any part thereof as creditors, legatees or next of kin, or by any other right or title whatsoever. And we further order and direct, that It shall be lawful for the said court to allow to any executor or ad- ministrator of the effects of any deceased person (except as herein men- tioned) such commission or per centage out of their assets as shall be just and reasonable for their pains and trouble therein: Provided always, that no allowance whatever shall be made for the pains and trouble of any executor or administrator who shall neglect to pass his accounts at such time or to dispose of any money, goods, chattels or securities with which he shall be chargeable, in such manner as in pur- suance of any general or special rule or order of the said court shall be requisite; and moreover every such executor or administrator so neg- lecting to pass his accounts, or to dispose of any such money, goods, chattels or securities with which he shall be chargeable, shall be charged' with interest at the rate then current within the said colony and its de- pendencies for such sum and sums of money as from time to time shall have been in his hands, whether he shall or shall not make interest thereof.^ And we do hereby authorize tlie said Supreme Court of New South Wales to ajjpoint guardians and keepers of infants and their *€ 686 NEW SOUTH wales— charter of justice. estates according to the order and course observed in that part of our United Kingdom called England, and also guardians and keepers of the persons and estates of natural fools, and of such as are or shall be de- prived of their understanding or reason by the act of God, so as to be unable to govern themselves and their estates, which we hereby au- thorize and empower the said court to inquire, hear and determine, by inspection of the person, or such other ways and means by which the truth may be best discovered and known. And whereas it is by the said act enacted, « that it shall and may be lawful for us by our said charters or letters-patent respectively to allow at.y person or persons feeling aggrieved by any judgment, decree, order or sentence of the Court of Appeals of the colony of New South Wales, to appeal there- from to us in our Privy Council, in such manner, within such time, and under and subject to such rules, regulations and limitations as we by any such charters or letters-patent respectively should appoint and prescribe : Now we do hereby direct, establish and ordain, that any person or persons may appeal to us, our heirs and successors, in our or their Privy Council in such manner, within such time, and under and subject to such rules, regulations and limitations as are hereinafter mentioned, (that is to say,) in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter at issue above the amount or value of £2000 sterling, or in case such judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand or question to or respecting property or any civil right, amounting to or of the value of £2000 sterling, or in case the said Court of Appeals should by any sucii judgment, decree, order, or sentence reverse, alter or vary any judgn.ent, decree, order or sentence of the said Supreme Court of New South Wales, the person or persons feeling aggrieved by any such judgment, decree, order or sentence of tiie said Court of Appeals, may, within fourteen days next after the same shall have been pronounced, made or given, apply to the said Court oF Appeals by petition for leave to appeal there- from to us, our heirs and successors, in our or tneir I'rivy Council ; and in case such leave to appeal shall be prayed by the party or parties who is or are directed to pay any sum of money, or perform any duty, the said Court of Appeals shall and is hereby empowered either to direct that the judgment, decree, order or sentenca appealed from shall be carried into execution, or that the execution thereof shall be sus- pended pending the said appeal, as to the said court may appear to be most consistent with real and substantial justice; and in case the said Court of Appeal shall direct such judgment, decree, order or sen- tence to be carried into execution, the person or persons in whose fa- vour the same shall be given, shall, before the execution thereof, enter into good and sufficient security, to be approved by the said Court of NEW SOUTH WALES—CHARTER OF JUSTICE. 637 Appeals, for the due performance of such judgment or order as we, our heirs and successors, shall think fit to make thereupon; or in case the said Court of Appeals shall direct the execution of any such judgment, decree, order or sentencr to be suspended pending the appeal, the person or persons against whom th= same shall have been given, shall in like manner and before any order for the suspension of any such exe- cution is made, enter into good and sufficient security to the said Court of Appeals for the due performance of such judgment or order as we, our heirs or successors, shall thinl' fit to make thereupon ; and in all cases we will and require that security shall also be given by the party or parties appellant to the satisfaction of the said Court of Appeals, for the prosecution of the appeal and for the payment of all such costs as may be awarded by us, our heirs and successors, to the party or parties responde^it; and if such last-mentioned security shall be entered into within three months from the date of such petition for leave to appeal, then, and not otherwise, the said Court of Ajjpeals shall allow the ap- peal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her or their appeal to us, our heirs and successors, in our or their Privy Council in such manner and under such rules as are observed in appeals made to us from our plantations or colonies: and we do hereby reserve to ourself, our heirs and successors, in our or their Privy Council, full power and authority, upon the humble petition, at any time, of any person or persons aggrieved by any judgment or de- termination of the said Court of Appeals, to refuse or admit his, her or their appeal therefrom, upon such terms and upon such limitations, re- strictions and regulations as we or they shall think fit, and to reverse, correct or vary such ju^a-ment or determination as to us or them shall seem meet: and it is our further will and pleasure, that in all cases of appeal allowed by the said Court of Appeals, or by us, our heirs or successors, the said Court of Appeals shall certify anl transmit tc us, our heirs or successors, in our or their Privy Council, f. true and exact copy of all evidence, proceedings, judgments, decrees and orders had or made in such causes appealed from, so far as the same have relation to the matter of appeal, such copies tc be certified under the seal of the said court. And we do further diiect and ordain, that the said Su- preme Court of New South Wales shall in all cases of appeal to us, our heirs or successors, conform to and execute, or cause to be executed, such judgments and orders as we shall think fit to make in the pre- uises, in such manner as any original judgment, decree, or decretal or'io: or other order or rule by the said Supreme Court of xNew South W.ies, should or might have been executed: and we do hereby strictly ci- uge and command all governors, commanders, magistrates, minis- ters, civil and military, ..nd all our liege subjects within and belonging to the said colony, that in the execution of the several powers, jurisdic- 638 NEW SOUTH WALES— niARTEll OF JUSTICE. i I tious and authorities hereby granted, made, given or created, they be aiding and assisting, and obedient in all things, as they will answer the contrary at their peril : Provided always, that nothing in these presents contained, or any act which shall be done under the autho- rity tljereof, shall extend or be construed to extend to prevent us, our heirs and successors, to repeal these presents or any part thereof, or to make such further or other provision by letters-patent for the administration of justice, civil and criminal, within the said colony and the places now or at any time hereafter to be annexed thereto, as to us, our heiru and successors, sliall seem fit, in as full and ample a man- ner as If these presents had not been made, these presents or anything herein contained to the contrary thereof in anywise notwithstanding. In witness, &c., the 1 3th day of October. By Writ of Privy Seal. Examined with the Record in the Petty Bag Office in the Court of Chancery, the 22d day of April, 1834. J. Bentall. .. !•■■. ( 030 ) VAN DIEMEN'S LAND. Van Diemen's Land, or Tasmania, as the settlers call it, IS an island situated between the parallels of 40° and 44° south latitude, and 144° and 149" east longitude. In ex- tent from north to south it is about 210 miles, and from east to west about 150, containing a superficies of nearly 23,437 square miles, or 14,999,680 square acres, only one-half of which is supposed to be capable of being brought into cultivation, but at present not above 60,000 acres (1) have been subjected to the plough. It is bounded by the ocean on three sides, and on the fourth by a channel, called Bass' Straits, which separates it from New Holland, and in which there are several small islands. The climate is fine and salubrious, the extremes of heat and cold being unknown. The principal towns are Hobart Town, frequently called Hobarton, and Laun- ceston, both of which are free warehousing ports. The chief articles exported are bark for tanning, oil, train and sperm, timber, whale fins, sheeps' wool, skins, corn, and potatoes. HISTORY. Tasman, the Dutch navigator, discovered this island in 1642, and called it Van Diemen's Land, in honour of the then Governor-General of the Dutch East Indies. From that time down to 1773, when Captain Cook an- chored there, only two or three navigators had visited it, and they all supposed it to be part of New Holland. Mr. Bass, a surgeon in the royal navy, discovered, in an expedition that he undertook in an open boat, the channel called Bass' Straits, and Captain Flinders and Mr. Bass subsequently, in 1798, sailed through the strait \kM^-- (1) Parker's Vau Diemea's Land, p. 123. G40 VAN UIEMEN's land. • IB ami round llio island in a small decked sloop. This ex- pedition satisfactorily determined the geographical posi- tion of tlie country. In 1803 the first settlement was formed on the banks of the Derwent, and was called Ilisdon. The persons who founded it were a small detachment of soldiers, under the command of Lieutenant Bowen, and a party of convicts, persons who had been transported from England to New South Wales, and had there committed crimes, for which they were to be punished by being sent to a penal settle- ment of a lower grade. In 1801 Lieutenant-Governor Collins, who had recently left England with a consider- able party, having in view the formation of a settlement at Port Phillip, on the southern coast of New Holland, and had altered his destination, after ascertaining the un- fitness of that port for his object, arrived in the Derwent, and took the command. Shortly after he had taken upon himself the administration of aftairs, he removed the set- tlers from Ilisdon to the present site of Ilobart Town, which is now the seat of government. In the same year a settlement was also effected by Colonel Patterson at Port Dalrymple, and then the island was divided into two counties, Buckinghamshire and Cornwall. Until 1813 no vessels were allowed to enter the harbours or ports, as the settlement was only considered a place of punishment for the re-convicted felons of the colony at New South Wales. It was about this period that the offence of bush-ranging first became prevalent, and it afterwards grew to such an alarming height, that it was not until military law was declared nnd put in force that it was suppressed. Previous to the year 18 IG no civil court was held, but in the month of January in that year the Lieutenant-Go- vernor's Court, composed of a judge-advocate (2) and two inhabitants of the settlement, was opened for the trial of civil causes, not exceeding in amount the sum of i,'50 : suits for a larger amount were, as all actions be- fore had been, instituted in the Supreme Court at Syd- ney; and it was in consequence of the increasing number and importance of those suits that the Judge of the Su- preme Court in Jaruary, 1819, went to Hobart Town (2) The Judge-Advocate admitted persons to practise in this court who had not received a legal education, and these were called practitioners. VAN DIEMEN's land. 041 and there held a sitting. The next sitting was held in the year 1821, and the Judge of the Supreme Court was then accompanied by the Judge-advocate, who, for the nrst time, opened a criminal court. ^ Up to that period all offences committed by con- victs, excepting murder, had been punished by a bench ot magistrates, at monthly meetings, held at Hobart 1 own, but the punishments the bench inflicted were ne- cessarily often too lenient; for heinous ofTences trans- portation to the Coal River for three and five years, with condemnation to work there in chains, was the usual fiS^T^u' ^"^JP'' '^^^^'' *^""^^^ flogging, to the amount of dUU lashes. The investigation of offences committed by free people was referred to the Criminal Court at Sydney and such was the reluctance of the settlers to quit their property to carry on prosecutions, and to incur the ex- pense, trouble and delay necessarily attendant upon a long voyage, that compromises of crimes of the blackest kind were frequently effected. In the year 1819 the attention of emigrants was called to the advantages the island presented, and since that time the tide of emigration has set in so very steadily to **^^]?^)^^^' *^^tthe population, which then did not amount to 0000 souls, now exceeds 35,000.(3) The 4 Geo. 4, c. 96, placed the colony in a much higher situation than it had previously stood ; it established a court of justice having criminal, civil, equitable, and, to a certain extent, ecclesiastical jurisdiction, called " The Supreme Court of Van Diemen's Land." This court was also authorized to proceed by process of foreign attach- ment against the efTects of debtors absent from the co- lony, and to declare insolvencies, and to distribute the effects of insolvent persons in Van Diemen's Land. Courts of Quarter Sessions and Courts of Requests w^re also instituted by the powers given to the Governor by the same act. In the year 1825 a proclamation was issued, declarino- Van Diemen's Land to be independent of New South Wales,. and thereupon the Lieutenant-Governor assumed the powers of Governor, and an Executive Council, con- (3) The population consisted, as taken at the general muster or census in 1821, of 7185 souls, of whom 3246 were free persons, and 3939 were con- victs. Wentworth, 2d ed. p. 55. T T 642 VAN DIEMEN S LAND. sisting of the Liputenaiit-Governor, Chief Justice, Tolo- iiial Secretary, Colonial Treasiui r and I o principal (acting) military officer was appointed ; and a Legislative Council, consisting of seven persons nominated by Hib Majesty, was called together for the purpose of making laws for the government of the colony. The 9 Geo. 4, c. 83, relates to this island as well a- to New South Wales, and therefore the civil and judicial establishments do not differ in any material degree i'i>m those of the parent-colony. H CIVIL GOVERNMENT. The officer who t mtrols the affairs of this colony is only a Lieutenant-Go \rnor, but he has all th( uthority of a governor when the Governor of New Soui Wales, who is the Captain-General and Govcrnor-in-Chief of Van Diemen's Land, (4) is not present in the island. The Lieutenant-Governor is the head of the Execu- tive Council, and he is required to consult with the mem- bers upon all matters of moment, but he is not bound to adopt the opinions the majority express ; though, should he differ from them, and act contrary to their advice, he must transmit his reasons for having so acted to the Se- cretary of State for the colonies. The I'^iXecutive Council consists at present of the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Colonial Treasurer, and Lieutenant-Colonel Logan. (5) The Legislative Council consists of not more than fif- teen members, nor less than ten, appointed by the King's warrant. Several of the members, such as the Chief Jus- tice, Colonial Chaplain, Attorney- General, Treasurer, and Secretary are members ex officio. The duties of the Legislative Council, (G) as well as the mode enjoined of conducting business, are these : — L The members are to make laws and ordinances for the peace, welfare, and good government of the colony. (4) See ante, p. 606 and note (6). (5) This gentleman is the senior officer of the military force stationed in the island, but as the 63d regi- ment, of which he is colonel, is about to be lemoved, it is probable that his successor will be the colonel of the next regiment which shall bo sent there. This is usually the case in other colonies. (6) Van Diemen's Land Alma- mack for 1833, p. 66. VAN DII men's land. 648 No arini?^,^"'"^ '?"«"«"' *« *»'« lawsof rngland.(7) by the Governor before the Conncil, nor unless notice of the gen. ,.al objects of it shall h..ve been sent by""^ G. eTX.WrT' °'."r' '/;*'" newsnapers h,r insertion, eight dear lays at least before such lai shall be passed shall hol'jvi'i i"'*' ''''' 'f "" newspapers, such notice excent^fh I 'T^ "'^^^^ °^ P"^''^ a.'vertiseu.ent;(8) except when the Governor shall consider that actual t?uLti A':" f" ^^^'/^^'^yof eight daV, in S case the bill may be passed on the emergency into a law. the meT^' '' not competent to act unless two-tlmds of member, be present; and if a majority of the members Ct '7nT ':r '''' ""? ""T^^"' "^ V the G":"rnor they m enter the grounds of (heir dissent against the clTX '"'"r"^"' ""^ the Council, and then it cannot be- member .[■ 11 "f"' *''V ^'"^^^nor, on the request of any foi^ fhP r -i'"^' ''^ '''"il' "" '-^ «""'J"r request, lay be- to e the Councd a copy of his refusal, with a copy of the p"vnV:^'1 '':'''\ '''^'^^^ anda„yn.embe^.disap- g^oTdVoS^^^^^^^^^^ "^- ^'- --^- ^'- from tfrdL* '7- '^'''" ^^ transmitted, within seven days to the Stm^^J. V^'T^ *l"'°"^^^ *'•" Legislative Council, davsfr3 1?"^ *^^" ^"^°"^^' and after fourteen days fiom the date of such enrolment it comes into opera- sent' to tlu' r ' ^"'^^^'^ f '^'' ^'^"P"--"^ C°"r* ^J^'-^" '^P e- 9 Goo 4 %qT'T' /''^^' '"^^'^ law is repugnant to\he letTers'nalf ' ^''l *'''n"^' °^ '^"^land, to^harters or to aw intn r; ' ^r^'^ov shall then suspend such ion under ^h ^''•""^lit it together with the representa- the hLl' ^°^^^"«r ^."d Council cannot see the force of 2l^fse^Tepveseutation, and shall adhere to the pro- td ttl^ 1 Tt;"'/^ "°*'^^ "^ ^"^'^ ^^««^"tion shalFbe STake pffp^/ Governor to the judges, and such law sure be Vn ^"'^ ^^ ^^"'^'"'= ""'^1 "i« Majesty's plea- rt^itttLTng'.cp"/ "'"'•""' " "P^"^' '^^"^"'"^^ /^J<*o^'« '*'*'• ^^'^-20 and 21. (8) Sect. 21. (9) A difference of opinion as to the repugnancy of a law exists at the present time in Van Diemen's Land the judges having represented the 61st T T O. Ji 'i IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I If 1^ m ^ 1^ 12.2 UUi- ill 1.8 L25 il.4 IIIIII.6 y] ^ '•>, ^. /a om. m. ^ •? .ight. This how- ever would not justi'.y the enactment. (1) 9 Geo. 4, c. 83, s. 24. (2) Sect. 25. (3) Sect. 28. I VAN DIEMEN S LAND. 645 Majesty in pursuance of the 9 Geo. 4, c. 83, shall be laid before both Houses of Parliament within six weeks after the commencement of each session. (4) 8. The members of the Council are justices of the peace by virtue of their office, and take the following oath, VIZ.:—" I do swear that I will, to the best of my judgment and ability, faithfully advise and assist the Go- vernor of the Colony of Van Diemen's Land and its dependencies in all such matters as shall be brought under my consideration as member of the Council of the said colony. So help me God." (5) 9. In the case of death or resignation of a member of Council, the Governor may appoint some person to act in his stead until His Majesty's pleasure be known. (6) The Governor and Council are empowered to raise a revenue by taxation, but the particular local object to which the money to be raised by every impost is to be applied, must be specified by the act of the Council di- recting it to be levied. (7) COURTS. The Supreme Court. The 4 Geo. 4, c. 96, was the first act of parliament authorizing His Majesty to issue letters-patent instituting a Supreme Court in Van Diemen's Land, and under the authority of that act a charter of justice passed the great seal, bearing date 13th October, 1823; it became necessary, however, after Van Diemen's Land was de- clared an independent colony, and after the 9 Geo. 4, (4) 9 Geo. 4, c. 83, s. 29. (5) Sect. 30. (6) Sect. 31. (7) Sect. 25. The next section makes perpetual the 59 Geo. 3, c. 114, and the 3 Geo. 4, c.96, authorizing the imposition of duties upon importa- tion, not exceeding 10s. a gallon on spirits, the produce and manufacture of the United Kingdom or the British West Indies; not exceeding 15s. a gallon on all other spirits ; not ex- ceeding 4s. per lb. on tobacco, and not exceeding £15 per cent, on goods, wares and merchandise, not being the growth, produce or manufacture of the United Kingdom. These duties are not exacted to the full extent, as the subjoined account of the duties new levied will show:— on brandy, per gallon, 10s.; Hollands or Geneva, 10s.; on rum, the produce of the West Indian colonies, 7s. 6d.; on British gin, 7s. Qd. ; and tobacco per lb. Is. 6d. ; on all merchandise of fo- reign produce or manufacture, an ad valorem duly of £5 per cent, on im- portation, with tlie exception of wine, which is subjected to a duty of £15 per cent. Goods of Biitish manu- facture are not liable to any duty. ».ifi 646 VAN DIEMEN's land. if »»« 1 I- ■ , i c. 83, came into operation, that a new charter should issue, and accordingly on the 4th March, 1831, a charter ot justice, adapted to the new condition of the colony, was published. ^ The Supreme Court is presided over by two judges, who must be barristers of five years' standing. (8) Its ju- risdiction is as extensive within the colony and its de- pendencies as that of the Courts of King's Bench, Com- mon I leas, and Exchequer in England ; and it has besides the power to proceed by foreign attachment in certain cases where the sheriff has returned non est inventus.id) Issues of fact are triable before one of the judges and two assessors, magistrates of the colony, appointed to this duty by the Governor. The assessors are liable to be challenged on behalf of either plaintiff or defendant, but reasons for challenge are to be assigned, and the judge is to determine whether they are sufficient. If the assev sors do not agree on a verdict, the judge has the casting vote. 1 arties are not entirely precluded, however, from having fheir cause tried before a jury, as the court, on the application of either plaintiff or defendant, may order a jury to be summoned. This court is also a criminal court for the trial of trea- sons, murders, felonies and misdemeanours committed within the island and its dependencies, as also within the jimsdiction of the Vice-Admiral, and for the trial of oltences, committed by British subjects belonging to Bri- tish ships, in the islands of Otahaite, New Zealand, and in those of the Indian and Pacific Oceans. (1) Criminal ottences are prosecuted by information at the instance and in the name of the Attorney-General of the colony, and are tried by seven miUtary or naval officers as a jury; but it seven officers cannot be obtained, the number may be completed with magistrates. (2) The 10th section of the 9 Geo. 4, c. 83, authorizes the King to extend an I apply the form of proceeding by grand and petit juries. An act of the Legislative Council passed in the early part of tins year (1834), has given the Judges of the ^upreme Court the power to declare insolvencies, and to distribute the effects of insolvents. (8) 9 Geo. 4, c. 83, s. 16, allows the judges to make rules of practice, but there are no copies of these rules in England. (9) 4 Geo. 4, c. 96, s. 9. (1) See ante, p. 610 and note (6). (2) See ante, p. 621. VAN DIEMEN*S LAND. 647 li This couri also possesses equitable and ecclesiastical jurisdiction of the same extent as the Supreme Court of New South Wales. (3) An appeal from the decision of this court is not to the governor, as in the instance of the Supreme Court of JNew South Wales, but direct to the King in Council; it lies in cases where any judgment, decree, order, or sen- tence shall be given or pronounced for or in respect of ^Nf^^"^ or matter at issue above the amount or value of ot 1000 sterling, or shall involve directly or indirectly any claim, demand or question to or respecting property or any civil right amounting to or of the value of £1000.r4) Circuit Courts. These courts I & e been instituted by an Order in Council, issued pursuant to the provisions of the 9 Geo. 4, c. «, s. 13. They are Courts of Oyer and Terminer and traol Delivery, and of assize and nisi prius. Sittings are occasionally held at Launceston by one of the judges of the Supreme Court. Courts of Quarter Sessions, These courts derive their authority from an act of the Jbegislative Council passed in the year 1830. They form courts of appeal from decisions of magistrates in certain cases, and are empowered to try all offences not punishable with death. (5) They also have special juris- (3) See ante, pp. 608, 611, and the charter of justice, post, 653. This colony is within the diocese of Cal- cutta and archdeaconry of New South Wales. A Rural Dean has lately been appointed to reside in the co- lony, but he has not power to hold courts, or any special delegation such as was formerly committed to rural deans.-See Burn's Ecclesiastical Law, title Deaus and Chapter ; Gibs. 971 ; 1 Warner's Eccle. Hist. 275. The office of the Rural Dean of Van Die- men's Land appears to be limited to the inspection of the lives and man- ners of the c'.ergy and people within his district. In the Provincial Synod of Convocation held at London, April 3, 1571, it was ordained, that "the archdeacon, when he hath finished his visitation, shall signify to the bishop what clergymen he hatii found in every deanery so well endowed with learning and judgment as to be wor- thy to instruct the people in sermons, and to rule and preside over others : out of these the bishop may choose such as he will have to be rural deans." Kenw. 652, 653 ; Gods. App. 7. In England little remains of this dignity. (4) The mode of proceeding on ap- peal resembles that of other colonies, and is staled at length in the charter of justice, for which see post, 653. f5) See 9 Geo. 4, c. 83, s. 17, j • • 648 VAN DIEMEN's land. mkta iT * • !''T^^^ ^ ^^^- ^' ^' ^^' '" ^^^"^^es com. muted by convicts. (6) Courts of Requests. There are seven Courts of Request for the recovery of debts not exceeding ^10. They are constituted by the l^ieutenant-Governor, who is authorized by an act of the J^egislative Counci to appoint one court for each of the SjtedetfTr^ "'' "'"' '"' '"'*'' ^^'^ '' *'' The Attorney-General. This officer is invested with the power of a grand iurv, as It IS to him that bills, or rather informations, are pre- sented, and he either rejects or finds them. All prosecu- tions are earned on as informations at his instance. , Barristers and Attornies. The Judges of the Supreme Court are empowered to aamit persons, being barristers or advocates in Great Bri- tain or Ireland, or being writers, attornies or solicitors in one ot the Courts at Westminster, Dublin or Edinburgh or bemg proctors in any ecclesiastical court in England, to act as well m the character of barristers and advocates as ot proctors, attornies and solicitors. (8) LAWS. (9) The laws of England are recognized, as far as the cir- cumstances of the colony will alio- by the judges of their various courts and when a question arises as to the applicability of any act of parliament, the Lieutenant- Governor and Legislative Council decide it, if it can be referred to them; but if not, the judge determines whe- ther or not the circumstances of the colony will admit of its introduction. The principal acts of t he Imperial Parliament (1) speci- (6") See ante, p. 624. (7) See 9 Geo. 4, c.83, s.l8. (8) See ante, p. 622, note (3). (9) See ante, p. 3 to 16, on the topic how far the colonies are subject to the law of the mother-country. (1) Acts relating to our colonial possessions generally, are referred to m the summary, ante. VAN DIEMEN's land. 640 jnces com- fically relating to this colony and its dependencies, and now m force, are the 54 Gea 3, c. 15; 4 Geo. 4, c. 96; q w°* ^' ^'^^'* ^ ^eo- ^' c. 69; 9 Geo. 4, c. 83 ; and 2 & 3 Wm. 4, c. 69. The most important provisions of these acts will be found in the chapter upon New South Wales, p. 622, et seq. Both colonies stand in precisely the same situation to England, being crown colonies, and places to which convicts may be transported. ACTS OF THE COLONIAL LEGISLATIVE COUNCIL. There are very few Acts of the Legislative Council worthy of remark, as most of them only relate to matters of excise and police, whilst there are others bringing into operation Acts of the British Legislature which would have effect there without any such introduction, as, for instance, the Roman Catholic Relief Bill. Registration of Deeds.—The most important Act of the Legislative Council is that for the Registration of Deeds, &c. affecting lands, tenements, and hereditaments ; it was passed in the year 1827, (8 Geo. 4, No. 5,) and is avowedly framed upon the principles of the Act for the Registration of Deeds, &c. in the county of Middlesex. Section 1 enacts that from and after the 1st November, 1827, an office shall be established for receiving memo- rials of registration of all conveyances and other deeds, wills, and devises, and other instruments in writing then or afterwards made or executed, anr'. ! judgments then subsisting and unsatisfied, or afterwards obtained, by which lands, tenements, or hereditaments within the co- lony or its dependencies shall or may be affected. 2. Deeds, &c. registered in pursuance of and in con- formity with the provisions of this act, to be entitled to and be allowed to have priority over other instruments, and all conveyances, &c., not registered, shall be deemed to be null and void against bona fide purchasers or mort- gagees.-— "Provided that nothing herein contained shall extend to or affect bona fide leases at rack-rent for any term not exceeding fourteen years." S. Conveyances, &c. (except wills) if made in Van Die- men's Land or its dependencies, to be registered within one month ; if made in New South Wales or its depen- dencies, to be registered within three months ; if made in any other place, within twelve months. Wills to be re- Aii^f. 650 VAN DIEMEN's land. ■|l- I i ff h! K lY' !"" ""Jf "^r*^* ''^^^'' *^^ *leath of the testator, If he shall die ,n Van Diemen's Land or its dependencies within three months, if he shall die in New South Wales or Its dependencies ; within twelve months, if he shall die irZl^^^f "ix' ^"^g'^ents to be registered within one month after the signing or recording thereof. " All instruments shall be entitled to prioritvT and shall take effect respectively by relation to the cfate thereof only, and shall have and be allowed the same force and effect m a" respects as the same would have or be entitled to in case this act had never been made, anything herein con- 2 rJ^ the contrary notwithstanding." 4. This section prescribes the course to be pursued in registenng deeds, &c. « A memorial thereof shall be written on parchment and delivered into the said office, so InH nf] • l'''^' ''^"'^ (^" ^^^^^ «f deed«' conveyances, wl^?r/r*'"™^"S''i ^^""P' ^•"^'> by some one of the paities to the original deed or instrument; and (in case of wills and devises) signed by some one of the devisees, (2) or his, her, or their guardians or trustees ; and (in case of iudg- merits) signed by the plaintiffs or plaintiff, or his, her, or tpr^.5"l ^^r^ ''TH ^"^ ^^^'•y ^"«h memorial shal be verified by the oath of some competent person that the same contains a just and true account of the several par! tLkt'w "'"" ''t' ^'''^' ""^^^ «^*b «ball be made and taken before any Judge or Master in Chancery, or before the Registrar of Deeds so to be appointed, wlio is hereby authorized and empowered to administer the same." InXf^'^'l memorial of any judgment to contain the fol- owing parMcuIars:-Tlie names and additions of the plain- titts and defendants respectively ; the sums thereby received or secured ; the time of the signing or entering L of the same, and the sum of money bond Jide due thereon ; and every memorial of any deed or conveyance, will, or other nstrument, and the particular nature and object thereof, the names and additions of all the parties to such deed 5n' ^"^ °5 *h« devisor and devisee or devisees of such will, and the names and additions of all the witnesses hereto and shall especially particularize and express the lands, tenements, and hereditaments affected or intended to be affected by such deeds, conveyances, will, or instru- (2) If a testator dying in Van Die- men's Land should devise his property to persons in England, it would be impossible for the devisees to comply with the provisions of this act. VAN DIEMEN's land. 651 ment, and the proper and ordinary or accustomed names ot the districts, towns, or places where the same lands, tenements, and hereditaments shall be situate, and (except in case ot wills) the pecuniary or other consideration for the same, and to whom or how paid, in the form or to the ettect ol' the form set forth in the schedule hereto an- nexed, marked A. Provided always, that where there shah be more writings than one, for perfecting the same conveyance, devise, or security affecting the same lands, tenements, and hereditaments, all such writings shall be stated in one and the same memorial, in which memorial It shall be sufficient to particularize such lands, tenements, and hereditaments once only. ^\^}^^ registrar shall give a receipt for the memorial, specifying the day and time when received, and shall in- dorse on the back of the memorial the day and time when received and the name and abode of the person verifying the same, and such indorsement shall be evidence of the registration. 7. The books of registration shall be open to inspec- *• f ' 1^!?®" mortgages or judgments shall be paid or sa- tished, the registrar shall make entry thereof on receiving a certifacate signed by the respective mortgagors or mort- gagees, or plaintiffs and defendants. 9. Some competent person must depose that the certi- facate contains a correct account. 10. Wills may be deposited with the registrar for safe custody, and on the decease of the testator shall be opened by the registrar and delivered to the executor. 11. Ifany clerk in the registrar's office shall alter any of felon"* *''^ ""'^"^ of falsifying it, he shall be guilty 12. Certain fees to be taken by the registrar. Schedule A.— 1. Date of will or instrument. 2. Nature and object thereof. 3. Names and additions of the par- ties or devisors. 4. Names and additions of the witnesses thereto. 5. Description of the lands or property affected. 0. JName of the district or place where situate. 7. Con- sideration, and to whom and how paid. 8. Any other particulars that the case may require. Qtiarter Sessiofts Act.— An Act entitled the Quarter 'i :'■ VI i ' 1 T U i ■'■»' ; 652 Vi^v diemen's land. Sessions Act, passed in the year 1830, introduced Courts ot Quarter Sessions, having jurisdiction of equal extent to theCourts of Quarter Sessions in England. Court of Requests Act.— The act called the Court of Kequests Act, passed in 1830, empowered the Lieutenant- trovernor to appoint Courts of Request for the several police districts. Jury Act.-.The Jury Act, passed in 1830, prescribes the course to be adopted in summoning juries, which the • Vu °'. .' ?' ?r' ^' ^' T^ partially allowed to be introduced in the trial of issues of fact. Usury Z«M«.--The act called the Usury Laws Act, passed m 1830, is a curious act, as it declares what is not to be the law, viz. that the usury laws of England shall not extend to this colony. (3) Administration of Justice ^c^.— An act with this title, passed in 1831, is one of a still more remarkable charac- ter, as It is not on^y repugnant but in direct opposition to that part of the Charter of Justice appointing a Puisne Judge. The home government have however remedied the objection by nominating another judge. Insolvent Debtors' vte^-This act was passed in the month of February, 1834, and empowers the judges of the Supreme Court to declare insolvencies, and to au- thorize the collection and distribution of insolvents' es- tates. Parish Register Act.^This act, passed by the Legis- lative Councirof New South Wales previous to this fet- tlement being declared an independent colony, is conti- nued in force here by an act of the Council. (4) (3^ See ante, p. 91. (4) For this act see ante, p. 625. ( 652 ) VAN diemen's land— charter of justice. 4th March, 1831. Extract from Patents of the First Year of the Reign of King William the Fourth. William the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, To all to whom these presents shall come, greeting: Whereas by an act passed in the fourth year of the reign of our royal brother and predecessor, his late Majesty King George the Fourth, intituled « An Act to provide until the first day of July, 1827, and until the end of the next session of parliament, for the better administration of justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof, and for other purposes relating thereto," it was amongst other things tnacted, that it should be lawful for his said late Majesty, his heirs and successors, by charters or letters-patent under the great seal of the United Kingdom of Great Britain and Ireland, to erect and establi-h courts of judicature in New South Wales and Van Diemen's Land respectively, which should be styled '-The Supreme Court of New South Wales," and "The Supreme Court of Van Diemen's Land-" and whereas by letters-patent under the great seal of the United King- dom aforesaid, bearing date at Westminster on the 13th day of October m the year aforesaid, his said late Majesty, in pursuance and by virtue ofthe said act of parliament, did grant, direct, ordain and appoint, that there should be within that part of the colony of New South Wales called Van Diemen's Land a court, which should be called "The Su preme Court of Van Diemen's Land :" And whereas by a certain other act of parliament passed in the ninth year of the reign of his said late M^esty, mtituled « An Act to provide for the administration of justice m New South Wales and Van Diemen's Land, and for the more effec- tual government thereof, and for other purposes relating thereto " it was enacted, that it should be lawful for his said late Majesty, his heirs and successors, by charters or letters-patent under the great seal ofthe United Kingdom of Great Britain and Ireland, to erect and establish courts of judicature in New South Wales and Van Diemen's Land re- spectively, which should be styled "The Supreme Court of New South Wales," and "The Supreme Court -of Van Diemen's Land," and that each of such courts respectively should be holden by one or more judge 054 VAN DIEMEN's land— charter OF JUSTICE. if r. I or judRc.,. not exceeding three, and .shoul.l Imvo such ministerial or er officers as should he ncce.ar, for the uduuni.tration J " Z the saHl courts respectively, and for the execution of the judKn.ents decrees orders and process .hereof; an.I that the said judges s Z C sors, and that the sa.d nun.stcr.al and other officers of the said courts respecfvely shouhl from time to time bo appointed to and remo d fVom the,r respect.ve offices in such manner Js his said late M^sty h.s he.rs and .uceessors, should ..y such charters or letters-patent Is aforesaid d.rect: and it «a, thereby further enacted, that untilh si d late Majesty sould cause such charters or letters- patent to b i'ssu d as aforesa.d the Supreme Courts of New South Wales and Van Dit mens Land respectively, instituted by his said late Majesty's letters- patent under the great seal, bearing date respectively the 13th d y of Oetober ,n the fourth year of his said late Majesty's reign, shou 7re tam and exercise the several jurisdictions anil powersln such eourl ves ed by his said late Majesty's said last-mentioned lette: paten so as the same m.ght not be altered by that act, as fully and cCuallya, such courts respectively had been instituted in virtue and in pursuance o the said act: And it .as thereby enacted, that i '■ . 'I . .C ■ i ■■■ ' i 1 662 VAN diemen's land— charter op justice. appealed from shall be carried into execution, or that the execution thereof shall be suspended pending the said appeal, as to the said court may appear to be most consiste.-t with real and substantial justice; and in case the sa.d Court shall direct such judgment, decree, order ol sen- tence to be carried into execution, the person or persons in whose fa- vour the same shall be given, shall, before the execution thereof, enter into good and sufficient security, to be approved by the said court, for the due performance of such judgment or order as we, ou heirs and successors, shall think fit to make thereupon; or in case the said court shall direct the execution of any such judgment, decree, order, or sentence to be suspended pending the appeal, the person or persons against whom the same shall have been given, shall in like manner and before any order for the suspension of any such exe- cution ,s made, enter into good and sufficient security to the said court for the due performance of such judgment or order as we, our heirs and successors, shall think fit to make thereupon; and in all cases we will and require that security shall also be given by the party or parties appellant to the satisfaction of the said court for the prosecution of the appeal and for the payment of all such costs as may be awarded by us, our heirs and successors, to the party re- spondent; and if such last-mentioned security shall be entered into withm three months from the date of such petition for leave to ap- peal, then, and not otherwise, the said court shall allow the appeal and the party or parties appellant shall be at liberty to prefer and prosecute his^ her or their appeal to us, our heirs and successors, in our or their Privy Council in such manner and under such rules as are observed in appeals made to us fror. our plantations or colonies: and we do hereby reserve to ourself, our heirs and successors, in our or their Privy Council,full power and authority, upon the humble petition, at any time, of any person or persons aggrieved by any judgment or deternriination of the said court, to refuse or admit his, her or their appeal therefrom, upon such terms and upon such limitations, restric- tions and regulations as wr or they shall think fit, and to reverse correct or vary such judgment or determination as to us or them shall seem meet: and it is our further will and pleasure, that in all cases of appeal allowed by the said court, or by us, our heirs or succes- sors, the said court shall certify and transmit to us, our heirs or successors, in our or their Privy Council, a true and exact copy of all evidence, proceedings, judgments, decrees and orders had or made in such cases appealed, so far as the same have relation to the matters of appeal, such copies to be certified under the seal of the said court And we do further direct and ordain, that the said court shall in all cases of appeal to us, our heirs or successors, conform to and -xecite or cause to be executed, such judgments and orders as we shall think VAN DIEMEN's land— charter OF JUSTICE. 663 fit to make in the premises, in such manner as any original judgment, decree, or decretal order, or other order or rule of the said court of Van Diemen'sLand, should or might have been executed: and we do hereby strictly charge and command all governors, commanders, magistrates, mi- nisters, civil and military, and all our liege subjects within and belong- iujf to the said colony, that in the execution of the several powers, juris- dictions and authorities hereby granted, made, given or created, they be aiciing and assisting, and obedient in all things, as they will answer the contrary at their peril : Provided always, that nothing in these presents contained, or any act which shall be done under the autho- rity thereof, shall extend or be construed to extend to prevent us, our heirs and successors, to repeal these presents or any part thereof, ot to make such further or other provision by letters-patent for the administration of justice, civil and criminal, within the said colony and the places now or at any time hereafter to be annexed thereto, as to us, our heirs and successors, shall seem fit, in as full and ample a man- ner as if these presents had not been made, these presents or anything herein contained to the contrary thereof in anywise notwithstanding. In witness, &c., the 4th day of March. By Writ of Privy Seal. ( 664 ) WESTERN AUSTRALIA. i ^1 This colony, which is frequently called the Swan River Settlement, is situated on the western coast of New Hol- In"] 'nto''^^", **?? If """"^l^ «^ 31° and 36° south latitude, and 115 and 119° east longitude. It comprehends the settlement on the banks of the Swan River as well as those on the shores of Hardy's Inlet and King George's ^ound. The towns are Perth, the seat of government, • Freemantle, Augusta, and Albany. ^ * '^ HISTORY. 1 S!,^^'^" ^'^''^^' ^'a« discovered by Vlaming in 1697. but httle notice was taken of it until 1827, when Captain &tirJing, in a vessel called the Success, surveyed the adia- cent coast and the banks of the river. The flatterinff accounts that Captain Stirling and the government bo- tanist, Mr. Fraser, gave of the country, induced Sir George Murray, the Secretary for the Colonies, in the year liUS, to determine upon establishing a colony there. ( 1) Accordingly there was issued from the Colonial Ofhce on the 5th December, 1828, the following "Terms tor Settlers desirous of proceeding to the Swan River."— Although It IS the intention of His Majesty's govern- ment to form a settlement on the western coast of Aus- tralia, the government do not intend to incur any expense m the conveyance of settlers, or in supplying them with necessaries after their arrival. Such persons however, as may be prepared to proceed to that country at their own cost before the year 1829, in parties comprehending a proportion of not less than five female to six male settlers, SnS.lH^i!f?TT'''^'''^^'°''^<' '''"'^"'^- Since King George's Sound „rr„ ^:f .f *=<='«'1,^5°"'« '"'' P"^^'; ^""^ »'«^» «^'*'«'» t° the Swan River WESTERN AUSTRALIA. 665 Will receive grants of land in fee-simple (free of quit rent) proportioned to the capital they may invest upon public or private objects in the colony, to the satisfaction of His Majesty 8 government at home, certified by the Super- intendent or other officer administering the colonial co- yernment, at the rate of 40 acres for every sum of £3 so invested, provided they give previous security; first, that all supplies sent to the colony, whether of provisions, stores or other articles which may be purchased by the capitalists there, or which shall have been sent out for the use of them or their parties on the requisition of the tJecretary of State, if not paid for on delivery in the co- lonv, shall be paid for at home, each capitalist being to be held hable m his proportion; and secondly, that in the event of the establishment being broken up by the Go- vernor or Superintendent, all persons desirous of return- ing to the British islands, shall be conveyed to their own homes at the expense of the capitalists by whom thev may have been taken out. The paj;sage of labouring persons, whether paid for by themselves or others, or whether they be male or female, provided the proportion ot the sexes before mentioned be preserved, will be con- sidered as an investment of capital, entitling the party by wliom any such payment may have been made to an al- lowance of land at the rate of £15, that is, of 200 acres ot land for the passage of every such labouring person over and above any other investment of capital. " Any land thus granted, which shall not have been brought into cultivation, or otherwise improved or re- claimed from its wild state, to the satisfaction of the go- vernment, within twenty-one years from the date of the grant, shall at the end of twenty-one years revert abso- lutely to the crown." Othei- terms were subsequently issued from the Colo- nial Office, extending to settlers, who should arrive be- fore the end of 1830, the bounty of a free grant of land according to the amount of capital they should be pre- pared to invest ; the terms provided, however, that "any land so allotted, of which a fair proportion, at least one- lourth, shall not have been brought into cultivation, or otherwise improved to the satisfaction of the local govern- ment, within three years from the date of the license of occupation, shall at the end of three vpars h^ U^ble *o a payment of 6cl. per acre for all theland not so culti- f -i |ii.j frl 6G6 WESTERN AUSTRALIA. vnted or improved into the public chest of the settlement; ami at the expiration of seven years more, so much of the whole grant as shall still remain in an uncultivated or un- improved state will revert absolutely to the crown. And in every grant will be contained a condition, that at any time withm ten years from the date thereof the govern- ment may resume, without compensation, any land not then actually cultivated or improved as before mentioned, which may be required for roads, canals, or quays, or for the site of public buildings." ^ ^ In the year 1829 Captain Stirling, the Governor, and tlie hrst settlers landed on the Swan River; and settlers continued to arrive from that time to the expiration of the ^ear 1830, when the number is supposed to have amounted to 3000. The population was subsequently reduced to about 2000, as many persons quitted the place, not having sufficient firmness to face the difficulties which always present themselves in founding a new colony. 1 he remaining settlers have now surmounted those diffi- culties, and smoothed the way for future adventurers. GOVERNMENT. The 10 Geo. 4, c.22, entitled " An Act to provide until the 31st December, 1834, for the government of His Ma- jesty s Settlement in Western Australia, on the western coast of New Holland," is the only act of parliament spe- cifacally relating to this colony. It enacts, " that it shall and may be lawful for His Majesty, his heirs and succes- sors, by any order or orders to be by him or them made, with the advice of his or their Privy Council, to make, ordain and (subject to such conditions and restrictions as to him or them shall seem meet) to authorize and em- power any three or more persons resident and being within the said settlement to make, ordain and establish all such laws, institutions and ordinances, and to consti- tute such courts and officers as may be necessary for the peace, order and good government of His Majesty's sub- jects and others within tho said settlement." Notwithstanding this act received the royal assent as early as the 14th May, 1829, no charter, or order in council in the nature of a charter, was promulgated until the 1st November, 1830, when His Majesty with the advice of his Privy Council, and in pursuance and exer- cise of the authority in him vested by the said act, or- WESTERN AUSTRALIA. 667 dcred that the Governor for the time being, or the officer administering tlie government, the senior officer of the iand torces next hi command, the Colonial Secretary of Uie territory, the Surveyor-General, and the Advocate- General, so long as thev should be resident in the settle- ment, or any three of them, of whom the acting Governor was to be one, should be a Legislative Council, to make the necessary laws and ordinances, and to constitute courts and officers for the government of the colony. (2) CIVIL JUDICATURE. .r,^Jr° Governor and Legislative Council, by a law (2 Wm. 4, No. 1,) passed lOth February, I8ii2, esta- blished a court of civil judicature, called "The Civil Court of Western Australia," and constituted it a Court of Kecord, havinff jurisdiction in all pleas and in all cases as fully and amply in the settlement as the Courts of King s Bench and Common Pleas and Exchequer have in lingland ; and also gave it the power to hear and deter- mine questions of idiotcy and lunacy, and to appoint guardians and committees over the persons and properties ot infants, idiots, and lunatics, and to grant probates of wills and letters of administration. A party feeling aa- gneved, however, by a decision of the court in cases where the thing in dispute exceeds of 100, may appeal to the Governor and other members of the Executive Coun- cil, whose judgment is final, and is to be executed by the court as a judgment pronounced by the court itself. Mesne Frocess.— The 8th section of the same colonial act provides that no arrest shall be allowed on mesne process, and that all process of execution shall be di- rected against property only, and not against the person, except in cases where the debtor is about to leave the colony, when, on cause stated on affidavit, the Commis- sioner of the Court may issue a warrant for his arrest ; but m such cases the party at whose instance the debtor has been arrested must prosecute his suit with due dili- gence, or the commissioner may on petition discharge the party arrested. ° The pleadings are oral, and cases involving amounts under J,20 are determined without a jury, but other (2) See this Order ia Council, post. I f^ ; 608 WKSTERN AUSTllALIA. s 1' ? K Ji 'i l^;i eSTrtv T.^''^?'V^J"''y°'' ""^' "' t''<^ option of the rnm^-^' ' ^'^^ /!'".'^'^ Pi^sicUng ii. tills coiirt 8 called the Commissioner of the Civil Court of Western Austrn- he seal n? ^.^^'""/'"^ ^^ ''? ?"''''''''' ^V ^^'"•''"'t under lie seal of the colony, and holds his office durinc ffood Et'cScounrf'^*^ ""'''T'i ^^ ^'- Oove^r'^nd cohny ^ **" '^"^''' "•'" ""^*''' t'»e seal of the anJBaiiiff'.'tlnV^'' '""''^"'•' " I^«g''«trar, Messenger Bidlt in di;tln? "/ T'\ *'*^ """'•^' ""^ t^o Bailiffs re- Biuent in distant parts of the settlement. Court of Quarter Sessions. This court is constituted by a local act, and hi. power permries, lorgerics and misdemeanors ; but in cnsps in which death is awarded by the court, tl e sen enccfsre qu red to be approved of bV the Executive Sncil before ImL aTS th"''' 'fr- ^^''' ^°^'^'"- appoints tl" tiiairman ot the court by warrant. Vice-Admiraltif Court. wal!r!l«/f^'"'S-','u'*^*"*^'^ by letters-patent, the King's M.U ant for winch bears date the U^th day of November the Courl ofT' ^T. J^'^'fdi^tion to tlie same extent as that it cannof ^'?''\^^f'\^^^y ^^ other colonies, excepting mat It cannot adjudicate in prize causes. LAWS. miSl^,Ubn «f if,"^'""1 T ^'"T">^ "^opted in the ad- ministiation of justice, but none of the acts of the British V an uicmen s Land extend to this colony. (3) .'/c/* of the Legisla f 've Co/. ,ciL The principal acts of the L.^L.ative Council, besides fconTareX^ ^l" ?"" ^T'^ ^"^ Court of Qu^rte of shS r. i' ^'^' ^?\ '•ogulating juries and the office ot sheiiff, for securing debts due to the crown, for regis- Dxt^aidX'r'"*"' '"'"'^^^ of England require the 54 Geo. 3. c. 15, to be WESTERN AUSTRALIA. GCf) tering deeds, &c. and for fncilitnting nnd simplifyinff the transfer of real property. i ^ fa 2 Wm. 4, (No. 3). An Act for regulating the constitu- The number of netty jurymen (s. 1) in civil cases to be twelve, and in grand juries not less than thirteen nor more than twcnty.four. Juries to be subject to the same rules as m L^ngland, unless where altered by this act. AH ju- rymen must be between the ages of 21 and GO, and pos- sessed of a real estate of the value of ^-50, or of personal property of the value of .£100, and must have been re- sident withm the colony for one year. ^ Special juries (s. 17) are to consist of not less than eighteen nor more than twenty-four persons " of the greatest repute and substance." The Governor may (s. 23) appoint a sheriff annually tor the colony, and re-appoint him if expedient. If the sneritt 18 incompetent to act on account of any good ground of challenge, the court may award the process to some other person. 1 L^^'"^' (^o-?)- An Act to secure the payment of debts due to the Crown. (Passed Gth March, 1832 ) 1 his act declares the mode of recovering crown debts in England to be unsuited to this colony, and provides V J )^. .. J^ Colonial Secretary is to furnish the Clerk ot the Civd Court with a list of debtors to the crown- and whenever a pnvate person recovers judgment against any such debtor, the clerk is to give notice of a stay of exe- cution on such judgment, and then to call on the debtor to show cause why execution should not issue for the crown. The court may hear the question and award execution, either to the crown or the creditor. (4) 2 Wm. 4, (No. 6). An Act to prevent secret and frau- dulent conveyances, and to provide means whereby the Sf \° J'ooLP''°P^'''y ^^y ^^ ascertained. (Passed 6th March, 1832.) Enacts, (s. 1) that from and after the passing of this act there shall be established at Perth a public offioe tor the registration of deeds, conveyances and other in- struments, wills and judgments, in manner hereafter (^4) Thla law reakinfylhn i'obtor'h* guardian of the rights of the creditor is one of the most absurd enactments that ever issued even fiom a colonial legislative council. :'i II 670 WESTERN AUSTRALIA. mentioned; and that a fit and proper person shall be appointed Registrar thereof by his Excellency the Go- vernor by warrant under his hand and the public seal of tlie col^y ; and that from and after the establishment of such oflice, all conveyances and other deeds, wills and clevises, and other instruments in writing now or hereafter to be made or executed, and all judgments hereafter to be obtained, (by which conveyances, deeds and other instrumeiits in writing, wills and judgments, any lands, tenements or hereditaments in Western Australia or its dependencies now are or shall or may be hereafter af- tected,) may be entered and registered in the said office. 1 he second section directs, that all such judgments, deeds, conveyances or instruments in writing, obtained made or executed respectively after the pasting of this act, shall have priority one over the other according to he priority of their respective dates of registration, Ind that all judgments, deeds, conveyances or instruments in writing as last aforesaid, and all future devises which shall not be registered m pursuance of this act, shall (as against any subsequent bona fide purchaser or mortgafree of the same lands tenements or hereditaments for vul-iable con- sideration,) be absolutely null and void to all intents and Pvf?n ?? f"^'^^^ 1^^'* "°*^""S ^^•'^^" contained shall extend to &o«a/f/e leases at rack-rent for any term not exceeding fourteen years. The third section enacts, that all judgments, deeds, wills, conveyances or instruments in writing hereafter ob' tained, made or executed, which shall be duly registered withm the respective times next mentioned, (thJt is to say,) all deeds, conveyances and other instruments in writing (except wills) which (if executed in Western Aus- tralia or Its dependencies) shall be registered within one month, or which (if executed in any other place) shall be registered within eight months after the time of execution thereof respectively; and all wills which (if the devisor die m Western Austraha or its dependencies) shall be re- gistered within one month, or which (if the devisor die m any other place) shall be registered within twelve months after the decease of every devisor respectively; and all future judgments which shall be registered within one month after the entry or recording thereof; shall seve- rally be in like manner entitled to priority, and shall ^ake WESTERN AUSTRALIA. 671 effect respectively by relation to the date thereof only, in the same manner as if this act had never been made. f..f eH^'^'l^- ^" "^^^ *^ facilitate and simplify the transfer of Real Property. r J *= A conveyance in fee may be made (s. 1) of heredita- ments situate withm the colony by bargain and sale with- out livery of seism, attornment or other ceremony. Simple mortgages may be effected by the deposit of deeds, or by agreement, (s. 2) ; and on non-payment of the mortgage-money, the mortgagor shall convey the fee. A married woman may (s. 4) pass her interest in lands by ar instrument by her jointly executed with her hus- band, before a commissioner or justice of the peace: and tenant in tai (s. 6) may bar the entail by a deed executed betore the like persons. Any other interest that in Eng- land would require to be passed by fine or recovery, miy (8.7) be passed m the colony by a deed executed as above. Instruments affecting land (s. 8) in this colony, if executed before the Lord Mayor of London, or the chief magistrate of any other city, borough or town corporate, shall have the same effect as if executed before a com- missioner or justice of the peace in the colony. '/-.. WESTERN AUSTRALIA— ORDER IN COUNCIL. At the Court at Saint James's, the 1st of November, 1830; Present, The King's Most E.icellent Majesty in Council. Whereas by a certain act of parliament passed in the tenth year of the reign of h.s late Majesty King George the Fourth, chap. 22, intituled An Act to provide until the 31st day of December, 1834, for the go- vernment of His Majesty's Settlements in Western Australia, on the western coast of New Holland," it is enacted, "that it shall and may be lawful for His Majesty, his heirs and successors, by any order or orders lo be by him or them made with the advice of his or their Privy Counc.l, to make, ordain and (subject to such conditions and restric- tions as to h.m or them shall seem meet), to authorize and empower any three or more persons resident and being within the said settle- ments, to malce, ordain and establish all such laws, institutions and ordinances, and to constitute such courts and officers as may bo neces- sary for the peace, order and good government of His Majesty's sub- ■« •*( 672 WESTERN AUSTRALIA—ORDER IN COUNCIL. Ml jects and others within the said settlements : provided that all such orders in council, and all laws and ordinances so to be made as aforesaid, shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively;" His Majesty doth therefore, with the advice of his Privy Council, and in pursuance and exercise of the authority in him vested by the said act, order, and it is hereby ordered, that the Governor for the time being of the said settlements of Western Australia, or the officer administering the government thereof, the senior officer of His Majesty's land forces next m command, the Colonial Secretary of the said territory for the time being, the Surveyor-General thereof for the time being, and the Advo- cate-General thereof for the time being, so long as they shall respec tively be resident in the said settlements, or any three of them, of whom the acting Governor to be one, shall have authority and power to make, ordain and establish all such laws and ordinances, and to constitute such courts and officers as maybe necessary for the peace, order and good go- vernment of His Majesty's subjects and others within the said settlements; which power and authority shall nevertheless be so exercised, subject to the following conditions and restrictions, that is to say, that all such laws and ordinances as aforesaid, shall by the said Governor or officer administering the government, be with ail convenient expedition trans- mitted to His Majesty for his approbation or disallowance, through one of his Principal Secretaries of State; apd that the same or any part thereof shall not be in force within the said settlement after His Ma- jesty's disallowance thereof, or of any of them, or of any such part thereof, or of any of them as aforesaid, shall be made known therein; and further, that no such law or ordinance shall be made unless the same shall have first been proposed by the said Governor or officer administering the government; and further, that in making all such laws and ordinances, the said several persons shall and do conform to all such instructions as His Majesty shall from time to time be pleased to issue for that purpose; and further, that no court of justice be con- stituted by the several persons aforesaid within the said settlements, except by a law or ordinance to be by them for that purpose made, under and subject to the conditions and restrictions aforesaid. And the Right Honourable Viscount Godericb, one of His Majesty's Principal Secretaries of State, is to give the necessary directions herein accord- ingly. * Smce the manuscnpt of the chapters on the Australian Settlements was placed in the prmter's hands two bills have been brought into the House of Commons, but have not yel been passed ; the one is an Act for Establishing u Criminal Court in Norfolk Island, and the other for founding a Settlement on the shores of Spencer s Gulf, to be called "Southern Australia." i-Mf 1CIL. all such orders e as aforesaid, IS conveniently ectively;'' His 'ouncil, and in »y the said act, time being of administering y's land forces )ry for the time md the Advo- f shall respec- lem, of whom )wer to make, onstitute such and good go> 1 settlements ; ed, subject to , that all such rnor or officer edition trans- , through one I or any part fter His Ma- ly such part >wn therein; ie unless the or or officer ing all such ) conform to le be pleased slice be con- settlements, rpose made, id. And the fs Principal rein accord- tlernents was lie House of stablishing u iettleineiit ou ( 673 ) BRITISH POSSESSIONS IN EUROPE GIBRALTAR. (I) GiBRALTAK, in longitude SP W west, latitude 36° 6' north Prl, r"". •"'' P™?»»"*°'-y of Spain in the pos8ess"on of Great Bntain, and is situated in the province of An,l»T..?„ m the sWts which unite the AtlantirwUh the Jfcdter^^^ e"nT\n?oTrtniKrf£tl^s^'Pl.l4^ snores. Ihe bay is spacious, and aftbrds a safe and con 31'™' i""""" ^'" ''"P^- «"'' ">e water isTdeep that large vessels can come close to the quay. The town rtck'^tXtot^'oT/'""''''?™ *' "-' ^W'of'he Th7„ the oot of the mountain towards the main land ^i^^fat GibralS,'-'"™/ ""'"-^"f 'he g"rrison,1s HISTORY AND CONSTITUTION. neen held by them ever sinc e, although besieged in J1};P.: S',?."-^^^!°".^'>«'!'^'- Gib- (2) Mr. M'Culloch .nv.. ifi.-vnn" ante"; p. iTn^teTl) " ''"°"^' **' ""''''■ "^ Comm^^ce. art. GibralVan X X 674 GIBRALTAR. 1705, 1727, 1779, and 1783. In July, 1722, the inha- bitants petitioned the crown to establish a civil judicature there. The petition set forth, " that the petitioners con- cerned in trade were greatly prejudiced already, and greatly discouraged to continue the same for the want of a form of civil government estabHshed there, it being at pre- sent under a military one, whereby the petitioners are not secure in their properties ; that His Majesty had been pleased to grant his royal letters-patent for the purpose, yet it is notwithstanding in the hands of military magis- trates." This petition was advocated by Mr. Hayles, who seems to have acted in the capacity of agent for the petitioners, and by Mr. Godfrey, then one of the mem- bers of parliament for the city of London. These gen- tlemen laid before the Attorney and Solicitor-General (Raymond and Yorke) two papers in support of the prayer of the petition. These papers are quoted by those learned persons in their report to the Lords Com- missioners of Trade and Plantations, and from them it appears that ♦* there were at Gibraltar when it was taken one nunnery, two convents— one of the Franciscans and ihe other of the Cathedral Church, one hospital of Fran- ciscans, the Convent of Our Lady of Europa, four chapels, and 1000 families." The petitioners in the first of these papers stated, that " if a civil government was established there as in the American colonies, or in some such form as foUoweth, the place would defray the charges of maintaining itself, and in a few years would bring a sur- plus revenue, viz.: — " A mayor, aldermen and common-council, to be annu- ally chosen out of the English residing there; two sheriffs, to be chosen out of the common-council ; two bailiffs, to be appointed by the sheriffs ; a town-clerk ; a judge of the admiralty; a chamberlain; a treasurer for the colony; a muster-master, to be appointed by the mayor and alder- men, to muster the militia and the garrison whenever the garrison is mustered, and to sign the muster-rolls with the mayor; the militia to guard the two towers next the land to prevent the soldiers deserting , a house to be set- tled for the town-hall, where the records shall be kept, and the courts of justice act, and the magistrates assem- ble ; a house to be settled for the governor and officers of the garrison; the private soldiers to have proper bar- GIBRALTAR. 675 or m some SOo'of Ss M«-f .''' 'l^t.^^c^nd paper was, that at least ferll fn. ^^'Jy ' '"^J^^*' inhabiting in Gibraltar suf- hh!hJZ "k • ^ ^ '^^''^f*" "^" judicature being esta- ' tI. r' J'"'"? more ill-treated than strangers^ consul an.l« |P^"'^;'^? ^^^° ^"'^^^^i' t'^ere have a Spanish Kfbet^^^^^^^^ ^^° ''-^^ ^" 'l^«'--es "That the French who dwell there are governed after e same manner as the Spaniards, who payTarge rents to TnrP nr-r ^"r'^' '" f g/^^* me-^s.i.e, towards the subsist^ « Ti f\u ^^^i^'^y' ^^^'•ces in that garrison. sul an^'n 1 Genoese who live there have likewise a con- putes ^^^' *^''' °^" "^*'°" *° '^^^i'^^ their dis- "That the Dutch who are there have also a Dutch consul and lawyer, who determine their diffei^ncesJ^ in fhl^ "*?-? "^^^^ ^" '"* '*^*^' that the matter contained n the petition submitted by Mr. Hayles had been taken and S::;^r'^°" ?y '^' ^^'^' ComLssioners of Trade and Plantations, who reported to the Lords of the Council eTecU'afe tht^"^"'' H^O that courts at Gi" Gr^nf R •; • ^^ ^^T'^^ ""^ the common law courts of Great Britain, would be dilatory and expensive, and conse- quently not well adapted to the decisioS of transitory and mercantde disputes in a free port, where there were but few resident inhabitants; they therefore propoled that a more summary udicatory should be estaWislfed a1 Gib- raltar, and submitted to the Council whether the Judge- Advocate of the garrison might not be authorized uplTn any dispute that might arise there, to call to his assistance houw'Ii'p.^^k^f '"*"'"?*"'' P"''^""^' hy whose advice he should decide between the parties contending, from which judgm: It an appeal might lie to the Govefnor a^d In cases of a considerable%alue, another appeal fom the r^soT'Th'^'r "'"-i^.^r ^'^'''y ^" ^°"»«i''- the last resoi t. 1 he Council had approved of the representation, and by an order of the llth August, 1720, had directed the Attorney and Solicitor-General to prepare a draft of such powers as it might be fitting for His Majesty to grant. A aratt had been accorrlinrrlv rji.ppov«,i k^c^^^ ...u-i commission passed the great seal, directing and empow- xx2 G76 GIBRALTAR. ering the Jiulge-Atlvccate for the time being, together with two irierchants within the said town of Gibralter, to be appointed from time to time by the Judge-Advocate, and any two of them (whereof the Judge-Advocate to be one) to be a court, to which court full power and authority was given to hold plea of and to hear and determine in a summary way all pleas of debt, account, or other con- tracts, trespasses, and all manner of other personal pleas whatsoever between any person or persons whatsoever, residing or being within the said town or precinct or terri- tories thereof, and to give judgment and sentence accord- ing to justice and right, and the method of proceeding and manner of execution were thereby prescribed." This commission, passed in that manner and upon the consideration above mentioned, appeared to be stillin force, and the Attorney and Solicitor-General stated that no ob- jection had been made before them as to the substance of it, but only as to the persons appointed to be judges, the principal whereof being the Judge-Advocate, and he havmg authority from time to time to name the two mer- chants that were to act with him, it was objected that this was too great a power to be entrusted with a single per- son, especially with one who was an officer of the garrison, and subject to the command of the military Governor, and upon that account the more improper ; and therefore it had been proposed that persons should be expressly ap- pomted by His Majesty's commission to be judges, who understood the law and were qualified for the regular execution of justice, with competent salaries for their trouble, which might be defrayed by the revenues of the place. The Attorney and Solicitor-General stated that the said commission had been passed at the instance of the said Mr. Hayles, upon a particular occasion, which was represented ma very pressing manner to require great despatch, in order to the recovering of certain debts then in danger of being lost ; but they admitted the validity of the objection to the tribunal, and said that it might be proper that per- sons should be expressly named judges in the very com- mission, who might be more particularly qualified for the administration of civil justice. They also expressed them- selves favourable to the establishment of some form of civi government, and then said " Upon this information we have made tlie best inquiry wc could whether by the GIBRALTAR. 577 Sract? rSr",'' :l"^ '''''''''' ^^^J^rations, or other PUDiic acts ratified by the crown of Great Britain anv legal provision 1ms been made, or rules given fbiNhat To inv fnr.^^/ Of opinion that, as a fundamental necessary iudSn ' M i"'"-^ government, without which courts of if £ "1 ""u i ^^ '". " ^"^""^^' "«*^less, and for the quietin J ou,httitemar f"./'""' P°-«--ns, some seEen? S! n ?K- "^ ""^ *J'^ property in the houses and lands lordshin ' ll the framing of a scheme pursuant to their Sie?s and M ''^ '"^"'^"^ '^ ^^^ ^^""'t^'- granted to langieisand to the commissions issued in the cases of eWter'toT *^^ • ^-'^\-<'\ I^^-^- They then took the dated a free cifv nl \i^^- l^u?^' ^^'^ *°^» ''^' declared to be a free Si Iv tL' n^ '''"? ^^''"^ Christians) were incorpo! altv wkh IvL"'"^ ""^ inayor aldermen, and common- nnf'JV^ recorder and twelve common councilmen • a Cour ''o?T'' T^/'^'^' "'"^ ^'^^^»'™^" ^-« conatitTiLd Court nfO ^"TV°' determining civil causes, and a Court of Oyer and Terminer for criminal matters with a me garrison.) Besides which a particular court is erected for mercantile causes, and all proceedings were directed ondyoToftf 'V""' h-,-f England,%s neaiLthe perm t '' ThP v? ! ^'''^ ^^'^T °^t^^ inhabitants would permit. 1 he report concluded with observing that " the objec ion made to the court already established^dng only with regard to the persons thereby appointed judges, we are humbly of opinion, that if proper persons are exmessW tlTZtelP'' '^ ^''^ ^'T^* '^" '^^ commissi^ itset p onei '• 1 n, T n^^ >" other parts thereof not be im- piopei. —1 Chal. Opm. 169 to 181. nomh^t'ion"'nf''^H*^"''T'' '"""^^ *" have been that the nomination of the judge was afterwards made by the Kings commission, m the manner recommended- cer- enl":f"7 '\T'' °^ J"f^^^ ^'^ *^- issued, t the lepoit of the Attorney and Solocitor-Gcncrui is dated i I '■ml 678 GIBRALTAR. l*'m 14th December, 1722, and the only charter granted by Geo. 1, was issued in the previous year, namely, upon the 4th of November, in the seventh year of his reign. Another charter of justice was granted by Geo. 2, on the 10th of May, in the thirteenth year of his reign, and then another on the 1st of August, in the twenty- sixth year of his reign, making some alterations in the courts established by the two former charters, but in other respects confirming them. A new charter of justice was granted by Geo. 3, on the 12th May, in the fifty- seventh year of his reign, in which the three former char- ters were repealed, and which then constituted a court of judicature called by the name of the Court of Civil Pleas, to consist of one person learned in the laws of England to be appointed by the crown and to hold office during pleasure, such person to be called the Civil Judge, or the Judge of the Court of Civil Pleas at Gibraltar. This person, with two resident inhabitants, to be appointed by him during his pleasure, was to determine all suits, real and personal, (where the matter in dispute was not less than 10 dollars,) that might arise within the gar- rison, according, as nearly as might be, to the laws of England. The court was also to hold pleas of foreign attachment, to grant probates of wills and administration of the estates of intestates. From this court an appeal was to lie to a court called " The Court of Appeals," which was to consist of the Governor for the time being, and of the Judge-Advocate for the time being, who was to act as the Governor's assessor. Debts not exceeding 10 dollars were to be recovered before the Judge-Advocace and the Civil Judge, one of whom was to sit one ' each week, and '* severally to have full power, a, summon the defendant, and upon the examination on u; of the parties themselves and other witnesses, to deci(. the disputed demand. The Governor, the Judge-Advo^ cate, the Judge of the Court of Civil Pleas, and one inha- bitant nominated by the crown, were all appointed Justices of the Peace for the town and territory of Gibraltar. The Oovernor and Judge-Advocate were to constitute a court of criminal jurisdiction, to be called the Court of General Sessions, with power to try all offences except treason or misprision of treason, unless the offender was in actual Pfy as a soldier. The jurors were " to be taken out of the inhabitants, including the garrison." The Judge- GIBRALTAR. 670 Advocate was appointed sitting magistrate for the town and territory of Gibraltar, and was directed to hold a 1 etty Sessions on Monday and Thursday in every week for all matters of police. The Judge- Adfvocate and the Judge of the Court of Civil Pleas were directed to hold Quarter Sessions. This court was to have power to in- quire of and determine all "misdemeanors, nuisances, assaults, offences, and felonies, (except such as are pu- nishable by death or transportation,)" unless the offender was in actual pay in the garrison. The Court of Quarter Sessions was to be assisted in criminal cases by grand and petty juries, but might determine appeals against rates without the intervention of a jury. In the last matter the judgment of the Court of Quarter Sessions was not to be subject to any appeal whatever. In case of the death of the Judge-Advocate, the Governor might appoint the Judge of the Civil Court to act in his stead as Judge of the Court of General Sessions, and as sitting magistrate tor the town and garrison of Gibraltar, till the King's pleasure was known; and in case of the death, &c. of the Judge ofthe Civil Court, the Judge-Advocate might, in hke manner, be appointed to supply his place. The courts thus constituted were abolished, and a new system ot judicature established by a Charter of Justice dated 1st September, 1830. (See post, 680.) A commission was issued for the trial of pirates, under the authority of the 46 Geo. 3, dated on the 26th April, 1»15, and was directed to the Governor, the Commissioner tor Naval Affairs, the Judge- Advocate, the Civil Secretary, and the Commander ofthe Naval Forces at Gibraltar for the thne being, (the last not being under the rank of post captain,) and also to all admirals and captains, and com- manders ofthe ships of war within the port, (not under the rank of post captain,) "to inquire, upon the oath of good and lawful men of our said town and garrison, and by other ways," into all treasons, piracies, murders, &c. com- mitted on the sea, " according to the laws and customs of this our realm, and the statutes in that behalf made and provided, as the same might have been heard and deter- mined within this our realm." It would seem that this commission is still in force, for the Charter of Justice of September, 1830, does not even allude^ to it, nor has the Supreme Court established by that Cxiarter any right to try offences committed at sea. |:^' > i ()80 OIBUALTAK. LAWS. (3) The laws of lingland prevail at Gibraltar, so far at least as they are applicable to the circumstances of the co- lony. The new Charter of Justice directs, as did those which preceded it, that the courts established at Gibraltar shall administer the law, as nearly as may be, according to the practice at Westminster-Hall. GOVERNMENT. In matters relating to the civil government, Gibraltar is still treated as a garrison town. The Governor is at once the sole legislative and executive authority. His authority in the former capacity, however, is very limited. The laws of England are administered by the courts, and any alterations which it may be deemed necessary to make in them are usually made by Orders in Council. GIBRALTAR — CHARTER OF JUSTICE. 1st September, 1830. William the Fouktii, by the grace of God, of the United King- dom of Great Britain and Ireland King, Defender of the Failli, to all to whom tliese presents sliall come, greeting: Whereas our royal father and predecessor King George tlie Third, by letters-patent under the great seal of the United Kingdom of Great Bi'itain and Ireland, bearing date at Westminster the twelfth day of May, in the fifty- seventh year of his reign, did erect and constitute a court of judi- cature witiiin the garrison and territory oi Gibraltar, to be called by the name of the Court of Civil Pleas at Gibraltar: And whereas by the said letters-patent provision was made for the administra- tion of justice in the said garrison and territory, and it was thereby declared that tlie said letters-patent should be and remain in force only until his said late Majesty, his heirs, and successors should be pleased to alter, revoke, or determine the same: And whereas it is expedient that the said letters-patent be revoked : Now know ye, that we have revoked, and do hereby revoke, the before mentioned letters-patent and every part thereof. And whereas it is expedient that provision be made for the better (3) .See ante, p. 3 to 16, on the general topic, Iiow far tlie colonies are subject to the law of the mother coun- try. On the subject of Gibraltar par- ticularly, see p. i5, n. (5). OinRALTAR—CHAIlTER OP JUSTICE. 081 »r the better and more ofTcctuul adnmuHtralion of justice i„ our garrison and territory of O.brallnr, and for tlmt purpose one Suprun.e Court of Justice, to be lioiden Ihurcm in ti.e manner and form i.crcinafter mentioned, sl.ould bo eoiutuutcd : Now know ye, tl.at w., of our special grace, certain know- ledge, and mere motion, have thought f.t to grant, direct, order, and appoint, and by these presents do accordingly for us, our hcira, and successors, grant, direct, order, and appoint that there d.all be within our said garrison and territory a court which sliall be called "The Su- preme Court of Gibraltar;" and we do hereby create and constitute the said Supreme Court a Court of Record. And we do further will, ordain, and appoint that the said Supreme Court of Gibraltar shall con- sist of, and be holdcn by and before one judge, to be called the " Judge of the Supreme Court of Gibraltar ;" and that the said judge shall be a barrister in England or Ireland of not less than three years standing, or an advocate admitted to practise in our Court of Session in Scotland by the space of three years; and the said judge shall from time to time be nominated and appointed to such his office by us, our heirs, and successors, by letters-patent under the great seal of the United Kingdom of Great Britain and Ireland : And we do hereby declare, ordain, and grant, that, upon the death, resignation, or sickness, or incapacity of the said judge, or in case of his absence from the said garrison and territory, or in case of any such suspension from ofTice as hereinafter mentioned of any such judge, it shall and may be lawful to and Cor the Governor of our said garrison and territory for the time being, by any instrument to be by him for that purpose made and issued under the public seal of the said garrison and territory, to nominate and appoint some fit and proper person to act as and In the place and stead of any such judge so dying or resigning or labpuring under such sickness or incapacity as atbresaid, or being so absent as aforesaid from the said garrison and ter- ritory, or being so suspended, until tiie vacancy so created by any such death or resignation, or sickness, or incapacity, or absence, or suspen- sion, shall be supplied by a new appointment, to be made in manner aforesaid, by us, our heirs, and successors, or until the judge so becoming sick or incapable, or being absent or suspended as aforesaid, shall re- sume such his office and enter into the discharge of the duties thereof: And we do further will, ordain, and grant that the said judge shall hold such his office during our pleasure : Provided nevertheless that * shall and may be lawful for the Governor of our said garrison and territory for the time being, by any order to be by him for that pur- pose made and issued under the public seal of the said garrison and territory, upon the proof of the misconduct of any such judge as afore- said, to suspend him from such his otFice and from the discharge of the duties thereof: Provided that, in every such case, the said Governor shall immediately report for our information, through one of our princi- f*i 68S aiDRALTAR — niARTER OF JUSTICE. pal Sccrclarics of State, the grounds and causes of such suspension. And wc do further grunt, orduin, and appoint tliat the said Supreme Court of Gibraltar shall have and use, as occasion may require, a seal bearing a device and impression of our royal arms within an exer^jue or label surrounding the same, with this inscription, "The Seal of the Su- premo Court of Gibraltar:" And we do hereby ordain, grant, and ap- point that the said seal shall be delivered to and shall be kept in the custody of the said judge; and in case of vacancy of or suspension from the office of judge, the same shall be delivered over to and kept in the custody of such person as shall be appointed by the said Governor of our said garrison and territory to act as and in the place and stead of the said judge : And wc do further grant, ordnin, and declare that the said judge, so long as he shall hold his office, shall be entitled to and have and receive such salary as shall be granted to him by us, our heirs, and successors, and that such salary shall be in lieu of all fees of office, perquisites, emoluments, and advantages whatsoever; and that no fee of ofHce, perquisite, emolument, or advantages whatsoever other than and except the said salary shall be accepted, received, or taken by any such judge on any account or on any pretence whatsoever. And we do further ordain, appoint, and declare that no such judge as afore- said shall bo capable of accepting, taking, or performing any other office or place of profit or emolument within our said garrison and territory, on pain that the acceptarce of any such other offce or place as aforesaid shall be and may be decreed in law, de facto, an avoidance of such his office of judge ; and the salary thereof shall cease and be deemed to have ceased accordingly from the time of the acceptance of any such other office or place. And we do hereby constitute and appoint our trusty ond well-beloved Barron Field, Esquire, to be the First Judge of the Supreme Court of Gibraltar : And we do hereby ordain, appoint, and declare that there shall be attached and belong to the said court such and so many officers as to the judge of the said court for the time being shall, from time to time, appear to be necessary for the administration of justice and the due execution of the powers and authorities which are granted and committed to the said court by these our letters-patent : Provided ne- vertheless, that no new officer shall be created in the said court unless the Governor of the said garrison and territory shall first signify his ap- probation thereof to the said judge for the time being, in writing, under the hand of such Governor. And we do further ordain and direct that all persons who shall and may be appointed to the offices of Registrar or Prothonotary, and Master or Keeper of Records, or Marshal of the said court, and that all persons who shall be appointed in the said court to any offices to which the duties shall correspond to those performed by the Master or Prothonotary of any or either of our Courts of Record at Westminster, or to the Sheriff of any county in England, shall be so *Ci aiBRALTAR— CHARTER OP JUSTICE. QSS appointed by u,, our heir,, and successors, Uy warrant under our or their royal sign manual; and that all persons who shall and may he appointed to any other office within the Supreme Court shall be so an- pointed by the Governor for the time being of the said garrison and territory And we do further direct and appoint, that the several officers of tie said court shall hold their respective ofiices during our pleasure. And we do hereby authorize aed empower the said Supreme Court of Gibraltar to approve, admit, and enrol, as barristers, advocates, solicU tors and attorneys, any persons who have been admitted as barristers in hngland or Ireland, or as advocates in the Court of Session of Scot- and, or to the degree of Doctor of Laws at our Universities of Oxford, Cambridge, or Dublin, or as attornies or solicitors of any o'our Courts of Kecord at Westminster or Dublin, or as doctors in any Ecclesiastical l^ourt in England or Ireland, or as writers to the signet in Scotland, and any persons who have been at any time heretofore admitted to practise as advocates, barristers, attornies, solicitors, or proctors in the Court of Civii and Criminal Justice heretofore existing in our said garrison and territory. And we do further authorize our said Supreme Court to ap- prove, admit, and enrol, as such attornies, solicitors, or proctors as aforesaid, such and so many persons as may be instructed, within our said garrison and territory, in the knowledge and practice of the law, by any barrister, advocate, attorney, solicitor, or proctor duly admitted to practise m the said court; and which persons shall be so approved, admitted, and enrolled, according to and in pursuance of any general rule or rules of court to be for that purpose made in manner hereinafter directed. And we do ordain and declare, that persons approved, ad- mitted, and enrolled as aforesaid, shall be and they are hereby authorized to appear and plead and act for the suitors of the said Supreme Court, subject always to be removed by the said Supreme Court from their station therein, upon reasonable cause. And we do further ordain, that no person or persons whatsoever, not so approved, admitted, and en- rolled as aforesaid, shall be allowed to appear, plead, or act in the said Supreme Court, for or on behalf of any suitors in the said court. And we do hereby further ordain, direct, and appoint, that the said Supreme Court of Gibraltar shall have cognizance of all pleas and jurisdiction in all causes, whether civil, criminal, or mixed, arising within tiie said gar- rison and territory, with jurisdiction over all our subjects and all other persons whomsoever residing and being within the said garrison and territory, save as hereinafter is excepted. And we do further give and grant to the said Supreme Court of Gibraltar full power, authority, and jurisdiction to judge and determine all questions there arising, ac- cording to the laws now in force within our said garrison and territory, and all such other laws as shall at any time hereafter be made and established for the peace, order, and govevnment thereof, by us, our cm GIBRALTAR — CHARTER OF JUSTICE. heirs, and successors, vvitli the advice and consent of Parliament, or iu our or their Privy Council, or by the Governor of Gibraltar for the time being. And wc do further give and grant to tlie said Supreme Court full power, jurisdiction, and autliority to rcviev,- tlie pi' eedings of all inferior courts of justice within our said gaivison and territory, and, if necessary, to set aside or correct the same. Provided always that nothing herein contained shall extend or be construed to give to the said Su- ])reme Court any autliority to review the proceedings of any court mar- tial holden within the said garrison and territory. And we do further ordain, direct, and appoint, that, in any criminal case depending before the said Supreme Court, the trial of the party or parties accused shall be before the judge of the said rjurt and a jury of twelve men, who shall concur in every verdict to Id given on the trial of any such accused party or parties; and every such verdict shall be delivered in open court by the mouth of the foreman of every such jury, and shall be thereupon recorded and read over to such jury before they are discharged from attendance on the said court. Provided also, and we do further direct and appoint, that all issues of fact arising, in civil suits or actions de- pending in the said court, shall be tried and decided by the said judge and three assessors, to be ajipointcd as hereinafter mentioned, until otherwise provided for by law ; and that the verdict of the said judge and assessors on the trial of any such issue shall be according to the majority of votes ; but if such votes should be equally divided, then according to the opinion of the said judge; and every such verdict shall be delivered in oj^cn court by the mouth of the said judge. And in all cases where the sum or matter at issue in any such suit or action shall exceed or be of the value of more than X'lOO sterling, British money, the said judge shall cause the evidence on every such trial as aforesaid to be taken down in writing by the clerk or other proper officer iir open court, in the presence of the witnesses respectively giving the same, and the evidence so taken shall be entered upon the proceedings of the said court and be of record ; and in every case in which any appeal shall be made and allowed under the provisions of this our charter, from any judgment of the said court, copies of all do- cuments and papers which shall have been produced and given in evidence, shall be certified and transmitted by the said clerk or other proper officer as authentic ; and also copies of any documents and papers which shall have been produced and tendered in evidence and rejected, shall, if required by the party producing the same, be in like manner authenticated, but marked by such officer as aforesaid as re- jected, in order that all such copies may be annexed to the record as part thereof in case of appeal. And we do further direct and declare, that it shall be lawful for the judge, on the application of either of the partiesj plaintiff or defendant, at or before the trial of asy i-jsuc joined OIBRALTAR-— CHARTER OP JUSTICE. C85 in any civil suit or action commonccd in the said court, to permit tl.e evidence on such trial to be recorded and certified as aforesaid, althouRh .0 sum or matter at issue maybe less than £100 sterling; provided that >t shall be made to appear to such judge that such judgment, de- cree order, or sentence, ^hieh may be given, made, or pronounced in such su,t or action, may be of such importance as to render it proper that an appeal should be permitted. And we do further ordain and direct, that no judgment or sentence of the Supremo Court, in any cri- minal case, whereby any person shall be condemned to death or ransportation, or banishment from the said garrison and territory, shall be earned mto execution until a report of all the proceedings upon any such trial hath been laid before or transmitted to the GovLo^ of thi r„n ^'":T """" ''"''°'^ ^^ "'" J"'^^^ P''^''^'"^ ^' «"y «»^'' trial, and until such Governor shall have authorized and approved the execution of such sentence. Provided always, that no officer, soldier, or other person m actual pay as a member of the garrison, shall be arrested, in,, prisoned, or taken in execution, without leave of the Governor of the said garrison and territory first obtained in writing for that purpose. Provided always, and we do hereby further will and declare that in case any action or suit shall be begun, instituted, or prosecuted against any officer soldier, or other person, in pay as a member of our garrison to recover damages for any trespass, assault, battery, or other violence' or wrong committed, or alleged to have been committed, by him or them, or for any da.nage or injury whatsoever, not being a matter of debt, account, or contract, or relating to any right or title to any lands houses tenements, or hereditaments, or any interest therein, it shall be lawful for the Governor for the time being of the said garrison and ter- ritory, at his discretion, by order under his hand, to suspend such pro- ceeding, and to order the staying thereof at any time before judgment or to stay and suspend any execution from issuing upon any such judK- ment; and upon delivery of such order to the registrar of the said court or to the person acting as registrar of the said court, all such proceed- ings shall cease and be stayed until such order shall bo revoked by the Governor for the time being, saving to the plaintiff or plaintifTs, in any such action or suit, all such suits and remedies as he, she, or they may be or would have been entitled to institute in England or elsewhere out of tho said garrison and territory of Gibraltar, if the said action or suit so stayed, had not been there commenced. And we do hereby also fur^ ther ordain and direct, that in cases in which any officer, soldier, or other person in actual pay as a member of the garrison shall have been arrested, imprisoned, or taken in execution, with the leave of the Go- vernor as aforesaid, it shall be nevertheless lawful for the Governor for the timp lipinrr \\\r on n~,l„. ;„ ;.• !!.!_• " — •oJ 'V =«" •'«■€. m -.Tiitiiii,' Signed by hun, allerwards to order and direct, that such officer, soldier, or other person shall be dis- 11 il Hfi 686 GIBRALTAR— CHARTER OF JUSTICE. charged from such arrest, imprisonment, or execution ; and the officer or gaoler, in whose custody such officer, soldier, or other person shall happen to be, is hereby authorized, empowered, and commanded forth- with, upon the receipt of such order, to discharge Mm out of custody. And we do hereby ordain and direct, that such discharge under such order shall not be deemed an escape from the custody of such officer or gaoler, but that such order of discharge shall be and be taken to be an indemnity to such officer or gaoler for such discharge. And we do hereby further ordain and direct, that in all such cases the Governor for the time being who shall have signed such order of discharge, shall forthwith state and deliver, in writing, to the said judge, his reasons for having issued such order of discharge, and shall transmit a copy thereof to us through one of our principal Secretaries of State. Provided always, that such discharge from imprisonment shall in no degree release the party so discharged from the debt on account of which his body had been taken in execution. And we do further grant, ordain, direct, and ap- point, that it shall and may be lawful for the said judge, by any rules or orders of court to be by him from time to time for that purpose made and published, to frame, constituto, and establish such rules, orders, and regulatiohs as to him shall setiU meet, touching and concerning the time and place of holding the said Supreme Court, and touching the forms and manner of proceeding to be observed in the Supreme Court, and the practice and pleading upon all actions, suits, and other matters, both civil and criminal, indictments and informations to be therein brought, the appointing of commissioners to take bail and examine wit- nesses, the examination of witnesses de bene cgse and allowing the same as evidence, the proceedings of the marshal and other ministerial officers of the said court, the process of the said court and the mode of executing the same, the fees and emoluments to be demanded and taken by the advocates, attornies, and officers of the said court, the summoning, im- pannelling, and challenging of juries, the admission of barristers, advo- cates, attornies, solicitors, and proctors in the said court, and touching and concerning all such other matters and things necessary for the pro- per conduct and despatch of business in the said Supreme Court; and all such rules, oiders, and regulations from time to time to revoke, alter, amend, or renew, as occasion may require. Provided always, that no such rules, orders, and regulations shall be repugnant to this our charter, and that the same shall be so framed as to promote, as far as may be, economy and expedition in the despatch of the business of the said Supreme Court; and that all such rules and forms of practice, pro- cess, and proceeding shall, so far as the circumstances of the said gar- rison and territory may permit, be framed with reference to the corresponding rules and forms in use in our Courts of Record in West- rniiisicr ; uud that the same be drawn up in piaiu succiucl, aud cum- GIBRALTAR— CHARTER OF JUSTICE. 687 pendious terms, avoiding all unnecessary repetitions and obscurity, and promulgated in the most public and authentic manner in the same gar- rison and territory for three months at least before the same shall operate and take effect. Provided always, that all such rules, orders, and regu- lations shall forthwith be transmitted to us, our heirs, and successors, under the seal of the said court, for our or their approbation, correction, or disallowance. And whereas it may be expedient and necessary to make provision respecting the qualification of jurors and assessors to serve m the said court, and the mode of enforcing the attendance of such jurors and assessors; and it may also be expedient and necessary to make provision for the extension of trial by jury in the said Supreme Court, in civil cases: Now we do further ordain, direct, and appoint, that It shall and may be lawful for the Governor for the time being of our said garrison and territory to make and establish all such laws, statutes, and ordinances as to him may seem meet, respecting the mat- ters aforesaid, which laws, statutes, and ordinances shall forthwith be transmitted to us for our approbation, correction, or disallowance. And whereas it may be expedient to establish within our said garrison and territory Courts of Request, and other courts having jurisdiction in civil cases of small amount or value, and in cases of crimes or offences not punishable with death, transportation, or banishment : Now we do hereby authorize and empower the Governor for the time being of our said garrison and territory, by any laws and ordinances to be from time to time made for that purpose, to erect, constitute, and establish all such Courts of Request and other courts having jurisdiction in civil and cri- minal cases within our said garrison and territory : Provided that the jurisdiction of such civil courts shall not be extended to any case wherem the sum or matter in dispute shall exceed the amount or value of £40 sterling money, or wherein the title to any lands or tenements, or any fee, duty, or office may be in question, or whereby rights in fu- ture may be bound ; and provided also that the jurisdiction of such courts in criminal cases shall not be extended to any case wherein any person may be accused of any crime punishable by death, transporta- tion, or banishment from the said garrison and territory. And we do hereby authorize and empower the said Governor, by and with the ad- vice of our said judge for the time being, to make, ordain, and establish all necessary rules, orders, or regulations respecting the manner and form of proceeding, and the mode of trial of offenders in any such last- mentioned courts, and respecting the manner and form of carrying the judgments and orders of such courts into execution, and all such other rules, orders, and regulations as may be necessary for giving full and perfect effect to the jurisdiction of the said courts. And we do hereby grant, ordn , and direct, that it shall and may be lawful for per- son or p. oDs, being a party or parties to any civil suit or action de n in G88 GIBRALTAR — CHARTER OF JUSTICE. i I' «! pending in the said Supreme Court of the gurrison and territory of Gibraltar, to appeal to us, our heirs, and successors, in our or their Privy Council, against any final judgment, decree, or sentence of the said court, or against any rule or order made in any such civil suit or action having the effect of a final ^r definitive sentence; and which appeals shall be made subject to the rules, regulations, and limitations following, that is to say, in ;ase any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter at issue above the amount or value of £300 sterling, or in case such judgment, decree, order, or sentence shall involve, directly or in- directly, any claim, demand, or question to or respecting property, or any civil right, amounting to or of the value of £300 sterling, the person or persons feeling aggrieved by any such judgment, decree, order, or sentence of the said Supreme Court, may, within fourteen days next after the same shall have been pronounced, made, or given, apply to the said Supreme Court, by petition, for leave to appeal therefrom to us, our heirs, and successors, in our or their Pr y Council; and in case such leave to appeal shall be prayed by the pnty or parties who is or are directed to pay any sum of money, or perform any duty, the said Suprenie Court shall and is hereby empowered to direct that the judg- nien* decree, order, or sentence appealed from shall be carried into execution, or that the execution thereof shall be suspended pending the said appeal, as to the said court may in each case appear to be most consistent with real and substantial justice. And in case the said Su- preme Court shall direct such judgment, decree, order, or sentence to be carried into execution, the p son or persons in whose favour the same shall be given, shall, before the execution thereof, enter into good and suflScient security, to be approved by the said Supreme Court, for the due performance of such judgment or order, as we, (.ur heirs, and successors shall think fit to make thereupon ; or in case the said Su- preme Court shall direct the execution of any judgment, decree, order, or sentence to be suspended pending the said appeal, the person or persons against whom the same shall have been given shall in like man- ner, and before any order for the suspension of any such execution is made, enter into good and sufficient security, to be approved by the said Supreme Court, for the due performance of such judgment or order as we, cur heirs, or successors shall think fit to make thereupon ; and in all cases we will and require that security shall also be given by the party or parties appellant, to the satisfaction of the Supreme Court, for the prosecution of the appeal, and for the payment of all such costs as may be awarded by us, our heirs, and successors, to the party or parties respondent ; and if such last-mentioned security shall be entered into within three months from the date of such petitions for leave to appeal, then, and not otlicrwiac, the said Supreme Court shall allow the ap- GIBRALTAR— CHARTER OP JUSTICE. 689 peal, and the party or parties appellant sl.all be at liberty to prefer and prosecute Ins^ her, or their appeal to us, our heirs, and succesosin our or thar Privy Council, in such manner and under such u T 'a " observed >n appeals made to us from our plantauons or colonic And we do hereby reserve to ourselves, our heirs, and successors, in oiuor a^v Z o7 ' '"" ''^'' ^"' authority,upon the humble peti on at any time, of any person or persons aggrieved by any judgment or determ.nat.on of the said Supreme Courtf to admit his' IToZZ appeal thcefrom, upon such other terms, and upon and sibjec to sue o l.er hmuafons, restrictions, and regulations as we or they s a H Ink to us o .hVT,? '°""^' " ""^ ^"^'^ J"^^'"-^' - determination a o us or hem shall seem meet. And it is our further will and pleasure that m all cases of appeal allowed by the said Supreme Court, or by us our heirs and successors, m our or their Privy Council, a true and hadlTd 'f '""' l-ceedings, judgments, decrees', and orders' tiZZt V T'" '^P'^'^'' ^° '^' ■'' "'^ -"^« have relation ' !r f f PP'^^' '"'*' '°P''' ^"^ ^« ^^^'•fi^'l ""der the seal of the sa.d cour And we do further direct and ordain that the said Supreme Cour Shan, m all cases of appeal to us, our heir., or successors! cTn! form to and execute such judgments and orders as we or they shall think fit to make m the premises, in such manner as any original judgment decree, or decretal order, or rule of the said Supreme Court of the .ar' nson and territory of Gibraltar could or might have been executed. And we do hereby strictly charge and command all Governors, Commanders, Magistrates M.n.sters, civil and military, and all our hege subjects wuhmand belongmg to the said garrison and territory, that, in the execution of the several powers, jurisdictions, and authorities hereby granted, made, given, or created, they be aiding and assisting and obedient in all things, as they will answer the contrary at their peril Provided always that nothing in these presents contained, or any act" which shall be dor« under the authority thereof, shall extend or be construed to extend to prevent us, cur heirs, and successors from re- voking these presents or any part thereof, or from making such fur- her or other provision, by letters-patent, for the administration of jus- tice, civil and criminal, within the said garrison and territory, and the places now or hereafter at any time to be annexed thereto, as to us our heirs, and successors shall seem fit, in as full and ample a manner' as If these presents had not been made, these presents or any thing therein contained to the contrary in anywise notwithstanding. And we do further ordain and direct that the Governor of our said garrison and territory, upon the arrival therein of these presents, shall by proclama- tion notify to the inhabitants of th.e said garrison r.nd territory the limo when the said courts hereby established will be open; and as soon as Y Y >-^ ii 690 GIBRALTAR — CHARTER OP JUSTICE. the Judge of the said Supreme Court shall have assumed and entered upon the exercise of his jurisdiction therein, then and from thenceforth the Court of Civil Pleas now established within the said garrison and territory, and the Court of Appeals now established within the same, and all other courts, civil and criminal, shall be absolutely abolished, cease, and determine ; and every suU, action, complaint, matter, or thing, civil and criminal, which shall be depending in such last-mentioned courts respectively, shall and may be proceeded upon in the Supreme Court instituted under and by virtue of these presents ; and all pro- ceedings wh: ' •'■ !' hertatwr be had in such action or suit, or other matter, civil << al, respectively, shall be conducted in like man- ner as if such & ■ ■ :. or suit, c- other matter, civil or criminal, had been originally commenced in the said Supreme Court instituted under these presents : and all the records, muniments, and proceedings whatsoever, of and belonging to the said Courts of Civil and Criminal Justice, and to the said Court of Appeals respectively, shall, from and immediately after tne opening of the said Supreme Court instituted by these presents, be delivered over to and deposited for safe custody in such place, and ^ be thereafter kept by such person as our Governor shall appoint; and all parties concerned shall and may have recourse to the said records and proceedings, as to any other records and proceedings of the said court. And we do hereby further declare and direct, that during the absence from our said garrison and territory of the Governor thereof, or if there shall be no person commissioned by us, our heirs, and successors to be the Governor of our said garrison and territory, then, and in every such case, all and every the powers hereby granted to and vested ia the Go- vernor for the time being of the said garrison and territory, shall and may be executed by and vested in the Lieutenant-Governor thereof, or the officer for the time being having command of the troops. In wit- ness whereof we have caused these our letters to be made patent. Witness ourself t Westminster the first day of September in the first year of our reign. By Writ of Privy Seal. Batuurst. ORDER IN COUNCIL — BANKRUPTCY. An Order in Council was passed on the 12th October, 1832, to confirm an ordinance made by the Lieutenant-Governor of the garrison of Gi- braltar, on the 19th September, 1832, " in exercise of the powers vested in him in that behalf by His Majesty's commission," by which ordinance he "made provision" for putting in force within the garrison and ter- ritory of Gibraltar the laws of England relating to bankrupts. GIBRALTAR—ORDER IN COUNCIL. 691 in for!l'.f "7''' '" *^' ''"' '''^''°"' '''''''^ '^' expediency of puuine .n force these laws, and then declared them to be n force wUhinZ garrison and territory of Gibraltar. ^^ En^tVri'' '''''°" ^''••'"■'^ " *'"»' «» '"'« PO"^'-^ by the said laws of be n TK' ^'"'"P*^ ^'^^^ *°' «"d duties thereby d 'e ^d to the'c uTofH^''^ "^"k' '^'^"""°^' *"« ^^"^' °^ Bankruptcy and the Court of Keview, or by any Judge or Judges of the said courts save M^here such judge is authorized to exercise the powers given by tl: aid rcumference is about 40^0 paces^ Ihe Chff IS said to be constantly diminishincr from the increLt xVeTa '"'-^'l ^"T'^ *« ^^ asVonsTantlv i^Tf 3' 7 ^'^ JT^'^ together by a bottom of rock about 500 paces long. The circuit of the whole is S does not exceed two miles and a half. Heligoland has two good harbours, and to the east of the Down is a road where vessels may anchor in forty-eight feet water The inhabitants, m number above 2000, subsist chTefly by fish- ing and actmg as pilots. The women cultivate Ky and oats and attend to the few sheep that are fed on he^pas. Sd nn^!l"PP'' ^^•'""^^- ^^' Public build ngsCe placed on these upper f?rounds -. nn th^ l^„,.,. ^,.°„„5^ there are only fishermens' huts. There" m'e two l^dlslf m li' 'A ! I fs '^'% i ()j)() IlLMCIOIiAND. frchh water, but scarcely a tree or a Hhrub of any kiiul on tlie island. Turf, wood, fuel, and garden vegetables arc brought froju Cuxhaven and Ilandiurgh in exchange for fish. The island formerly belonged to the crown of Den- mark, but was taken from the Danes by a small squadron in September, 1807, and converted into a depot for the merchandise, which, in spite of Napoleon's decrees of ex- clusion, was s laiggled into every part of the conthient. At the general peace it was retahied by England. The Governor and garrison have been withdrawn since the war, and a connnandant only resides there as the British consul. The people govern themselves. — Edin. Gazette, Ency. Brit. Supp. and Ency. Metr. 6^ i H '•f m ( am ) JERSEY. The Island of Jersey Is the most easterly of* the islands in ot. Michael s Boy, is situated between Cape la llogue in Normandy and Cape Forhelies in Brittany. Its distance troin VVeymouth, the nearest port in England, is seventy- five miles, and from the nearest French ports seventeen miles. It is considered as for some purposes forming parcel of the county of Hants, and in ecclesiastical mat- ters IS incorporated with the see of Winchester. The climate is exceedingly mild and the soil of a lifrht but prolific quality. ^ The population is estimated at about 30,000. St. Ile- her s is the capital of the island. St. Helier's possesses a public library, instituted at the expense of the Reverend Philip Falle, the historian of the island and one of the chaplains to Wm. 3. English is familiarly spoken, but the Norman French is still the lan- guage of the pulpit and of the courts of justice. HISTORY AND CONSTITUTION. These islands became part of the dominions of England when William the Conqueror established himself on the Enghsh throne. The government is now vested in a Go- vernor and Assembly. The Governor is appointed by the King, of whom he is the representative. His peculiar duty is to attend to the fortresses and the military defences of the island. The assembly consists of the Bailiff and twelve jurats the dean and eleven rectors, and the twelve high consta- bles of the island, aided by His Majesty's Attorney and Solicitor-General. There is a slight difference in the number of votes as the body sits in the States of Delibera- tion or States of Election. The States of Deliberation approach nearest to our Parliament, as they consider and decide all matters affect- ing thft CrptlPral WAqI aaaoao tnvnr, rx^A C-, 1. iU _ i »• o '^ — a n^a.f Suocsu Imavo, atiii liispcui IHC pUOllC hi I , ' ( 698 JERSEY. ill accounts. The States cannot, except in cases of emer- gency, impose any new tax without previously obtaining the consent of the King. The chief duty of the States of Election is to decide on contested returns of jurats, who are always chosen by the people. When a vacancy in the list occurs notice is duly issued to the district, and on Sunday, at the close of ser- vice, the rector states to the congregation the occasion which calls for the exercise of their elective franchise. A proper person is then put in nomination. When the re- turn is contested the ultimate decision is left to this Ge- neral Assembly, which differs from the deliberative body only in having a few additional popular votes. CONVENTION OF THE ESTATES. This Convention is composedof the jurats or courts of justice as the first and noblest body, the dean and clergy as the second, and the twelve high constables (one elected by each parish), as the representatives of the commons. The King's Procurator, the Viscount, and the King's Advocate, though they represent no estate, are also ad- mitted propter dignitatem. This Convention cannot meet but upon summons by the Governor, who has a negative voice in it. The Bailiff is the speaker of the Convention. No estates can be held without at least seven of each body, and no foreigner preferred to a benefice in the island can be a member of the Convention till he is natu- ralized. By an order in Council of the reign of James I. (1619) it is ordered, that the states shall not meet except upon being convened by the Governor, " with this quali- fication, that if the Bailiff or justices shall require an assembly of the states, the Governor shall not defer it above fifteen days, except he have such cause to the con- trary either in respect to the safety of the island or our special service otherwise, as he will answer to us or the Lords of our Council, whereof he shall give as present advice as possibly wind and weather may serve." The great business of these states is to levy money for the public service, and in some other respects it assumes powers resembling those of the Parliament of England.— talle, c.vii.; Ency. Metro. The Bailiff is the chief oflicer of justice in the island, and holds immediately by patent from the King. He JERSEY. 699 acts in conjunction with the jurats, who are twelve in number. The Jurats, who exercise duties of a mixed nature, being at once judges and legislators, are chosen by the people, one for each parish in the island. Falle (c. iv.) thus describes the election :— " Upon a vacancy the court issues a M'rit of election, fixing the day, which is always a Sunday, and appointing one from their own number to collect the votes. The writ is delivered to the minister, who, after divine service, reads it from the pulpit, setting out usually in a short speech the duties and obligations incumbent on those that aspire to that magistrature, and recommending the people to choose the man most fitted by his talents and virtues for such an office. The people give their votes at the church door as they go out, and he that has the majority throughout the island is declared duly elected. Without the verdict and opinion of these twelve the BaiUff cannot pronounce. In case of inequality of opinions, he is bound to follow the majority. But he has the choice betwixt opinions equal in number." COURTS. There is but one court of judicature, yet, because matters are of more or less moment, or require different methods of proceeding, this court is distinguished into four classes or courts. The first is called the Court of Inheritance, which is opened at the beginning of every term, and decides on questions arising in respect of real property. The second is the Court of Catel, or chattels and movables, in which actions upon simple contracts may be tried, but the principal business of which is the adjudication ot decrees, or the legal settlements of claims upon insolvents. The third court is the Extraordinary Court, which was established to assist the Court of Catef, when the causes in that court became too numerous for it. The Extraordinary Court decides upon arrears of rent not exceeding ten years, arrests, distrainings, &c. &c. The fourth is the Saturday Court, which is also an extra- ordinary and subsiduary court, and properly but a branch of the former. In term time it is appointed principally ^or tiie iving's causes, and out of term for causes of bre- vity which admit of no delay, as causes of admiralty, i\ 700 JERSEY. cause* between merchants, breaches of the peace, &c.-- Falle's Account of Jersey, c. 4. The officers of the court are the Procurator and Advo- cate, or the Attorney and SoHcitor; the Viscount or She- riff; the Greffier or Clerk; six Advocates or SoHcitors at the bar; two Denunciators or Under-sheriffs, and an Usher. The court is a royal court, having cognizance of all pleas, real, personal, mixed, and criminal, treason and some other casus nimis ardui{\) excepted, which are re- served to the King in Council. Appeals may be brought before the Council from judg- ments or decrees, in matters of civil property above the value of 300 livres tournois. No appeal lies in criminal cases. In criminal matters every crime is first investigated by a petty jury, seven of whom must concur to find a pri- soner guilty. The prisoner is allowed an appeal from their decision to la Grand Enquete, which consists of twenty-four persons. Five votes out of this number is suflicient to acquit. To decide questions relating to the inheritant;e of real property, the court must consist of five jurats at least, and in matters relating to chattels of the value of above 50 Hvres tournois of three jurats ; and from these lies an appeal to the Court of Judgment, consisting of not less than seven members ; and again from them, if the matter in dispute amount to 40a'. of freehold, or £¥) of personal property, to the King in Council. Up to the reign of Elizabeth the justices in eyre were sent annually or tri- ennially to Guernsey and Jersey to hear appeals from the courts of ordinary jurisdiction. Commissioners were af- terwards sent at intervals for the same purpose, and were invested also with extensive powers to examine the state of the law, supply defects, correct inaccuracies, and re- trench what the deliberate assembly deemed superfluous. This custom however ceased with the reign of James I. The Ecclesiastical Court consists of a dean and eleven rectors presiding over the twelve parishes of the island. The dean is empowered to grant probate of wills, and to exercise the powers of a consistory court. The island was placed under the see of Winchester by Queen Eliza- beth by an order in Council, dated 11th March, 1/568. (I) Constit' Joliauiiis Regis, Art, V. JERSKY. 701 ■''* m LAWS. (1) Conformably to an Order in Council of the date of the 21st May, 1G79, and communicated to the states on the tid day of July following, Tlie laws and privileges of the island are confirmed as ancient and established, and no orders, warrants or letters of what nature soever, shall be of force in the island until after having been presented to the Royal t.ourt m order to be there registered and published, and in case such orders, warrants or letters shall be found contrary to the charters and privileges of the said island or burthensome to it, the registration, execution and publication, may be suspended by the court until the case shall have been represented to His Majesty, and his good pleasure taken thereon. And as to acts of parlia- ment m which the island is mentioned, and in which it It interested, they must be exemplified in form under the great seal of England, and sent into the said island and there enregistered and published, in order that the in- habitants may have knowledge thereof, that they may conform themselves thereto, and avoid the penalties of ottending against them.— Code of Jersey, 159, 160. The laws which govern these islands are the ancient customs of Normandy as contained in Le Grand Coutu- mier, or in La Somme de Mangel, municipal and local usages of the island, ordinances made by the Kings of Jb^ngland or by commissioners royal, and Orders in Council. JNo act of parliament affects these islands, unless they are particularly named therein. (2) The following account of the jurisdiction of the English courts in these islands is taken from Hale's History of the Common Law. Mich. 42 Edw. 2. Rot. 45, coram Rege. A great com- plaint was made by petition against the Deputy-Governor ot those islands for divers oppressions and wrongs done there. This petition was by the Chancellor delivered into the Court of B. R. to proceed upon it, whereupon there were pleadmgs on both sides ; but because it appeared to be for things done and transacted in the said islands judgment was thus given :—« Et quia negotiam pra^dict' m curia hic termmari non potest, eo quod juratores in- ( Sec ante, p. 3 to 16 on this subject. (2) 4 Inst. c. 70, pp. 286, 287-. % 702 JERSEY. sulae praedict' coram' justiciariis liic venire non possunt, nee de jure debent, nee aliqua negotia infra insula praj- dieta emergentia terminari non debent, nisi secundum consuet' in I* pniedicta?. Ideo recordum retrotraditur Cancellario ut inde fiat commissio Domino Regis ad ne- gotia praedicta in insula praedicta audienda et terminanda secundum consuet' insulae praedicta;." And accordingly, 14th June, 1565, upon a report from the Attorney-General, and advice with the two Chief Justices, a general direction was given by the Queen and her Council, that all suits between the islanders, or where- in one party was an islander, for matters arising within the islands, should be there heard and determined. But still this is to be taken with this distinction and limitation, viz. that where the suit is immediately for tlie King, then the King may make his suit in any of the courts here, especially in the Court of King's Bench. For instance, in a quare impedit brought by the King in B. R. here for a church in those islands, so in a quo wnrrmto for Uberties there ; so a demand of redemption of lands sold by the King's tenant within a year and a day, according to the custom of Normandy ; so in an in- formation for a riot, or grand contempt against a governor deputed by the King. These and the like suits have been maintained by the King in this Court of King's Bench here, though for matters arising within those islands. This appears Paschac, 16 Edw. 2, Coram Rege, Rot. 82; Mich. 18 Edw. 2, Rot. 123, 124, 125; and Pasc. 1 Edw.3, Rot. 59. ' And for the same reason it is, that a vfvit oi habeas corpus lies into chose islands for one imprisoned there, for the King may demand and must have an account of the cause of any of his subjects' loss of hberty, and there- fore a return must be made of this writ, to give the Court an account of the cause of imprisonment ; for no liberty, whether of a county palatine or other, holds place against those brevia mandatoria, as that great instance of pu- nishing the Bishop of Durham for refusing to execute a writ oX habeas corpus out of the King's Bench, 33 Edw. I, makes evident. PECULIAR LAWS. Insolvency.— In cases of insolvency the debtor files an afhuavit of his insolvency in the Cohue Koyale, (or place JERSEY. 703 of judicature), and at the same time hands in a schedule ot his debts and of his means of satisfying them. Four public proclamations are then made at certain intervals, and upon the fourth the creditors come in. The iudee commencing at the bottom of the list, calls upon tL Ll Ser?v nf T"^ ''^', ^""^ '^ ^'\'' ^^"""g *° receive the pro- LTilfv 1 insolvent into his hands, and undertake to satisfy the demands of all the other creditors. If he re- fuses, his name IS erased from the list of creditors, and the same offer made to the next in succession, and he same frr?^'"'' accompan es a refusal, till some creditor. £k^ ^ "rr"' ''r'^ "^ *^^"^« h^ ««» safely under- take the task of settlement.-Falle's Account, p. 111. I lii'^ J? u ^description of the mode of proceeding given by Mr Falle and adopted by modern writers in XTr account of the customs of the island. Mr. Fallo's book was published m 1694, and in it he expressed (civ. p. 108) a strong wish that the public might have the advantage of having their laws -collected, methodized and dige^sted into a system or code." This wish was not gratified till nearly 80 years afterwards, when a small volume entitled r t A -J^ ^""V ^''r ^^^ ^^^and of Jersey," was pub- lished, with a confirmation and ratification of the work by roL^'I ?'ir^^^^'^^ ^" '^^ 18th March, 1771. In that code IS the following statement of the law as to the proof to be given by the debtor of his means of satisfying the claims of his creditors. ^ Kn JJ"^ f^^vf°' "^^"^ '^*'" ^^'^^^ *° P"t h's effects into the hf^%' I ?f"r*' J" «i-der to procure time to arrange his affairs shall not be permitted to do so till after having satisfied the court that they are suflicient to discharge hii debts ; and m that event he shall be bound to produce an exact statement of all his effects, real and personal, and to lodge at the same time with the secretary all his books ot account bills, bonds, papers, &c. verified by oath, in order that they may be referred to in case of necessity.- Lode of Laws, S21. •' LIMITATIONS. Three years of interruption or discontinuance of claim in heritable matters, and one year in possessory matters, shall be a sufficient prescription.— Code, 168. «., r '' i— . ■• "-7' "«TxRg pcaucauiy anu witnoui inter- ruption, enjoyed during forty years any immoveable pro- m 704- JERSEY. I ! perty, shall not be disturbed in regard to the ownership of the thing possessed ; the possession for that period giving a perfect and uncontrovertible right according to the ancient custom of the island. — Code, 223. REGISTRATION OF DEEDS. Deeds and hypothecations are subject to registration, under pain of being considered private, and of having no effect over others posterior in date. Such deeds to have no effect whatever if not registered within six months of their date.— Code, 278, 279. A bond is considered a sort of hypothecation of the real and personal property of the obligor, and binds the heir whether he is named or not. — Falle, 86. Rate of Interest. — Conformably to the ordonnance esta- blished by the act of the court relating to heritage, of the date of the 23d September, 1714, the interest of money shall not exceed 5 per cent., on pain of the offenders being considered usurers, and puniblied accordingly. — Code, 128. Choses in Action. — These are not assignable. — Code, 171. ii l> 1 ( 705 ) GUERNSEY, ALDERNEY and SARK. Guernsey is an island situated about 13^ miles north- west of Jersey. It is of a triangular form, about nine miles long, and six in its greatest breadth. Its circum- ference IS about 39 English miles. The soil and climate are good, and though the land generally slopes down- wards to the north, it produces excellent crops of every HISTORY AND CONSTITUTION. In its history and constitution this island very much resembles Jersey —See Hale's History of the Common Law, 183 et seq. and 4 Inst. c. 70. The first regular settlement of Guernsey appears to have been effected in 962 by some Benedictine monks. Ihe lands of which they took possession were erected WMi- ^ ^^l ^l ^''^^'' ^^"''^ of Normandy, father of William the Conqueror. Under the reign of his son, Sampson DAnneville obtained the grant of a large seig' nory, and established the feudal system and other institu- tions existing in the rest of William's dominions. This sort of government was however almost abolished by King John, who established by charter a court consisting or twelve jurats. ° The Governor has at present the care and custody of the castles, fortifications, &c., and his jurisdiction ex- tends over all the channel islands, except Jersey. The duties of his oflfice are performed by a Lieutenant-Gover- nor, appointed by commission from the crown. The Assembly, called the States of the Island, is only held on particular occasions. Under the name of the 1, ^1' °*r *'''"' '^ appoints the magistrates and the If' „ ..V^^'''^''^ composing the States of Election are the Bailiff, Procureur and twelve Jurats; the eight Kectors of the island; the two Constables appointed for each of the ten parishes; the twelve Douzaniers, in each, excepting the town and the vale, the former returning twenty, the latter sixteen. m;itin• ever to rent, (4^ the grantor does not sign the deed himself, but goes before tv/o or more of the jurats, and there acknow- ledges It to be his act and deed, whereupon the jurats 8ign It, and it is then registered, and at the ne < seal- day It IS sealed with the seal of the island ; and the same may be done for any other d-^eds. Debts under private signature are not to be enrolled until they have been acknowledged before the Bailiff' or his Lieutenant and two Jurats, and they will then take place from the date ot such acknowledgment and enrolment ; and in the event of the debtor " renouncing his estate" (becoming bankrupt) will have preference over other debts not so enrolled.— Warburton's Treatise, edit. 1822. Descent. Real estate cannot be devised by will, but must de- scend to the heirs, according to the custom of the island. Children born out of wedlock are deemed legitimate, if their parents afterwards marry. Criminal Matters. In all criminal matters, except those of treason, coininff, and striking the Bailiff or /urats in the execution S" their duty, the Court of Guernsey has full and absolute authority to hear and determine according to the laws and customs of the island, and to give sentence accord- ingly, from which sentence there lies no appeal. Law Oncers. The law officers of the crown in Guernsey are the Procureur de Roi, or Attorney-General, and the Con- !''n^i'ir,u'^''°'''''r^^T''^5 «"^ these .offices are gene- lally filled by members of the oldest families in the island. (4) That is the owner lels the land for ever, pavin-r «^„rl., .„ -...i- -»„. w another t« hold to ium and his heirs as they can agrle-fo;:''' "' " 710 GUERNSEY. Commercial Regulations. The following important regulation gave the Channel Islands a right to enjoy a direct trade with the East Indies in the article of tea. 3 & 4 Win. 4, c. 101, s. 2. And be It further enacted, that it shall be lawful to import any tea into any of the islands of Guernsey, Jersey, Alderney or Sark, from the Cape of Good Mope and the places eastward of the same to the Straits of Magellan, or from the United Kingdom, and not from any other place, in such and the like manner as if the same were set forth in an act passed in the present session of parliament to re- gulate the trade of the British possessions abroad. Ml ( 711 ) MALTA. Malta, anciently Melita, is an island in the Mediterranean nearly opposite to the southern extremity of Sicily. It ties in about the 36th decree of north latitude, and the 14th and 15th of east longitude. It is distant sixty miles from Cape 1 assaro, the nearest point of Sicily, 190 from Spar- tivento in Calabria, and about 200 from Calipia, the nearest point of Africa. Its length is twenty-one miles. Its breadth eleven, its circumference sixty. Together with Gozo, from which it is separated by a strait four miles wide, it contains about 100 square miles of super- facial extent. The soil is very thin, great part of it havinff been brought from Sicily, and the inhabitants daily labour to add to its amount by breaking up the surface of the stony rock into a sort of gravel and mixing it with the f 6SC* There are two towns in Malta, Valetta, the present ca- pital, and Medina, known also as Cittd Vechia. The harbour of Valetta is double, and is one of the finest in the world. The city is built on a narrow tongue of land, having the castle and light of St. Elmo at its extremity and an admirable port on each side. The island of Gozo, or Gaudisch as the natives call it, IS eight miles long, six miles broad, and twenty in circum- ference. Though thinly inhabited it contains no town but has six villages and a strong fort in the centre of the island.— Encyc. Metr. ; Mace. Diet, of Comm. 2d ed. HISTORY. Malta was first known as having been ruled by an Afri- can of the name of Battus, who was an enemy of Queen Dido, and subdued by the Carthaginians. From them it tellinto the hands of the Romans, and the Saracens severed It from their empire. Roger, the Norman King of Sicily, having in his turn expelled them, it remained attached tn the Sicilian monarchy (a diploma of Louis VII., in 1350 m It. hli > 712 MALTA. ■J ■ i . having united Malta and Gozo to the dominions of Sicily, and having declared that he was their Lord Suzerain,) till the Emperor Charles V. gave it to the Knights of St. John, after their expulsion from Rhodes. The French became masters of it in 1798, and the inhabitants having in 1800 risen upon and blockaded the French, and having been afterwards assisted by the English and Portugueze fleets, the French Governor finally surrendered to the EngUsh commander. It was captured after a long blockade on the 5th November, 1800. It had been stipulated by the treaty of Amiens, that these two islands were to be deli- vered up to their original sovereign ; but various difficul- ties having been opposed by the then French government to the fulfilment of the treaty, and in the meantime a new war having been commenced in 1802, these dependencies have continued, and by the treaty of Paris on the 30th May, 1814, became permanently annexed to the British crown.— Gait's Travels in the Mediterranean; Cockburn's (General) Voyages; and Colonel Colquhoun's British Em- pire. ,qJ,^^ ''^^"^®"' P°P"^ation of both islands amounted in 1831 to 12,000. The revenue, according to Mr. Col- quhoun, is equal to o£'100,000. Mr. M'Culloch adds, that the expenditure, exclusive of that incurred in Eng- land on account of the island, amounts to about ofSSjOOO. The shipping was said to equal 4,000 tens, and the ex- ports and imports amounted each to about c£'2,000,000; but that estimate was made at a time when the island was used as one of the dep6ts of manufactures intended to be introduced into the continent of Europe, in contravention of Napoleon's decrees.— Ency. Metro.; M'Culloch's Diet. Com. CONSTITUTION. The following account of the constitution of the Islands of Malta and Gozo is taken from a pamphlet, entitled "Authentic Materials for a History of the People of Malta," composed, as its title page announces, by " Wil- liam Eton, Esq. Superintendant-General of the Quaran- tine and Public Health Department in Malta," Mr. Eton appears to have been strongly inclined to favour the call of the Maltese for a popular constitution, his authority therefore may perhaps be questioned, but his assertions CI fact are ffenerallv simnnri'iofl \y,r |.«f«,.^»,r, — *- *i,- _,.:_: MALTA. 713 nal documents, and there is little reason to believe that his opinions were suffered to influence his statements. His pamphlet contains the best account of these dependencies that it has been the fortune of the author to meet with. The Maltese appear to have in general enjoyed the blessings of a free constitution. Their liberties were secured principally by the institu- tion of a Ccnsiglio Popolare, or Assembly of National Representatives. The time when this body was first instituted cannot be precisely ascertained, but is supposed to be as early as the year 1090. This Consiglio Popolare was a permanent represen- tation of the whole people. Its existence and fpi.ctions are acknowledged and confirmed by all their Suzerains. The gradual encroachments on its rights and privileges, and its final suppression by the Grand Masters, were the principal causes of uie disaffection of the Maltese, and of the many conspiracies which were formed to subvert their usurped power. Consiglio Popolare. In the Consiglio Popolare resided the whole legislative authority. It not only nominated the members of the executive government for the management of ordinary affairs, but it watched their conduct, and had the power of controlling and displacing them. The appointment of the principal officer of govern- ment, the Capitano, received the saction of the Suzerain. The powers of this officer have varied at different pe- riods, but they were always limited. Sometimes he has been nominated solely by the Suzerain, sometimes by the Maltese; but the more general and constitutional practice seems to have been to submit to the Suzerain the names of three persons, from whom he made his choice. All important matters were decided by the Popular Council. The Jurats, as the administrators of public property, were dependent on this body, and were nominated by it. It took care of the commercial interests, and superin- tended the operations of the Universitd ; and whenever it became necessary nominated procurators, syndics, &c. it appointed ambassadors to sovereigns to negociate .[ 714 .3 MALTA. on public affairs, and to the Suzerains to ask favours or make complaints, it being the particular duty of the coun- oil to defend the popular rights and privileges. It deputed from its own body a certain number of per- sons of probity, of the first and second classes, (of which the Consigho Popolare was always composed) to form a Lonsiglw Parhcolare, which was annually elected by Scru- Unto, the new public officers or ministers, the election of whom belonged to the citizens, agreeably to their most ancient privileges. The ScrutiHio means a court that is held annually on September 27th to appoint proper persons to hold offices. Ihe appointment of all public officers was only for one year, when others M'ere appointed in their places. The trrand Masters, and since them the British Civil Com- missioners, have latterly arrogated this power to them- selves. The public officers thus nominated were, both in Malta and Gozo, the Jurats and Treasurer of the University (who compose that magistracy), the Acataponi, who were then of the first families, latterly they are a kind of assist- ant in the markets and in the affairs of the Universita, the judges, criminal and civil, the superintendant of the city ramparts, and other public edifices, the commissaries ot the public health department, and the procurators of the hospital and public places. It seems that the Consiglio Popolare sometimes deputed the Universita (or Jurats) to exercise the functions of the Consigho Particolare, and elect the judges, &c. bv scru- ttnio. ^ xi, '^iV® Consiglio Popolare was by the Sicilians, and by the Maltese themselves, frequently called the Council of the City, Citta Vecchia (Medina, or Citt^ Notabile) by ex- cellence called The City. , ^^Z C^PJtonx) di Virga (who was the royal officer or sherift of the island) was prohibited from entering the Lonsigho Popolare whenever he had any interest in the business to be treated of. He could only be a principal gentleman or a noble. He was forbidden to have any pri- vate prison of his own, and when he arrested persons, he was bound to deliver them to the public prisons. He was generally the miHtary commander and minister of the King. He was often styled the Captain of the City. Valetta was not then built. MALTA. 715 The Castellano, or Governor of the Marine Castle, had no right to interfere in the affairs of the University or of the city; nor had he, as Castellano, any jurisdiction be- yond the ditches of the fort. The annual officers were made by mastra and scrutinio by a majority of votes. Mastra was the golden book or register of noble and distinguished families. Some time after the government of the Grand Masters had been established this book disappeared. None were eligible but those whose names were inscribed in this book. No new duty or tax could" be collected without the con- sent and order of the Consiglio Popolare ; and it seems that the consent of the Suzerain was also necessary, at least to taxes of importance. The Consiglio Popolare was aboHshed in 1775, but it had long ceased to be the representation of the people. The Grand Master latterly had put into this office his own creatures, whom he removed at his pleasure, eivinff no reason. ° ° With respect to the persons who composed the Con- siglio Popolare, it appearr 'v ancient records, that before the coming of the order of St. John, and many years afterwards, this body was composed of a certain number of persons of families of the first and second classes, and the representatives of towns (casal) elected by the people, who were called constables (contestabili, constables). The jurats and all other officers of popular election had a seat in the Consiglio Popolare on general affairs. And when there was a question which related to the general interest of the nation, and in which the clergy had any concern, the vicars, bishops, and the priests, representatives of the clergy, were also admitted. Strangers domiciliated five years, and married to Mal- tese women, were frequently admitted members of council by an act of the council itself. The offices of captain, of judge, civil and criminal, of jurats and of acatapano, could not be held by merchants or artisans. Gozo. This island was governed in every respect the same as Malta. It had its own Consiglio Popolare, and every other officer similar to those in Malta. 716 MALTA. $1 The people of Gozo could not any more than those of Malta, be cited to appear before any tribunal out of their island, except in cases of high treason against the Suze- rain, or upon feudal questions. Courts — Laws. The tribunal of Valetta was composed of a castellano (a knight); a criminal and civil judge; a fiscal and deputy- hscal; an advocate and pro-advocate of the poor; a pro- tector of prisoners (a knight); two notaries are actuaries and writers; a grandvisconte or sheriff; and captains or othcers ot police with their assistants. There were similar tribunals in Citt^ Notabile, the ca- From the sentences of these judges an appeal lay to the Judge of Appeals, and from his sentence there was a second appeal to the Judge Surrogate, whom generally the Grand Master deputed, on the petition of the con- demned or cast, as judgment was not onsidered to be com- plete without three concurring sentences, which formed a nnal and conclusive judgment. The Grand Master then confirmed, revised, altered or annulled the sentence, or even augmented the punishment adjudged by the sentence; of which there was an in- stance m the time of Pinto, not many years ago, now in the records of the tribunal of Valetta. This Grand Master ordered by his sign manual, which constituted a law, certain thieves to be hanged, who had been by three concurring sentences condemned to be banished to Sicily and they were executed. ^' To the Judge of Appeal were referred also causes ap- pealable from the Government Court of Gozo; from the office of First Appeal at Cittd Notabile; from the oflice formerly called isiniscalia, (S6nechals Court, which had exclusive jurisdiction over all persons belonging to the palace, to the custom-house, and to the Universitd); from the consolato del mare, (a commercial court,) and other subaltern tribunals. In capital causes and those of high crimes, (delitti gram), the three judges (criminal, civil and judge of ap- peal) were joined; they met in the apartments of tlie castellano, and decided the causes, which were argued and defended by the Fiscal and the Poor's Advocate MALTA. 717 The judges, instead of salaries, received the penalties and taxed fees for sentences, &c., which altogether formed a considerable sum. Though this is the formation of the tribunals, the code of Rohan and the laws since made by the decrees of Hompesch, by Sir Alexander Ball as Governor for the King of the Two Sicilies, and by Messrs. Cameron and Ball, as Civil Commissioners, are nevertheless the only rule of justice and the lex scripta actually in force. A new code of laws, under the title of Dritto Munici- pale di Malta, was published upon the sole and, as it seems, usurped authority of the Grand Master Rohan, who had just before made use of a popular sedition as a pretext for utterly abolishing the Consiglio Popolare. In difficult cases where these laws are obscure or insuf- ficient, recourse is had to the writings of Italian doctors of law, where cases more to the point have been decided. When the Judges did not agree in their opinion, the Grand Master or the Civil Commissioners decided of them- selves, or took the opinions of their lawyers. — Authentic Memoirs. .^ A Supreme Court of Justice now exercises the highest judicial functions in the island, and the Chief Justice of this tribunal is appointed by the crown. See post, 721. Coroner. The Criminal Judge executes the functions of an En- glish coroner. When information is brought to him of a crime being committed, he proceeds to the place and takes an inquest. The Judge having taken an inquisition, causes such persons to be sent to prison as are accused or suspected. He examines witnesses one by one, the fiscal, advocates, writers, &c. being present, with the doors open or shut, as he shall think proper. Sometimes he examines them privately in a room. Their testimony is taken down in writing, and the witnesses sign it. The manner of exa- mination and the questions put to them, depend entirely upon the Judge, no one having a right to interfere. From the documents the Judge forms what is called compilazione di processo. The Judge of Appeals and the Judge Surrogate have only their papers to guide them. They cannot di-pute tiie facts as stated by tlie Criminal Judge, nor can they u-^f A 718 MALTA. examine witnesses, or proceed on any other grounds with- out an express order from the Grand Master, or at present from the Civil Commissioners. Fiscal. He is to see that the Judge takes an inquest immedi- ately, to furnish the Judge with witnesses, and what is necessary to prove delinquency, whether the suit be by application of parties or by inquisition ; he is to be with the Judge in every act, judicial or extra-judicial, respect- ing the merits of every criminal cause. He takes inquisi- tions, &c. in the absence or sickness of the Judge The tribunals of ChtA Notabile and of Gozo are constituted much in the same manner. Castellano. The President or Castellano holds an office almost merely nominal. He is like the Fiscal to see that justice be administered with promptitude. There exists also another court or council, which has in all times been unpopular, called Signatura ; the mem- bers are properly the Privy Councillors of the Grand Master, and are now those of the Civil Commissioner, they are styled Uditori. To this council are delivered petitions complaining of injustice or delays, or for obtain- ing offices or places under government, praying for sus- pension of proceedings, and various other cases. In fine, there are scarcely any limits to the affairs which may not come before this council in the form of petitions. The number of the Uditori is in general four or five. They are men of the law by profession, or ecclesiastics, or gentlemen who have studied the law. They rank before the tribunals. The Uditori hold then- places during pleasure, and they are are often changed. This council, properly constituted, would be a check upon the tribunals. The University. This assembly, once the supreme magistracy, and still called "The Magistracy," has at present only a Hniited jurisdiction in the police of Vne markets. It is composed of four or five Jurats (Giurati) and a Treasurer. There MALTA. 719 formerly was a fund belonging to the Univcrsiti\, from which It paid interest to those who put their money into It, but the French seized this fund, and ruined many fami- The Jurats supply the island with corn, wine and oil. No one is allowed to sell those articles in the island be- sides the University ; they fix the price at which they ^11, with the approbation of the Civil Commissioner. 1 he profits arismg from the sale of corn produces a consi- derable annual revenue to government, for whose account the purchases and sales are now made. There oueht always to be two years' provisions in Malta. Appeals. By an order in Council of the 18th December, 1834 regulations were made for appeals from the decisions of die bupreme Council of Justice to the King in Council 1 he following are the important parts of the order. "Whereas by the law at present in force in the isle of Malta and its dependencies, no provision for permitting and regulating appeals from the Supreme Council of Jus- tice m and for the said island and its dependencies, and It is necessary to make provision for rtgulating such ap- peals ; It IS therefore hereby ordered by His Majesty by and with the advice of his Privy Council, " That any person being a party or parties concerned in any cause, suit or action depending, or which may here- after be commenced or brought in or before the Supreme Council of Justice in the said island of Malta, may ap- peal to His Majesty, his heirs and successors, in his or their Privy Council, in such manner, within such time, and subject to such rules, regulations and limitations as are hereinafter mentioned. *• In case any judgment, decree, order, or sentence for or m respect of any sum or matter at issue above the amount or value of i"1000 sterHng, or in case such jud V comtistiit^n' /'"■'''"" -"r,*"! ^^"'^. '^"'■y ':o™'"i«sioner and colonial .^n^n fi ''° appointed from time to time shall, before he shall o? thoT). ' '^f ".•»'«" «^''"."^^'^' "^^^ ^'"^ following'oath before one fiiSfr '"^Majesty's Court of Common Pleas, or one of the iSll %^""'"i''^?T''''ir''' "' ('" ^^'' ^««^ «f ^"'^l' 'colonial ^om- nissioners) before the judge of one of His Majesty's Courts in the said province or provinces ; (that is to say,) • I, A. B. do swear, that I shall faithfully, impartially, and honestlv ' rowetSf c! Itic'r f "' '"^ ^'•'"•"^' j^'^^'"^"*' -ecute'and fulSlTe powers and duties of a commissioner [or colonial commissioner, as the cae may be,] under an act passed in thefiflh year of the reign ^f Kh^ Wilham the Fourth, intituled [here set forth the title of this act]?' ^ n^;!f ;/n''''^''i'^ "'"'''^' ""'^ ^'^ '' ^'"■"'^'' ''"^'^'«^' tl'«t tlie salaries to be SSl L fiv^?rT"' "' l"ay be appointed to any office under this act, s a be fixed by the i.ords of His Majesty's Treasury, and by then shall be revised from time to time as they may deem expedient. 16. And be it further enacted, that the said commissioners shall, at III m"-" T'^T^ ^'"i;' e "^ "* '""'» "^^'^ *""^« «»d i" such form as Majesty s Principal Secretary of State for the Colonies shall direct, submit to the said Secretary of State a full and particular report of their proceedings; and every such report shall be laid before both Houses of Pari.ament withm six weeks afler the receipt of the same by the said Secretary of State, if Parhament be then sitting, or if Pariiament be not sitting, then withm six weeks afler the next meeting thereof, 17. And be it further enacted, that it shall and may be lawful for the said commissioners, previously and until the sale of public lands in the SOUTHERN AUSTRALIA. 729 said province shall have produced a fund sufficient to defray the cost of conveying to the said province or provinces, from time to time, such a number of poor emigrants as may by the said commissioners be thought desirable, from time to time to borrow and take up on bond or otherwise, payable by instalments or otherwise, at interest not exceeding £10 per cent, ner annum, any sum or sums of money not exceeding ^650,000, for tlie sole purpose of defraying the co^ts of tlie passage of poor emigrants from Great Britain or Ireland to the said province or provinces, by granting and issuing, to any person or persons willing to advance such monies, bonds or obligatory writings under the hands and seals of the said commissioners or of any two of them, which bonds or other obliga- tory writings shall be termed "South Australia Public Lands Securi- ^es ; ' and all such sum or sums of money, not exceeding in the whole £50,000, so borrowed or taken up by means of the bonds or writings ob- ligatory aforesaid, for the sole purpose aforesaid, shall be borrowed on the credit of and be deemed a charge upon the whole of the fund to be re- ceived as the purchase-monev of public lands, or as the rent of the com- mon of pasturage of unsold portions thereof; and it shall and may be lawful for the said commissioners from time to time to appropriate all or any part of the monies which may be obtained by the sale of public lands in the said province or provinces to the payment of interest on any such sum or sums borrowed and taken up as aforesaid, or to the repay- ment of such principal sum or sums. 18. And be it further enacted, that for defraying the necessary costs, charges and expenses of founding the said intended colony, and of pro- viding for tha government thereof, and for the exi)enses of the saiJ com- missioners (excepting always the purpose whereunto the said emigration fund IS made solely applicable by this act,) and for defraying all costs charges and expenses incurred in carrying this act into execution, and applying for and obtaining this act, it shall and may be lawful for the said commissioners from time to time to borrow and take up on bond or otherwise, payable by instalments or otherwise, at interest not exceeding £10 per cent, per annum, any sum or sums of money required for the Eurposes last aforesaid, not exceeding in the whole the sum of £200,000, y granting or issuing to any person or persons willing to advance 'such monies, bonds or obligatory writings under the hands and seals of the said commissioners or any two of them, which bonds or other obligatory writings shall be termed "South Australia Colonial Revenue Securities; ' and all such sum or sums of money by the said commissioners so borrowed and taken up as last aforesaid, shall be and is and are hereby declared to be a charge upon the ordinary revenue or produce of all rates, duties and taxes to be levied and collected as hereinbefore directed within the said province or provinces, and shall be deemed and taken to be a public debt ow'ng by the said province to the holders of the bond or bonds or other writings obligatory by the said commissioners granted for the pur- poses last aforesaid. 19. And be it further enacted, that it shall and may be lawful for the said commissioners at any time to borrow or take up any sum or sums of money for any of the purposes of this act at a lower rate of interest than any security or securities previously given by them under and by virtue of this act which may then be in force shall bear, and therewith to pay off and discharge any existuig security or securities bearing a luRlier '•ate of interest as aforesaid. 730 SOUTHERN AUSTRALIA. 20. And be it further enacted, that in case it should 8o happen that tlic said commissioners shall be unable to raise by the issue of the said -olo- nial revenue securities the whole of the said sum of £200,000, or that the ordinary revenue of the said province or provinces shall be insuffi- cient to discharge the obligations of aU or any of the said securities, then and in that case, but not otherwise, the public lands of the said pro- vince or oroymces then remaining unsold, and the monies to bo obtained by the sale thereof, shall be deemed a collateral «jcurity for payment of the principal and interest of the said colonial debt : provided always that no monies obtained by the sale of public lands in the said province or provinces shall be employed in defraying the principal or interest of the said colonial debt so long as any obligation sated by the said South Austrahan i'ublic Lands Securities shall remain undischarged : provided also, that in case, after the discharge of all f)bligations created by the said bouth Australian Public Land Securities, any part of the monies obtained bv tlie sale of public lands in the said province or provinces shall be em- ployed to discharge any of the obligations created by the said colonial reveniie securities, then and in that case the amount of such deduction Irom the said emigration fund shall be deemed a colonial debt owing bv the said province or provinces to the Colonization Commissioners fo'r boutii Austraha, and be charged upon the ordinary revenue of the said province or provinces. 21. And be it further enacted, that the commissioners nominated and appointed by His Majesty as aforesaid, may sue and be sued in the name or names of any one of such commissioners, or of their secretary, clerk or clerks for the tune being; and that no action or suit to be brought or commenced by or against any of the said commissioners in the name or names of any such one of such commissioners, or their secretary or clerk shall abate or be discontinued by the death or removal of such commis- sioner, secretary or clerk, or any of them, or by the act of such commis- sioner, secretary or clerk, or any of them, without the consent of the said commissioners, but that any one of the said commissioners, or the secretary or clerk for the tune being to the said commissioners, snail always be deemed to be the plaintiff or defendant (as the case may be) in every such action or suit: provided always, that nothing herein contained shall be deemed, construed or taken to extend to make the commissioners who shall sign, execute, or give any of the bonds or obligatory writings so hereby authorized or directed to be given personally, or their respective estates, lands, or tenements, goods and chattels, or such secretary or clerk, or their or either of their lands and teneiiKuts, goods and chattels liable to the payment of any of the monies so borrowed and secured by reason of their giving any such bonds or securities as aforesaid, or of their being plaintiff or defendant in any such action as aforesaid; but that the costs, charges and expenses of every such commissioner, secretary or clerk, by reason of having been made plaintiff or defendant, or for any contract, act, matter, or thing whatsoever, made or entered into in the bom Jtde execution of this act, from time to time to be defrayed by the said commissioners out of the money so borrowed and taken up as afore- said. ^ 22. And be it further enacted, that no person or persons convicted in any court of justice in Great Britain or Ireland or elsewhere, shall at any ume or under any circumstances be transported as a convict to any place within the hmits hereinbefore described. SOUTHERN AUSTRALIA. 731 23. And be it further enacted, that it shall and may be lawful for His Majesty, by and with the advice of his Privy Council, to frame, constitute, and establish a constitution or constitutions of local government for any of the said provinces possessing a population of 50,000 souls, in such manner and with such provisoes, Hmitations and restrictions, as shall to His Majesty, by and with the ad\ ice of his Privy Council, je deemed meet and desirable : provided always, that the mode hereinbefore directed of disposing of the public lands of the said province or provinces by sale only, and of the fund obtained by the sale thereof, shall not be liable to be in anywise altered or changed otherwise than by the authority of His Majesty and the consent of parliament : provided also, that in the said constitution of local government for the sa'd province or provinces, provision shall be made for the satisfaction of the obligations of any of the said colonial revenue securities which may be unsatisfied at the time of framing such constitution of the said province or provinces. 24. And be it further enacted, that for the purpose of providing a guarantee or security that no part of the expense of founding and go- verning the said intended colony shall fall on the mother country, the said commissioners shall and are hereby empowered and required, out of the monies borrowed and taken up as aforesaid on the security of the said South Australian Colonial Revenue Securities, to invest the sum of £20,000 in the purchase of Exchequer bills or other government secu- rities in England, in the names of trustees to be appointed by His Ma- jesty ; and the said trustees shall hold the said Exchequer bills, or other government securities, so long as may seem fit to His Majesty's Principal Secretary of State for the Colonies ; or shall, in case it shall seem fit to His Majesty's Principal Secretaiy of State for the Colonies, dispose of the same for any of the purposes to which the monies raised by the issue of the said South Australian Colonial Revenue Securities are hereby made applicable : provided always, that if the said Secretary of State should dispose of any part of the said £20,000, a sum or sums equal to the sum or sums so disposed of shall be invested in the names of the said trustees by the said commissioners, so that the said guarantee or security fund of £20,000 shall not at any time be reduced below that amount: provided always, that the interest and divif'ends accruing from time to time upon the said Exchequer bills or other government securities, sli ill be paid to the said commissioners, and by them be devoted to the purposes to which as hereinbefore directed, the monies to be raised by the issue of the aforesaid South Australian Colonial Revenue Bonds are made applicable. 25. And be it furthei- enacted, that if after the expiration of ten years from the passing of this act the population of the said province or provinces shall be less than 20,000 natural born subjects, then and in that case all the public lands of the said province or provinces which shall then be unsold shall be liable to be disposed of by His Majesty, his heirs and successors, in such manner as to him or them shall seem m^et: pro- vided always, that in case any of the obligations created by the Suid South Australian Public Lands Securities should then be unsatisfied, the amount of such obligations shall be deemed a charge upon the said unsold public lands, and shall be paid to the holders of such securities out of any mo- nies that may be obtained by the sale of the said lands. 2G. And be it further enacted, that until the ?aid commissioners shall, by the granting aad issuing of bonds and writings obligatory as aforesaid) I 51 732 SOUTHERN AUSTRALIA. that is to gay, '' South Australian Colonial Revenue Securities." have raised he sum of £20 000, and have invested the SflmerSrp'urchasc Ami, »,»M'^fT'°'''°'«.*?^""'"«"*«'''^»"t'«»'"l^'ereinbefore directed, -,^3 Z l^rr' '»'«»J"'« t» «ett!e in the said province or provinces stie« lir t\^^'' '""'"r' ^'''^''' ^r P-y-n^"* to the said^commis- Bioners, or ni the names of trustees to be appointed by them,^ for the «d5,000 none of the powers and authorities hereby given to His Ma- irir S '" • °T'"l'''°"^'i'' "'■ '° ""y P^"«» «r persons, except as respects the exerc.se by the said commissioners of such powers as are required for msmg money by means of and on the sccurity^of the bo,!ds Zm7f,\tafT^' ""f '°%^^«=^r? «"d investing the aforeS sum of £35,000 for the purchase of public lands, shall be of or nave nnv fiiwrufmn n>i-hiitory and on«titutio„, 23' Court pfPohcy and College of Kiezeni,240-Court 244-1 .ws.24h_prac. tice of the courts, 2 iB-officcrs of the coun.. 242. «( tea.- \wt of Admiralty. 267-Orphan Chamber. 268-wilU, 269 -mortgages, 260 — bankniptqr, M/.--Commi8st<.n constituting tlif^ united colony of, 262 urdtis m Council for the administration of justire in, 267. 274— r«f.T„ro«^ ''r" J."'"''* '"• 2^*- '" ' ' »f P"'""^^ of the Supreme i^ourt ot, ^b5— rules of practice in the oferior courU. 288— Order in Council respecting the qualification of assessors, .d.-orxli nance re- lating to the assessors, 294-amended oitiinance, 297-laws in 298 C. CABILDO, 320. CANADAS,397-history and constitution. iV/.-Counxs in Lower Ca- NADA. 401-Court f Kind's Bench. 402-of Vice-Admiralty. wl coroners, id.— Quarter Sessions, i». S w 7 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 2.5 I.I H^ 1^ 112.0 1.8 11.25 1-4 11.6 Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) P72-4503 m,-4 FW^ I f-4' ' ') ■ i '■ I i « 5 4 < i 3 **• '^'- 1 *# " ' ' 3 a^' ^ " ^ *9 1 3 738 INDEX. CHANCELLOR IN THE COLONIE^. See Govebnor. CHARTER GOVERNMENTS, 3, n., 17 and n., 18. 20, and n. CHARTERS OF JUSTICE, 2, 21, 22. n., 24, 26-for British Guiana, 267, 274— for the Cape of Good Hope, 476 -for Ceylon, 544— for Gibraltar, 680— for Mauritius, 594— for Newfoundland, 423— for New South Wales, 627— for Sierra Leone, 499— for St. Lucia, 267, 27 1— for Trinidad, id. -for Van Diemen's Land, 653— for Westein Australia, 671. CODES OF LAWS— promulgated by France, Spain, and Holland, for the government of tneir respective colonies, 23, 24. See also Laws of A Colony. COINS— Jaws relating to foreign, 74. COLONIES — what, 1, n. — laws to which they are subject, 3 and 7 — by whom administered, 3— extent of prerogative, in, 3, 3, n. — acquired by con(]rttor the trial of. 6I-statutes relating to, 75, 77— points of law relaUng to the trial of, 81 ^ CROWN. See Kino. D. DEBTS due from persons in the colonies to persons in England, how re- covered. 57-8tatutes relating to, 75 and 01/(2). DEEMSTERS, 724. "^^p^?i?'^~,^°7' c ^I'^y- »^ '<^*> legislature. 26 -how that privi- lege obtained, id. See British Guiana. ^ DOMINICA-not subject to the 41 per cent, duties, 61 and n.-ade. Sn"iJ "^ Y'r' /23-deL.^plion of. 134-history and conrd- tuuon, rf.-collection of laws, 138-general laws of the colony. 139-- Slrr ""!;' of Chancery. 140-lCourt of Common Plea^ id _ Complaint Court. id.-Court of Ordinary. 141-Court of Vice-Ad- miralty. .d.-Court Merchant. ,d.-Co«rt of Appeal and Error?.d 1 Court of Grand Sessions, 142. DRAMATIC AUTHORS' BILL. 80. EQUITY, natural, when to be administeied, 6-what it is, 6, n. ESCHEAT. See the titles " Courts" and "Laws" in each colony. ESSEQUIBO. See Bkitish Guiana. ^^^how^o^bfaiSgs.'' *" '°'°°''' transactions. 97-of foreign witnesses. EXECUTION. See the titles '« Courts" and " Laws" in each colony. F. FEES. See the titles " Courts" and " Laws" in each colony. FISCAL. See British Guiana, Cape of Good Hope, and Malta. rOREIGN COIN-laws relating to. 74. FOREIGN LAWS, proof of, 101. 3b2 740 INDEX. FOUR and a half per cent, duties, what islands subject to, 49, et $eq.-onsnn &? ^K'^^^^n^^u^ *** ^i!"P° I^'ands, .d-ardne-Jamaicinotsub- ject to them, 60-how app led, 60, Si-Dominica, Grenada, St. Vin- cent, and Tobago, not subject to them, 61, n. aud 198, et uq. n G. GAMBIA, 498. GANANCIAS, 321. GIBRALTAR not a colony, and why, 2, n.-law in force in, 16, n.-de- scnption of, 673-histoiy,id.-peUtion of the inhabitants for aeon- stitution, and report thereon, 674, et mj.— former constitution, 678 -commission for the trial of pirates, 679-laws, 680-govemment, id. — Lhaiter of JusUce, id— Order in Council relating to bankruptcy. 690 rr**'*'«o.° ^''® ''*'?'*",• 693-judgment8, id—barristers, id— prose- cutions. 694-general rules of the English Courts adopted in Gibraltar, td.— rules m bankruptcy, id. GOLD COAST, setUement on, 499. ^^^ssft^^^^'Q"''"^ **fi.''"/°"?"''J'"'i2^-''»*Jt'«' "gl'ts «nd duties, 28 etseq. (See also the Introduction's chancellor, 31-is oniinary 32-his salary, how provided for, 33, and n.-may act against the ^vice of the council, 36. ' ^ GOZO, description of, 711— government of, 716. GRENADA, a dependency of Barbados, 123— descripUon of. 197— histoiy and constitution, 198-account of its successful resistance to in'^K^^. r*" A"*'**'.]^''' " "'•,('^ *'«» 51, n.)-onlinance8, 2S5~r„i,? ^pk"'""' •^•-S?"'"' '"^ «f the colony, 206-courts 207— Court of Chanceiy, td— the Supreme Court, 208— juries 209— executions, .d.-Complaint Court, 210-Court of Oniinary id.~ Courtof Admiralty, id— Court of Appeal and Error. 21 1-criminal StSr°s! i^Sf "P«"« ^»"'»' ^''-judges. 212-attorney.general GUADALOUPE, why not a colony, 1, n. GUIANA. See British Guiana. GUERNSEY— not a colony, 3. n— description of, 706-history and consti- tution, td.--laws, 706-Court8. Appeals. &c. id.-recent alterations in the laws, 707— bankruptcy, 708-registration, 709— descent, id.— criminal matters, id.— law officers, id — commercial regulations, 710. H. HEEMRAADEN, 468. HELIGOLAND— how acquired, and what legislation subject to 23—18 a mere fortress, 24— description of, 69&-pre8ent government, 696. HONDURAS not a colony, 2, n.— for that reason not enumerated in the list of colonies, 19, n.-description of, 326-history and constitution, 327-why not mentioned in modem treaUes, id.— Courts in genera and practice m, 329-Supreme Commission Court. 332-Grand Court 333— Summary Court, 334-free coloured persons, id.-magistrates INDEX. 741 ii*i7™"i "^^^f- ™"!^ *"*' •'•^P*' "^ '•>« "^onJs. •d.-coroner, 336- nolary, ,d.-pohce officer, id. -arbitrations, lA-appeaU, 337. J. ■^^^dln^ ^«»f7.P''<>'? .of. 338-hi8toiy and constitution, 339-its inha- bitanterqect the arbUraTT scheme of government propos;d by CharS Lt iit ^riir ° P'y '^^ ^* P*/ '^«°*- ''"'i««' ^^^dagree to a revenue ^mblv w^v°^, government of the parishes in. wf-House of As! sembly. id.-Courts in general and the laws therein, 342-k.ws id — collection of laws, 343-governor*8 salary. 342-hi9 poweiT 343 SS" W 'Zlrf '''' rr- 344-fori^ judg^enn4?-ba„k" rupicy. td.—marnage and dower, 347— aliens, id.- Vlls 348— mort ^Tt^f ^«i>«tO-. jd.-8tatute of'limitations. id.-arSt fo? delt 349 ii^re 3^0 n?!''^-''?'"^'ii'--'°"°**'' ^''-Supreme Court of Judica- ture, 350-cnminahurisdiction of the court, 351-civil jurisdiction ce^7'"Z"T'^'''^T' '''^^-Court of Errir, 366-cirof Chan-' 7; .tTf v'^T!.' ""'', ^""'^'^' 355. <" «g.-Court of Ordinary. 3M -Court of Vice A-imiialty and Admiralty Sessions, 359-custode8 and ustices of the pe :. 361 -Court of Quarter Sessio'n8.l6S»lven?s courts, id -laws. 701-v culiar la^s. 702-iZ'l eicv S lSt7 acTo'n.'S'""^'^'''''"" " '''''' ''"-^'^ of int::;a.ihorrn '"""^n each cSny ' "'" "''°"""" '"'' " '''""''^ ^'"' Co«.xxtu„o.» JUDGMENTS. COLONIAL-how enforced in England. 92 et seq. JUDICIAL COMMITTEE, who tc be members of it. 113. JURATS. 697, 699. 700, 70.. 707. K. KIEZERS. COLLEGE OF. See British Guiana. KING may give such colonies the right to hold legislative assemblie. 7 cannot afterwards legislate for L^, id.-caSSSe for cololw l^Itt l«""P»"«=y. 7. 8-appoints the governSd other office erects courts, summons assemblies &p in «,»««:„ ••!•* notbemadebutforhisS.ft^^^^ or charter governments. 16. 17-was authorized by statute to accent Vhl tZ " "^ »5f '^'•T' ^"^"^ *» *« Si«"» LeWComSny, S? ?f Wit^"8 in cases of mu^de? «d HJ^Sl- hnJT^J"^ prerogative in the colonies, 38, n. 45-preZatives how exercised in the colonies. 46- limits of. 47-has Crffi^n give laws to conquered or ceded colonies. 46 58 n ^ 74^ INDEX. KING'S BENCH, COurt of, has Jurisdiction over the conduct of gover- urn. 35-Courte of King's Bench in the colonies, 56 See also the diiferent colonies. L. LANDUROOST. See Capb of Good Hope, 468. LAWS, FOREIGN AND COLONIAL-proof of, in this country, 101. LAWS OF A COLONY, 3-how afiected by conquest or cession. 33. n- —power of changing, in whom vested, 66 n.-common law in force in colonies acquired by occupancy, 8~how much of the statute law co- lonies acquired by occupancy possess. 7. 8, 9 and n.-must not be Srv "ii K f^' ''y uT^"^' '^^' ^^' 52-how confirmed in this country, 4 1-what English laws applicable to the colonies, 53, 64- points of, connected with the colonies, Bl, etsttq. LIEUTENANT-GOVERNOR, not usually appointed now, 34 -amount of his salary, how settled. 34, n. See Cover n on. LIMITATIONS, STATUTE OF, its application to colonial transactions, ya. {I-or an account of the Statutes of Limitatimis in force in different colonies, see those colonies.) M. MALTA, not a colony, 3 n -to be deemed in Europe, 19-subiect to the legislation of the crown, 23-by what laws governed, 24- descnption of, 711-history, fd.-account of its conitit^tiop, 712- Cwmgtio Popo/are 7I3.-Courtsand Laws, 716-coroner, 717-fiscal, yjB-c&im&no td.— Universita. id.-appals, 719-8aIariesof public S'nff °'^T°'.?°"'' p2-lords-fieutenant. id.-Court for Pi- ratical Offences, id — Court of Speciu' Commission, id. MAN, ISLE OF, description of, 72.3— history and constitution, id.~ courts, Id — deemsters, 724— annuus or coroner, id.— laws, id. MAURITIUS, how acquired, and what legislation subject to. 23— what law in force m, id. and n.-description of, 583-history and constitu- hon, »d.-law8, 585-Court8. 586-codes of laws, 587-Colonial fift°r*'«„ •^•rCouncil of the Commune, 5t,P powers of the governor, 689-court for the tnal of piracies, 690_c'. ,t of vacant possessions 591— burials. Id.— prosecutions, id.- '«'«» n — certain laws in. com nued. 79-dp. rl?4^2'ril7^'T7 "?*^ ^^o-stitution, id.-Court of Viie Admi S;tt'n'7f t h'e";^^: i^nf 43r-rr^ instructions as to the atl- of the general ass?mbir449'. ^^^"P'^*^'^'"*'""' «« '° ♦he constitution ''''?.iTsIl^oY1bo'°T•^'='^"'^«'^^ -^ what legislation subject to. toffies. 62lllS^£-Effir^li&S?:S^^^^^ NORFOLK ISLAND, 600, n. and 672, n. 0. OATHS. 81. OFFICES in the colonies not to be void on the death of the King. 77. OFFICERS, colonial, appointed pro tempore how nai.l in ii q^ j —accounts of, how aiiditPd 7fi r^^ t • 1-' . .' ■• ^^ and ». how to be regula?ed,^9 • '"' '''' '" ^'^^-Admiralty Courts. ORDINARY. SeeGovEHNOH. """"r^t!/-^""^' °^' «^- <^- «'- "^^ "•"« " Courts "in ^e d^ffe,^, P. PARLIAMENT. THE BRlTISH-its power over colonies 10 .n ir and n.-acts of. ..posing regulations Sn the Britlh coLts.'^ 'ij Jf' PLANTATION. See Colony. fife: I I;. 744 INDEX. POLICY — Court of, see Brithh Guiana— Council of, see Cape of Goitd Hope. POSSESSION OF THE REALM and " BRITISH POSSESSIONS." See Colony. PREROGATIVE. See Kino. PRINCE EDWARD'S ISLAND, 462— history and constitution, id.— laws, 464— courts, id.— wills, id.— debts, id. — insolvent debtors, 465 — conveyances of real estates, id. PRIVY COUNCIL— is to decide appeals from the Vice- Admiralty Courts abroad, 79— probable origin of its jurisdiction, 109 — rules for entering appeals to the. 111— judicial committee of, how to be formed, 113. PROBATE— grant of, in England— ito effect in the colonies, 106. PROPRIETARY GOVERNMENTS, 3, 17, and n., 19, 20, n. PROVINCIAL ESTABLISHMENTS, 17 and n., 19. QUAKERS, 81. Q. R. %■<(. 3 REGISTRATION OF WILLS, DEEDS, &c. (Sec the accomU of the various Colonies.') REPRESENTATIVE ASSEMBLIES— in whom the right of constituting, is vested, 9, 10 — acts made by, in the colonies, how confirmed, 41. S. SAINT CHRISTOPHER AND ANGUILLA— dependent on the govern- ment of Audgua, 123 — description of, 159 — history and constitution, id.— collection of laws, 163 — general law of the colony, 164— Courts of justice, 165— Courts of King's Bench and Common Pleas, 166 — of Ordinary, id. — of Vice-Admiralty, id. — Court of Error, 167 — of Escheats, id.— prosecutions, id.— Cfourt of Quarter Sessions, 168 — justices of the peace, id. — coroner, id. SAINT LUCIA— joined, as to the administration of justice, with British Guiana and Trinidad, 18, n.— was a proprietary government, 20, n.— what law in force in, 23— Orders in Council for the administration of justice in, (lee British Guiana,) 267, 274— order in council respecting the qualification of assessors in the Royal Court of, 288, et jeq.— de- scription of, 2fi9— history and constitution, id. — laws in, 300— law o£Scers, 301— particular laws, id.— collection of laws, 303. SAINT VINCENT— not subject to the 4| per cent, duties, 51, n.— a dependency of Barbados, 123— description of, 214— -history and constitution, id. — barristers and attornies, 218— collection of laws, 219 — general law of the colony, id. — Courts, id. — Court of Chan- cery, 220— Courts of King's Bench and Common Pleas, id. — Court of Complaints, 222— Court of Ordinary, id.— Court of Admi- ralty, id.— Court of Appeal and Error, 223— Criminal Court, Grand Sessions, id.— judges, 224 — provost marshal and coroner, id, SARK— description of, and government, 706. ee Cape of Goi>d 0SSESS10N8." ODititution, id. — Biit debtors, 465 Admiralty Courts rules for entering i formed, 1 13. ies, 105. J, 20, n. INDEX. 'te accounts of the ht of constituting, ;onfirmed, 41. snt on the govern- and constitution, my, 164— Courts on Pleas, 166 — »f Error, 167— of r Sessions, 168 — tice, with British imment, 20, n. — administration of ;ouncil respecting 288, et le^.— de- ws in, 300— law , 303. duties, 51, n. — 514— history and illection of laws, -Court of Chan- ion Pleas, id. — —Court of Admi- nal Court, Grand mer, id. 7id S AVINOS BANKS, 80, SEPARATISTS, 81. SEYCHELLES, THE, 592. SIERRA LEONE— origin of the seltleraenl at, and of iu government, 20, 21— Charter of Justice when granted to, 21, n., 492— history andcon* stitulion, irf.— judicial and civil establishments, 403— laws, 494-.col- lection of laws, 495— courts, id — Court of Royal Commission, id.-^ Vice- Admiralty Court, 499— Court of the Recorder of Freetown, id.-* Quarter Sessions, id.— Court of Requests, irf.— Police Court of Free- town, 49?— judicial establishments, irf.— king's advocates, irf.— sheriff, 498— attornres, irf.- justices, irf.-- Charter of Justice, 499. SLAVE COURT, 62 and n. SLAVES-i-registry of, 65. SOUTHERN AUSTRALIA. Sc TRIBl.'TE — taxes on the colonies, not meant as, 12, n. TRIMDAD— joined, as to the administration of justice. With British Guiana and St. Lucia, 18, n — what law established in, 23— how pro* mulgated. 25— Orders in Council for the administration of justice in, {ice British Guiana,) 267, 274-ordcr in council respecting the quali» fication of the assessors in the Court of Criminal Trial, 288, et seq.^ description of 305— history and constitution, 306— laws, 307— Spanish laws in force, 309— collection of laws, 310— courts, irf.— bf rristers and attornies, 31 1— Court of the Intendant, 312— Court of Criminal Tnul, irf.— Court of First Instanceof Civil Jurisdiction, 314— Appeals, 3 c H4f) INDICX. Oananc.a..321^i73Jil"t', ''^^^^^^^ Cabildo, 320- ruptcy and execution, 324~arTe,tS: " ~P'^"P''°''' "'-««>nk. f.'. M V. UNIVERSItA, 718. USURY LA WS -whether applicable to the colonie.. 91. V. 647-CourU of Quarter Session, TT V«'"rt'."'-Ci.cuit Courta n. (3)-Courtsof ReTuestT48-ttMf„ """'•'^"^ '"'^ and attornies, irf -laws W rnl7n- i """"Ify-gfeneral, W.- barrister. See AoMiRALTy. VICE-ADMIRALTY. 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