A SU~lMARY 01' COLONIAL LAW, PRACTICE OF THE COURT OF APPEALS TIlE...
}

A


SU~lMARY
01'


COLONIAL LAW,


PRACTICE OF THE COURT OF APPEALS


TIlE PLANTATIONS,


,ANU 01" TIlE


LA \VS AND THEIR AD~IINISTHATION
[N


ALL '.fHE COLONIES;


WtTH


€baxtml oC 31usltitt, @t'lItt'sl in €ouncH, &c. &c. &c.


--_ ..


BY CHARLES CLARK, ESQ.
OF THE MIDDLE TEMPLE j BARRISTER AT LAW.


LONDON:
s. SWEET, 3, CHANCERY LANE;


A. MAXWELL, 32, AND STEVENS & SONS, 39, BELL Y ARD;
iLaln lJooklldItt'1I & lJullIi!lbtt'll:


R. MILLIKEN AND SON, GRAFTON·STREET, DUBLIN.


1834.




LONDON:


PRINTBD BY C. 1l0WORTIl AND SONS, UELl. YARIl,
TEJlFLE BAR.




'l'0


THE IUGHT HOl\OURABLE


THO~1AS SPRING RICE, lVI.P.
~EC]{I:TARY {l}' STATE FOI{ THE COLON Ir:S,


~c. ~C. &,C.


'l'HIS WORK


IS,


BY PERMISSION,


MOST RESPECTFULLY DEDICATED


BY


llIS VERY OBEDJENT


ANO


llUMBLE SERV ANl',


THE AUTHOR.






INTRODUCTION.


As, 1 believe, it is general1y 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 wel'e handed over to me, it is but
justice to the high and wel1-earned reputation of
that learned person clearly to explain the nature
of the transfel', in order that he may not be held
responsible fol' 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 1 díd,
the perfect pl'opríety of such a dec1aration, 1 have
never since ventured to trouble him upon the sub-
ject. 1 have freely exercised the uncontrolled
authority given me over the materials thus fur-
nished, and as the work now stands 1 alone am
answerable fol' its defects.


a




II INTRODUCTION.


In explanation of the distribution oi' the parts of
this work, 1 should observe that the first portion
consists of a Summary of the Laws rclating to the
Colonies. This summary was originally intended to
form the first chapter. * The second portion con-
tains accounts ofthe different Colonies and of their
Iaws, together with the Charters of J ustice regu-
Iating thc administration of the law in the Colo-
nies to which such Charters have been granted. It
was at first proposed to print the accounts of the
Colonies as a second chapter, and to add t h
Charters of Justice and othe1' similar documents
by way of Appendix; but I conceived that it
would be more convenient for the reader to find
everything relating to any one Colony in the same
portian of the book, ana 1 therei'ore omittea the
division of a second chapter, and threw the whole
into the form of an Appendix. In consequence
of this arrangement the Appendix occupies by far
the largest portion of the volume; and though
this may be objectionable in some respects, it has
the recommendation oi' affording a facility oi' re-
ference, to which, especiaIIy in a law book, I
thought sorne less important objects might well be
sacrificed.


lit In that part, the law, as declared by text writers, by judicial
authorities, and by Acts of Parliament, forms the text; and
where I have seen reason to think that the law thus declared
required comment or illllstration, 1 have added notes fol' that
purpose.




INTRODUCTION. 1Il


1 am but too sensible that 1 have not been able
to present to the profession so complete a work as
they could have desired, nor as 1 could have
wished to offer to their acceptance. 1 claim in-
deed little merit beyond that of industry and care
in the selection and compilation of authorities,
and 1 am fully aware that the chief recommenda-
tion of rny labours will be, that the reader may
find collected, in one volume, information for which
he would othenvise have to search through rnany
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 rnany private friends, without whose aid it
would have been impossible for me to complete
the task 1 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 Cornmissioners have made
and published their valuable Reports. The books
upon this subject published in the Colonies are
not numel'OUS; but few of them find their way
to this country, and those few are only to be
found in the libraries of private individl1als. It
might have been supposed that the colonists, with
a view to their own interests, would have for-
warded to the library at too Colonial Office, and to
the British Museum, such works as would enable


a2




iv 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 thcse circumstances 1 have been
obliged to borrow from all quarters books that
could be found no where hut in prívate libraries ;
and for the readiness with which these were lent,
not only by personal friends but by gentlemen to
whom 1 had before been a stranger, 1 have to ex-
press my sincerest obligations. 1 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 rnost 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 information which none of our public libraries
affi)fded 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 UB
to suppose, are rarely to be met with whcre they might most
be expected to be found.




INTRODUCTIO:'\ . v


nies. To MI'. Greville and MI'. Devey, of the Privy
Council Office, and to MI'. Mayer, the Librarian of
the Colonial Office, 1 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 momento It has been suggested to me in
the interval, that as the condition of the East ln-
dian eolonies has been altered since 1 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 1 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, 1 felt it
impossible to hesitate about adopting it.


A Summary of the Laws governing our East
Indian Possessions will thel'efore form an additional
volume to the present, to which it will make all
necessary referenccs.


After the fi1'st portion of the summary had been
put ¡nta the printer's hands, a question of consi-
derable importance, relating to the powers of a
Governor, was b1'ought under my notice. A fo-
reigner had gone into one of our Colonies, and had
there complied with the terms of a proclamation
issued undcr competent authority, which pre-
scrihed what shauld he done by any foreigner who




VI lNTRODUCTlOX.


desired to obtain the privileges of a British subject
in that Colony. He was subsequently sent out of
the Colony by an order of the Government. The
question under these circumstances was, whcther
any Governor of a Colony could give the rights of
a naturalized citizen to a foreigner who carne to
reside within the Colony. The opinion that he
could not was assertcd in the Colony, and at first
adopted in England on the authority of Lord Coke,
who says, * "The King cannot grant to any other
to make of strangers born, denizens; it is by the
law itself so inseparably and individually annexed
to his royal person (as the book is in the 20 Hen.
7, fol 8,) for the law esteemeth it a point of high
prerogative, jus majestatis et inter insignia summce
potestatis, to make aliens born subjects of the realm
and capable of the lands and inheritances of Eng-
land in such sort as any natural born subject is." In
this 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-
tish Parliament itself. That distinction is, that
the right of a naturalized subject may be granted
to a man in a Colony without conferring upon him
similar rights in the mother country. So long ago
as the 35 Cal'. 2, an act was passed by the Legis-
lature of Jamaica and confirmed in this country,


* Calvin's Case, 7 Cake, .51.




l!l<TRODUCTION. Vll


by which, to encourage the settlingofthe island, the
Governor 01' Commander-in-Chief was authorized
undel' 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 fil'st taken
the oath of allegiance, to be to aU intents and pur-
poses fuI1y and compIeteIy naturalized." The ap-
plication of the four last words is shewn byanother
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 01 this island, in as fuU 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 Govcrnor and Council, and having taken cer-
tain oaths and acquired ten acres of freehold land
in the country, 01' a house in any town in Antigua,
might acquire and dispose of all kinds of property
in the islalld 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 naturalization of foreigners in "any Bri-
tish Colony in America," and tbe 13 Geo. 3, c. 25,
declared that all persons becoming His Majesty's
born subjects, by virtue of the two preceding acts7
might hold places of trust and take grants of land
from the crown, such uot being pIaces of trust or




vm .. INTRom;CTION.


grants {)f land within th,e Unlted Kingdom. The
act of~l Wm. 4, c. 53, pássed with respect to LoweI:,
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 th~t the law had formally recog-
nized the authority of Colonial Govcrnments to
grant this limited species of naturalization, and ..
the person improperly sent out of the Colony· was
allowed to retul'l1.


As the opportunity of inserting this matter in
the body 01' the work, as part of the accoun,t 01' the
powers of a Governor, had passed by, 1 thought
its introduction in this place might be pardoned, as .
it seemed too important to be altogethér omitted.,


2, PUMP COURT, TEMPLE,
Sept. 5th, 1834.


---~-----,


ERRATA.


Page 24, line 18, for 57 Geo. 3, read 1 Wm. 4.


CHARLES CLARK.


Page 313, line 8 from tbe bottom, add " and also to the Orde¡'s in Council,
ante, 274 and 288."




A


SUMMARY


OF


COJ.JONIAL L'A 'V.


THE Brhish Colonies 01' Plantations are remote pos.
sessions 01' provinces of this realm, occupied for the
purposes oY trad~ 01' cultivation.(l)


.(1) l\fr. Reev~ observes (on
Shipping, pt. ii. c.l; p. 104,) that
"plantation originaJly implied the
idea of introdúcing, instituting, and
establishing, where every thing was
desert before," but that coí'ony and
plantation llOW seem to mean the
same thing, though formerly a plan-
tation was" not a colony till the King
had appointed a governor 01" civil
establishment. It was" according
to this rnodern use of the two words
that Guadaloupe, taken from the
French in 1759, was held by Attor-
ney-General Prati and Solicitor-
General Y orke to be a plantation
within the rneaning 01' the Act of
N avigation. The latter, however,
called it "a plantation or territory
belonging to the King uy eonqnest."
2 Chao Op. 357; and see Wylham
V. DII ttrm , 3 Mod. 161, where, in
s question rcspecting Barbadoes,
which was fouad a desert island


snd planted by Bristish subjects,
.. islands gotten by eonques!, or by
sorne of tbe King's subjeets going
in searcb oC prize, and planting
themselves there," are spoken o(
w'guendo as convertible ideas. Doc-
tor J ohnson defines .. colony" lo be
"a body of people drawn from the
moLher country to inhabit sorne dis-
tan! place." .But Ihe term is of
more comP,rebensivc scnse in the
English law, in wbich tm'it(Yl'Y ra·
ther than peoplc is the predominat-
ing idea. In a legal sense, it seems
a necessary part of ¡he definition
that a territory should be a posses-
si"" ~f 'he ,'ealm, or part of his
.Majesty's dorninions. This is uot
the case wilh every settlement, for
in sorne, British subjects rnay only
have l'ig"hts of occupation. Thus by
treatyof peacewith Spain in 1763, it
was agreed by the King ofSpain that
llritish subjects should no! be di~.




2 A SUMMARY OF
It is proposed in the following pages to consider,
I. Tbe laws to which, in a general view, the colonies


are subject.


turbed in cutting logwood at (he
Hay of Honduras, but should be
allowed lo occupy houses atíÍl ma-
gazines there. A question arose
whether the Hay of Honduras Ihere-
by became a territory belonging to
his Majesty within the N avigation
Act, and it would seem, that on Ihe
principIe laid down by Mr. Rcevcs,
it was held not to be so. (Chitty
on Commerce, vol. i. p. 636.) It
has been Ihought that the term
.. colony" is not in law applicable
to a mere military possession, and
the case of L"bbocl< v. Potlo, (7
East, 449,) exhibits an instance in
which Ihat doctrine of exclusion has
becn appJied to Gibraltar. Yel if
Ihe definition of Dr. Johnson, or Ihe
fael of possession of territory, were
alone to give Ihe rule, Ihat place
ought fairly to be rimked among our
colonies. Besides, in L"bbock v.
Pottstbequestion wasnoton tbeword
"colony," bu! "plantation." That
case, Iherafore, ever. if well decided,
would hardly support the apioion for
whicb it is quoted. 'Lord Elleobo-
rough described Gibraltar as "a
mere fortress and garrison, incapa.
ble of raising produce, but supplied
with it from other places." Pre-
viaus legal authorities bad not con-
sidereu Gibraltar. in the same ligbt.
lf i t were ".a mere forlress and
garrison," there could be no objec.
tiaD to its remaining under martjal
law, yet so early as 1722, there was
a petitíon to the CIown supparted
by the members for the City of
Loudon, praying that a civil juris-


diction might be established there.
ane! complaining on the part of the
merchants ane! traders of the town,
that notwithstanding Ictters-patent
had been grantee! by the Crown fol'
the establishment of a civil, they
were still under a military go-
vernment. (1 Chal. Op. 169.)
Arnong the papers submittee! hy tlle
Privy Council to the Attorneyand
Solicitar·General, (Raymond anu
Yorke,) was one stating, Iha! at the
time Gibraltar was taken it con·
tained "one nunnerYJ two con~
vents," sorne other establishments
of tbe same kind, and " 1000 fami-
lies." (The population is now, ex·
clusive of troops, 16,500.-M'Cul-
Joch's Dict. of Como arto Gibraltar.)
The petitioners expressly asked rOl
a civil government to be eslabli.hed
there "as in th~ American colo·
nies," and the Attorney amI Solici.
tar·General reported in favour of
the requeót. In the Charter of Jus·
tice, datcd io lB17, the letters-pa.
tent of Geo. 1 and Geo.2 are both
recited as having been issued lo esta-
blish courts of j ustice in "the lown
and territory of Gibraltar;" and the
expression "tawn and lerritary"
was also used in the opinion of the
two learned persans aboye referred
to, who recommend tha! "sorne
settlement ought to be made of the
property in the houses and Jands
there." In Campllfl/ v. Hall, Lord
Mansfield says, (Cowp. 211,)
"Ihere are inhahitants, property,
and trade in Gibraltar." That
place had therefore befare the period




COLOKIAL LAW.


11. Tbe particular legal constitutions at present pre-
vailing in them.


III. Such acts of the British Parliament as impose
regulations on the colonies.


IV. Sorne miscellaneous points of English law upon
matters relating to the colonies.


I. 1 n its colonial possessions, the crown possesses
the same right of sovereignty, and (in general) the same
prerogative as in the mother country.(Q) The political
and military administration is consequently vested in
a governol', 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 undel' the crown.(3)


when Lubbock v. Potts was decided,
been trealed both by the Crown and
by the highest legal authorities as
something beyond " a mere fOltress
and garrison;" ami the true reason
for the judgment given in that case
is perhaps ralher lo be founrl in the
statement there made, that "in fac!
the lerm plantatiorl, in the sense of
Ihe navigation laws, had never been
applicd to any of the J3ritish domi-
nions in Europe" lhan in any other
circumslance. 1'he same cause has
probably operated to kcep Jersey,
Guernsey, and (since the 41 Geo. 3)
Malta, in the anomalous siluation
of " British possessions in Europe,"
lhal is, in a state in which, with re-
ganl to trade, they are considered
in one charactcr, and with reg-ard
(o legal government in anolher.
1'hey have not the beneJit of a direct
frado with tJle Eas! and West Indian
colonies ; huI appeal, lie flom them
as from those colonies lo the King in


council. (j}Iostyn v. Fabrigas, Cowp.
174.) l"pon the subject of Ihis note
see Lubbock v. Potts, 7 East, 449 ;
3 Smilh, 401, S. C.; Acton's Rep.
305; 12 Car.2, c.18, s. 18 (sinee
repealed); R"bichon v. HumIM,
1 Dow's Rep. 191; 48 Geo. 3,
c. 69; 41 Geo. 3, c.103.


(2) "The prerogative in the
'Ve sI Indies, unless where it is
abridged by granls, &c. made lo the
respective provinces, is Ihat power
over the subjects which by Ihe com-
mon 1aw of the land, abslracted
from al! acts of parliament and
grants of liberlies to the subjects,
lhe King could rightfulIy exercise in
England." 1 Chao Opino 233; see
¡bid. 203.


(3) Tite case of pro[YI'ietary and
Ihat of eh ",'te!' governments, (lo be
aftcrwards nOliced,) aTe so far ex-
ceplions lo this, Ihal tbe governors
ano oLher officers are appointed not
by the crown, hu! by those to whom


B 2


3


Laws to which
the colonies are
subject.




4< A SU;>OlMAllY 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 posscssions from each other, in reference to the
manner of their acquisition by the parent sta te. Theyare
acquired, 1, by conquest; Q, by cession under treaty;
01' 3, by occupancy, viz. where an uninhabited country
is discovered by British subjects, and is upon such dis-
covery adopted 01' recognized by the crown as part of
its possessions.(5)


In case of conquest 01' cession, the conquel'ed 01'
ceded country retains its former laws, till they are
changed by competent authol'ity.


It has been said that aH unchristian 01' immoral in-
stitutions are ipso facto abrogated,(6) and in líeu of
tbe crown bas uelegateu ils rigbts.
But tbere is at present no proprie·
tary, nor any charter government in
tbe Bl'itisb colonies.


(4) Camp/Jell v. Hall, Cowp. 204.
(5) A country may also come to


tbe crown by bereditary deseent, or
other lawful title. As to whieh see
Calvin's case, 7 Co. 17 b. But il
diu not seem worth while lo treat
tbis rarE\ mode of acquisition as
part of the general c1assifieation.


(6) Tlle rule is thus broadly
.tated, (Calvin's case, 7 Reports,
34,) tha! "if a Christian king
sbould conquer a kinguom of au
inlidel, aud 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 agaillst tbe laws oi Gou
and nature containeu in the deca-
¡ague." In the case of B!a"kq"d v.


Caldy, clecided in the reign of
Will.3, and reported in 2 Salk,
411, that rule is adopted, with sorne
slight restriction. It is there said,
"in the case of an inlidel country
their laws by conquest uo not en-
tirely cease, bu! only such as are
against the laws of God;" and that
in al! such cases where tbe laws are
rejected or silent, the conquereu
country .hall be governed according
to the rule of natural equity."
In the report of the same case in
4 Mod. 222, ulthough this point is
raised in the argument, it is not men-
tioned inthejudgment. ln2P.Wms.
75, there is a note of a statement
made by tbe M aster of the Rol!s
as to something that had been ue·
termined in the Privy Councíl upon
an appeal from the plantations.
111 that note the Master of tbe Roll.
represents the ~ouncil (O have ue-




COLO~IAL LAW.


thE'11l the rule::; of natural e(!uity are to be a<lmini::;tereu


cided, that " until such laws given
by Ihe conquering prince, thc laws
and customs of the conquered coun·
try shall hold place, unless where
these are contrary lo ou r religion, or
enact any thing that is mal",,, in se,
or are silent; for in all such cases the
laws of (he conqucring country shall
prevail." The case of Blankard v.
Galdy, as reported in Salkeld, is
referred to. But two other reports
of that case exist in Hol!, 341,
and in Comberblch, 228. In the
former, nothing is said abont the
abrogation of laws hostile to Chri ••
tianity in a conquercd country.
In the latter, the authority of Cal.
vin's case, on which the reports in
Salkeld and Peere Wms. scem solely
to found themselves, is thus ob-
served npon: _" Ami wherc it is
said in Calvi,,', case that the laws of
a conqucred heathen country do im·
mediately cease, that muy be true
of laws for Icligion, but it seems
otherwise of Iaws touching the go-
vernment." The doubt here thrown
upon the somewhat sweeping terms
of lhe doctrine as stated in Calvi,,'s
case, may be justified not only on
principIes of reason, but even by the
practice of the Englisb government.
If unchristian or iromoral institu-
lions are ip'o Jacto abrogated, then
it would have been ont of lhe power
of the English lo have tolerated
them even for a momento Yet they
have done so in our East lndian
posse .. ions (37 Geo. 3, C. 142,
S. 12,) in the cases of Ihe Sut-
tees and the barbarous liles of
Jughernaut. The immoral or un·
christian natnre of such customs af-
foros a reason for abrogating Ihem,


bnt then such abrogation must be
the effect of the declared wiH of the
ronqueror, ar.id cannot take place
as of course and unavoidably on the
instant of tbe conquest. LOI'lI
Mallsfield's opinion therefore was
(Campbell v. Hall, Cowp. 209,) that
the doctrine should stand thus:-
"thal the laws of a conquered
country continue in force until tbey
are altered by Ihe conqueror;" and
he added, "tbe absurd exceptiotl
as to Pagans mentioned in Ca/vi,,'s
c,,,e, shows the univcrsality and ano
tiquity of the maxim. For that dis-
tinction conld nol exisl befo re tbe
Christian era, and in al! probability
arose from the mad enthusiasm of
the crusades." Within this limil the
rule would now seem to be confined.
Bul there is one distinction that
deserves to be considered. This re_
btes to laws contrary to the funda-
mental principIes of the British
constitution. Such laws would,
witb regard to the conqueror at
least, and, it is a pprehended, with
regard to the conquered also, cease
upon the instant of conquest. Thus
if any country in which the inflic·
lÍon of torture was Ihe law, should
come into the posscssion of Great
Britain, such law wonld faH of
coursc. The constitution of Great
Britain would put an end to it.
(Per Lord Chief J ustice De Grey,
Trial of F"brigas V. Mo,tyn, 6u.~
::\tokes, 11.) AlIowing for excep·
tions of this sort, the law would
remain as before, and wonld no!
be altere" but by the declared will
of the conqucror. Customs that w~re
mcrely unchristian, but not contrary
to the fundamental constitution of


5




6 A SUMMARY OF
by the King, 01' by such judges as he shall appoint.(7)
And the case is the same where the law of the con-
quered count1'y is silent.


The power of changing the laws of a conquered
country resides in the King in council, fol' it is the
right of the conqueror to impose law on the conquered.
And 1he cases of cession, and of conquest, are in this
respect not distinguishable, unless the right is 1'estricted
by compact with the ceding party. In exercising this
power, the King is not bound to legislate in conformity
with the law of England. He may impose whateve1'
laws he pleases.(S)


(he British empire, nor lo (he in-
alienable rights of her citizens, by
whose arros Ihe conques! had ueen
obtained, cel'!ainly would not be
abrogated by the mere fae! of con-
ques!. Sorne such customs exist al
this mamen! in colonies originally
p1anted by the English. "In the
Slave Court at Barbadoes sla ves
are sometimes sworn upon grave
dirt, according to a superstition."
(1 Rep. W. L C. 48.) This cus-
tom is certainly nút Christian, nor
can the forms of swearing peculiar
to the Jcws, the Hindoos, and
the Turks, be said to be so, yet
aH are admiUed not only in the
cour!s of our colonies, but in West-
minster-Hall itself, 011 the principie
of the common law, that there is no
particular form essential to an oath
taken by a witness; (hat which he
considers the most binding shall hc
adopted. Everett v. Atciles"", Cowp.
389.


(7) 2 Salk. 411. Would not
tbis be in effcct to give (he con-
quered piare the laws of Ihe con-
quering country, to ,uch cx(enl al
lea,t as they coulu be applicable to


ilf; particular circumstances 1 Yor,
generalIy speaking. the common
law of each country is esteemed
by the inhabitants of that country
\0 consist of the rules of natural
cquity, anu the miud of the judge
who presideu in the trihunals of
a con<¡uered cOllntry would per-
haps havc no other standard lo
judge of those rules, but that wilh
which his acquaintance with the
common law of his own country lIad
furnished him.


(8) Wytham v. Vallon, 3 Mod.
160; Show. P. C. 24; 21'. Wms.
75; Campbell v. HuU, Cowp. 204.


Lord MansfielJ however in the
last hook says, that this power is
subordinate to the authority of par-
liament, and, therefore, that he
"cannot make any new change
contrary to fundamental principIes;
he canDot exempt an inhalJÍtant
frolll that particulal' dominion, as
for instance, fmm the laws of trade,
or from the power of parliamcnt, or
give him privileges exclusive of his
olher s\luJects, and so in many other
instances which might be put."




COLONIAL LA W.


Such changc may be eithcr partial 01' general. It may
consist of the introduction either of particular institu-
tions, engrafted on the formel' law of the place, 01' of
an entirely new code supe1'seding it altogether. And it
may involve an alte1'ation also of its political constitution
01' form of government.


When the change is partial only, it is said that the
formel' customs of the country will still be in force as
to an matters not otherwise provided fo1'.(9)


In giving a new constitution to a conquercd 01' ceded
colony, if the Crown provides (as has hitherto usually
been the case) that a Representative Assernbly shall be
summoned among the inhabitants of the colony, with
the power of making laws fol' its interior government,
it has been decided that the Crown cannot afterwards
exercise with 1'espect to such colony its formel' 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 jacto in force in the new settlement ;(Q)


(9) Blallkard v. Caldy, 4 Mod.
222. But when hy royal commis-
,ion a Ilew legal cOllstitutioll has
heen granted to a colony, esta-
blishing a legislature, courts af jus-
tice, &c. lhe commission has ge-
neralIy directed that the law
adminislered in its courts of j ustice
shall be in all tbings as nearly
agreeable as possible lo the la w af
England. After the issuing af sucb
connnission, ¡berefore, tbe law of
England is the rule in cases not
specially provided foro See post.


,


(1) Campbell V. HuU, Cawp.204,
(2) Determined by I~ords af


Privy Council on appeal, sec 2 P.
Wms. 75; see also 1 Black. Como
107; Como Dig. J~ey, C.; Show.
P. C. 32; 1 Chal. Opino 195 ; 2 ib.
202; Stoke's Law of Colonies, 10.
In such a place, there being no
preceding laws to conlest Ihe supe-
riority witb tbem, the laws of Ihe
mother country, so far as they cauld
be applicable, would naturally be
adopled by Ihe scttlers. Mr.. Fox
gives another reason fOl' this, when


7




8


\


A SUMMARY 01'


and such a cololly is lIot :;ubject to the legislatioll of the
CrOWll, fol' the King cannot pretend in that case to the
rights of a conqueror,(3) but the subjects of Great
Britain, the diseoverers and first inhabitants of the
place, carry there with them theil' 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 illfant colony; such,
fol' instance, as the general rules of inheritanee, and
protection from personal injUl'ies. For the artificial re-
finements and distinctions incident to the property of
a great and commercial people, the laws of poliee and
l'evenue, (sueh especially as are enfol'ced by penalties,)
the mode of maintenance for the established clergy, the
jurisdiction of spiritual COUl'ts, and a multitude of other
provisions,(5) arc neithcr necessary nor convenient for


he describes sueh persons as merely
cultivators of the soil, who had not
the power to establish a form of
government independent of lhe sta te,
w hich could alone be their protec-
tion.


(3) So if a countl'y come lo the
ctown by title or deseent, it is not
subject to legislation by the crown.
It retaios its old laws till changed
by act of parliament. Calvin', case,
1 Co. 17 b.


(4) The common law of England
is the cotumon la\v of lhe planta-
tlons, and a1l s[alutEs io affirmance
of the common law passed in Eng-
land antecedent to the settlement of
any COIODY, are in force in thut co-
louy. unless there is 30me private
act to the eontrary, though no .ta-
tutes made since those settlements
are there in force, unless the colo-
nies are p~lticuhrly menlioned.


" Let an Englishman go \Vhere hé
will, he carries as much of law and
liberty with him as the nature of
things will bear." 1 Chal. 01'.195;
and 2 il,. 202. "English suhjects
carry with them your Müjesty's laws
wherever they farm colanies." Per
Attorney and Solicitar-General
Pratt and Y orke.-" In a place oc-
eupied by the king's troops, the suh-
jeets of Eng'land, would impliedly
carry the law of England witlt
them." PerLord Ellenhorough.CJ.
in Rex v. TlreIlIhahitulIts rif' Br'am)l-
tll/l, 10 East, 288.


(5) ¡\mong these may be noticed
the baDkrupt and poor laws, the
mortmain 3ets, and the game la\Vs.
See Atlorney-General v. Sluarl,
2 l\leriv. 143. And it seems al!
pena! sta tutes, lJawcs v. Painter,
frecman, Hep. 75. In this last
~ase jt is empllltically said, "hene-




COLOl'iIAL LA W.


them, and therefol'e not in force. \Vhat shall be ad-
mitted and what rejected, at what times and undel' what
cil'cumstances, must, in cases of dispute, be decided in
the first il1stance by their own provincial judicature,
subject to the revision and control of the King in coun-
cil; the whole of their constitutions beillg also liable to
be new mode1led and reformed by the general superin-
tendingpower of the legislature in the mother coun-
try."(6)


In a colony so circumstanced, as well as in a1l othel's,
the right of appointillg governors and otller officers fol'
the execution of the law, of erecting courts of justice
for its administration, and of summoning representative
assemblies among its inhabitants, fol' the purpose of


lieial laws might extcml to things
not in esse at tbe time of making tbe
.l<ttute. Penal .tatules ncver do."
See also 2 Hep. West India Com-
missioners, 61.


(6) Blaek. Corno 108. Stoke's
Law of Colonics, 4. It has been
laid down by learned writels, "that
it is not Ime as a general propo~i­
tion tbat the inhabitanls of tbe eolo-
nies carry wilh tbem tbe sta tute laws
of tbe realm; hut whethel' tbey do so
ol' not depends upon circumstanees,
on the efreet of tbei!' charte!', on
u~age, and Ihe aels of Ibeir legisla-
ture; and it would be both ineon-
venient and dangerous lo adopt tbe
proposition in so large an extenl."
Chitty OH Commel'ce, vol. 1, p. 639,
cites 1 Cbal. Opino 195, 198, 220.
nut if by this is meant that tbey
carry no parl of the stulute law,
it will be dit1icult to "Sient to Ihe
doctrine; for it is eonceived lo be
c1early eSlablished, that '" eolony
aequired by occupaney, receives the
statute as well as the eommon


law of England then in being,
su bjeet (as to both) to the exeep-
tions noticed in lhe texto Aeeol'd-
ingly we ¡¡nd Lord l\Iansfield in the
case of Campbell V. Hall, Howell's
Sta le Trials, vol. 20, p.289, thus
expl'essing himsclf:-" lt is ausurd
that in the colonies they should
carry all the laws of Eng-land with
Ihenr. They carry sueh only as are
applieable to their siluation. 1 re-
mem ber it has been so determined in
the connei!. Tlrere was a question
whether the Statule of Charilable
U ses. operated on the Island of
Nevis. It was uetermined it did noto
N o laws but sueh as were applicable
lo tbeir eondilion, unless expressly
enacted." This case was the besl
that could have been eh osen for tbe
illustralion of lhe rule, for Nevis
was a place acquired by occupancy.
The Eng lisb first settled there in
1628. See Rayna!'s East and West
lndies, 3d ed. vol. 4, p. 323; and
Edwards, vol. 1, book3, e. 4, S. 2.


9




10 A SUMMARY OF
interior legislation, belongs by virtue of its general pre~
rogative, already noticed, to the crown.(7)


But in such colonies, the crown alone having no
power of legislation, their condition in that respect
essentially díflers from that of colonies acquired by con-
quest 01' cession.


On the other hand, cvery colony, whether acquired by
occupancy, by conquest 01' by cession, is subject at aH
periods of its existence, as part of the British domi-
nions, to the legislative authority of the Britislt Parlía-
ment,(8) by whose power, paramount (where both apply)
to that of the king in council, its existing laws may in all
cases be either wholly 01' in pal't repealed, and new
laws, 01' a new constttution, 'be at pleasure imposed.(9)


(7) And see 1 Chal. 183, 184,
and 2 Chal. 169, 170, 241.


(8) The principIe on which this
rule depends, so far as it applies to
colonies aC'luired by the occupancy
of British subjects, is thus slated ur-
gllelldoandsilently adoptedin a most
elaborate report made to the king
by the A ttorney ami Solicitor-Ge·
neral Northey aud Thompsou, on
the petition of the Earl of Suther-
land respecting the king's and the
petitioner's rights to ¡he three lower
counties on the Delaware. "A sub-
ject of the crown could not make
foreign acquísitions by conquesl but
for the henetit of tbe crown."
(1 Chal. Opino 41.) This prin-
cipIe appears to have governed the
opinions of the various lawyers,
who at different times made their
reports to the government on Ihe
subject of escheats in lhe colonies.
Seo 1 Chal. Opino 122, et seq. Ano-
ther view of the same subject is
taken by l\'Ir. Fox in a speech on
an amendment moved as to one of


the clauses in the "Colonial Place
Rill." Thc specch was delivered
on tbe 2d July, 1782. "If any
person wil! just consider from
whence we attempted to legislate
fOT America, he must be convinced
that in the tirst establishment of the
colonios it was indispensable. They
were then merely the cultivators of
the soil. It was not for them to
cstablish a form of government in·
dependent of the sta te, which could
alone be their protection. They
were in possession of every privi.
leg'e, and had gone there only lo
acquire possession of property. But
w hen the acquisition of property
excited ambition to exert its autho-
rily boyond Ihe limits of protection,
it was then their immediale interest,
upon every principie of natural and
political justice, to Tesisl Ihis abuse
of legislative authority." Speech,
p.23.


(9) Carnpbell v. Hall, Cowp.204;
1 Black. Como 103, 107; Stokes'
Laws of Colonies, 4,28, 29.


·1 j




COLONIAL LAW.


And this is true even with regard to those conquered
01' ceded colonies which llave obtained from the king in
councillegislatures of thei1' own, and in which, the1'efore,
the power of the crown to make laws has ceased.(l)


The exercise however of this general legislative au-
tho1'ity of the B1'itish Parliament for the particular pur-
pose of raising a revcnue by internal taxation in the
colo ni es, was the famous subjeet of dissension between
this countryand he1' North American provinces, and


(1) B. Edwards (vol. 2, p.349,
359,) controverts this position, an<l
argues that the reslriction in 7 & 8
Will. 3, c. 22, s. 9, (which was re-
pcaleu by thc 6 Geo. 4, c. 105, and
is now re-enacted nearly in the
same words by the 3 & 4 W. 4,
c. 59, s. 56,) prohibiting such co-
lonial hws aS are repugnant to
any law of Greal Britain relative to
the plantations, implies a recipro-
cal obligation on the part of the
British Parliament not to interpose
its authority in matters to which the
colonial assemblies are themselves
competen!, a fallacy which seems
searcely to deserve refutation. The
implied obligation exlends no furo
ther than this, tha! parliament wiIl
not inlcrferc unless in case of neces-
sity; it 1s by no mean equivalent to
a declaration tbat parliament wilJ
no! interfere at all, for thal \Vould
amount to un unconditional decla-
ration that the colony was iode-
pendent of the mother country. The
righ! of the British Parliament to
legislate for all the colonies, and in
the wa y of in ternal as welJ as com-
mercial regulation, is established by
the highest legal authonlies, (see
thc cases cited in thc last note,)
and has also been expl'essly decIared
by the aet 6 Geo. 3, c. 12, which


(except as to the power of inlernal
laxation, the exercise of which has
been abandoned by 18 Geo. 3,
c. 12,) is .till unrepealed. The
same decIaration was specialIy
made with regarrl to Canada by
the 31 Geo.3, c.31, s.46, com-
monly caneJ "Tbe Quebec 11ct."
Indeed on this subject it is suffi-
cient to observe, that the Par-
!jament of Great lll'itain has in
many instan ces, and during a long
succession of yea!'s, passed laws fol'
lhc regulation of the internal go-
vernment of an plantations (withont
distinction) dependant on ¡he Bri-
¡sh crown, (see several of lhese


laws noticed in a subsequent part of
this work); and tbat, except in the
case of the J'Upture with the Ame-
rican provinces, su eh enactments
have been uniformly received and
are s!in acted upon. The exercise
of protection, on the one hand,
and the right of paramount legisla-
tion on the otller, mus! be considered
as co-existent. When lhe necessity
for Ihe Jirst ceases, the justiJication
and even the practicability oC the
other wil! ceuse also. At the sallle
time, though there can be no doubt
as to the right, it is almost equally
clear tha! that right sllould be exer-
cised as seldom as possible.


11




12 A SUlIlMAltY 01'


(co-operating with otber causes of discontent) ultimately
lecl to theil' dismemberment fl'om the body of the em-
pire.(2) At an early period of the contest, the authority
of the British Parliament in this respect was asserted
by the 6 Geo.3, c. 152, which, after reciting that "seve-
ral of the Houses of Representatives in his Majesty's
colonies and plantations in America, have of late, against
law, claimed to themselves, and to the general as se m-
hlies of the same, the sole and exclusive right of impos-
ing duties and taxes upon his Majesty's subjectsin the
said colonies anel plantations, anel have in pursuance of
su eh claim passed certain votes, resolutions, and onlers
derogatory to the legislatiye authority of parliament,
anel inconsistent with the dependency of the saiel colo-
nies and plantations UpOI1 the Cl'own of Great Bl'itain,"
proceeds to declare, "that the said colonies and planta-
tions in Amel'ica have been, arc, and of right ought to
be, subordinate unto anel depenclant upon the Imperial
Crowl1 and Parliament of Great Britain. Ancl that the
King's Majesty by ancl with the aclvice and consent of
the lorels spiritual and temporal and commons of Gl'eat
Britain in Parliument asscmblccl, had, hath, ancl of right
ouglit to have full power and authority to make laws
and statutes of sufficient force ancl validity to bincl the
colonies ancl peoplc of America subjects to the Crown oi'
Great Britain in all cases whatsoever." And further,
" that alll'esolutions, votes, orders, anel proceeclings in
any of the saicl colonies amI plantations, whereby the
power and authority of the Parliament of Gl'eat Britain


(2) But (as obsel'ved by an able
writer) H even in regard to those
laxes which a vain and unprofitable
attempt was maue to impose upon the
fonnerIy existing colonies in N orth
America, they were never ureamt of
as a tl'ib"te, and never spoken of but


in a sense contl'ary lo the very idea
of a tribute-that of reimbursing
to tbe mother country a part, and
no more than a part, of Ihat which
they cosl her in governing and ue-
fending Lhem." Anicle Colony in
Supp. to Ene. Brit.




COLO~IAr. LA\\'.


to make laW:> and statutes as aroresaic1, 18 denied 01'
drawn into questioll, are, and are hel'eby declared to be,
utterly null and void to an intents anc1 purposes what-
soever."


Before the conclusion of the war, howevel', the exer-
cise of this obnoxious claim was l'enouncec1 byanother
act of the British legislature, 18 Geo. 3, c.12,(3) usually
quotecl as the "Declaratory Act." It recites, that "taxa-
tion by the Parliament of Great Britain fol' the purpose
of raising a revénue in his .Majesty's colonies, provinces,
ancl plantations in N orth America, has been founa by
experience to Cl'catc grcat uncasinesses and disordel's
among his Majesty's faithful subjects, who may never-
theless be disposec1 to acknowledge the justice of con-
tributing to the common defence of the empire, provided
such contl'ibution should be l'aisec1 under the authority
of the general court 01' general assembly of each respec-
tive colony, province, 01' plantation. And whereas, in
order as weH to remove the said uneasinesses and to
quiet the minds of his Majesty's subjects who may be
aisposed to return to tbeir allegiance, as to restore the
peace and welfare of all his Majesty's dominions, it is
expedient to declare, that tbe King ana Parliament of
Great Britain will not impose any duty, tax, 01' assess-
ment for the purpose of raising a revenue in any of the
colonies, provinces, 01' plantations." And the act then
proceeds to declare, "that from and after the passing of
this act the King and Parliament of Great Britain will
110t impose any duty, tax, 01' assessment whatever, pay-
able in any of his Majesty's colonies, provinces, 01'


--------_ .. __ .. _-~_._----~---_ ..


(3) As to (he renunciation of
(he c\aim itself, which this slalule
has been supposed to make, see the
observations 01' IorJ Ch'lncelJor
Brougham, delivered on the seconJ


readill{r of tbe Colonial Slal'ery
Abolition BiB, 12th August, 1833.
Mirror of Parl. p. 3694. And see
also 31 Geo.3, C. 51, commonly
calJed (he Quebec BilJ.


13




14 A SUMMAR y OF
plantations in N orth America or the West Indies, ex-
cept only such duties as it may be expedient to ¡mpose
for the regulation of commerce, the net produce of such
duties to be always paid and applied to and for the use
of the colony, province, 01' plantation in which the same
sha11 be respectively levied, in such manner as other
duties collected by the authority of the respective gene-
ral courts 01' general assemblies of such colonies, pl'O-
vinces, 01' plantations are ol'dinarily paid and ap_
plied."(4)


(4) This exeeption was conform-
able to the view~ of lhe K orth Ame-
rican provinces themselves at the
commencement of Ihe dispute.
Franklin sta tes in his examination,
"that the authority of parliament
was ullowed to be valid in all laws,
exeept sucb as sbould lay internal
laxes. lt ncver was disputed in
luying duties to regulate com-
meree:' Aud agaio, "1 never heanl
any objection to tbe right of laying
duties to regulale eommeree, bul
a right to lay internal taxes was
never supposed 10 be in parliamcnt,
as we are not represeoted thele."
He is then met by the questiuo,
w hether he could name any aet of
assembly that made such distinc-
tion: to which he answers, "1 do
not know that there was any, 1 think
there was never an occasioo to make
any sueh 3ct till now Ihat you have
attempted to lax uso Tl.ut has oe-
casioned resolutions of f\ssembly
declaring the distioclion." Being
then asked if he could shuw any
kind of difference between the two
modes of taxing, he says, "1 think
lhe difference is very great. An ex-
ternal lax is a duly laid on commo-
dilies imported; that dut.y is added


lo lhe fil'sl cosl and other charges on
the commodity, and whell it is ol'-
fered to sale makes a parl of the
price, &c. But an internal tax is
forced from the people wilhollt their
consent, if no! laid by their own
represenlatives," &c. He is titen
pressed by the objection, whether the
payment lo the Post-olfiee, whieh
they bad long acqllÍesccd in, was not
a tax as wel! as a regulation. He an-
sIYers " l'ío.--'l'he money paid for
Ihe postage of a ¡cttel' is not of the
nature of a tax. 1! is mere1y a qua,,-
t1lm mentÍt fol' a service done. K o
pcl'son is compellahle !o pay the mo-
ney if he does nol cltoose lo receive
Ihe service. Aman still, as before
the ael, sends his lelter by a ser-
van! o,' speeial messenger ar a
friend, if he thinks it eheaper or
safer." Anrl it heing aflerwards
suggested, tha! al leasl there could
be HO difference as lo the matter in
question between an c¡,cisc and a
duty on importation, he ,ay, "Yes,
a very material ooe. 'fhe sea is
yours, you maintain by your Reets
the safety of na vigatioll on it, and
keep it clcar of pirates. Y ou may
have therefore a natural and equit-
able I'ight lo sorne toll or duty on




COLONIAL LAW.


Nor is every act of the British Parliament even
within the lawful compass of the legislative authority
binding on the colonies, for it results from the principIes
already stated, that in conquered 01' ceded settlemcnts
acts of parliaments passed before their acquisition have
in general no force, unless adopted or incorporated by
royal or parliamentary authority, 01' by aet of their own
lcgislatures, either by way of specific enactment, 01' as
part of the general law of the mother country, into their
subsequent code.(5) For such colonies remain (as we
have seen) in all matters not otherwise provided for,
subjeet to their former laws. But this is open to a very
important exception, viz. that of aH statutes which are
manifestly of universal poliey, aml intended to affect aH
our transmarine possessions, at whatever period they
shall be acquired, such, for cxample, as navigation
acts, 01' the acts fol' abolishing the slave trade and slavery.
F 01' Buch statutes will upon the conguest 01' eession ipso
jacto, amI independently of posterior legislation, be
binding upon a conquered 01' ceded colony.(6) And in
colonies acquired by occupancy, the whole then existing
law of England, (comprising in general the statute as


mérchandize carried throngh part of
your dominions, towards defraying
lhe expense you are at in ships to
maintain the safety of that cal'-
l'iage."


(5) Such adoption or incorpora-
tion of the general law of England
has, in a great proportion of our sel-
tlemenls, laken place. For in those
colonics where legislalive assem-
bIies have been cstablishcu, the
royal commissions regulating theil'
constilution, have ordinariIy directed
tha! their courls of justice should
administer law "as nearly as
might be agreellble to the law of


England," which seems t.o iDelude
thc stalule as well as ¡he eommon
law al that time existing, i. e_ so
much as is applicable to the new
settlement. And in some of them
the law of England has been ex-
pressly adopted by 3cts of tbeir
assemblies. So in sorne colonies
not possessing legislative assemblies,
such as Gibraltar, &c. t.he whoIe
bouy of English law, as it existed at
the time of the acquisition, has been
adopted.


(6) See 14 Geo. 3, c.83, s. 18,
as lo Canada.


15




16


Pa.rticulal' legal
constitutions
actually pre-
vailing in the
British colonies.


A SUl\DrARY OF


well as the common law,) so fal' as it \Hay be applicable
to the eireumstanees of each :settlement, is in force from
the period of their aequisition.


Again, aets passed sinee the aequisition of a eolony,
01' at least subsequent to the establishment of its legal
eonstitution by royal eommission 01' act of parliament,
do not extend to it, unless they appear to have been
passed with the intention of being so extended.(7)
This intention, however, may appear either by men-
tioning the eolony by name, 01' by general designation,
sueh as the "eolonies," 01' "the 'Vest lndies," 01'
"the dominions of his Majesty," 01' "the British pos-
sessions abroad;" or by reasonable eonstruetion, as in
the case of navigation aets, aets of revenue and trade,
and aets whieh relate to shipping, all whieh in general
are obligatory on the eolonies though not in terms ex-
tended to them. And aets of parliament whieh alter
other aets in force in the eolonies, are also eonsidered
by inferenee as themselves applying there.(8)


n. Havil1g thus eOl1sidered in a general 01' abstraet
point of view, to what laws the eolonies are subjeet, we
have now to examine the particular legal eonstitutions
at present pl'evailing among them.


Thc usual form of governmcnt is undcr a royal eom-
mission, authorizing the person therein named to govcrn
the eolonyas thc king's rcpresentative, 01' deputy, aceOl11-
panied by instruetions from the king in eouneil, regulat-
ing the manner in whieh that cluty is to be pCl'forl11ed.
In S0l11e cases, however, the king has granted out a
eolony to some individual, to hold in thc naturc of a


(7) 1ChaI.Opin.197--220;2id.
202; 4 !\Iod. 225; Como Dig. :\ a·
vigation, G.3; 2 P. Wms. 75;
l B1ack. Como 108; 2 Ld. Raym.


1245, 1246; 2 Sal!;, 411; Stoke's
Law of Col. 5, el ",[.


(8) Dwarris, 1st Hep. p.;', and
the authorities before citeJ.




COLONIAL LA W.


fcudatory pl'incipality, with inferior l'cgalities and subor-
dinatc powel's of lcgislation, but subject to the sovereignty
of thc mother countl'y. And there are otllcr installces
in which a colony has Leen crected by charter into a
sort of civil corporation, with powcr to makC' bye-Iaws
for the interior government of t11e colony, and with such
rights and authorities as have been specially provided in
the chartel'. These th1'ee several kinds of constitutions
have been distinguished by Blackstone, under the difier-
ent appellations of Provincial E~tablishments, (9) Pro-
prietarl/ Governmenls, (1) mul Cltarter GoveTll1nents. (~)
In the first, t11e govermnent and council were aIways
named by tlle King. In the ncxt, the proprietors had a
right of appointing governors, subject, however, since the
7 & 8 W lll. 3, c. 22, to the appl'oval of the Crown, and
subjcct to thc same oaths amI the like penalties as His
Majcsty's governo1's and commanders in chief were liable


(9) Provinciol Establishments.
Their constitutions depended on the
respective commissions issuell by the
rl'own to the governors, and the 1n-
slruetions which usucllly accompani-
eu the"o commissions, under the 1U-
thurity of which provineial ass€m-
blies were constitutcd \Vith the pOWCI'
of making local onlinances not re-
pugnant to the laW'i ofGreat llritain.
t m. Como lOa; Stokes' Law of
Colonies, 14.


(1) 1'l'Oprietary G overnments -vere
grantcJ out by (he crown to indivi-
duals, in lhe nature of feuuatory
principalities, with al! lhe inferior
m~alities and subordinatc powel's of
lrgislation which formcrly belonged
to the owncrs uf counties palatine :
yet still with these ex['ress condi-
lions, (hat the end for which the
granl was made be subslantially
pursued; and that nothing be at·


templed which muy uerogate from
the wvereignly Gf the molhrr coun-
try. 1 Bl. Como 108 ; Stokes, 19.


(2) Charler Governmenls were in
the mture of civil corporations, with
the po,,"er of making bye·laws for
their own interior l'egulation, not
contrary to the bws uf Englaml, and
with snch rights and authorities as
are specially given them in their
several charters of illcorporation.
1 B 1. Como 108; Stokes, 20, 2l.


Thcse three appell~tions have
Leen gil'en lo the ¡hree sorts of go-
vernmcnts. (1 Bl. COIll. 109; Mon-
lefiori, DicL tit. Pbntation ; Stukes'
LalV of Colonies, 13, 14; Hec"'
Cyclop. tit. Charter Governments.)
1'0 the firsl ofthem the litle uf King's
Governmcnts, (EulVarJs' Bis\. \Vest
lndies, vol. 2, p. 315,) and ¡hat of
Hoyál Governments (Eur. SeU. vol.
2, p. 298,) have also been applied.


e


17




18 A 3UMMARY OF
too J n the last, 01' charter governments, the pcople somc-
times, anc1 sometimes the King, (by spccial reservation in
the charter, as in the case of Massachusetts,) appointed
the governor, but the people electecl the house of repre-
sentatives, and these latter e1ected tIle council, which re-
semblerl, in many respects, an llpper hOLlse of pa1'liament.
Byone write1' (Europ. Sett. vol. 52, p. 300,) the last fo1'm
of government is thus clescribecl; HIt is to all purposes
a mere democracy; they elect every one of their own
offieers fl'om the highe"t to thc lowest; displace them at
pleasure, amI the laws which they enact are valid with-
out the royal approbation."


The eolonies now belonging to the Crown of Great
Britain, exclusive of those under the government of the
East India Company, (to which this work does not pro-
fess to cxtencl,) are as follows :-


In the 'Vest J nclies and South America:-
1. Antigua, including Barbuda.
~. Barbadoes.
3. British Guiana. (3)
4-. Dominica.
l>, Grenada.
n. Jamaica.
7. Montserrat.
8. Nevis.
9. Sto Christopher's, inclucling Anguilla.


10. Sto Lucia.
11. St. Vincent.
152. Tobago.


(3) See (in the Appen<1ix) Ihe
cornmission lo Majar General D'er-
han, dated 41h of :\Iarch, 1831, by
which lhe uniled coJonies of Deme-
rara and Essequiho anu Ihe colony
of Berbice were consoliuateu into
one colony, lo be eaBed " British


Guilna ," anu also Ihe orders in
eouneil of lhe 23<1 of April amI 20lh
al' June, 1831, eSlah1ishing ncw
courb jointly lo auminister juslice
in British Guiana, Trinidad, and
Sto Lucia.




COLONIAL LAW.


13. Trinidad.
14,. Virgin Islands.


1 n N orth Amcrica, continental and insular:-
1. Bahama T slands.
2. The Bermuda, 01' Somers' l slands.
3. Canada, Lower.
4. Canada, Upper.
5. Prince Edward's Island.
6. N ew Brunswick.
7. N ewfoundland, wit)¡ part of Labrador.
8. Nova Scotia, iucludiug Cape Breton.


In Afi:ica:-
1. Cape of Good Hope.
2. Sierra Leone, with the settlements on the Gold


Coast.
In the ludian Seas:-


l. Ceylon.
2. Mauritius, with the Seychelles.


In the South Seas :-
1. N ew South "Vales, with N orfolk Island.
~~. Van Dieman's Land.
3. Western Australia.


And in addition to these, may be enumerated the fol-
lowing Bl'itish possessions, which are said Bot strictly to
fall within the definition of colonies.


In Europe :-
1. Gibraltar.
2. Heligoland.
3. Malta. (4,)


(4) Malta lo be deemed in Eu-
rape, 3 & 4 W. 4, c. fJ2, s. 120. Iu
Ihis enumeration 01' the colonies
nothing has becn said of Honduras,
which has beell uecidcu cxpres3ly
no! to be a colony (see (Jllte, p. 2, n,
1.) Western Australia, mentioned


in the above list, was ereated a co-
lony by the 10 Geo. 4, c,22, and
the moue of its g'overnment there
provideu foro See more ou the sub-
ject of these Rettlements in the A p-
pendix.


c2


19




20


Of Sierra T"eone,
and the settle-
ments on the
Gold Coa,!.


A SUiIlMARY OF


These are almost all of the class aboye deseribed, a,,;
Provincial Estabtisll1llents, there being at present no Pro-
prietary Government, nor, with the exceptioll of Sierra
Leone, (if that be an exception,) any C}wrler GoveT1Z-
ment among the colonial dependencies of Great Britain.(5)


Sierra Leone ought, perhaps, to be designated as a
charter government, for, in point of form, it is by char-
ter, and not under the royal cOll1mission to its governor,
that its constitution has heen established. Considered
as to the mode of its acquisition too, the case of this
colony is peculiar, and entitIes it to be separately noticed,
for it belongs not properly to the class of those obtained
by conquest 01' cession, nor of those acquired by occu-
pancy, though it partakes more of the nature of a colony
acquircd by oeeupallcy than of uny otber. 1t was pur-
chased froll1 the llative chiefs by certain private English
subjects, who were indneed to found a settlement there,
with the benevolent object of rcpressing the slave trade
and proll1otillg the eivili:.mtion of (he Afl'iean continent.
\Vith this view they also obtained, by aet of parliament,
(31 Geo. 3, e. 55,) a charter of incorporation, and autho-
rity was given 10 the King to grant to (he eompany the
exclusive right of holding the peninsula ofSierra Leone,
and of purchasing lands from the chieftains of the eoull-
try: after un experiment of some years, they abandoned


(5) This has not always bem the
case. 'fhe Island of llarbadoes was
formcrly grantcd to (he Earl 01' Cal'.
lisIe, ami that of St. Lucia lo tite
Duke (lf ~Iolltague, amI hotl! ",ere in
the nature Df proprictary g"overn-
n:ents. Carolina ,,"as fOllnedy a
go\"ernment of lhe san,e kind, 10uged
in eight pl'oprietarieso l\"ew Jersey!
Pensylvallia anJ ~brylaJ1(l, were
31so proprietar)" :;o,ernment •. (Eu.
ropean Settlen ent,. Id. 2, p. 299.)


The farm of a Charler G overnment
originally preV3.iled in aH the pro·
,inees of New England, and at a
later pcriod was still estahli,hcd in
t 1\"0 of lhem, - Connceticut aJ,d
Hhooe Lland. These í\:eIV EIIg-
hnJ. govelnments \Ycrc those \\'hieh
1\1r. Burh~J in file pa~sage abave
quoteJ, Jescribed as " mere demo-
cracies." (EuJ'O¡l\'an Seltlenwnts,
vol. 2, p. 300.)




COLONIAL LAW. Zl
their project, and surrendel'cd their chal'tel' to thc Crown.
By 11,7 Geo. 3, sess. 2, e. LH" the Crown was authorized
to accept this surrender, and a new charter then issued,
introducing such alterations into thc constitution of the
settlement as the Ilew state of things required. By this
charter, the power of making laws is vested in the
govcrnor and council of the colony. Afterwards, by
1 & Z Geo. 4, c. ~28, sect. 3, His Majesty was empowered
to order ane! direct ihat the forts and settlements on the
Gohl Coast of Africa, then held by British subjects, and
any p08sessions Ol! LIJe west coast of Africa, between the
twentieth degree of nortl! latitude and the twcnticth dc-
g"l'ce of south latitude, which thcn did, 01' at any time
thereafter, might belong to His Majesty, should be an-
nexed to, 01' made dependellcies on the colony of Sierra
Leoue, arter whieh, they shoulcl be subject to all laws
onlained by the governol' and couneil of the colony, anel
not disallowed by His iVbjesty, in ¡he same mannel' as if
they had ol'iginally fOl'med part of Sierra Leone. The
annexation so authorized has aeeordingly sinee been di-
rceted by order in council. (G)


Three othel' of the colonies, viz. N ewfoundland, N ew Of the calanies
S 1 UT 1 1 u D" , 1 1 " 1 acquired by dis-out 1 H a es, ane tan ICman ~ ~allt, were aequlrel cavery ar accu"
by discovel'Y 01' simple occupation, and are consequently patian.
110t subject to the legislatioll of the CrOwll, but are
governed by the general law of Englancl as it exisLed at
[he period of their acquiremel1t, wbject to sueh regula-
tions as lhe British Parliarnent has since speeialIy pro-
vided fOl' them. Of the acts regulating these eolahies
as to the atlministratiol1 of jU8tiee, the folIowing are the
principal: "An Act for the bettcr administration of jus-
tiee in NewfoundIand, and fOl" oihel" purposes," 5 Geo. 4"


(6) Bis l\I"jcsty, hy lcttcrs pa-
tent, grantcd a Charlee rif ¡'1~licc
to Sierra Leone, cstablishing courts


of judicature with rcgulations as io
the proceedings therein, and appeals
therefróm, &c.




Of Ihe colonies
acquired by eon-
quest, and still
subject to tbe
legislation of tbe
Crown.


A SUMMARY OF


c. 67, (7) "An Act to provide untiI the 1 st day of J uIy,
1827, and untiI thc cncl of the next sessioll oí' Parlia-
ment, for the better administration of justice in N cw
South WaIes and Van Dicman's Land, allll for the more
effcctual government thereof, and for othe!' purposes re-
lating thereto." 4 Geo. 1·, c. ~)6. (R)


Therc are other colonies which having been originalIy
acquired by conquest 01' cession, and having yet obtained
no grant 01' a repre~entati ve legislative assembly, are


en For prevíous aets, see Reeves'
History of Newfoundland, whicb
contai"s a complete hislory of the
conslitution of this colony. See also
an act as to celebration of lJwrriages
in Newfoundland, 5 G. 4, c. 68.


By the 5 G. 4, c. 67, bis majesty
was empawered to issue letters pa-
tent inslitutíng caurls of judicature
in this colony, with rules as to 1'1'0-
ceedings tberein alld appeals Ibere-
from, &c. A Charle,. '?/ JI/stice was
accordingly issued for these pur-
poses, daled 19th of SeptemLcl',
1825. (Sec ae"pyofitin lhcl\p-
pendix.) The supreme cour! was lo
have the same jurisdiction as the
courls of King's Bench, Common
Pleas, Exchequer, and Chaneery
have in Rngland (s. 1); thechiefand
two assistan! judges "ere to he bar·
risters of three years standing, (s. :2)
and lhe COUTt was to have the juris-
diclion of courts of vice-admiraJty,
(s. 4) and to gran! lct!crs of admi-
nislralion and probates ofwiJls. (s.6)
The Icading provisiolls of the ae! are
reciled in lhe Charler of Justicc.
Newfoundland has sinee received a
grant of tbe power to hold a legis-
lative assembly; and by lhe :2 &: 3
W. 4, c. 78. s. 1, lhe al1thorily to
repeal or alter tbe two aels ahoye


reforred lo, which til! then are lo
continue in fuU force. See the in-
,lruelions to tile gOl'ernor, and the
proclamation of the king accompany-
ing them, daled 26thof Jnly, 1832.
(A copy is in the Appendix.)


(8) This is continued by au ael of
9 G. 4, c. 83, until the 31st of Dc-
cember, 1836.


By tile 4 G. 4, c. 96, his majesty
was empowered to issuc leUers pa-
ten! inslituting courts of judica!ure
in New South Wnles and Van Die-
man's Land, wilh rules as to pro·
ceedings lherein. and apl'eals thcre-
from, &c. A Clwrtcr '!f .Ju,tice was
accord!ngly issued 1'01' these pur-
po,os. ~cc a copy of it in lhe Ap-
penclix.


'fhe supremc eourl. of N ew South
Wales and Yan Dieman's Land,
are by the 9 Geo. 4, c. 83, ss. 3,
4, 11 & 12, lo have the S1me juris·.
diction in thosecolonies as the cour!s
or Killg'S Beneh, Comman 1'1eas,
anu Exchcqucr have in England,
and are besides (o have jurisdiclion
over olrenees committed at sea, 01'
in the islands in lhe lndian ami
l'acifie Occans, and to have equi-
table and eeclesiastieal j urisdiclion
within those colonies, and lheír de~
pendencies.




COLONIAL LAW.


still "uhject to the legislaLion of the Crown. These are
Sto Lucia, Tl'inidaJ, tite newly consLituted colon y of
British Guiana, the Capc of Gooel lIope, Mauritius,
Ceylon, and the European establishments of Gibraltar,
Malta, amI Heligoland.


In colonics so acquired it has already be en shown
tltat the law in force at the time of the acquisition, con-
tinues to prevail till altered by new regulations of the
Crown 01' Parliament. Accordingly in St. Lucia, the
ancient code of France, as it existed before the promul-
gation of the Code N" apoleon, is still the law of the
eolony. In TrÍnidatl the law of Spain, as established
there nt tlJe time of the conquest by Great Britain in
1797, still prevaih. In British Guiana, the Cape of Good
Hope, and CeylolJ, they reiaill the ROl1lan Dutch Law
of the Seven U nited Provinces, and of the Batavian Re-
publico In Mauritius arc received four of the five codes
into which the Code Napoleon i" divided, viz. the Code
Civile, the Code de Procedure, the Code de Commerce,
and the Code d'Instruction Criminellc. And in criminal
cases this eolony is subject to the old French law. (9)
1 t is to be observed, however, with respect to al! these
colouics formcrly helonging to France, to Spain, and to
Holland, thut the law in force in each of them at the
time 01' its conqllest, and still rctainecl thcre, though
fonued lIpon the basis of that of the parent state, clifferecl
widely from it in many particulars. By each of these
states a special system of law had been establishedíor
the government of its eolonies. Thus the Kings of
France had promulgatecl 01' sanctioned variou~ ordi-
nancps fo)' their \Vest InJia possessions, which are col-
lected together undel' the titlc of the Code de la Mar-


(9) Tllc Code Ptnal of Napoleon
is no! in force there, !Jecause it was
no! promulgatcd in }'ranee until at~


ter tl'e eonquest of the island by
Grea! Britain.




24 A SUMlI1ARY OF
tinique. The Kings of Spain, with the advice of the
council of the lndies, hall establisheLl a body ol' laws,
intitulcd Leyes de las Indias, 01' Reeopilacion de las
Indias. The Seven United Provinees had issued sepa-
rate eodes fol' the government of their western and
castern eolonies, at the suggestion of the diffcrent eom-
mereial companies by whieh those colonies were settled.
N evcl'thcless, these colonial statutes of Frailee, Holland,
amI Spain, profess to provide only for cases of local
peculiarity, leaving the general rules and principIes of
law in all other instances to be eolleeted from the eoue
of the parent state.


\Vith respeet to the European có;Lablishments, Malta (1)
is governed (as before its aC(lui~ition) by a set of local
onlinanee::; caBed the Maltese Codeo But Gibraltar ic:
in no degree now subjeet to the law of Spain, for by a
Charter 01' J u:stice, (~2) grantcd by Lhe Crown to that
seLtlement in the flfty-scventh yeal' of Geo. 3, a court
of justice wa:) established there, clirectcd Lo adulÍlJister
justiee as nearly as llIight be aeeording to the laws of
England. AmI Hcligolancl is a mere military fortress,
and can hardly be saicl to have any regular system of
civil governmellt.


'Vhilc sueh are in a general view tIJe legal imtitutions
prevalent in each of the colonit:3 llüW UfI(!e1' considera-
tion, Jt JS af the sallle time to be understood that ea eh
of them has been subjeeted sinee it« eonquest by Great
Britain to many new regulations, motlifying in val'ious
pal'ticulars the former law. These changes have been
introduced either by aets uf parliament, 01' by order 01'


(1) l\J alta is not a mere military
post, fOf cOllsidcraLlc produce is
raieee! ami exporte" by the inhabi
tant3. (~laccull. Dict, 01' COlU, alt.


"Malta.") Eut it has never !leen
scHled l,y llrili,h sul'ject,.


(2) Scc a cllpy uf it in Ihe Ap-
pcndix. See also a/lle, n. 1, p. ].




COLONIAL LAW


the King in Council, 01' by ordinances of the local legis-
lature subsequently confirmecl by Bis J\bjesty. (3)


In caeh of the colonies whieh we llave hitherto had
occasion to notice, whether acquired by conquest 01'
otherwise, there exists, with powel's more 01' less ex-
lellsive, a local legislature. In general tlle local power
of making laws is vestec1 in tlle governor, acting with
the advice of a council of government. These councils
are established by the governor's commission and by his
general instruciions issued uuder lhe signet and sign
manual, with the advice of the privy couneil. This
metllOd prevailed in St. Lucia, Trinidad, Berbice, (4)
the Cape of Gooel IIope, Mauritius, Ceylon, Gibraltar,
aud Malta. In Trinidad, however, the local laws are
promulgated in the name of lhe governor alone, without
any express reference to the mlvice of thc council,-a
peculiarity which is to be aUributed to a eorresponding
peculiarity in tbe instructiom; to the governor of that
colony. Thc ordinances made by the governors and
cOllncils of these colollie3, are of COUl'~e subject to the
confirmation 01' disallowance of the King; and the uni-
versal rule is, that no ordinancc of this nature shall takc
effect, 01' beco me Lindillg' withill the colony uulil so con-
firmccl, exccpt in cases of peculiar urgency, in which the
g()vernors are authorizcd to givc immediate executioll
to their laws. It is also a restriction imposecl by the
governor's commission and instructions, that the laws


(3) Anu SO me af them have aloo
reccived Cl¡aricrs nf Justice undeL'
lclte!',; putent from the crown, im-
l'0siog in eaeh a complete system for
the administration of the law. f'ce
these docnments in the 1\ l'pclldix.


(4) "'fhe sepal'ate cOllstitutioll
and fo!'m of civil government here-
tofore estahlished amI in use in the


said colony 01' Berbicc, wc do hcrchy
ahrogate aud dissolve, and do de-
clare tbat lbe same hath become,
und hcnccforth shall be extioel anIÍ
llJerged in (he govel'llllJcnt of tbe
colooy of British Guiana." COfll-
missioo of ilfajor Gen. D'Urban,
d"ted 4th l\1arch, 1831, (see it in
lhe :\ppendix.)


25




26 A SUMMARY OJo'
made shall not be repugnant to the law of England. (5)
The local legislature of Demerara stands upon gl'ound
peculiar to itself. (6) The Court of Policy is one of the
ancient institutions of that colony, anu its powcrs appear
formerly to have been very limited. But upon the capitula-
tion it was stipulatcd by thc colonists that no alterations
should be made in their laws except with the COllsent of
the Court of Policy, as thc locallegislature. The expl'es-
sion, jt lIJay be presumecl, was not inaclvertentl)k-Useel by
the colonists, although the full efiect of jt was pl'obably
not perceiveel by thc commaneler of the British forces.
lt assumed, with very little real foundatioll, tlw fact tlJat
the Court of Policy was thc locallegislature. Upon tite
authority of this language, howevel', the Court of Policy
has ever since the capitulation assumed and exerciscd
legislative powers of the most extensive nature. In the
year 1825, the validity of its pretensiolls in this respect
appears to have been calleel in question, fol' in that yeal'
an order of the King in Council was made by which all
the existing ordinances of thc Court of Policy werc dc-
clared to be in force until the end of the year 1826, and
until that time the council was to continue in the exer-
cisc of its legislative functions, various provisions beillg
maele fol' rcscl'ving to the King in Council the right of
disallowillg any exi8ting 01' future laws of the eourt.
Before the expiration of the yeal' 182(), this law appeal'S
to have been continueel fol' anothel' year. These orders
in council expressly state that thc rccognition of the
powers exereised by the Comt of Poliey in making laWoi,


(5) T!Jis restriction is also en·
forced by statute (3 & 4 W. 1,
C. 59, S. 56, re-enacting S. 9 ol'
7 & 8 W. 3, c. 22,) with reganl
10 the laws of al! colonies wilat·
ever. See however, an exception
to this rule in the case of Lower


Canaua, established by 1 W. 4, C.
20.


(6) Tilat legislature has now be-
come the legislature of the new co-
lony of British Guiana. (See Gov.
D'Urban's Commiss.\on in the Ap-
pendix.)




COLONIAL LAW.


IS a measure mercly temporary, and that ::;ome other
method is to be :mbstituted as 80011 as thc nccessal'y in-
formation can be procured. The commission to General
D'Urban, by which the united colony of British Guiana
is now constituted, has not, howevel', carried the inten-
tion thus indicated into eflect, but speaks of the Court
of Policy as the existing local legislature of the colony.


The remaining colonies, forming by fal' the most nu-
merous dass, (and comprising a large proportion of the
West India islands,) were originally acquired by con-
quest or cession, but havillg received cOllstitutions under
commissiolls from the CrowIl, comprisillg the power of
framing laws for themsclves in representative assemblies,.
are no longel' subject to the legislation of the King in
Council.


The form of thc Constitution enjoyed by the latter
class is in aH respects as closely modelled, as local cir-
cumstances permitted, upon that of England; and being
therefore substantiaHy the same in each colony, admits
of one general description. To this description we now
proccecl; alld as it is applicablc to so many diffcrent
settlements, it shall be given with some particularity of
detail. (7)


!
A commission, in thc form of letters-patent under the


great seal of Great Britain, accompanied by instructions
signed by the King in Council, but HOt under seal, is
directed to some individual as Governor, appointing him
to govem the colony as the King's represelltative Ol"


(7) This descriplion i. found in
a fl/rm almost entircly suitable lo
lbe purpose in Edwards's History
of ¡he \'Iesl Indies, (vol. 2,315, et
se'l.) Mue;' has thcrefore been
borrowed frolll that writer, whose
accuracy may be l'elied "pon, whefe


his p,'cjudices as a colonist du ¡lOt
¡Hterfere. Another w riler, (Slukes
O" the TIl'itish Culonies,) ""d the
Ropo .. !s of the West India CUIll'
I1Ji6Sioncl's, have aJso OCCIl .carcfuJ]y
cOllsultcd.


Of lbe culunies
acquired by
cunques 1, bu I
no! subject to
legislation by
the crowlI.


Tbcir Constitu-
tiUIlS,




fZ8


Of 'he Guver-
1J0f.


A SUMMARY Ol!'


deputy, and entrusting him with the SUpl'eme executive
allthority, but naming certain pel'SOnS, sclected from
those who have the best fortunes and most consideraLle
influence in the colony, as his council of state, to assist
him in his deliberations. He is also directed to sum-
mon, fl'om time to time, among the inhabitants, a re-
pl'esentative assembly, who, with the concurrence uf
the governol' and of the council, are to have power to
make laws suited to the exigencies of the colony, but
(as the commission usually directs) agreeable as nearly
as may be to the laws of England. The commissiun
amI instructions, when 61'st issued in respect of any
.colony, have also commonly authol'Ísed the establish-
ment of slIch COUl'ts of justice as might be found ne-
ccssary 01' expedient, amI have provided that tIte law
to be administered in them shall be as neal'ly as pm;-
sibIe confol'mable to that of England.


Thc l'ights amI duties of the <¿overnol', as exprcssly
defined by the commission and Ílistructions, 01' settled
by constant usage and established constl'uctiolJ, are as
follows:


He l'eccives by courtesy the title of Excellcncy.--
He is Captain·General and Commalltler-in-Chief; amI
if he happens to be a milital'y man, which is very com-
monly the case, he has tbe actual command of all the
land forces withín llis govel'mnent; but if he is a civi-
lian, the command in the 6eld is of course vcsteJ in a
milital'y officer. He commands the militia, amI commis-
sions aH its officers. The chief-jllstice of tbe chief COIll-
mon law court is generally appointed by thc Crowll, but
tbe governor issllcs the commissiollS fuI' the appoint-
ment of the assistant 01' puisne judges. He nominates
and supel'sedes the custodes of the severaI pat'ishes, j llS-
tices of the peace, and othel' subol'dinate civil ofllcei·s ;




COLO~IAL LAW.


but in respect of sorne of the aboye appointments and
dismissions, he is requil'ed to ask the advice ofhis coun-
cil. He is empowered to suspend any of the membcl's of
his council (8) fol' misconduct, till the King's pleasurc
be knowl1, transmitting his l'casons to England; and if
the board is by this 01' other mean s l'educed below a ce1'-
tain number, he may, at lcast to a limited extent, fill up
the vacancy pro tempore. (9) He has authority, with
advice of his council, to summon the Assemblies. He
appoints the place of theil' meeting, and when met, he


(8) By liJe instl'lIctions lo liJe
Governor 01' NcwfoulldlanJ, dall'd
'261h July, 1832, (Ha. of Cmn.
Papcl', 70'~), Ihe govCl'llOI' is ordcrcJ
(s. 9) nt'itJlcr H to augmenl nor
dilllillish Ihe nUlllhcr of the lllelll-
IJcrs of Ihe council, nor-Io slIspend
.ny of tht'lll withoul gaod "nd suffi-
cielll cause, nor wilhout Ihe cOII<enl
of lhe llIajorily of Ihe said council,
sigui/icd iu council, afler due exa-
miualiou of lhe cbarge against sl1ch
cOl'lIlcilIor, and his al1swer thcl'c",
unto." A some\\'hat similar pro-
\'isioll is cuntaineu in thc l1[)th sec.
of the sl1ppIcmcntars comlllis~ioll to
the GO\'Cl'rlOr of Ct'ylou, iS~;IIl'U on
tI", 20th March, 1033. 1 t is Lc-
¡¡eved, however, lhat lh,'se l'estric-
tions on thc Go\"{'rnor's po\\'cr al"l' of
very recent dal,', amI lha! ",hen
1\Ir, Edwards amI 1\11'. Stuhs wl'tlle
hi~ autllOrity \Vas as unlimÍled as is
stated in Ihe It'xt. 'fhe lalter ,Hi-
le.' indt'etl gives (p. 150) a form uf
a govC'I'IIOI"S coml1lissioll, which he
intinnlt's is an alltl!t'lltic cOP.\' of iHl
exi!iting COlUlllissiolJ, h;¡\,iJlg ollly
(he IHIIIlI'S uf persons .nd places
omittt-d. It cOlltains thefle \\'oJ'ds:
H and we do hereby gi\,c anu grunt
unlo )'0\1 full pOt\'er und authority


'-::::suspend any of (he members of
OUI' said couneil frolll sittillg, vOling,
or assisting tberein, if you shall
fintl jusI cause fur so doing." Fl'olll
the recital contained in (he 45th
s"e(ion uf the sllpplementary eom-
mission above mentiolled, it ap~
penrs Ihat (he original commis-
sioll eonferred an equallyabsolute
pOl\'e.·; and e~cn in the insl .... etians
to (he Govemor of Newfoundland il
is said, " if it should happen that
JUll sbould have rcasons fur sus-
pending nny of the mcmbers of Our
saill coullcil, 110t lit to be cUlUlI1uui-
calcd lO our s"id eouncil, ~·Oll lIIay
in that case slIspcnd surh mClUoer
whilout (hci.· cons~llt." HuI lhe
Gll\'Cl'l)()l' is illlmediately to selld an
accollll! of his proceedillgs lo Ihe
Sccrclary of Slalc, " togetllc,· .. ilh
his I'pasons at lul'ge fur sllch SlIS-
pellsion."


(9) By lbe commissiulI to the
governor of Ncwfollndland, he is
cmpowcred lo 611 ul' vaeaneies
occilsiolled by dcatli or abst·ucc, to
tIle 1lumbrf of thl'ee, nnrl 110 lllore.
Seco 7, r nstrucLioBó5, (hLttd 26th .T uJj' J
18:lQ. Parliumcnlal'Y Papel·, No.
70~.


29




30 A SUMMARY OF
possesses a negative voice in the legislatul'e ; fol' without
his eonsent no bill passes into a law; and (exeept in
certain colonies where acts have been passed making
permanent regulations as to the times of meeting and
sitting of the legislature) he may, from time to time, at
his own discretion, adjourn, (1) prorogue, and dissolve
the Assemblies. He has the disposalof a11 such civil
employments as the Cl'own does not dispose of; amI with
l'espect to such offices as are usually fined up by the
Bl'itish government, if vaeancies happen, the govel'nor
appoints pro temporc, and the persons so appointed
are saiel to be entitleel to all the emoluments, until
they are superseeled by the King's appointment of


(1) This authority 111 the Go-
vernal' lo adjourn a Representativc
Assembly appea¡'9 al first quite irre-
concilable with English notions of
Ihe righls and privileges of sueh an
assembl)'1 lt is, hOlVever, thus pro-
vidcd for ilL a goverllor's cOlllmis~
sion :-" Ami to Ihe elHI that no-
Ihiug may be passed 01' done in OLlr
said council or aS80mbly to the pre-
judice of liS, our heirs,ol' l:!Ucces-
sors, \Ve " .. ill and onbin that .)'ou tile
said A. n .• hall have and énjoy a
negalive voice in the making muI
passing of all laws, sta tutes, allll
ordinances as aforesaid, and J ou
shall ami lJlay likewise, from time
lo time, as you shall jlldgc it ne-
cessar)', adjourn, pl'Orogue, a!ld dis-
sol ve all general assemblies as afore-
sairl."~Stokcs, 156.


Mr. Stokes asserts, (p. 242), bul
the words uf t.he COlDmi&sioH do Hot
quite hear out Ihe assertion, thal
H every governor is forbid to sufier
Ihe assombly to ndjourn itself."
The J"eason for ,·t'sting this po\,\rpr of
adjollrning the a5scmbly in lhe go-


vernal' is ¡lrus slated in an opinion
01' Attorncy-General Pratt upon
a question as to Ihe powers of the
council and assembly of Maryland.


" Our Housc of Cornmons stands
upon ils DIVIl lalVs, the Lex Pal'lia-
me1ltulII, ",hcreas Assemblies in the
colonies are regulated by their re-
specti ve charlers, lIgage" .nd t.he
COllllllon law of England, and wiIJ
llevel' be allowed to assume tho!ie
pri,.jleges whieh the Honse of Com-
mons are entitled to jllstly Ilere,
I1pan principIes that neithrT can nor
must be applicd lo Ihe i\ .. emblies of
the colollies."~1 Ch.l. Op. 263·4.


A similar opinioll is expressed by
MI'. West (id. 232, et seq.) 01\ a
general qllcstion as to a guvernor's
rigllt lo prorogue un Asscmbly under
arljoul'llment withuut first allowing
(lIem to mect according to slleh ad-
jourulllcP\ and flgnin by AUorncJ
and Solicitor-Gene/'als lHurray and
Lloyd, on a dispute as to the pri-
vileges of the Jalllaica Asscmhly.
Id.296.




COLONIAL LAW.


others, and until the persons norninated to supersede
thern arrive in the colony. (2) The governor c1airns
th.: privilege also in extraordinary cases, and in sorne
colonies has by the terms of his commission, the
right of suspending, for miscondllct, such civil offi-
cers even as act immediately under the King's autho-
rity ot' by commission from the boards of treasury
and admiralty, in high amllucrative 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 aH which is added authority, when
he shall judge any offender in criminal matters a fit
object ofmercy, to extend the King's pardon to him, (3)
except only in cases of murder amI high treason; amI
even in these cases the govel'nol' is permitted to re-
prieve until the signification of the royal pleasllre.


The governor has also tlle custody of the public seal
of the colony, and in most cases presides solely in the
High Comt of Chancery, (4) In sorne few islands the
council sit as judges with the governor in the Comt of


(2) Stokcs,18,1. See an exceptioll
to this rule Iloliced post, p. 34, ll. 9,


(3) In some of Ihe ~ol()llies it "as
the prnctice, and was said lo he Ihe
law, to put into immediale cxeel!-
tion a sentence of death against "
negro, and to hang hilll on the
nearest tree. 'fhe 'Vest India
commissioncls scelll lo haye enlcl'-
tained sorne doubts as lo the legality
of Ihis practice when thcy \Vere
examining ¡nto the administration of
justice in TIarbndocs, (see 1 Rep.
49, 218,) and in Grcllaua, observ-
ing UpOI1 the "ords uf lhe Slave
Act, which says that sentenee lIlust


óe {IflsseJ l/flO/l CO/l{7c/JOII, il/lt!
.. earried illlo elfcet forthwith," they


appea,' il1c1il1ed lo adopt the eon-
struetion pul 011 that ¡¡et by Ihe
chief justice, who staled that in his
opinion .. the worels of the ael rc-
quired only al1 immediate sentence,
and not al1 immediate execution, for
otherwise it "ould be incoIlsi.lent
"ith lhe governo,"s powe,- lo re-
prieve, 01' lhe king's power to pal'-
,lon." (1 Rep. 106, 218.)


(4) This ",as matler of universal
cUlllpla;"t. by tbe colonist. to the
cOl11l11issioners, WllO, in e\'ery in-
stance, recommcnded (and mosl f,'c-
qllently in accordallce with the
wi,hes of Ihe govcrno,'s tbemstlvos)


/);,1/ /);},f (lfJ/I (J/ ,y ¿'V1't'/J1IJ,rJ ¡}//{F
shollld be tral1sfcrr-cd lo a barrister


31




A SUMMARY OF


Chancel'y. Pl'ocess howevel' is issued by him alone,
and tesied in his name; and in general, the governor
exercises within his jurisdiction the same extensive
powers as are possessed by the Lord High Chancellor
of Great Britain.


'fhe governol' is also Ol'dinary, (5) and as suchhas the
power of gl'anting proba te of wills, and administration
of the efiects of persons dying intestate, and of gl'anting
licenses fol' marriages, anu licenses fol' schools, &c.
Cel'tain ecclesiastical jurisdictions have by late acts of
Assembly been vested in the colonial bíshops, of whom
two huye been withín a few years past appointed fol'


appoiutcd from F.ugland. The
chaugc, thus earncslly desh'ed and
slrongly recollllDcnded, \Viii iu aH
probabilily be cifected al the cadiest
possible nppurtunity, as, accurdillg
to tbe dc.criptiou of the Cllllllllis-
sionel'sJ it would be vieweu in cvcry
coJ()ny as a most p]c3sillg proof of
his Majesty's paternal regard for Ihe
\\'eJf.re of II,e colonists. (S"c the
lleport. of the \Ves! India COllllllis-
sioue,.s passilll.)
(.~) A ,illlil", c/J;JIlge ,,,,, also heen


reclIlllllleudcd "itb rl'spcct to (hi,
eou,'t, nI' tha! the dutics of the 01'-
dilJary shollld be pcrforlllcd hy a
judge uf some otller COllJ't, ",ho \Vas
appoinled from EJlgland, Tho in-
.truclions lo Ihe Govcrnor of Ne\\'-
foundland (Hume of Comlnon,' Pa-
pel', No, 70'h) would seem to i"ti-
llIate lIJaI tlle Bishop uf No,'a Srotia.
",ithin wlwse diucesc Nc\\fOlllldland
is sitl1utt.'d, Illu!:.t now exerc1sc 11le
powers of au {'ccle,iastical judge
within that diocese, for the goverJlor
(s. 49) is directed lo he u aidillg
and assisting the said uishop in the
exercise of his jurisdiction, spiritual


and ecclesiastical, .. ilhin (he said
colonies; excepting only thegranting
licellses fur marriages and proba tes
of \Vills." In Iho 53d section Ihe
püwer of grunting thes(>,·' commonls
called the OiflCC of ord inary;' i9 ex-
pressly restricted lo (he go\'el'llOJ'
al une, The exc"ption 01' t/Jese fmm


the usual powers of the bishop "ould
illll'ly, accordiJlg lo ¡he welJ-kJloWIl
rllle of Irgal construction, thal he
possessed all the otlJer pOlVor. nSllally
decmed in EJlgland incident lo his
omel'. Ye! the net of tlJe Assembly
uf the 13ahamas,(6 G. 4, c, 1~,) re-
cognisiJlg the appoiJltnwnt of Ihe
Bishop of Jamaica, 'peaks olJly of
H his ccelesiHstical jUl'isdiction O\'l'r
thé c1e"gy," and declares thal " aIl
Jaws,ordinullces, nnd canOllS ecdc-
siastlcal, now in force in ElIgland,
so far as the 8amc relate tu jurisdic-
tion over fhe c1ergy Ih<'rein, ,I,all Le
in furce in thosc blunds; ,) anu the
l'igllts oftlle gO\'C'l'IlOl' a~ Ordiuarv of
those islands are by the saine act"' ex ..
pressly prcscn'ed. (:3 R"I" W, 1. e,
ed series, p, 55.)




COLONIAL LAW.


the West lndies, viz. a "llishop of Barbadoes and the
Leewal'd Islands," and a Bishop of .Jamaica, whose ju-
l'isdiction also extends over the Bahamas and Honduras.
The Bel'mudas amI Newfoundland are under the see of
N ova Scotia.


The governor also presides in the Court of Error, (of
which he and the council are judges,) to hear amI de-
termine aH appeals in the nature of writs of error, from
the superior courts of common law. (6)


He is also vice-admiral within the extent of his go-
vel'nment. 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) Fol', in order that he may not be tempted to
prostitute the dignity of his station by Ímproper con-
descensions to leadif.lg 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 yeal' from his entrance upon the govern-
ment, a\1(1 expressly made irrevocable during the whole
terl1l of his administl'ation of it.


(6) In consequcl1cc of this al'l'ange-
IIl1'lIllhe decision of a I'egular bl'cd
law)'cl' comes upon appeal befare a
military officcr and a small number
of gcnllcll1l'll, who, though highly
}¡ollolll'abie m1l1 intelljgcnt, lauour
""del' lhe disad vantage of the want
of a prof"ssional cducation. TIJe
l'('sult is a want of confiJencc among
the c"l"nists as to the uniform admi-


ni,tration of the rules of justicp.
The commissioncl's, in every i,,-
stance, recolUmend that this practice
sbollld be allcred. (Reporls, W. I.
C.)
(7) InlUany colonies part ofthe go·


\'CrllOr, salary is paid by the crown,
viz. out of lile 4f per cent. fun,), Of
io providcd for by the ,'otes of tbe
House of Commons.


D


33




84 A SUMMARY OF
On the whole then, it appears that the powers with which


colonial governors are intmsted are most ample and
transcendant, and more extensive than those which tlle
laws ofEngland allow the sovereign himselfto exercise.


In a government comprehending several islands (like
that un del' which the Leeward Charibbean Jslands werc
formerly consolidated) there was commonly appointed,
together with the captain-general, 01' chief governor, a
Jieutenant-governor, who was next in succession. (8)
Su eh oflicers are not usually appointed now. The in-
structions to the governor of Newfoundland, however,
dated ~6th July, 183~, speak of such an officer, aml
contain a provision for carrying on the goverl1ment in
case of the death 01' absence of the governor, if" there
be at that time no person commissioned as lieutenant-
gQvernor."


Where an officer holding this rank is appointed he
usuaUy aets as lieutenant-governor of one of the islands
included within the general government, ea eh of which,
in the absence of the captain-general from that parti-
cular islapd, has its affairs administered by him, 01' by
the president of the couDeil, most eommonly the latter.


On the resignation, orabsence 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 the N ol'lh American Colollies,
hesides the gm'ernol' in chief, (who
re.ides in Lowel' Callada,) lhe"e is
a lieutenant-go\'el'llol'. And fhere
is an officer of that rallk, bcsides
tbe go\'crnor in chief, at the Cape,
at CeylplI, and at Ncw South
Wales; alld sueh an officer is men-
~ioned in Ihe cOlllmission to General


D'Ul'ban, cOllstitutillg hirn Governor
of I3ritish Guiana, as a persoll \Vilo
" may be appoillted (o be Out lieu-
(ena"t-governor of OUI' ,aid colony."
(9) "Onefull moiety of fhe s.1la'T,


"lid (lf all perquisites .IId emolu-
meuts whatever." (Instl'uctiolls to
lhe Governol' uf Nl'wfoundlancl,
26th July, 183'2, s. 64.)




COLONIAL LA W.


A governor, licutcnant-general, 01' lieutenant-g<lvernor,
holds office only dUl'ing the King's pleasul'e, and in
case of oppression 01' other misconduct, any indivi-
dual aggrieved may lay complaint against either of them
before lIis Majesty in Council, and petitionfor bis
removal. (1) The Court of King's Bench in EngÍand
also has cognizance of offences committed by colonial
governors, 01' they may be tried before commission~rs
assigned for that purpose by His Majcsty, (2) and their
conduct is of comse examinable, where other remedies
fail, in Parliament.


85


With respect to the Council, its several members are Of the Council.
in the 61'st instance (as we have seen) nominated in the
instructions accompanying tha governor's commission ;
and, in case of vacancy. the newappointment is by war-
rant under the signet and sign manual, countcl'signed
by the Secretal'y o.f State, and directed to the governor.
Every governor is expressly instructed to transmit from
time to time to lIis Majesty, the names of such of the
principal inhabitants as are best qualified to supply va-
cancies in the council; (3) alJ{I it is rarely that any person
is appointed who is not previously recommended by the
governor. (4.) In .Jamaica their full complemcnt is twelvc j
in some of the sma ller West Jndia Jslands ten; and in
case of as many vacancies by death, absence, 01' sus-
pension, as reduce the board to less than a number
specially limited in cach colony, the gove1'l1{)l' or com-
mander-in-chief is empowered to fill up to that number,


(1) Moslynv. Fabrigas. Cowp.175.
It seerns, however, Ihat the power
of Ihe King in COUllcil exlends lo
rcmovnJ onJy, and nol lo further PIl-
nisllmen!. (Eumpean Sl'ltlcments,
vol. 2, p. 302, and the case abol'e
quote,].)


(2) By "irtue of Ihe stalutes 11
& 12 W. 3, c. 12, and42 G.3, c.
85. Vide 8 East, 31.


(3) Tllstruetiotis to tIte Governor
of Newfuundland, s. 6.


C 4) Edwards, 1'01. 2, p. 338.




36
/


A SUMMARY OF


but 'no farthe¡', and persons so appointed onlyaet as
eouneillors till the pleasure of the erown is known, (5)
Their privileges, powers, and offiees, are these-


First, they are by eourtesy se ve rally addressed in the
eolonies as (1 Honourable ;" they take precedency next
to the commandel'..in-ehief; and on the death 01' absence
ofthe govel'llor, lieutenant-genel'al, and lieutenant-gover-
nor, the eldest member of the council succeeds to the
govel'nment, un del' the title of President of the Council.
Secondly, they are a couneil of state, the govemor, 01'
commander-in-chief presidiug in person, to whom they
stand in the same I'elation as the Pl'ivy eouncil in
Great Bl'itain does to the Sovel'eign, But although
evCl'y colonial govel'nol' is directecl by his instruetions
to advise with his couneil on most occasions, it does not
appeal' that, in his exeeutive eapaeity, he is absolutely
bound to abide by their adviee, (6) Jt is eonceived that
he is competent to aet, in most cases, though in the
absence of any speeial provision for that purpose,
not only without, but even against their aclvice; but
that his powel' to do so is confined to cases whel'e the
couneil aet as part of the exeeutive government, and
not as part ofthe legislative govel'mnent, His opposi-
tion to them in this btter charaeter would eonsist of the


(,,) Scc the forlll of Ihe COllllllis-
siou, Stokes, p, 154.


(6) Iu Ihe Supplclllentary commis-
,ion lo the Governor of lhe Islaud of
Ceylou (H"use of Commous' Papers
foI'18:33, No. 698.) arelhe following
wOlds, "And we do authorize you,
in yom' discrelion. aud if it shall in
au)' case app('ur rigllt so to do, to
act in the f'xercise of the pow('r
committed te, you by ~'our said com-
mis~ion, in oppositioll 10 the arldce
which may in IIny sllch case be gil'en


lo you by (he lllcmbers of your snid
cxecuti"c cOllDcil." 'fhere is also a
I{'gislatil'c couneil appoinled iu Ihal
istaud by thal commission. bul Ibcl'e
appears tu be nu sueh priviIt'gc con
ferred on (he go\'erno,' .. ith refcrcnce
lo Ihe addee of (he latler cOllllcil.
as thei,' fllllclions more rcsemhlc
those uf (he Parlialllellt than uf (I,e
Privy Council. l/e is required, as
SOOB as CUlh'Cllient J to 1ransmit his
reasolls for surh proceedings.




COLONIAL LAW.


exercise of his veto on the ordinances tbey might desire
to pass. He may, it is true, by so doing, incur the
King's displeasure, but his proceedings are nevertheless
cfficient and legal within the colony. Thirdly, they
are named in evel'y commission of the peaee, as justiees
throughout the eolony to whieh they belong. Fourthly,
tbe Conneil, together with the governor, 01' eommander-
in-chief, sitas judges in tlle eomt of error. 01' appeal in
eivil cases fmm. the courts of commmon law, but not
fmm the Court of Chanccry; and in some of the islands
sorne of the members sit with the governor in the
Court of Chancery as assistant commissioners of the
great seal.


LastIy, the Conneil is a constituent part of the legis-
lature, their consent being necessary in the enacting
of laws. In tbis capacity of legislators they sit as the
upper honse, and in most of the colollies distinct from
the governor. (7) They have the powcr of originating
amI rejecting bilIs, and of proposing amemlments, (ex-
ccpt in the case of moncy bilIs). (8) They claim pri-
vilege of parliament, order the attendance of persons
and the production of papers and records, and conviet
for contcmpts, enter protcsts on thei1' joul'l1als, after
the manner of the House of Peers, and in some of the
colonies have their chaplain, cIerk, uslwr of tite blac.k
rod, &c. (9)


l7) By Ihe instructioIls gh'cn to the
()overnor vf Newfoulldlantl, dalcd
'i6th July, 18:32, (lIouse of COIll'
llIons' Papers for 1832, No. 70-t,) he
is dircctcd ill what rmmncr tu carry
inlo clrcet Ids eOllllllissioIl as to fOl"ln-
ing a HUllSC 01' As~elllbly in 11",1
bland. By the uespalch accumpa-
nyillg those instrucliolls and printed
witb il, the Coullcil, il is said, " will


participale wit!. Ihe Asscmbly in the
ellaclmcllt of laws." 'fhe reallon.
againo! litis practice a\1(l lhe evil. of
il areforcibly .tated, but the despalch
dcelares that .. the compensalioll
whiclllllightalolle f",' these evils is 1101
oblained" by tite opposite practice.


(8) Edwards, vol. 2, p. 332-3.
(9) Edwards, vol. 2, p. 322, el


seq. wb~re may be scell all able statcc
I


.37




38 A SUMMARY OF
A territorial qualification does not seem to be indis-


pensably necessary to their appointment, as in the case
of members chosen into the Assembly. (1) The mem-
hers of the councÍl are fol' misconduct subject to SUil-
pension by the governol' till the King's pleasure be
known, and the govel'nor transmits the reasons of the
snspension to EngIand fol' His Majesty's infol'mation.


lt i8 said toa that they may be removed by the
governor, with the concurren ce of the majority of the
council in council assembled, (2) btlt in the cases be-
fore referred to, suspension, not removal froro office, is
an that is mentioned. They do not derive any emolu-
ment from their situations. (3)


Of lhe House of -
Assembly.


The eonstitution of the HOlIse of Assembly is in all
respects copied, as nearly as eircumstanees wiII permit,
from the example of the Parliament of Great Britain.
The freeholdel's are ass{)mbled in each town or pal'ish
respectively by the King' s writ; their suffrages are
taken by an offieer of the erown, a11l1 the pel'sons
elected, who, as well as theil' electors, in sorne colonies
at least, must possess a cel'tain landed qualification, (l
Edw. 22l-2), (4) are afterwards comrnanded by royal


rllent and refutation uf the prudcn-
Ha" and constitutimlal objectiofls to
"hieh this branch uftllc plan of colo-
niallegislaturc has been supposed to
be opell.


(1)' Edwards, vol. 2, 1'.3::::5.
('2) 1 Hep. W. 1. C. p. 19, amI


sce ante, p. 29, 11.8.
(3) 1 Rep. W. I. C. p. 19.
(4) By a proclamatioll accolU-


panying the instructiuns to the
governor of Newfoulldlalld, daled
26th July, 1832, the qualilicatjoll uf
the persons tó be elected and the
~Iectors ate fhus s!atcd':~" EI''eI'Y


man uf the fuJl agc of \!1 yeal" ami
upwards, of sound undcrstandillg.
"lid bcing OUI' natural born subject,
01' havillg beea lawfully naluralized,
ane! llever havillg been cunvictcd in
due course of law of any infamous
criml', and having for two :years Ilext
itumediately preccdillg the day of
elecliun uccupied a dwdling-house
w¡thill our said islalld as O\VIICI' or
tenant thercof, shall be digible to
be a membel' of the ,aid House uf
Asscmbly." T!te same provisiolls
apply tu the elector, \Vit], the ex-
ception tha! lJi's occupatioll of" a




COLONIAL LAW.


pl'oc1amation to meet together at a certain time and
place in the proc1amation named, to frame statutes and
onlinances for the public safety. When met, the
oaths of allegiance, &c., are administered unto each of
them; and a speaker heing 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 corred such
public abuses as are not cognizable before inferior
tribunals. Tbey cotnmit for contempts, and the comts
of law have refused to discharge persons committed by
the speaker's warrant. They examine and controul
the accounts of the public tl'eaSUl'er. Théy vote such
supplies, lay such taxes, and frame such Iaws, statutes,
and ol'dinances, as the exigellcies of the province 01'
colony require. Jointly with the governol' and council
they exercise the highest acts of legislation; for their
penal laws, which thc judges are sworn to execute,
exteml even to life, many persons having suffered death
undel' laws passed in the colonies, even before they
had received the royal assent at home. (tí)


dwellillg-housc" is only reqllircd lo
be fol' olle year, House of Com-
lIIon8 Papel', 1852, No_ 704,.


(f) Whcn any bill has passed
the (wo houscs, it comes beforc the
governor, who ,'epresents the King,
and gi\'es his assent 01' negative as
he thillks proper, It now acquires
the force of a la \\', but it must be
afterwards tra'nsmitted to the King
alld Couneil in England, wl¡ere it
may still rceeivc a Jlcgativc, tl,at
lakes away HH ils effecl. Eur.
Sett. ÍI¡ Alllcrica, Ir. 298.


The plan uf allowillg legislative
as.embl¡es to tbe cotonics has beell


naturally extolled by thosé \VII<'
derÍl'c the bencfit, In a convetsa-
tion between Lord Chalhalll and
Franklin, we find thal cclebratcd
colonial agell! making tbis remark,
" that in former cases great empires
liad crumbled tir.t al Iheir c,trcllli-
ties, frolll tbls cause, thal c<>ulltrics
remote frolll the scaí and eye of
gov'emment, "hich therefore cOllld
no! well undcrstand thei,' affai"s for
",ant of full alld true inforll1ation,
had never been well governed, bot
liad béen opp,'essed by bad gover-
nors, on prcsumption that complaint
waS dl1licult lO be made und sup-


39




40 A. SUlI1l\1ARY OF
The ordinances thlls framca hy the legislative body,


with cOllcurrence of the governor and cOllncil, are
called Acls of Assembly, and constitutc tIte local
statute law of the colony. Theyare subject by sta-
tute 3 & 1< vV. 4., c. 59, s. 56, to this pl'ovisioll, that
"alllaws, bye-laws, usages 01' customs at the time of
the passing of the act, 01' which hereafter shall. be in
practiee, 01' endeavoured 01' pretended to be in force
01' pl'aetiee, in any of the Bl'itish possessÍons in Ame-
rica, which are in any wise l'epugnant to this aet, 01' to
any act of parliament made 01' hereafter to be made in
the United Kingdom, so far as such act shall relate to
and mention the saia possessions, are ana shall be null
amI void to all intents amI purposes whatsoever." (6)
-_._--------------------------


ported against lhem at 5uch a di5-
tauee. Henee su eh gOI'crnors liad
been eneouraged lo go on till lheir
oppressians became intole,'able; bul
that this empire had barpily fonncd,
alld 10llg been in the praelice. of a
methad wllereb)' every provillee was
\Vdl gaverned, being trusled, in a
great meaSUl'e, with the goye¡'nment
of itself; alld Ihal benee had aI'isell
slIeh salisfaclioll in lhe subjccls, aud
slIch cneuuragemcllt to lIeIV seHlr-
men!s, that, had it IIOt been for tbc
late IVTOlIg politics, (",hieh IVould
llavc Parliament to be omnipotcnt,
thollgh it ollght not to be so, ullless
it wou],¡ at lhe same time be om-
niscielll,) \YO might ha fe gOlle on
extending our western empÍl'e, add-
ing provinee to prcvinee, as far as
the South Sea." l\Iernuirs uf Frallk-
lin.


(6) This is a re-enactmcllt allllost
jn the same words of a provisioll
J'cpealed by 6 Gco. ,j., e. 10j, viz.
tha! of 7 & 8 W. 3, c. 22, sect. 9,


UpOI1 the eonslruetiol1 of whieh last-
mClltioned statute n. Edwards thinks
that it is meant to extcnd ollly lo
laws regulaling tradc, voL 2, p. 362,
(note); bu! there secm, to bc 110
fonudation rOl' this opillion. TlIe
"ords of tlle enactlllcnt are as fol-
10\\'5 :_U And it i, furllle,' cllac!ed,
that all lalVs, by-Iaw" IIsagrs 01'
customs at this time, Uf wllit.:h beJ'e-
after shall be i" practice, o,' cndea-
vourcd 01' pretended to be in force
uf practicc in ally of llw !Said plalla
tatiuns ",:hich are in any whe re-
pugnant lo the befurementionedlaws,
01' a"y of them," (viz, the ,latutes
rcci!ed in the aet, IV hich are fUI' rc-
gulating navigation alld trade,) " so
fal' as lhey do relate to the s"irl plan,
tations, 01' any of theln, ",hieh are in
an)' \Yays repugnant tu tbis aet, m'
lo "n!! othe,. law hCl'eaftel' to be made
in this killgdulll, so far as slIch law
shall relate to and mentiun the said
plantatiolls, are ¡Ilegal, null and void.
lo all intenb aud purpo5es whatsu-




coLONIAL LAW.


Acts of Assembly, after being passed by the as-
sembly amI council, not only require thc assent of the
governor, as represcntativc of the crOWll, but are also
in an cascs subject to disallowance 01' confirmation by
the King in COllncil. All private acts, and in some
Ínstances public acts, are passed with a clause sus-
pending their opcration till the pleasllre of the King be
known. In that case they have uf comse 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 fonl1, they come into legal
operation in the colon y illlll1ediately on receiving the
governor's assent, and so continue until notice is given
there of their disallowancc at home. (7)


As the mode of proceeding in taking the I{ing's pIe a-
sure at home, as to the allowance 01' disallowance of
colonial acts, is a subject that is perhaps imperfectly
undcrstood by the public, it may be convcnient to oflcr
a fuU account of it in this place.


On the alTival at the colonial department in England
of acts passed by the Govel'llor, Coul1cil, amI Assembly
of any of Bis Majesty's colonies Ín the "Vest ImUes,
tIJe comsc pmsued is said to be as 1üllows:-The aets
of the session are referred by the Secretary of State to
tlle coul1scl fur the colonial Jepartmcnt, who is re-
quircd to "report his opinion upon them in point of
law." By this establishcd fo1'll1 of expression is under-
stood to be meant that tho counsel is to report whetber
the aets respectively aro sueh as, eOIlsistently with his
commission and instructiollS, the governor was alltho-
1'ized to pass; whethel', in tlle language of the statuteJ


ever." Ami it "ill be ou;crl'cd ullfavourable lo I\lr. Edwarus' toll.
(hal thc \\vrdillg of Ihe 3 & 4 W. 4,
c. b9, s. 56, i~ nt lcast cquaJly


struclioll.
(7) 1>1 Report, W. 1. C. p. 6.


41


Of the 3110w-
allee or dis-
allowance of tIJe
Ath vf Assem-
bly.




A SUMMARY O'F
any part of them lS repl1gnant to the laws O'f Eng-
land, 0'1' tO' any law made in this kingdom, so far
as snch law may mentÍO'n 01' refer to the plantatiO'ns,
and whethel' they are respectively sO' framcd as to
give full and en tire effect tO' the purposes for which
they may have becn passed by the cO'lonial legisla-
ture. In pursuance O'f this reference a report is
made tO' the Secretary O'f State for the Colonies by the
eonnsel tO' his department. The acts, accompanicd
by this report, are then transmitted to the President
O'f the CO'nncil, with a lctter frO'm the Secretary O'f
State fO'r the ColO'nies, desiring his lordship to ]ay
tIle acts and the report before the King in Conncil for
His :Majesty's cO'nsideration. At the tirst board O'f
council which is lield after l'eceiving this communica-
tion, the acts are referred to the Lords of the Committee
O'f CO'uncil fO'I' the Affairs of Trade and Plantations, who
are djl'ected tO' repO'rt tO' the King in Council their opi-
nion as to the proceedings jt may be pl'oper to take in
relation tO' them. It is understood that the committce
of trade procecd to select from the acts thus referrcd
to them all such as present any point O'f peculiar novelty
01' importance, 01' as give rise to any question of legal
difficulty. The acts thus selected, togethcl' with aH
prÍL'ate acts, are referred by their lOl'dships to his
Majesty's Attorney and Solicitor-General for their
opmlOn. When the report óf the law OffiCCl'S of the
crown is obtained, the Lords of the CO'mmittee of
Trade enter into the consideration of all the acts of
the session of the particular colony; and it is under-
stood to be a settled rule, that in theil' delibel'ations
upon this subject, they are assisted by the SeCl'etary
of State fol' the Colonies, in his capacity of a membel'
of the committee. A report from the Committee O'f




COLONIAL LAW.


Trade is then addressed to the King in Council, and in
this report all the aets 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 ads relate to
meaSl1l'es of general and peculiar importan ce 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 aets of each year being
usually little more than business of routine and con-
tinuall'ecurrence, their lordships are in the habit of
advising that such acts "should be lift lo tlteir opera-
tion." If this report i8 adopted by the King in Council,
orders are drawn up respecting such of the aets as are
eomprised in the two first mentioned classes. No
colonial act, unless passed with a suspending clause, can
be disallowed except by a regular order of the King in
Couneil. (7) The Clerk of the Couneil then addl'esses to
thc Secrctary of State for the Colonies a letter, an-
nouncing to him the uecision which has been adopted
respeeting all the acts of the session, and transmitting
to him the original orders in couneil fol' eonfirming 01'
disallowing any particular aets. The Seeretal'y of State
eommunicates the result to the governor of the eolony,
and at the same time conveys to him the origincd 01'-
del'8 (8) in couneil. A list is also made out of the aets
whieh have neither been confirmed nor disallowed, with
an intimation that they are to be left to their operation.


From the preeeding stateinent it appcars that com-
paratively few of the statutes passed in the colonies re-
-_. -----_._---------_. ---_ .... __ ._-----


(7) Sce [l0st,p. H.
(8) TIJat is, (he ti"t scparate


piece ofpaper on which tbe order j.


w.-itten, (he rcally origillal urder
btillg ollly the entrie, lUade in the
CoulIcil's booh.


43




44 A SUMMAR y O.F
ceive either the direct confirmation or disallowance of
the King. It is cleal'ly undel'stood that SO long as this
prerogative is not exercised, the act continues in force
under the qualified assent which is given by the go-
vernor in the colony itself on behalf of tbe King. It is
also received as a maxim that the King may at any
time, however remote, exercise his prerogative of di s-
allowing any colonial act which he has 110t once con-
firmed byany order in council. This, however, (says
the lcarned writer from whom the whole of the pre-
ccding account is takell,) (9) may be l1umbered amollg
those constitutional powers of the crown which have
bcen dormant fol' a long series of years, and which
would not be called into action except on some ex-
treme aml urgent occasion. It is believed that no
instance has occurred in 1110dern times of the disallow-
ance of any colonial sta tute after the notification to
the governor that it would be left to its operation.


By anorder in council of the 15th January, 1806,
it is declal'ed "that in an cases when His Mujesty's
confirmation shall be nccessary to give validity and
efIect to any act passed by tbe legislature of any of
His Majesty's colonies or plantations, unless His Ma-
jesty's confil'mation thereof shall be obtained within
thrcc years from the passing of such aet in any of tlle
said colonies 01' plantations, such act shall be cOllsi-
dered as disallowed." This order has been sometimes
supposed to lay down a rule applicable to all descril'-
tions of colonial statutes. It is however appal'ent from
the words of the order itself, from the reason of thc
case, and f1'o111 thc understanding of the public ofliccrs
in England, that s1leh is not the sound eOllstructioll 01'


(9) lVIr. COlllmissiollcr DwalTis, 1 Report, p. 829.




COLONIAL LA W.


real efiect of the modero Jt was made to l'emove a
difficulty whicb hao m'isen respecting one particular
class of colonial statutes, those namely which contained
a clame suspending their operation till the pleasure of
the King \Vas known. This is the only description of
statutes respecting which it can be said that His Ma-
jesty's confirmation is H necessary to give them validity
and effect." \Vithout the assistance of such a general
rule, it would llave been impossible to know in any
particular case whether the statute would 01' would not
at some future time be called into operation, an un-
ccrtainty 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 su eh ofthem
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 suhsequent date in the Colonial Office. In
1782 the husiness of reviewing the acts of the colonial
legi,latures previously to their allowance by the King
in CounciJ, was transferred f1'Om the Board of Trade
amI Plantations to the offiee of the Secretary of State
for the Home Depal'tment, and aftel'wards to the
Secretary of State for the Colonies, in whose office are
1l0W to he found aH certified copies of acts, and other
official documents since thut periodo (3)


45


Though, frol11 the preceding account of the colonial Powel' a~d
prcrogat •• e of


________________________ t/¡e rrown.


(1) Tile wl,ole of (he preceding
matt~r relath'e to tLe disal!owance 01'
coufirmatioll of colollia1 ncfs is co-
piell fmm (hc valllablc repo.'t of 1\1r.
Commissioncr D"'élrris 011 Ihe i\d-
Illiflistration of Ci"il ~Illd Cl'il1linnl
Justice in the \Vest Jndies, prillted


by ol'dc.' of the HOllSC of Commons
of 5th July, 182.5.


(2) 1st R.'p. W. L C, 12:3; 2rl
Hep. ,,9.


(S) Smith',; Preface tú the Acts
of Grenada, p. xi.




46 A SUMMARY OF
legislatures, it appears that theil' powers are most
efficient amI extensive, it will be found nevertheJess,
upon consideration of the whole that has bccn pre-
mised, that the dependency of the colonies on, and
theil' allegiance to, the crown of Great Britain, amI
also their pl'oper subol'dination to the British Pal'lia-
ment, are secured by strong amI propel' demal'cations ;
fol' among- various othel' pl'erogatives, the King reserves
to himself not only the nomination of the seve~'al go-
vel'llors, the members of the council, and most of the
public officers of aH descriptions, but he possesses also
at the same time, as we have seen, the right of dis-
allowing and rejecting aH laws and statutes of the
colonial assemblies even after they have receivcd the
assent and approbation of his own deputy in the colony.
lIence the affirmative voice of the people in theil'
representatives is opposed by three negatives, the first
in thc Council, the second in the Govemor, and the
third in the Crown, the last of which pos ses ses likewise
the powel' of punishing the two former branches by dis-
mission, if they presume to act in oppositioll to the royal
pleasure; nor is the regal authority less efficient over the
executive power within the colonies than over the legis-
lative. The Governol' is commonly Chancellor by his
office, but whether assisted by bis counci!, as in Bar-
badoes and some few other places, 01' prcsiding solely
in this high department, an appeal (as all'eady stated)
Hes to the King in Couneil, in the nature of a writ of
error, from every decree that he makes; and the like
liherty of appeal is allowed from his judgment, when
sitting with the council twon writs of error, f,'om thc
common law courts. (4) Thc reuson assigned in the


U) 'fhe governor is usually prc-
\'ented by his illstrnctions fl"Om al-


lowing an appeal ",here Ihe SUIU in
dispute is nnder (l ce¡'tain valne;




COLONIAL LAW.


books 1:11' alIowing such appeals is this, that without
tllem the rules and practice of law in the colonies
might by degl'ees insensibly deviate from thosc of the
mother country, to the diminution of hel' superiority. (5)
Again, the King, as supreme head of the empire, has
the sole prcrogativc of making peace and war, treaties,
leagues, and alliances with foreign states; and the
colonists are as fuUy bound by, and subject to, the
consequences the1'cof, as the inhabitants within the
realm. (6) He has also the prcrogative of regulating
all the colonial military estabJishments both by sea and
land, quartering troops in such towns and places in the
\llantations as he may deem best, augmenting them at
pleasure, and retaining them in the colonies at aH 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 havíng no right to impose taxes,
01' levy aíds of any description in a settlement baving a


----------------;-~.


but " il is in Bis Majcsty's power,
"pon petition, to allow un appeal in
Ca.es of any valne." 2 Chal. Opino
177, This 6ght is expressly re·
served to the erown, not only by
many of the charters of juslice, but
also by the Privy Council Bil!, 3 &
4W.4,e.4L


(5) Villlghan, 402; Sho\V. PUl'.
Cas.33,


(6) B. Edwards, vol. 2, p.353.
(7) The same \v,'iter says that


tI.ese lalter rights must be adl1litted
with sorne limitation, p. 354, bul
eloes not explicitly state the llature
of tllal li",italinn, nor d,>cs he ad,


vanee any sufficicnt reason fOl' de·
nying Íls fuI! opcralion to that
bra"ch of the prcrogativc,


(8) Thc prerogative in the West
Indies, unless wherc it is abridged
hy grants, &c" made lo the itlh,,·
bitants of the respective provinees,
is that power over the subjeets,
cOllsidered either separately or col,
IceHvely, by Iheir representatives,
\V hieh, by the rommon law of the
land, abstraetcd frol1l all "ets of
parliament "nrl gl'ants of libe,'ties,
&e., frol1l the e .. o\Vn to the subjects,
Ihe Killg eOllld righ I fll lIy exereise in
Engl;lnd. 1 Chal. 0(" ~32, 233.


4'7




48 A SUMMARY OF
legislative assembly of its own, (9) nor, as it is con-
ceivetl, in any other colon y j but he may request pecu-
niary supplies fl'om a colonial House of Representa-
tives, by whose free grant alone they can be lawfully
obtained. (1)


And, in point of fact, the expenses of the internal
administration, (compl'ising charges for the service amI
clefence of the colony, for salaries of public officel's, for
repail' of roads ancl builclings, for the maintenance of
the clergy, and the relief of thc poor,) is in general
clefrayed by grants of the House of Assembly, who
fi'ame bilis lar tl~is purpase, at the suggestion of the
governol', at such time and to such extent as the public
exigencies may l'equil'e. (Z)


(9) Campbell v. Hall, Cowp. 204.
(1) Even befo re tbe sepal'alion


of Ihe American states, thouglo tbe
extent of lbe Parliament's authorit)'
was n~t settled, Ihis limitation of the
r¡yyal prerogative was wel! under-
stood. Franklin, in a letter to n
friend, dated 12th March, 1778,
slales the arocient established rc-
guiar metbod of dralVing aids from
tbe colonies to be Ihus :-" The
occasion was always fil'st consi-
dered by their sovereign in Iois
privy council, by"bose advice he
dio'ceter! his Secretary of Slate lo
write circolar Ictters to tbe sevcral
governors, \Vho were direclcd lo lay
them befare their Assemblies. In
tloose letters the occasion was ex·
plailled, for Iheir salisfaction, willo
gl·acious exprcssiolls of His Majesty'.
confidence in tloeir known duty anu
"jfectioll, 011 "hieh loe relied tllat
tloey would go-allt such sunos as
,hould ue suitalde to their auilities,
IO)lah)', and zeal for his sen·ice."
Franklin's Memoirs, p. 321. In


his celeLrated examinalion befo re
lhe eomnoittee of the House of Como
mons in 1766, he makes a similar
statemenl, bul udds, tbat in forl1l
tbe requisilion load usually not Leen
lo grant money, but lo raise, clo!he,
and pay troops.


(2) Franklin, in his exalllillation,
says lbat such a case could not be
supposed as thal an Assembly IVould
not raise the necessary su pplies lo
support ils own government. "Al!
Assembly tha! would refuse it must
want common scnse, which canllot
be supposed."


1\1r. Broughal1l slates, inlois Colo·
nial Policy, (puLlished in 1803,)
" that tbe expense of (he Jamaica
civil establishment is altogethel· de-
frayed by colollial laxes; tbat the
conlingent chargcs alllounted in
17B1 to 22,1421. elll'rency, and
lhal 80001. currellcy is abo srtlled
yearly "pon the Cl'OIVIl by the
RCVCllllC Act, 1728, out of which
tloe govNllOr rcedrcs 25001."


Wilh respect lo Barbadoes and




COLONIAL LAW.


The Leewat'd Charibbee Islands, the Virgin Islands,
(1 Feb. 17740,) and the Island oí Barbadoes, (12 Sept.
1663,) are also expressly made subject by acts of their
own Assemblies to a duty ollom' ane! a Italf pe]' cent.,
in specie, on their exported produce, granted ol'iginally
by most of them in consideration of different acts of
royal favour and indulgence.


The gl'ant 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, ami
at the same time to settle the right of the then holders
to their pos se ssio n s, (B. Ed w. vol. ],) and by the Virgin
IsIands 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.,
H similar to that which was paid in the other Leeward
Islands." The King granted the pl'ayel' 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 vel'y first act was the establishment of the pl'omised
duty, (B. Edw. vol. 1, p. 4.60-1). 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 fol' which it
---------------------------------


¡he J,eeward Charibbee Islands, he
states tlml part of Iheir civil expen-
ses is paid out of Ihe four and a
half per ccn!. funu le\'Íed upon them
to Ihe L1se of the crown, and that Ihe
rest is defrayeu by direcl laxes in
Ihese islands; thal Ihe iuhabitauts
of Grenada, St. Vincellt, flud Domi-
nica al so contri bu te in a large pro-
portion lO the public expenditurc;


but thal the expense of the civil
establishment uf the Rahamas amI
the BCI'mudlls is chiefty borne by
Great n,'ilain.


In this work \Vil! be founrl lIluel:
valuable information on tbe subject
of colonial finanec, of a kind too
minute for the pUl'poses of the pre-
sellt sketch. See Colunial Poliey.
\'01. 1. pp. 548-560.


E




50 A SUMMARY OF
was wiI1ing to pay so large a price. 'rhe matter was
the subject of a bitter contest between the Crown and
its representatives on one part, and the House of As-
sembly and people of Jamaica on the other. It is well
described by Bryan Edwal'ds, who thus l'ecol'ds (vol.
1, p. 175,) the sort of compromise that terminated it :-


" In the year 1728 the Assembly consented to settle
on the Crown a standing irrevocable revenue of 80001.
pel' annum on certain conditions, to which the Crown
agreed, and of which the following are the principal,
1 st, that the quit l'ents arising within the island (then
estimated at 14601. pel' annum) should constitute a
pal·t of this revenue; 2dly, that the body of their
laws should l'eceive the royal assent; aml 3dly, that
an such Iaws and sta tutes of England as had been at
any time esteemed, introduced, used, accepted, 01' re-
ceived as Iaw in the island, should be and continue to be
the Iaws of Jamaica for ever. The Hevenue Act, with
this important dcclaration therein, was accordingly
passed ; and its confirmation by thc King put un end to
a contest no less di,;gl'aceful to the court at home, than
injurious to the people within the island."


The produce of this duty (which forms what i8
called the fout' 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 govel'nmcnt towards


(3) Bnt it is said that lhe pay-
ment in specie is no ¡onge\' requircd,
Colonial Poliey, vol. 1, p, 5;;2, 1 t
is helieved th"t the four and a \Ja1f
per cent. duty is, and fOl' many years
¡laS heen, paid in each colony by
the delivery of fon.. "nd a half
pounds of sugal', Of other produce
out of every 100 pounds (o the
officcr of the customs there, who


receives the same on behalf of the
erown, and ships it for England,
,,\Jerc it is disposed of by an autllO-
riscd agent, and the amount rc-
ceived paid in lo the 1<:xcheque •• In
sUlIle uf tlle colonies the planters
wuuld not have been able to pay the
value in I'c"dy money ; and had they
themselves shipped lhe produce to
thi. country, they wouId lIecessarily




COLONIAL LAW.


the salaries of the governol's of these and othel' colonies,
exclusive of what is granted to those officers dil'ectly by
the Colonial Assemblies. (4)


hal'e iucurred lhe additional charges
of f"cight "lid illSllraneG, whieh IV(lllld
probably huve made (be duly mI
thcm cqual lo a tax uf double 01'
treble its nomina] amount.


Bryan Ed'Hlrr19 says, (vol. 1, p,
4.14,) that after the year 173." a
new mode of collecting tl..' four alld
a half per ccnt. dlllirs "as adopted,
whicl. made Ihcm more pl'olitable tu
(he CroWII, bul I'e does nol parti-
culftrize either n,e lIew 01' the old
morle. \Vilh a vieIV to sllOw how
the color,;es liable to the paymcnt
of tllese dutics are burdencd by
them, he adds, that they are" COII-
sidered uy Ihe planters as a IIe( tax
uf 10 per cent. on the produce of
theil' estates fOl" €vcr." This opi-
nion is distinctly confil'llled by Ihat
of the author of the " Colonial Po-
liey," who thu, .trongly cxpresscs
himsolf as to the objectionaLlc alld
oppressi"e nature and cffeel. of this
tax. "Jt is beyond cOlllparisoll the
most injuriOllS to tbe ,uhject ill pro-
portion to tI,e bencfit il produces to
govt.'J'nmeut of any that Il'clIlelllhpr
to haveseen recorded in the hislory
of laxalioll. It bolb lakcs more and
keeps more out of the l'0ckcls of
tbe people, in pl'opol'tioll to what il
urings ¡nlo the treasury, than any
olhor imposilioll with wbieh 1 am
acquaintcd. Accordingly al! these
islands havo gradually declined, in-
strad uf advallciJJg in improvement,
like ¡he J'{'st, and this Ilotwithstand-
ing lllany natural auvalltages which
they po",·ss." Col. Poliey, 1'01. 1,
p.554.


The same "igh RutllOrity "fter


warrls observes, Ihat "The ceded
islands were never subject to tIJe
foor and a half per cent. duty. An
attempt was maue by governmcllt
to extcnd these burthens to thcm
immediately afler Ibe peace of Paris,
(1763,) but the question \Vas fully
disclIssed bcfi"c the COII''! of King\
Beneh in Ihe ca,eof Grenacla. The
colony prevailed, and the saLlle
judgmcnl was held lo free the othe ..
scttleruents, Dominica, Sto Vincent,
alld Tobago." lb. 655.


The case of Grenada was this :-
The crolV n had by lelters patent,
e1ated on the 9th A pril, 1764, al'-
poillted General I\Ielville govel'llor
of Grenada, ",ilh pOIVer to summon
a General Asscmbly lo o"dain law.
for the governlIlcut of Ihe colony.
Ou the 20th of J uly in the same
year lellers patenl were isslIed di-
recting tIJe lmpositiofl of the four and
a half per cent. duties 011 that island.
MI'. Campbcll re.isted tbe paylllcnt
of these e1uties, and the Court of
King's Dench he Id Ihal the latter
instrument was a violation of the
/irst, aud was therefore void. Camp-
"ell v. Hall, CowjJ. 204.


«1) f<:dwards, vol. 1, p. 464, et
se'l' Cel'tain pensions and grants
wholly ullc"Hueete,1 with the colo-
nies, are also charged on Ihis fund ;
but it has been publicly stated in
the HOllse 01' Commons tl",t no fllr-
ther pensions are to be chargcd UpOIl
it, aud the fund is nolV carl'ied to
tllC public account, aud made part
of the eonsQlidated fund, 1 W m. 4,
c. 25, s. 2.


51




52 A SUMMAR y OF
Courts of Jus- With l'eSpect to the Courtsoif Justice, though theil'
tice.


establishment is usually directed in general terms by
the King's commission and instructions to the governor,
their denomination, quality, numbel' and particular
constitution, are, for the most part, left to be settIed
by the legislature of the colony. The Court of Chan-
eery. in which the goVel'llOl' gene rally sits as sole judge,
and exercises powers similar to those possessed by the
Lord Chancellor of England, is the exception to this
practice. This is created by virtue of the royal pre-
rogative. (5)


In most of the colonies tbese courts principally con-
sist of a Court of Clwncery,-a Court Ilniting the juris-
dictions of the King's Benclt and Common Pleas in
England, a Court of Appeal and Error, a COU1·t qf
Ordinarlj, a Court of Admiralty Ol' T'ice-Admiralty,
a Court for the administration of Oriminal Justice, (fl'e-
quently called a Court of Granel Session,) and in colo-
nies where slavery exists, a Slave Court, (se e post, p. 62,)
01' court for trial of capital offences committed by slaves.
There are also in most of the coIonies justices of the
peace, with jurisdictions similar to those of English
magistrates.


The Iaw administered in these several courts (as
infe1'l'ible from the general principIes laid clown in a
former part of the chapter) is such as the royal com-
missions, confel'ring a constitution, the Rcts of As-
sembly, 01' acts of the British Parliament extending to
the colony, may have established. And the commis-
sions have usually directed that the statutes to be made
by tbe coloniallegislaturcs thereby sanctioned, and the
laws to be administered by the courts of justice thereby
authorized, sha11 be as nearly as possible agreeable to


(;;) 1 Chal. Op. 18:1.




COLONIAL I~A W.


the laws of Englaud. (G) Hut Lower Canada IS an ex-
ception. (7) In some islands it has been declared by
act of Assembly, that the common law of England, ex-
cept so fal' as altered by their own statutes, is in force
there. (8) It may belaid down thel'efore, as a general


(6) See eommi.sion cstablishing
the constitutioll of the Grenada Of
Southern Charibbce I.l"nd govern-
ment,1763. Lord Cal'lisle's patent
'1S to Bal'badoes, 1 chal" r, 16~.j,
and the ~harters of justiee fur thc
eolonics in general.


(7) For though that eolony has re-
ceived the cl'imillallaws Di' Ellgland,
yet tIJe anciellt codc uf Fnl1lce is l'S~
tablished there in alI civil cases. Soon
after the c<,ssion (jf the provinee of
Quebee in 1763, the law of Eng-
iand, Lotb civil and crimina), was
administercd in thc provincialeourts,
llOt in pursuancc uf uny regula¡' au~
thority, but beeanse the English
setllers had infi"enee enougll witl,
the local go\'crnmcnt to procure tbe
temporal'y establishment of English
cuurts of jnstice; but the first Que-
bee Aet, 14 Geo. 3, c. OS, "as
passed at a Lime "hen the discord
prevailing in the neighbouring pro-
vinees rendered it peculiad} neees- •
sar.)' to eonciliate the Frcneh in-
habitants of Lower Canada. WilI.
this vicw the 8th sectioll recognizes
the old Canadian law as the rule of
judgment b all cí,'¡¡ malters, Ibough
by Ibe 11th ,eetion lhe criminal la IV
of England was retained.


U pon the divisan of the provinee
uf Quebec into Ihe two provillces of
Upper and Lower éanada by the
Canada Bill 01' 17~1, (31 G. 3, c.
31,) Ihe Lcgi,latirc ¡\sscmbly oC
Ihe Uppcr Provincc illllllediately
('stablished lhe English cOlll'h in
ihis latt..:l' culon;; I anu illtroduced


the la" of Englalld in al! cases civil
and criminal. By a portio n of the
31 Geo. 3, e. 31, the holding of
lands in Lower Canada was regu-
Jated. The 6 Geo. 4, c. 59, "as
pa,sed to ex plain that aet, and uoth
are reciled alld lheir pOIVers ex-
tended by the 1 "Vm. 4, c, 20,
whieh empowers the King to assent
to laws relating to the deseent, &c.,
oJ lands iu Lower Canada, though
sueh laws may be repugnant to the
IdWS of England.


(O) By ael of the Lceward Cha-
ribbee Islands, of 1705, No. 31,
(Howard's La"., 386,) sce. 2, it is
" declared thal the Common Law uf
England, as far as il stand, IInal-
Lered by any ",rilten laIVs of these
j~lands, or sume of th(,111, cOllfirmed
by )'Olll' J\:Iajesty, &e., or by some
ael 01' :Jet, of Parliament extendillg
to these islauds, is in force in eaeh
of these your IIIajesty's Leeward
Charaibee Islands, and is the eer-
(ain rule whereby lhe rights sud
propertics of Jour Majesty's good
subjects inhabiting'these islands at'e
al1l1 ought lo be determined, and
that all eusloms 01' pretended eus-
toms or usages conLradictory thcrcto
are iJlegal, "ull ano void." A ,i-
milar declaration was inserted by
Ihe Jamaica Asscmbly in tbe re\'c-
Hue law of 17~8, as Dile of tbe eOll-
ditiol1s on whieh they grantcd to
Lhe Cro\\n the I'erenuc uf floool. a
~\'far.


And liJe ro.\ al cOlllruis:-iollS <.-'I:ota-
bll!':hillg the ClJllbtitutioliS of lhe


53




54 A SUMl\IARY 01<'
prOposltlOn, that in all cases llot othel'wise provided
for, the law of England is the law of that class of the
colonies now undel' consideration. And in this is to be
understood the statute as well as the conimon law of
England; but only so much of the statute law as ex-
isted when the colon y fil'st received its constitution
under the royal commission, and as is in its nature now
applicable to the new colonial establishments; (9) for
British statutes passcd since the establishment of such
constitution do not (as we have se en) apply, unless
expl'essly 01' by necessary inferencc extending to the
eolonies, nor those passed prior to its establishment, if
not suited to the state of soeiety in the new settle-
mento (1)


Sueh appears to be m general the state of law on
this subjeet ; (2) but where the royal eommission has
not cstablished the English law, and where it has not
be en imposed by any aet of Asscmbly 01' of the British
Parliament, it is conceived that upon the general prin-
cipIes formel'ly stated, (ante, p. 3,) that law can have no
force in a eonquered 01' ceded colon.5', subject, how-


dilTerent eolonie, frequently oirect
that (he .tatutes made by the kgis-
latures thereby granted 8hall not be
repugnan! to the la",. of England,
aud that the courts of justicc tbe¡'eby
authorized "l,aH aominister justice
ugrccably, as nearly as possiblc, to
the laws oC England.


(9) In the Bahamas ano in Ja-
maica. aets of Assembly havc been
pa.sed, dedaring what part of the
slatute laIV shall be con,idered as
bimJing in thesc colunies. Thal uf
the Bahamas was I'"ssed (as ap-
pears by Zd \toport, VV. 1. C. p,
61,) in Ihe Fur 1799, It COII-
taillcd a elause to suspcnd its ope-
ration till the King" pleasure ,hould


be knowll, allo his l\faje.ty's assent
\Va, soon after ,ignificd.


(1) Such at least is lhc limita-
tion in colonies aC'luil'cd by occu-
paney; and it al'plies 110 ooubt
p.qllally lo [he cases nOI' under eon-
sideration. See the subjee! of the
applicability of English laIV lo the
colonies well discn.sed in Dr, Slury's
COll1melltaries on the American
Con5tillltioll, vol. 1, p. 1:31-142.


(2) lt i5 a snhject whicb Ihe
coloniallawyers cOlIsider as imper-
fcctly ullol'rstooo, bul their opinio1l5
appcar lo coincide with fhe views
IICI'c takctl. See 1st Rop. W. l. C.
1 \!4; Zd nep. 61.




COLONIAL LAW.


ever, to the important exeeption already notieed, as to


laws amI statutes of the mothel' country, which are of


universal poliey, and are avowedly meant to extend to
all existing and subsequently acquired posscssions.


Thc rules of praetiee and pleading are usually set-
tled in eaeh eolony by sorne act of Assembly, 01' by


the regulations of thc courts themselves. (3) They
differ evel'y where, in val'ious points, from tbose of tbe


English eourts, though framed in a great measure upon


tbat model. There are no records on parchment, but


copies of the proceedings are made out upon papel',
and kept by the proper offieer.


The proseeution and defenee of suits is in most
eolonies eondueted by barristers and attornies, as in
England. In tbe West ludies these chal'acters are


often united io the same persons; but they are also


ofteo separated. In some colonics it is required, as a


qualification fol' a praetising counsel, that he should


have been called to the bar in England. In othel's it


is suffieient that hc sbould be admitted 01' sworn in as


a barristel' in the eourts of the colony. Attornies and


solicitors in thc West Indies, not qualified as eounsel,


arc in sorne colonies required to produce a certificate


of having servcd a clcl'kship for five years eithcr in


England 01' thc West Indies; in others such cel'tificatc


is not rcquil'ed. (4) In almost aH the colonics thel'e is
an Attorncy-Gencl'al, and in many of them a Solicitor-
General, who are appointcd from home by warrant


(3) 'fhe right of each court to
lay down the rules by which ils
proceediugs \Vere to be governed
wa. distinctly asserterl in the judg-
ment delivered by MI'. BUl'on llay-
ley on behalf of Ihe I'est of Ihe
judges in the case of Mellish v.
Richard,on, decidcd in Ihe HOllse
of Lords, 1 Clark and Finnclly's


Heports, 1!'24. That case rdated
onl)' to the superior courls of this
counlry, but the principie was
staled in Ihe most general terms.


(4) 1st Rep. W.1. C. p. 121;
~d acp. 154-1.S7, "here mOl'e
minute illformution on this bubject
will be found.


55




56 A SUM"J.\.IARY OF
under the signet and sign manual, amI whose duties
are similar to those of the same officers in England,
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 govcrnor is president,
assisted, in sorne settlements, by the members of coun-
cil, in which latter case thc dccision is by majority of
vote:;. 'rhe judges of this court are supposed to have
a11 the authority of the Lord Chance110r of England in
the English Court of Chancery, except in cases whoUy
inapplicable to the colony. Under this general juris-
diction they sometimes also Jeal with cases of lllnacy,
though that would s~em, upon principIe, rather to be-
long to the governor alone, as the general depository
of the King's prerogative. 'l'here is no system of bank-
rupt law; but the principIe of cessio bonorum is ac-
knowledged in the establishment of jurisdictions in
some colonies for the relief of insolvent debtol's; 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; hut it has also a process on a decree for
payment of money, which is in the nature of an execu-
tion, and operates on the goods and lands. (6) 'l'he
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 ..


'l'he Court of King's Benclt and Common Pleas
generally combines the jurisdictions of the two courts


(5) 1 Rep. W. 1. C. 1911; Ib.2
series, 229 ; 3 Rep. 2 series, p. 6-
118.


(6) 1st Rep. W. l. C. p. 24.




COLONIAL" LAW.


which are heId under those denominations in EngIand ;
hut ¡nstead of the practice of fines and recoveries, cer-
tain other modes of proceeding, with similar objects in
view, have been devised by the different coIoniallegis-
latures. The puisne judges of this court are usually
appointed by 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 amI circumstances, hut
have seIdom been educated fOL' the legal profession.
TÍley hoId their o1Iices at the pleasure of the Crown ';
and the salary of the chief justice (for the puisne jmlges
in general aet gratuitously) is paid, when there is a
eoIoniallegislature, by gl'ant of theHouse of Assembly:
in other cases it is provided for by the votes of the
House ofCommons.


The trial by 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 instanees,that the class of gentlemen out of which
the assistant judges are now selectecl should be em-
ployed to furnish special juries in their respective
colonies. '];he proof of debts in this comt, whether
by specialty 01' 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. ~, c. 7. By this act it il:) provided
that in such cases it shall be lawfuI for the plaintiff and
defendant, and also tu and for any witness, to verify


" (7) TIJeyare in use in 'robago.
Spccial juries are kllowll in prac-


tice (here, and arc ,truck in lIJe sarne
mallncr as in England. 1 Rep. 81.




58 A SUMMARY OF
and prove any mattcr 01' thing befare thc chief magis-
trate of the city, &c., in 01' near which he resides, by
affidavit 01' writing upon oath, 01' if a Quaker, by
affirmation; and every affidavit or affirmation certified
under the city seal, in manner thel'eby directed, and
transmitted to the colony, shaU be of the same force
and effect there, as if sworn vivá voce in open court. (8)
N o notice is required by the act to be given to the
opposite party on the occasion of making such affida-
vit before the magistl'ate, but the proceeding is entirely
ex parte j and on pl'oduction in the colonial comt of
the affidavit so swol'n, it is allowed in proof of the debt,
though such evidence may of comse be encountered by
vivá 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
01' docketed. They are, however, entered in the
Pl'othonotary's Office. (9) Writs of execution in the
West Indies are executed by the Provost-Marshal,
who ís the general executive officer of all the courts of
law, and also performs the duties of Sel'jeant-at-Arms
in the Court of Chancel'y. They run against goods,
lands, al1d body, an at once j but the levy 011 each ís to
be madeJlOt simultaneously, but in succession, and in
the following ol'der,-pl'oduce, ncgl'oes, land, body. (1)
Undel' these wl'its, equities of reilemption, amI aU other
equitable as weU as legal interests, may be taken.
Chattels are, and slaves were, taken in execution, put up
to sale, amI soM to the highest bidder. Lands amI
houses are appraised by a jury summoned for thc pur~
pose, anil if not redccmcd by the defcndant within a


(8) Tile commi .. iollcrs rcmark
tbat notwith5LRnding the cIeal' (CflllS
of this law, the court at Barbadoes
alIow. it to be a valid objection to
such an affidavit, th,,! it has bten


made cithcr by plaintitr or defend·
unt. 1 Re!'. W. 1. C. 37.


(9) 1st Bep. W. 1. C. p. 38.
(1) 1st Rep. W. I. C. 39.




COLONIAL LAW.


certain periou, are delivered and conveyed at that price
to the plaintiff. Executions are often takcn out without
being levietl, but are kept as securities, to be enforced
by the diflerent creditors in succession. They are
used as securities, and are assignable; but the assignee
must proceed in the name of the assignor. (Q) The real
estate being bound from tbe issuing of the judgment
such executions have, as to land, aH the effect of suc-
cessive mortgages; but the creditor whose writ is
executed 6rst, gets a priority as to personal esta te.


Of the Court of Ordinary, the governor is sole
judge. The probate of wills, granting letters of ad-
ministration, amI marriage licenses, form the subject-
matters of his jurisdiction. AH wil1s are proved, lmt
the probate is conclusive only as to personalty. The
solemnities requisite to tbe valdity of a will are nearly
the same as in England. Marriages are either by
banns 01' by license from the governor, in his capacity
of Ordinary. They have no canonical hours in tlle
colonies, and marry at what time tbey please. A direct
amI immediate appeal líes from this comt, but it is
doubted in sorne colonies whether that appeal is to the
King in Council, 01' to His Majesty as heatl of tlle
churcb (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 Admiralt.1J or Vice-Admiralty has two
bl'anches, a Pl'ize and an Instance Comt, both held by
commissÍon issuing from the High Court (5) of Admi-


(2) 1 Rcp. W. I. C. 81-
(3) 1 Itep. \V.l. C. p. 43; bul


,ee alsu pp. 104, 19:;.
(4) 1 Rep. 2d series, 233; ¡u.


269.
(b) 1 Rcp. W. J. C. 43. Colo-


ni al Courls of Atimiralty have lIDI,
hOlVever, uccn uniformly hcld by
authoril,)' derived frolll the Ad-
llIiralty oC England alolle, for upon
a question regarding an appeal from
the Admiralty Cour! of Nevis, .Mr.


59




60 A SUMMARY OF
ralty in England, and before a judge whom that com-
mission appoints. Both possess the same jurisdiction
as is exercised by the correspondont courts in England,
as nearly as circumstances will permito The Prize
Court is of course held only in time of war. The cases
in the Instance Court consist of seizures by the Custom
House, disputes relative to seamen's wagos, bottomry
bond s, &c. Tho statute 3 & 4 Win. '1" C. 59, S. 64.,
the act un del' which the trade of the colonies is now
regulatel!, euacts "that all penalties and forfeitures
which may have been heretofore 01' may be hereafter
incurred under tltis or any otlte!' aet relating fa tite
customs 01' to trade o}' navigation, (6) shall anl! may he
prosecuted, sued for and recovered in any court of
record 01' of Vice-Admiralty, having jurisdiction in
the colony 01' plantation where the cause of prosecution
arises, and in cases where there shall happen to be no
such cou l'ts , thon in any comt of record 01' of Vice-
Admiralty, having jurisdiction in some British colony
01' plantation near to that where tho cause of prosecu-
tion arises: provided that in case where a seizure is
made in any other colony than that whore tho forfeitul'e
al'ises, such seizure may be prosecuted in any court of
record or of Vice-Admiralty having j urisdiction either


Att{)rney-Gen~ral Norlhcy said, "lf
lhal courl wa. held under the late
King's corumission for govrrning
the Leeward lsland., as lhe peti-
tiouer takes il to be, alleging lhat
the p"e~ident and council had power
only lo appoinl, but not to sit IlIem-
selves as a Court uf Admiralt,)', 01'
if the sentence was givell by tbe
president and cuulleil of N evis, as
the council there, in bolh cases Ihe
appeal ollght to be to Her l\Iajesty
iu Couueil ; bul if the pre;ir:len! and
cUllndl held a COOl't uf Admiralty


by authority derived frolU tbe Ad-
miralty of Euglalld, the appeal is
lo be tu the COll"! of Admiralty in
Eugland, and so it was latdy dc-
tcrmined h)' Her Majesty iu Coun-
cil." 2 Chal. Op. 227.


As lo the mannel' in whieh appeals
frolll the deeisi01ls of Vice-Admi-
ralty CUlll'ts al'e nu\\' regulated, sec
po,t, A I'peals.


(6) The word, in italics .. ere
not i1l (he 6 G. 1, c. 11 .. , s •. '>7,of
\\ hich tllÍ::. clal1~c is in other respects
an CXi..H.:t l'0p.j'.




COLONIAL LAW.


in the coIony 01' pIantation where the forfeiture arises,
01' in the colon y 01' pIantation where the seizure is made,
at the election of the seizor 01' prosecutor : and in cases
where there shall happen to be no such courts in either
of the Iast-mentioned coIonies 01' pIantations, then in
the court of record 01' of Vice-Admiralty having Juris-
diction in some British coIony 01' plantation near to that
where the forfeiture accrues, 01' to that where the sei-
zure is made, at the election of the seizor 01' pro-
secutor."


The Court of Vice-AdmiraIty has aIso jurisdiction
in certain cases under the Slave AboIition and Re-
gistry Acts. This court is heId as occasion requires.
Its officcrs are the King's Advocate, the King's Proc-
tor, the Registrar, and the Marshal. AppeaIs were
fOl'me1'ly made. from the Instance side to the High
Court of AdmiraIty in EngIand. From the Prize side
they were made to the King in Council, subject to the
regulations of the prize act, hut now appeaIs of any
sort from the Vice-Admiralty Court must be made to
the King in Council. (7)


Besides the civil jurisdiction, thel'e are AdmiraIty
Sessions, heId by a separate commissioIl, for the trial
of murder, piracy, and othe1' offeIlces committed OIl the
high-seas. (8) This courí is composed of the judge of
the AdmiraIty, (who presides,) the members of couIlciI,
and aH flag-officers and captains on the station.


We must now proceed to the Criminal Court, which
has jurisdietion over all crimes committed by free
persons. The president is usually one of the judges
of the King's Bench and Common PIeas. The course
of proceeding is by indictmcnt, found by a grand and


(7) See po.,t, "A ppeals." (8) 1 Rep. W. l. C. 'J3, 83.


61




6~ A SUMMARY OF
tried by a petit jury, as in l~ngland. (9) After sen-
tence, the gover~or has a power of reprieve and par-
don in ordinary cases; but in treason and murder the
crown alone can pardon; and all that can be done by
the governor is to suspend the execution, aneI send
home a rcport of the case for His Majesty's deter-
mination.


The Sla'Ve Court was formerly held for trial of
capital offenccs committed by slaves. It was in
different colonies differently constituted. In most of
the West India islands judgcs consisted of justices
of the peace, who assemhled not at any sessions
01' fixed time of meeting, but at times and places ap-
pointed pro re nata in each particular case, and the
triaI commonIy took place as soon after the charge was
made as their own convenience and that 01' the wit-
nesses permitted. In most islands two 01' more jus-
tices were l'equil'cd in order to fOl'm a court. In the
SIave Courts, it is said byan able wl'iter, (1) to be a
general principIe that the sIave is considered as sub-
ject to the criminal code of England when it is in force
with free persons. The commissioncrs, however, re-
ported exactly tIte reverse with regar~ to Barbadoes.(2)
AH the authorities agree that he was answerabIe for
offences created by the slave Iaws of the particular
colony. (3) In none of these courts was any such pl'O-


(9) As to the persoll by wholU
Ibe indictment must be presented
to the grandjlll·Y. sce ante, p. 55.1"
n .. ny of the colonies Ihe grand jury
{'xamine witllesses fo,' (he defence
as well as for the proscclltion. Thc
commissioners, ho\\'e\'er, considercd
this practice un t"vil J allrl recol1l~
mended its abolitioll. See Hcports
of Ihe \Vest India Commissioners.


(1) Stephcns's Delineation.
(2) 1 Rep. W. I. C. 49.
(3) The above question may now


be con si de red settled by thc very ge-
neral terms employed in the 17th
sectioll ofthe Slavery Abolitiol1 Act,
.3 & 4 W. 4, c. 73, which declare
tha l H 110 act nOl' order in council
sJmll authorisc aoy persol1 bul a
spccial jllslice of the peace to inflict




COLONIAL LAW.


ceeding known as a bill of indictl11ent, or any pl'C-
lil11inary examination of the charge by a gt'and jury, 01'
by a superior court. In SOl11e islands under late me-


_Iiorating acts, freeholders, 01· white inhabitants, to the
number of six, seven, 01' ninc, wcrc, in capital cases,
summoned and sworn as a jury to try the question of
guilty 01' not guilty, the law being left to the justices
alone. But this rcgulation was not the usual one ; for
in SOl11e colonies the justices were required to asso-
ciate with themselves 011 the tri al of capital charges
three 01' more freeholders 01' housekecpcl's, who jointly
with them dccided qucstions of law as wcll as of fact,


whipping, or any olher CMpo!'"l
pUlli,hmcllt, on an'y apprcnticed
lahonrer: provided that this ael
shall not cxempl ally apl'rcntired
labonrer fmm sueh corporal pnnish-
ment as by any laIV or poliec rcgu-
lolion i. "now in force for the pnnish-
men! of any offenee, it being eqnally
applicable lo al! othcr ]lersans of.Fee
conditioll." Th,' Slave Conr! loo would
aeem to be abolishcd by the same
ae!. That court waS formerJy eOITl-
posed oí two j uSlices of the peace
and U"ce freeholders, w ho were
judgea bo!h of the law and the fact.
But as none bu! 'pecial justiees can
nowinfliet any corporal punishment
on apprenticed Jabourers, nor even
they onless sueh punisbment be
.. eqnally applieable to all othe.'
persans of free condilion;" and as
tbe negro, froOl the condition of a
slave has been elevated into that of
a free apprenticed labonrcr, aDd is
classcd wilh "olher pers""s of free
ronditioll," thc men OH \'dlOOI tlu.~
power of the court IVa. to operate Ill)
longer elist, and the very founda-


tion of ir, jurisdiclion is gone, It
muy be supposed that by the force
orthe proviso in the 19th section, to
the circe! tha! "nothing Iherein
eonlailied ,Imll be eonslrued to ab-
roga!e the powcrs vested in the
sup,'eme courts of record, or !he
superior cour!s of civil and criminal
jurisdictioll in any of the colonirs,"
the SI.ve Court is still competen!
to judge of olfenec. committed by
slaves. But, in Ihefirs! place, the Slave
Court Ilt"'V('1' ,,",'as a court of record.
(1 Rcp. W.1. C. p. 48,) In the
next, it may be doublful whethe,' it
can properly oe considcrcd one of
the " Super;o,· COUl'tS of Civil and
Cdminal Justiec," (certainJy 1I0t, ir
the phrase is to be constrned in the
ccmjunctive sellse); and Jaslly, jf it
docs rcally come within that de·
seription, thcn the pl'Oviso in the
19th seetion will be opposed not
only to the general spidt of Ihe act,
but to the positive mactment ofthe
17th seelion, and mus! therefore
he considered to be overrnlecl.


63




64 A SUMMARY OF
aml had an equal authority with them in adjusting the
punishment, when of a discretionary kind, a majority
of votes being sufficient for either purpose.


The proceedings were in general wholly by parol,
except that the warrant 01' mandate for execution (it is
believed) was generally in writing, and that an arrest-
walTant was issued to take the sIave ¡nto custody to
answer the charge. In Dominica, however, it was di-
1'ected by law that the proceedings at the trial should
be 1'ecorded by the cle1'k of the crown, who was 1'e-
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 tri al,
be reduced into writing and read; but it was prodded
that the same should not be questioned for any defect
of formo These provisions, however, did not extend to
any but felonious offences; nor to any felonies hut such
as were punished with death 01' transportation.


From the decisions of these courts it is said there was
no appeal, and without the intervention of the governor
01' any other authority, they might award execution j
which was awarded in gcneral immediately after sen-
tence, and carried into effect by the marshal ol' his
officers. (4) ,


Where complaint was made of off en ces, not capital,
committed by slaves, (5) a still more summary form of


(4) Stephens's Delineation, p.
402. The sla ve, when convicted, is
at once hanged upon the nearcst tree.
(1 Rep. W. I. C. 54.) In some co-
lonie. t]¡ere is no appeal agaiml a
senlence on conviction, in others
there is. (1 Rep. W. I. C. 21B.)
In Grenada it is lhe practice, at
the governor's request, fur the justice
to lay lhe trials before lhe govcrnor
previDus to the sentence being exe-


culed ; but ¡here is no legal obliga-
tion on them to do so. (1 Rep. 106.)
The commissioners, howevcl', doubt
the slalement tllllS made lo thcm,
as they consider it irrccol1cilable
wilh tbe governor's power lo re-
prieve, or the King's lo pardon.
(Id. ib.)


(.J) Tbat was, of course, COm-
mitted by them agninsl persons no!
standing in the relation of masler ;




-/
;


COLONIAL LA W.


procceding took place. A single magistrate summoned
the owner to produce the slave-hcard the evidence,
and either dismissed the complaint, or ordered a punish-
ment by whipping, accol'ding to the nature of the
{)tfence.


As a security against any illegal additions to the
number of slaves by secret violations of the acts for the
abolition ofthe slave trade, systems ofregistl'ation were,
under the authority 01' by the influence of his Majesty's
government, adopted in the ditferent sIave colonies.
As a necessary result of the Slavery Abolition BilI,
the registry of sIaves, as such, must cease; but as the
question of freeman or apprenticed labourer will now
take the place of that of freeman 01' slave, there will pro-
bably be sorne 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 be en thought advisable, there-
fore, to give a sketch of the mode of slave registration .
. On the 9!8th 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. N othing beyond the
general outline need be stated in this place. Within
one year from the promulgation of the order, every
proprietor in the island was required to make on the
same day, to a public office created for the purpose, a
fun return of the number of his slaves, in which the
names, ages, and stature of each wel'e to be specified.
These were denominated the original returns, and the


for with respect to those in which he naturaIly preferred lhe dome.tic
tlle maste,' \Vas personally concerned, {orum.


F


65




66 A SUMMARY OF
record of them, the original registry. An exact com-
pliance with these regulations would, it is evident, fur-
nish a perfect enumeration and description of aH the
persons within the colon y, who !tt the time at which it
might be made were in a servile condition. Deaths and
births, enfranchisements and importations froID other
British Settlements, would, however, continualIy 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
aH 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 aH judicial proceedings upon the question of the ser-
vile condition of persons resident in Trinidad, 01' of the
right of property in a slave. On every question of
Rlave and free, the production of an extract from the
registry, certified un del' the hand of the proper officer,
was made essential to the pl'oof 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 involuntal'Y
errors in the return, and for protecting the rights of in-
fants, lunatics, and married women, and of persons
claiming a future 01' reversionary interest in a sI ave, 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-
gina.l or annualj exact duplicates were directed by the
order to be transmitted to t.he Colonial Office in
England; but the present place of deposit is an office




COLONIAL LAW.


(established in this country by act of parliament (6)
passed since the date of the order) for receiving and
registering such returns from all the colonies. 1 t 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,
against a pretended owner, was to be barred on the
ground of the alleged servile condition of the plaintiff
01' prosecutor; and that the evidence of indifferent per-
sons, being or alleged to be slaves, should be admitte(l
in all actions 01' prosecutions commenced under the
order,-subject, however, to all just exceptions to their
credit.


Such is the general substance 01' outline of the Tri-
nidad órder. By subsequent orders of the King in
Council, a similar system, with frequent differences in
detail, was extended to Saint Lucia and the l\IIauritius.
And in consequence of earnest recommendations fl'om
the crown, the other slave colonies have each been in-
duced to establish, by local acts 01' ordinances, some
plan of registration professing in general to be modelled
tlpon that of Trinidad, hut falling, in many cases,
much helow that moJel, nnd l'~nd~red neal'Iy useless
by the imperfection and inadequacy of the pl'ovisions .
. By the recent Slavery Abolition Act the task ofpro-


(6) 59 Geo. 3, c. 120, p.ssed
12\h July, 1819. By this Rel it is
provided that a registrar shall be
appointed to reeeive returns of
slaves to be transmitted from any of
His Majesly's British and foreign
plantation., and that after Ihe 1st
January 18~0, every sale or con·
veyanee, &c. of any slaves lo be
executed within the Uniled King-
dom, to or in trust for any of His


Majesty's subjects, shall be ,'oid,
unless the slaves are registered and
the registered names set forth in the
deed or instrument; and that no
51 ave shall be deemed duly rcgis-
lercd unless a return of such slave
has been duly rcceivcd from the co-
lony where stich sI ave resides,
within four years next preceding the
convc)'ance.


F~


67




68 A SUMMARY OF
viding for the details by which that act is to be carried
into full eflect is left to the difierent legislative assemblies
ofthe colonies themselves. All the "Vest Indian colonies,
with the exception of British Guiana, Trinidad, and
Sto Lucia, have legislative assemblies. Bl'itish Guiana
has a sort of local assembly (subject, however, to the
pOlVel' of the King in Council) called the eourt of Po-
licy, (see ante, p. 926.) Trinidad and Sto Lucia are strictly
speaking, therefore, the only colonies now existing in
the "Vest Indies without the form of self-government.
They will probably receive directions as to the mode
of carrying the Slavel'y Abolition Act into effect by
order in council.


Acts of tte Bri- 111. "Ve now proceed to the thil'd head of our inquiries,
t;sl! Parliamellt d 1 ·d . f h B·· h P l· imposing Regu- an lave to conSl er certam acts o t e rltls al' Ja-
l~tliOIl~ on the ment impos!ng regulations on the colonies in general.
ColullIc,.


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 weH known law passed in
the lQth year of Chao ~, c. 18, commonly called by
way of eminence the Navigation Act, was the founda-
tion. The restrictions of that act were extended and
incl'eased by many subseqúent statutes, fol'ming altoge-
thel' a general system of navigation law, which, as fal'
as it regarded the colonies, was said to embrace two
distinct objects ;-6r8t, the augmentation of oul' naval
stt·ength by an entire exclusion of foreign shipping from
our plantation tl'ade ;-secondly, the securing to Great
Britain aH the emolllments arising frol11 her colonies, by
a double monopoly, viz. a monopoly of their whole im-
port, which was to be altogether from Great Britain,




COLONIAL LA W.


and a monopoly of their wholc export, which (as fal' as
it could serve any useful purpose to thc mother country)
was to be no where but to Gl'eat Britain. (7)


Hut as this system was -wholly abrogated, and a new
code of trade and navigation established by certain
acts passed in the reign of Ilis 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. 114, 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 & 1, Wm. 4,. c. 50, which
recites the former acts, anel declares tbat "it has become
expedient again to consolidate and further to amend
the said laws." That object has been effectcd by the
enactment of several other statutes. (9)


(7) The impolicy of this system,
in regard to botb these objects, is ex-
plained and st"ongly rcprobated in
tIJe able article u Colony,H in the
Supl'lement to the Encyclopmdia
Brilannica, attributed to tbe pen of
1\1r.1\1;II, aud has also been lhe sub·
ject of severe afld merited censure jn
lhe H"use of Comlllons.


(8) An aceurate aecount is given
in Mr. Ree.es' well·known work on
Shipping, of so much of this law as
thell exisled.


(9) The following is a list of the
statutes pass~d in the present year.
The prnvisions of such of them
as mRy be deemed impOl·tant with
relation to the colonies wilJ be
given in the ,\ppendix. As eaeh
aet is intellded as a substitute for
sorne particular statute repealed by
the 3 & 4 Wm. 4, c • .'JO, the chap-


ter of tbe rel'ealed statute will, for
the purpose of easy reference, be
inst'fted in a part:'uthesis imme-
diatdy after the description of the
aet which supersedes it.


:3 & 4 W. 4, c. 51.-An Act for
tbe Management of the e u5toms.
(6 G. 4, c. 106.)


:3 & 4 W. 4, c. 52.-A/l Act for
tI,e General Regulation of the ens-
t01ll5. (6 G. 4, c. 107.)


:3 & 4 W. 4, c. 53.-An Act for
the Prevention of Smuggling. (6 G.
4, c. 10B.)


3 & 4 W. 4, c. 54.-An Act for
lhe encouragement of British Ship.
ping and N a ,·igation. (6 Geo. 4" c·
109.)


3 & 4 W. 4, c. 55.--An l\cl for
the Registering of British Vessels.
(6 G. 4, c. 110.)


3 & 4 W. 4, c. 56.-An Acl foc


69




70 A SUMMARY OF
It is provided that, with certain exceptions afterwal'ds


mentioned, goods, the produce of Asia, Africa, 01'
America, shall not be imported from Europe into the
United Kingdom to be used thel'ein. (1)


That (with certain exceptions) goods, the produce of
Asia, Afl'ica, or America, shall not be imported into the
United Kingdom to be used therein, in f01'eign ships,
unless they be ships of the country of which the goods
are the produce, and f1'om which they are import-
ed. (2)


That no goods shall be imported into the United
Kingdom from the Jslands of Guernsey, Jersey, Alder-
ney, Sark, or Man, except in British ships. (3)


That no goods shan be exported from the United
Kingdom to any British possession in Asia, Africa, or
America, no1' to the aboye mentioned islands, except in
British ships. (4)


That no goods shan be carried from any British
possession in Europe, Asia, Africa, 01' America, to any
other of such possessions, nor from one part of any
such possessions to another part of the same, except in
British ships. (5)


That no goods shan be imported into any British
possession in Asia, Africa, or America, in any foreign
ships, unless ships of the country of 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 • .'>8.-An Act lo
Granl cerlain Bounties and AlIow-
ances of Customs. (6 G. 4, c.
113.)


3 & 4 W. 4, c .. ;9.-An Acl to


ltegulate Ihe Trade of Ihe British
Posses,ions Abroad. (6 G. 4, c.
114.)


(1) 3&4W.4,c.54,s.3.
(2) Sec.4. And as lo whal .hall


be considered a ship of Ihe country,
.ee seco 15.


(3) Sec.6.
(4) Sec.7.
(5) Ss.9 & 10.




COLONIAL LAW.


are the produce, and from which the goods are Im-
ported. (6)


'1'hat (with certain exceptions) no ship shall be ad-
mitted to be a British ship, unless duly registered and
navigated as such, viz. navigated by a master who Ís a
British subject, and by a erew whereof three-fourths at
least are British seamen; and in coasiing voyag,es 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 w hich they respectively belong ;-
and aH boats, Bl'itish-built, owned, and navigated, under
thirty tons burden, and employed in fishing on the
coasts of Newfoundland, Canada, Nova Scotia, or New
Brunswick, shall be admitted to be British ves seIs,
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 aH direct trade between the United Kingdom and
the British possessions in America and the said settle-
ments. (9)


The master and seamen are not to be deemed Bri-


(6) Sec.11. Alld as lo whal shall
be cOlIsidered a ship uf the couotry,
see sec.15.


(7) Seco 12.
(8) Sec.13.
(9) Seco 14. Althollgh tltis "Sel-


tlement of Hondura." has been once
denied ill a courl of law (see ante
p. 2, n. 1,) lo be a British Colony, il
is 1l0W trcated as such, thollgh not


under tbat llame, and in the 3 &
4 W. 4, C. 52, (eusloms Regulation
Act,) it is decIared, S. 119, .. thal
'British Possession' shall be cun-
strned to mean culony, plantation,
islaml, territo!'y, or settlement." The
anthorily of a governor is vested at
Honduras in a H superintendent "
appointed by Ibe crown.


71




72 A SUMMARY OF
tisb unless natul'al-born 01' naturalized, or made deni-
zens, or having become subjects by tbe eonquest 01'
eession of some newly aequil'ed countl'Y, or by having
sel'ved in His l\fajesty's ships ofwar. Natives ofIndia
born within tbe limits of the British dominions, are not
to be deemed British seamen. Every ship (cxeept
those l'equired to be wholly navigated by British sea-
men) whieh shall be navigated by one British seaman
of a Bl'itish ship, or one seaman of the eountry of a
foreign ship, for every twenty tons burden, shall be
deerned duly navigated. (1)


No British ship to depart any port in the United
Kingdom or in the British possessions abroad unlpss
duly navigated. Bl'itish ships tl'ading between plaees
in America may be navigated by Bl'itish negroes, and
ships trading eastward of the Cape by Lascars. U2)


The proportion of British seamen necessary for the
due navigation of Bl'itish ships may be altered by the
royal pl'oclamation. (3)


The importan ce of the aet 3 & 4 'V. 4, e. 59, by
whieh the trade of the British possessions abroad is
now regulated, is sueh that it has been deemed advisable
to print the gl'eater part ofit at length, it will thercfore
be found in the Appendix. It may be suffieicnt to state
here that no goods are to be irnported into (l¡' exported
frorn any of the British possessions from 01' to nny place
other than the United Kingdom, or sornc otbc!' of sueh
possessions, exeept into 01' from certain free ports, of
whieh atable is given in the aet; but with a proviso
that His Majesty may extend the privileges of the act
to other ports not enumerated.


(1) Sec.16.
(~) Sec.18.


(3) Sec.20.




COLONIAL 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 sha11 grant the like prívíleges 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 aet then gives atable of certain kinds of goods,
the imp0l'tation whel'cof ¡nto the British American
colonies is either absolutely prohibited 01' subjected to
cel'tain restrietions.


The :let eontains tables of certain duties which it
imposes upon goods imported into any of His Majesty's
posscssions in America, Newfoundland, 01' Canada.
These (with tIJe exception of any duties paid un del' any
aet p~ssed prior to the 18 Geo. 3,) are to bc paid over
to the treasurer of t1le colony, to be applied to su eh uses
as shall be directed by its locallegislature, and whel'e
it has no Iegislature, are to be applietl in such manner
as dil'ected by the commissioners of Bis lUajesty's
Treasury. (5)


811Ch are tbe main provisions of tIJe pl'csent system
of navignt:on law so f<11' as reganls the co]onies. (6)
Its general effect, it will be observcd, is that, suhject


(4) :3 & 4 \Y. 4, e.59, s.5. 'fhis
woulJ !¡<.: !li\¡J';.' pn'pcrly c.lI.prcssed as
11lC privi!ct;('s " llOt pl'vlúbitcd;' for
jt js evident .. by refere"cc to the f01'1ll
of tlle regulatiulls ah(J\e cited, tÍJat
tllOse I'rivilcgcs all 'Irise from no!
bdng illcluded in prohibitions.
(5) S. 13.
(6 )OurprCSCll! purpusc has ofcoul'Oe


led liS tn consirler the navigatioll
la\\' solel) as it re~íln~ ... i;.e Colonies.
Hut tlle gcrwral S)'Stt'l1I kllow!I bj' tIJe
nalllC uf the llavigatiun law, [rl\'oh'es
tIte ulliversal comlm'rcc uf tlle CUUfl-
tl"y, aud ilS oLjects are .aid ou the
bighest a\lthority lo be ¡he fi,heries,
the CIlustillg traJe, the E¡¿rol'ean
trade, the curnmerce .. ith Asia,


73




A SUMMARY O.i"


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 whatevel' ; (7) while, on the other
hand, the trade between tbe motber countI·y berself
and her colonies, and also all intercolonial trade between
tbe latter, is still strictly confined to Britisb shipping.(8)


As Parliament has rarely had any motive to make
laws fol' the interior government of the colonies, ex-
cept in cases relative to navigation 01' trade, the in-
stances of aets extending to tbem in other cases are
not extremely numerous. (9) The following are per-
haps the most important :


By 7 & 8 W. 3, c. QQ, sect. IZ, it is pl'Ovided "that
all places of trust in coul'ts of law, 01' whieh relate to
the treasury of the said islands, (1) shall, from the
making of tbis aet, be in the hands of the native born
subjects of England, 01' of the said islands."


The 6th Anne, e. 30, makes regulations "for as~
certaining the rates of foreign eoins in Her Majesty's


AJ,-ica, amI America, and the inter-
course with the Colonies. (Speech
of Right HOIlourable William Hus.
kisson on the Navigation Law,
12th May, 1826.) Inall its branches,
those which relate to the fisheries
and the coasting trade exeepted, the
must important alteratiulls were
introduced by (he new code passed
in tbe 6 G. 4, and are adopted with
further alterations in the presen t
statutes.


(7) S & 4 W. 4, C. 59, s. 5.
(8) Mr. Huskisson,in bis speeebes


of tbe 21st and 25th March, 1B2,5,
am!12th May, 1826,(now inrTint)


has givcn a full explanariun of rhe
poliey pursued by this country in
tbe new commereial regulatiuns.


(9) Indeed in sorne cases, wlwre
lhey exist, they are not easy to lind,
beca use particular aets have been
extended to the colonies, in sorne
cases of mere municipal polie)', hy
scctlolls of .. hieh no notice is tal,en
in the general indexes to the sla-
tutes.


(1) Meaning (as appcal's frolU
the context) Ihe ¡slands belonging
to His Majesly in Asia, Afríea, or
America.




COLONIAL LAW.


plantations of America, and as to paying or recelvmg
sil ver coins at a higher rate than that fixed by this
statute."


The act 4 Geo. 1, c. 11, entitIed 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 so me points relating to Pirates,"
was by the 9th section extended to "all His Majesty's
dominions in America." That act was l'epealed 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, entitIed "An Act for the
more easy recovery of Debts in His Majesty's Plan-
tations and Colonies in America," (and commonly called
Beckford's Act,) provides that "in anyaction 01' suit
in any court of law or equity in any of the said plan-
tations, relating to any debt 01' account wherein any
person l'esiding in Grcat Britain shall be a party, it
shall be lawful for the plaintiff or difendant, (2) and
also for nny witness, to be examined 01' made use of
by affidavit, (01' in case of Quakers, affirmation,) before
any mayor 01' chief magistl'ate of the cüy, &c., in 01'
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 01' affil'ming be stated in the


(2) The provisions of this act
were extended to New South
\Vales and ils dcpendencics by
the 54. Geo. 3, c. 15, which is, ex-


cept Ihe necessary alteralion of
names, and Ihe omission of Ihe word ,
negroes in Ibe 4th seclion, a cop y of
Ihe act of Geo. 2.


75




76 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 tbat "houses, lands,
negroes, and other hereditaments and real estates in
the said plantations belonging to any person indebted,
shall be liable to aH debts owing by such person to His
Majesty, 01' 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 01' 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., fol'
the satisfaction of debts." That part of the clause
which respect:o; negroes had been }'epealed by 37
Geo. 3, c. 119, and of course would cease to operate
when the Slavery Abolition Act took effect; but not-
withstanding the repealing 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, seco 41, ce¡·tain penalties im-
posed by that act for the violation of its provisions
relative to the trade and revenue of the Bl'itish Colonies
in America, are to be recovered in any Court of Record
01' of Vice-Admiralty in the colony 01' plantation whel'e
the offence may have been committed. And this re-
gulation is still further extended by 3 & 4 W m. 4, c. 59,
the act by which the trade of the Colonies is now mainly
-----------~ ------------


(j) See observations on tbis act,
Stokcs' Laws of Colonies, 371, 392,
to 394. See also, as to (he state
of law before tbe act, Como Dig.
Assels, C.; Biens, A. 2; 2 Vento
3.58; 2 Cban. Ca. 145; 1 Vern.
4!>3,469.


«1) Sce 1 Rep. West lndia Como
S8, 39, and their observatiuIls on
Ihe ·construction put on the act
5 Geo. 2, C. 7, by the JawJ crs in Bar-
badoes, anle, p. St!, and 1 Rep. W.
I. C. p.37, 38.




COLONIAl. LAW.


regulated. Section 64· declares "that aH penalties
and forfeitures which may have be en heretofore or
may be hereafter incurred under this or any other act
relating to the customs, or to trade and navigation,
shaH and may be prosecuted, sued for, and recovered in
any Comt of Record or of Vice-Admiralty having
jurisdiction in the cololly 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
forfeitme accrues, 01' in the colony or plantation near
where the seizure is made; and in cases where there
shall happen to be- no such courts in ehher of the last
mentioned colonies, then in any Court of Record or
Vice-Admiralty having jurisdisdiction in sorne 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 1~ Geo. 3, c. lZO, which provides that
persons standing mute on their arraignment for felony
or piracy shall be convictcd of the offence 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


(5) By lhe 7 & II Geo. 4, c. 28,
s. 2, if uny perwn stands mute on
his arraignment, (he Court shall, ir
il think fil, enter a plea of no!


guilly, aud proceed as if he had
pleaded. Bul litis slatute is con-
fined by tite reciting part to Eng-
land.


77




78 A SUMMARY OF
that arose from the patents of public officers in the colo-
nies becoming void on the demise of the late King, it is
enacted that all powers vested in governors of colonies,
&c., appointed by Geo. 4, shall continue until new
patents shall be issued by his present Majesty, and
made known in such colony. By seco Q it is declared,
"that no patent, commission, warrant, 01' other autho-
rity for the exercise of any office 01' employment, civil
01' military, within any of His Majesty's plantations 01'
possessions abroad, determinable at the pIe asure of His
Majesty, or of any of his heirs and successors, sball, by
reason of any future de mise of the Crown, be vacated, 01'
become void, until the expiration of 18 calendar months
next after any such demise of the Crown as aforesaid."


By tbe Q W m. 4, C. 26, reciting the 54 Geo. 3, C. 184,
the 59 Geo. 3, c. 67, the 1 Geo. 4, C. 65, and the 1 & 2
Geo. 4, c. Hn, (relating to the auditing of colonial ac-
counts of Ceylon, Mauritius, Malta, Trinidad, and the
settlements at the Cape of Good Hope,) it is stated
tbat three commissione1's had been appointed under the
authority of those statutes, and that accounts were
tben 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 sqpts granted in aid thereof, should be examined
by the commissioneni for auditing the public accounts of
Great Britain j" in pursuance of which it is enacted,
tbat afte1' the 5th of April, 1833, the audit of aH ac-
counts of the 1'eceipt and expenditure of colonial reve-
nues shall be transferred to the commissioners for
auditing the public accounts of Great Britain.


And by seco 3 it is declared, that aH superannuation
or retired allowances granted by tbe 54 Geo. 3, C. 184,
shall continue to be paid out of tbe respective revenues




COLONIAL LAW.


of the colonies of Ceylon, Mauritius, Malta, Trinidad ,
and the Cape of Good Hope, in such manner as the
commissioners of the treasury may directo


The ~ & 3 Wm. 4, c. 51, (an act to regulate the prac-
tic e and fees of the Vice-Admiralty Courts abroad,) au-
thorizes the King in Council to make regulations and
establish fees in the Vice-Admiralty Courts abroad,
which regulations and the tables of fees are to be
enrolled in the public books 01' records of those Courts.


By sec. ~ the tabJe of fees are to be laid before the
House of Commons within three calendar months after
the establishment 01' alteration thereof.


By seco 4 such fees are to be the only lawful fees
of the judges, officers, ministers, and practitioners of
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 to any per-
son who shall fee! 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 coHision, 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 locallimits of such COUl't.


The ~ & 3 W. 4, C. 78, (an act to continue certain


(6) By 3 & ,t Wm. 4, c. 51, s. 2,
" al! appeals or application! in all
suits or proceedings in the Courts
of Admiralty or Vice-Admiralty
abroad which may now Ly auy


law, statute, commission, or usage
be made to the High Conrt of
Admiralty in England shal!, after
1 June, 1833, be made to Bis Ma-
jcsty in Council."


79




80 A SUMMARY OF
acts relating to the island of N ewfoundland, 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 t11e 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 6t to 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 01'
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 therc.


The 3 Wm. 4, c. 14, (relating to savings banks,) is ex-
tended (s.35) to Guernsey, Jersey, and the Isle of Man.


The act ~'Vm. 4, c. 15, by which the property of au-
thors in their dramatic productions is for the 6rst time
secured to them, extends to all the Colonies. The first
section gives to the author the sole right of causing his
pie ce " to be represented at any place 01' pIaces of dra-
matic entertainment whatsoeverin anypart oftha United
Kingdom, or the Isle of Man, Guernsey and Jersey, 01'
in 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, 01' of tbe British <lomí-
niOl'ls, in which the offence shall be committed."


The 3 & 1, \Vm. 4, c. 49, recites, "Whereas it is ex~
pediellt amI reasonable that the solemn affirmation of
persons of the persuasion of the people called Quakers
and of Moravians sbould be allowed in all cases wltere
an oatk is "equired;" it thel'efol'e enacts that "evel'Y
person of the persuasion of the people called Quakel's,
and every Moravian, be pel'mitted to make his ol' her
solemn affirmation 01' declaration instead of taking an
oath, in all places and for aH purg~es whatsoever
where an oath is or shaH be required either by the
common Iaw 01' by any act of Parliament all'eady made
or hereafter to be made, which said affirmation Or
declaration shaIl be of the same force and effect as if
he 01' 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 Prom the
very comprehensive terms employed in it, the rule as to
statutes of universal application (7) must be deemed to
opcrate upon it, amI to give it effect in all the Britisb
dominions. The 3 & 1· Wm. 4, c. 82, is a similar act
relating to "Separatists."


81


IV. 'Ve bave now arl'Íved at the fourth and last head Points of law
f k · . II . f E l' h connected with o remar , VlZ. SOme mlsce aneous pomts o ng IS the colonies.


law upon matters relating to the colonies.
First, with respect to tbe trial in England of crimes


committed in tbe colonies, it is a general principIe of
the English law that crimes are local, from wbicb it
foHows that those committed in the colonies 01' else-
where out of the realm cannot be tried in any Englisb
court of justice ; (8) hut by the 11 & 12 Wm. 3, c. 12, it


(7) See ante, p. 8, loS, 1G.
(8) Rex v. MIlI/IOII, 1 Esp. 62,


before the passiDg of the 42 Geo


3, c. 82, cited in Rcx v. Johnson,
6 East, 590.


G




82 A SUMMARY OF
is pl'ovided that if any governor, lieutenant-governor,
deputy-govel'nor, '01' commander-in-chief of any plan-
tatíon '01' colony within His Majesty's dO!l1inions beyond
the seas sban be guilty 'Of oppl'essing any 'Of His Ma-
jesty's subjeets beyond the seas, within theil' respective
g'Overnments 01' c'Ommands, 01' shan be guilty of ill1y
'Othe1' erime '01' offence contrary t'O the laws 'Of this
l"ealm, 01' in force within thei1' respective governmmts
01' commands) súch oppressions, cl'Ímes and oflimces
shaU be tried in the Court oi' King's Bench in England,
'01' before such commissioners and in sueh county of .
the l'ealm as shan be assigned by His Majesty's com-
mission¡ and that the same punishments shaIl be in-
flieted as are ltsually inflíeted fol' cl'imes 'Of the like
l1attll'e when committed in England. And by a sub-
sequent statute, 42 Geo. 3, c. 85, it is enacted that any
person holding a pubHc station, offiee, 01' employmeilt
'Out of Great Brítain, and guilty of ány offenee in the
exet'cise of his public funetions, may be tried in the
King's Bench, eithet' 'On un information exhibited by
the Att'Orl1ey-General; 01' an indietment found; and an
pers'Ona so ofrending and tried tmder tbis aet 01' the
statute of William, shall reeeive the same punishment
as is inflieted on similar offenees eommitted in England,
and are also liable, at the discretion of the Court, t'O he
adjudged incapable of sei'ving His Majesty 01' holding /
Ilny Pllblie employment. (9)


There al'e also several statutes by whieh the parti-
cular crimes of treason, murder, am1 ntanslaughter
committed out of the realm by any persons, at'e made
triable within the realm of England. (1)
--------~I'r'------------------ __________ __


(9) 8 East, 31; and as to India
see the East India EiIl,l3 Geo, 3, c.
63, s, 39; 24 Geo. 3, c. 25, s. 64,
el seq.


(1) 28 Hen. 8, c. 15; 33 Hen.
8, c. 23; 35 Hen. 8, c. 2 ; 11 & 12
Wm.3, c. 7; 11 Geo, 1, e, 29.s.
7; 39 Geo, 3, e, 37; 43 Geo. 3,




11
.,


COLONIAL LAW.


'Vith l'espect to trespasses und othe/' itditt'ies lb 1wi!
propet'ty; these also are local by oür law, so that it is
said that no action can be maintained in this countl'y
fOl' an injury to real propel'ty out of the kingdom, as
for instance, fol' entering a house in Canada. (2) A


c, 113, s, 6, And see two opinions
that 28 Hen, 8, c. 15, extenus to co-
lonies established befare Ihe att was
passe,l, 1 Chal. Op. 199, and 2


• Chal. Op. 220, but see also 2 Chal.
Op. 202; 203.


(2) Ch¡Uy on Commeree, vol. 1,
p. 648. 'fhe contrary ¡'Vas slated
by Lord l\Jansfidd in IJrostyn v.
fi'ab";gas, Cowp. 176-180; but


that part of that case was expressly
overruled in DOIl/sol! v. JjJatthcws,
4 'ferm Rep. 503, where the judges
intimated that the anlhority of de-
cided cases was too strong to allow
them to adopt lhe opinion of Lord
l\lansfield.


The doctrine somewhat summa-
rily declared in this hitter case, ceJ'-
tainly without much argument or
consideration, has ever since been
the admitted rllle of pleading, and
is still recognized as such. (Storhen
on Pleading, 2d edito 338, and
ChiUy on Pleading', vol. 1, 5th
edito p. 299.) Yet it would be
diffici1lt to find a jttstification for it
in principie, and even the aulhorities
can hardly be said fuUy to bear it
out. Mr. F; Polluck, in the course
of an argument on the case of Oar-
land v. Carlile, iii the Exchequer
Chamber, 17th June 1833, said
that their lordships were wcll aware
how law was sometimes made; first,
there was sorne dictum in a nisi
prius case; then unother nisi prius
case foJloweel that : frolll the poverty


of the parties, the smallness of the
sum in dispute; or from sorne other
cause, neither of them became aftet-
wards tbe subject of a motion in
cour!, and therefore it was taken
for granted that they were acquiesced
in; a case subsequently occtirred
in Banc, and the judges, witboút
further inquiry, thought themselves
bound by tliese t\Vo recent decisioris
whicll had not been questioned, and
tbus a hasty ruling at nisi prius be-
carne at once the law of the land.
This happy expdsition of the malter
scems to be well illnstráted by the
case of Doulsbn v. Jt[atthews. An
action was braught against a person
for a tres pass commitled by hitri in
the plaintiff's house in Canada,
both parties being at the time of the
action in litis country. Lord Kenyon
nonsuited the plaintiff on the ground
that the action \Vas local A motion
was macle to set aside the tionsuit,
and the elaborate, able, and con-
~incing judgment of Lord Mans-
field in Mostyn V. Fabrigas (Cowp.
l80) was cited to show thát u;lI:1er
Ihe particlular circumstances of that
case the rule as to locality of action
did mit hold. The answer bf Lord
Kenyon is simply, "The contrary
had been held in a case in the Com-
mon Pleas that where lhe action is
on the realty it is Ibcal," anel thus a
jüdgment delivered by Lord Mans-
neld, witb the concun:ence of the
other jutlges, (Astan, 'Villes and
G~


83




84 A SUMMARY OF
bill in equity for the uelivery in possession of lands in
the colonies may be maintained; for though lanas in


Ashhurst,) and pronounced, after
two arguments, described as ex·
tremely able, and after time taken to
consider, was uncercmoniously overo
ruled. The" case in the Common
PIeas" is not quoted in the report
of D'JUlson v. Matthews, but it was
probably tha! of Shelling v. Farmer,
1 S!range, 646, thus reported ,-
" In an action of trespass and im·
prisonment for facts done in the
East 1 ne!ies, the plaintiff laie! them
all (being transitory") in London,
and inte,' alía declared for seizing
the plaintiff's house, situate apud
London praed' in pal'oc/¡ia et warda
praed'. It was objected P"o .11'.
Ihat the trespass as to the house was
local, and they could not give evi-
dence as to seizing a honse in the
East Indies. And J<:yrc, C. J., re-
fusee! lo let the plaintiff give evi-
dence as lo the house, comparing it
lo the case of rent for a house at
Barbae!oes, whcre it has been held
"you muy bring covenunt for the
rent in England, but an uction of
debt, which is local, t cannot be
brought here." To say nothing of
Ihe very inferior importance of a
nisi prius decision Ihus hastily made
when compared with the well con-
sidered j udgment of four such judges
as decided the case of lI'Iostyn v.
FaliJ';gas, it is not a liule singular
that though Shellillg v. Farme,. had
been antecedently determined, it


W3S not even quoted in this case by
the very learned counsel who argued
on hehalf of Mr. Mostyn, one of
whom (Mr. Buller) afterwards as-
sistee! in deciding tbe case of DOl/I-
son v. lI'Iatthews, and who cannot
be supposee! to have omitted it for
any otber reason than because the


..gpinion of Westminster Hall had
j ustly eondemned it as bad in itself,
or mosl incorrectly reported. Per-
haps both these objections might
with pmpriely be nrged against it.
The truth secms to be that the ah-
sence 01' Ihe presence of a videlicel
has had much lo do in deciding
questions of demurrer raised upon
the point of the locality of the venue.
See Robert v. Harnage, 2 J.ord
Raym. 1043; S. C. Salk. 659 ; and
6 .Mod. 228, where in an action
brought on a boud really made at
Fort Sto David, iú the East Indies,
the declaration staled it lo have ueen
made "al London, &c." Per Lord
Holt, "you should have said at
Forl Sto David, &c., lo wit, at,fon-
don." Seo also 2 East, 497; 6
East, 599 ; 11 Easl, 226 ; 5 Taunt.
789. lt is very probable Ihat the
real objection in Shelling V. Farme¡'
was that the count described the
house to be al London instead of
alleging it to be in the East Indies,
to wit, at London.


Mr. Serjt. WiIliams and the slIuse.
quent learned editors of Saunders'


" This parenthesis is, as was common with him, a note of the reportero
t Yet debt lies for use and occupation in ally county, Kilig V. Frasel',


6 East, 348; Egle¡' V. llIal'sden, 5 Taunt. 25, and 1 Wm. Saund. 74 (2), and
Ihe cases the[e cited.




COLONIAL LAW.


the plantations are not under the jurisdiction of the
COUl't of Chancery, yet if the parties are in this country,


Rep. seem inclined to t!link Ihat the
stat. 6 R. 2, c. 2, is still in strictness
applicable to a variety of cases, to
which nevertheless it is in faet never
applied,l W ms. Saund. '74, (2) amI
(h). In th~.latter of these notes the
case of a declaration on a bail- bond,
(Gregso1& v. IIeath, 2 Lord Raym.
1155, alsoreported in Strange, 727,)


• is menlioned, and thejudgment there
was that the venlle was not local. It
is true thal that jlldgmcnt is doubted
in the !lOte, and the reasons given
are stated not to be salisfactory.
Still, however, that case has not
yet been overturncd, although ir
[here be one instance stronger than
another in favour of the necessity of
adhering to [he rule of locality in
matters of renuc, il must be in a
case where lhe duty to be performed,
or the obligation to be contracted,
can only occur in a particular
county; and such is the fae! with
an anest and the taking of a bail-
bond, which things can be transacted
nowherc but in the particular cOllnty
where the warrant is i"sued and the
officer is appointed. The chief
reason for requiring locality in ve-
nues is thu, stated in Mostyn v.
FlIh,.igas, (Cowp. 176) :-" There
is a formal and subslantial distinc-
LÍon as lo the locality of trials. The
substantial distinction is where the
proceeding is ¡" reln, and where the
cffect of the judgment can no! be
had ir it is luid in a wrong place.
That is the case of a\1 ejectments
where possession is to be be delivered
by the sheriff of the county; and as
trials in England are in particular
counties, and the olicers are county


officers, the j lldgment could not
have effect.if the actioll was not bid
in the proper county." Lord
:r\Iansfield goes on to say, " lf an
actíon were brought relative to an
estate in a foreign country, where
¡he question was a malter of title
only, and not of damages, tite re
might be a solid clistinctioll of 10-
cality." It has probably been for
want of attendillg to the distinclion
laid clown in this sentence either
tbal Voulson v. l\["lthews has been
wrongly decided Or reported, or Ihat
[he books which have since cited
thal case have applied ils rloclIine
to poinls to which it was never in-
tended to refer. The loo se manner
in which it is reported may have
occasioned this error. The state-
ment of the case shows thal the
action was fOT something more than
damages; it was for entering the
plaintiff's houso, and "e'pelJing
him." The last term wOuld soem
to indicate thal a question of ¡he
right of po~session ",as sOlJght to
be uecided by the aetion ; and Lord
Kenyon's obsel'vation, "that the
cause 01' action stated in (he 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 01'
the right of possession. The sub-
sequell-t part of the case would lead
to Ihe same conc\usioIl; and the
Jirst senlence 01' 1\1r. J ustice Buller's
judgment cerlainly would not de-
stroy such an inference. It is this :
.. It is no\V too hte for tlS to in-
quirc whether it \Vere wise Ol" politic
lo make a distillctiol) between tran-


85




86 A SUMMARY OF
that court, acting in pe1'sonam, will enforcc the de-
livery, (see the cases cited in n. 3, p. 89.)


sitory and local actions; it is suffi-
cient for tbe Comt tbat tbe law has
setlled tbe distinction." Then fol-
lows the single phrase, Iha! ha_ by
its generali!y oeeasioned the appli-
cation of the rule laid down in this
case to others to which it is con-
ceived never lo ha.-e been mean! to
apply, "and Iha! an action quare
clansum frcgit is local." lIad the
worcts "where tbe title is brought
into di'pute" concluded the ,en-
tence, the judgmenl would !1ave
been more consonant to the good
sense of pleading and lo the maxims
of justice, and would have ~tood in
accordancc with, and not in oppo-
sition to, the beller considered juog-
men! in JlJosty" v. Fabrigas. For
aught that appears these words
might have been accidentally omittcd
by the reporter ; and perbaps if any
case of sufficient importan ce to jus-
tify the bringing of DouL,on v.
lilatthews under reV1CW should
arisc, sneh migbt be the j uogmcnt
of the judges. But should the
Courts tbink themselves bound by
the interpretation hitherto put upon
that case, the subjeet is one deserv-
ing the a!tention of the legislature,
and loudly calling for their inter-
ferenee. In the even! of the pass-
ing of a bill now pending in par-
liament, tbe objeet of which is lo
empower the judges to alter t]le
rules of pleading, their lordships
\ViII eonstitute for the special pur-
poses of tbat particu lar ae! a lcgis·
lative body, and will then most
probably aoopt the opinions and
carry into effect the suggestions of
the eommon law commissioners,


who, in spcaking on this sUbJect,
(3d Rep. p. 14,) have .aid, with
regara to the eonsequenees of a mis-
take of venue iu a local aelion,
"Sound principIe, however, 8eems
to dictate that a mistake of tbis de-
seription sbould not ex pose the
plainti/f to failure." Confining
tbis view to the law of this eountry,
and its operation here, the learned
commissioners have reeommended
that "a11 aelions fOf fhe rccovery
of the realty, alld all aetions fOf in-
jury lo fe al propcrty, whether in
trespass or frespass on the case
sbonld be local," and have a.signed
as a rcason .. beeause the strong
prcsumption is that a1\ the witnesses,
o,· tbe greater parl of them, reside
in the county w here fhe trespass
was committed." Where, however,
tbis reason of convenience does not
exist, or where a great and para-
mount object is to .he secmed by
the lemporary disregard of il, the
rule tbus to be laio down should be
subject to an exception, " for other-
wise," in the words of Lord l\Ians-
field, " there would be a failure of
jnstice, and tberefore Ibe reasan of
locality in su eh an aetÍon should
not holcl."


Tite nature of the judgment in
(respass alfords on additional ar-
gument against the authority of tbe
decision in Doulson v. lI'Iat!hcU's ••
The juogmcnt is only for damages,
and Ihere is no reason therefore in
tite form of tbe postea for confining
a man in seeking his remedy against
a wTOng-docr to tite very place in
wbicb ¡he wrong \Vas done. Lord
M ansfield mentioLls a case in whieh




COLONIAL LAW.


A bill to account fol' the rertts of lands in the colonies


ail ollicer under the command of
his superior pulled down the houscs
of sorne suttlers in one of our colo-
nies. The officer did that which
perhaps the circumstances of the case
would justify, for these ha uses hau
be en frequented by the sailors to
such an extent ¡hut their own heallh
and the discipline of their vessels
had becn alfecteu by it. One of
thesesuttlers, after being in England,
brought an action against the ollicer,
who also happencu to be in this
country. ],ol'd 1\1 ullsfieJd says,
" One of the couuls was for pulling
do\Vn the houses. The objection
\Vas taken lo that coun!. and the
case of Ski.lller v. 'l'he East IlIdia
Company," (where the judges held
that they could not give relief helc
against the wl'ongful passession of
houses in India,) "was ciled in
suppurt of the objeetion, On the
other side they produced from a
maouseript note a case befo re Lord
Chief J ustice Eyre, wbere he over-
ruled the objection;· aod 1 over-
ruled the objection upon this prin-
cipie, that the rcparatioll here was
personal, and for damages, and that
otherwise there would be a faiJure
of jnslice, for it was upon the coast
of N ova Seo tia , where there were
no regular courls of j ndicature, but
if there bad heen, Captain Gambier
mightnever go there again,and there-


fore the reason of locality in s\leh an
aetion did not hold." It is aeu-
rions anomaly in our j udicature that
while Courts of Common ¡'aw have
thus held themselves prevented ]:>y
a lOere form froPl eQlertainipg ae-
tions fOl' trespasses O!l real proPerty
where the title was !lol iu qqestion,
Lut only personal damages were
sought to be recovereu, Courts of
Equity have made this same persoQal
responsibility lhe means of enfol'cing
contracto relating to land in th~
colonies, and even of pulting parties
into possession of the land itself.


'1'0 a bill for possession of la neis
in St. Christopher's, defendaul de-
murrel\ to the j urisdiction, Lord Hard-
wicke, Chancellor.-" 'Ihis Court
has no jurisdietion to put persons
iuto possession iu a place where
they have their olVn methods on
sueh oecasions, to whjch the parly
may have recourse. Lallds jn ihe
plantations are no more uQder the
j urisdiction of this Court tban ¡ands
in Scotland, for it only agi¡ in pel'-
SOlla m , The delivery in possession
may be enforced in persono There
have been instances of plaotatioll
eslates beillg sold in this Court, al1d
consequently this Court must have
a power of enfo,cing a decree fol' a
sale upon the person ordered to con-
vey." Robel'dean v.Rous, 1 Atk.544 ;
S. C. Rep. 'remp. Hardw. 565;


• Lord C . .T. Eyre decided Shelling V. Farmcl'. It is therefore lo be
regretted tha! Lord Mallsfield did Bot more fully quote this case j for tben,
a, I.ord C. J_ Eyre wouJd be proved lo have ruled t\Vo d¡lfereot ways, it
might have been discovered thal (he apparent conlradiction arose from the
form of the ueclalatiun, Tile omis,ion of the ódelicet in Shellillg V. Furma
was most pl'obably the poinl on whieh hi, lurJship's judgment was given.
bul thc repol't is lamentably defective.




88 A SUMMAll,Y 01'
rnay be supported. And a court of equity III England


and S. P. Foster v. Vas,,,l, 3 Atk.
589. This case was afterwards ex-
pressly recognized by Lord Arden,
1\1. R., in Lord C"anstrrwn y. Jo/tu-
ston, 3 Ves. JUD. 182. The prin-
cipIe laid down in it was admitted
in argument in White V. Hall, 12
Ves. jun. 321, aud agserted in judg.
ment bolh by Leach, Vice·Chan-
cellor, in Bushby v. 1I1'l1nday, 5
J\Iadd. 307, and Becl1orclv. Kemble,
1 Sim. & Stu. 7, and by Lord Eldon,
Chancellor, in Ha""ison Y. Gun.ey,
2 J ae. & W. 563. It had been
acted upon by Lord ChaneeJlor
Hardwicke in the celebrated case
of Pe,,,, V. Lord BaltimO¡'e, ~ Ves.
444, where an agreement made in
England touching lhe boundaries of
two British provinces in America,
was decreed to be executed in pcr-
~"01¡am, though it could not be en-
forced in rem, and his lordsllip used
the expre3sion that " an agreement
being founded on articles executed
in EngIand under seal for mutual
consideration would give jurisdic-
lion to the King's Courta, bOlh of
law and equity, whalever might be
the subject-matter." The autho-
rity of the Court was also asserted
by that noLle and lcarned lord in
A"b'"s y, Angus, Rep. Temp. I-Iard.,
(edit. 1827,) p. 23. Tllat was the
case of a bill for possession of lands
in Scotland. A plea lo ¡he ju-
risdiction \Vas 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 biJI if the
IaDds had been in Fr;¡nce, provided
Ihat the persons were residenl he re,
fOf the jurisdiction of this Court is


u pon the cODscieDce of the party."
The " eonseience of lhe party" is
acled upon, as lhe Vice.ChaDccllor
Leach dec!ared in BusMy Y. 1\1 un-
day, "by constraint of his person,
in punishment for the contempt in
disobediencc of the order of the
Court." The autltority of the
Comts of Common Law can be Cn-
forced in a very similar and at least
eq ua1ly eflicient manner. If lhere-
fore Courts of Equily can justly
claim by sneh means lo put parties
into possession of ¡ands abroad,
though those lands should be in
France, where English~ laws can
by no possibility have any force, a
fortiuri, ought the courts of Common
Law to entertain an action where
the object in view is nol the pos-
session of lands in a foreign and
independent state, nor cven in the
colonies of lhe British empire, bul
the mere recovery of damages from
a defendnnt resident here, over
whom they possess the double power
of vindicating their anthority Ly
seizure of his goods and constraint
of his persono '1'0 avoid by a mere
point of form, upon a case of any
questionable authority, the exercise
of litis their well foundedjurisdiction,
is lo create "a failure of justicc,"
which it cannot be for a momen! sup-
posed they shouId d~sire to witness,


The biU aboye referred lo, as pend-
ing in Parliament, has passed iulo
a law. The judgcs have now hy
the 3 & 4 Wm. 4, C. 42, the un-
questioned power of remcdying Ihe
ovil of a failure of justice, to which
it has Leen thé object of this note
humbly to caJl their allantion.


The recommendations of the Com-




COLONIAL LAW.
may enforce the specific performance of a contract 1'e-
lating to such lands. (3) But where the qucstion upon
the construction of the contract fol' a secmity hy way of
mortgage had been before a conrt of competent juris-
diction in the colony, and a fo1'cclosure and sale directed,
and certain allegations of fraud were merely general,
and denied, an injunction was refused in the Comt of
Chancel'y in England, on the ground of want of juris-
diction, (lt) The motian for the injunction there, was,
in effect, an appeal from a cou1't of competent jurisdic-
tion in the colon y (Demerara) to the Chancery here,
and no such appeaI wouId lie, Sir S, RomilIy (Solici-
tor-Gencral) and 1\:[¡-, BelI, in arguing against the in-
junction, said, " It is not contended that this comt has
not jurisdiction over contracts relating to possessions in
the colonies of this country, hut it does not hold in this
particular case, a COUl't of competent juriscliction having
aIl'eady clecided,"


As to personal injuries and bl'eaches of contract,
they al'e tl'ansitol'y in theil' natme, and fol' these,
though they take place ahroad, actions may be main-


IIllSSlOners with respect to the con·
sequenccs of a wrong venuc in local
actions have been carried into elfect
(s, 22) by giving to the Court the
powcr of directing local actions to
be tried in any county. The seetian
givcs that power only in the c¡\se of
"anyaction depending in any of the
said superior eourts ;" and as the
Courts h'lve ,inee the period when
Dv,d,o" v. JIJott"ew, w~s deeided
aeted Oll the authority of that case,
and refused to entertain actions for
damages fol' lrespasses to re~1 pro-
perty abroad, and as "actions de-


pendillg" must mean actions pro-
perly depending, it would seem Ihat
the difficulty as lo these particular
actions bas uo! been removed by
the statute. On the discretion of
the judges alone Ihe colonists musl
therefore rely for :1 remedy lo tbe
evil.


(3) Il"be,.dean v. ROl/S, 1 Alk.
544; S. P. F"stet v. Vassal, 3 Atk.
589 ; Penll v. LOI'd Hu/timore, 1 V cs.
411; lV}'ite v. Hall, 12 Ves. 321;
lae"'o" v. Pet,.;e, 10 Ves. 165.


(4) IVhite v. Holl, 12 Ves. 321.


89




90 A SUMMARY OF
tained in the courts of this country. (5) And it is said
that the eourt of King's Beneh has jurisdiction to send
a habeas corpus to the plantations. (6)


With respeet to the construction of eontraets made
in the colonies, it is to be observed that contl'aets made
abroad are expounded and have effect in England
aceording to the law ofthe country wherethey are made,
though the English law might affect them differently.
Therefol'e, if a cel'tain stamp be required by the law of
the colon y whcre the contraet was made, though not
required in England, the contraet, unless it has been
stamped according to the law of the colony, cannot be
enforced in England. (7) AmI if by tbe eoloniallaw
a chose in action is in any case assignable, the 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 ealculated accord-
ing to the law of the eolony where it was contl'acteu,
though sued fol' in England, whel'e the rate is different ;
and in a CO)1rt of equity the debtol' is allowed the mte
01 excltange of tbe countt·y where the debt was con-
tracted. (9) In an action on a bill oI' exchange dl'awn
in BewlUda on a person in England, and also payable


(5) Mostynv.F"brigas, Cowp. 161,
16~; 2 Sil' W.l3lack. 9~9, S. c.; 11
I1arg. State 1'¡-iab, S. C.; Cooke v.
Mu"well. 2 8tark. 183; Wey v.
Yally, 6 Mod. 1~5; .Lord Bdl,,-
mOl/t's Cllse, 2 Salk. 625, Scc 42
Gcq. 3, c. 8.J, s. 6.


(6) ReJ' v. COIVlr, '.l Burr, 8i>6 ;
Stokc,' Law of Coh)J]i,'s, 5, 6,


(7) Alvesv,Hodsoll,7 T. l{.~41;


2 Esp. Rep. 5~S; Clegg v. Levy, 3
Campo 167 ; ehitt.)' onBills, 74, 75,
5th edito


(S) ¡""es V. Danto]', 8 T. R. [;95;
O'Catlaó~n v. l\Iul'chion~slj o! 1'11.0-
mond, :3 Taunt. S2.


(9) Lord lJt"'gannon v. Hackett,
citcd La"e \'. Nichol., 1 Eq. Abr.
289, PI. 1; 2 BridglUall's Ind. S8.




COLONIAL LAw.


in England, the plaintiff recovered 7 k per cent. in~
terest, heing the rate of interest at Bermuda. (1)


With respect to the Statute of Usury, as applicahle
to the colonies, a douht was entertained whether the
statute of 12 Ann. st. Q, C. 16, which redllced the l'ate
of interest to 5 per cent., díd not extend to money lent
on lands in heland 01' the Plantations, when. the
mQrtgage was executed in Great Bl'itain; hut the stat.
14 Geo. 3, C. 79, declares an such securíties made pre-
víously to that act, to he valíd, notwithstanding the 1~
Ann, whe¡'e the interest is not more than tIJe estahlished
rate of the particular place, and that aH futme securities
of the like kind shall also he valid where the interest is
not more than 6 per cent. (Q) and the money lent
is not known at the time to exceed the value of the
property pledged. Howevel', it has been held that the
stat. 14 Geo. 3, is an enabling aet, extending only to
particular cases, amI it does not extend 'CQ such bonds
as are mere pm'sonal contracts, hut only protects mOl't-
gages and other securities l'especting lands in heland
01' thc Plantations~ (3) "Vhere a debt was contl'acted
in England, but the bond was taken fol' it in Ireland,
to be paid at a cCl'tain time and at 7 per cent., it was
held by the Court of Chancery in Englanu that it
should carry Irish interest; (4) but a different


(1) Dongan v. Bunks, Chitty on
Bilis, .'140, 5th edito


(e) Steel V. Sowel'by, 6 'ro R.
171, 172, anclllote.


(8) Dewul' v. Span, 8'1'. R. 42.~.
(4) CO!l1w' v. Lord Bel/amont,


2 Atk. 332; l'ree. Cbane. 128; 1 P.
Wms. S95, 896; 2 Atk. 465. Tbc
principie la id down by (llese cases,
that tite place whcIc the ÍlIstrument


is made .hould gi.c ~he rule as to the
amollnt of ill(erest secured by that
instrument, has been recognised by
the COllrt of Killg's Belleh in Keal'1ley
V. Killg, 2 n. & A. 801, "lid Sl'rowle
v. Legge, 1 B. & C. 16, "here bilis
dl'awn in Ircland for so lllally pOUllUS
"sterling," being made the subject
of actions in Englalld, the partics
,,"ere hcld boulld to statc in the de-


91




92 A SUMMARY OF
doctrine was held when the bond, contl'act, 01' mort-
gage was executed in England, in which case only
5 per cent. interest is allowed, independently of
the . statute ,14, Geo. 3. (5) So that it seems that only
5 per cent. interest can now be reserved on secu-
rities executed in England, and not made on land in
Ireland 01' the Plantations. In case a bond 01' othel'
debt contracted in Jamaica be made payable in Lon-
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 01' fOl'eign judgmellt,
an action may be maintained in England on a judg-
ment obtained in a comt of law Ol' equity in the colo-
nics, 01' elsewhel'e, out of the l'ealm; hut such judgment
is considered here only as a simple contl'act debt, for
which assumpsit is maintainable. It is therefore not
conclusively binding as an English judgmcnt would
be, (7) but the defendant is at liberty to show that the


c1aration something to show that
H pOllIlds I .. ish " were lIlCHnt. Bay-
ley on Bilis, 5th cd. 389, 390.


(,'J) Phipl's \'. L,rrd A nglesea, 1
P. WIIIS. 696; Stapleton v. Con-
tu"Y, 3 Atk, 727; 1 Ves. '1'27, "nd
Dewa>' v. Span, 3 T. R. 425,


( 6) Cash v. Kennion, 11 V cs.
:314.


(7) The reawn is thus ,tated by
LOl'd Chief Justice Ej"'e (2 H. IlI.
410) in ajudgmcnt gÍl'en in the E"
chequer Chamber, ill the case of
l'hilips v. HUllter," It is in une way
only that the s,'ntence or judgment
of a eourt is examinable in our
COII .. t" an,] thal is, where the party
",hu c1aims the bencot of it "pplies
to our eourt, to enforee il. Whcn
it is thus volulltarily submÍlted to


Dur jurisdiction, \Ve treat it 110t as
obligatur:, to the extellt to which it
,,"ould be obligatory, perhaps, ill the
coulltry in which it ~as pl'onoul1ccd,
nor as uLligator)' tu t}¡c extellt to
whieh by 011" la .. sentenees are ob-
¡igatory, nul' as cunclusi\'c, but as
matter in pais, as considcratioL1 }Jl'imú
jade sufficient to l'aisc a promise;
\Ve examine it as \Ve ,lo all uther
considerations or pl'omh:es, and fUI'
that purpose we reecive evidellce uf
\Vhal the law of the forcign stale i"
"lid whelhel' the jlldgmcnt is \Var-
ranted by Ihat lalv. In all othe,'
cases ",e give entire faith "lid eredit
to the scntcnces of foreigll court!'!,
ano consider thcll1 a~ cL1uclusirc
upon us." AlwtllcJ' n:tiSUIl fol' the
di,tinetion [Irobably is, tha! lhe




COLONIAL LAW.


decision ought to have be en otherwise, and he should
not take issue upon it by a pIea nuI tiel record, hut hy a
pIea to the country. (8) If it do not appear by the tran-
sCl'ipt of the proceedings in the colony, that the party
against whom the judgment wasobtained was at one time
01' other resident there, 01' suhject to the jurisdiction of
the colonial court, but onIy 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 bonnd by the judgment of a conrt
if he was never within its jurisdiction. (9) But an
action may be maintained here on a foreign judgment
obtained by default, which sta tes that defendant ap-
peared by attorney, without proving that the attorney
mentíoned had authority to appeal', 01' that the defend-
ant was living withín the jurisdiction of the foreígn
court. (1) Though, in general, a defendant sued in
England upon a foreign judgment, is at liberty to show
that it was erroneous, yet where an action was brought
here upon a covenant ente red into by the defendant to
illdemnify the plaintifffrom all debts due fmm a partner-
ship in which he had been engaged with the defendant,
and from aU suits instituted in consequencc of the


jllcges a,'c sUl'poseu to know the
lal\' on which the jlldgments of any
Iribunals in this coun!ry are found-
rd, and can al once decide IV hethe,'
slIchjnrlgments al'e warranled by the
Iaw; \Vherens fureign triLulluls and
COllrt, in our colonies bcing called 1m
lo administer laws more 01' less dif-
fe,'cnt fro," onr O\l'n, the judges here
require information beforc tlwy can
anire at any conclllsion 011 tIJe
suLjcct,


(8) lValke" v, Witter, Doug, 1,


and Cases there cited in notes; l'IJes-
sinv. LOl'dllíassareene, 4 T, R.493;
Sudla v, RoIJ;"s, 1 Camp. 253;
O'Callagan v, lIím'chioness of TIIO-
mond, 3 Taun!, 82, 84.


(9) Buchanan \', ]lllckel', 9 East,
192, 1 Camp, 63; Cavan v. Stel!'art,
1 Stark, 525; Fishe,' v. Lanc, 3
\Vils, 297, 30·1; Cooke v, lIfaXiVeU
2 Stark. 183, •


(1) lIfolollY v, Gibbons, 2 Camp,
50t.


93




94 A SUMMARY OF
páttnership, proof of the proceedings in a Court of
Chancery in Gl'enada, against the late partners, for the
recovery of a partnership debt, in which a decl'ee
passed fol' ,,,ant of an answer, and a sequestration
issned ágainst the lJlaintiff's estate, was held conclusive
against the defendant, who was not allowed to show
that the proceedings were erroneous. (Z) In an actitin
on the judgmerit of a colonial COUl't; it is in general ne-
cessary to prove the handwriting of the judge by whom
it is subscribed, and the authenticity of the sea! affixeu.
Ir tht:n'e is a seal helonging to the court, it should be
tised fo1' the purpose of authenticating its judgments,
and should he established in evidence by a person
acqüáihted with the impression. But ir evidence be
given that the court has no seal, the judgment may he
established by proving the signature of the judge. (B)
A copy of a judgment in the Supreme Court of Jamaica,
made by the chief clerk, cannot be l'eceived in evidence
in a comt of justice in this country, although it appear
that such copies are usually admitted as good proof in
the COUl'ts of .Jamaica. (4) An exemplificatian authen-
ticated by the seal of the comt, i8, howeveí', admissi-
ble. (5)


Whethel' a judgment given in favaur of a defendant
in a colonial conrt is pleadable in bar al' available by
way of defence to a secand uction hroilght on the same
demand in un English court, is a point that appears to
be not cleal'ly settled; but the doctrine aboye stated


(2) Tarleton v; Tal'leton, 4 M. &
S.20.


(3) Henry \'. Adey, 3 Eas!, !!?21 ;
Rurhancm v. Rucha, 1 Campo 63;
Flilidt v. AtkillS, 3 Campo 215;


Alves v. BunbU?'Y, 4· Cainp. 28; Cu-
ran v. Stewart, 1 Stork. :,25.


O) Appleton v. Lord Rmybrook,
anrl Black v. Lord B"aybroolc, Q
Stark. 6 el seq. and 6 J\L & S. 3·1.


(.5) Ibid.




COLONIAL LAW.


with respcct to the inconclusiveness of a colonial judg-
ment, where an action is bl'ought to enforce it in this
country, muy be thought to have a strong bearing on
that question. (6)


Upon the application of the statute of limitations to
colonial transactions, the foliowing case has been de-
cided. An action being brought here fora debt c'on-
tracted in India, it was held sustainable, though mOre
than six years had elapsed since the making of the
contracto The creditor and debtol' wel'e, fol' some time
after the cause of action accl'ued, resident in Calcutta ;
the creditor then retllrned to EngIand,-the debtor re-
mained in India more than six yeal's, and then returned
to EngIand, and the action w~s brought within six
years after his return, The action was heId sustaihabIe
notwithstanding the lapse of time, and notwithstanding
the cil'cUlnstance that the Supreme COllrt at Calcutta,
within the jurisdiction of which the transaction arose,


(6) PIIl1nmer V. IVoodbilrn, 4
Baln, & Cre", 625, and the cases
cited in the ver:; learned argumcut
there. The COlll't, in that iustance,
decidcd thal a pIca in bar sctling
up a foreign judgment fo.' the de-
fendant was bad, inasmuch as it did
not sholV that that judgment was a
final jl1dgment in the pluce IVhcre
it was given, TI.e inference frolll
this wOllld seem to be that, had
the plea shown that judgment to be
a final judgment, so as to bar the
plainliff frolll bringing a fresh Ilclion
in the fureigl1 court in rcspeet of
the sume demand, it would I.ave
becn sllfficient here, The same i",
ference lIIight be drawn from the
case of ],evel ", Hall, Croo Jae. 284,
which is copicel at the end of the


repor! of Plummer ", Woodbu,.,¡, See
also Polte)' v, Brnwll, 5 East, \Vhere
Lord Ellenbo,'ollgh broadly lays
down the doclrine that ""hat is a
discharge of a debt in the countr)'
"here it was eontracted is a dis-
charge of it every where ¡" and af·
terwards says, "if the ballkl'uptcy
~Ild certifica le w¡¡uld have been a
discharge of lhe debt in America, it
must by the comity of the law of
na lÍan s be the same herc." Of
eourse if one legal pl'Oceeding would
have this eiTect, unother of equal
aothority in lhe fo.'eign slale ought
lo he clltilled to the same respect,
Tile dilfercnce in the r€SlIl! in Pltl1n·
mel' v, IVoodlJ/ll'n musttl",rcfore have
m"iscn úoro th'! \Unde \1\ p\euding
lhe jlldgmellt,


95




96 A SUMMARY OF
was held undcr a charter that authorized the court to
exercisc the same jurisdiction in civil cases as is exer-
ciscd by the Court of King's Bench in England at
COl11mon law (7), for that charter did not alter the effect
of the sta tute of limitations as applied in the courts of
justice in this country, and therefore, even assuming
that the provisions of that statute were transferrcd to
India by the tel'ms 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 creditor was not barred
by the lapse of six yeal's after the debt arose, as the
debtor had been resident out of the rcalm. (8)


'Vith respect to the effect of a colonial 01' forcign
certificate in bankruptcy, where an action was brought
in this country on a- bill of exchange given by the
plaintiff to the defendant, in a foreign state, where


(7) The charte!' granted undel'
13 Gco. 3, c. 63, s. 13. Sre lha!
chartel' set fo!'th in subslallce in Wil-
linms v. Jones, 13 East, 440, 441.


(8) Williams v. Jones, 13 East,
439; 21 Jac. 1, c. 16, s. 7; 4 Anu,
e. 16, s. 19.


In Ihe coursc of the argumen! in
this case, LOI'd Ellenborough asked
how the cOUl'1 were lo tal<e judicial
lIolice of any pal'ls of the eharler
no! set out in the pleadings; the
plaintilf's eounsel at fil'st said lhat
as the act 13 Geo. 3, c. ú3, autho-
rized lhe gl'anting of the eharlel',
lhe provisiolls of lhe laller must he
taken to be incorporaled iuto the
nct. The queslion was not decided,
as lhe defendant's eoullsel suid tbal
alJ Ihe parts of Ihe charle" rnaleriai
fol' lhe argumen! were se! out in
the plcadings. There can be little
uoubt lhat if all aet of parliamellt
aulborizes tbe grant of a charler


and directs wba! sball be its pro\'i_
sions, either in a general or particu-
lar l1Ianner, the eourts are bOlllld lo
presume that Ihe King has pl'operly
exercised tl,e powcrs vestcd in him
uy lhe aet, and they might lherdore
refuse lo try illcidelllallywl,ethe,' Ihe
eha,·ter was a goúd eharler undel'
Ihe aet. As the act itself \Vas a
publie act, it must be taken Botiec
of by the courts here, but whether
the charter granted in pursllance of
it must he equally entitled lo judicial
notice, may be a more niee and
difficlllt question. Charlers to cor-
poralions may be granted bJ the
erown under Ihe authority (lf aets 01'
parli.ment, Rcx v. Millel', 6 T. R.
268, and Rex v. Hathol'llc, 5 B. &
C., ·HO, and sueh charte!'s are speci-
alJy pleaded. It would seCIII, ,hel'e-
fure, hy lhe rule of analogy Ihal the
courtcollld not llave taken jlldicial no-
tice of thecharler except as pleaded.




COLONIAL LA W.


both parties were resident, but drawn on a person in
England, and afterwards protested here for non-
acceptance j and the defendant, whiIe he continued to
reside abroad, beca me a bankrupt and obtained his
certificate by the Iaw of that sta te, it was held that such
certificate was a bar to an action on the bill founded 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 EngIand
against the bankrupt by a subject of this country, for a
debt arising here. (1)


With respect to the Evidellce required in our Courts
as lo Colonial transactions, that matter is now provided
for by a recent statute. (52) 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 Iaw, "to all
colonies, isIands, pIantations, 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 01' county soever tlle cause of action
may llave arisen, and whether the same may have arisen
within the jurisdiction of the court, to the judges
whereof the writ 01' commission may be directed, or
elsewhere," Upon the 13 Geo. 3, c. 63, the Court of
Common PIeas held (3) that a mandamus might be
granted to the court in India to examine witnesses OIl
behalf of either a plaintiff or defendant in a civil action.
By s. 4·. the courts at Westminster, Laneaster, and


(9) Patio' v. 13"owll,5 East, 124.
'(1) Smithv. Buchannan, 1 East,6.


SeealsoSidawayl'. Hay,S B. & e.u.


(2) 1 W. 4, c. '22.
(3) G"¡Ua"d \'. llague, 1 Ilrod. &


Bing.519.


H


9




98 A SUMMARY OF
Durham, may order the examination of witnesses withill
their jmisdiction by an officer of the comt, 01' may
order a commission for that purpose out of their juris-
diction, and may give such dil'ections 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 offel'ed,
unless it shall appear to the satisfaction of the judge
tbat the examinant 01' deponent is beyond the jurisdic-
tion of the court, 01' dead, 01' unable, from permanent
sickness, 01' otbel' pel'manent infirmity, to attend the
trial. Tbis sta tute was passed expressly for tbe pul'-
pose of extending to al) the colonies, &c. undel' the
dominion of His lHajesty, tbe provisions of tbe 13 Geo.
3, c. 63, s. 40, which rclated to India alone. (See also
B6 Geo. 3, c. 57, s. 38, post, and the 24 Geo. 3, c. ~5,
s. 88, therein recited.) It has however gone further than
that 01' any other statute on the subject of prosecutions
for perjmy, for it has declared (sec. 7) that if any per-
son examined under the authority of tbat act shall wil-
fulIy and corruptly give any false evidence, every per-
son so offending shall be deemed gnilty of perjury, and
may be indicted in the county wbere such offence was
committed, "01' in the county of lHiddlesex, if tbe
evidence be given out of England." (4)


By 42 Geo. 3, c. 85, passed to facilitate the trial and
punisbment of persons holding public employments who


(4) As to the methods prescr'¡¡Jed provided for by the act l \'Vm. 4,
by di/ferent statutes for obtaining c. 2'2,) see Ti,ld's Pract. 9th edit.
evidellce fl'Om India, see 13 Geo. 3. 810, et scq., and the C:tsc, there
c. 63; and as (o Ihe practice in sueh ciled.
cases and in others, (nuw otherwisc




COl.ONIAl. LA W.


had committeu offences abroad, it lS provided that
when proseeutions are instituted by virtue of the act, it
shall be lawful for the Court of King's Beneh, on
motion, and after sufficient notice, either on behalf of
the proseeutor 01' defendant, to award writs of man-
damus, in its diseretion, to the chief justice or judge
of any eourt of judicature in the county 01' island, 01'
near to the place whel'e the offenee has been eommitted,
01' to any govel'llor, lieutenant-governor, or other per-
son having ehief authority in sueh eountry, 01' to any
other person residing thel'e, as the comt may think
expedient, for the purpose of obtaining and reeeiving
proofs concerning the matters charged in the indiet-
ment 01' information, and after pointing out the mode
in which a court is to be held fol' receiving the proofs
and the examinations taken, and transmitted to England
and delivered into court, the statute proeeeds to enaet,
that sueh depositions being duly taken and returned,
shall be allowed and l'ead, and shall be as good evidence
as if the witnesses had been SWOl'n and examined in
eomt. The Court of King's Beneh may also, on sueh
a proseeution, order an examination of witnesses de
bene on interrogatories, whel'e the vivá voce testimony
of such witnesses eannot be eonveniently had. But as
the M~ Geo. 3 direets that the writs of mandamus thall
be issued in the discretion of the eourt, it has been
holden that a defendant indieted here fol' a misde-
meanor, committed by him in the West Indies in a
publie eapaeity, is not entitled to postpone the trial
till the return of the writs of mandamus, on an affidavit
in the eommon form for putting off a trial on aecount
of the absenee of a material witness; but he must lay
befoI'e the comt sllch speeial grounds by affidavit as
may reasonably induce them to think that the witnesses


HQ


99




100 A SUMMARY OF
sought to be cxamined 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 lZ6 Geo. 3, c. 57, seco 38,
enacts that whenever any bond, 01' othcl' deed, 01' writ-
ing executed in the East Indies, 01' attested by any
person or persons resident there, is offered in evidence
in any court of justice in Great Britain, it sha11 be
sufficient to pro ve by one or more credible witness 01'
witnesses, that the name 01' llames subscribed to such
bond, deed, 01' writing, is the proper handwriting of
the obligor 01' other party, and that the name of the
attesting witness is his handwriting, and tbat tbe wit-
lless is resident in the East Indies. And in like man-
ller, a11 courts of justice in the East Indies are bound
to admit the same proof of the execution of bonds
and other deeds amI writings exccutcd and attcstcd in
Great Britain. And sueh proof shall be deemed as
good evidence of the due execution of the bonds amI
other deeds and writings as if the witnesses were dead.
Since this statute, it bas be en laid down as a general
rule of evidence, not confined to the East Indies, that
when the subscribing witness to a deed, 01' any other
written instrurnent, is absent in a fmeign country, and
consequently is not amenable to the process of oUl·
courts of jUiStice, it is sufficient to prove the witness's
handwriting, (6) although we have secn it is required


(5) nex \', Jont'., 8 East, SI, and Esp. 2; o",,{{h v. Cecil, Selwyn,
Picton's case citcd ibid. S~. .'5 i 6 ; Adam v. Km', 1 Dos. & Pul.


(6) Vide Co0l'eJ' v. M"I'sdO!, 1 S60; Cllrrey v. Chitd, ::; Camp,




COLONIAL LA W.


by the statute that the handwriting of the party to
the instrumcnt should be also proved; and this proof
has becn 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 thc identity of the person cxecuting it, for
the proof of the handwriting of the attesting witness
only establishes that sorne person executed the instru-
ment by the name which it purports to bear, but
does not go to establísh the identity of that persono (7)
However, in a late case, where an action was brought
on a promissory note, and the subscribing \Vitness \Vas
dead, it \Vas held sufficient to prove his handwriting,
and that the defendant was present when the note was
pl'epared, without proving the handwriting of the de-
fendant. (8)


As to Proof of Colonial 01' Foreign Law. - J t sometimes
becomes necessary in our courts to show what is the law
of a colony 01' foreign country,-for example, to show that
a contract made abroad was not valíd according to the
law of the place. In such cases the fOl'eign 01" 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 sorne witness acquaintcd with the
laws of the country in question. (9)


'283; Cnnliffe v. Sifton, I! East, 183 j
Prince v. Blackburn, '2 East, 2.50 ;
Phil. Ev. 4ed. 51:3; 1 Stark. E.id,
34'2; Crosby v. Percy, 1 Taunt. 364,
46~, and Bu,.t V. Walher, 4 B. &A.
697.


(7) Wallis V. Ddallcey, 7 T. R.
266, n.; Nel,o" V. Whitlal, 1 B. &
A. 21; vide Coghlan v. TViUiam-
son, Daug. 93.


(8) Nelson V. Wlút/al, 1 B. & A.
19.


(9) Clegg V. Levy, 3 Campo 166 ;
Mostyn V. Fabrigas, Cowp. 174 j
Collett v. Lord Keith, 2 East, 261 j
Dr>"glus v. Bmwn, 2 Dow. & Cla"k,
171, aud see lnglis v. Usherwood, 1
East, 515, aud Bohtlingk V. Inglis,
3 East, 381.


101




102 A SUMMARY OF
As to Prerogative W1'its,-Though the ordinary Wl'its


of process from the English courts do not of course run
in the colonies, yet prerogative w1'its, such as manda-
mus, prohibition, habeas corpus, and certiorari, may
issue,on a propel' case, to every dominion of the c1'own;
but not to a foreign dominion, and Scotland being
governed by its own law, is in thi8 sense foreign. And
even as to a colony, it being in the discretion of the
courts whether they will issue these writs 01' not, they
would not chuse to exercise that power where the
cause is one in which they cannot p1'operly judge 01'
give the necessal'y relief. Therefore, on imprison-
ments in the pIantations, it has be en more usual to
complain to the King in Council, and petition for an
order to bail 01' discharge, than to appIy to the King's
Bench for an habeas corpus. (1) However, it is clear
that the King's Bench has that jurisdiction, and it i8
expressly noticed and rese1'ved by the Act of Assem-
bIy respectively establishing the Courts of King's
Bench and Common Pleas in St. Christopher and
Nevis. (2)


As to the effect of Assignments in Bankruptcy in
England on Property in tlte Colonies.-In the case of
bankruptcyand a commission issuing against a tl'ader in
this country, aU his personal pl'operty in the plantations
vests in his assignees from the time of the bankruptcy;
and thel'efol'e ir a cl'editol', having notice of a bank-
ruptcy, and all thc parties being resident in England,
and the debt contracted there, avails himself of the
process oftl;c law of England, (as by making affidavit of


(1) l/ex v. Cuwle, I! BU'T, 856; (~) Stokes's Law uf Colonies, 6,
Cm. Joc. 48'1, and thc authoritics tberc citcd.




COLO::-;IAL LAW.


bis debt)toproeeed byattaehment againstthe bankrupt's
effeets in one of the eolonies, 01' even in any independ-
ent sta te, and obtain judgment and exeeutioll, he cannot
retain as against the assígnee the money so levíed. (3)
It should seem, howevel', that a creditor in the fOl'eígn
eountry, obtaining payment ofhis debt, and afterwal'ds
eomíng to this eou:1try, would not be liable to refund
to the assignees bel'e, if the law of that country pl'e-
ferred him to the assignees and was set in motion of
itself and without any aíd from the law of tbis eounh'y
01' the tl'ibunals here. (4) If, on the contrary, the cre-
llitor resided here, and the first step in the case was
the making an affidavit of debt here, to be afterwards
transmitted to the foreign countl'y, (under 5 Geo. 2, c. 7,)
by whieh the p1'Ocess was in faet commenced in this
eountl'y, the creditor would be liable to refund to the
assignees, fol' no creditor, resident in England and sub-
jeet to its laws, shall avail himself of a proeeeding 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 fol' the benefit of an the cre-
ditors. (!5)


On the subjeet of the bankrupt laws, it is neeessary
to mention two important additions to the provisions of
fonner statutcs.-By the act now regulating bank-
rupteies in England, 6 Geo. 4, c. 16, s. 61, it is


(3) JIunter v. Patls, 4 T. R.
182; Sil/s v. WOl'swick, 1 Hen. Bl.
665; Cullcn's Bankrupt Law, 243,
249; Waring v. Kn;ght, Cooke's
Bankrupt Law, 307, et seq. ; eleve
v. Mil/s, ib. 303; Mawdesley v.Parke,
cilcu 2 Hen. m. 680. Bu! see
Philips v. Halller, 2 H. El. 402,
,IIJe!'c C. J. Eyre di;senls from lhis


doctrine, and Brickwood v. lIIitlel',
;:; Mer. 279, where Sir W. Gran!
limits it to cases in which the domi-
cite of the partnership \Vas com-
pletely English, and all its concenJs
wc!'c suhjcct lo English law.


(!) Sil/s v. TVo"wick, 1 Hen. Bl.
693.


(5) luid. 690.


103




104 A SUMMARY OF
enacted that the assignees shall be chosen at the secand
meeting of the creditors, and it ineludes among the
persons entitled to vote at such choice "any person
authorized by letter of attorney from any such creditor,
upon proof of the execution thereof, in case of creditors
residing out of England, by oath before a magistrate
whel'e the party shall be residing, duly attested by a
notal'y public, British minister, 01' consul." By the
64th section of the same sta tute "The commissioners
shall, by deed indented and inrolled in any of Bis Ma-
jcsty's courts of record, convey to the assignees, for the
benefit ofthe creditors, alllands, tenements, and here-
ditaments, except copy 01' customary-hold, in England,
Scotland, Ireland, 01' in any of the dominions, planta-
tions, 01' colonies belonging to His Majesty, to which
any bankrllpt is cntitled, and aH interest to which such
bankrupt is entitled in any of such lands, tenements, 01'
hereditaments, and of which he might according to
the laws of the several countries, dominions, planta-
tions, 01' colonies, have disposed, and all such lands,
tenements, and hereditaments as he shall purchase, 01'
shall descend, be devised, revert to, 01' come to such
bankrupt, before he shall have obtained his certificate,
and a11 deeds, papers, and writings respecting the
same, and every such deed shall be valid against the
bankrupt, and against aH persons elaiming under him,
provided that where according to the laws of any such
plantation 01' colon y such deed wouId require registra-
tion, imolment, 01' recording, the same sha11 be so
registered, imolled, 01' recorded, according to the laws
(lf such plantation 01' colony; and no such deed shall
invalidate the title of any purchaser for y"Juable con-
sideration, prior to Buch registration, inrolment, 0\'




COLONIAL LAW.


recording,' without notice that the commISSlOn has
issued."


As to the effect of an English Probate or Grant of
Administration on Property in the Colonies.-If a Bri-
tish subject, domieiled in England, die here, a probate
granted by the Frerogative Court binds the property
in the plantations and the probate granted there. (G)
And Lord Hardwieke laid down the rule, that debts
due in Seotland to an English subjeet resident here,
who died intestate, were distributable when recovered,
aecording to the laws of England, amI that tbe question
would be the same rcspccting the goods of an ilitcstate
in France 01' other foreign country. (7) And the per-
sonal estate of an intestate is distributable according to
the laws of the eountry where he was rcsident at his
death. (8) Lord Loughborough once said (9) "It is a
clear proposition, not only of the law of England, but
of everycountry in the world where the Iaw has the
semblance of science, that personal property has no
Iocality, but is subject to the law which governs the
person of the owner." In conformity with this prin-
cipIe the Court of Exchequer held (1) that Ameriean,
Austrian, French, and Russian stock, the property of a
testator domiciled in this country at the time of his
death, was liable to legaey duty, and (2) that legacy
duty was not payable on legacies left by a testator wllo
was horn in Scotland hut resided and died in India,
though the money, the produce of his Indian property,


(6) Bur,. v. Cole, cited 4 T. R.
185.


(7) Thamus v. Watkins, '2 Ves. 35.
(8) Pipon v. Pipon, Amble .. , 25,


'id edito 1828, ami Ihe cases ciled
by Ihe learncd editor, n. 2, p. 26.


(9) In Sil! \'. Worswick, 1 H. B.
691.


(1) In re Ewin, 1 er. & Jer. 151.
(2) Jackson v. Forbes, '2 er. &


Jer. 382.


105




106 A SUMMARY OF
was sent to bankers in EngIand and invcsted in the
funds here in their names, and the stock was afterwards
transferred into the namé of thc Accountant General
of the Comt of Chanccry amI made the subject of a
suit and a decl'ee in that court.


A P P E AL S.


-


'rIlE right of detennining in the Iast resort all con-
troversies between the citizens of a state has always
been considered at once the best evidencc and the
firmest safeguard of the possession of sovereign
powcr. (3) When in the ancient republics of Greece
and Rome that power resided in the citizens at large,
the majesty of the people was asserted by its exercise
in the supervision of decrees pronounced by the 01'-
dinary tribunals. (4) The usurpers of sovereign au-
thority in those states hardly thought themselves secure
till, in addition to the command of the army, and the
highest offices in the priesthood, they had obtained
the right formerly possessed by the peopIe as a court


(3) .. The nature oftbis supreme
power eonsist. in pronouncing judg-
men! in the last resort aud without
appeal, in opposilion to the tri-
bunals wbieh the sovereign himself
I'as establi,hed, and whieh derive
all theÍl' authority from him. See
Grotius, bk. 2, c. 4, s. 13, and tbe
Jus Publieum Universale, by Mr.
:Bohmer, bk. 2, c. 7, s. 15, el seq.
Darbcyrac', notes to Putl'endor/f's
Hights of Nature and Natious, bk.
7, c. 4, n. 4·.


(·1) The arlmilli,trlltion uf juslice


io tbe most ancient offiee of tbe
Prinee. 1t "'as exercised by the
Ruman Kings, and abused by Tar-
quin, who alanc, without law. ar


. couneil, pronouneed his arbitrary
judgrncnts. The First Consuls SllC-
ccedcd to this regal prerogati ve, hut
the saered right of appeal soon abo-
¡¡shed the jl1risdiction of lile magis-
trale, und all public causes were dc-
cided by the superior tribullal af
the people. Gihbon's Decline aud
Fall, c. 44.




COLONIAL LAW.


of final appeal. 'Vhen the men of tlle nOl'th cmi-
grated in large hordes, under the direction of a favoul'-
ite leader, though his voice was supl'eme in the moment
of battle, the assemblcd army was at all other times
the judges of right, and he was admitted but to a
questionabIe degrce of superiority. (5) The settlc-
ment of these wanderers in the countries they had
conquered, rendered the continuance of this wiId amI
irregular administration of polítical affairs ancl internal
government very inconvenient, if not impossible, and
the chiefs of their various tl'ibes were tllen allowed to
as sume those powers wllich had been fOl'merly gual'ded
with so much jeaIousy by the people themseIves. A
80l't of military sllbordination in peace became neces-
sary, in order to preserve acquisitions made in war;
and as the cultivators of the soíl cquld not be assem-
bIed at a moment's warning, like the armed foIlowers
of a warlike adventurer, the boisterous freedom of the
rapacious invader was by common consent allowed to
sink, with almost rniraculous speed, into the slavish
submission of the feudal settle!'. The power thus ob-
tained, once secured in the hands of an individual, was
the Iast he was willing to part from, either to his fellow


(.5) Sluart's View of Socicty in
Europe, ss. 1,3 alId the notes; Tacit.
de Mor. Gel'. 7, xi. Charlevoix
(Journ. Bist. Lett. 18,) says some-
tbing oí Ihe same kind with respeet
to the American Indian •• "Tout doit
etre examiné et arre té dans le conseil
des anciens, qui juge en derniere
instance." Mr. Adair, (Hisl. Ame-
rican Indiatls, p. 428,) in the same
manner observes Ibat "Ihe power of
tbe;r chiefs is an empty sound. They
can only persuade or dissuadc the
people, eilher by ll,e force of good


naturc and clear reasonillg, 01' by
colouring things so as lo suit lheir
prcvailing passions." The rule, from
the abovc cxamples, would scem lo
bave becn universal thal "tbe peo-
pIe prescribed the regulalions they
were to obey. They marched lo the
National Assembly lo judge, lo re-
form, and to punish, and the magis-
trate and lhe sovcreign, instead of
controlling theil' power, werc to re-
specl and submit lo il." Stnart"
View of Society.


107




108 A SUMMARY OF
cltIzens 01' to his sovereign. The distinguishing mal'k
of the residen ce of a powel'ful noble was not unfre-
quently the el'ection upon his domain of an instl'ument
of capital punishment; and the right of "la haute
justice," 01' sovel'eign unappealable decision, even in
mattel'S of life and death, was a prel'ogative he was at
aH times l'eady to assert. (6) The superior lord of
these chieftains 01' nobles, the King himself, would
have been treated as an invader, and all the duties of
allegiance to him would have been forgotten, had he
ventured to dispute the right of the noble to punish,
unquestioned, all delinquencies committed within the
limits of his seignory. The wisest among the feudal
princes endeavoured to divide and weaken a power
they could not openly dispute. Thcy flattered theil'
most favourite and powerful nobles by constituting
them, with themselves, a tribunal to decide appeals
from inferior lordships; and when the benefits of this
system had been duly feIt, tbey made no grants of lord-
ships ",hich they did not accompany with the condition
that the prince in his Council should be the final ar-


(6) Robel'lson's State of Europe,
aud Proofs and lIIuslralions, n. 23.
Dr. Robertson speaks as if he con-
sidered (bese privilegcs to L& un,
lawful encroacbments on Ihe sovc-
reign power. Tbis mode of view-
ing tbe question assumes thal Ihe
royal prerogalive was wel! defined
aLld lawfully cstablisbed, and had
taken it. rise immediately upon !he
extinction of the popular autbority.
'fbe assuruption seems tittle war,
ranted by the able work of this
learned writer, which indeed is
marked in c,'cry page with proof that
when the fabric uf popular power


crumbled to pieces, eae" leader took
fo,' his share as large a quantity of
the materials as he could possibly
secure. The King, as the ancient
Spnnish Cortes used to tell their
sovereign, was (though in a differ-
enl sellse from that in which they
cmploJ'cd the words) better off
than any one of lhe rest, huI yet
mueh infe,'ior lo them all. 11 was
by raising "p the cornmons to tbe
digllity of a third estate tbal the
Kings usually sllcceedeo in .sta-
blishing a well unders(ood and \Vell
guardcd pl'erogative.




COLONIAL LAW.


biter of disputes arising within them. In tbis manner
the Dukes of Normandy, the powerful feudal descend-
ants of the leader of the free N orsemen, constituted
themselves judges in the last resort of the decisions
pronounced in the tribunals of their de.pendent lord-
ships of Jersey, Guernsey and Alderney; for by such
a proceeding they found they could best assert and
preserve their superiority. The form of a Parliament,
consisting of elected representa ti ves, was then un-
known; but a council, composed of the chief leaders of
the state, with the Prince at its head, was a body
possessed at once of t11e highest degree of power and
infIuence. The }¡jgbest ecclesiastics, in right of their
baronial tenures, as well as by virtue of their learning
and sacred character, could sit, as advisers of the
sovereign, in tbis council, whose decrees, as they could
be irresistibly enforced, were implicitly obeyed. In the
same manner and on the same principIes, the House of
Lords, the Supreme Council of tbe State, in which too
the King formerly presided in person, assumed those
powers as a comt of final appeal, which it now daily
exerCIses.


MI'. Pownal thinks, with much reason, that the
Kings of England succeeded, as Dukes of Normandy,
to this right of deciding appeals from the tribunals of
Jersey aml Guernsey; and although the right itself
might pcrhaps be considered to have ceased with the
possession of the Duchy on which it had depended,
the power of the Kings of England was sufficient to en-
sme obedience to its continued exercise. From the ex-
ample thus afforded, he is of opinion that the allthority
of the King in Council to decide on appeals from the
colonies has by analogy been dedueed. He says, (7)
" At thc time of settling the3e colonies there was no


('1) Administration of the eolonies, pp. 82,83.


109




110 A SUMMARY OF
precedent of a judicatory besides those within the realm,
exccpt in the cases of Guernsey and Jersey, the l'em-
nants of the Duchy of N ormandy, and not united within
the l'ealm. According to the custom of Normandy,
appeals lay to the Duke in Council, and upon this
ground appeals lay from thejudicatories of these islands
to the King here as Duke in Councíl, and upon this
general precedent was an appeal from the judicatories
of the colonies to the King in Council settled."


Mr. Justice Blackstone appears to entertain the
same opinion as to the origin of the power of the
King in Councíl, fol' in speaking on this subject he ob-
serves, (8) "'rhe King in his Council exercises original
jurisdiction upon the principIes of feudal sovereignty ;
and so likewise when any person claims· an island 01' a
province in the nature of a feudal principality by gl'ant
from the King 01' his ancestors, the determination of
that right belongs to His Majesty in Council. And
from aH the dominions of the crown beyond sea an
appellate jurisdiction in the last resort is vested in the
same tribunal."


Having thus taken a brief view of the nature and
ol'igin of appeals to the King in Councíl, we shall now
considel' the manner in which parties must proceed
when they appeal from the decision of a colonial tri-
bunal. In doing this, it will be impossible to trace
more than a mere outline of the pl'actice in such cases.
It is but recently that regular reports of the pl'oceed-
ings befo re the Priv)L Council, sitting as a Court of
Appeal, have be en given, and the practice is thel'efore
too unsettled to require 01' to be capable of a very
minute exposition.


From the Conllllon Law Caurt an appeal in the


(f:) 1 1\1. Comm. 231.




COLONIAL LAW.


nature of a writ of error lies. in the first instance, tu
the Court of Error in the colony, and from thence to
His Majesty in Council. The Colonial Court of Error
is usually composed of the governor and council. who
decide by the majority. The appeal on writ of error
to this Court operates as a stay of execution, but, to
have that effect, ~n1Ust in general he hrought within
fourteen days after judgment, and is admitted only
where the principal sum in dispute is of a certain
amount, which is fixed in most colonies at 300/. sterl-
ing. The ulterior appeal to the King in Council,
whether from the Common Law Courts 01' from the
Court of Chancery, is obtained upon leave first granted
by the governor. This also suspends in either Comt
the execution, unlcss the party appcaled against will
givc security to make restitution to the appellant in
case of reversal, hut on giving such security he i8 per-
mitted to levy and sello This ulterior appeal is not
allowed in either Court, unless the principal sum (in
cases of property) is of a certain amount, fixed in most
colonies at 500l. sterling; to be ascertained by affida-
vit, (9) nor is it allowed unless claimed within fourteen


(9) Slokcs, 223 lo 225. The ex-
eeplion tu this rule is there statcd lo
be whcre the malter .. relates to the
taking or demal!ding any duty pay-
able to the King, or any annllal rent
or other sneh like maller or thing,
",here the right in fulure may be
bound." The instruction. tu the
govcrnor, or the charters of justiee,
gencrally impose these limits upon
the right af appcaling, but upun a
question on this subjcct arjsillg in
1717, the Attorney·Gcneral Nor.
they reported his Opillioll as fol.
lows :_H And as tu lhc iustruc-
tians given to thc govt.'rnOl·, as 1Ilf'1l-


tiolled in the petitinll, whereby he
is rcstrailleu frol11 allowing an ap-
peal in any case Ululer tbe valuc 01'
500/. sterlillg, that does only re·
strain the Govemor from granting
of appeal. under that value, not-
withstallding whieh it is in His Ma-
jesty's power, upon a petition, to
allow an appeal in cases of ally
value, where he shall thillk fit, and
sDeh appeals have been oflen al-
lowed by His l\Iajesty." 2 Chal.
01'.177.


This opinioll was quoted by Dr.
Lushington to the Lords of lhe
Council, in the case of Ex parle


111




112 A SUMMARY OF


days aftel' the de-termination in the Court below. (l)
The appellant is also required to give security for pay-


ment of the sum in dispute, and all costs and dalllages


occasioned by the appeal, and also for dne prosecution


of(2) the appcal within ayear and a day frOlll the date
of its allowance by the governor. The appeal being
allowed, and the securities duly perfected, the party
appellant takes out from the secretary's office in the


colony a copy or transcript, duIy authenticated, of the


several proceedings in the suit, including, of course,


the judglllentor judgmcnts which forlll the subject ofthe
appea!. This transcript should be certified under the


Jacol, de Kah,m Pariente, November
24, 183'2. and a.sented to by their
lordsoips. The rigot of the King in


suco cases is also expressl)' reserved
in lile lUost rcccnt charters of jus-
tice, aud in commissions and in ...


~ structions, and in Ihe Privy Council
BiIJ. Sce Appendix.


The folJowillg cases show, in two
instances, some ditference of prac-
tice f"om that stated by the pre-
ceding authol'ilies, so far at least as


respects the autho"ity ullde,' which
the appeal is granted, and the sum
requil'ed to wal'l'ant the aIJowaoce


of it:-" AH questions relative to
the sEcuritie. to be given io ap-
peals relative to their amount, value,


s uffidency , 01' reception, shu"ld be
uecidcd by the Court against whose


judgment Of deeree an appeal to
flis Majesty in Council should be
made." Proclamation by the go-
vernor of the Mandtius, pursuant


lo iustruetiolls froID the Secretary


fur the Colonies. ClImbe1'Jlon v. Egro·
igum'd, 1 Kn3pp's Heports, 251.


Order in cOllncíl, 15th Decelllbcl',
1828, relating to appeals from De-


merara. The application for liberty
to appeal was directed to be made


to the eourt of justiee in that colony
instead of the governor, and the
Court was empowrred "either to
permit the sentence lo be earried
inta execution, the pcrson in whose


favour it should be giveu entering
into good and sufficient sceurity for
the due performance of such arder
as His Majesty should make thereon,
or to direct lhe execution of the
sentenee to be suspended during the


appeal, the appellaot entering ¡nto
similar seeuTities, to the satisfaction


uf the Court, for the prosecution of
the "ppeal, aud for payment of all
sueh eosts as might be awal'ded by
His Majesty." The furmer rule had
been, as in the otber colonies, 5001.,
to auswer costs. Cmig v. Shand,
1 Kllapp, ~53.


(1) '2 B. Edw. 356, n.; Stokes,
224; 1 Rep. W. L C. 44.


(2) In this Case the "due prose-
eUlioo of tbe ap-peal" meallS the
lodging of tbe pe"tition of appeal at
the ofiice of the l'rivy Coulleil.




COLONIAL LAW.


hand of the proper officer, as containing a correct
copy of all the proceedings. And there should be a
certificate also from the governor, undel' the public
seal of the colony, authenticating the signature of the
fol'mer officer, and stating that it belongs to his office
to attest such copies. This tl'anscript is usually sen!
to England by the appellant, but may be brought over
by respondent, (3) to be there used by his agent, as oc·
casion may require, fol' the purposes of the appea].
lts use is to ascertain, in case of dispute, what has been
the course of proceedings in the colony, and the Coul't
of Appeal at home considers it as the only authentic
source of informatioll on that subject. The appeal is
properly to His Majesty in Coullcil; but by the 3 & ..f.
Wm.4, c. 41, s. 1, a committee of the Privy Council,
called "the Judicial Committee of the Privy Council," is
appointed for hearing appeals from the plantatiolls, &c.
This committee consists of the President for the time
being ofHis Majesty's Privy Council, the Lord Chancel-
101', súch of the members of the council as shall from
time to time hold any of the following offices:-Lord
Keeper 01' Fil'st Commissioner of the Great Seal of
Great Britain, Lord Chief Justice 01' Judge of the
King's Bench, Master of the Rolls, Vice-Chancellor,
I~ord Chief J ustice 01' Judge of lhe Common PIeas, Lord
Chief Baron 01' Baron of the Exchequer, J udge of the
Prerogative Court, Judge of the Court of Admiralty,
Chief Judge in Bankruptcy, and all persons members of
the council who shall have been president thereof, 01'
Chancellor of Great Britain, or shall have held any of
the above offices. Any two other persons, being mem-
bers of the council, may be appointed to be members


(3) Gordon v. Lowl/¡e¡', 2 Lord Rayrn. 1447.
1


113




114 A SUMMARY OF
of the committee. N o matter can be heard unless in
the presence of four members of thc committee, and a
majority of those present at the heal'Íng must concm
in the judgment.


They have no times of meeting fixed by law. Such
days are from time to time appointed as may happen
to suit the convenience of the court. Supposing an
.appeal to take its regular comse, the first step is to
lodge the petition of appeaI. This petition contains a
mere narrative 01' abstract of the proceedings below,
with a conclusion alleging that the petitioner is aggrieved
by the judgment, has obtained leave to appca om it,
has given the usual security, and now prays for its re r-
sal or alteration. Its narrative should be short, for there
is no need that such a petition should at all disclose the
merits of the case. And it appears to be sufficient
simply to state thc judgment which forms the subject
of appeal, and to show by what comt it was pro-
nounced without entering into any history of the previ-
ous proceedings. The petition is lodged by bringing
it into the Privy Couneil Office, and depositing it with
the clerks thcre, who make a memorandum of the time
when it is dcposited. The manuscript is not filed in
the office, nor even produced there. It remains in the
hands of the agent. A regulation of the King in
Council requires that the petition, in case of appeals
from the colonies, should be lodged within ayear and a
day from the date of the leave granted by the governor
to appeal. (4) If not lodged within that period, the


(4) GOI'don v, Lowther, '2 Lord
Raym. 1447. This \Vas a case of
an action of libel where judgment
·had been given in the Colonial
Court for the defendant upon a


special pIra of justificadon. The
case sta tes the I'Ule to be ayear, bnt
tIJe p1'3ctice is ;JOw to allo\,," a H 'year
and a day ;" allll if the petitionel'
llas becn preventeu by circum.




COLONIAL LAW.


opposite party is cntitled to petition His Majesty to
dismiss the appeal. But it is understood that a petition
may be lodgcd, however late, ancl will save the appeal,
provided that no petition to dismiss has been already
presented. The agent for the party appealed against,
on being apprised that the petition of appeal is lodged
(but it does not appear that he is entitled to notice
either from the appellant 01' the council office,) gets his
name inserted in a book, kept at the office for that pur-
pose, as appearing fOl' the respondellt, and at the same
time obtains all office copy of the petition. The petition
of appeal in the mean time is laid before His Majesty
in Coullcil, amI an order is madc on the petition, refer-
rillg the appeal to the Judicial Committee, that they
may hear and report their opinion upon the same. The
appellant's agent then proceeds to bring in his printed
case, which is lodged at the office in the same way as
the petition of appeal. It consists of a detailed state-
ment of the pl'oceedillgs in the court bclow, 01' such
parts of them as are favourable to the purposes of the
appellant, accompanied in general, with a view to the
convenience of the court, and the saving of expense,
~ a joint appendix, containing such parts of the tran-
script-as may be required to be particlllarly noticed,


. but are too voluminolls to be inserted in the body of


.tances OHr which he hud no con-
trol, from entering his appeal within
tbe time limited, the COUllcíI will, in


. tbeir discretion, permit tbe appeal
to be cntered upon a .tatement
of tbe causes of the deJay, which
.tatement must be vcrified by atfi-
davit.-$,,,,botv_ Bllrnley, before fhe
Privy Council, Nov. 24, 1832_ In
that case tbe pclitioner, in coming
fL'Om Trinidad, had been driven hy
adverse wind. on tbe coast oí South


America, and tbere wrecked, had
afterwards taken hi. passagc on
board a vessel to Cherbollrg, th'lt
being the lirs! abou! to proceed to
Europe (rom the place where he
¡hen was, alld having encounlered a
very disastrolls passage, be was
taken iJl on !Ji, arrival in Frallce,
and did no! I'CCOI'er in time lo come
I,ere alld lodge the appeal in ¡he
time fixcd by ¡he practice of lbe
court.


1 2


115




116 A SUMMARY OF
the case itself, and in conclusion, the reasons, 01'
legal grounds of appeal are shortIy set forth. No
particular forms are observed in these instruments,
but the appellant sta tes the facts as they were proved
in the court below, argues the law which arises upon
them, and cites the legal authority in support of the
argument, in such moue as he deems most expedient
for the interest of his cause. The respondent's agent
also prepares a printed case, and when ready, lodges it
in the office, after which the agents exchange cases,
that is, deliver to each other a copy of that which each
has lodged for his client, by which they mutually receive
information of the grounds in tended to be relied upon
at the hearing. But neither party can obtain at the
office a sight of his adversary's case.


The appeal having been l'eferred, and hoth cases
having been lodged and exchanged, the cause is set
down on the list to be heard in its turn, (5) and a day
is afterwards fixed for the hearing, and as soon as it is so
set down and appointed fol' hearing, a summons issues
from the office, giving the parties notice of the day fixed,
and ol'dering them to attend. The messengel' of the
office serves this summons on the agent of each party.
'rhe cause is then heard, and two counsel are allowed
to al'gue on eithel' side ; the leading counsel fol' the ap-
pellant having the privilege of a reply. The sentenee
of their lordships is eithel' general, that the judgment
of the court below be confirmed 01' reversed, 01' it is
special, awarding such a sentence as ~nder aH the cil'-


(5)" The Lord, of the Ap¡wal
Committee of His I\lujest)"s must
Honourable PI';"." eOUlleil are
pleased to arder, Ihat in future ap'
peal s the causes ,hall take prece-
dence accordillg to (I,e order in


wllich (hey are reacl)' for hearing,
alld uol., as at presellt, according tú
the arder in which (he tirst prjnted
case is lodged Ilpon eaeh appeal."-
ÜI'del' isslled Saturúay ~:ld Febru-
ary, 1B28,




COLONIAL LAW.


cumstanccs of the case appears most conformabJe to
justice. . And in case of affirmance, but not often in
case of reversal, their lordships are in the habit of
allowing costs to the successful party. Instances of the
latter kind do, however, sometimes oeeur. When the
court awards eosts to either party, his aeeount of the
costs is sent to a Master in Chaneery, by whom it is
taxed, and the amount allowed being certified to the
clerks of the council, is by them inserted in the order
as the costs fixed by the court. This course is
adopted. because there is at present no officer in this
court who has authority to tax eosts. The sentence
01' judgment having heen pronounced, is then drawn
up in the form of a report to His Majesty in Council
of the opinion of the committee on the appeal referred
to them; This report is put into the proper form by the
clel'ks of tho office, at the direetion of their Jordships,
alld is laid before the next Board of Council heJd by
His Majesty. Upon its being read at the board, an
order of eouneil is drawn up reeiting and approving
the report, and givingjudgment accordingJy, which the
governor is directed to carry in an respects into due
execution. The order is then delivered f1'Om the couneil
office to the agent of the successfuJ pal'ty, who sends
it out to the colony.


Such is the course of practice where both the ap-
pellant and the respondent use due diligence in the
progress of the appea!. But in case of remissness in
either party, it may be useful to show by what methods
his advel'sary may enfol'ce despatch.


First, if the appellant should fol' ayear and a day,
after the date of the order granting leave to appeal,
l1eglect to lodge a petition of appeaJ, the respondent,
as we have seen, may present a petition to His Majesty


117




118 A SUMMAltY OF
in Council, to dismiss the appea!. This being ad-
dressed to Hit> Majesty, must of course be laid before
the Board of Privy Couneil, who will make an order
referrÍng it to the judicial commíttee for their opiníon.
It is then brought before that committee at their next
meeting, and usualIy moved and (if the case should
afl'Ol'd any ground of opposition) opposed by counseI.
Their lordships then proceed to decide upon it and
1'epo1't their opiníon accordingly to His Majesty in
Council, in the same manner as on an appeal. (6)


Again, if after a petition of appeal be loclged, the
appellant should neglect to bring in his printed case,
the respondent may compel him to do so, by lodging
his own case; after which he may apply, by petitiofl,
to the appeal committee for an order requiring the
appellant to bring in his case within a month. '1'his
order is served on his agent, and if inefl'ectual, the
respondent may then, on petition, accompanied by an
affidavit of the service of the former order, obtain a
second order requiring him peremptorily to bring in
his ca8e within a fortnight, amI containing a notice that
on his failure to do so the appeal will be heard ex parte,
It~ 011 the othel' hand, the party appealed against


should neglect to appear to the petition of appea], the
appellant having brought in his own case, may obtain,
as of course, upon petition, an ~rder fOl" a summons
calling on the respondent to appear. This summons
being obtained, is according to the terms of the order
under the authority of which it is issued, posted 01'
affixed at two conspicuous places in the city, viz. the
Royal Exchange and Lloyd's Cofl'ee Housc.


If upon this smnmons, he does not appear, the ap-


(6) See Saubot v.Bul'Illey, ante, 11iJ.




COLONIAL LAW.


pellant moves the committee (upon an affidavit of affix-
ing,) for an order that the appeal be heard ex parte,
unIess the respondent shall appear within six weeks
from the date of the order. If the respondent does
not appear according to the terms of this order, the
appeal will, on a second affidavit of affixing, be set down
for hearing ex parte.


If on the other hand the respondent should appear,
but neglect to bring in his case, the appellant drives
him on, by applying to the committee for an order,
directing him to bring in his case within a month. This
order is served on the agent, and if ineffectual, the
appellant may then, 00 affidavit of service, obtain by
pctition, a second order, rcquiring him peremptorily to
bring in his case within a fortnight, and containing a
notice that on his failure to do so, the appeal will be
heard ex parte.


Uuder such circumstances an appeal often comes 011
for hearing ex parte, viz. either on the part of the ap-
pellant or the respo11dent, without opposition from his
adversary. Where it is set down on the part of the
appellant only, the court will nevertheless, before they
award a reversa], require to be satisfied that the judg-
ment of the court below was wrong j and for that pur-
pose will gene rally hear the appellant's counsel. But
where the appellant does not appear to support the
appeal, and the cause is set down 011 the part of the
respondent only, the judgment below is affirmed as of
course without argumento


Though a cause has been set down for hearing
ex parte, still it is competent to the party in defau]t
to bring in his case at any time before the appeal actu-
ally comes on to be argued. And counsel will then be
heard on both sides as in other cases.


119




I~O A SUMMARY OF
But if either party delay bringing in the case tillso


short a time before the day fixed for the hcaring, that
thc other party has not becn able to see it and prepare
himself UpOIl it, the delay will be a good ground for
applying to the court to postpone the hearing, and· to
make the party in default pay the costs of the day.


Other val"Íeties of practice are occasionally intro-
duced by a particular state of circumstances. Thus,
where a party conéeiving himself to be aggrieved by
the judgment below, has nevertheless been prevented
by accidental '!auses, and without negligence either on
his own part 01' that of his agents, from applying to the
governor of the colony, within the period limited in the
particular colony, for leave to appeal to His Majesty
in Council, the governor has no jurisdiction after that
period to allow the appeal; but His Majesty in Council,
from whom the right of appeal itself in all cases ema-
nates, may of course, at his pleasure, relax in any such
particular instance, where it may appcar equitable to
do so, the restrictions to which it is generally subject.
So it may happen that a governor improperIy refuses
to aIlow an appeal, from sorne doubt as to its competency
or regularity, or from any other cause, where justice re-
quired a contrary decision. In an such cases the party
aggrieved is of comse entitled to apply to His Majesty
for redress.(i) A party so situated, therefore, proceeds
by lodging in the privy council office a petition for
leave to appeal, supported byan affidavit disclosing the
particular circumstanccs of thc case on which he relies
as grounds of exception from the general rule. This
petition is laid before His Majesty in Council, and is
referred by order to the Appeal Committee for their


--------------


(7) See ante 111, aud 1 Chal. Op.177. Christian v. Corren, 1 P. Wms.
329.




COLoNIAL LAW.


OpllllOn, and is argued before them. If their report
upon it be favourable, an order in council is drawn up
approving and adopting the report, and directing that
the aggrieved party be allowed to enter and prosecute
an appeal. And, in such cases it is usual, fOl" the con-
venience of the parties, to order that the security to
prosecute the appeal and answer the condemnation
money shall be taken, not in the colon y, but in this
country. The appeal then proceeds as in ol'dinary
cases.


lt appeal's by the pl'eceding explanations, that much
of the business of the appeal court consists of motions
01' petitions. Some applications, such for example as
those fOl" orders for hearing ex parte, 01' to bl'Íng in the
prillted case, are considere u as motions ni course. They
are made in fOl'm to the committee to ",hom the appeal
is referred, and who by that l'eference have jurisdiction
ayer these the ordinary incidents of its progress, and
they are generally disposed of by the clerks, without
being actually bl'ought before their lordships. But
any special motions 01' applications fol' extraordinary
l'elief, requÍl'e a different mode of proceeding. A
petition to His Majesty in Council must be lodged, sup-
ported by affidavit of the facts, (as in the cases already
noticed of a petition to dismiss, 01' for leave to appea],)
and this petition is laid before the Board of Council,
who, by order, refel" it to the Judicial Committee for
their opinion. It is then moved and argued by counsel
before their lordships of the committee, and their opi-
nion is reported to the Privy Council, and an order made
thereon, as in the course of a regular appeal case. This
kind of business comes 011 at each meeting of the com-
mittee, and takes precedence of the appeaIs set down
fol' heal'ing.


1!21






APPEN DIX.


A LIS'l' of the Colonies now forming part of the Bl'itish
dominions abroad has been given in a former part of
this work. They were then enumerated without any
reference to the governments into which they were
divided. We have now to consider them rather more
in detail, and with this view it will be necessary to class
them according to the form lately given to their differ-
ent governments. With a view to the more econo-
mical administration of their affairs, sorne of the
colonies formerly independent of each other have been
consolidated undel' one government. This has not heen
the case with Demerara, Essequibo, and Berbice alone,
which, forming in fact hut one colony on the northern
part of the continent of South Ame1'ica, and being an
un del' the legislative power of the crown, naturalIy
seemed to require but one Governor, hut has also been
adopted with respect to islands, which have separa te
Legislative Assemblies of their own. By a commis-
sion issued on the 19th December, 183~, to Sir E. J.
Murray Macgl'egor, the colonies of St. Christopher,
of Nevis, of Dominica, and of the Virgin Islands,
have been added to his government, which had pre-
viously extended over Antigua, Montserrat, and Bar-
buda. Each of these places will have a Lieutenant-
Governor, and will l'etain its House of Assembly, nor
will there he any General Assembly for aH of them, as
was once the case with tbe Leeward Island government.
In the same manner a commíssion, dated the 13th of
February, 1833, has issued to Sir Lionel Smith, con-
stituting him governor of Barbadoes and of Sto Vincent,
Grenada amI Tobago, and these th1'ee colonies now
for the 61'8t time placed under his command will have
lieutenant-governors only, but will still retain their
separate Houses of Assembly. As these commissions
have not heen laid on the table of the House of Com-




ANTIGUA.


mons, they haye not Leen accessible to the author,
who has thel'cforc been unable to give morc than the
general outline of the changes they have intl'oduced.
It will now be necessal'y to proceed to the considera-
tion of the different colonies in the order in which they
were enumerated in the 61'st part of this work. Each
government, and the islands that are submitted to its
rule, wiII be observed upon in succession; and in doing
this, a brief notice will be takcn of their history and
constitution, amI of sorne of the principal laws at pre-
sent prevailing in them.


ANTIGUA.
Antigua is one of the Caribbee Islands in the "\Vest


Indies.
It is upwards of fifty miles in circumfel'ence, and


contains 59,838 acres ol' land, ol' which about 34,000
are appropriated to the growth ol' sugar and pasturage
annexed.


In 1774 the white inhabitants ol' an ages and scxes
were Z590, and the enslaved negroes 37,808.


It is divided into six parishes and eleven districts,
and contains six towns and villages; St. John's (the
capital,) Parham, Falmouth, Willoughby Bay, Old
Road, and James Fort. (1)


HISTORY AND CONSTITUTlON.


This island was discovcl'cd in 14-93 by Columbus,
who named it l'rom a church in Seyille, Santa Maria de
la Antigua.


As early as 1632 a few English families took up
lands therc, and began the cultivation of tobacco.
Among them was a son of Sir Thomas Warne)', (2)
whose descendants still possess very considerable pro-
pel'ty in the island; olle of them, Ashton ''''amcr, Esq.


(1) 1 Edwards, 484,486. mas Warner at title "St. Chris-
(2) See lhe account of Sir Tbo- topher."




ANTIGUA. 125
having be en in 1787 Pl'esident of the Council and Com-
mander-in-Chief in the absence of the governor. (3)


In the l'eign of Chao 1, (1625,) that monarch, by
letters-patent undel' 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 Chao 2 purchased aH the Earl's rights, took aH
these isIands under his more immediate royal pro-
tection, aneI by letters-patent under the Great Seal,
bearing date 12th June, in the fifteenth year of his
reign (1663), appointed Francis Lord WilIoughby
of Parham, Captain-General and Chief Governol' of
Barbados and the rest of the Caribbee Islands. (4)


This isIand enjoyed a Jegislative assembly at least as
early as 10th April, 1668, this being the date of the
first 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 periodo


This isIand being aftel'wards subdued in the reign of
Cha. 2, by a French force, aH the former titles of Bri-
tish subjects to lands therein became forfeited to His
Majesty j (5) but the island was afterwards retaken by
the English arms, and new grants 01' confirmations of
the forfeited lands were obtained from the crown j in
consideration whereof the assembly, by an act of 19th
May, 1668, consented to the imposition of the 4~ per
cent. duty on exported produce, payable to the crown
for ever, heing the same 41~ per cent. duty to which
Barbados and other islands (as before shown) are
subject.


In 1672 (6) Antigua, with St. Christophel"s, Nevis,
and Montserrat (7) (to which the Virgin IsIands were
afterwards annexed (8) ) was consolidated under one


(3) 1 Edwards, 473.
(4) These faets are recited in an


Aet uf Assembly of Nevis, No. lof
printed colleelion oflhose aets. And
see title "Barbados."


Lord Willoughby's govcrnmcnl i.;
deseribcd, in aet No.2 of Ihe same
eollection, as that "of Ihe Caribbee
Leeward lslands in America."


(5) So decJared by an ael of the
isJand after ils restoratiulI to Grea!
Britain. See Acts of Antigua, 19th


May, 166B, and Ihe Laws of Mont-
serra!,No.4.-3 Rep. W. I. C. 31.


(6) 1 Ed wards, 4.53. In the
same Jear Lord Willoughby wa.
appointed Govcl'Dor af Barbados,
St. Lucia, Sto Vineen!, and Do-
minica. lbid. 41P.


(7) See Antigua Aet, 22d Juno,
1705.


(8) Viz. undl'r ;¡ eommission
gl'anted by Chao 2, to Sir William
Stapleton. Edwal'd., ubi supo 500;




1!26 ANTIGUA.
general government, called "The Leeward Caribhee
lsland Government," and the Governol" whereof was
styled "Captain-General of the Lccward Caribhee
Islands." His chief seat of residence was Antigua,
and the government of each island in his absence was
usually anministered by a lieutenant-governor, 01" where
no lieutenant-governor was appointed, by the President
of the Council. (9) The general government consisted,
hesides the governor-general, of a general council and
general assembly, that passed laws on subjects of com-
mon and universal conecrn relating to the different
islands of which it was composed j but each island had,
hesides, its separate eouncil, and its Legislative Assem-
bly or House of Representatives. (1)


By eommission, bearing date !26th October, 1689, in
the first yeal' of the l'eign ofWilliam & Mal'Y, 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 publie peaee,
welfare, and good government of the said islands, whieh
said laws were to be, as conveniently might be, agree-
able to the laws and statlltes of this kingdom, and to be
transmitted to His Majesty fOl' his royal approbation
01' disallowance ol' them." (!2)


In 1692 passed an aet (now repealed) "for the
administration of justice in this island." (.'3)


On the lDth Mareh, 1715, an aet passed (which has


(9) 1 Ed wards, 45.3.
(t) See lhe printed editioll of the


Antigua Aets. vol. t, pp.l 1023. One
of (he most rClUa,'kable of the nets uf
(he I.eewaro Islands, say thecommis-
sioners, (3 Rep. p. 6,) was lhe aet
No. 28. "This aet estahlished the
General Councils ano General A s-
semblies formcrly held fol' Ihe Lee-
ward Islands; securillg at the '''llIe
time to the particular hland. tbeir
peculiar laws and local jurisdiclions.
Tt ",as pmvided thal ¡¡ve ,'cpresen-
tative, .hall be e1ceted fr'.jIU caeh of
the islallds, to makc genen'!l laws.
The ahsence of the l'cpresentatives
of auy oue island is 1101 to exempt
orexCusc sllch island from obcdicllce
to the general acts, provideo a mu·
jority of the "hale number wa.,
presen! at lhe passing of !ueh law."


It appea,'s, however, that this Ge-
neral Assembly passed nolaw what-
ever dllring the long period of
nincty.tbrce years, viz. fl'01ll1705 to
179B, the diffcrent Icgislativc as-
semblies {()l' the various islands
being, ho"cver, during tbis time in
full operation~ In : (hat year it
passed " Meliorating Slave Aet,
which was ils las! exercise of legis-
lative powers. See also Edwards.
uhi SLIp. 466.


('2) This cOllllllission is rccited
in an order in eounell transcribcd ill
the Acts of MOII!sc, ... a!, p. 13.


(3) Tt "ppears by a prcviOlIS ¡¡el
of9th Jalluary, 1676, that "Cou .. t,
of Common Pleas" Imd IOllg oefur(~
thi" time bcen estahlished 01 An·
tiguil.




ANTIGUA. 1~7
been since altered and amended) "fol' constituting
a Court of Chancery in this island."


On the 21st January, 1791, an act passed (No. 475
of printed collection) intituled, "An Act for establish-
ing Courts of Common Pleas, Error, King's Bench,
and Grand Sessions, and for the better regulating and
settling due methods fol' the administration of justice."


Thc Leewal'd Island government no longel' exists,
thc islands of which it was composed being now dif-
ferently combined. In July, 1816, Major-General
Ramsay was sent out to Antigua with a commission as
captain-general and governor in chief over the Islanlls
of Antigua, Montserrat, and Barbuda, (4) and on 19th
December, ]832, by a commission issued to Sir E. J.
Murray Macgregor, Sto Chl'istopher, Nevis, Dominica,
and the Virgin Islands were added to this government,
each of the islands enjoying of course (as before) a
legislative council and assembly of its own.


No general council 01' assembly is cstablished over
the islands of which this new government is composed.


The Assembly of Antigua settled on General Ram-
saya salal'Y of 5000l. curl'ency while he should remain
within his government. (5)


Ml'. Edwards states that the eouncil consists of
twelve members, and the Assembly of twenty-five. (6)


The Judges of Antigua ha ve no salary, but the
Chief Justice of the Common PIcas receives sorne tri-
fling fees. They hold thcir offices during pleasure. (7)


There is an Attol'ney-General in this island.
The same pel'sons pl'actise as barl'istel's and as solici-


tors and attol'nies. No person can practise who has
not been called to the bar in England, 01' kept a suffi-
cient numbel' of terms to entitle him to be called thel'e.
It was formerly otherwise. (8)


COURTS.


The courts of Civil Jurisdiction in this island, are
the Court of Chancery, the Court of Error, Court of
Common Pleas, and Court Merchant, for the benefit of
transient persons. The courts of Criminal Jurisdiction
fol' Antigua, are the Court of King's Bench and Grand


(4) Scc Ac! oC Antigua, 2.'ith
Jllly, 1816.


(5) By act of 25 July. 1816.


(6) 1 B. Edw. 487.
(7) 2 Rep. W. 1. C. 51,52.
(8) Ibid. 55. 3 Rep. l!6.




lQ8 ANTIGUA.
Sessions and the Courts of King's Bench and Grand
Sessions for the trial of criminal slaves.


Court oI Cltancery.
This comt is constituted in the same manner as the


Comt of Chancery at Barbados and Dominica. It is
held whenever applied for as business occurs.


This court, it is said, "exel'cises jurisdiction in cases
of manumission by deed 01' will, as the Comt of Chan-
cery would do as to other interests under deed 01' will
in England, whel'e 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 Chancel'y, are
sometimes appointed as receivel's to estates. The
attorney-general said, "they are, and 1 think it objec-
tionable, they al'e in the habit of voting upon it, and I
think that is not right."-3d Rep. ·W. l. C. p. 11.


COUl't 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 tllf~ court, whose judgment is appeaIed
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 fol' 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 plaintift' in
error gives security to answer such charges as sha1l be
awarded by the comt, in case the first judgment be
affirmed, appeals are not very frequent, and the ex-
penses in the isIand are saiJ. to be very inconsidel"
abIe. (9)


Court 01 Common Pieas.
This comt is composed in the same manner in


Antigua as in the otber islands, and is held by appoint-
ment of thc act, (Ko. 4·75,) on the first Tuesdayin thí'
months of April, JUay, .Tune, .Jllly ancl Al1gust.~3d.
Rep., p. IQ.


(9) 2 Rep. W. J. C. 186,189. 3 Rep. 1:1,




ANTIGUA. 129


Court of Complaints.
Actions are bl'ought in this Court fol' debts not ex-


ceeding ten pounds currency. It is cOllsidered m; a
branch of the Conullon PIeas, and is constitnted by
the same act, No. 475.-3<1 Rep. 'V. I. C. p. 13.


Courl nf Ordinary.
This Conrt derives it authority from the King's com-


mission to thc Governor, who is sole judge. The Ordi-
nary has the power of collating to benefices, gl'anting
licences for mal'l'iages, probates of wills, and letters of
á~lminish·ation. "N either the acts of the island, nor
the Royal Instl'uctions," said the attorney-genel'al,
" mak" any mention of an appeal from his decisions,
but an QI'del' in council might, I should think, undel'
particular circumstances, be obtained fol' alIowing an
appeal to the King in Council."-3d Rep. W. l. C.
p. 13. See ante, Appeals.


Cou}'t of Admiralty.
The Comt of Vice-Admiralty is held by virtue of a


commission from the Lords of the Admiralty, 01' in
default of such commission, by appointmcnt of the
Governol'.


There is no special commission fol' the tria! of
off en ces committed upon the high seas.-3 Rep. 'V. r.
C.13.


Court o/ King's Bench and Grand Sessions.
Thc judges ofthis Courtare the Liclltenant-Governor


of the ¡sland, all the members of Council, the judges of
the Coul't of Common PIcas, the Barons of the Ex-
chequer, and aH the justices of the peace of the island.
-3 Rep. W. 1. C. p. 13; 2 Rep. 51.


The commission of the chief justice does not extend
to the cri'11Ínal COUl·ts ; hc takes preceden ce thcre "next
lo tlte_members of council." The Comt is hcld twice a
year.


It has never heen thc practice in this island fol' the
attorney-general to file informations ex qfJicio.


The president of the court sums up the "eyidence,
and otIle)' judges also occasionally offer theil' sentiments


K




130 ANTIGUA.
to the jury upon particular cases." Points of law
arising in the course of their proceedings are de ter-
mined by the opinion of the majority of the judges.--
3 Rep. p. 14.


The presiding judge in every court in this island
is paid by fees. The chief justice has no salary. The
fees received by the chief justice, upon an average of
ten ycars, do not exceed 200Z. sterling per annum. The
tenure of the office of the judges is during pleasure.
lt is not required that they should be barristers, 01'
have gone through any previous comse of legal study, as
a qualification fol' the office.-3 Rep. W. l. C. p. ~6.


Besides Hís Majesty's Attorney and Solicitor, se-
veral other members of the bar llave been admitted to
the rank of King's Counsel in this island. Persons
admitted to the bar in the Court of Common PIeas
practise afterwards as a matter of course in an the
courts. N o one is now entitled to admission who has
not been calleel to the bar in England, 01' kept a suffi-
cient number of terms to entitle himself to be called.
This qualification was formerly unnecessary. AH bar-
l'isters in this island act also as solicitors and attornies.
The business is not sufficiently lucrative to aUow of
sepal'ate practice.-3 Rep. W. l. C. 26 j 2 Rep. 55.


JUSTICES OF THE PEA CE.


The duties of a justice of the peace in this island
are, accoreling to the answers of MI'. Lee, repre-
~ented by the commissionel's as very accul'ate, "to
hear and ínvestigate cl'imes and offences of aH kinds,
whether committed by whites, free people of coIour,
01' slaves, to commit the parties in feIonies; to bind
over whitcs and free persons in recognizances to the
grand sessions in misdemeanors, und with respect to
sIaves, to punish them fol' offences within the benefit
of clergy, as well as to commit them fol' trial, in offences
which are excllllled frolll the benefit oi' clergy. Magis-
trates also exercise jurisdiction oyer sIaves in murder,
!'ape, and burglary, and act in a variety of cases ac-
cording to the laws of the island."


Information is invariabIy l'eceived upon oath, except
with regard to slaves, and then nevero (2)


(2) As to the jurisdiction of jl1sticcs of the pencc in rnatters relating lo
sl1!.ves, see ante, p. 62,63, 11.




ANTIGUA. 131


CORONER.


There is one coronel' in the Island of Antigua who
is allowed a salary from the public treasury of the
island of 600l. currency. No qualification by estate
01' pel'sonal property is required in a per80n who acts
as coronel'. The coronel' in thi8 island is guided in the
performance of hi8 duties by certain locallaws. The
amelioration act provides for and regulates the taking
inquests in cases of slaves.-- 3 Rep. W. 1. C. p. ~7.


COLLECTIO~ OF LAWS.


There are thl'ee volumes of the Laws of Antigua
printe(l and published in London, by authority of the
colonial legis\ature. They consist of the Acts of the
Leeward Islands, commencing 8th November, 1690, and
ending ~lst April, 1798; and the Acts of Antigua,
commencing 10th April, 1668, and commencing up to
13th June, 1817. (3)


GENERAL LAWS OF THE COLONY. (4)
An act of the Leeward Islands of the 7th of June,


1705, intitu\ed " An Act to settle General Councils
and General Assemblies for the Caribbee Islands in
America, and to secure to each particular Island their
own peculiar Laws and Legal Customs," recites that
there was at that time a General Council, and a Ge-
neral Assembly for the Leeward Caribbee Islands in
America, met together at N evis concerning the public
affairs, and to consult amI enact "such good and
wholesome laws as may be for the safety and advantage
of all the said islands, and that the interests in point of
trade and laws of most of the said islands in some re-
spects differ the one from thc other, therefore the
beUer to preserve and defend the whole, amI to secure
to each particular island its own laws and legal cus-
toms which are not of a general concern," the act pro-
ceeds to provide "that aH the laws and legal customs


(3) SRep. W. l. C.6. They have
been further continued since Ihe
date of the Commissionen' Report.
See Howard's Laws, 4'H.


(4) See tlJe remarks in the 1st
chapter on the general topic bow
far Ihe colonies are subject to the
law of the mother countr,Y.
K~




132 ANTIGUA.
now in force in each and evel'y the Caribbee Leewal'd
Islands, and respecting only the circumstances of the
same, be and remain in their fun force and virtue."
The next section asserts the right of the General Coun-
ciI and Assembly tornakelaws for an the Caribbee islands.


Another act of the General Assernbly of the Lee-
ward IsIands, of which Antigua then formed a part,
dated the QOth of June, 1705, and intituled " An Act
for pl'eventing tedious and chargeable Lawsuits, and
for declaring the Rights of particular Tenants," recites
that lawsuits and contl'oversies frequently arise between
the inhabitants of these islands, principally occasioned
by the dilfcrent nature and circumstances of their
estates from those in England, whereby it sornetimes
had happened, through the partiality of sorne and
ignorance of others, that contl'adictory judgments had
be en given in cases founded on the same rules and
principIes of law amI reason; for the redressing of
which mischiefs, and establishing a constant and certain
uniformity in the proceedings of the courts of the seve-
raI islands under this government, the act proceeds to
declare " that the Common Law of England, as far as
it stands unaltered by any written Iaws of these islands,
01' some of them, confirmed by yOUl' Majesty 01' sorne
of your royal predecessors in council, 01' by sorne act
01' acts of Parliament of the kingdom of England ex-
tending to these islands, is in force in each of these
your Majesty's Leeward Caribbee Islands, and is the
certain rule whereby the l'ights and properties of your
Majesty's good snbjccts inhabiting these islands are
and ought to be determined, and that all customs 01'
pretended custorns 01' usages contradictory thereunto
are iIlegal, null and void."


The Attorney-GeneraI of Antigua, on his exami-
nation uneler the late Commission fol' Inquiry into
thc Administration of Justice in the "Vest Indies, aftel'
noticing this act, thus exprcsses himself:-" It is the
more generally received opinion in this island that all
acts of parliament of the mother country passed pre-
viously to the establishment of the colony, are in force
hel'e; but 1 have never myself given an unqualified
assent to this positioll. I have always entertained a
doubt as to the extension of the penal statutes of the
mother countl'y, in consequence of a distinction 1 had




ANTIGUA-BARBUDA. 133
observed to have been taken in the case of Dawes v.
Painter, 1 Freeman's Rep. 175. 1 have, therefore,
since 1 have acted as a law officer of the crown, felt
myself conscientiously bound on aIl occasions to aIlow
the prisoner the benefit of this doubt; amI as far as
slaves are concerned, their condition at the time of the
establishment of the colonies was so totalIy difierent
from what it now is, the powers of the master were
then comparatively so undefined and unlimited, that
there could have been no one reason, as 1 conceive, for
the adoption of the penal statutes of the mother coun-
try towards them." (5)


BARBUDA.
-Barbuda is a smaIl island, ~o miles in length and 10


in breadth, and the inhabitants are somewhat more than
1500 in number. The coast is dangerous, but there is a
good road for shipping. The interior is level, and the
soíl fertile. The chicf trade of the colonists consists of
the sale of cattle, corn, amI provisiollS to the neighbouring
islands. Turtle are found on the shol'e, and the woods
contain deer and several kinds of game. The air is of
such purity that invalids reSOl't hither froro the other
parts of the 'Vest lndies fol' the recovcry of health.
Barbuda was first settled by a party of colonists from St.
Christopher's,Ied by Sir Thomas Warner. The settlers
were at first harassed by the Charaibs of Dominica, amI
compelled to desert th~ islc, but they soon afterwards
returned, and have nevel' sin ce quitted the place. The
whole of the island is the property of the Codrington
family. 4· Edw. ~30, 5th edito 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.


(5) 2<1 Rep. W. J. C. p. 61.




134·


DOMINICA.
-Dominica is one of the Caribbee Islands in the West


Indies. It is twenty-nine miles in length, and may be
reckoned sixteen miles in breadth. It contains 186,4~6
acres of land, and is divíded into ten parishes, (6) St.
John, Sto George, Sto Andrew, Sto Patrick, Sto Peter,
Sto Paul, Sto Mark, Sto Luke, Sto David, and Sto Jo-
sepb. (7) The capital of the island is the town of
Roseau. (8)


IlISTORY AND CONSTITUTION.


Dominica was discovered by Columbus on tbe 3d of
November, 14!J3, and was so named from its heing dis-
covered on a Sunday.


Jt was included with Sto Vincent alllI other islands in :l
patent granted to James Hay, Earl of Carlisle, in the first
year of Charles 1. (9)


In 167~, King Charles, by commission, appointed Lord
Willoughby governor of Barbados, Sto Lucia, Sto Vin-
cent, amI Dominica, (1) hut it does not appear that Do-
minica was evel' in the actual occupation of Great Britain
undel' that commission.


By the treaty of Aix-Ia-Chapelle in 174.8, the English
abandoned their pl'etensions to this island, and Dominica,
with Sto Vincent, Sto Lucia, aneI Tobago, was declared
neutral. (Z) It surrendered to the British anns in 1'759,
and by the Treaty of París, signed the 10th of February
1763, the former pretensions of Eugland were re-e sta-
blíshed, and Dominica, St. Vincent, and Tobago were
assigned to Great Britain, in full and perpetual sove-
reignty. (3) By royal proclamation of the 7th of October,
1763, it was declared that His Majesty had grallted let-
ters-patent, creating within the countries ceded by the
Treaty of Paris, fout' distinct governments, one of which
was to be "the government of Grenada, comprehending


(6) 1 B. Edw. 4·12.
(7) Proclamation fol' I'egulating


the e1ection of the Assembly, 21slof
June, 1775.


(8) 2 Rep. W. 1. C. 27.
(9) 1 Edw. 407. See this pa-


tenl mOre fullv lloticed at ti tic " Bar-
bados." ..


(1) 1 Edw. 411.
(~) Ibid. 408.
(3) See this a .. tiele of the treaty in


Loft's Repol'ts, p. 660.




DOMINICA. 135
the island of that name, togcther with the Gl'enadines and
the islands of Dominica, Sto Vinccnt, and Tobago," and
had directed thc governors 01' such governments that as
soon as the state and circumstances 01' the said colonies
8hould admit thereof, they 8hould, with advice and con-
sent 01' thcir councils, call genel'al"assemblies, and should,
with consent of the councils and asscmblies, make laws,
" as near as may beagreeable to the laws of England,"
and undel' such regulations and restrictions as used in
othel' colonies, and had a180 given pOWCl' to thc gOVCl'l101'S
to erect, with advice of thc councils, courts of justice fol'
determining causes "as neal' as may be agl'eeahle to the
laws of England."


By lettel's patent, bearing date the 9th of Apl'il, 1764,
General Melvill was appointed govel'l1Ol' of Grenada, the
Gl'enadines, Dominica, St. Vincent, and Tobago, with
power by advice and con8ent of )1Ís council, as 800n as the
situatíon 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 authol'ities, convened in each of the islands, con-
stituting the general government. The assembly of Do-
minica was convened as earIy as the 16th of June, 1768,
that being the date of the first act in the second table
prefixed to MI'. Gloster's collection. (5) Prior to the
holding of this assembly the island was govel'ned by the
ordinances of Governor Melvill and his General Council,
chosen from the different ceded islands. (6)


By the act just mentioned an ol'dinance of Governol'
Melvill and his conncil, fol' establishing COUl'ts of Common
Pleas anel Error was revivcd, continued, and amended.
This and several other acts passed fol' establishing and
regulating courts of justice prior to the court act of ] 803,
are aU repealed 01' have expired. (7)


(4) Tbis proelamation alld lhe let-
ters patent are stated in substallce in
the report of Campbell v. Hall, Cowp.
204, when tbe questiul1 of the levyillg
ofthe four and a halfper eent. duties
on these islauds was diseussed ami de-
cided. See ante, n. S, p.51.


(5) In Ihis collectioll Ihe date as-


,iglled tn "fleh aet is that of its pro-
c1amution UV lhe Provost-Mal',hal.
See lbe Prefaec, Ixviii.


(6) 1st lahle prefixed to Mr. Glos-
ter's Collection.


(7) 2d tahle prefixed to Mr. Glos-
ter's Collection.




136 DOMINICA.
In 1771 His Majcsty, at the solicitation of the legislatul'c


of this island, erected the same into a separate and indc-
pendent government, dissolving thcreby its connection
with that of Grenada, and appointcd Sil' 'Villiam y oung,
Bart., governor-in-chief oyer the saiel Islanel of Dominica
and its dependencies. (8)


On 01' about the 5th Octobel', 1774, an act passed for
establishing a Comt of Chancery, the governo1' 01' com-
mander-in-chief having been tiU this period sole Chan-
cellor. (9)


By pl'üclamation ZI June, 1775, His Majesty declared
that he had signified his disallowance of "an ordinance
made st Grenada by the governor in chief and general
council of the southern Caribhee Islands, intituled, ' An
Ordinance fol' establishing an Asscmbly in the Island of
Dominica, and regulating the election thereof; " (1) and
that he was desi1'ous that a fuU anel complete legislature
should be established within Dominica, upon a permanent
anel lasting foundation." And the proclamatiol1 p1'o-
ceeded to dircct the issue of writs fol' thc elcction of l'c-
presentatives fol' the diffcrent towns amI pal'isbes j that
these represcntatives should cOllsist of nineteen, and that
no business sbould be transacted unless thel'e should be
pl'esent when such business was proposcd 01' brought OIl
nine rnernbers at least. It also fixeu the qualifications of
the electol's and the members, aml containecl variou:;
other regulations. (Z)


In September, 1778, this islam] ",as invaded and con-
quered by a French force, and remainccl in the possession
of France till January, li83, whcn it was l'estorcd to tbc
dominion of Great Britain under the general pacificatioll
which then took place. (:-l) During thc French occupa-
tion tbe Assembly had been still aUowed to exercise its func-
tions, aml had passed seyeral acts. Hut it secms that the
validity of these \Vas afterwards douutcd in the island. (4)


(8) See Dominica Act, 3d uf Üdo-
bC'r, 1771~ intilulcd HAn Act for pro.
"jding a Sajar.\' for }¡i~ Excelkncy
Sir ,V. YOllng," As to (he 1lJ'('sen!
gm'ernment of Dominica S('C allte.


(9) Sec the Act uf the ~2d of Jl1ly,
1778, rt'citin¡! that uf ] 774, and dl'~
c1al'ing it to be in force.


(1) This onlilHlIlce, thercforc, it
would soem, ],ad been hitherlo lhe
aulhority (~llbord¡nalc to that of the


I'l'oclamat¡on ofOctubel', 176:1) undel'
"hich the Asscmuly of Dominic" liad
L('{'II Slllllfll'mcU. fts dak is llot men ..
tioncd, but it must 11l1\'C be en Olle of
l~uvel'n(ll' l\leJvil1's.


(Z) This proclamatioll wil! be
foullJ pretixcd (o 1\lr. Glo;ler" Cal-
leetion of Acts.


(S) 1 Edwards, ·k35, 'H1,
(4) Pl'cface lo Gloster's Collee-


tion, li¡.liii.




DOMINICA. 137
In 1784, Sir John Orde, Batt. was appointed governor,


und 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 fol' esta-
blishing Courts of Cotnmon PIeas, Error, King's Bench,
and Grand Sessions of the Peace, commonly called the
Comt Act.'" This act is said by MI'. Glostcr to be still
in force, and to be that undel' 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 governo1"s salal'Y," says J\ir. Edwards, "exclu-
sive of his fees of office, is .[1300 sterling, payable out of
the 4~ per cent. duties. Whether he has any addition
from the Colonial Assembly I am not informed." (7)


It appeal's, however, on examining the acts, that on the
3d Octobel',1771, the legislature gl'anted to governor
Sir 'V. Young, and his successors, ,i'5?OOO currency per
annum uuring his actual residence in the colpny; and on
25?d June, 1816, granted to Governol' Maxwell, while re-
sident, the like sum, in addition to the salary settled by
the former acto


The Council consists of twelve membcrs, anu the
Assembly of nineteen, of whom ninc are a quorum. (8)


" Tbe chief justice is appointed fi'om England. He has
a salary of nominally ,i'600 sterling per annum, but nets
about .1:550. He has also a colonial sala1'y of what is
called cf1500 currency, but annually sllbjected(9) to dimi-
lIution by the legislature. He has also fees incidental to his
office that may amount to ,i'300 01' .[400 a yeal' cUl"l'ency.
The other justices get trifling fces amI no other emolu-


(5) Prcfuce to Glostet"s Callee-
tion, lit


(6) And it appears by 2d Report
VI!. 1. C. 30, to have been in force at
the periad to which thal reporl refers,
viz. 18~3.


(7) 1 Edwards, 441, (note.)
(8) 1 Edwards 441. Proclamation


as to Elections, eited supo


(9) 2<1 Hepor! W. l. C. 43, 51.
'fhe \Vord used in the report, p. 51, is
" subjccteu," bul it is reasonable to
suppose that tlds is a m;,pl'int for
" subject," the salary perhaps heing
vated evel'Y year, and thereforc of
course beillg allllually liable to re-
dueti"n.




138 DOMINICA.
ments whatever. They are appointed by the governol'.
AIl the judges hold their offices during pleasure."


" The Attorney-General is appointed from home, hut
has a salary of cf300 per annum provided by the co-
lony." (1)


The qualification of barristers and attornies (whose
characters are united in the same persons) is provided fol'
by the Court Act, which enacts "that no person shall be
admitted to practisc the law in this islund (2) until he shall
have proved to the satisfaction of the Justices of the
Comt of Common Pleas, that he h3th be en admitted a
barrister in EngIand 01' heland, 01' hath kept such a num-
ber of terms at one of the Inns of Comt in EngIand, as
wouId have entitled him to be c·alled to the bar there, 01'
hath been reguIarIy admitted and sworn an attorney of
one of His lVIajesty's Comís at Westmiuster, 01' hath
practised as a barrister in any Qf His lVIajesty's colonies
in America for the space of five years at the least, 01' hath
been bound hy eontract in writing to serve as a clerk for
five years to a barrister 01' attorney in this island, and
eaused an affidavit to be made and pIaeed in the secre-
tary's office of the due execution of such contract, within
three months next after the date thet"eof, and shall during
the whole time and ter m of service continue actually em-
ployed by a barrister 01' attorney in the pl'oper business,
pl'actice, and ~mployment of an attorney."


COLLECTION OF LA WS.


An edition ofthe laws, includillg aH aets from the earliest
establishment of tile legisIature, to October, 1818, has been
published by the Chief Justiee, Mr. Gloster. And by an
aet of the isIand of 9th Oetober, 1818, it is provided,
"that the compilation of the Laws of Dominica made by
the ehief Justice, and printed and published at Roseau
in this colony by "Villiam F. Steward, pl'inter, in this pre-
sent year of OUl' Lord 1818, be adjudged, deemed and
taken as a good lawful statute bookofthisisland with regard
to the laws therein inserted, and be admitted as evidence
thereof in aH courts of judicature the1'ein 01' elsewhere."


(1) 2d Report W. I. C. 43. drawing conveyallces for fee Ol" re-
(2) This extends to giving advice or lVard. See tlle same acto




DOMINICA. ]39


GENERAL LAWS OF THE COLONY.(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
the colony as existed prior to the proclamation of 7th
October, 1763, and such acts of Parliament passed
since, as are expressly declared or manifestly intended to
apply to the island, 01" to the colonies in general.(4)


011 his examination under the late commission for in-
quh·y into the administration of justice in the West
Indies, the Chief Justice of Dominica thus expresses
himself on this subject:-


"The common law, as fal" as applicable to circum-
stanees and colonial situation, is generally followed.
The aets of the mother eountry anteeedent to the colo-
nial establishment, eomprísing the common law, are in
force also. Many English statutes are adopted and
deemed in operation which passed before the cession of
the island, and an statntes of England which affect U8
Iocally ."(5)


The Attorney-General observes, "the rule upon this
subject is so vague and so little understood in the colo-
nÍes, that decÍsions founded upon it will be often contra-
dictory."(6)


COURTS FOR THE ADMINISTRATIUN OF JUSTICE.


The courts of civil jurisdiction established in this
island are-the Comt of Chancery, the COUl't of Common
Pleas, the Court of Complaints, the Comt of Erro!", the
Court of Admiralty, and the Court Merchant. Although
el. 11 of No. Q speaks of judges 01' barons of the Ex-
cheque!", thcre is no Exchequer Comt in Dominica.


"The crown," said the Chief Justice, "can sue fol'
and recover its debts in aH the regular courts already ex-
isting." The comts of criminal jurisdiction are-the
Court of King's Bench and Gl'and Sessions ofthe Peace.


(3) See tbe remarks in the first
chapler on tbe general topie how fa ..
the coloni", are subject to tite law of
the motber Coulltry.


(4) See Ibe remarks, aupo on \he


general law of Sto Vincent, wbich
.cems to be exactly in pari casu wilb
Dominica in tbis reopecl.


(5) ~ Rep. W. l. C. 61.
(6) lbid.




140 DOMINICA.


Court 01 Chancel'!J.
The Court of Chancery, as at present constituted, was


established by an aet of the island, No. 14, Laws of
Dominica. It is composed, as at Barbados, of the go-
vernor, associatecl with the members of council, three of
whom, together with the commander-in-chief, are neces-
sary to form a comt. 'rhey are supposed to have the
same jurisdietion as the High Court ol' Chancery in Eng-
land.-Q Rep. W. 1. C. 34,.


Appeals lie to his Majesty in Council, on the usual terms
of the appellant giving bond in ,f500, with two sureties,
conditioned to prosecute the appeal withín ayear and
a day, which bond is lodged in Chancery. The Chief
Justice conceived there was no restriction from appealing
from all interlocutory orders as well as final decrees.
The court below decides on "the appealability of the
matter." Thc cffcct of the appeal ¡s, it is conceived, to
put a complete stop to all pl'oceedings in the colonial
Chancery.-2 Rep. W. l. C. 35.


Court of Commoll Pleas.
The constitution and practice of this Comt resemble,


but with considerable improvement, those of the supreme
civil comt in other islands. The establishment of the
comt is larger, consisting of a chief justice and fom other
judges, with the usual officers. The comt is held in
Rosean on the first Monday in March, April, May, June,
and July, and may be continued ancl adjourned at the
discretion of the judges.-Q Rep. 'V. 1. C. 37.


The pleadings and pl'actice obtaining in this island
appear, from the answers received, to follow with
tolerable exactness those of the courts of England.-
2 Rep. 38.


Complaint Cou1't.
A Court of Complaints, similarIy constituted to those in


the other islands, is established in Dominica fol' the reco-
very of debts to the amount of ,f25, which the Chief
Justice considers "quite high enough." Sorne differ-
ence of opinionprevailed as to debts not exceeding
cC6 lQs. 8d., which are recoverable under the Petty Debt
Act, and the Attorney-General conceived in no other
way. The Chief Justice considered tkis court as possess-
ing a concurrent jurjsdiction.-~ Rep. 40.




DOMINICA. 141


Court of Ordinary.
In the Court of Ol'dinary the governor sits, alone and


unassisted, in a11 cases. There is not any taxing officer in
this court.


AH original wills aneI testaments, after probate, are
lodged in the secl'etary's office, anel are nevel' suffered to
be taken away, copies duly authenticated being always
delivered.--2 Rcp. 'V. J. C. 40.


Court of Vice-Admiralty.
The Comt of Admiralty has an the jurisdiction of the


Instance Court in England; it is, besides, authorized by
acts of parliament to tl'y seizul'es, 01' penalties incurred by
breach of the laws of trudc, navigation and revenue.


'fhe chief justice is sule judge. Bis authority is from
the governor, lindel' his se al at arms to be "/tia deputy
amI surrogate in the Comt of Vice-Admiralty in this
island." Pirates, and other such offendel's, are sent to
Antigua for trial.--2 Rep. W. I. C. /W.


Cnurt Me1·clwnt.
This Court is revived and regulated by No. H, I,aws of


Dominica, passed in 1817.
By el. 13 of the expired act fol' constituting a court


merchant, it is made a court of record; anel by el. 14, the
process and proceedings are to be conformabIe to the
process and proceedings of the Comt of Common Pleas.
-2 Rep. W. I. C. 40.


COU1·t of Appeal and Error.
The Governol' and jive of the Council fOl'm this Comt,


which receives appeals fmm the Common PIe as, as <loes
the Common PIeas fl'om the CompIaint COllrt. The jus-
tices of the Common Pleas are expressly prohibited fl'om
sitting in this court. There is no limitation of time fOl'
bl'inging appeals fmm the Common Law Comt to the
Court of Error. The Chief ,Justice considers the regll-
lated amount for which "appeals may be bl'ought, both
fl'om the Common PIeas to the Comt of Error, amI from
thence to the King in Council, as much too high,"-2
Rep.41.




142 DOMINICA.


Court of Grand Sessions.
The judges of this court are, the lieutenant-govel'l1ol',


(not being commander-in-chief), the members of council,
the speaker, and all the justices of the peace, who are
members of the House of Assembly. The chief justice
however presides in this cou1't, and the othe1' judges vel'y
seldom interfel'e.


The court assembles twice annually. Any three jus-
tices of the comt (being members of council), may at any
time take bail, as is done by the Court of King's Bench
in England in term time, 01' by the justices thereof in
vacation.


During the absence at any time of the chief justice,
the bench f1'equently refers any legal point either arising
01' brought before them, to the attorney-generaI.-2 Rep.
W.I.C.42.


N o record is made up as in England, hut the proceed-
ings are ente red in a book, not however including the
pleadings. The prosecutor's expenses are not paid, nor
tÍte defendants.-2 Rep. 41.


As to the appointment of the chief justice and attor-
ney-general, see ante, 187, 138.




( 143


MONTSERRA'r.
-


Montserml is ane of the Caribbee Islands in the West
Indies.


It is about three leagues in length, anc1 as many in
breac1th, and is supposec1 to contain about 30,000 acres of
land, about two thirds of which are very mountainous 01'
very barren. (7) Jt bears the cedar, the eypress, the iron-
tree, and other woods, anc1 has the same general charaeter
of soil that is observable in the other Caribbee Islands.


HISTORY AND CONSTITUTION.


1VI0ntserrat was discovered at the same time with Sto
Christopher's by Columbus, in consequenee of a supposed
resembJance between it anc1 a mountain in Spain that was
so denominated, from whom it reeeived its name. The
Spaniards, however, mude no settlement on the island.
Like Nevis, it was first planted by a small colony from
Sto Christopher's. This was detached in 163Z from the
adventurers under Warne)·. (8)


The Couneil consists of six members, and the Assembly
of eight, two from eaeh of the four districts into which
the il:lland is divided. (9) The island is undel' the govern-
ment of the Governor of Antigua, und the duties of
governOl" are genel'ally performed by the president of the
counciI. (1)


COURTS.


The several courts in the island are a Court of Chan-
cel'y established by the act marked No. 185 of their
printec1laws, amended by the aet marked No. 2ZZ; (2)
a Court of King's Bench amI Common PIeas i a
Comt of Error, established by the act mal'ked 89; a
Court of Vice-Admiralty, a Court of CompIaints for the
recovery of small debta, and a Court Merchant fol' tl'an-
sient traders, and fol' criminal mattel'S thel'e was a Court
of Gl'and Sessions. (3) The President of the CouDcil, in
the absence of the Govel'l1ol', of coul'se presides in the
COUl't of Chaneery. The chief justice is not a lawyer,
but a l'esident gentleman of fOl'tune. The attorney-


(7) 1 Edw.497.
(8) 1 Edwards, 496. As lo Wor-


ner, sce title Sto Christopher.
(9~ 1 Edw. 498.


(1) S Rep. W. 1. C. 34.
(2) Id. 33, 34, 35.
(3) Id. ib.




144 MONTSERRAT.
general is also a prívate gentleman. They aet without
salary 01' other advantages derived from their situation,
and they an reported theír opinions to the eommissioners
in favour of a ehange in the mode of administel'ing justiee
in the isIand. (4)


COLLECTION OF LA WS.


The laws of the island are eontained in one printed
and two manuseript volumes in folio. The manuseript
aets are very numerous. (5)


This island possessed a legislative eouneil and assembly,
at least as early as 1668, that being the date of the first
aet in its printed eollection of laws.


That act, which is intituled "An Act declaring the
former grant of tbe duty of four and a balf per cent. lost
and null within this island, &c," recites, tbat during tbe
late war between Charles n., tbe French King, and tbe
N etherIands, His Majesty lost several of his islands in the
West Indies, being subdued by the French, assisted by
the Indians, "and amongst others, this island also beillg
lostas aforesaid, thereby all the constitutions of govern-
ment lands, and grants fol' lands, were also destroyed,
togethel' with the grant for duty of four and a haIf per
cent., which was fonnerly settled in this place." (6) The
act pl'Oeeeds thus, "that the said former custom, import,
01' duty of foUt' and a half pel' cent. is to a1l intents and
plll'poses become void and null, and also any act and thing
concerning the same by reason of the conquest aforesaid.
And the same is hereby declared null and void accol'd-
ingly."


Then follows in the same year an aet, intituled " An
Act for new granting and eonfirming the duty 01' custom
of four and a half per cent." After l'eeiting that, "by
reason of late eonquests obtained by the }'l'ench King on
an the inhabitants of this His Majesty's island, an man-
nel' of civil governments, the several constitutions, grants,


(4) 3 Rcp. W. l. C. 33.
(5) Id. ib.
(6) A tradition is rnmtioncd as ex-


isting in tbe island, tha! the old gran!
\Vas wilfully deslroyed by ¡he se,'-
van!s of the British erow]), anrl tha¡
!he loss of i! al the conques! of lhe
¡sland by the FrcHeh \Vas a mere pre-
tence; the ground of the alleged
fraud bcing tIla! the old gran! limited


¡hc application of the fOllr and a half
per cent. reVelllles to the purposes of
the local governrncnt. Thc 'Ves!
India Commissiollcrs (3 Rcp. 31)
state alld discredi! this picce of tra-
ditionary history. The ministers of
Charles Ir. haweve!' obtained a gran!
wbicb was accornpanied witb no sueh
l'estl'Íction.




MONTSERRAT. H5
and particular properties of all his said Majesty's subjects
were destroyed and lost within this his said island," it
enacts " that from and after the date thereof, a new im-
post 01' eustom of four and a half per cent. shall be paid
out of an the commodities of the growth of this island,
whieh shall be exported out of this island by every such
transporter, unto the use of Bis Majesty King Charles,
&c., his heirs and suceessors for ever. And the same is
and shall be hereby confirmed on Bis Majesty, his heirs
and successors, in as full and ample manner as ever the
same was heretofore paid, granted, and confirmed in
Barbados, 01' any other of his said Majesty's islands,
&c."


By a subsequent act in tbe same year, it is stated
that tbe island having been "fulIy subdued notwithstand-
ing all resistance possible was made by the inhabitants,"
aIl proprietors of lands are decIared to have lost the same
to his Majesty by reason of the French conquest, and
also by reason of the same island having been afterwards
re-settIed and restored by several ships and forces belong-
ing to his saicLMajesty King Charles the Second, &c."


And tben foIlows another act, also in the same year,
enaeting " that an and every of tbe late proprietors of
land in tbis island are hereby re-invested in all and singu-
lar their plantations, lands, immunities and appurtenances
which lately tbey enjoyed, and the same to hold, occupy,
enjoy, and possess, to him and tbem, his and their heirs,
executors, administrators and assigns for ever, and that
they shaIl and may, when reasonably desired, have the
same so confirmed by patent under the great seal of Bar-
bados and the rest of the Caribbee Islands for that
purpose by his said Majesty appointed," with the excep-
tion of certain lands in the act particularly specified.


In the same year passed an aet "for the speedy erect-
ing and building of a place for the Court of Judicature,
now 01' hereafter to be erected in this island," &c.


In 1672 (7) Montserrat, Antigua, Sto Christopher's, and
Nevis, (8) (to which the Virgin Islands were afterwards
annexed,) (9) were consolidated under one general go-


(7) 1 Edw. 453. In ¡he same
year Lord 'Villollghby "as appuint.
erl go\'erllor of Barbadus. Sto Lucia,
Sto Vinccnt, nlld Don'¡nica. Ibid.
411.


(8) See Antigua Act, 22d June,
1705.


(9) Unt!p,' a commissiun granled
b.~ Charles 2 to Si,. W. Stapletoll.
I~dw. ubio "'p, ,')01.


L




]46 MONTSERRAT.
vernment, called "The Leeward Caribbee IsIand Go-
vernment," and the governor whel'eof was styIed " Cap-
tain-GeneraI of the Leeward Caribbee IsIands."


The general governmc:mt eonsisted, besides the governor-
general,.of a general council and general assembIy, who
passed Iaws on subjects of common anduniversaI concern
relating to the different islands of which it was com-
posed. (1)


This island was invaded by a French force in 1712, (2)
and taken, but was restored to Great Britain under the
treaty of Utrecht, concluded on or about 31st March,
1713.


It was again invaded and captured by the French iti
1782.


On the28thDecember, 1782, passed an act (No. 217)
reciting that in consequence of the capture of that isIand
by His Majesty's arms, doubts had arisen as to the validity
of the several suits and process then depending in the
Courts of Chancery, Error, King's Bench, and Common
PIeas of the said island, and particulady whether the
said suits and process can be carriedon in the same man-
ner aS'if this island had still continued under the subjec-
tion oí the Cl'own of Gl'eat Britain. And the said act
pro vides that all suits, &c. depending in the said courts
at the time of thecapture by His Majesty's arms on the
22d February last, shall be ·l'evived and made valid, and
restored to the same plight and condition as at the time of
the capture by His Majesty. " And the several plaintifts
at law and in equity, in such suits are hereby fulIy autho-
rized' and empowered to pl'oceed tofinaI judgments and
deerees thereupon, . 01' otherwise, according tothe nature
of their ,respective suits, and likewise to an subsequent
pro ces s, in the same manner as if the said island had not
been captured, but still continued under the subjection of
His BritannicMajesty aforesaid," &c. .


This island was finally ceded to Great Britain under
the general pacificatión which took place in 17&'3. (3) An
act similar to the foregoing was then passed, (dated 27th
April, 1784, No. 225,) which, after l'eciting that doubts
had arisen as to the validity of suits depending at the time


(1) St'e ante Antigua. See printed
edito of Antigua nets, vol. 1, p. 1 lo
23.


(2) 1 B. Edw. ,197.
(:3) Ibid.




~IONTSERRAT. 147
of tha restitution of the isIana by tbe French King to His
Majesty, declared sueh suits to be valid, &c.


On the said 27th April, 1784, passed an aet (No. 226),
intituIed "An Act for confirming and establishing severaI
Acts passed by the Legislature of this IsIand during the
government thereof under the French King," which re-
cites, "that doubts had arisen as to the force ana vaIidity
of the severaI acts passed by the IegisIature of the said
isIand during tbe government thereof under the Freneh
King, and that it was highly proper for the ease and
benefit of his Majesty's subjects in the said island that
several aets, from which his Majesty's subjeets had de-
rived great advantage, passed by the Iegislature of the
said island during the government thereof by the French
King, should be confirmed and restored to the same state,
eondition, force and effeet in which tbey were at the time
of the restitution of this island to His Majesty." And the
act proceeds to provide "that aH ana every the foHowing
aets passed by the legisIature of this island during the
government thercof under the Freneh King, that is to
say, an aet made ana passed the 19th day of September.
1783, intituled 'An Aet to alter, amend and explain cer-
tain . parts of an act intituled An Act for establishing
a Comt of King's Bench and Common Pleas and a Court
of Error, 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 by
his excellency by advice of his' eouneil,' and one other
aet made and passed on the same day, intituled 'An Act
to alter, amend and expIain an act intituled An Act fol'
constituting a Court of Chaneery to be heId in and fol'
this island,' the force of whieh, in eonsequenee of the late
restitution of the said isIand 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 wbatsoever," &c.


One of the acts of assembly of this isIand is too curi-
ous to be passed over without notice. It recites, in an
Eastern style of metaphor, tbat opprobrious language,
" if not prevented, may oversbadow the good government
and administration of justiee in this isIand witb the staple
clouds of reproach and infamy," and it then proceeds to
prohibít such language general1y, ami the followíng nick-


L B




148 MONTSERRAT.
names in particular :-" Tory-English-or Irish-or
Scotch Dog," &c.(4)


COURTS.


The commissioners state that it is not in their power to
enumerate the courts of judicature in this island, no an-
swers having been received to the questions addressed by
them to the chief justice and the resident crown lawyer.
-3 Rep. W. I. C. 33.


Court of Clzancery.
A Court of Chancery appears to have been constituted


by No. 185 ofthe Laws of Montserrat, amI amended by
No. 222.


By the former act the Governor 01' president, and five
members of the council, compose a court.


By No. 222, in case of the Governor or president being
a party to a suit, the next senior member of council is
appointed to preside; and for want of five disinterested
persons to act as judges, three or four members of council
are allowed (with the commander-in-chief) to form a
court.


Court of King's Bcnclz and Common PIcas.
The act of the island, No. 89, creates a Court of


King's Bench and Common PIeas, with an establishment
of one chief justice and four assistant judges, "to try
causes according to the laws and usage of Great Britain,
and the Iaws and usage ofthe island."-3 Rep. W. I. C. 34.


Ol/ter Courts.
A Court Merchant for transient traders was established


so late as the year 1800.
There is also a Comt of Vice-Admiralty, and it seems


umIer clause 8 of the Court Act, a Court of Complaints in
this island, or at least a jurisdiction for the recovery of
small debts.


(4) ;, Rel" W. I. C. 31.




MONTSERRAT. 149


Court of Grand Sessions.
This court 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. l. C.35.


By the act constituting the Court of Sessions, all magis-
trates are required to attend.


Justices of the Peace.
Justices exercise a summary jurisdiction in civil mat-


ters in this island, in all cases where the debt does not
exceed cflO; appeals to a higher tribunal are allowed
where the sum exceeds .e3 currency. '


The only case in which the practice of granting search
warrants in this island differs from the proceedings in
England is in the mode of searching negro houses for
stolen goods, when no warrant is necessary, but the
master, mistress or oyerseer of the plantation must be
presento


A prisoner when acquitted is instantly set at large-the
fee is charged to the public; the expense of prosecutions
is borne by the country; but persons found guilty of
assaults pay ror the prosecution.


Justices have jurisdiction in disputes as to seamen's
waO"es.-3 Rep. W. l. C. 37.


fuquests on white and free people are taken as in Eng-
land; on slaves, as the Melioration Act prescribes.


Information of sud den or violent deaths is received
from the owner, attorney or manager; never in this island
from the slaves.-3 Rep. W. I. C. 38.




NEVIS.


-


Nevis is one of the Caribbee Islands in the West
ludies.


It is nothing more than a single mountain, the circum-
ference of the base of which does uot exceed eight
English leagues. .


It is divided into five parishes. Its seat of government
is Charles Town, and thel'eare two other shipping places
called Indian-CastIe and New-Castle.


The number of white inhabitants at the period of Mr.
Edward's work is stated at about 600, and the negroes
are said to be about 10,000. (1)


HISTORY AND CONSTITUTION.


The English first established themselves in . this island
in the year 16528, under the protection andencouragement
of Sir Thomas Warner. (52)


It is said that in 1640 it PQssessed 4;000 whites. (3)
This island possessed a legislative council and assem-


bly at least as early as ]664, whieh is the date ofthe first
aet in its printed eolIeetion of laws.


That aet, whieh is intituled "An Act for settling an
impost on the commodities of the growth of this island,"
recites that Chao 1, did by Ietters-patent uuder the great
seal of England, grant and eonvey unto James, EarI of
Carlisle, and his heirs for ever, the property of that Island
of N cvis; and that Chao Z, had by purchase invested him-
seIf in all the rights of the said carl, (4) and in all other
rights which any person might c1aim from that patentor any
other, and thereby more immediately had taken that isIand
and the rest of the Caribbee Islands into his royal protec-


(1) 1 B. Edw. 468 to 470.
(2) 1 B. Edwards, 470. See titIe


.. Sto Christopher," for an aCcollnt of
Sir T. Warner.


The senior Killg'S Counsd at
Ncvi:", e:,.amined undc!' 1\1r. Dwm'·


ris's commission, speaks of 1625 as
the date of the "first settlement of
the coIony."-2d Rep. W. I. C. 62.


(3) 1 B. Edwards, 471.
(,~) See Ihis transaetion expIained


al litIc " Barbados."




NEVIS. 151
tion, and had by lettel's-patent under the great seal of
England, bearing date l~th June, in the fifteenth year of
his reign, appointed Francis, Lord Willoughby ofParham,
Captain-General and Chief Governor of Barbados and
the rest of the Caribbee Islands, (5) with full power and
authority to grant, confirm, and assure to the inhabitants of
the same and theil' heirs for ever, all lands, tenements,
and hereditaments under His Majesty's seal appointed
for Barbados and the rest of the Caribbee Islands, 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 hall lost their grants, &c.;
and that an acknowledgment of twenty pounds of toba ceo
per paJe, and other taxes had been raised by the island to
the Barl of Carlisle, whieh had been held very heavy.
The act then proceeds to provide that all the now rightful
possessors of lands might repair to his exceUency for a
full confirmation of their estates and tenures under the
public seal of the island, and also that the payments of
the twenty pounas of tobaeeo per pole, and all other
duties due to His Majesty in right of the ear~ shall
ceas e ; and that die inhabitants shaU hold their plantations
to them and their heirs for ever in free and common
socage at the rent of one earof Indian corno And in con-
sideration of such extinguishment of duties and eonfirma-
tion of lands, the act lays on an impost payable to the
erown for ever of 4~ per eent. on all the exported produce
of the island. (6) .


In 1672 the Leeward Caribbee Island Government was
formed in the manner already related. (7) 11. roay be
doubted whether the general legislative assembly of the
Leeward Caribbee Islands had any existenee till the eom-
mission of Wm.3, in 1689. Its' printed aets begin in
1600, and the aet whieh declares the power ofthe general
assembJyover 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 I.lands in America," as it is
expresscd in tbe Nevis Act, No. 2.


(6) This impos!, as elsewhere el[-


plailled, is payable at Barbados and
alJ lhe Leeward Caribbee IsJands.
See Ibe different litles.


(7) See unte, Antigua.




152 NEVIS.
first year of his reign, King William 3. authorized " the
Governors, Couneils, and Assemblies of theil' Majesty's
Leeward Caribbee Islands in Ameriea, jointly. amI
severalIy to make laws for the publie peaee, welfare, and
good government of the said islands, which said Iaws were
to be, as conveniently might be, agreeable to the laws and
statutes of tbis kingdom, and to be transmitted to His
Majesty for his royal allowanee 01' disapprobation of


. them." (8)
An act of 1710 (No. 68 of printed Iaws of N evis)


mentions courts of justice as having been for some time
heId in the isIand; and in 1711 an act (No. 70) passed
" for establishillg the Courts of Queen's Beneh and Com-
mon Pleas, and settling due methods fo1' the administra-
tion of Justice in this Island." And in May, 1732, an aet
(No. 94) passed for the like purpose. This, not having
expressly repealed the former, they are both contained in
the printed eolIeetion. (9)


In 1782 Nevis with St. Christopher surrendered to
the arms of France; (1) but was restored to Great Bl'itain
by the peace of 1783.


The " Leeward Island Government" no longer exists,
its component parts having been for some years past se-
pa1'ated. The commission under which, till the last year,
Nevis was governed, comprised also St. Christopber, An-
guilla and the Virgin IsIands, but did not embrace An-
tigua 01' Montserrat. They are now all cOllsolidated illto
one government, with a lieutenant-governor to each dif-
ferent island (see ante, 123.)


This newly-constituted general government ·has not a
general couneil 01' assembly; but each island enjoys (as
before) a coullcil and assembly ofits own.


Mr. Edwards states that in the absenee of the governor-
general thc government of this island is administered by
the President and Councíl, and that this board is com-
posed of the president and six other members, and that the
House of Assembly consists offifteen representatives, three
fOl' each parish. (2)


The chief justicc and assistant judges are saíd to be


(8) This commissioIl is rccited in
an Order in Council transcribeel in
tlié prillted aets of Montserrat. p. 13.


(9) With respect (o the COlll'l uf
Chancery it derives it" ,¡ulhority en·
tireJy froJO th~ Ki:I.Q;·s CO!lllUhsiul:


anu instructions to the governor, there
ueing no local law all tl;e 5ubject.-2'¡
Uep. W. r. c. 67.


(1) 1 n. Ed",ards, 168.
(~) Iuiel. 470.




NEVIS. 153
appointed by the govcrnor by patent, to continue· during
pleasurc. They have no salaries, and (except tbe chief
justice, whose fees are settled by law,) scarcely any fees. (3)


There is no attorney 01' solicitor general in this island.
Those officers reside at Sto Christopher. The chief law
officer of the crown is called the senior king's counsel.
This gentleman, when examined under the late commis-
sion for inquiring into the administration of justice in the
West Indies, was asked whether it was requisite that pel'-
sons acting as counsel in these courts should have been
called to the bar in England, and if not, who were ad-
mitted to practise and in what manner? his answer was-
that "persons who have been called to the bar in Eng-
land, as a matter of right, as of course, and persons whose
competency is made apparent by certificate, 01' upon
motion in open court, by the usage of the COUl'ts, are ad-
mitted to practise as counsel and solicitors, 01' attol'llies,
and as advocates and pl'octors in aH the courts respectively,
and such admission is considel'ed to confel' the same pri-
vileges with the same restrictions and controul of the
eourts as does an admission in the mothel' country tltere ,.
but I have becn able to trace no rule of the court as to
these matters. In the Court of King's Bench and Com-
mon Pleas in this island however counsel are not privi-
leged to practise as attornies, and do not, there being only
four attornies allowed by the Court Act. But the present
four attornies have been admitted barristers also; one by
speciaJ rule of Court." "There is no rule of court as to
the qualification of persons to practise as attornies; but
the court is satisfied of thcir ability 01' competency before
admission, which is obtained in like manner as in the case
of bal'l'istel's. They are not limited as to clerks."(4)


COLLECTION OF LAWS.


There is an edition of the Acts of the Island from 1664
to 1740(5) inclusive, with the Acts of the Caribbee Lce-
ward Islands annexed, printed by authority of the lord s
of the committee of the privy council for trade and plan-
tations. This is scarce.


There is another from 1664 up to 1774, printed by tbe


(3) 2 Rcp. W. 1. C. 55 and 3
Rep.53.


(4) ed Iteport, W. 1. C. 55.
(5) This should be 1739. 11 was


prinled in London by Ihe King',
printer in 1740.




1M NEVIS.
authority of the legislatllre, and rnade evidenee by an aet
for that purpose, and this is also scarce.


There is a third from 1664 to the middle onSIS, printed
by authority of the Council and Assembly; but this is in-
accurate, the press not having been properly revised or
corrected by regular authority. The acts from May,
1818 were, in 1825, in manuscript only.(6) .


GENERAL LA W OF THE COLONY. (7)
By an aet of the Leeward Islands of 7 June, 1705, in-


tituled "An Act to settle General Councils and General
Assemblies for the Caribbee Islands in America, and to
secure to each particular Island their own peculiar Laws
and legal Customs," it is provided that all the laws and
legal customs now in force in each and every of the Ca-
ribbee islands and respecting only the cireumstances of
the same, be and remain in their full force and virtue.(8)


By another act of the Leeward Islands of 20 June,
1705, intituled " An Act for preventing tedious and eharge-
able Lawsuits, and for declaring the rights of particular
tenants," it is declared " that the common law of England
as far as it stand s unaltered, &c.(9) is in force in each of
these Islands, and that a11 custorns, &c. contradictory
thereunto are illegal, nuU and void."


Upon the examinations under the late commission for
inquiring into the administration of justice in the West
Indies, the senior King's counsel of Nevis thus expressed
himself:-" The common law of England, unaltered by
any written law of the Leeward Islands or this Island, or
by sorne Acts of Parliament extending to the Colonies, is
eonsidered the certain rule whereby the rights and pro-
perties of the inhabitants are or ought to be determined;
and all customs, or pretended customs, 01' usages contra-
dictory thereunto are illegal, nuU and void. And a11 Acts
of Parliament of the mother country, antecedent to a cer-
tain period, and applicable to the colony, or whieh 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 the Court


(6) 2 Rcp. W. l. C. 58.
(7) Sp.e the remarks in the first


chapter on the general topie how far
liJe colonies are subjeet to the law of


the mother country.
(8) See title " Antigua," where


tbe recitals of tbis act are givcn.
(9) See ante, Antigua.




NEVIS. 155
of Common PIeas, passed prior to the Court Act, anno,
1732, are considered as operative in this island. But that
certain period does not appear to have been settled by
any judicial decision that I have met with on record here.
By the 25th clause of the Court Act, whereby the Statute
of Frauds of 29 Cal'. 2, is extended to this Island, it ap-
pears that Acts of Parliament of that date, 29 Cal'. 2, were
considered inoperative here. But at how much earlier a
date I do not find, possibly soon after the final settlement
of the colony in 1625, 01' the early part of the seventeenth
century."-2 Rep. W. l. C. 62.


In the case of Campbell v. Hall, Howell's State Trials,
vol. 20, p. 289, Lord Mansfield is reported to have said,
" It is absurd that in the colonies they should carry all
the laws uf England with them. They carry such only
as are applicabIe to their situation. I remember it has
been determined in the council. There was a question
whether the statute of Charitable Uses operated on the
Island of Nevis. It was detel'mined it did not; and no
laws but such as were applicabIe to theil' condition unIess
expresslyenacted."


Ofthe Laws ofNevis the principal are these:-
No. 33, cl. 1, enacts that the coronel' shall execute his


office pursuant and according to the laws and statutes of
England.


No. 100. The Court Act of this isIand, intituIed An
Act for establishing the Courts of King's Bench arid
Common PIeas, &c. &c. with such powers as the judges
of the two courts at Westminster respectively have 01' ex-
ercise, subject, nevertheless, to such jurisdiction, power,
&c. as the Court of King's Bench, at Westminster, hath
usually had over all other courts in his Majesty's domi-
nions.(l)


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 f1'0111 sitting in this court,


(1) lt is said however that appeals
go froOl tbe Conrt of King's Beneh
and Cornrnon Pleas to the Coort of
Error, and thcnee to the King in
Council, notwithslanding the c1ause of
Ihis COllrt Act, which secms to re-


serve the pOlVer of appeal froOl the
Court of King's Bench and CornOlon
Pleas in the island lo the Coort of
King's Bench in England.-Z Rep.
W. I. C. 186.




156 NEVIS.
which is composed as it is vaguely said of" about thl'ee
justices of the peace."-3 Rep. W. l. C. 42.


COURTS.


The courts for the administration of Civil justice in this
island are :-the Court of Chancery, the Court of Ordi-
nary, the Court of Error, the eourt of King's Bench and
Common Pleas, and tbe Court ofVice-AdmiraItYi but the
Court of King's Bench and Common Pleas, and tbe
Court of Error only are established, by the laws of tbe
island.


The courts for the administration of criminal justice
are:-the Court of King's Bench and Common Pleas, 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
and Terminer and general Gaol Delivery, the Court of
Vice Admiralty, and the Commission Court for the trial
of pirates. The fil'st five are established by laws of the
¡sland; the succeeding three are derived mediately, (i. e.
through the eaptain general,) the last immediately from
the King.


Tke Court 01 Ckancery.
The Court of Chancery in this island derives its autho-


rity entirely from the King's authority and instructions to
the eaptain general, there being no local law whatsoever
upon the subject.


The captain ~eneral is sole chaneellor, and holds a
eourt pro re nata.


There is one master in chancery, appointed by the cap-
tain general, and he is examiner also. He does not give
any security.


Costs in this island are taxed by the Master, who is
governed by a docket established upwards of thirty years
ago.-3 Rep. W. 1. C. 45.


Court 01 King's Benck and Common Pleas.
In this court are blended tbe separate jurisdictions of


the Courts of King's Bench and Common PIcas in Eng-
land.


The comt derives its authority from the Court Act.
No. 100.-3 Rep. W. l. C. 46.




NEVIS. 157
The writ of lzabeas corpus is obtained in this island


both at common law and in favour of liberty, by the Act of
Charles 2d; though the legal extension of it to this island
is questionable, and its suspension disregarded.-3d Rep.
W. l. C. p. 47.


Courtlor the Recovery of Small Debts.
There is no Court of Complaints in this island, but by


the 3fld clause of the Court Act justices of the Court of
King's Bench and Common PIeas have " power to hear
and determine in court, without a jury, an manner of
actions and suits under the value of lOl. cun'ent money, or
lOOIb. of sugar;" and likewise "aH cases relating to ser-
vant's wages and debts due to artificers and labourers, not
exceeding 20001b. of sugar, 01' 15t. current money; and
in such cases the oaths of the plaintiff shall, if the Court
think fit, be sufficient evidence to prove the debt or de-
mand." At the time of passing this act in 1732, accounts
were very commonly kept and actions brought and judg-
ment given for so many pounds of sugar, eo nomine, which
may partly account for the making produce a legal tender
to the marshal at sales upon executions, and the practice
which has grown out ofit.-3 Rep. W. l. C. p. 48.


Court of Ordinary.
There is no Court of Ordinary in this island established


by]aw. The captain-general (of St. Christopher, ofwhich
Nevis is a dependency,) is sole Ordinary in his govern-
ment by virtue of the King's commission. He sits when
applied to as in the Court of Chancery, but deputes
generally the president of the council to grant letters of
administration, (but not toLdecide on a caveat,) probate of
wills, and marriage licenses.-3 Rep. W. l. C. 49.


Court 01 Vice-Admiralty.
The Court of Vice-Admiralty derives its ordinary au-


thority and jurisdiction from the commission, (as vice-ad-
miral,) and the instructions to the capta in-general; and
its powers are the same locally as those of the High Court
of Admiralty in England. The Court has also a concur-
rent jurisdiction with the Courts of Record by virtue of
certain acts of Pal'liament; and by special commission, (of
late disused,) it has cognizance of prize causes during war.




158 NEVIS.


Court 01 Error.
In this court the captain-genel'al, 01' othel' pel'son ad-


ministering the government, and four 01' more members of
the council, are the judges.-3 Rep. W. l. C. 49.


The " Criminal jurisdiction" of this island is vested in
several courts, viz. the King's Bench side of the Court of
King's Bench and Common PIeas, the Court of Sessions,
holden annually on the first Tuesday, Wednesday, 01'
Thursday in October, composed of three justices of the
peace at least, one whereof to be of the quorum, who,
according to the commission of the peace, are the members
of the council only; the Comt of Justices of the Peace,
consisting of one, two, 01' more justices, as occasion may
require, and as prescribed by the general commission of
the peace; and Courts of Oyer and Terminer and General
Gaol Delivery, depending upon commissions issued from
time to time, upon extraordinary.occasions, by the captain-
general. These courts' are all governed by the laws of
the mother country, not being affected in their proceed-
ings 01' practice by any local act whatsoever. Prosecu-
tions are frequently carried on at the instance of a private
prosecutor, who retains whom he pleases in the Court of
King's Bench and Common Pleas, and at the Court of
Sessions, but in aH the other courts, and in cases termed
"public prosecutions," that is, conducted at the public
expense, aml noticed by the superior authorities, the senior
King's counsel resident in the island prosecutes, unless the
Attorney-General 01' Solicitor-General, who reside at Sto
Christopher, are speciaHy called upon, which usually hap-
pens in cases of importance 01' magnitude.-3 Rep. W.
l. C. 50.


With the exception of the chancellor, the ordinary, the
members of the council, and the commissioners fol' the
trial of pirates, (at the Admiralty sessions,) who are all
appointed by the King, all the judges and justices of the
several courts are appointed by the captain-general by
patents under the great seal. Tpey have no salaries, and
(except the Chief Justice of the Court of King's Bench
and Common Pleas, whose fees are settled by law, and
the judge of Vice-Admiralty,) scarcely any fees. lt was
not known that justices had any jurisdiction in civil mat-
tcrs in this island.-S R:ep. ·W. l. C. 52.




( 159 )


STo CHRISTOPHER AND ANGUILLA.


-


Sto Clwistopher is one of the Cal'ibbee IsIands in the
West lndies. It lies in 17° 15' north lato and 63Q 17'
west longitude. It is about fourteen leagues in circuit,
and contains 43,726 acres ofIand. It is divided into nine
parishes, and contains foul' towns and hamlets, viz. Basse-
terre (the present capital, as it was previously that of the
French) containing about 800 houses, Sandy Point, Old
Road, and Deep Bay. (1) When Bryan Edwards wrote,
the number of white inhabitants was computed at 4000,
and taxes were levied on Q6,000 negroes, -and there were
about 300 blacks and mulattoes' of free condition. (Q)


Anguil/a is an Island sixty miles north west of Sto
Christopher.(3) It is now said to be a dependency of the
latter island, aml to send one member to its assembly.
But in the continuation of MI'. Edwards's book it was said
that "Anguilla has an assembly of its own, and even a
chief, who is always chosen by the islanders, though he is
confirmed in his office by the Governor of Antigua." (4)
It is in length more than nine; and in breadth less thao
three leagues. It was settled by the English in 1650.


HISTORY AND CONSTITUTION.


Sto Christopher's was discovered in November, 1493,
by Columbus himself, who gave it his own Christian
name. But it was neither planted nor possessed by
t4e Spaniards. It is the eldest of all the British Co-
loniesin. the West ludies, and, indeed, the common
mothel; both of the English and French settlements
in the Caribbee Islands. Mr. Thomas Wamer, with
fourteen other persons, sailed fl'om England and arrived
at Sto Christopher's in January, 16Q3, and by the month


(1) 1 B. Edw¡¡rds, 462 to 467.
(2) Ih. 467.


(3) Brooke's Gazetteer.
(-t) 4 B. Edwards, 217.




160 STo CHRISTOPHER'S.
of Septemher following had raised a goou crop of tobacco.
The first actual establishment in Barbados did not take
place till the btter end of 1624. (5)


The English found the Charaibes in possession, and
with them they continued to live for sorne time on ami ca-
ble terms.


In May, 1624, a ship of James Hay, Earl of Carlislc,
arrived in the colony, having been sent out there at tbc
solicitation of W arner, with necessanes for the new
settlel's,


In 1625 a party of French ad venturel'S landed in the
island and wel'e well l'eceived by the English, and shortly
afterwards the settlel's of both nations fell upon the Cba-
raibes, destl'oyed great numbel's of them, and drove the
rest from the island. (6)


In the first year of Chao 1, (1625,) that monarch, by
lctters-patent under the Great Seal, granted to James
Hay, Earl of Carlisle, and his heirs for ever, the wholc of
the Caribbee Islands. (7)


In 1626 Warner was knighted, and through the interest
of Lord Carlisle sent out fl'om England as Governor of
Sto Christophel"s; and in 1627 a treaty of partition took
place between the English and French commanders, by
which they agreed to divide the island in nearlyequaI
parts between their respective followers. (8)


In 1629, a Spanish force invaded St. Christopher's,
expelled both French and English, laid waste the set-
tlements, and reduced the country to a deserto The two
latter nations, howcver, were afterwards restored to their
possessions in this island. (9)


In the reign of Cha. Q, that monarch purchased aH the
rights 01' 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 un del' the great
seal, bearing date 12th June, in the fifteenth year of
his reign, (1663,) appointed Francis Lord Willoughby, of
Parham, Captuin-General and Chief Governor of Barba-
dos and thc rest of the Caribbee Islands. (1)


(5) 1 B. Edwards, 454, 455.
(6) Ibid.4.';7.
(7) Scc Ncvis Act, No. 1 of


printcd collectioll. And see title
Harbados, "befe tbis maUer is more
fully stated.


(8) 1 n. Edwards, 458,459.
(9) Ibid. 182, 183,4.59.
(1) Nevis Act, No.l, printed col-


lection, and titles " Barbados," whcrc
lbi, maltcr is more fully stated.




sTo CHRISTOPHER'S. 161
In 1666 the English plantcrs were driven out by the


Freneh, but obtained restit.ution by the treaty of Breda in
1667. (~)


In 1689 the English wcre again expelled by their
Freneh neighbours, who remained about cight months in
exclusive possession, but were themselves in tU1'11 reuuced
by the English under the eommand of General Codring-
ton. (3)


Sto Christopher's enjoyed a legislative assembly at least
as early as 31st August, 1694., for by an act of the Lee-
ward IsIands of that date, (4) it incidentally appears that
eaeh of the islands of whieh the general government was
composed possessed at that time a Couneil and AssembIy.
This appears to have been secul'ed to them by the eommis-
sion granted by 'Vm. 3, and dated 20th Octobel', 1689,
by which the Governol's, Councils, and Assemblies of the
Leeward Caribbee Islands were authorized "jointly and
sevel'ally to make laws for the public peace, welfare, and
good government of the said islands." Before the year
1704 the English appear to have conquered that part of
Sto Christopher's, which had formerly been in possession
of the French, for in that year Mr. Attorney-General
Northey reported with regard to "that part of Sto Chris-
topher's lately gained by eonquest from the Freneh," that
"Her Majesty may, if she shall be so pleased, under her
great seaI of Englanrl, direct and command the duty of
4~ per cent. to be levied on goods exported from the eon-
quered part, Her Majesty by her prerogative being
enabIed to make laws that will bind pIaees obtained by
eonquest." (5)


In 1711 an aet was passed in St. Christopher's (No. 1
of printed eolleetion) Íntituled, "An Aet for the esta-
blishing of Courts and settling due methods for the admi-
nistration of justiee in this island. (6)


(2) Act of St. Christopher's, No.
38, el. 5, oí pl'inted collcetion, 1
Edwards, 460.


(3) Aet of Sto Christopher's, No.
38, el. 1, of printed eolleetioll, 1 Ed.
wards, 461.


( 4) Among lhe aets of the Leeward
I.Jauds anncxe¡J to Ibe printed aets
of St. ehristophe,'s.


(5) 1 Chal Op. Ht.


(6) "Tbis aet was repeaJed by
allother pa,sed in 1724, (No. 59.)
But scvl'ral objections arising to that
aet it was not confil'llled, bUlordered
to Jie by probationar.v. Therefore
both aets are primed." Note in
margin of Ihe pl'inted collection.


lt is the aet uf 1724, (No. 59,)
howevrr, which is cUllsideH.'>d in St.
Kit!'s as the existing Court Act. 2


M




162 STo CHRISTOPHER'~.
On 13tl.l Novcmbel' in the same yeal', an act passed


intituled, "An Act fol' preserving the Freedom of Elec-
tions, and appointing who sha11 be deemed Freeholders
and be capablc of electing or being elected Representa-
tives." (7)


By the peace of Utrecht, concluded on 01' about the
31st March, 1713, this island was ceded wholly to the
English, and the Fl'cnch possessions were aftel'wards pub-
licly solel fol' the benefit of the English government.
Sorne few of the French planters, however, who con-
sented to takc thc oaths, were naturalized and permitted
to retain their estates. (8)


In 17547 an act of Sto Christopher's (No. 68) passed, to
subjcct all goods, the gl'Owth of the late French part of
the island, to the payment of the 4k per cent. dnty, 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 01' known by the names of Nevis, Sto Christo-
pher's, Antigua and Montserrat, made in 01' 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 8t. Christopher's
(No. 71) passed, intituled "An Act to enable the several
parts of this Island, forme)'ly bclonging to the French, to
choose and send Representatives to serve in the Assern-
blies of this Island; to declare ami ascertain the N umber
of Rcpresentatives fol' the whole Island, what number each
Parish shall elect, and the sevel'al qualifications of the
Electors and Candidates; to se cure the Freedom of Elec-
tions, and for repealing an Act of this Island, dated the
13th day of N ovember, 1711, intitulcd " An Act for pre-
serving the Freedorn of Elections and appointing who shall
be deerned Fl'eeholders, and be capable of electing 01'
being elected Representatives." .


In 1782 Sto Chl'istopher's was invaded and captured by


Rop. W. 1. C .. ~2, 58, 186. The
Conrt of Chancery in this island does
not derive ils authority under either
01' these acts, bul unly onder the
Go\'ernor's commission. Ibid. 52 to 66.


(7) l\1clltioned and repealed by
No. 71 of printed acts.


(8) See Act of Sto Christopher's,
No. 71, 1 Edwards, 461, 462.




STo CHRÍSTOPHER'S. 163
a French force; but it was restored to Grcat Britain
under the general pacification in 1783.(9)


Mr. Edwards states that "in Sto Christopher's the Coun-
cil should consist of ten members; but it is seldom that
more than seven are presento 'rhe House of Assembly is
composed of twenty-four repl'esentatives, of whom fifteen
make a quorum. 'rhe requisite qualification is a freehold
of forty acres of land, 01' a house wOl'th .i'4-O ayear. Of
the electors the qualification is a freehold of .i'1O ayear. (1)


'rhe appointment of the chief justice is genel'ally con-
sidcl'ed to belong to the government at home. 'rhe four
assistant judges are appointed by the Governor, and hold
commissions from him under the great seal of the go-
vernment. 'rhe chief justice and his assistants all hold
their commissions during pleasure. 'rhey have no salaries,
but receive certain fees. (2)


'rhere is an attorney-general in this island.
It is not required that persons acting as counsel in


the courts of this isJand should have been called to the
bar in England. By a law lately passed, it is required
that they should have kept twelve terms at least, in some
of the inns of eourt, with the exeeption of those persons -
\Vho \Vere attending the offices of barl'isters, with the view
of being called to the bar. (3) Persons admitted to the
bar are, by a law of this island, allowed to act also as so-
licitors and attornies.


COLLECTION OF LAWS.


'rhe Aets of this island from 1711 to 1799 have been
printed. (4) 'rhose from 1711 to 1740 were printed in
London by the King's printer, and by order of the Lords'
Commissioners of 'rrade and Plantations; and to that
volume are annexed the Act~ of the Caribbee Leeward
Islands, from 1690 to 1730.


'rhe Governor said he "could not supply thé eommis-
sioners with a copy of the laws; he had none for himself;
he was obliged to grope in the dark/' A eopy of the
printed laws to 1779 was afterwards with difficulty pro-


(9) 1 Edwards, 46'2.
(1) 1 B. Edwards, 466. And see


Ihe Election Act, No. 71, el. ii.
(2) 2d Report, W. I. C. 52.


(s) 'id Report, W. I. C. 55. The
nUl1lber of terms necessary is aftcr-
wards stated (p. :i6) lo be nine.


(4) 2d Report. 51l.
M~




164 STo CHRISTOPHER'S.
cu\'cd j but many of the laws of this isIand remain in ma-
Illlscript.-3d Report, W. 1. C. 58.


GENERAL LAW OF THE COLONY.(5)


By an act of the Leeward Islands of 7th June, ] 70.5,
intituled " An Act to settIe General Councils and General
A~semblies fo\' the Caribbee IsIands in America, and to
~ccure to each particular Island their own peculiar Laws
and legal Customs," it is provided that aH the Iaws and
legal customs now in force in each and every of the Ca-
ribbee Leewanl Islands, and respecting only the circum-
st:mces of the same, be and remain in their fuU force and
virtuc." (6) The general Assembly is, however, by the
fourth section of the same act, to have power to make acts
hinding on aH the Leeward Caribbee Islands. By ano-
thcr act of the 20th June of tbe same year the common
law is declared to be in force in the Leeward Caribbee
Islands, (se e ante, Antigua.)


By the Court Act (N o. 1), passed in 1711, it is enacted,
that in this island shaH be held a court, &c., 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 ¡sland, &c.
And the Court Act (No. 59), passed in 1724, appoints a
Court of King's Bench and Common PIeas, the justices
whereof are authorized " to hear, try and determine
in tbe said court, according to thc laws and usages of the
realm of Great Britain, and the laws and usage of the said
island," &c.


Up(\n the examination under the late commission fol'
inquiring into the administration of jllstice in the "Yest
Imlies the attorney general of Sto Christopher says, " We
consider the law of England operative here, in cases ap-
plicable to OUI' circumstances, except where it may be
ll10dified 01' altered by the acts of the colonial legislature.
\Ye also consider Acts of Parliament, passed preyious to
the cession of the island to Qlleen Anne by the Treaty of
Gtl'echt, operative here, in aU cases in which they are ap-
plicable." (7)


(5) See Ihe reruarks in Ihe lirsl (6) See tille " A:1tigua," where
ch""I!'r,on Ihe general topie how far the recitals of this and the nexl ael
Ihe colonics are suhjeel to (he law of are given.
1"" llIotber country. (7) 2d Report, W. 1. C. 61.




STo CHRISTOPHER'S. 1G5
No. 280. An Act for establishing a Court of Sessio!l~


of the Peace, to be heId in and for this Island.-3d Report,
p.61.


14th June, 1820. An Act for amending the Act for
establishing a Court of Sessions of the Peace, to be held
in and for this Island.


26th June, 185t0. An Act to alter so much of tIJe
Court Act as relates to the admission of Barristers.


Cl. 3. Any person desirous of being admitted, shall
produce a certificate, or proof on oath, of his admission
to the bar at Westminster, or that he has rcgularly kept
terms at one of the Inns of Court in London for the space
of tluee years. This regulation not to affect those, being
whites, who are now in offices in Sto Christopher.-~kl
Rep. W. l. C. p. 63.


COURTS OF JUSTICE.


The Courts cstablishcd in this island for the adminis-
tration of civil justice are, the Court of Chanccry, Comt
of King's Bench and Common Pleas, Court of Vice-
Admiralty, Court of Ordinary, and Court of Error, also
an occasional Court Merchant.


The courts established for the administration of crimi-
nal justice are, the criminal side of the Court of King's
Bench and Common Pleas, the Court of Quarter Ses-
sions, and the Court of Special Sessions. Commissions of
Oyer and Terminer also issue under the great seal.


Court of Cltancery.
The Govcrnor in this island is sole Chancellor, "as


holding the great seal of the colony," said the Attorney-
General. The Chanccllor excrcises the same authority as
the Chancellor does in the High Court of Chancery in
England, except in matters of bankruptcy. The court is
said to be guided by the laws, principIes, and decisions
which govern the Courts of Equity in England.-3d
Rep. W. l. C. p. 64.


An appeal lies froln an interlocutory order as welL as
from final de crees. But the appeal has no effect in stay-
ing the proceedings of the court here, if security be given
for restitution in the event of the success of the appellant.
-3d Rcp. 65.




166 STo CHRISTOPHER's.


Court Of King's Bench and COmmOti Pleas.
Tbis court derives its authority from an Act of the


island, No. 59, ami comprebends in general aH such cri-
minal and civil matters as are the subject of the jurisdic-
tion of the Court of King's Bench and Common Pleas in
England.


Real actions are never brought in this comt, except
dower, unde nihillwbet; ejectments are frequent. Slaves
are recovered by action of detinue.


The owner of fifteen acres of land, 01' of ten slaves, 01'
of a house in any of the towns of the island, of the value
of i:1O current money by the year, is exempted from ar-
resto


The writ of habeas corpus is obtainable in this isIand.
Vnder the statute it is granted by thc judges; amI the
Attorney-General thinks correctly.-3d Rep. W. 1. C.
p.66.


Actions entered in the Court of King's Bench and
Common PIeas for sums under i:l0 are denominated'com-
plaints. Such actions are táed by the justices of the
Court of Kings Bench and Common Pleas without a jmy,
at the monthly sittings of that court.


Court of Ordinary.
This court is held under the authority of the Governor's


commission; the Goverllor, 01' in his absence from the go-
vernment, the temporary commandel'-in-chief, being sole
judge.


Wills l'especting real and personal property are proved
here, when the testator dies and the will is in tite colony.
If a testator die in England and his wiII is proved there,
an exemplification 01' 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 comt (the chief justice) derives his


authority by commission undel' the seal of the High Court
of Admiralty in England, with power to determine those
civil mari time cases over which the Instance Comt exer-
cises jurisdiction.


Proceedings for the l'ecovery of seamen's wages are in-




STo CHRISTOPIlER'S. 167
stituted, but not frequently, as t11e expense would be too
great for the subject-matter.


By statute 46 Geo. 3, C. 54·, pil'acy and other oftences,
committed in places where the admiral has jurisdiction,
are directed to be tried in the colonies according to the
Iaws of England, under commissions to issue as therein
mentioned. "No such commission," said the Attorney-
General, "has been sent to this island, and there is no
jurisdiction for the trial of pirates in this island."


Court of Error.
It is éonsidered 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 .t300; the Court Act,
in cIause 35, speaking gene rally of " any judgment given
by thc Court of King's Bench and Common PIeas for any
sum, matter, cause 01' thing," without referencc to the
instructions, whereas in the 38th clause respecting appeals
to the King in Council, thc amount in that case limited by
the instructions is adverted to.


Escheats.
There is no Escheat Court 01' escheator in this island;


there is a person holding a commission as Casual Receiver,
whose duty i8 considered to be to take the direction of
property falling to the Crown by escheat, 01' for default of
kindred, and to dispose of it for the advantage of t11e
Crown.- 3d Rep. p. 69.


Criminal Prosecutions.
Criminal prosecutions of every description are en ter-


tained in this island by tbe Comt of King's Bench and
Common Pleas. Offenders are generally prosecuted by
the Attol'ney-General at the suit of the Cl'own. A pro-
secution is commonly instituted by laying a bill before the
grandjury; sometimes, but very rarely, by criminal inform-
ation. The indictments are genel'alIy drawn by the
Attorney-General. The fee is paid by the publico


The grand jury, if desirous of advice, apply to the
court, who generally refer to the attorney 01' solicitor
general, if the judges have any difficulty as to the point
inquircd of.-3d Rep. W. l. C. 70.




168 STo CHRISTOPHER'S.


Quarfer Sessions.
In thi8 court the senior justice of the pea ce acts as


chairman, when there is no member of Council presento
The matters usualIy occupying the court are inaictments
for breaches of the peace, nuisances, non-repair of roads,
&c., 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 hanas of other counsel.


The expenses of prosecutions in thi8 court are gene-
rally borne by the publico


A record ofthe proceedings is kept by the Colonial Se-
cl'etary, who in this coul't acts as clel'k of the peace, and
takes the costs.-3d Rcp. W. 1. C. p. 70.


Judges und Justices.
The judges in Sto Christopher's are selected as in the


other islands, from the first class of the community. It is
uot necessary that any of them should be barristers, 01'
ilhould have gone through a course of previous legal
study.


Justices of the peace have no jurisdiction concerning
disputes as to seamen's wages. (8) Justices of the peace
of this island have not been in the habit ofvisiting the
jail j the senior magistrate is not clear as to theil' right to
do SOj the marshal being a public officer appointed by the
crown, is perhaps under the controul of the Court of
King's Bench only.-3d Rep. 76.


Corone.,.
There are four coroners in this island, appointed and


removable by the Governor 01' his locum tenens. The
coroner is allowed J.!5, current money of the island for
every inquest he hold:;,. The coronel' is guided in his
duty by the rules which govern coroners in England.-
3d Rep. W. l. C. p. 77.


(8) These di'llUtes will now be tried in the Vice-Admiralty Courts, sel<
ante, 79.




169


VIRGIN ISLANDS.


-


HISTORY AND CONSTITUTION.


THESE islands were not peopled by the English till about
] 666. They were separated into two divisions.


In the first division of those pos ses sed by the English,
Tortola is the principal, to which division also belong
Jost Van Dykes and Little Van Dykes, and Guana Isle,
with Beef and Thatch Islands.


In the second division is Virgin Gorda, called also
Great Virgin and Spanish Town, having two good har-
bours. To this island belongs Anageda or the Drowned
Island, Nicker, Prickly Pear, and Mosquito Islands, the
Cammanoes, Scrub, and Dog Islands, the Fallen City
(two rocky islets close together, at a distance resembling
ruins,) the Round Rock, Ginger, Cooper's Salt IsJand,
Peter's lsland, and the Dead Chest. (1)


TortoJa 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
driven out by others, who took possession in the name of
the King of England. Protection being afforded them,
Tortola was soon afterwards annexed to the Government
of the Leeward Islands. (~) The first Assell1bly met on
the 1st February, 1774, under a proclamation dated
30th November, 1773, issued in consequence of a peti-
tion from the inhabitants, who, in consideration of being
allowed a House of AssembJy, had proll1ised to grant an
impost of 4~ per cent. " similar to that which was paid in
the other Leeward IsJands." That grant was the first act
of their legislature. (3)


TORTOLA.


On application for a copy of the Iaws, the commis-
sioners learnt with surprise, that in this island all the laws


(1) Walker's Gazetteer, 4th edito
(2) Ibid.


(3) 1 B. Edw. 460,461.




170 VIRGIN ISLANDS.
remained in manuscript, and were, as might be expected,
many of them in an imperfect state.-3d Rep. W. l. C.
p.8!.


COURTS.


The courts established in the Virgin lslands for the
administration of civil justice are, the Comt of Chancery,
the Court of Common Pleas, and the Comt of Enor.
The courts established in the Virgin Islands for the admi-
nistration of criminaljustice are, the Court of King's Bench
und Grand Sessions of the Peace. There is no Court of
Exchequer in this island.


Court of Chancery.
Courts of Chancery for this island are usually held at


Sto Christopher's. A court is only held at '1'01'tola when
the Governor visits this part of his government, and then
fol' no precise time, but so long as his ExceIlency may
think proper, from the nature of the business to be done.
There is u manuscript volume of the rules of practice in
this comt, shewing only sorne 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. 81. There never
was within· this island at thc same time, more than one
Master in Chancery, until within a month before the
arrival of the commissioners, when a Master in Chan-
cery extra was appointed at the particular solicitation
of the master. There is not, in general, more business
than can be transacted by one master. '1'he 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 mude from interlocutory orders
may occasion great delay. Costs are" frequcntly" taxed
in this comt by the master.


There is atable of fees established in this comt by a
former Chancellor. The fees of this court have always
been regulated by the authority of the Chancellor.


Court o/ Common Plcas.
The Comt of Common PIeas derives its authority from


an Act of Assembly passed in 1783. It has the same ju-




VlRGI~ ISLANDS. 171
risdiction as that of the Court of Comn1on Pleas in
EngIand, and follows as nearIy as possible the practice of
that comt. The court generally sits two, three, or four
days in the months of April, May, and June, respectiveIy,
in the month of July probably a day or two more, and the
August court is generally eontinued for every eight or ten
days, until the end of September, and sometimes as late
as October.


Actions are commenced by filing not only a declaration
but a eopy of an account, bond, note, bill, &c., and
pl'ocess is served by leaving these doeuments at the de-
fendant's last place of abode, with an indorsement naming
the plaintitf and defendant, and setting forth the cause of
action, damages, &c. A person who has never been in
the ¡sland cannot be sued unless he has a power of attorney
upon record. The Court Act gives the power of arresto
A person not a free holder may be arrested for any sum of
money, but if for a sum undel' f:~O the person arrested
may be discharged on his swearing that he is an inhabi-
tant, and that he does not intend to depart from these
islands, and on his entering a common appearance.


Bail must be given for all sums aboye cf~O, but a per-
son possessing ten acres of land, &c. is exempt from
arrest.-2 Rep. W. I. C. p. 118, and S Rep. 82.


The writ of execution is the same as in the other islands.
Free persons of colour can sue and be sued in this court;
are competent witnesses; are not admitted as jurors; are
by law excluded from the House of Assembly; are not
subject to any penalties from whieh a white person is
exempted; and are" subject to no other disabilities than
such as exclude them from all public situations ando
offices." An appeal lies from this court to the eourt of
Error, where the sum in dispute exceeds 1'300, but in
order to suspend execution it must' be brought within four-
teen days after judgment.


Complaint Court.
Small debts under 1'20 are denominatedcomplaints, and'


are reeoverable in this c()mt. The costs do not exceed'
the sum of of!. 168. 3d. up to execution, and'suits are in'
general speedily decided.


Court of Ordinary.
This eou!'t derives its authority from His Majesty's




1712 VIRGlN ISLANDS.
commlsslOn to the captain-general, who appoints his
deputy in this island, to grant probates of wills, letters of
administration, and marriage Iicenses. AH wills executed
in the Virgin Islands are proved here: after wills have
been proved and registered, they are returned to the
executor.-3 Rep. W. I. C. p. 83.


The costs of this court are not taxed. There is no pro-
cess of excommunication, 01" other effectual mode of
punishing contempt in this comt. There is no means of
obtaining a divorce in this isIand, nor is there any mode by
which a wife can obtain a separate maintenance.


Court qf Pice-Admiralt!f.
This court derives its authority from the Court of


Admiralty in England. It has jurisdiction in matters of
prize and revenue. lt has one judge, a surrogate. The
present surrogate was appointed by the Governor. He
holds bis office during good behaviour, and is removabIe
by the Governor. The former judge was appointed from
England. There is not llluch business done in the In-
stance Court. There have been a few instan ces of pro-
ceedings for sealllen's wages; they are not attended with
much expense, and are said to be very sUlllmary.


N o Admiralty Sessions are held in this island; persons
charged with piracy were formerly carried to Barbados,
but will now lllost probabIy be taken to Antigua, the chief
seat of this government.


Court qf Error.
This court is established by the Coul't Act. The


judges of the Court of Common PIeas are excluded by Iaw
from sitting in the Court of Error. The members decide
by a lllajority.-3 Rep. W. l. C. p. 408.


King's Bench and Grand Session.
This courtderives its authorityfrom certain clauses ofthe


Court Act. The judges of this court are, the Lieutenant-
Governor, the members of His Majesty's Council, the
Justices of the Common PIeas, and the Justices of the
Peace. This court is held twice ayear, 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.-S Rcp. W. l. C.
p.84.




VIRGlN ISLANDS. 173
The prcsident of the court always delivers a charge to


the grand jury. When the grand jury are desirollS of
advice upon points of law, they apply to the King's
counsel. There is no comt of Quarter Sessions in this
island, p. 85.


Esclteats.
There is no Escheat Court established in thesc islands.


""Vhen property has escheated to the crown "that is worth
applying for," said the King's counsel, a petition fmm tbe
parties to His Majesty is forwarded to our agent residing
in London; he presents it to the Secretary of State fol' the
Colonies, who submits it to His Majesty. The Secretary
of State directs tbe Governor to issue a writ of inquiry.
The Governor semIs a writ, directed to certain persons,
requiring them to issue a precept to the marshal for impan-
nelling a jury to tl'y the question of escheat 01' not; they
hear the evidence and decide accordingly. The judges
repol't the case to the Governor, who acquaints the minis-
ter with the result; and His Majesty has been graciously
pleased, in one case, to grant the land petitioned for to
the partics petitioning. Cases of intestacy are frequent
among the unmal'l'ied coloured Ínhabitants of those islands,
and property frequently escheats to the crown for want of
heirs.


sraves escheating are not thereby considel'ed as vir-
tualIy freed.


Whel'e there are illegitimate childl'en unprovided for,
all the property left by the parent is allowed to remain in
the possession of the infants' friends, for their sole benefit.
No case of ibis kind has ever been represented at home
by petition 01' otherwise.-3 Rep. W. I. C. p. 87.


LA W OFFICERS.


The Attorney and Solicitor-General for the government
reside at Sto Christopher's. One crown officer and King's
counscl resides and practises in this island.


Bat'risters and Attornies.
It is not required that persons applying to be admitted


as counsel in the courts of this island should have been
previously called to the bar in England, 01' have kept a
specified number of terms in any inn of court. A certifi-
cate signed by the Attorney or Solicitor-General and one
practising barrister, attesting their fitness, will enable




174 VIRGIN ISLANDS.
them to obtain admission to the bar in the courts of this
island. To act as solicitol's 01' attol'llies in this island, it is
not necessary that persons should have previously served
any clerkship. The branches of the profession which it
is found advantageous to keep distinct and separate in the
mother country, are here every where united. In this
colony these gentlemen must be admitted as barristers
in the common law COUl'ts before they are allowed to
practise as attornies 01' solicitors, and after such admission
no other formality is requircd.-3 Rep. W. 1. C. p. 91.


Justices of the Pea ce.
Informations in this island are always upon oath. J us-


tices of the peace have a summary jurisdiction in a few
cases under the police acto J ustices ha ve no jurisdiction in
civil matters in this island. Justices of the peace have n
jurisdiction in disputes relating to seamen's wages, p. 92.


The Court of Chancery for the Virgin Islands being
frequently he Id at St. Christopher's, five members of
council, disinterested and indifferent persons, not judges
of the court a quo, can never be assembled in this island
to compose a court of error; and where a writ of error is
sued out in tbe Virgin Islands, it is considered as post-
poning, sine die, the payment of any debt exceeding ol,'300.


Court of Grand Sessions.
Jn the criminal court an the judges of the Court ofCom-


mon PIeas and aH justices of tbe peace named in the com-
mission, compose the Court of Grand Sessions, p. 93.




( 17,1)


BARBADOS.
-


Barbados is one of the Caribbee Islands in the West
Indies. It is the most easterly of them, and lies between
59° 50' and 60° 2' W. long., and 12° 56' and 13° 16' N.
lat. It is supposed to be 25 miles from north to south,
and 15 from east to west, and contains about 107,000
acres of land, most of which is under cultivation. (1)
It is divided into five districts and 11 parishes, and con-
tains four towns, Bridgetown, (the seat of government),
Ostins or Charles Town, Sto James's, and Speight's Town.
It is now the seat of a government comprising within its
jurisdiction Grenada, Sto Vincent, and Tobago, each of
which, however, retains its separate legislature. (See ante,
123.)


HISTORY AND CONSTITUTION.


It was probably first discovered by the Portuguese in
their voyages from Brazil, and from them it received the
name which it still retains. It was found without occu-
pants or claimants. It had been deserted by the Cha-
raibes, and the Portuguese, regarding it as of little value,
left it in the state as when discovered by them.


Formal possession was afterwards taken of the island
by an English vessel, the crew of which landed there in
1605, and on the spot where James Town was afterwards
buílt, set up a cross with this inscription, "James, King
of England and this island."(2) In this manner they
took formal possession of the place, but made no settle-
mento Sorne years afterwards a vessel of Sir William
Courteen, a London merchant, accidentally visited the
island, and made so favourable a report of it, that the Earl
of Marlborough (then Lord Ley) solicited and obtained
from James I. a grant of it to himself and his heirs in per-
petuity; and William Deane being appointed his gover-


(1) Eneye. nrit. Edwards states
tbe longitute to be 59° west from
Londoo, and the latitude 13° 10'
north; tbe lCllgth to be ~ 1 mi les, the
breadlh 14, amI tbe surface 106,470


acres, vol. i. 344; 1 Rcp. W. l. C. 57.
Tbc islalld is said to be about SO
miles long and 16 broad.


(2) 1 B. Edw. 317.




176 BARBADOS.
nor, arrived thel'e in 1624, and laid the foundations of
.James Town, which was the first English settlement In
fhe island.(3)
. In the first year of Charles l. (1625) James Hay, Eal'l
of Carlisle, either not knowing of the Earl of MarIbo-
l'ough's patent, 01' disregarding it, obtained letters-patent
under the great seal of aH the Caribbean Islands, including
Barbados, and, after sorne dispute, Lord Marlborough
waived his prior grant in consequence of an annuity of
oC300, and Lord Carlisle became sole proprietor.(4)


By Lord Carlisle's patent he was empowered "to make
such laws as he 01' his heirs, with tIte consent, assent, and
approbation of the free inhabitants of the said province,
or the greater part of them, thet'eunto to be called, in
such manner and form as he 01' they in his or thei1' discre-
tion shall think fit and best." And" to do and pe1'form
aU and every thing and things whieh to the fulfilling of
justiee courts,(5) 01' manner of p1'oeeeding in thei1' tribu-
nal, may 01' doth belong 01' appertain, although express
mention of them in these presents be not made, yet we
have granted fuU power by virtue of these p1'esents
therein to be made, so as, notwithstanding the aforesaid
laws be agreeable and not repugnant to reason, nor against
it, but as eonvenient and agreeable as may be to the laws,
statutes, eustoms, and rights of our Kingdom of England."
The patent also provides, that every liege subject of the
King brought 01' to be brought within the provinee, and
their children born 01' to be born there, sha11 be natives
and subjeets 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 proeeeded to appoint a Governor and Couneil,
and (in eonformity with its aboye cited provisions) to eall
a legislative assembly, and to ereet courts of justiee. It is
certain at least, that a Goverllor and Assembly were in
existenee as early as 13th May, 1646, there being an aet
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 al so be en the tirsl English set-
tlement in lhe West Indies, but
Edwards shóws that Sto Christopher
came into our possession jn 16~3.


(4) 1 B. Edw. 320.


(5) 'fhe passage .tands tlm. in B.
Ed wards' work. The words ought
perhaps lo be, "justice, the coorse or
manner of proceeding ill their tribu-
nals."


(6) 1 B. Edw. 321, n.l.




BARBADOS. 177
the acts to be found in t,he printed stutute-book may be
referred to a still ea.rlier period.(7)


The grantto Lord CarlisIe wasafterwards, during his
absence from EngIand, revoked, and a new one issued~to
the Earl of Pembroke, in trust fol' Sir "VilIiam Courteen,
by the crew ofwhose vessel the island had been first bene-
ficially posses.sed; but on Lord Carlisle's return, his infIu-
ence obtain~d un annuIment of Courteen's grant, and new
letters-patents in his own favour again restored him to
his former privileges.(8) Vnder this second patent Sir
William Tufton was sent out in 1629 as governol' fol' Lord
Carlisle.


During the early part of the troubles in England, the
~Iaim of this proprietor, whether disputed in the isIand,
01' disregal'ded umidst the confusions at home, was tacitly
relinquished; but in 1646 the then Earl of Carlisle, son
alld heir of the patentee, brought forward his pretensions.
He entered into a treaty with Lord Willoughby of Par-
ham, conveying to him aIl his rights by Iaw for ~1 years,
on condition of receiving one-half the pl'ofits, and then
concurred in soliciting a commission fol' him as chief go-
vernOl· undel' the sanction of the royal authority. In thus
consenting that his governor should be clothed with the
authority derivable from a commission from the King, he
was perhaps infIuenced by the apprehension, that aftel' his
title had for some years laid dormant, and the p]anters had
begun to fIourish in the absence of his oppressions, they
might refuse obedience to his unsuppol'ted commands.
'Vhatevcr might be the motive on which he proceeded,
the act itse]f was plainIy at variance with his claims as
proprietor.


Vndel' this commission Lord Willoughby arl'ived at
Barbados, and took possession of the government; hut
soon afterwards the regal authority being abolished in
England, the isIand became subject to the Common~
wealth, by whom a new governor was appointed.


(7) See particlllarly an aet reciting,
that "divcrs laws had been made by
assent of the govcrnor, coullcil and
frccholders ont of ever;; pal'ish of this
¡sl.nd, intitnled a General Assembly
for that purpose e1ecteu .nd rhosen,"
&c. Hall's Acts, No. 4. And ,ce ih.
No. 1, which provides (hat .. all ae(s


anJ sta tutes made amI published in
Ihe i,land, Of viewed, eorreeted and
confirmcd by any governor anrl coun-
eil, or president and eouneil, by vir-
tue of anv commission fl'olll ~KinO'
James or Charles n., &e. be in full
force and virtue."


(8) 1 B. Edw. 32\?
N




178 BARBADOS.
On the Restoration Lord 'Villoughby applied to


Charles n. for leave to return as g'overnor, but this
was opposed by the inhabitants, who now consi.dered 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 Carlisle's patent was void in law,
and their case was referred by Charles to a commi.ttee 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 raiscd
in the mind of t:hat needy amI extravagant monarch, of
realizing a revenue of a considerable amount, was not
speedily to be relinquished. The council vel'y readily
seconded his views; the unfortunate planters had no
power to resist; they were threatened 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 bc 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 heil's and succcssors, a permanent
ana irrevocable revenue of 41 per cent. to be paid in
specie on aH dead commodíties, the growth of the
island, that should be shipped off the same. Out of
tbis the Crown was to makc provision for the Earl of
Kinnoul, (1) the representative 01' the patentee, and to pay
off the different creditol's, claimants on thc profits of the
Earl of Carlisle's share 01' the patent; and the remain-


(9) 1 B. Edw. 332,333.
(1) This is still paid out of the 4t


per cent. funo, Ululer the name of
Loro Kinnoul's pellsion, so llameo
/'wit.h as much propriety," Mr. Broug-


bam observes, "as the holders of long
annuities might be dcnominated pen-
sioners." Colonial Poliey, vol. i. p.
551.




BARBADOS. 179
del' (snbject to the chal'ge of .1:1QOO per annum for the
governor's salary) was to be at the disposal of the King.
This arrangement was carried into efrect. Lord Wil-
Ioughby was sent out as the King's governor of Bar-
bados and the other Caribbee IsIands; (2) and the 4'k
per cent. duty was granted by act of the island passed
the 12th September, 1663.(3)


A Council having been appointed and an Assembly
summoned undel' the new commission, the Governors, (4)
Council and AssembIy, by declal'ation, bearing date the
7th Mareh, 1666, proclaimed "that the government of
Barbados should be according to the laws of England
and of that island, as had been theretofol'e used and
practised." (5)


Afterwards, byan act of the island,(6) bearing date 22d
March,lfi66, reciting the declaration of 7th March, "and
that nothing more conduces to the good and quiet of any
place and peopIe than the assuring and ascertaining 8uch
laws and statutes as they are to be governed and regu-
lated by," it was enacted, "that an su eh aets and sta-
tutes as have been made and published in this isIand
as reviewed, corrected and confirmed by any governor
and council, 01' president and counciI, by virtue of any


(2) He was appointed by letters·
patent, bcaring datE 12tb June, 15
Ch •• n. See this commission partly
recited in tbe Act 01 N evis, N o. 1 of
printcd eollcetion.


(S) 1 B. Edw. 3:l5. Mr. Edwards
says, that the planters finding "that
no support could be expecteu from the
people at home, whuse privileges lay
pros trate at tbe fee! of the restol'ed
monarch, passed Ihe act required 01'
tbem, and theír posteri I y still bear,
and, it is apprehended, wiII long
continue lo bear (he bUl'then of it."
lt is to be hoped, that the time has
llOW arrh'ed when as tiJe fund is at
the disposal of Parliament, an end
wilI be pUl to an im post that has been
as opprcssive in its elfeels, as it was
grossly disgraccful in its original exac·
tion. (See ante, 50, 51, notes (3), (4).
The aet( whieh is No. 36 of Hall'sActs)
makes no mention of the arrangement
above referred lo, huI professes to iID-


pose the duty for the maintaining" tbe
hanour and dignily of bis Majesty's
allthol'ity-the publie meeting of lhe
sessions-the often attendance of the
council-the reparation of tbe fOl'ts-
the building a sessiuns·house and a
prison, allll al! other publie charges
incumbent on Ihe government."
But these purposes bave been dis·
regarded in praetice, and to meet Ibe
expenses mentiuned, specific laxes in
addition to Ihe 4! pct cent. have
been levied in tbe colony. 1t is .aid
tbat payment in 'pecie, aecording to
the terms of the aet, is not now re·
qui,'ed. Colonial Poliey, vo!.l, p.
:>52; but see ante, p 50, note (3).


(4) Lord Willoughby did not re·
main long aftel' his arrival, and three
persons were appointed to execute his
commission. Hall's ACIS, p. 3.


(5) See preamble to No. 1, IIall'.
Acts.


(6) No. 1, HalJ's Acts.
N 2




180 BARBADOS.
commission from King James 01' Charles 1., 01' by vil'tue
of any commission from his most graeious Majesty that now
is, either immediately from either ol' their said Majesties,
01' mediately from them 01' either of them, by, from 01'
under the late Earl 01' any former Earl of Carlisle, by 01'
with the assent 01' consent ol' the l'epresentatives of this
place legally called and continued, which stands unre~
pealed by any powel' and authorities afol'esaid, be in full
force and virtue in this island, and that alllaws, acts and
statutes made 01' published in this island by any other
power 01' authority than as before expressed, are utterly
void and of none eftect, any declaration, order 01' onU.
nance to the contrary, notwithstanding."


By the same aet eertain eommissioners are appointed to
compile aH the "aets and statutes in force as aforesaid,
and to cause them to be inrolled in one book by the
seel'etary of the island." And this, as appears by the re-
turn of the commissioners, bea1'ing date 18th July, 1667,
was afterwards done; and the aets so eompiled by them
are at the COl11meneement of the book of printed laws.
Hall's Aets, No. 52 to No. 36 inclusive.


Since the commission to Lord ""Villoughby, in 1663, the
island has been eonstantly governed under commissions
granted in like fo1'm by letters-patent from the crown,
with aeeompanying instructions to the govel'llol's.


From the same period Couneils ha ve been regularly
appointed, and Representativc Asscmblies summoned, and
by these assemblies, with eoneurrenee of the eouneil and
of tIte governor, laws have been enacted and sent homo
fOl" the allowance of His Majesty in Council, according to
the usual form oi" constitution in colonies that have legis,
latures of their own.


In this island the Couneil is eomposed of twelve mem.
bel's. The governor sits in coul1cil even when the council
are sitting in their legislative capacity-a method which
in othel' colonies would be considered as improper and
unconstitutional. (7) The Assembly consists of twenty~
two, of whom twelve are a quorum. They are electetl
from the different parishes, und every pcrson electing, 01'
eleeted, must be a whitemal1 professing the Christian re~
ligiol1 and a free 01' naturalized subjeet of Gl'cat Britain~


(7) 1 B. }:dll'. 349.




BARBADOS. 181
having attained tite agc of twenty-one. He must also
posscss a ccrtain qualiíication in land. (8)


In tbis islantl there are an Attorney-General and a
Solicitor-General. The former l'eceives a salal'y of ~QOO
currency per annum, paid by the isIand; tbe latter acts
gratuitously. (9)


LAWS. (1)
The laws in force herc are, first, tbe eotumon law of


EngIand; seeondly, sueh Aets of Parliament as were
passetl before the settlement of the island, and are ap-
plieable to its eondition.


The bankrupt and pOOl" laws, the laws of poliee, tithes,
and the Mortmain Aets have been treated as not appli-
cable to the condition of the eolony,and are tberefore not
in force in it.-l Hep. "V. l. C. p. 5.


Of aets passed subseque:1tIy to its settlement, sueh only
are considered to afreet the eolony as have the island ex-
pressly named 01' virtually included in them; as is the
case where the laws are ueclared to extend besides Bar-
bados "to the "Vest Indies," 01' " to the eolonies." And
all navigation aets, amI aets of revenue and trade, and aets
l'espeeting shipping, are obligatory, though the colonies
are not named in them.-l Rep. 'V. I. C. p. 5.


Al'l'ests and Underwl'iting.
Several aets, numbel'eu 51,59, 68, 76, in Hall's Laws,


and 10 in l\'loore's Colleetion, have been passed, regulating
tIte manner of giving tiekets out of the seeretary's office,
so as to cnable parties to leave the island. Before the
passing of any of these aets, it lIad be en the eustom of the
island that aU l'esidents therein, exeept married women
and ehildren lIndel' fourteen, intending to depart thenee,
were obliged to put up their llames publicly in the seC1'e-
tary's offiee, aml within a cel'tain time afterwards, 01' eIse
upon giving eertain securities, they obtained a ticket 01'
licenee from the secl'etary, signed by the govel'l1or, as a
warrant to the master of the ship for tbeir conveyanee-
the il1tention of tbis law being that persons indebted might


(8) Hall's Acts, No. 148, el. 1 ; 152,
el. 3,4, [" 6, 7,3.


(9) 1st Rep. W. r. C. 59.
(1) See (ante, p.:3 tu 16,) Ihe re·


marlis on tlJe general tapie, ¡'ow far Ihe
colonies are subject (o lhe IHW 01' thé'
lUother COllutry.




182 BARBADOS.
not go privately, but might before their departure be com-
l)elled to answer aH elaims against them. And creditors
desirous to prevent the issuing of such tickets, entered
their elaims at the secretary's office against the persons so
intending to depart, which was called underwriting ihem.


The aboye acts of Assembly were passed chiefly to
regulate the system of underwriting, which is still (subject
to various provisions imposed by those acts) in force in the
island. (2)


Besides this eourse of proceeding, the practice of the
isIand authorises arrests on mesne process, as in EngIand.
It does not appear on what law this practice was originalIy
founded; but "by established usage a defendant may be
arrested on mesne process for any sum aboye .1:8." No
affidavit of the debt is required, (3) and arrests are said to
be allowed in some cases for unliquidated damages. But
by the aboye cited act, (H. 59, el. 4,) it is provided that " no
person having ten acres of free'hold land within this island
shall be liable to arrest, nor any other inhabitant for any
sum under lOOOlbs. of sugar, 01' .1:6. 5s. in money, but be
summoned to answel' suits, &c. in the precinct where he
lives, according to the act for judicial proceedings, unless
he hath taken out his ticket to depart this island, not
having given bond in the secretary's office to answel' all
underwritings 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 elause unless at the time of
issuing the warrant he was "actually seised in fee and
possessed of tcn acres of freehold land within this island,
under one 01' more such title 01' titles, and with such qualifi-
cations with l'espect to the length of posscssion 01' otherwise
as would entitle aman, according to the laws of this
island now in force, (4) to elect 01' be eIected an assembly-
man 01' vestryman, 01' to servc as a juror to try real
actions."


(2) See preamble of No. :)9, Hall's
Aets, and 1st Rep. W. 1. C. 35, 160.


(3) 1st Rep. 34, 159, 160. Thal
is, no affidavit i. made before lhe aro
rest. Bu! if lhe arrest is fo,' lIIore than
i. really due, the defendant's attor·
bey may give notice to the plaintitf's


atlorney to allenll Lefo,c the judgc
anll makc o.llh of whal is ,eally duc.
¡¡nd bai] i.< takea for tlJaI sumo J st
Rep. W. l. C.160,


(4) As to ",hiel! qualification sce
Hail, 14B, el. 1; l;Jt, el. 3, 4, 5, 6,
7, S.




BARBADOS. 183


COURTS.


'fhe eomts established for the administration of civil
justice in the Island of Barbados, are the Comt of Chan-
cery, the Court of Error 01' Appeal and Error, the Court
of Ordinary, five Courts of Common Pleas, one in each
district, the Comt of Admiralty, ano the Court of Escheat.
-1 Rep. W. 1. C. 19.


Besides these general courts there is, by a local aet, a
power vested in the governOl' to appoint a speeial eourt of
merehants and marinel's, as also a com't to take cognizanee
of persons about to quit the island in debt, which court is
believed never to have sato 'fhere al'e also what is called
warrant actions; these are dcscribed by the commissioners
as excrescences growing out of the authority given to a
single justiee to decide claims fol' sel'viee 01' for work amI
labour by servants :md labourers, and extending very
mischievously to those who exercise any manuallabour, as
shoemakers ano tailors, as well as to aU demands arising
fl'Om the sale of the produce of the island, and actions fol'
cattle under the amount of ,i'25.-Id. ib.


'fhe courts for the administration of criminal justice are
the Comt of Grand Sessions, held twice ayear; the
Court of Qual'tel' Sessions, which the cOllllllissioners said
did not sit regularly when they were in the island ; .alld
the Admil'alty Sessions, held pro t'e nata.-Id. ib.


Court of Cltancery.
'fhe Comt of Chancel'y is composed of thc governor 01'


prcsident, with four 01' more members of the council. 'fhe
Governor in Chancery, though often saio to act as
chancellor, i8 only primus ínter pares. Neithel' the.
governor as chancellol', nor the pl'csident acting as
such in his absence, l'eceives any fees. 'fhe governor
sitting as chancellor has no asse!'lsor nor professional
assistance of anykind. The decision is made by a ma-
jOl'ity of votes. 'fhe votes arc taken sil1gly, beginning
with the junior Illembers of the cOlmcil, and are given
publicly in open court.-l Rep. W. I. C. 19.


'fhere are two Masters appointed by the governor, and
l'emov'lble for misbehavioul'. They are paid by commis-
sion; they have fe es 011 the sale of estates. 'l'he Comt
of Chancery derives its allthoJ'ity f1'om the King's comlllifs-




B.\"ll~HADOS.


sion, ilmi ;Ya~ l'ccogl'izc\! ;1::; cxisting SGOll arter tite tidtlc-
1112nt of ¡he colully.-l Hep. 'V. J. C. p. 'W.


The judges oí:' this Gourt are supposed to !lave aU the
authol'ity oi" the Lord Chancellor in England, except in
cases wholly illapplicable to the colony. 'l'hcy aSSUlllC
and exercise j urisdiction in cases of lUllacy without any
special dclegation oí:' authority, but under the supposcd
general jurisdictioll belonging to a Comt of Chancery.
A petitiol1 is presented in the nrst instance to the governor
only, he directs a hearing at the next comt. The lunacy
when found, is, it is said, returned into the comt, amI in
this way thcy may possibly, but it Ís supposed mistakenly,
considel' themselves as getting jurisdiction.-Id. QO.


Tbere are no instan ces oi' bills filed for making infants
\Vards of court in this island, but it is supposetl the comt
would exercÍse the same jurisdiction as thc Comt of Chan-
cery in England. There i8 no systell1 of laws in this
island similar to the bankrupts' code in EnglaIHI; Lut the
principIe of the ccssio bOllorlllll is ac1mowleilgell in thc
establishment of a court fOl" the relief of inwlvcnt debto!"s.
The rcmcdy, of comse, extends to persons who are not
traders.


The law of descents, as regards frcehold property, is
thc same in this colollv as in Englal1tl.


The law governing tile disü:ibution of persollal pro-
perty in cases of intcstacy, in Barbados, is substantially
the same as the law regulating thc distribution of Lhe
same spccies of propcrty in similar cases in Englulld.


Tbe practice of tIle Comt of Chancery in Barbado"
professes to conform to that of the Comt of Chanccry in
England, except where it is aItered by locallaws Ol" :;pe-
cial orders of thei!' own.-Id. 20.


The decree made on a hill of forcclosure of a morLgagc
is to this effect, that the moncy be paiel into court within
11 limitcd time, (usually a montll,) alld in dct~tUlt of pay-
ment a sale of the estate is directed. Hut to prevent a
míschief, once ve1'y cxtenslvc, of estatcs being obtaillcd
under these circull1stances fol' prices wholly inadequate,
ihe property must be appraised, aneI cannot be sold fOl"
lcss than the appraised "alu e, witllOut express leayc frolll
the court. The appraisement is made upon oatIt. The
appraisers are freeholders and I1cighbours. Thcy 1'c-
ceive no fees. They are saiLl in general to act conscien-
tiously. The master cannot receivc a bidding "undcr the




BAliBAD05. 185
appl'aisemcnt." A biJder could not he held to a bidding
below the appraisement, hut the master, it is said, repol'ts
sueh bidding to the comt, and application is then made fol'
leave to seli fol' les s than the appl'aised value. Upon this
application the comt exel'cises a discl'etion, taking into
its consideration the circumstances of the estate, amI the
questíon whethel' an immediate sale is desirable.-l Rep.
W. 1. C. p.21.


On a sale aftel' an appl'aisement, there is a deposit,
",hieh goes fil'st to the payment of the costs of suit.


On behaIf of a wife, fol' a separate maintenance, on
accoullt of misconduct in the husband, the remedy in
Barbados is sought by petition to this court. ReIief in
such case is never obtained by bill, but by petitioll.


'rhel'e is no examiner in this isIand; the registrar acts
as cxaminel'. Orders and decrees of the COUl't are ell-
forced as in EngIand, by process of contempt and seques-
tration,-1 Rep. W. l. C. p. 22 to 24.


An appeallies fl'om a decision in this court to His Ma-
jesty in Council, if the sum sought to be recovered amoullts
to 500l. sterling. An appeal, it is said, lies only on a
dccree, or such interlocutory order as amounts to a final
decree. Security is given by bond (according to the act,
No. 12:3, HaU's Act, 10th of May, 1720,) fol' lreble (5)
the value uf the property in dispute, and fol' a11 custs and
damages occasioned by the appeal. The appeal, it is also
said, in this isIand suspends an proceedings, evcn in
the master's office, as the taking accounts, &c. but the
party who has obtained the decree 01' judgment appealcd
against, will not be prevented f1'om pursuing his advantage
to levy and seU, on giving security in double the sum to
make a l'eturn to tt1C appellant if the decl'ee should be
rcversed,-ín othel'words, a provisional payment takes
place with secul'ity fol' rcstitution. The appelIant aIso
gives security tu prosecute the appeal wíthiri a yeal'.-
1 Rep. ·W. l. C. p. 26. .


'rhe distinction uf costs between party and pal'ty, and
attorney und client, díd not prevail in practice, and was
not familiar in name.-Id. 27.


(5) The w",'d in the reporl i, ¡reble;
this scems lo be a mistake. A copy uf
the ael now before me says dOHble,


and to\\"ards the concIu.ion of thi, very
pa"agraph the cOlUmissioncrs use tbe
word diJuble.




186 BARBADOS.


COllrt 01 Excheqller.
The Court of Exchequer derives its authority from a


law of the island, (No. 135, Hall's Laws,) and from the go-
vernor's commission. It was established in 1680 by an order
of the governor amI council. It was fOl'mcrly considered as
possessing both an equity and a common law jurisdiction.
There is now no equity side of the Exchequer, except on
the part of the crown; the commission is said to have
be.en altered about fOl'ty years ago. 'rhe common law
side l'emains, but the right to sue in it is explained and
limited by the act (No. 135, Hall's Laws).-l Rep. W. l.
C. p. SO.


This court is eomposed of the chief bal'On and four
puisne barons, of whom tltree nÍay hear and determine;
and the judges are appointed by the governor, with tbe
adviee and consent of the majority of the council. The
tenure of the office is durante bene placito. They are re-
movable, 01' may be suspended in the same manner as thc
judges in the Court of Chancery. They have no salary.
The chief bamn, and in his absence, the senior baron,
receives certain fees j the same as the chief justice of the
Court of Common PIcas. Any deed affecting real pro-
perty requires to be registered, ami afee is paid on the
acknowledgment. They also receive seal money, fees for
taking private examinations of married women, &c. &c.
The officcrs of the court are the remembranccr and
marshal, both patent offices, performed by deputy. They
are paid by fees of office j in case of misconduct in either
of them, the ehief baron complains to the governor¡ who
has the power of suspending them, and the consequences
are the same as were before mentioneu in a like case in
the 'Court of Chancery.-l Rep. W. l. C. p. 30.


The Court of Exchequel' sits in the Town Hall in
Bridge Town, and is appointed to be holden once every
four weeks on a Friday, throughout theyear, for the trial
of causes betwecn party and party; but for His Majesty'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 island." They
did not appear to have any collection of rules 01' orders of
the court prescribing any peculiar modes of practice, so
that, where they diflcr f1'om the p1'actice of tbe courts in
England, the variation is not recorded. Proceedings 011




BARBADOS. 187
the common law side of this court for the recovery of
debts, are by information by the attorney-general on be-
half of the crown, and by quo minus by prívate persons. A
defendant may be arrested for any sum exceeding eight
pounds whetber claimed as a debt 01' damages, and tbe
latter may be unliquidated. For an alleged libel upon the
attorney-general. a defendant, who was aftenvards acquit-
ted, was htM to bail in 3000l. For a demand under tbe
amount stateu, (eight pouncls,) a bench action lies. A bench
action ís in the nature of a proceeding in the English courts
of conscience, and wiII be considered in the observations
upon the Court of Common Pleas. Those freeholders
who are qualified to vote at elections are exempted from
arrest by process of this comt. If bail are objected to,
their sufficicncy is deterrnined by the chief baron. If a
defendant cannot procure bail he may líe in prison an in-
definite time; the plaintiff cannot be compellecl to pl'oceed
with the action, and the defendant does not become super-
sedable on account of the plaintiff's neglect.


There are no records of these courts on parchment,
}mt copies of proceedings are made up upon paper, and
kept by the proper officer.


'fhe execution issuing upon a judgment recovered in
this court is the same as in the Court of Common Pleas,
except that executions out of this comt are levied aH the
year round, as weH in vacatioIl as in term time.


The commissioners were not aware of any privilege the
Cl'Own enjoyed, 01' any peculiar means it possessed of
securing its dues, 01' enforcing payment of them in this
colony. The process of the Court of Exchequer in
England, at the suit of the crown, is supposed not to be
executahle in this island.-l Rep. "V. I. C. p. 31.


Actions in this court are said to be less dilatory, hut
more expensive, than proceedings in the other courts.
Costs are taxed by the ehief baron himself agrecably to
a docket estahlished by him under the authority of thc
governol'.


The attorney-gcneral was of opinion, and no doubt
rightly, that a writ of error lies fi'om a decisioll in this
court to the Comt of Appeal and Error in the island, thc
same as from the Comt of Common PIcas. He never
knew an appeal in revenue cases, bllt supposed therc might
be one. The chief baron was not aware of any writ of
error, 01' appeal tú the colonial court, hut on1y of an appeal




188 BARBADOS.
tu Bis lVIajesty in Council, (which is· ulterior whcre thc
vallle is sufficient,) uf which he rernernbereu. one instance
arising on a penal statute. An appeal, it was again said,
but the comrnissioners thOllght, under sornc rnisapprehen-
sion, would stay aH proceedings.-l Rep. ·W. 1. C. p. 32.


Court of Common Pleas.
Thel'e are five courts of Cornmon PIeas in Barbados,


one being held in each of the five districts of the island.
They derive theil' authority frorn acts of the local legisIa-
turco They have the >:ame jurisdictioll as the Court 01'
Common PIeas in EngIanu, except as to fines ancl recove-
ries. The judicial establishment consists of a chief judge
amI foul' assistant judges in each court. These are ap-
pointed and rernovable in thc same rnannel' as the other
juclges, and the tenure of their offices is the same. They
have no salul'y; the chief judge (only) receives the custo-
mal'y fees for proving deeds, taking examinations uf
married wornen touching the transfer of real property,
&c. &c. But the amount of aU the fees 01' the judges oi'
the five courts is supposecl not to exceeel 15200l. cUl'1'ency
per annum.-l Rep. 'V. l. C. p. 32.


The officers of this court are the prothonotal'y and
mal'shal, patent oHices, pel'fol'med by cleputies, who gene-
rally farm them f1'o111 the patentees for a term of year:;.
They receive fees for official services, arc undc!' thc COI1-
troul of the judges, and may be suspended 01' removed by
the governol' fol' misbehaviour.


Tbc sittings of the courts are regulated by the sta tutes
of the island. Each court sits in its own precinct.-
1 Rep. W. 1. C. p. 33.


Actions are commenced in these courts by filing a
ueclaration in the office, ancl scrving a copy of it togcthcr
with a summons, upon the defendant personully, 01' at bis
\a\>t l)\ace 01 abouc, excCI)t in cases of arresto Arrcsts
are made by virtue of a process unJer the hand and seal
of the governor, addrcssed to thc provost marshal, 01' his
lawflll deputy. Appeal'ance is maele on thc second comt
day afte!' service of the summons. The rules of practicc
in these courts are said to Yury a little f1'ol11 those of the
Court of Common PIeas in England.


A judgment may be obtained in general on an action in
this court within a twelvemonth.




BARBADOS. 18!)
The power of al'rcst is exercised in these courts, but it


uoes 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 whieh gives the exemptions.-3 Rep.
'W. I.C. p. 34,.


Freeholders owning ten. acres of land, and capable of
eleeting, 01' being elected to serve in the Ilouse of
Assembly, are exempted from arrest. Not so women 01'
Jews, 01' frceholders whose deeds have not be en proved.


A ¡tabeas corpus is obtainable upon application to any
chief judge, by the eommon law, amI is supposed to make
a part of the govel'llol"s instl'uctions.


The chief justice of the precinet decides as to the
sufficicncy of the bail, if the sum fol' which the defcndant
is arrested exceeds :2001. On arrest a bond ought to be
given by the plaintiff conditioned for the filing of the de-
claration within three days, engaging to prosecute his
claim without greater dela}'. If the act is complied with,
the objeet it had in view is clearly not eflectuated. In a
case where the defendant cannot procure hail, and goes to


- prison, and the plaintifl' does not proceed with his action,
the Crown lawyers are not agreed whether (e ven supposing
the plaintiff's bond to be forfeited, whieh, however, thcy
do not seem to consider it,) the defendant would be entitled
to his discharge.-l Rep. W. I. C. p. 35.


By the law and practice of this island, an action must
be tried where the defendant lives;-l Rep. W. l. C.
p.36. '


The pleadings used are in tended to be exactIy the sume
as in the Court of Common PIcas in England.


The pleadings are all entered in the Pl'othonotul'y's
Office upon one paper, and this serves for a record.


The jury indorse their verdict upon it, and it is signed
by the foreman. The venil'e is not entered upon each
issue, because there is only one venire upon an jury
actions. The pleadings are not opened to the court by
eounseI. There are no abstracts made for the judges.
The jury is addressed by the counsel upon all the facts,
and an the law· of the case. Upon al'guments on special
verdicts, and demul'rers, &c. thel'e are no paper books
containing the points and authorities upon which the
counsel intend to rely, made up for the information of the
judges.


The proof of debts, whether by specialty 01'. simple




-190 BARBADOS.
contract, when the creditor resides, aml the debt accrues
in Englanu, is rendered surprisingIy easy by 5 Geo. 2,
cap. 7. The merchant's books are produced, and the
accounts sworn to befare the Lord Mayor, (in Lanuon,)
usually by a c1erk, 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 tbe words of the act
are, " It sha11 and muy be lawful for the plaintijf or defend-
ant, to verify aml prove any matter by affidavit 01' affirm-
ation, anu every affidavit cel'tified under the city seaI,
and transmitted, shall be of the same force as if sworn
viva voce in open conrt."-l Rep. W. I. C. 37, 38.


Witnesses attending the courts of this island do not in
general receive their expenses.-l Rep. p. 38.


When any point of law arises on trial of a cause, ami
the counsel on either side apply to the court to have a
special verdict, the judge is bound to grant, and the jnry
to find it.


Unless reasons in arrest of judgment are filed, (which
they frequently are merely for delay,) execution comes in
fonrteen days after judgment is entered up.


Judgments in this island are not registered, but are
entered in the prothonotory's offiee, and when it beeomes
neeessary, 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 upan gaods, lands, and body, all at once; some-
what resembling a statute staple formerly known in prac-
tice in England, but without the delay and charge of a
"liberate." The lawyers are agreed (however the prac-
tiee may hale been otherwise,) that the provost marshaI
ought to take them in ,yuccession. And now a manuseript
aet direets, that he shall not keep the body, ir lands and
goods are pointed out to hilll.-l Rep. 38.


The counsel in this ¡sland reeeive their fees (out of
court) frolll the client himself, and not through the lllediulll
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 seelll to be
uaubtful at present.-l Rep. 40.


"Vrits of error are not often resorted to in Barbados
for purposes of delay, being too expensive.


If a new trial is granted, it is always upon the terms of




BARBADOS. 191
fil'st paying aH the previous costs. "Vhere the rule is
silent as to costs, the construction is the same as in the
Court of Common PIeas in EnaIand, not as in the Comt
of King's Bench. (6) '"


Bench Actions.
Actions brought for the recovery of a debt not exceed-


ing eight pounds, are denominated bench actions, being
decided without the intervention of a jury. They are
tried by any one of the judges of the Court of Common
PIeas, on one of the court days after the jury actions are
finished.-l Rep. W. l. C. p. 4Z.


Court C!/ Urdinary.
The Court of Ordinary derives its authority by com-


mission fi'om the crown. The governor 01' president heing
commander-iu-chief of the island, is sole judge. He sits
alone, having no legal power of caHing in any assistance.
_ The probate of wills, granting letters of administration
and marriage licenses, form the subject-matter of his juris-
diction. Marriages are either by banns 01' license from
the governor as ordinary. They have no canonical hours
in the colonies, and marry at what time they pIcase.


All wills are proved, but the probate is conclusive only
as to personalty. There are no restl'ictions on the power


_ of disposing of property by will in this island. The
solemnities requisite to the validity of a wiII are nearly
the same as in England, but the Barbadian statute of
frauds 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
throughollt in the handwriting of the testator."


The court sits at the government house as often as
occasion requires. lt is doubted whether an appeal Hes
from this comt to the King in Council, 01' to His Majesty,
as heud of the Church. But in either case the appeal
from this court is direct and immcdiate. 1'here is no
power of enforcing the payment of costs j consequently
there is no taxation of them, and no table of fees.-
1 Rep. p. 43.


(6) Tidd's Practicc, 9th edito 916.




192 BARBADOS.


Court 01 Admiralty.
The Court of Admiralty consists of two courts, a Prize


and an Instance Court, both held by commission issuing
frol11 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 permito 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, bottol11ry bond s, &c. &c.
-1 Rep. p. 43.


Asole 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, anel t11e l11arshal. 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
no fe es for a prosecution at the Admil'alty Sessions. The
registrar and l11arshal are patent officers paid by fees.
Thel'e is a great deal of business in t11e Prize Court in
the time of war. The receipt of fees has sometimes
exceeded the judge's salary (which is 30001. sterling per
annum,) in which case it gocs on to pay the next year's
stipend. The fees of the Court of Admiralty are every
where excessive. 'Vhere a seizure froni smugglers
amounts to 1001. 01' upwards, a condemnation will not
enable the captors to pay the expenses.


The Admiralty Sessions are held by a separate com-
mission für the trial of murder, piracy, and other offences
committed on t11e high seas. This comt is composed of
the Judge of the Admiralty who presides, the roerobers
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 hetd as occasion requires.-Id. 44.


Court qf Appeal and Error
. The Court of Appeal and Error is composcd of the


governor and council. There is. no lawyer upon the
bench. Sorne of the judges are mcmbers of ¡t, but it is
provided by the governor's instructions that they shall
not vote in any case brought froro the court where they
have acted as judges. The governor and council decide




BARBADOS. 193
by ~ majority. A writ of error to operate as a stay of
execution, must be brought within fourteen days after
judgment. It only lies where the principal sum in dispute
amounts to 3001. calculated in sterling money, costs not
included. An ulterior appeal lies to the King in Council
where the value is 5001. It is said that no appeal will lie
for costs eo nomine et per se. The security to be given
is regulated by the Governor's instructions, and the acts
(Nos. 22, 90, and 14.'3,) of the island.-l Rep.44.


Escheat Court.
The Escheat Court sits under a commission. The cases


in which it has jurisdiction, are commonly forfeitures to
the Crown for want of heirs. An escheator-general is
appointed by the Governor.-l Rep. -W. l. C. p. 45.


CRIMINAL COURTS.


Court oi Grand Sessions.
This, the principal court for the administration of crimi-


nal justice, is held under the authority of an act of the
island. A cOl11mission of oyer and terminer and general
gaol delivery is issued by the governor, for the trial of aH
capital cril11es and misdemeanors, in which aH those gen-
tlemen of the island who al·e in the coml11ission of the
peace are included. The person who presides is generalIy
a member of the Council, or one of the ehief judges, the
chief justice, or chief baron. The court is held twice a
year, in June and December, and the commission is limited
to four days.


AH offences eommitted by free persons, whether
coloured or otherwise, are tried at this court. This court
professes in its decisions and practice to follow the laws
and rules of the criminal courts in England. The preli-
minary proceedings which take place before the trial of
persons accused (lf offences, as the complaint, warrant,
apprehension, examination, and commitment, are aH trans-
acted before a justice of the peace in the same manner as
in the mother country. Depositions are· taken in almost
an cases,-misdemeanors as well as felonies.-l Rep.
W. l. C. p. 45.


AH ofttmces committed by freemen are bailable, exeept
murder.


o




194 BARBADOS.
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 afee
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 befol'e twelveat 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 aH prosecutions.-l Rep. \V. 1. C. p. 46, 47.


Court af Quarter Sessions.
A Court of Quarter Sessions is by law established in


every parish, amollnting 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 canllot summon
a jury. This court, transacting no business, is not attended
by any professional persons whatever.-l Rep. W. 1. C,
p. 47, 48.


Barri~ters and Attornies.
It is now required (prospectively) thut gentlemen ad-


mitted to practise as counsel in these courts, shall previ-
ously have been called to the bar in England. Itis neces-
sary for gentlemen applying to act as attornies 01' solici-
tors in this island, to produce a certificate of having served
a clerkship for five years either in England 01' 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 comt in which they ¡ntend to practise. They do
not pay any fee, and are not restricted to any particular
nUlllber of clerks.-l Rep. W. I. C. p. 59, 60.




BARBADOS. 195


Debtors Absent, or Absconding~
An act to enable creditors to recover their just debts


out of the effects of their absent 01' absconding debtors.
-Hall's Laws, No. 202, 17th Mal'ch, 1753.


By this act it is provided that if any person being in-
debted, either absconds or departs, leaving behind him
01' her any outstanding debts. goods, 01' merchandise, all


,or any of the judgment creditors may attach such monies,
goods, and efFects in the hands of the person with whom
they may be found, by serving him with a summons in the
nature of a writ of scire facias, and creditors not having
obtained judgment may enter an action against the ab-
sconding or departed debtor, and serve the same on any
person indebted to him, 01' in whose hands there are any
of his goods or effects, which service shall be a warning
on the party served, not to pay the debtor absenting or
departing, at peril of his being afterwards obliged to pay
the plaintiff what he shall prove due. The act then pro-
vides, that the person served may appear to the sci. fa.
01' action, and show cause why the money, &c. should not
be condemned to the use of the plaintifl~ 01' he may plead
that he has no money, &c. in his hands, 01' any other
special matter. And that the plaintiff shall not have exe-
cution till he pnts in bail, conditioned that if the debtor
absconding or departed, shall appear in the said court
within ayear from the judgment, and discharge himself,
and p1'ove that he owed nothing, 01' 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. 'l'he following rema1'ks on this subject are
made by the commissioners appointed to inquire into the
civil and criminal administration of justice in the West
Indies. "These laws resemble foreign attachments in
London. They are a very powerful instrument in the
colonies, giving the local creditor a considerable advan-
tage over the foreign c1aimant j but it was complained that
they were found expensive. The costs in ordinary cases
are ascertained to be about Q8l. ] Os. By these mean s a
creditor may attach effects belonging to a defendant, who
has himself escaped. in whatever hands they are found.
No affidavit of the debt is required by the acto A cre-
ditor not having judgment must enter an action against


02




196 BARBADOS.
such absent 01' absconding debtor, and serve it on the
person in whose hands 01' power any effects are discovel'ed
to be, which has the effect of attaching them to the use of
the plaintiff: A judgment creditor serves a scire facias.
The plaintiff' gives security fol' restitution in case the
absent debtol' shall appear within ayear. The garnishee
pleading that he has nothing in his hands of the pIaintiff
to be attached, may be put to sweal' to the truth of his
pIe a, but then his oath will be conclusive of the fact.
The gal'nishee making defauIt is without relief either in
law 01' equity. (8)


Aliens and Foreigners.
" An Act to prohibit mastel'S of ships and other vessels


from landing aliens 01' foreigners in this island, without a
license for so doing from the Governor 01' commanuer-in
chief of this island, for the time being."-Hall, 134, passecl
~6thJune, 1717.


COLLECTION OF LAWS.


There are two printed collections of the acts of the
legislature of Barbados,-Hall's Laws, published in one
volume folio, 1764, and Moore's Laws, edited in 1801, in
one volume 8vo., both incomplete, and the former in a
remarkable degree inaccurate and dcfective. They were
published, however, under authority of the legislature, by
whom they are made evidencc. (9) Hall's Collection con-
tains the acts from 164·3 to 17G2; tbat of Moore, the acts
from 11th May, 1762, to 8th April, 1800. The later acts
of the ísland remaín in manuscript. The manuscript acts
not in print, are said to amount to ~47. The acts them-
selves are deposited in the Colonial Secretary's Office, and
copies are directed to be kept in tbe parísh churches.
Persons dcsirous of consulting them can only do so by
applying at the Secretary's Office, 01' to the Clerk of the
Vestry. A fce is paid by persons requiring a transcript.(I)


(8) 1 Rep. W. I. C. 42.
(9) Hall, No. 30; Moore, No. 67.


There had befóre been printed edi-
tions of the Laws by Hawlin, by


ZOllch, aud hv Salmon. See Prefacc
lo Hall's C(jll~ction.


(1) Rep, W. I. e, 6,7,123.


\,




197


GRENADA.


-


Grenada is one of the 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, aml twelve
miles in its greatest breadth, and eontaills about 80,000
aeres of land. It is divided into six parishes, Sto George,
Sto David, St. Andrew, Sto Patrick, Sto Mark, and Sto
John. Tbe capital town is tbat of Sto George, a name
conferred by an ordinance of Governor Melvill, made
soon after tbe cession of the island to Great Britain in
1763; the former appellation, during the dominion of the
French, having been Fort Royal. By the same ordinance
English names were given to all the several towns and
parishes, and tbe Frencb names were forbidden to be
thereafter u:¡;ed in any publie aets. (2)


There are several smaller islands in the vicinity of
Grellada, known by tbe general name of the Grenadines,
and supposed to be about 120 in number. But few of
these, bowever, are noweomprised in the Grenada govern-
mento By an arrangement which took place after tbe
peace of 1783, a line of division was drawn from east to
west between Cariacou and Union Island. The former of
these, and sorne smaller islands to the south of it, belong to
the Grenada government, while Union Island, and those
to tbe north, were annexed to the government of Sto Vin-
cent. (3) Botb these governments are now sllbordinate
to that of Barbados (see ante, 123.) Cariaeou, which was
the ehief dependency of Grenada, forms a seventh parish
in addition to the six already enumerated. (4)


(1) Brookes's Gazetteer.
(2) 1 B. Edwards, 383,385.
(3) Ib.381. Mr. Edwards does Ilot


Ilotice the authority under whirh this
divisioIl took place,but it \Vas probably


that of a proclamation dated (he 10th of
JaIluary, 1784, which is referred to in
an aet of the Grenada Assernhly of
(he 9th of March, 1734.


(4) Ibid.384.




198 GRENADA.


HISTORY AND CONSTITUTION.


Grenada was discoverecl by, and received its name from
Christophel' Columbus in 1498. It was then in the posses-
sion of the Charaibes, and these were left undisturbed by
the Spani.ards, who do not appear ever to have attem)?ted
to form a settlement.


In 1650, Uu Parquet, a Frenehman, invaded the island,
established a colony there, and exterminated the whole
race of its native possessors. The l'ights of the individual
who thus eHected the eonquest, were sold to another per-
son, by whom they were conveyed to the French West
India Company, whose eharter being abolished in 1674,
the island fl'om thenceforth became vested in the crown of
Franee.


In February, 176~, Grenada surl'endered on capitulation
to the British arms, and with its dependencies was formaIly
ceded to Great Britain by the definitive treaty of peace
at Paris, on the 10th of February, 1763. The chief stipu-
lations in favour of the inhabitants, as well by the treaty
as by the articles of capitulation, were these: l. It was
agl'eed that Grenada should continue to be governed by
its then present Jaws until His Majesty's further pleasure
was known. ~. As they would become by their surrender,
subjects of Great Britain, they were to enjoy their prQper-
ties and privileges, and pay taxes in like manner as the rest
of His Majesty's subjects of the other British Leeward
islands. 3. With respect to religious worship, 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
eighteen months were allowed them to dispose of their
effects. (5)


By royal pl'Oclamation, bearing date 7th October, 1763,
it was declared that His Majesty had, by advice of His
Privy Council, granted letters patent under the great seal
to erect within the countries ceded by the Treaty of Paris,
four distinct governments, one of which was to be " the


(5) 1 B. Edw. 353 to 360; alld Campbell v. Hall. Cowp. 204.


\
\


JI




GRENADA. 199
government of Grenada, comprehending the island of that
name, together with the Grenadines and the islands of
Dominica, St. Vincent, and Tobago," and that His Ma-
jesty had in the letters-patent directed the governors of
such governments, " that so soon as the state and interests
of the said colonies should admit thereof, they should,
with advice and consent of the members of oul' Council,
summon and call General Assemblies within the said go-
vernments respectively in such manner and form as is used
and dil'ected in those colonies and provinces of America
which are under OUI' immediate government," and had also
" given power to the said Governors with consent of the
Councils und representatives of the people so to be sum-
moned, to make constitutions and ordain laws, statutes,
and ordinances fol' the public peace, welfare, and good
government of OUI' said colonics, and of the people and in-
habitants thereof, as near as may be agreeable to the laws
of England, amI under such reglllations and restrietions
as are used in other colonies;" and had also " given power
un del' OUl' great seal to the Govel'nol's of our said colo-
nies respectively, to erect and constitute, with advice of
our said Councils respeetively, courts of judicature and
public justice wíthín our said colonies, fol' the hearing and
determining all causes, as well criminal as civil, accol'ding
to law and equity, and as nea!' as may be agreeable to the
laws of England, &c." (6)


By another proclamation, bearing date 26 Mal'ch, 1764,
His Majesty n'cites that he had directed a survey and divi-
sion of the ceded islands, ancI had ordered them to be
divided into allotments as an invitation to purchasers to
come 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 Gl'enadines, Domi-
nica, St. Vincent, and Tobago, with power to summon, by
advice amI consent of his Council, General Assemblies in
those islands as soon as the situation of the islands would
admito And the Governor, by advice and consent of the
Council and Assembly, were to make laws which were "not


(6) This proclamation is prcfixed
to Smith's Laws of Grenada.


(7) Cúmpbtll v. Hall, Cowp. 204.


This proclamation will be found more
al large in Lofft's Reports, p. 661.




QOO GRENADA.
to be repugnant, but as near as might be agl'eeable to the
laws and statutes of the kingdom of Gl'eat Britain-" (8)


Under these lettel's-patent an Assembly was 6rst con-
vened in Grenada in 1765; (9) the legislative authority,
prior to that period, having been exercised by General
Melvill and his Counci}' (1)


As the question of the l'ight of the Crown to impase
byproclamation the four and a half per cent. duty after the
grant of a legislative Assembly had passed the great seal
was discussed with reference to this particular colony, it
may not be out of place now to give sorne 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 hall per
cent. duty on exported produce as is paid in the other
Leeward Caribbee Islands and at Barbados, issued let-
ters-patent bearing date 20th of July, 1764, 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 an customs and
duties hitherto collected under the authority ofthe 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
the claim, it was urged that Grenada being a conquered
country, the King was invested with the power of putting
the inhabitants undel' 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
of 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 wel'e submitted to by the inhabitants of those Íslands,


(8) Preamble lo Colonial Aet of
23d o( April, 1792, intilulecl, "Au
Act for Itegulating Elections." And
see Campbell v. Hall, Cowp. 207,
and Lofft's Rep. 662, w be,-e these
Jetters-paten! are more fully givcn.


(9) 1 Edwards' Hist. 361; COII'p.


207.
(1) Smith's Prefacc to Laws of


Grenada.
('2) See the Repor! of lhis case,


Campbell v. lIall, Cowp. 204, and tbe
speeial vcrdict tberein, Lotl't"s Itep.
657.


1




GRENADA. 201
one of which was the payment of the duty in question.
On thc 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-
ti ve 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 Govcrnor lVIelvill. 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 a11 who were 01'
should become inhabitants, 01' who had, 01' should acquire
property in the Island of Grenada, 01' more gene rally, to all
whom it might concern, that the subordinate legislation over
the island should be exercised by an Assembly with thc
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 tbe ceded islands
of Dominica, Sto 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 a 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
y orke and Wearg, in 1722, in favour of that opinion.
The principIe had been discussed and decided in a similar
manner on a previous occasion. By the instructions given
to Colonel Codrington, the Governor of Sto Christopher's,
it seems that he was ordered to levy the four and a half
per cent. duty on the whole island, un del' 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.
The question of the right to do this was submitted in
1704, to the consideration of the attorney-general Northey,
who reported "that the officers of the English part of Sto
Christopher's had no authority, by virtue of the plantation


(3) Campbell y. Hall, Cowp. 213.




GRENADA.


aet made thel'e fol' the foul' and a halfper eent. on goods,
to levy the same on goods exported from that part of St.
Christopher's lately gained by eonquest from the French,
that law extending only to such part of the island as be-
longed to England when the law was mane j" but he added,
" her Majesty may, if she shall be so pleased, under the
great seal of England, direct amI command that the Iike
duty be levied on goods exported f!'Om the conquered part,
and that command will be a law there, her Majesty by her
prerogative being enabled to make laws that will bind
place s obtained by conquest, and aH that shall inhabit
therein." (4) The prerogative of the King, before the date
ofthe proclamation of October, was clear j but by that pro-
clamation, followed up by his commission to Governor
Melvill, he divested himself of the right to exercise it. To
returo 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, ann 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.
Smith's collection is under date ~Dth N ovember, 1766, and
several other acts were passed in that and the following
year, and among others, an act under date of 14·th
October, 1767, for establishing Courts of Common
Pleas, Error, King's Bench, and Grand Sesions, &c. (5)
But, "from the papers extant in the Plantation Office
in England, it appears that both General Melvill and
the govemment were much dissatisfied with the 6rst
Assembly, the Governor having hastily dissolved them
at the close of the year 1767, while the Privy Council
disallowed 6ve of their 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 amI calling together the Assembly of Grenada.
In pursuance of this p!'Oclamation the legislature was as-
sembled early in 1769 j" and from this period to N ovem-
ber, 1778, various acts were passed, among which was one
act of the 3d of March, 1770, (6) for explaining and


(4) 1 Chal. Op. 141, and on [he
subject of the 4! per cent. duties, see
ante 50, 51, n.


(5) Smith's First Table, prefixed
to the Laws of Grellada.


(6) Smith'sPreface, xi. First Table,
xvi.


: I
\ .


\




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-
dines) to Great Britain by the general pacification which
took place in January, 1783; (7) and the English govern-
ment was re-established there early in the year 1784 under
GenerallVIathew, (8) who was sent out as Governor of
"Gl"enada and the Grenadines Iying 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 respect 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-
nihílated 01' only suspended during the continuance of the
war, so as to revive again" by the restoration to the Crown
of Great Britain, and proceeds to enact "that aH such
parts of the common law of England, and aH and every
such parts of the statutes 01' 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 shaH be in aH courts
and other place s held and allowed, to be equaHy 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 "aH other
acts at any time heretofore passed in Grenada, and not
mentioned in eitber of the two preceding clauses, shaH be
deemed expired."


(7) Prramble lo Grenada Act,
16tb of Mal'ch, 1784; 1 B. Edw.
376 to 380.


(8) Smith's Preface, ix.


(9) Grenada Act, 20th of Febru-
ary, 1784 ; Smitb's First Table, xxiii.
and see Grenada Act, 9tb of MaTch,
1784. See ante, 197, and n. (3).




~04 GRENADA.
Acts were afterwards passed at different periods for re-


establishing the different courts of justice. Among these
need only be noticed an act under date ~7th 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
Exchequer, and for directing the manner of proceeding in
such Court of Errors;" an act under date of 23d De-
cember, 1790, intituled " An Act for re-establishing a
Court of Common Pleas and a Court ofComplaints, &c.";
an act of '1th of October, 1800, intituled " An Act for
establishing a Supreme Court of Judicature, and uniting
therein the jurisdictions of the several Courts of King's
Bench and Grand Sessions of the Peace and Common
Pleas heretofore 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
for hearing and determining errors so far as the same re-
lates to the numbel' of justices necessary to compose the
said court." These four acts are aH mentioned by Mr.
Smith as in force. (1) That of 4th of October, 1800,
(No. 87,) consolidates in one " Supreme Court of Judica-
ture" an the jurisdictions civil ap.d criminal, vested in the
King's Bench, Common Pleas, and Exchequer in Eng-
land, (~) except the jurisdiction of the English Common
Pleas as to fine and recoveJ'y, and the equitable jurisdic-
tion of the English Court of Exchequer. (3)


Since the re-establishment of the English dominion in
1784, this island, with its dependencies, has been governed
(according to the usual method) under commissions granted
by the crown to the successive Governors, with accom-
panying instructions, and the legislative power has con-
tinued to be vested in the Governor and Council and the
House of Assembly.


The Governor presides solely in the Courts of Chancery
and Ordinary. His salary is 3200l. currency per annum,
which is raised by a poll-tax on aH salaries, and it is the


(1) Smith's Second Table, xlvii.
(~) See clause 2 of the Aet, 1st


Rep. W. I. C. 102; Smith's Seeond
Table, xlvii.
. (3) 1 Rep. W. 1. C. 102. Will!


respeet to the Court oi Chancery in
Ihis island, it derives ils authorily
from the proclamation of 1763, and
the Governor's eommissioll.-lstRep .
100.




GRENADA. 9105
practice in Grenada to pass a Salary Bill on the arrival of
every new Governor, to continue during his government.
In all cases of absenee beyond twelve months, the salary
ceases and determines.


The Couneil consists of twelve members, and the
Assembly of twenty-six. A freehold, 01' life estate of
fifty acres, is a qualification to sit as a representative
for the parishes, and a freehold, 01' life estate in 50t. house
rent in St. George, qualifies a representative for the town.
An estate of ten acres in fee 01' for life, or a rent of lOt.
in any of the out towns, gives a vote for the representa-
tives of each parish respectively, anel a rent of 201. per
annum issuing out of any freehold 01' life estate in the town
of Sto George, gives a vote for a representative for the
town. (4)


Ordinances.
Eight ordinances fol' thc govermnent of this island are


stated to have be en issued by General Melville (the first
English governor) and the General Council, bctwcen the
28th of July, 1765, and the 12th of April, 1766; of which
tltree related to the government of slaves; tltree to the
establishment of courts of justice (on the English model);
one to the collecting of taxes, and one regulated the elec-
tion of members of the General Assembly.


COLLECTION OF LA WS.


There is a eolleetion of the laws of Grenada from the
year 1763 to the year 1805, edited by MI'. George Smith,
foI'mcrly Chief Justiee, and an aet of Mareh 15th, 1809,
" making the printed eolleetion of the laws of Grenada,
lately published by the chief justiee of this eolony, legal
evidenee in aH eOUl'ts within these islands." Thel'e are
also two supplements of laws, eolleeted and printcd at
subsequent times, eoming down to the 4th of Mareh,
1819, and in 1825 there wel'e about twenty aets remaining
in manusel'ipt.-lst Rep. 'V. I. C. p. 93.


By an Act of Assembly of 16th September, 1807, after
reeiting that some of the aets of these islands being written
upon papel' had becn warn out and obliterated, and others
had lost the gl'eat se al of the eolany, by whieh they wcre
authentieated, by reasan whereof their validity might be-
-----~~-- ------------


(4) 1 B. Edw. 388.




206 GRENADA.
come questionable, it is enacted, that every act made since
18th July, 1805, when General Maitland assumed the
government, and all others thereafter to be made, should
be fairly entered arrd recorded in the secretary's office, in
a book to be kept for that purpose, within one month
after publication, under a penalty of 1'100; 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 al! courts in the
islands. And that all procIarnations 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 exarnination


underthe late commission fol' inquiry into the administration
of justice in the West ludies, says that Acts of Parliament
of Great Britain passed before 1763 (subject of course to
the usual qualification of their being applicable in their
nature) bind this colon y, but none passed since; unless
the colony is in sorne manner designated. (6)


We have aIread y had occasion to notice the procIama-
tion of 1763, by which it appears that His 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." W e have also noticed the subsequent
establishment of courts of justice, and the convention of
Houses of Assembly, in pursuance of these authorities, and
it has been shown that the Colonial Act of 16th March,
1784, declares that aH such parts of the common law of
England, and aIl Buch 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 equalIy
in force sin ce their restoration. The concIusion 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


([» See Ihe rematk. (ante, p. 3
to 16) un the general topie, how far


the cololl¡es are subject to the laws of
the mother country.


(6) 1 Rep. W. l. C. 12'1.


t f I




GRENADA. ~07
altered by the Colonial Acts revived by the act of 1784,
or by those passed since, al'e now binding in Grenada.


" Although there is no law in Gl'enada," says Mr. Ed-
wards, "declaring an adoption of the laws of England,
yet it has always been the practice of the courts to con si-
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 are wanting in
the island." (7)


COURTS.


The courts established for the administration of civil
justice in this island are the Court of Chancery, the Su-
preme COUl't of Judicatul'e, the Court of Ol'dinary, an
Instance COUl't of 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 Supl'eme Court, in its character of
a Court of King's Beneh 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
commissionisissued as in England.-l Rep. W.I. C. p.lOO.


Court of CI/ancery.
The Court of Chancel'y in this island derives its autho-


rity from the King's proclamation in 1763, and the gover-
nor's commÍ.ssion. 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, exceptiJlg sorne alterations made by a Colonial
Act, No. ~9, and a few rules, laid down at different
times by the Court itself fol' its guidance 01' convenience.
The court sits whenever there is occasion. The business
consists chiefly of bilIs of foreclosure and questions as to
priority of incumbrances; and, byan act of the island, the
Court of Chancery of Grenada had jurisdiction given to


(7) 1 B. Edwards, 390.




208 GRl!:NADA.
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,
an.d does not give security. He alone appoints a re-
celver.


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, sorne times retained in the
hands of the officer of the court. The master is allowed
2~ ~er cent. on receipt, and ~~ per cent. on payment of
momes.


Injunctíons are known to be granted in two cases-to
stay proceedings at law, and to restrain the shipment of
produce. An appeal líes from all orders of this court,
interlocutory and final, to His Majesty in Councíl, for
matters of the value of .1:500 and upwards, and a recogni-
zance is entered into by the appellant and two sureties in
.1:500. 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 1'40.-1 Rep. W. l. C. 100, 101.


1'he Supreme Court.


In this court are united (by an Act of the Island, No.
87,) the authority ofthe Court ofKing's Bench and Grand
Sessions (formel'ly established by an act, No. 30.) and the
jurisdiction of the Comt of Common Pleas, and Comt of
Complaint, (revived by an act, No. 62.) The Supreme
Court of Judicature, by virtue of thís consolidating act, is
composed of a chief justice (appointed from England) and
four assistant judgcs, is held six times in the year, and is
said to have all the jurisdiction of the COUl'ts of King's
Bench, Common Pleas, and Exchequer in England. It
does not, howevel', exel'cise the equitabIe jurisdiction of
the Court of Exchequer in England; and fines cannot be
levied 01' l'ecoveries suflered undel' its jurisdiction as a
Court of Common PIeas; but a deed, acknowIcdgcd be-
fare a judge of the Comt of Common Pleas in England 01'




GRENADA. 209
Ireland, or the colonies, will have, under No. 25, Smith's
Laws, the same operation as a .fine or recovery; as will
abo, under the marshal's sale, by el. 101 of No. 62, the
marshal's conveyance Qf an estate tail.


The court follows the rules and laws of the respective
courts in England, with a few rules laid down by the
diflerent Acts of Assembly, and by the judges at variolls
times. Clause 3 of lite COUl't Act, directs the- mode 01'
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 ah-
sent defendants for such purpose (8) A power of
arrest is given and regulated by the Court Act. The
debt must amollnt to ,-f1O, except in case of transient
persons, and there must be an affidavit of the debt.
Arrests are alJowed in other cases upon a special order
from a judge. When a party is about to leave the island
the chief justice has allowed him to be arrested for un-
liquidated damages. In llncertain demands the judges in
conrt or at chambers, are empowered to moderate and
settle for what ¡;mm bail shalI be demanded. There are
no exemptions from arresto 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 too The ex-
pense is abont .f:21. 4s. 3d. Depositions are used on
trials, as in the otber islands, and without affidavit tha t
the witness is still absent or unable to attend.


JIl1"ies.
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 jUfies are known in practice here.


Elecutions.
Executions are taken out,lodged, and suspended. By


clause 66 of the Court Act, tbey bind from the time they
are Iodged in the marshal's office, and he is bound to
minute the precise time of their delivery.


-------------


(8) Bu! judgment obtained on proceso 5erved ill tha! rnanner C~llllnt oe
enforced in England, see ante, p. 9".


p




GRENADi\.


Injunctions are frequent to stay executions, more so
than to stay proceedings.


Fees.-Costs.
There is atable of fees of the officers of tIJe court kept


in their respective offices. There is also atable of fees
of solicitors, as between party and party. Costs are taxed
as between party and party.-l 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 .['10, and where the original cause of action, if
it have be en reduced to .::e1O, díd not exceed .::e30. The
comt is held before a single judge of the Supreme Court.
These triaIs do not occupy more than one day, and are
very speedily decided. Counsel or soIicitors are seldom
employed. The plaintiff and defendant in such cases
plead in person, and may both be put upon oath.-l Rep.
W. l. C.104.


Court olOrdinary.
The Governor, by virtue ofhis commission,is soIe judge


in the Comt 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 \Vife
may obtain a separate maintenance.


The practice is to provea 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 tbem.
An appeal is said to lie to His Majesty in Council.-


1 Rep. W. I. C. 104.


, Court of Admil'alt!J.
This comt, in the opinion of the Attorney-General,


.'" derives its authority from the Act 7 & 8 'Vm. 3, c. ~?Z.




GRENADA. 211
The subjeets of its jurisdietion are matters of revenue."
It doubtless existed before the 7th & 8th Wm. 3, but
that aet enlarged its powers. The jurisdiction is exercised
only in the Instance Court. There is no Prize Court.
The judge is appointed by the Governor as Vice-Admiral.
In its (lecisions and practice the eourt follows partIy the law
and practice of the Court of Exchequer, and partIy of the
lnstance Court in England. For the statute 7 & 8 Wm.
3, ch. 22, is supposed by the Crown Officers of the island
to enable the Admiralty Court here to do whatever may
be done in the Court of Exchequer at home. Until
lately, the chief justice was judge of this court.-l Rep.
W.I. C.104.


Court qf Appeal and Error.
This court was established (under N os. 27 and 88


Smith's Laws,) for writs of error from the superior court,
aod from that court only. The judges are the governor
and three members of the council, who have not sat as
judges in the court below. The aet provides fol' security
from the plaintiff in error, or appellant. The appeal
must be brought within twenty years. (9) The proceedings
are not attended with much expense.


Appeals to His Majesty in Council are not frequent,
and are attended with considerable expense. The terms
are, gi ving security (according to No. 27, c1auses 18 & 19)
and the governor's instructions.-l Rep. "V. l. C. 104.


Criminal Jurisdiction of tIte Supreme Court.
This branch of the Supreme Court is held under the


acts (Nos. 30 and 87 Smith's Laws.) Whenever the
Attorney-General sees occasion, he applies for a eourt,
and that a grand jury may be summoned. The aet pro-
vides that no writ for a grand jury shall issue of course,
but ooIy by direetion of the court. In sueh case the mar-
ahal 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 f: 10 and f:5. The


(9) This is the time stated, 1 Rep. W. I. C. 104-, 193. The period is
considerable.


p2




GRENADA.


pl'oceedings before trial, as to tlle warrant, apprehension,
examination, and commitment of prisoners, are precisely
the same as in England. Rccognizances amI deposition~
are retUl'Iled by the magistrates to the Crown office, and
by the Clerk of the Crown to the Attorney·GeneraJ, four
days before the sitting of the court, and the Attorncy-
General, when he thinks proper, frames the indictment.
The grand jury will not receive an indictment unless it is
signed by the Attorney-General, for which, on public
business, afee is allowed by the legislature.


Informations ex officio are sometimes filed by the
Attorney-General, and criminal informations are also
sometimes granted at the instan ce of a private person, as
in England.


This court follows the laws and rules of the criminal
courts in England, and a few prescrihed by acts of the
colony. The Attorney-General considers the common
law, as to crimes, :md a1l the criminal laws passed in
England before the charter of the island to have eftect
here.


The names of witnesses are indorsed on the bill by
the Attorney-General, out of court, before it goes to the
grand jury, hut 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 pl'isoners in this court, ex-
pressly by an act of this island, ancl the Attorney-General
considers that, in the colonies, where the judges are not
lawyers, such an ad is particularly peopel'.


'fhe chief justice presides in tbis court, and sums up,
when present, if not, the senior assistant-judge .
. Indictments and pleas are drawn as in England, but


only filed, and 110t l11ade up as a record, except when
l1ecessarv.


Pl'Osecutors and witnesses are not allowed their ex-
penses and costs.-l Rep. ,Y. l. C. 104, 10.5.


Judges.
AH the judges llold thcir offices during pleasure. The


chief justice of the Suprcme Court is appointed from Eng-
land, by mandamus fi'om Bis l\Iajesty. He has a salary
of .BZ500 currency, established by an act of the colony,
ana al so fees, which according to a docket in the possession
of the sccretary, are said tu be about .B700 per alll1Um.




GRENADA. 213
The assistant-judges have no salary, and from curtesy


{lo nnt receive fees, except where they transact business
in the absence of the chief justice. It is said, however, to
be doubtful whethcr they have not the right. They are
appointed by the governor and council.


Attorney-General.
The Attorney-General in this island has no salal'Y. He


has an account with the legislature for fces for public
business.


Barri8ters and Attornies.
By a rule of court l'ecentIy l'emodelled, a pel'son keep-


lng twelve term8 at horne, 01', six at home and attending
during the sittings here lwo 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 fol'
the tri al of petty offences.-l Rep. 'V. I. C. 110.




( 214


STo VINCENT.


-


Sto Vincent is one of the Caribbee islands in the West
Indies, fifty-five miles west of Barbados. (1) It lies in
13° 10' 15" lato and 61° 30' 51" long. (9Z) 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 Mustique. (5)


HISTORY AND CONSTITUTION.


The Spaniards bestowed the name of St. Vincent
upon this island, because they discovered it upon the 2l2d
of January, which in their calander is Sto Vincent's day.
But it <loes 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 1. (7)


In 167~, King Charles, by commission, appointed Lord
Willoughby Governor of Barbados, Sto Lucia, Sto Vin-
cent, and Dominica; (8) but it does not. appear that Sto
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.


(1) Brookes's Gazetteer.
(2) lntroductiun to Shepherd's


Practice.
(3) 1 Edwards, 4'26, ,127.
(4) lbid. 428.
(f1) Ibid,429.


(6) 1 Edwards (citingCampbell,)
410.


(7) Ibid, 407. See this patent
more fully noticed undcr (he tito
u Barbados."


(8) lbitl. 411, et ser¡,




STo VINCENT. 215
About the year 1675, eertain Afriean negroes being


wrecked on the coast of Bequia, were allowed by.the
Charaibes to settle themselves in St. Vincent, and after-
wards becoming very numerous, disputed and divided
with the native raee the possession of this island.' These
intruders were afterwards known by the name of the
Black Charaibes. (9) .


In 1723, the British made a fruitIess attempt to take
possession of this istand and of St. Lucia, by virtue of a
grant that had been made by George J. to the Duke of
Montague. (1)


St. Vincent afterwards continued to be the theatre of
savage hostilities between the negroes and the Charaibes,
in which the former pro ved ultimately victorious, and
nearly exterminated their opponents. (2)


The French had constantly opposed the attempts that
had be en made to reduce this and other islands under the
English dominion, and at length, by the treaty of Aix le
Chapelle in 1748, the English abandoned their preten-
sions, and St. Vincent, Dominica, Sto Lucia and Tobago,
were declared neutral. (3)


But afterwards, by the treaty of París, signed the 10th
of February, 1763, these pretensions were re-established,
and St. Vincent, Dominica, and Tobago, were assigned.
to Great Britain in full and perpetual sovereignty, (4)
the Charaibes not being once mentioned in the whole
transaction. (5) The proclamation of the 7th of October,
1763, the letters-patent of the 9th of April, 176t!<,by
which Representative Assemblies were granted to these
ceded islands, and theeontest consequent upon the at-
tempt afterwards made to impose the 4,~ per cent. duty on
them, have been already fully noticed in the account of
the colony of Grenada. To that account the reader is
referred.


A separate Legislative Assembly was in pursuance of
these authorities, summoned in each of the islands con-
stituting the general government. The Assembly of St.
Vincent was convened as earlyas 1767, the first act in the


(9) 1 Edwards, 411,412.
(1) Ibid, 414 lo 420.
(2) lbid. 420.
(3) lbid. 407, 408.


(4) This article oC Ihe trea!y \Vi!!
be found in Lofft's Rcporls, 1560.


(5) 1 Ed"ards, 409.




216 STo VIr;CENT.
printed eollection bearing uate on the 11th of July in that
year. -


'rhis aet makes mentíon of a Court of Common Pleas
as then existing in this island; and the next act, which is
under the same date, makes mention of Courts of General
Sessíons with criminal jurisdietion.


'rhe British government proceeded, after the acquisi-
tion of this colony in 1763, to grant amI sellIarge portions
of its territory, but the commissioners fuI' that purpose
were directed not to dispose till further instructions should
be given, of any su eh lands as were inhabited or claimed
by the Charaibes, and ufter some con test with these pe 0-
pIe, a treaty was concluded with them on the ~7th of Fe-
bruary, 1773, by which they acknowledged Bis Majesty
to be rightful sovereign of the isIand, and submitted them-
seIves to his Iaws as far as regarded aU their transactions
with his subjects. Anu on the other hand, they received a
portion of Iand for their residence, and permission to be
governed in their own quarters and in their intercourse
with each other, by their own customs. (6)


On the 19th June, ] 779, St. Vincent was captured by a
French force, but was restored to the dominion of Great
Britain by the pacitication of 1783. (7)


In this year, 01' the commencement of 1784,Edward
Lincoln, Esq. was by His Majesty's commission, un del' the
great se al, appointed "governor in chief over the islands
of St. Vincent, Bequia, and such oI' the islands caBed the
Grenadines, as lie to the northwan! of Carriacou in
America;" and this continued up to a recent period to be
the extent and style of the S1. Vincent government. 'rhe
commission wiII now oI' course be different, as a lieutenant-
govemor only will be appointed, the governor of Barba-
dos being the governor in chief of that island, and of
Grenada, Sto Vincent, and 'robago. (Se e ante, 1~3.)


At least as early as 1784, the legislative authority of Sto
Víncent was again exerá,ed (as before the French COI1-
quest) by the governor and couneil, and a representative
assembIy. and on the ~Zd of June in that year, an aet was
passed, whereby, after reciting the aboye commission, amI
that such of the Gl'enadines as lie to the nOl'thward of


(7) Ibid. 4~.5.




STo VINCENT. 217
Carriacou, were now included and made pal't of the Sto
Vincent govcrmnent, it is enacted th3.t "every law, act,
statute, and ordinance now in force in this island, sha1l,
and they are hereby declared to extend to and operate in
the said island of Bequia, and such other of the said
islands called the Grenadines as Iie to the northward of
Carriacou in America, such of them and so far as they
.al'e applicable to the same."


On the 15th March, 1786, an act of Assembly passed
for establishing Courts of King's Bench, Common Pleas,
and Error, and for the better advancement of justice in
tbe said IsIand of St. Vincent and the Island of Bequía,
and such other of the Grenadines as lie to the northward
of . Carriacou in America, and for rendering the former
proceedings of the Courts of Common PIcas and Error
valid, and for settling' certain fees." Thís act has since
been explained and amended by several othets. (8)


On thé 7th of Julv, 1786, an act of assembly passed
" for regulating the proceedings at elections, describing
who shall be deemed freeholders capable of electing and
being eIected representatives, and for erecting into a
pal'ish the Iands between the rivers Jambou and Byera,
and to enable the inhabitants thereof, and of the other
islands of Bequia, and such other of the Gl'enadines as
lie to the northward of Carriacou in America, to elect re-
presentatives to serve in the general assembly of this go-
vernment."


In 1795, an insurrection of the black Charaibes and
French settlel's took place in Sto Vincent's, which being
seconded by a French force. was not suppressed till after
asevere struggle. But in 1796, tbe enemy was dislodged
by a British force, and tranquillity restored. The Cha-
raibes, however, wel'e not allowed by our government to
remain, but were removed to the island of Rattan, in the
Bay of Honduras. (9)


On the 6th of November, 1807, an act passed fol'
establishing a Comt of Grand Sessions of the Peace, &c.


(8) See prinled Jaws, vol. '2, p.
41,80. 186. The Court of Chancery
i" Ihi. i.laud derives ils allthority frolll
Ihe ['ruelamaliun of 1763, ,Itld Ihe gu·


vernor's. comruission and illstructiolls.
!Id Rep. W. 1. C. 10.


(9) 4 Edwards, 4, H.




218 STo VINCENT.
and several aets have be en sinee passed to alter and
amend the same. (1)


Sinee the establishment of the British dominion in
1784, this island has eontinued to be governed in the
usual method, under commissions with aeeompanying in-
struetions issued by the Crown to the suecessive Gover-
nors, and the legislative authority has been vested in those
Governors, their Couneils, and the House of Assembly,
aceording to the ordinary form of colonial eonstitution.
" In the frame of its government and the adrninistration of
executive justiee," says MI'. Edwards, "St. Vineent's
aeems to differ in no respect from Grenada. The Council
consists of twelve members, the Assembly of seventeen.
The Governor's salary, exclusive of fees of offiee, is
GC~OOO sterling, of whieh <f1300 is a eharge upon the fund
arising from the duty of 4! per cent. The remaindel' is
by grant of the Assembly." (~)


The ehief justice is appointed fmm England, reeeives
His l\1ajesty's warrant under the privy seal, and his com-
mission passes under the great seal of the colony. He
holds his offiee during the King's pleasure and hio¡ own
residenee in the colony. A colonial salary of f:~OOO eur-
reney per annum is settled on the present ehief justiee, so
long as he shall fill the office and reside in the island.
He is also entitled, in addition to his salary, to eertain re-
gulated fees. (3)


Thc puisne or assistant-judges are appointed by the
Governor. They have no salaries, but sorne fees. They
hold their places during pleasure. (4}


There is an Attorney-General, who is paid by a colonial
salary of f:500 curreney, but this sum is said by the act to
be allowed in lieu of fees, w hieh are paid into the treasury,
for conducting the business of the sessions, and drawing
the aets of the legislature, which it is his duty to prepare
on the requisition of any member. (5)


Barristers and Attornies.
" It is usual in this island for the same persons to aet as


(1) Prinled Law., vol. 2, p. 76,
115.


(2) 1 Edw. 428. The statement
of the number of members composillg
the House of As.embly in Sto Vino
cent'", secms to be a mistakc. By Ihe
Elcctioll Acl uf 1786, lhe lIumber ¡.


lixed al nineleen, whereof eleven are a
qllorum. And nineteen is the numo
ber mentloned in Ihe Inlroduction to
Shepherd 's Practice.


(3) 2 Rep. W. l. C. 21,50.
(4) lhid. Zl, 51.
(5) lbid.22.


'~l
;




STo VINCENT. 219
counsel, attorney, solicitor, and proctor. It is not required
that they should have be en 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 01' lrelan4.
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
English barrister, the oaths are administered to him as of
comse. (6)


COLLECTION OF LAWS.


"!vir. 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 ~O. (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 Iaws of Eng-
land, adapted to the circumstances of the colony, as
existed prior to the procIamation of 7th October, 1763;
and such Acts of Parliament passed sin ce, as were ex-
pressly decIared, 01' manifestIy in tended 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 King's Bench and Common PIe as, and, as a branch of
the superior comt the Comt of Complaints, the Court of
Ordinary, the Court of Vice-Admiralty, and the Court of
Error. There is no Comt of Exchequer in this island.
" A very few words by way of amendment," said the chief
justice, "might be sufficient to give to the Comt of King's
.Bench and Common PIeas all the necessary powers of a
Court of Exchequer."


(6) 2 W.!. C. 54.
(7) Ibid. 5, 10.
(8) See the relDarks, 1'. 3 lo 16,


on (he general topie how far (he co·


foníes are subject to lile faw oftlle mo-
ther country.


(9) 1 Rep. W. lo C. 5. And see,
Illlder title "C,'cnada," lhe remarks
"JI (he ge!lt'rallaw ofthatcolollY,




STo VINCENT.


Court Of Cltancery.
This eourt derives its authority from the pmclamation


of 1 i63, and the governor's eommission ando instructions.
The governor is sole chancellor.
The court has three masters (amI examiners) appointed


by the ehancellor. The Colonial Seeretaryacts as Regis-
trar, and the Pl'ovost ~larshal as Sel:jeant-at-Arms.


The court is governed by the law and practice of the
Court of Chancery in England, and by its own rules.
When the latter are silent, the practice of the court in
England uniformly prevails.


Aeeording to a book of practice, published by Mr.
Shepherd,of the colonial bar, and recognized as authority
in the eolony, a defendant is entitled to three orders for
time, the first for six weeks, the second for four, and the
third for two weeks, if he is resident within the jurisdic-
tion. If he resides in the other eolonies, he may have
one order only fol' three months. Ifhe resides in Europe,
the time is extended to six months, with liberty to add
three more on motion, and on consenting to sequestratioll
if an answel' is not put in within the time.


A reeeive¡' is appointed by tlle court, amI gives security
in a recognizunce before the master, in a sum specified by
the court.


Costs are taxed by the master, according to the usual
form in Englana.


An appeallies from this court to His Majesty in Coun-
eil, and must be mude within fourteen days, and security
i8 given on recognizancc before the master effectually tu
prosecute the same. A copy of the papers authenticated
by the officer of the court should be taken.-2 Rep. 10
to 12.


Court of King's Bcnclt and Common PIcas.
This. the supreme court of common law, was esta-


blished by the Comt Act, which passed in 1786, and is
said to possess aH the combined pOWCl"S of the Courts of
King's Bench and Common Pleas in England.


The pleadings subsequent to the declaratiol1 (ancI 111at-
ters are often mal1aged without a deduration) are ore tenus.
When the plaintifl' is absent, a powcr of attorney from




STo V[~CE"T.


him to some pel'son in the island, dulypl'oved amI re-
corded in the secretary's office, must be produced, if
required, before the cause can proceed to trial 01' judg-
mento Foreign powel's of attorney, under a notarial seaI,
and recorded, are sufficient. The person acting becomes
liable 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.)


Depositionsare r:,ceivable in evidence under the same
circumstances as in the other islands, but they do not
seem to be taken with equal care, and there never .is
sufficient circumspection. A summons left at the dwelling-
}lOuse, even qf tite counsel, entitles the party to proceed
in the absence of his opponent, and have the deposition
taken ex parte.


A general venire issues, and tltirty-six' persons are
summoned; of these two juries (called thejirst and second
jury) are formed, and those juries are sworri, "once for
all, fol' the COUl't, and fol' the trial of aH the causes on the
list."


The party against whom a verdict has been obtained,
has time until the next court, to move in arrest of judg-
ment, 01' fol' a new triaL


To the judgmel1t an affidavit is al1nexed, 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 bil1Jing on lands and sIaves, and aH 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 othcr 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 othel'
isIands, and though l'eturnable to thé secretary's office,'
at the end of thirty days, are allowed to be levied without
suing out a scire facias, at any distance of time. Of real
property the marshal executesa conveyance by lease and
release, 01' often by feoffinent (without livery) duly ac-
knowledged and recorded in the registrar's office, either to
tbe purchaser, or to a trustee for the purpose of settle-
ment or baJTing dower. Personal pl'Opel'ty Ís transférred
by the marshal's certifica te, 01' by the sale only.




STo VINCENT.


The fees, both of the judges and offieers of the eourts,
are regulated by tables annexed to the aets.


Every verdict in this island carrÍes costs, "meaning,"
(says Mr. Shepherd, in his book on praetice,) " fuU costs."
The common practice respecting exeeutors and adminis-
trators is here extended, as they are generally subjeet 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 cif Complaints.
The Complaint Court (a braneh of the superior court)


in this island was established in 1786, by the 11th section
of the Court Act.


lts jurisdiction is limited to actions under the value of
.:eZO curreney.


Proceedings In this court are ore tenus.-2 Rep. W.
l. C. 10, 18.


Courtof Ordinary.
A will in this island requires the same formality in its


execution as in England. "For," says 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 aet has always, with the rest
of the Statute Book to 1763, (excepting laws having a local
Ol' 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 subserihing witnesses, &c.
Letters tcstamentary are issued by the registrar, and the
will is entered in the books kept far that pllrpose, " hut
the original is not delivered out to the party as in case of
deeds."-2 Rep. W. 1. C. 18.


Court of Admiralty.
There is no Prize Court in this ¡sland. The course of


proceeding in the lnstance Court is by information to be
filed by the Registrar, within ten days after the seizure.
The monitions are issued to the marshal, who posts a copy
at the custom-house, court-house, and principal tavern.
An appea] did lie from a judgment in this COl1rt to the




STo VINCENT. 223
High Court of Admiralty in England, 2 Rep. W. l. C.
18, 19; but now, by the Privy Council Act, it Hes to tbe
Privy Council.-See tbe Privy Council Bill, post.


Court cif Appeal and Error.
Great complaints were made, from various quarters, of


the vicious 'constitution of this court. "1 presume," ob-
served tbe chief justice, "no judge of the court, a quo, is
to sit in this court; to constitute wbich the Governor and
at least three members of Council are necessary."-" The
judges of the court below," says Mr. Shepherd, "if mem-
bers of Council, may give their reasons for their former
judgments, but not 'vote."-2 Rep. W. l. C. 19.


Criminal Court.-Grand Sessions.
This court is constituted by an Act of Assembly, and is


beld on tbe second Tuesday in the months of February,
June, and October, every year.


The members of Council are vi"tute officii, judges of
tbis court; a circumstance which we heard lamented.


The court is further composed of the lieutenant-gover-
nor, the justices of the Court of King's Bench and Com-
mon PIeas, snd the judge-surrogate of the Court of Vice-
Admiralty. The judges sit by virtue of the act, without
any further writ, commission, or authority.


The attendance of witllesses is secured by subprena ;
but, even in criminal prosecutions in this island, deposi-
tions of witnesses may be taken, in case of sickness or
intended departure from the colony, before the trial, and
are declared to be admissibIe in evidence, under the same
circumstances as in civil cases.


When a bill has be en ignored, or when the prisoner has
been acquitted, or is discharged by proclamation, and the
court certify the prosecution to have be en frivolous,
vexatious, or malicious, the prosecutor is liable to the pay-
ment of costs, which are to be taxed by the Clerk of the
Crown; and in all cases where the prisoner is unable to
pay his fees, the court may direct them to be paid out of
the treasury.


The court has a power to order transportation of
offenders to some other part of the world, at their dis-
cl'etion.




~ft(i. . •• ;'9f.A;;Z. ".~S.=b%ii4f2l! .. 4 .. ,..:;q;;AQ- .... :;U< ~.' l. > 1 •• $.4 ,#4,. 4C <


STo VINCENT.


Judges.
. .


Thc cbief justice receives His Majesty's warrant under
tbe privy seal of the colony. He holds his office during
the King's pleasure and bis residence in the colony. The
Governor has the appointment of the assistant justices.
AH the judges, holding their offices dllring pleasllre, are
}'emovable by the authority of the Crown, and may be sus-
pended by the Governor or Commander-in-Chief, byadvice
of the Council.-2 Rep. 22, 5i.


Pt'ovosl ]}larsltal.
The provost marshal general is here, as in the other


islands, the executive officer of a1l the courts. The chief
justice said, "he claims a right of acting as marshal in the
Court of Admira1ty."


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 bOllnd
to make bis return six days befol'e the sessions.-2 Rep.
W. J, C. p. }l3.


Admiralty Sessioll s.
There is no commission sent out to this island fol' hold-


ing a Court of Admiralty Sessions.-~ Rep. ~4.




( !225 )


TOBAGO.


-


Tobago is one of the Caribbee islands in the West
Indies. It is the most southerly of them, and líes in lato
11 o 10' north, amI 590 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 Grenada.A
twelve N. E. from Trinidad, aneI between thirty and forty
N. E. from the Spanish Main. It is somewhat more than
thirty miles in Iength from N. E. to S. W.; between eight
and nine in breadth; and from twenty-three to twenty-five
leagues in circumfel'ence. (1)


It is divided into seven districts called divisions, viz.
North East, Queen's Bay, Great River, CourIand Bay,
Barbados Bay, Rockly, and Sandy Point divisions. It has
an equal number of parishes, which are named Sto An~
drew's, Sto George's, Sto Mary's, Sto Paul's, Sto John's, Sto
David's, and Sto Patrick's. There are two towns, George
Town, and Scarboyough, the latter of which is the capi.
tal. (!2)


HlSTORY AND CONSTITUTION.


This island was first discovered by Columbus, from
whom it received its name. It was then inhabited by a
native race of Indians, who being harassed in war by a
hostile tribe on the continent, afterwards abandoned their
homes and took shelter in Sto Vince.nt's. (3)


The English visited this island very early, Sir Robert
Dudley having becn there in the reign of Quef'n Elizabeth.
William, Earl of Pembroke and Montgomery, is said to
have obtained a grant of this and two other small islands
from Charles l. 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 feH into the


(1) Encyclopredia Britannica; 4
Ed.275. In the lalter work it is said
that it is Iwenty-fhe miles lo the lIOl'tl¡
of Trinidad, Ihat the length is thirl)'.


Iwo miles and the greatest breadth
thirteen.


(2) 4 Edwards, 287.
(3) 1 Ibid. 276.


Q




TOBAGO.


possession of the Dutch, who founded a colony there.
But another settlement was soon afterwards attempted by
the Duke of Courlan~, whose c1aims being contested by
the States-General, thc duke entered into a treaty with
Charles n. uateu 17th November, 1664, 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
natíon was, in 1677, (lriven out by the French, and the
islarid once more became uninhabited, the conquerors not
chusing to cstablish themselves thel'e.


The demise of the last of the Dukes of Coudand, of the
house of Kettler, which took place in 1737, put an end to
an 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 París, in 1763, Tobago, wíth Sto Vincent's
Grenada, amI 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 advíce of his
Privy Councíl, granted letters-patent under the great se al
erecting wíthín the countries ceded by the treaty of París
four distinct govel'llments, one of which was to be "the
Government of Grenada, comprehending the island of that
name, togethel' with the Grenadines, and the islands of
Dominica, Sto Vincent's. and Tobago," and that His Ma-
jestyhad directed the governors of such govel'llments to
summon General Assemblies in the same. (5)


In pursuance of the aboye 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 Iegislative 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 á new establishment of Courts' of Common


(4) Enc:;-c1opredi" Britannica and letters-patent noticed more fully in
Edwards, ubi .up. 276, 280. the accollnt of Grenada.


(5) Sce tbis proclamation and the




TOBAGO.


Pleas, Error, King's Beneh, and Grand Sessions; and in
the same yeal' was passed an aet for establishing a Comt
of Chaneery.


In 1781 Tobago was taken by the Freneh, (the capitu-
lation having been signed on the 1st day of June in that
year,) and by the treaty of 1783, it was ceded to France.
Few Frenchmen, however, establisheel themselves there,
anel the original eolonists are said to have eontinued to
chel'ish a strong attaehment to the English govern-
mento (6)


On the 15th of April, 1793, the island was retaken by
the British arms, and the small number of Freneh settlers
that it eontained soon afterwards quitted the colony. (7)


In 1794, during the administration of Governor Ricketts,
this island is saiel "to have received a constitution from
Englalld." "But the charter of the constitution is under-
stood to be now lost." (8) However, its general nature
appears by thc preamble of thc Act of Assembly, passed
21st February, 1794. This aet recites that by the con-
quest of 15th April, 1793, "His Majesty aequired a right
to establish such government, and to impose such laws on
the inhabitants of the saiel 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, aml eonsist of a eaptain-general
and governor-in-ehief, a lieutenant-governor 01' other eom-
mander-in-ehief of thc said island, for the time being, a
Couneil appointed by His Majesty, and a House of Re-
presenta ti ves of the inhabitants of the said island, under
the denomination of a General Assembly;" and that a
General Asscmbly had aeeordingly been eh osen and con-
vened. The aet then proeeeds to recite that "by the
eonquest of the island and thc final establishment of the
government thereof, as aforesaid, an laws heretofore en-
acted by former lcgislatures of this island, ceased to be in
force," but it goes on to revive the aet of 1775, aboye me n-
tioncd, for establishing Courts of Common Pleas, Error,
Kíng's Beneh, aml Grand Sessions; and also a former


(6) Encyclopredia Britannica; 4
Edwards, 285, 287.


(7) Encyclopredia Britannica; 4
Edwards, 286; 3d voi. p. 436, where


the capture is said to have been on
the 17th April.


(8) 1 Rep. W. l. C. 71.


Q2




TOBAGO.


act fol' establishing a Registrar's Office; and pl'ovidcs
that the records belonging to the former Registrar's Office
shall be lodged in the new one. lt 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
ofPal'is in 1814. (1)


Since this, its last restol'ation to the British Crown,
the island enjoyed up to a recent period, as it did from
1794 to 180:2, a separate and distinct government uncon·
nected with any othel' colony, and possessed the same
legislative and judicial constitutions as had belonged to
it during that pel'iod. lt 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, 1:23, 124.


COLLECTION OF LA WS.


There is no complete printed edition, nor any compilation
bv authority, of the laws of Tobago. The originals are
d~posited in the Secretal'y's Office, where theymay be
consulted on payment of afee. (: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 a]so in print.
Copies of the ads of this, as of other co]onies, are preserved
in this country in the office of the Secretary of State for
the Colonies.


GENERAL LAWS OF THE COLONY.(3)


Upon the examination of the law officers of Tobago,
under the late commission fol' inquiry into the administra-


(9) The acl has wOI'ds which seem
sufficieutly lo revive also (he jnrisnic-
tious of (he Cour(s of Chancel'V, Ad-
miralty, and Ordinary. TIut ibcre i.
no express revival of (he aet of 1775,
eslablishing (he Coort of Chancery.
11 ¡s, how~ver, understood lo have
becn revived by an ael passed in Fe-


brllary,1794. 1 Rcp. W. 1. C.75,
76.


(1) 4 Edwards, 287; 1 Rep. W.
1. C. 124.


(2) 1 Rep. W. l. C. 71,122.
(3) See the remarks (ante, p. ::;


lo 16,) UII (he general tapic IIOW fa,'
(be colonies are subjcct to (he law of
the mothcr eouII(ry.




TOBAGO.


tion of justice in the West Indies, the chief justice thus
expresses himself, "The common law operated in an cases
not affected by colonial statutes. It has beenconsidered
that when we received an English constitution, in the time
of Mr. Ricketts, we took with it an the act& of Great Bri-
tain, adapted to the circumstances of the colony. 1 pre-
sume that an Englísh acts at the period of the cession,
which are applicable to the colonies, are in force here,
and an acts since passed in which they are specially in-
cluded."


The Attorney-Genel'al states, "1 apprehend that the
common law, in so far as applicable to the situations of this
coIony, 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 su eh statutes of
the British Parliament as are expressly extended to
us."(4)


This colon y is stated to have l'eceived a constitution from
EngIand during the administration of Governor Ricketts,
in 1794, and lS therefore supposed to have adopted with
it, 01' at the period of the cession, all the Acts ofParliament
of Great BrÍtain suited to its condition and circumstances.
The charter itseIf of the constitution is understood to be
lost. The local acts now in force are certain Acts of As-
sembIy passed before the capture of the colony in 1798,
aneI revived in 1794, ane! acts passed since.-l Rep. W.
l. C. 71, 124.


COURTS FOIl. 'rHE ADMINISTRATION OF JUSTICE.


The courts for the administration of civil justice in the
isIand of Tobago, are the Court of Chancery,the Court of
Exchequer, the Court of Common Pleas, the Comp]aint
Court fol' the recovery of debts under 1:10, appointed by
the Court. Act; thc Court of Ordinary, the Court of
Escheat, and a special and occasional court-the Court-
Merchant. (5)


The courts for the admillistration of criminal justice
are the Court of King's Bench and Grand Sessions, and
the lnstance Court oi' Admiralty, and a Court of Quarter
Sessions, There is also a special commission under which


(4) 1 Rep. 124. (5) 1 Ib.72.




~30 TOBAGO.
AdmiraIty Sessions may he heId, as occasion requires j and
the Gove1'llor has always the power of issuing a special


'- cómmission of Oyer and Terminer.-l Rep. W. l. C. 76.


Court 01 Ckancery.
What was the original constitutioh ofthis court does not


c1early appear; hut it is stated to have be en revived shortly
after the capture of the colony, by an act llassed in Fe-
bruary, 1794. The Governor is now sole Chancellor, and
is supposed to posscss a11 the authority of the Lord Chan-
cellor of England.-l Rep. W. l. C. 76.


Court 01 Exckequer.
. 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. N o court, however, is known to have been held
till the year 1815, when the appointment of chief baron,
which had long been vacant, was again fined up, and puisne
barons were appointed, and the court sat severaI days
for 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 ofthe constitution is missing, and
no records of the court can be found in the island.-l


. Rep.W. I. C. '79.


Court of Common Pleas.
This court del'Íves its authority from the Court Act, and


possesses the usual jurisdiction of the Supreme Civil
Court in the colonies. A chief judge presides with three
assistant-judges. The chief justice is appointed by the
Crown, the assistant-judges by the Governor. AH the
judges did hold their offices during pleasure, hut 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, hut by the new SIave
Act it is provided that 'the chief justicc of thc Court of
Common PIeas for the time being, and two puisne judges
to he appointed by his excellency the commander-in-chief
fol' the time being, whose commissions shall he quamdiu se
beue gesse?'int, 8ha11 be a comt, &c.' "




TOBAGO.


The salary of the chief justice was ;€3000 currency,
equal to ;€1~OO sterling. By a late act it has been re~
dueed. Tbe fees and perquisites of the office are, upon
an average, about ;€150 curreney. The assistant~judges
llave nQ salary, and do not usually transact that part of the
business which is remunerated by fees.-l Rep. W. l. C.
79, 119.


The decisions in this court are almost entirely governed
by the laws, usages, and practice of the courts in EÍlg~
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 Englimd. Actións
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 be en 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 stnwk in the same manner as in England.


Executions are taken out and suspended, and llsed as
securities which are assignable, but the assignee QlUst
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 ¡nto 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 canies costs with it in aH cases, except the
costs are restricted by the Court Act.-l Rep. W. l. C.
81, 8~.


Court qf Complaints, called at Barbados Bench
Actions.


In this eourt aetions are brought for sums under .i'1O,
and determined w~thout a jury.


The sitting is regulated by the Court Aet, and takes
place the day preeeding the holding of Courts of Common
PIeas, with a limited power of adjournment. Complaints \,
maybe tried before any judge of the Common Pleas, but
the chief justice generally decides them. One day com-




TOBAGO.


monly suffices for such business. The parties attend in
persono


An account filed by the plaintiff, of which a copy is
served on the defendant, with a summons, is a sufficient
allegation of the plaintiff's demand, without a declaration.


The whole costs of a complaint, up to the judgment,
are not more than '27s. The judge has afee of 5s. 01'
58. 6d.-l Rep. 8'2.


Court rif Ordinary.
This CQurt is held under instructions from the Crown,


before the Governor alone, having cognizance of probates
of wills, letters testamentary, and licenses for marl'iage.


AH wills are proved, and the ol'iginals are left with the
registrar, and deposited in the office.


AH marriages are by license of the Govemor as ordi-
nary, on an affidavit before the secretary.


The chiefjustice was not aware of any means by which
separate maintenance can be obtained by a \Vife in this
island ;nor was it known what measures were \lsed to
compel payment of costs. There is no process of excom-
munication, and nothing had be en heard of any proceed-
iogs as on a contempt.-l Rep. W. I. C. 82,83.


Court of Admiralty.
Tilis court del'Íves its power by commission frol11 Eng-


land. It has jurisdi~tion in this island only as an Instance
Court; matters of prize being decided in other colonies,
wItere 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 fol' want of a judge," though there were two cases
ripe for trial against parties under prosecution for not
making a return under the Registry Act. In other islands
the chief justice of the Common PIcas is frequently al80
judge of this court.


Admiralty sessions may be held as occasion requires,
undel" a commission then recently arrived from England, fol'
the trial of piracy, murder, and othCt' offcncc8 committed
upon the high seas. But no court had, at that time, ever
sat umler the commission. Costs are said to be taxed in
this comt by the registmr, accol'ding to fees established by
usag(';




TOBAGO. 233
The registrar of this court gives no sccurity.-l Rcp.


W. l. C. 83.


Court of Appeal a,nd Err01·.
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 infol'mation."


The procecdings upon wl'Íts of error are attended with
considerable expense. lt is the same with appeals to His
Majesty in Council, occasioned as the commissioners werc
told by the cost of taking out copies of papel's.-l Rep.
W. l. C. 83.


eourt of Escheat.
Thcrc i8 a Comt of Escheat in this island. Cases of


intestacy are not so frequent as formerly, but some occur
every yeal'. Slaves escheating are not considered as vir-
tualIy freed.


CRIMINAL COURTS.


Court of King's Bench and Grand Sessions.
The Court of Gl'alld Sessions i8 established by the


Court Act, for the trial of an offences committed by white
01' free coloul'ed persons.


The court is composed of aH members of council and
jl1stices of the peace. The commission of the chief jl1stice
does not extend to this court. He sits in it with only the
l'ank 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
publico


The case for the prosecution is opened by counsel (the
Attorncy-General), who is not confined to a mere statemeut
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 jl1dgment is supposed to be
final. The chicf jl1stice said he kncw not to what court a
wl'it of eiTor could be taken, fol' there was no Comt of
King's Bench with a sl1perintending power.




234 TOBAGO.
Prosecutors and witnesses are not allowed theil' costs


and expenses.-l Rep' W. l. C. 83, 84.


Court 01 Quarter Sessions.
This court is directed to be holden on the thirdTues-


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 powel' as the Court of Quarter Sessions
in England."-l Rep. W. l. 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 established 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. l. C. p. 84.


Attorney-General.
The Attorney-General of this island has no salary nor


stated fees, and performs val'ious 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-
nel'ally been paid by the publico The Attol'ney-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 ol'ders "that every person admitted to act as counsel
in the courts of this island, must have been called to the
bar in EngIand," 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 thc
Attorney-General 01' other Crown lawyer, and the judges
afterwards admitted to the bar of their respective courts
such persons as produced testimonials of their sufficiency."
Now, "the Governor exercises the l'ight of admission,"
said the chief justice, "as we understood, undel' the
King's instructions." They are admitted to act only
" during pIe asure," a form, it is. said, directed by the in~




'TOBAGO. 235
structions. The commissioners thought the propriety of
such an admission "very questionable, as it affccts the
independence of the bar." They observed that if such a
license was granted to act ~'during pleasure," it ought at
least to be expressed "dul'ing His Majesty's pleasure."-
1 Rep. W. 1. C. 87.


With respect to attornies or ~olicitors, they do not con-
stitute, in this island, a different bl'anch of the profession.
The sarue persons practise as barristers alld as attornies,
a~d are not reqllired to serve a, clerkship in the latter capa-
clty.-l Rep. W. I. C.88.


Justices of the Peace.
The duties attached to the office of a justice of the


peace, in this island, are the same as in England.-l Rep.
W. l. C. 88.


Coroner.
There are two coroners in this island, appointed and


removable by the Governor. Therc is no act of the is-
land directing inquests to be taken, either in the case of
free persons 01' slaves. They are taken in the same cases,
and the coroners pursue the sarue method as in England,
as nearly as circumstances will permito The coroner is
guided in the performance of his duties by the laws of
England.-l Rep. W. l. C. p. 88.




~36


BRIl'ISH aDIANA.
-


THE extensive and important colony of British Guiana is
the next that claims our notice. This colony formerly
consisted ofthree different divisions, Essequibo, Demerara,
and Berbice. From the time of these colonies coming
into the possession of EngIand until very lately, Bel'bice
constituted a separate colony; hut Essequibo and Deme-
rara had long been united. By a commission issued to
Sir Benjamin D'Urban, dated ltth Mareh, 1831, (see the
commission, post,) he was appointed Governor of an the
thl'ee colonies of Demerara, Essequibo, and Berbiec,
whieh were thenceforth dil'eeted to form but one colony,
and to beal' the name of British Guiana. These colonies,
together with the islands of Trinidad and Sto Lucia, being
colonies acquired by conquest, wel'e subject to the legisla-
tive powel' of the King in Council, (see ante, 4, 5, 6, and
B~, ~3). On the ~3d April and the BOth June, 1831,
Orders in Couneil were issued provieling fol' the adminis-
tration of justice in British Guiana, Trinidad, and Sto
Lucia, (see these orders, post,) and as the effect of the
first order (though its operation has been for a time sus-
pended by the second) was to unite these three colonies,
so far at least as related to the administration of justice,
some aecount of them wiII be given immediately after that
of British Guiana.


Demerara, Essequibo, and Berbice are colonies situated
in Guiana, which is a large country of South America,
bounded on the east and north by the Atlantic Ocean
and the river Oroonoko, on the wuth by the river of the
Amazons, and on the west by the provinees of Grenada
and New Andalusia. (1) The Duteh were lately in
possession of the four cstablishments of SurinaUl, Esse-
quibo, Berbice, and Demerara, which took their names
from the rivers on which they are respectively situated,
and together constituted what was calleel Dutclt Guiana. (2)


(1) Encyc!opredia Britannica.
(2) Les Troi5 Age5 des Colonies,


par De Pradt(1801), tom.i. p.70.
He afterwards observes, "Quatres
divers peuples Europeens occupent


la Guyalla,les E'pagnol. ~11 remontant
ver. l'Orinoque, les Hollandoi. apres
enx, les l/rangais plus au Midl, el les
Portugai. flepuis qu'iJs ont franchi
l' Amazonc." -p. 150.




BRITISH GUIANA. fl37
The thl'ee Iatter successively capitulated to the English on
the 18th and 24th of September, 1803, amI were ceded
to them as a B1'itish possession by the- convention signed
at London, 13th August, 1814.


Dutch Guiana was fo1'merly the property of thc Crown
of England, and the English had made settlements at Su-
rinam; hut of thcse settlements the Dutch made them-
selves masters in the reign of Charles n. to retaliate the
conquest of New Holland; and by a subsequent treaty in
:February, 1674, they obtained a cession of all the English
territories in Guiana in exchange for what thc)' had pos-
ses sed in the province now called New York. (3)
~tretching along the coast of the Atlantic, between the


Iatitude of six and eight degrees north, and the longitud e
of fifty-seven and fifty-nine degrees west, lies that part of
Dutch Guiana which contains the colony of Demerara, its
dependent settlement of Essequibo, and the colony of
Berbice. To the south-south-west thc river Courantin
separates this tract from Surinam; to the no1'th-north-
west the small inlet and stream of Moroko divides it from
the Spanish te1'ritory on the right bank of the Oroonoko.
Its length upon the coast, in a straight line, is about 160
miles, its breadth is not exactly ascertained, but is nearly
twice its length, and 1'eaches to the scantily-known p1'o-
vinces of New Cumana and New Andalusia, which are
cIaimed by the Spaniards, but which are in part inhabited
by independent Indian tribes. The limits of Berbice, to
the south-south-west, formerly extended no farther than
to the Devil's Creek, but in 1799, they were enlarged by
the addition of the lands between that creek and the river
Courantin. The opposite bounda1'Y of the colony, where
Demerara commences, passes from the mouth of Abary
Creek in a straight line to the southward. Between this
line and a similar one, drawn from the Boarisiree Creek
at the mouth of the Essequibo river, is included the colony
of Demera1'a. The dependency of Essequibo occupies
the rest of the territory as far as the Spanish frontier on
the Moroko.-4 B. Edw. ~41, ~42.


The principal rivers which water this district are the
Essequibo, the Demerara, the Courantin, the Berbice,
the Canje, and the Pomaroon. The first of these rive1's


(3) Bancl'oft's Hist. Guiana, p. G to 10.




f!38 BRITISH GUIANA.
is by far the Iargest. It runs a course of nearly 400 miles,
receives many considerable streams, is thickly studded
with islands, and where, through four mouths it empties
its waters into the sea, it is twenty-one miles in breadth.
The Demerara and the Courantin stand next in point of
size. They are all navigable, and the chief of them is so
to a considerable distance. The entrance to them is, how-
ever, somewhat difficult, in consequence of the bal's of
mud which have been formed by the deposits .from their
waters.-4 B. Edw. f!43. Large ships usualIy discharge
and take in part of their cargoes outside of these shoals.
Lang v. Anderdon, 3 B. & C. 495.


Cotton, sugar, amI coffee are the staple articles of these
colonies. Rum is of course manufactured to a great ex-
tent, and from the care which is taken in the distillation,
it is in high repute in the American market. Several
sorts of timber, fit for ship and other building, and for
ornamental uses, are produced here, and large quantities
of mill timber for the erection of sugar works, are ex-
ported to the islands. The forests are also capable of
nearly, if not entirely, supplying the home consumption
of shingles, hoops, and staves. Rice may be raised in
many parts with as much success as in Carolina, and the
Savannahs are admirably· calculated for the fattening of
oxen, which are in plenty, as are likewise sheep, goats,
and swine.-4 B. Edw.l244, !245. Ground provisions are
plentifully grown here, and the fruit of the plaintain tree
is most abundant.-Demerara Local Guide for 1833.


HISTORY AND CONSTITUTION.


Berbice was first settled as early as the year 16!il0;
Essequibo the next, and Demerara the lasto For many
years their culture amI commerce were in a languishing
sta te. Demerara, however, had gained so much the 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 1763, a rehellion of the slaves took place in Berbice,
but wassllppressed after. c<msiderable exertion. Great
numbers of the ncgroes were slaughtered. Those few
who escaped have since occasionally been joined by fugi-




BRITISH GUIANA. 239
tives from the estates, and these men are knowll by the
name of " bush negroes." Six years subsequently to this
rebeIlion, Berbice was exposed to another calamity. The
woods on the coast were set on fire, a crime which was at-
tributed to the rebel negroes, and the confIagration pro-
gressively extended from the river Courantin to the Deme-
rara, destroying the forests and devastating several rich
plantations. In the year 1785 these colonies were rednced
by a small British force, but they did not long remain in
the possession of their new masters, they being captured
by the French in the succeeding year. By a convention
signed at London on the 13th August, 1814, Demerara,
Essequibo, and Berbice, became a part of the British
dominions. Since then the prospe1'ity of these eolonies
has experienced a rapid increase, antI is still gaining
ground, so that the pl'Oduce 1'aised, 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
fIourishing island of Jamaica.-4 Edw. ~49.


Stabroek, 01' Geo1'ge Town, the capital of Demerara, is
situated in 6° 50' no1'th Iatitude on the east side, and nea1'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 in length; it stands on a low and level site, and the
principal streets are perfectIy straight, with carriage roatIs.
The houses are of wood, two 01' three stories high, amI
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, al'e villages in the vicinity of Stahroek. They aH
owe their erection to the British.


The former capital of Berbice, called Zealandica, 01'
Old Amsterdam, was huilt about fifty miles up the river,
by the fil'st 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 théy.groundedon. the nUlllerous muddy shQals,
whence it was sometimes impracticable to get them off tíll
they wera set afIoat by tbe 1'Í"ing of the spring tides. It
was accordingly resolved to remove the seat of govern-
ment to a more suitahle spot, within a mile of the sea.
This resolution was carried into effect in the year ] 795.




240 BRITISH GUIANA.
At the confluence of the Canje with the Berbiee, a town
was there laid out which was called N ew Amsterdam.


The powers of government were said by Mr. Edwards
(4 vol. 251,) to reside in tbe governor and a council called
tbe College of Kiezers. Tbis seems not now to be the
case (see the eommission to General D'Urhan, post). The
Court of Poliey appears at present to be the recognised
locallegislature of tbe colony, and the College of Kiezers
is in sorne respects a part of tbat legislature. The com-
mission aboye referred to declares that the bodies politic
heretofore existing shall be preserved, hut that the num-
ber of members of sueh 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 eollege of Kiezers, 01' that of the
Court of Policy, is but little known in this country, it may
be as weIl to give a short description of both of those
bodies, as well as of the origin of the Financial Representa-
tives. The college of Kiezel's appears somewhat to resem-
ble an electoral college in France. It is not the legislative
body, but, as it8 name signifies, (the college of Kiezers,
being literally, the college of Choosers,) it ehooses 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 oul' English sen se
of the word, but are actually elected 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 the college of Burgher Officers or
Kiezers. The Court of Policy was afterwards made by
the terms of the eapitulation to the English in 1803, (see
ante, p. 26,) a local)egislature, and seems to unite the
functions, except as to the levying of taxes, of the English
Houses of Lords aod Commons, and of the Privy Conocil.
The Financial Representatives resembled, in having the
direet power of taxation in their hands, the English
House of Commons, bnt resembled it in that respeet alone,
for the power of making laws was not given to the Financial




BRITISH GUIANA. 241
Representatives whose authority was expressly limited to
"the purpose only of raising, in conjunction with the Go-
vernor and Court of Policy of the said colony, the colonial
taxes," and of examining the aeeounts.


The following sketch of the history of these three bodies
lS the best that the author has been able to meet with. It
is extraeted from the Local Guide of British Guiana for
the year 1833, and seems to have been drawn froID au-
thentíe sourees.


In 1739Z, the constitution of Berbiee, then a propl'ietary
government, (as to whích see ante, p. 17,) was enaeted
by the States-General to be as foIlows:-The govem-
ment was to be administered by a Governor and Couneil ;
the Govel'nor to be appointed by the Direetors of the
Duteh West India Company, under a eommission from
the States. The Couneil to eonsist of six persons, to be
ehosen by the Govemor out of twelve nominated in the
tirst instanee by the inhabitants, afterwards by the re-
maining Councíl. The Court of Criminal Justíce to be
appointed by the Council 01' Court of Policy. The Court
ofCivil Justice to consist of the Governor and six members
selected by him from twelve nominated, haIf by the Court
of Poliey, half by the inhabitants, three members to retire
every two years-the Govemor to have but one vote.
The Court of Poliey to take preceden ce of the Court of
Justiee, and individual members from the date of their
appointment.


In 1739 the tirst eonstitution of the coIlege of Kiezers,
appears to have táken place at the eompany's establish-
ment in Demerara, although the formal grant of the
settIement by the ehamber of Zealand is dated in 1745-
1746. By the terms of this grant Demerara was sub-
jected to the jurisdietíon of the elder eolony of Essequibo.
In 1773 the Courts of Poliey and of Criminal and Civil
Justíee were first established in Demerara, at an island
about twenty miles up the rivel', called the Borselen.
The .courts consísted {lf the Commandeur (governor)
of Demerara, the Commandant (chief military officer
under the governor), the Fiscal, the Vendue Master, and
fou!' inhabitants, selected from a return of twiee that num-
ber, made by the College of Burgher Offieers, exereising
similar functions to the Kiezers of Essequibo. In 1776
the Assembly of Ten, in Holland, passed an ad declaring
H that the College of Kiezers is not eonsidered a judicial


R




BRITlSH GUJANA.


body, but as electors of burgher repl'esentatives in coun-
cil," and another of 1778 stated "that the Kiezers, not
being in the pay of the company, are not l'equired to watch
the interests of the company, but those of the colony
only." In 1785, on the l'estitution of the colony to the
Dutch, the Courts of Policy of Demeral'a and Essequibo
wel'e 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 an their superior and in-
ferior servants 01' ministers from their service· 01' 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 administration 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 aH which the colonists protested :
~lst. Because the colonial or burgher members, selected
from a nomination made by the elective college, could not
be comprehended undel' servants 01' ministel's of the West
India Company ;-~d. Because the burgher members are
expressly distinct from the sel'vants of the West India
Company, viz. by instructions of the Assembly of Ten,
!2~d March, 1773, Art. 6. "In aH cases of importance,
and in the execution and promulgation of the laws, ordi-
nances and regulations now in force, on the enactment 01'
publication of any new orders, the commandeur shall
convoke the Council, consisting of-lst, the commandeur,
-~d, the captain-commandant,-3d, the fiscal,-4th, the
vendue-mastel', and foul' of the principal best infol'med
and most respectable inhabitants; and that, pl'evious to
these foul' assumed membel's taking their seats, they shan
be sworn in due form." That consequently the Courts of
Policy and Justice consisted of the 'Vest India Company's
servants (Bediendens) and four membel's assumed from
among the bul'ghers, which four could not be compre-
hended among the Company's servants, but retained their
functions, especially as these functions wel'e reserved to




BRITISH GUIANA. 243
tbem in tbe capitulatians both to tbe English and :Fl'ench,
in 1781 and 1782, and lastly, by the instructions of the
"Vest India Company of tbe 28th October, 1783, requesting
them, as "the now existing Cauneil of Demerara," to
continue tbeir functions, and take over the colonies from
the commissioners of the King of France, wherefore tbey
pray, &c. The Director-general referred the memo-
rialists to the West India Company. On the 10th of July
tbe inhabitants oi' Essequibo joined in this matter, and
they all memarialized tbe States-General, who finally con-
firmed the righ~ of the Kiezers.


On the 7th of September, 1812, Governor Carmichael
issued a proclamation declaring tbe College of Kiezers of
the united colony of Demerara and Essequibo to be no
longer a distinct and separa te institution, and directing
that the College of Kiezers and the Financial Representa-
tives sbould tbenceforth be combined into and constitute
one single college, and that the election thereof should be
by other persons than those wbo had theretofore elected
tbe saíd colleges. By a proclamation dated 21st July.
1831, Governor D'Urban announces that he had received
instructions from His Majesty declaring tbat such pro-
clamation of Governol' Cal'micbael had never been con-
firmed at home, and tbat it was not autborized by the
powers conferred upon bim, and was tbel'efore void; and
further providing tbat tbese two public bodies sball again
be separated, and shall again exercise their respective
functions. In pursuance of these instructions, Governor
D'Urban proceeds to "constitute and appoint a College of
Kiezers of the eolony of British Guiana, fol' tbe purpose of
electing members to fill vacancies in tbe Court of Policy of
the said calony." The college was to consist of seven Kie-
zers, to be eIected for life. The Governor at tbe same time
'1 constituted and appointed a body ofFinancial Represen-
tativas oí tbe colony ofBritish Guiana, fol' tbe purpose only
of raising, in conjunetion with tbe Governor and Court of
Policy of tbe said colony, the colonial taxes to supply the
sums required by tbe annual estimate previously prepared
by tbe said Governor and Court of Policy, and of examin-
ing, in conjunction with the Comt of Policy, tbe accounts
oftbe colonial receiver-general fol' the pl'eceding year." (4)


(4) Since the date of this proclama-
tion the Financial Reprcsentatives


have heen constituted in the mallller
there prescribed. Thc autbor has becn


R2




BRITISH GUIANA.


The body of Financial Representatives was to consist of six
members, the term of whose services was to be for two
years. AH inhabitants of the colony possessed of twenty-
five slaves or upwards were called upon to 'Vote at tho
eleetion 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 Poliey of Demerara and Essequibo
should be united and hold aH future ¡¡essions in Demerara
alone. In 1812 an distinetions between the eolonies of
Demerara and Essequibo, whether of jurisdietion 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
6rst institution of the trial by jury in Demerara took place
in 1818.


Courts Criminal and Civil.
The following aecount of the eourts 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. Thc change in the judicial establish-
ments of the colon y are of such a recent date Csee Orders
in Council, post,) that it is not improbable questions may
for sorne time arise upon decisions given under those foI'-
merly existing. It has therefore been deemed a.dvisable
to preserve this sketch of their nature and jurisdiction.


The eourts established in DEMERARA for the adminis-
tration of criminal and civil justice respeetively, are, a.
Supreme Court for the trial of criminal and civil cases,
and a Commissary Court fol' the trial of causes for sums
under 600 guilders.


informed that an importan! dispute
has arisen as to the limils of thdr
powers. They illsisted, and ";ith some
shew of reason, that they were not
cOllstiluted ruerely to go tllflJlJgh the
form uf voting the cstimates which
had Leer. previotlsly prepnrcrl by the
GO\'cnlOr alld COtll't of Polic\', bl¡t
had ti rigllt to e"elTise tbd," discrc-
tion in Hctopting 01' rejectillg ally por-
t iOIl of tllem. The Oo\'eruor deL' ied


tbis. 'fhe Financial Representatives
insisted, and by withholdillg the sup-
plies have for a time gained their
point. The "ight thus claimcd by
tlJem has llot, however, been recogni ....
:r.ed by tlle hOIllf' u;overnmc:nt; but it is
to be ilOped thal :lS the colonis!s are in
forrn alluw('d to dect a taxing hody,
ils autho"ity llIay Il"t be so restricted
liS lo render il llsetcS' ir not ridícu-
lous.




BRITISH GUIANA. ~45


Superior Court.
The Superior Court 'of Demerara consists of a Pl'esi-


dent and eight members, of whom four and the President
must be present to constitutc a court.


Tbe President is appointed by the King, and remo v-
able at his pleasure. The other members are planters or
merchants of the colony, elected by the College of Kiezers,
who, when vacancies occur, return a double number, from
whieh the Court of Justice makes a seleetion. Theyare
obliged to serve, under a penalty of 3,000 guilders. In
the month of May of every second yeal', one-thil'd of these
colonial members vacate their seats, beginning with the
oldest member, and as their number is eight, three and
two vacate every alternate second year.


Commissm'y Court.
The Commissary Court consists of two members of the


Superior Court, who serve in rotation.
Any member of the court may be chalIenged, in the


like manner as a jmyman, and should he not withdraw, on
the exception of incompetency, the question would be de-
cided by the court.


The colonial members of the same colony receive no
salaries, but are entitled to and reeeive certain fees, whieh
are stated to average froID 400 to 500 guilders per un-
num each. They are also provided with board and lodg-
ing at the public expense at the colony-house during their
attendance.


COURTS AT BERBH::E.


At BERBICE the administration of criminal justice is
vested in the Governor and Couneil; and that of civil
justice in the Governor and six members.


A Commissary Court and a Roll Court are also held at
Berbice; the fol'mel' by two members of the full comt, fol'
the trial of causes fOl" sums undel' 600 guilders, the latter by
one member ofthe same court for the interlocutory pl'oceed-
ings on the Roll, (5) which is termed the instruction of


(5) Such as filing claim and de-
mand, Uf declaration, 3nswer, ,'epli-
que, aud duplique, inveutory uf


"ollcher" exchangc oí vouchers, iu.
terrogatories for cxuminutioll of wit-
nesses, &c.




246 BRITISH aUIANA.
the cause. This member of the court is termed in France
" le Juge d' Instructíon. (6) The Court ofCriminal Justice
is composcd of the Governor and six membcrs, and, in
Cases of vacancy, the latter are selected by the Governor
froro a treble number pl'esented to him by the rcmaining
members. .


Court of Civil Justice.
The Coul't of Civil J ustice is composed of the Governor


and six members, of whom the Governol' (as President)
and foul' members constitute a court.-::2 Rep. fi?d series,
W.I.C.::2.


The members of the lattcl' court are elected by the Go-
vernor frOJIl a double number presented to him, as nomi-
nated by the Govel'llor and Councíl. Three members
retire biennially, and their pIaces are supplicd by others.


Any membcr may be recused for incompetency, enmity,
consanguinity within the second degree, and fol' various
other causes specified in the written law.


The emoluments and priviJeges to which those Berbice
members are entitled, are enumerated, (::2 Rep. !2d series,
W. 1. C. p. 5::2,) and it will be seen that they also, as well
as thc members of the Superior Court at Demerara, are
entitled to board and lodgíng at the public expense
during their attendance on the courts.


LAWS. (7)
The laws in force in these colonies, as gual'anteed by


the al'ticIes of capitulation 011 theit' surrender to Bis Ma-
jesty's arms, on the' 18th September, 1803, are the old
law of Holland, peculiar vernaculal' Jaws, and the Roman
]aw, in subsidium, particularly with regard to slaves.


The following is an extmct from the " Register of Re-
solutions of their High Mightinesses the States-Geneml


(6) At Demerara this Rol! Conrt
is held by two commissaries.


(7) Sec the remarks (ante, p, 3 to 16)
on ¡he general topie, how far the colo-
nies are subject lo the luw of the mo-
tller coulllry. The law by which British
Guiana is chiefly governed is 11Ie Ro-
man·Dulch law of Ihe Seven United
Provinces,(see ante, p. 23, Ilmi 2 Rep.
W. r. C. ed series, 3, 53,54.) A


very able translation of " tbe Laws of
Holland" has been published by ]\fr.
Henry, who was sorne time Presiden!
of Ihe Superior Court at Demeral"a,
and who afterwards went thither as a
comll1issioner lo inquirc into and re-
port the slatc of thc Admi,listr"tioll
of Civil aud Criminal J ustice in lhe
colony.




BRITISH GUIANA. 247
of the United Netherlands." It is dated 4th October,
1774, and is the authority by which the general law of
Holland is directed to be followed in the colonies oí De-
merara and Essequibo.


f' Extractfrom tIte Register of Resolutionsoftheir Higlt
Miglttinesses the States-General of tIte United Nether-
lands. Daled 4th October, 17H.
H That it shaIl be furthel' enacted, as it is by these pre-


sents enacted accordingly, that all the laws of Holland in
general, and more particularly all law3, statutes, resolu-
tions, and ol'dinances of their High Mightinesses, 01' the
Committee of Ten, with the approbation of theil' High
Mightinesses, heretofore transmitted 01' hereafter to be
tl'ansmitted to the Director-General and the Council of
Essequibo, 01' to the Commandeur and Coullcil of Deme-
rara, shaIl 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 1 st of April, 1780: and in matters
relating to hereditary succession, ab intestato, by the law
of consanguihity, termed Aasdoms Veusterfrecht, as con-
tained in the decree of the States of Holland and West
Friesland, dated the 18th of December, 1599.


"That in civil causes they shall be regnlated by the
manner of proceeding enacted by the Assembly of Ten;
in 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
especialIy provided for, they shall have recourse to the
written laws.


" And an extract of these resolutionsshall be sent to
the representative of His Highness and to the Directors
of the West India Company in the Assembly of Ten, with
orders to cause the foregoing regulations and further
arrangements to be duly published."


(Signed) COCQ. D. HhEFTEN, Vt.
Conformably to the aforesaid


Register.
(Signed) H. F AGEL.


As 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 aets




relating to the colonies as in force in Demerara, although
passed before that eolony belonged to the British govern-
mento


The members of the Court of Civil Justiee at Berbicc,
statcd that English aets were not generalIy eonsidered as
binding there. They enumerated the Navigation Acts,
and those relating to the SIave Trade, as being in force in
their colony. Proofs for the recovery of debts, under the
British act 5 Geo. !?, are admitted in both eolonies.-!?
Rep. !?d series, W. l. C. 3.


Practice of tIte Courts.
The pleadings in the Courts, both in criminal and civil


cases, are carried on in the English language, under an
order of Ris 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 inconvenienee. 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
leave of the court, be heard in person.-fl Rep. 2d series,
W. l. C.4.


In cases of error or misprision in pleading, relief is
afforded by the courts, it being, as was stated to the com-
missioners, uncommon to quasb a11 the proceedings on that
aecount. This is termed " CivilReliif" in the Dutch law.


In neither colony does the Court state (said the exami-
nants) the reasons of its judgments.-!? Rep. !?d series,
W. l. C. 5.


In the case of a witness absent from the colony, bis depo-
sition on oath, attested according to the law of the eountry
where made, is (said the President of Demerara) generally
admitted without objection. The Fiscal doubted whether
it could be obtained by any pl'Ocess issuing from the Civil
eourt. Where a witness is in the jurisdiction, but pre-
vented from attending by sickness, his evidence is obtained
by a process termed enqueste valetudinair.


As regards powers of attorney to be acted upon in De-
merara and Berbice, it appears that tbey are held valid if
executed according to t~e laws of the country where made.
It requires a special power to execute any deed conveying
any interest in lands Ol" houses, or an estate in the colony,
hut it is not necessal'y that such special power should be




BRITlSH GUIANA. 249
recited in the deed itself. The deed, however, must re-
cite the authority ot· power of attorney, as being of record
in the registry.


When application is made to the court at Demerara to
put off a trial on account of the absence of a material wit-
ness, an affidavit to such effect is (said the President)
seldom called foro The court, however, requires to be sa-
tisfied that the evidence is material.


At Berbice the course appears to be always to require
an affidavit in such case, and to examine into the mate-
riality oí the evidence.


Citation ad valvas curia: (or nail process) is reckoned in
Demerara good service, both in the case of persons who
have quitted the colon y without leaving any agent or at-
torney to represent them, and oi' those who, although they
may have a property in the colony, have never be en
there. (8)


At Berbice, however, a aistinction was drawn by the
examinants, as to whether the claim was against real 01'
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 01'
proprietors, representative 01' representatives, and service
of process would be on the plantation; but if against per-
sonal property, recourse would be had to arrest and cita-
tion ad valvas curia:, and served at the debtor's last
domicile.


Jt 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. l. 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
eiTor, &c. the Governor, as representative of the Sove-
reign, is authorized, on petition, to grant a mandameot of
relief with committimus to the Court of Justice, where the
matter is tried 00 its merits. It has also extensive jqris-
diction over testamentary guardians and executors, where
the interests of minors are concerned; obliging such par-
ties, on suggestion of misconduct, to render accounts,
which accounts are referred to the sworn accouotant for


(8) But as lo (he elfect of this mode attempted lo be ellforced in this country,
of sn.ice upon a jndgment afterwarrls sce ante, 93, ¡¡ud the cases thefe citecl.




250 BRITISH GUIANA.
report, and afterwards approved 01' otherwise by 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 EngIand.


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 coIonies, a remedy of a similar nature (termed penal
malldament 01' interdict,) may be obtained by a party on pe-
tition, to restrain proceedings which he considers injurious
to him.


When a witness is old 01' infirm, 01' 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 noto In the one case
notice would be given to the defendant; in the other, to
the party in future to be interested, for the purpose of
permitting him to eros s-examine.


The Pl'esident of Demerara said, that he should require
a witness so exam'ined to be afterwards produced, if it
were found practicable, provided either party wished it.
This mode oftakingevidence de bene esse, is termed in the
Dutch Iaw, Enqueste Valetudinair, from the circumstance
of the sickness 01' 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 suít should have been instituted.


It appears that there is no difficulty 01' intricacy in these
colonies in the mode of transferring 01' conveying real
01' personal property, it being, on the contrary, simple and
convenient. Should the subject be real property, it is
conveyed 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 01' 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,
01' by delivery. If moveable property (he added) be not
mortgaged before the judge, and the mortgagor continue
in possession, the same would be fraudulent against third
persons.-2 Rep. 2d series, W. l. C. 7,8.




BRITISH GUIANA. 251
There is no process in these colonies similar to thc


English writ of ¡tabeas corpus. A person illegally impl'i-
soned would (said the President of Demerara) 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
of 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 dcposited 01' re-
corded.


The following is the course adopted by a uebtor who
wishes to escape personal arrest, 01' ohtain release from
prison by a surrender of aH his property to his creditors :
-He applies for a writ of cessio bonorttm, which issues in
England, and is sent to the colony for trial, when the
court, after hearing parties, appoints curators, who take
the property and act fúr the benefit of the creditors. The
Governor, as repl'esentative of the Sovereigp, has power
(it was said by the cxaminants 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 pl'escrihed by the lapse of one third of a cen-
tury, but sentences in civil actions are prescribed 01' rather
become superannuated by a lapse of five years; but a
mandament (in 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 in cases of adultery, (9) when the prescription takes
place in five years.-2 Rep. fZd series, W. l. 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 in the Gazettes of England and Holland
three several times, six months before such in tended sale,
calling upon the creditors to appear before the court to file
their claims; and the judicial sale nevel' takes placeunder a


(9) l'he law of Hulland treat. adul-
tery as" public crime, and llot as a
civil iujul'Y. .For the pUlIishmeuts in-


flieted in cases ofadultery, sce Henry's
Van Der Lindeu, 354, et seq.




252 BRITlSH GUIA NA.
year from the time of sequestration.-2 Rep. 2d series,
W. l. C.9.


President.
The chief judge of Demerara, as we have before seen,


is called "The President." He is a barrister, and ap-
pointed by the King, with a salary of o€3000 sterling pel'
annum, and his fees are accounted for to the government;
he is also provided with a house and servants at the go-
vernment's expense. At Berbice the Governor acts as
president of the courts of justice. He is appointed Go-
vernor by the King's commission, but it appears by his
answers to the commissioners that he presides in comí by
virtue of his instructions from the Secretary of State.
He does not in the latter capacity receive any salary nor
fees.-2 Rep. 2d series, W. l. C. 11.


Fiscal.
In the united colony of Demerara and Essequibo there


are two fiscals (first and second), at Berbice but one.
The fiscals in the united colony are appointed and re-


movable by the King, the lieutenant-governor having
power to suspend 01' remove until His Majesty's pIe asure
be known; from this order an appeal would He to the au-
thorities in the mother country.


The fiscal at Berbice stated that he derived his appoint-
ment from the lieutenant.governor of the colony, and hcld
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 01' attorney-
general in the other West India colonies. He is, however,
Iike them, a public prosecutor. He is, by virtue ofhis office,
a member of the Court of Policy 01' Legislative Assem-
bly ofthe colony, and is bound to give his ud vice to the
court in aU matters in which it shall be required. For a
full uccount of his duties and privileges, see 2 Rep. W. l.
C. 52d series, Appcndix J. pp. 5249, 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. 253
King's chest, and an allowance of 2500 guilders fol' house
rento His fees (whieh average about .;[300 ayear) arise
from the entry and c1earance of vessels, permits to ship
sailors, certifieates, and registering oflanded slaves. His
present emoluments amouot to .[2700 sterling.-2 Rep.
2d series, W. l. C. 12, 13.


Second Fiscal of Demerara.
This officer is appointed by His Majesty ; he is tbe chief


civil magistrate and head of poliee in the distriet of Esse-
quibo, and his duties, among othel' things, are to take
eognizanee of all crimes, breaches of the peace, 01' 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 slaves,
and to do justice betweeo them in a summary way. (1)
lt is also his duty to see that the slaves 00 the plantations
are furnished with a sufficient suppIy of clothing and
other necessaries, and that tbey are comfortably lodged
and properIy attcnded to in sickness. The amount of his
salary is stated by him to be 17,200 guilders per annum,
of which 15,000 is paid from the colonial chest, and
2200 guilders from the King's chest; and that he receives
no other emolument whatsoever.-2 Rcp. 2d seríes, W. l.
C.13.


Colonial Secretary.
This office is hcld in both colonies by warrant under the


privy seal. There is no salary attached to the office of
Colonial Seeretary at Dcmeral'a, his emoluments consist
of fees. At Berbice that officer receives a salary of of2000
sterling per annum, in lieu of fees, which are carried to the
public account. .


At Demerara it is not tbe pl'actice to permit parties to
have access to the registry of tbe acts, 01' to the original
acts themselves, deposited in the secretary's office; but


(1) By the Slavery Abolition Act
no person but a special justice of the
peace, appointcd under that act, will
in future possess any jllrisdiction over
the apprcnticed labourers. But as ¡he
commissioncl's rcported strongly in


favoUl' of Ihis brancll of Ihe Fiscal'.
office, it will probably continne to be
exercised by him, 1I0t in the character
of Fiscal, but under the authority of
an appointmen't as spedal justice of
the peace.




BRITISH GUIANA.


at Berbice, it appears that aH parties may examine the
registry, and even without fee 01' reward.-2 Rep. 2d se-
ries, W. 1. C. 14, 16.


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 future to be performedby the vice-president
of the court of criminal and civil justice ofDemerara 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 conrt, either as
sequestrators, curators, guardians, 01' trustees; to examine
the claims filed against insolvent estates, and to report
thereon, and on an matters of account referred to him by
tho court. The sworn accountant has no salary but is
paid by fees.


There appears to be a diversity in the practice of the
two eolonies, as to the arranging the claims of creditors in
cases of praJ et concurrentiaJ. 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 an
parties.-2 Rep. 2d series, W. l. C. 16, 17.


Advocate pro Deo.
The original design of this office was to assist such per-


sons in the prosecution 01' defence of their rights befare
tho courts of justice as were unable, from their poverty,
to pay the regular fees of counsel 01' attornies. From the
answers, however, oí the gentleman who holds the ap-
pointment at Demerara, and from the terms of his eommis-
sion, with which he furnished the commissioners, it would
appear that he is entitled to consider himself as a law
officer of the erown, and the legaladviser ofthe Governor,
as well as advocate pro Deo; and although, in practice it
does not appear that he has frequently actcd 01' been con-
sulted in the befol'e-mentioned capacity of law officer 01'
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
eommissioners thought that sOrne measure should be taken




BRITISH GUIANA. 255
to remove this seeming incongruity, the office of legal ad-
viser to the Governor being generally considered as apper-
taining to the first fiscal.


At Berbice there is no advocate pro Deo, but it appears
from the answers the commissioners received there, tbat
tbe practice, in cases requiring such assistance, was to se-
lect for that duty one of the attornies practising at the
bar, who, if he succeeded, was entitled to costs from the
opposite party.


Tbe salary of tbis officer (paid out of the King's chest)
at Demerara, is 7500 guilders per annum, and he is, be-
sides, entitled to costs in case he succeeds, if by sentence
of the court the defeated party should be condemned to
pay costs.


Tbe advocate pro Deo said that he díd not consider
himself autborized to undertake any cause pro Deo, with-
out tbe authority of the Governor, or tbe court of justice,
or the President.-2 Rep. 2d series, W. I. C. 17, 18.


First Marshal.
The first marshal at Demerara holds his appointment by


virtue of letters-patent from His Majesty, and executes bis
duties by a deputy whose nomination has been confirmed
by the court of criminal and civil justice. Till the year
1816, tbe nomination of tbe sub-marshals was with tbe·
court of justice; but byan order of the court of the 25th
of April of that year, it was given to the first marshaI.


At Berbice the person filling this office derives his
autbority from the appointment of the court of civil jus-
tice, and he performs its duties in person, assisted, how-
ever, by a second marshaI in services out of the town.
. In neither coIony is any saIary attached to this office;
its eroohnnents arising solely froro fees .... ':"'2 Rep. 2d series,
W. 1; C. 18.


Drossart.
This officer has the superintendence of the gao], and


the prisoners therein confined for criminal and civil
offences, and for debt. He is appointed in each colon y
by the lieutenant-govemor thereof. At Berbice this offi-
cer is also called under-sheriff and gaoler.


At Demerara the emoluments consist of a salary of
1500 guilders from the colony, and 1000 guilders from the




256 BRITISH GUIANA.
Crown, an allowance fol' house rent of ~~OO guilders, and
certain fees.


At Berbice the salat'y is 1200 guilders and fees.
In both colonies the duties are stated to be executed in


persono
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.-~ Rep. ~d series, W. I. C. J9.


Counsel, Attornies, and Notm·ies.


The practitioners of the law in Demerara are divided
into practitioners in fuIl (i.e. persons acting both as advo-
cate anei 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 fuIl
had been admitted to the courts sínce 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 observed,
and that an idea had gene rally prevailed that an English
barrister could not practise in that colony, except through
courtesy. He observed, however, that an English Ol' Irish
barrister, 01' Scotch advocate would be permitted, without
cxamination, to practise at thc bar there. At Berbice it
appears that there are no counsel (properly so called) the
attornies at the bar being employed and acting as sudI.
They are admitted by the court as licentiates, without
being required to show that they have been called to the
bar in England, Ireland, 01' Scotland, or taken a degree
in a foreign university. They usually, however, produce
to the court certifica tes from a professional man as to their
ability and character.


The cxaminants at Berbice aIso 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 thc party applying.-~ Rcp. ~d :series, W.
1. C. ~1, 114, 115.


1 ¡


..




BRITISH GUIAN A. 257


Court o/ Admiralty.
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 navígation and trade. The power of trying prize
eauses 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 court8) performing the du-
ties in person, while the Berbice judge executes tbe office
by deputy .


. These judges eojoy no salary, but are paid by fees,
which io Demerara are estimated at an annual average
amount of .t60 sterling. On the commissioners inquiring
what was the average at Berbice, the deputy-judge surro-
gate informed them that they could not be ascertained, as
tbere had been no suits there for the last tlu'ee or four
years.


The officers of these Vice-Admiralty courts, respec-
tively, al'e a King's advocate, a registrar, and a marshaI.
On inquiry at Demerara, by whom these officers 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.
2d sel'ies~ W. l. C. 24.


Criminal Court.


The first fiscal is the public prosecutor. undel' the
Dutch law, at Berbice; he receives 30,000.guilders per
annum in líeu of ~osts cnargeable by him against the
colony fol' criminal prosecutions. At Demerara, if the
criminal be condemned, and he has the means to satisfy
the costs, the fiscal says he receíves the fee.s from him, but
not otherwise. The Governor, it appears, has the power
of politica custodia, with a view to pl'osecution 01' political
banishment.


The prisoner's couosel, it appeal's, is fUl'Dished with co-
s




-9258 BRITISH GUIANA.
pies of aH the documents to be used at the trial, and a
sight of the originals.-f¿ Rep. f¿d series, W. l. C. 26.


Counsel are assigned to those prisoners, free 01' slaves,
who,· being too pOOl' 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 of ftve, must
:concur before a criminal sentence can be passed.-2 Rep.
2d series, W. l. C.28.


By virtue of instructions sent out by the King of Eng-
land, in 18f¿1, to the Governors ofboth colonies, no punish-
ment can now be inflicted there which cannot be infficted
·under the English law.-2 Rep. 2d series, W. l. C. 29.


The sentence of the court in an capital cases, at Deme-
rara, is communicated to th8 Governor before being
carried into execution. In cases of severe corporal
punishment this was not considered necessary, unless re-
quired by the Governor; bu~ since the aboye mentioned
order, prohibiting punishments not aHowed 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 ofthe King, is lodged
the powel' of repl'ieve; he has also, by his instructions, the
power of pardoning in aH cases except for treason 01' mur-
der.-2 Rep. f¿d series, W. I. C. 30.


Orpkan Ckamber.


The duties of this department, as stated by the exami-
nants at Demerara~ consist in ta~ing possession of the
property .of persons dying intestate and other unrepre-
sentedpr<>perty,and admínistering thé saméfor the·benefit
of· the creditors and heirs. At Bel'bice . the power is
claimed of having the superintendence ofminor orphans,
and over such persons as have become 01' are considered by
the honourable council of government incapable of ma-
naging theil' own concerns, as also ovar all estates which
devolve to it ah intestato.


The duties of the Orphan Chamber lit Berbice are
executed by five members with a greffier (01' secretary),


.. and atDemerara by a president, two members amI a




BRITISH GUIANA. ~59
greffier. The orphan board at Demerara is stated by
,the examinants to be under the superintendence of the
court of justice, by which its members are elected for the
term of two years. At Berbice the members are chosen
by, and are undel' the control of the Governor and Conn-
cil; they serve for a period of four years.


When estates faIl nnder the administration of this board
at Demerara, the practice is stated to be to insert in the
Gazettes of this colony, and of London and Amsterdam,
a notice toan parties interested, to file and substantiate
their claims. Such appears to have be en formerly the
course at Berbice; but the greffier of the board informed
the commissioners, that a1though such notice is always in-
serted in the English and colonial Gazettes, its publica-
tion in the Dutch Gazettes had fallen into disuse.-2 Rep.
2d series, W. l. C. 31.


Wills.


lt appears that the aneient Iaw of distribution aridde-
seent ab inteslatM, as it prevaileü in North Holland, is in
force in these eolonies, and that there is no distinetion in
this respeet between personal and real property. Neither
does it appear from these answers, that any complaint is
made of the rules of deseent 01' the power of disposing of
property by will in the colonies. In fact, it will be ob-
served, that the power given the parent of disposing of
two-thirds of his property by will, when he has not more
than four children, 01' of half, if they exceed that number,
is mueh better adapted to the present state of soeiety than
the restriction by the SpanishJaw at Trinidad of the pa-
rent to one fifth.


The mode of proving private wills. (i. e. wills not drawn
or attested by a notary,) in these colonies is very simple,
as they are merely exhibited to the Colonial Secretary for
registration, and deposited with him, when, on seeing that
the will has the proper number of witnesses affixed to it,
he registers it, and gives off a grosse 01' notarial eopy,
which copy is received in the eourt as evidence. No fur-
ther proceedings take place until a question really arises
upon the validity of the will so registel'ed, when it is de-
termined before thc court upon a regular pleading.


The solemnities requisite to the validity of a will in
these colonies, are, that it should be signed in the pre-


s 2




260 BRITISH GUIANA.
sence of seven witnesses, males, 01' 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 01' legal mortgages, that is, mortgages without
deed, and consequentIy unregistered. The ancient prac-
tice of securing debts due to 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 regu1ated this proceeding by
a placaat, authorizing the judge of the bankrupt's domi-
cile to settle and rank the preferences and priorities of tlle
c1aims of the several creditors, incIuding those of tlle state,
by the regular judgment of prre and concurren ce, ordi-
nario modo, retaining the privilege of the sovereign to a
preference when pl'operly established.-2 Rep. 2d series,
W. J. C. 35.


Prce et Concurrentim.
This is a process by the Dutch law to rank tlle


c1aims and priorities of creditors on the real 01' personal
estate of their debtors, when taken in execution 01' dis-
tributed under the control of the court. Great complaints
have always been made in Europe by foreign creditors and
mOl'tgagees, of the delays cxperienced in the judgments of
the prre and concurrence. The causes of their complaints
may easily be remedied.-9 Rep. 2d series, W. I. C. 36.


Bankruptcy.
It appears that there are no banbupt laws in force


in these colonies similar to those in England, nor any
law by which thedebtol' can obtain a complete dis-
charge. He is therefore obliged, in cases of insolvency,
to have reCOUl'se to the cessio bonorum, which is a writ
issuing from the sovereign 01' those to whom he has dele-
gated that power, and is granted ex debito justitice, on the
petition of the suhject. The writ of cessio bonorum has
neal'ly the same effect as thc Insolvent Act in England,
with the cxception, however, that it is regu1atcd by com-
Illon 1aw, and not 1ikc tilc latter by statute, aml is on1y


,


~




BRITISH GtrIANA.


conditional in the fil'st instance, being gl'anted with com-
mittimus to the judge of the debtor's domicile for final
confirmation 01' rejection after hearing of the cl'editors.


At Berbice, which deserves serious consideration, it
appears that a certificate duly obtained by the bankrupt
in England would not protect him in these colonies against
the claim of a colonial creditor who had not proved his
debt un del' the English commission, but that the bank-
rupt would still be liable, although it is stated that the
comt at Berbice would give effect to the assignment.-~
Rep. ~d series, W. l. C. 37.


It appeal's that a colonial creditor, notwithstanding a
pl'evious and existing commission of bankruptcy in Eng-
land, would still be at liberty, on obtaining a judgment
against the bankrupt at Berbice, to attach and levy upon
his property there, provided the commission and assign-
ment thereunder had not been placed on record in the
colony at the time.-B Rep. ~d series, W. J. C. 38.


On this subject see also ante,,96, 97, and the report of
Odwin v. Forbes, d~cided in Demerara, and published in
MI'. Henry's Tract on Foreign Law, London, 1823.


Costs.
The present moJe of taxing costs at Demerara was, it


appeared, by the president's secretary, of which no com-
plaints were made by the inhabitants to the commissioners
while in the colony. At Berbice costs were taxed before
the president after intimation to the opposite party, who
had a power of appealing to the comt.-2 Rep. ~d serie:>,
W. l. C. 38.


Appeals.
It appears that an appeal to the King in Councillies


from the courts in these colonies, where the matter in liti-'
gation exceeds o€5GO sterling (which sum is calculated at
Berbice at twelve guilders to the pound sterling), and
that the costs of the suit are not added to the principal.


By the colonial regulations the appeal should be noted
in the office of the secretary of tIJe court within fourteen
days from the date of the sentcnce, otherwise execution
may issue; after which noting of appeal it is the practice
to petition the Governor, as Hís Majesty's representative,
for leave to appea], and an order to take out authentic
copies of the papers in the cause from the secrctary's




BRITISH GUIANA.


office. The amount of the security generalIy required at
Berbice for the due prosecution of the appeal, and to an-
swer the condemnation of the Court of Appeal, is i'500
sterling. No appeal is allowed from any plea 01' exception
termed in the Dutch lawinnominate, that is not peremp-
tory, nor from any interlocutory 01' provisional sentence, if
reparable on the definitive sentence, or on the merits.


At Demerara, it appears that personal security in
appeal, if good and sufficient, is accepted.-!2 Rep. !ed
series, W. l. C. 39, 40.


Arbitrations.
The submission to arbitration is by a mode of proceed-


ing in the Dutch law, termed an act of willing condemna-
lían, rendered equally binding on the }larties with a rule
of court in England under the statute of William & Mary ;
for under this mode of proceeding the parties appear
before· two commissio1íers of the court, and consent to
be condemned by the sentence of that court to abide by
the award. And on the arbitrators having submitted the
award for the confirmation of the court, this sentence of
confirmation enables the party to proceed in execution.-
2 Rep. 2d series, W. l. C. 40.


-


The following is the authority by which the three colo-
nies of Demerara, Essequibo, and Berbice were united
under one government:-


Copy 01 the Commíssion rif Major-General Sir Benjamín D' Urban,
K. C. B., as Governor and Commander-in-Chilif 01 British
Guiana; dated 4th March, 1831.


WILLIAM R.
W iLLlAM THE :FOUR'fH, by the Grace of God, of the United Kingdom of
Great Britain and Ireland Ring, Defender of the Faith, To our trust y
and well-beloved Sir Benjamin D'Urban, Knight, Commander of tbe
Most Honourable Military Order of the Bath, Major-General of our
Forces; Whereas, for divers good causes to us appearing, we have
deemed it right that our settlements and factories on the northern coast
of the continenl of South America, comprising the united colony of De-
merara and Essequibo and the colony of Berbicc, should henceforth be
.united together, and should constitute one colony, in the manner herein-
áfter provided; Now know you, that we, reposing especial trust and




BRITISH GUIANA. 'Q63
confidence in the prudence, comage, and 10yaJty of you, the said Sir


Benjamin D'Urban,of om special grace, certain knowledge, and mere
motion, have thought fit to constitut~ and appoint, and by these presents
do constitute and appoint you, the said Sir Benjamin D'Urbau, to be,
during our will and pleasure, our Governor and Commander-in-Chief
in and over all our settlements on the northern coast of the continent oí
South America, comprising an such territories and jurisdictions as have·
hitherto been comprised in the said united colony of Demerara and
Essequibo and the said colony of Berbice respectively, with their
respective dependencies, and all forts and garrisons erected and esta.;
blished, or which shall be erected and established withill the same, and
which settlements shall henceforth collectively constitute and 'be one
colon)', and shall be called "The Colony of British Guiana :" And we
do herehy. require and command you, our said Governor, to do and
execute all things in due manner as shall belong to your said command,
and the trust we have reposed in you, according to the several powers
alld directions granted to or appointed you by this present commissiOll'
and the instructions herewith given to yon, or according to such further
powers, instructions, and authorities as 'shall at any future time be
granted to or appointed for you under OUl' signet and sign manual, or
by our order in out Privy Council,or by us through one of our principal
Secretaries of State: And we do further grant, direct, and appoint
that the form of civil govemment heretofore by law established in the
said united colony of Demerara and Essequibo, shall be and the same
is hereby established in and througbout tite said co100y of British
Guiana, and that aH such bodies politic and corporate as have hereto-
fore lawfully existed in the said united colony of Demerara and Esse~
quibo, shall in like manner exist in and throughout the saia colony of
British Guiana, an'll ,shall in and throughout the said colony have,
exercise, and enjoy all such powers and authorities as have heretofore
been lawfully had, exercised, and enjoyed by them respectively in the
unÍted colony of Demerara and Essequibo: Provided nevertheless, and
we do hereby declare our will to be, that the number of the members of
certain of the said bodies poli tic and corporate heretofore existing in the
said united colony of Demerara and Essequibo, shall in tbe said colony
of British Guiana be augmented and enlarged in such manner as by
your said instructions is directed in that bebalf: Provided also, and
we do furtber declare our pleasure to be, tbat notbing herein contained
ahall extend, revoke, or abrogate any law or lawful usage, or custom now
in force in the said united colony of Demerara and Essequibo, or in the
said colony of Berbice respectively, save only in so far as relates to tbe
separate constitution abd form of civil government heretofore established
and in use in the said colony of Berbice, which said constitution or
form of civil government we do hereby abrogate and dissolve, and do




'2'64 BR1TISH aUJAN A.
declare that the same hath become and shall henceforth be extinct and
merged in the government of the saidcolony of British Guiana: Pro_
vided also, and we do further declare our wiU and ploeasure too be, that
nothing herein contained extends or shall be construed to extend in
anywise to alter or interfere with the provisions of a certain Act of Par-
liament passed in the fifth year of the reign of our late Royal Brother
and predecessor King George the Fourth, intituled, "An Act to conso-
lidate and amend the Laws for the Abolition of the Slave Trade," or to
render legal any transfer or removal of any slave which would have been
iIlegal if these presents had not been made, it being our pleasure that
for the purposes and within the rneaning of the said Act of Parliament,
the said united colony of Demerara and Essequibo, and the said colony
of Berbice, shall still continue and be distinct and separate colonies:
And we do hereby give and grant to you, the said Sir Benjamín D'U rban,
full power and authoríty, with the advíce and consent of the Court of
Policy of our said colony of British Guiana, to make, enact, ordain, and
establish laws for the order, peace, and good government of our saíd
colony, subject, nevertheless, to an such rules and regulations as by your
said general instructions we have thought fit to prescribe in that
behalf: Provided, nevertheless, and we do hereby reserve to ourselves,
our heirs and successors, our and their undoubted right and authority
to disallow any such laws, and to make and establish from time to time,
with the advice and consent of Parliament, or with th,e advice of our or
their Privy Council, al! such laws as may to us or them appear neces-
sary for the order, peace, and good government of the said coJ.¡¡ny, as
fully as if these presents had not been made: And we do hereby grant
to you, the said Sir Benjamin D'Urban, the custody of the public se al
appointed for the sealing of al! things whatsoever that shal! pass the se al
of our said colony: And we do hereby give and ,grant to you, the said
Sir Benjamin D'Urban, fuIl power and authority, inour name and in
our behalf, but subject nevertheless to such provisions as are in that
!espect contained in your said general instructions, to make and execute
in our llame and under the public seal of oUr said colony, grants of
waste lands to us belonging within the said colony to private persons
for their own use and benefit, or to any persons, bodies politíc or cor-
porate, in trust, for the public uses of our subjects there resident, or any
of them: And we do hereby give and grant unto you full power and
authority, as you shall see occasion, in our name and in our behalf, to
remit any fines, penalties, or forfeitures which may accrue or become
payable to us, so as the same do not exceed the sum of 1:50 sterling in
any one case, and to res pite and suspend the payrnent of any such fine,
penalty, or forfeiture exceeding the saíd sum of 1:50, untíl ou\' pleasure
therein shall be known and signified to you: And we do hereby give
aud grant. unto you fuIl power and a\lthority, as you shall see occasion¡




BRITISH: GUIAN A. 265
in our ,name and in our behalf, to grailt to any ofrender convicteu of any
crimc in any court, or before any judge, justice, or magistrate within our
said colony, a free and unconditional pardon, or a pardon subjeet lo
such conditions as by any law in force in the said colony may be there-
unto annexed, or any res pite of the execution of the sentence of any such
ofrender, for such period as to you may seem fit: Provided always, that
in cases of treason or murder, no pardon, either absolute or conditional,
be granted until the case shall have been first reported to us by you for
our information, and you shall have received the signification of our
pleasure therein: And we do hereby give and grant unto you, the said
Sir Benjamin D'Urban, _as such Governor as aforesaid, full power and
authority, upon sufficient cause to you appearing, to suspend from the
exercise of his office within our said colony any person exercising any
such office under or by virtue of any commission or warrant granted or
to be granted by us, or in our name or under our authority, which sus-
pension shall continue and have efrect only until our pleasure therein
sball be signified to you: And we do bereby strictly require and enjoin
you, in proceeding to any such suspension, to observe the directions in
that behalf given to you in and by our said general instructions aecom-
panying thia your commission: And in case ofyour death or absence from
lhe said colony, our will and pleasure is, that this our commission, and
the several powers hereby vested in you, shall be exercised by such
person as may by us be appointed to be our Lieutenant-Governor of our
said colony, or by such person as may be appointed by us under our
sighet or sign manual, to administer the said government; but if at the
time of such your death 01' absence, there shall be no person within our
said colony commissioned to' be su eh Lieutenant-Governor, or adminis-
trator of the government as aforesaid, then OIU pleasnre is, and we do
hereby direct that the senior officer for the time being in the eommand
of our land forces within our said colony, shaU take upon himself the
administration of the government thereof, and shaU execute this our
commission, and the several powers herein, and in the aforesaid instruc-
tions contained; and if any such offieer shall, during such his adminis-
tratíon of the government, be suspended in the command of our said
forees by any senior offieer, then our pleasure is, that sueh senior officer
shall as sume the administration of the said government, and the exeeu-
lÍon of this our commission, and of the several powers aforesaid, and so
from time to time as often as any sueh case shall arise: And we do
bereby rcquire and command aU offieers, civil and military, and aU other
our subjects, and persons inhabiting our said eolony of British Guiana,
to be obedient, aiding and assisting unto you, or to the offieer adminis-
tcring the said government for the time being, in the execution of this our
commission, and of the powers and anthorities herein contained: And
we do further declare our pleasure to be, that the changes established in




266 BRITISH GUIANA.
the constitution and form of civil government in the said colonies of
Demerara and Essequibo, and of Berbice respectively, by this our como
mission, shall not take effect until this our commission 8ha11 actuaUy
have been by you received in our said colonies or one of them: And we
do hereby declare, ordain, and appoint that you, the said Sir Benjamin
D'Urban, shall and may bold, execute, and enjoy the office and place of
our Governor and Commander-in-Chief, in and over oúr colony of Bri-
tish Guiana, together with al! and singular the· powers and authorities
hereby granted unto you foe and during our will and pleasure. In
witness, &c. &c. Given at oue Court at Brighton, the 4th day of
March, 1831, in the first year of our reign.


By His Majesty's Command.
(Countersigned) GODERlCH.


Shortly after the colonies of Demerara, Essequibo, and Berbice had
been united under one government the following Orders in Council were
issued, abolishiog the aneient courts, and appointing perfectly Ilew
judicial establishments, not ooly for the colony of British Guiana, but
for those of Sto Lucia and Trinidad. At the end of these orders will be
found a suminary of the alterations they have effected in the courts fOl
the administration of justice in British Guiana, and this will be accom-
panied by the l'egulations established by the Governor and Court of
Policy as to the appointment of Assessors and the jurisdiction of infe-
rior Courts.




( ~67 '> )


aUIANA, TRINIDAD, AND STo LUCIA.


-


Copies oj the Orders in Council oj the 23d April and 20th June,
1831,jor the Administration oj Justiee in British Guiana, Tri·
nidad, and Sto Lucia.


At the Court of St. James's, the 23d day of April, 1831 ;
Present, The King's Most Excellent MAJESTY in Council.


1. WHEREAS His Majesty's Court of Criminal aud Civil Justice in
Demerara and Essequibo, and IIis Majesty's Courts of Civil Justice and
of Criminal Justice respectively in Berbice, and I1is Majesty's Courts
of Criminal Trial, aud of First Instauce of Civil Jurisdictiou respectively
in Trinidad, and His l\Iajesty's Royal Court in the island of St. Lucia,
are respectively holden by Judges the majority of whom in each of such
courts are persons unlearned iu tbe law: And whereas it is fit that the
said courts respectively should heuceforth be holden by persons of com-
petent legal education; it is therefore ordered by the King's most
Excellent l\1ajesty, by and with the advice of his Privy Council, that
henceforth the Court oí Criminal and Civil Justice of Demerara aud
Essequibo, and the Court of Civil Justice and the Court of Criminal
Justice of Berbice, and the Court of Criminal Trial, and the Court oC
First Instance of Civil Jurisdiction in the island of Trinidad, aud the
Royal Court of Sto Lucia, shall be respectively holden by and before
three judges aud no more; that is to say, each of the said courts shall be'
holden by aud before'the President for the time being of thé Court oC
Criminal aod Civil Justice of Demerara aud 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 aod before the persons
who, during the vacancy of any such offices, or during the absence or
incapacity of any of the said judges, may have received a provisional or
temporary appointment to aet as and in the place and atead oC aoy such
judges or j udge.


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 oí any slave, or shall have any share or interest in, or any mort.




68 ORDERS IN COUNCIL.
gage or security upon any sI ave, or sball be proprietor of, or have any
sbare or interest or mortgage or security upon, any land cultivated by
tbe labour of slaves, or shall be or act as the manager, overseer, agent,
or attorney or, for, or upon any plantation orestate cultivated wholly or
in part by the labour of slaves.


3. And it is further ordered, that for the purpose of holding the
respective courts aforesaid, the said three judges shall from time to
time repair to the said respective colonies of Demerara, Berbice, Trini·
dad, and Sto Lucia.


4. And it is furtber ordered, that two sessions at the least shall b~
holden in each year in each of tbe said C<'lurts, and tbat the times of
holding such sessions in such respective colonies, and the dnration
thereof in each, shaIl be determined by proclamations to be from time to
time for tbat purpose issued in the said respective colonies by tbe
respective Governors thereof.


5. And it is further ordered, tbat the Govemors of the said respective
colonies shall, and they are hereby anthorized to arrange with each
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 of the said respective 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 ofthe Go-
vernor of British Guiana shall prevail and be observed until Bis
Majesty's pleasure therein shaIl have been signified through one of his
principal Secretaries of Sta te.


6. Aild it is further ordered, that in each of the said courts the Pre·
sident for the time being of tbe Court of Criminal and Civil Justice of
Dememra and Essequibo shall preside and take precedence over such
other two judges as aforesaid; and the said Chief Judge of Trinidad
shaIl in like manner, in each of the said conrts, take precedence over
the First President of Sto Lucia.


7. And it is further ordered, that in each of the said courts the said
three judges shall in all civil cases have, possess, exercise, and enjoy
sllch and the same jurisdiction, powers, and authority in every respect
as the present judges of the said COUl'ts now have or lawfully possessj
exercise, or enjoy, and that tbe decision of the majority of such three
judges shall in 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.


3. 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 jlldges, in the manner thereinafter
provided for, which assessors 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 shaU 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 suclt
judgment or sentence.


9. And it is further ordered, that in each of the said courts the said
three judges and assessors shall in aH criminal cases have, possess,
exercise, and enjoy such and the same jurisdiction, powers, and authority
in every respeet as the present judges of the said courts now have or
lawfully possess, exercise, or enjoy, and that the decision of the ma-
jority oC the total number of such judges and assessors shall in aH
crimill.al cases at any time depending in any of the said courts, be taken
and adjudged to be, and shall be recorded as, the judgment oC the whole
court.


10. And it is further ordered, that the Governor (lf each of the said
colonies shaJl 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 q ualifications of such
assessors, the mode of convening them, the penalties to be infticted on
persons refusing to act as such assessors when thereunto lawfully re-
quired, and the mode of chalIenging such assessors, and what shall be
lawful ground 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 proclamatioIl shall forth-
with be transmitted by 3uch Governor for His Majesty's approbation,
and shall in tbe meantime, and unless disallowed by His Majesty, and
until suclt 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 arder.


11. And it is further ordered, that none ofthe judges nor any Vice-
President .0C either oí the said courts respectively, shall be liable 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 arisifg in or upon any civil or
criminal suit, action, or proceeding depending in the said court, as may
be brought befo re him, and also to inquire into and report to the said
judges in any such sessions as aforesaid upon any questions which may




270 ORDERS IN COUNCIL.
by such judges at such their sessions have been specially referred to any
such Vice·President; and in the exercise of such jurisdiction, such
Vice-President shaH 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, re verse, correct, or
confirm, as occasion may require, any judgment, sentence, rule, or order
which may be made, given, or pronounced by any suth Vice-President
as aforesaid, in the exercise of the jurisdiction hereby vested in him, and
that in the exercise of such jurisdiction, sllch Vice-President shall act
alone and without any colleague or assessor, and shalI have aU such and
the same powers and authority in that behalf as now are 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 aU actions, suits, and other matters, both civil and
criminal, to be therein 'brought, and concerning the duties and juris.
diction of the said respecti.ve Vice-Presidents, and concerning the
proceedillgs of the executi ve and ministerial offices of the said courts
respeetively, and concerning the process of the said courts, and the mode
of executing tbe same, and concerning the admission of advocates, bar-
risters, attornies, solicitors, notaries, and proctors in the said courts
respectively, and concerning aU other matters and things which relate to
the conduet 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 tbis present
ord~r, and that the same shall be so framed as to promote, as far as may
be, economy and expe4ition in the dispatch of the businessof tJle said
courts respectivel:!" and that the same be drawn up in plain, succinct,
and compendious terms, avoiding aU unnecessary repetitions' and
obscurity, and be promulgated in tbe 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 al! such rules, orders, and regulations shaU
forthwith be transmitted to Bis Majesty, under the seal of the court, by
the Governor for the time being of such colony, for his approbation or
disaIlowance.


15. And whereas it may be expedient to establish within the said
colonies courts having jurisdiction in civil cases of small amount and in




ORDERS IN COUNCIL.


cases of breaches of the peace, assaults, and other petty offences; it is
therefore further ordered, that it shall be lawful for the Governor of each
oC 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 Conncil
of Government in the said colonies of Trinidad and Sto Lucia, by any
law8 and ordinances to be from time to time made for that purpose, to
erect, constitute, and establish courts having jurisdiction in civil and
criminal cases within the said respective colonies, provided that the
jurisdietion of sucb Civil Courts shall not be extended to any case
wherein the sum or matter in dispute shall exceed the amount or value
of .t:20 sterling money, or wherein tite title to any lands or tenements,
01 the title of any person to his or her freedom, 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 be extended to any case wherein any person may be aecused
of any crime punishable by death, transportation, or banishment; and
that it shall not be lawful for any sueh Criminal Court to infiict any
greater or other punishment than imprisonment, with or without hard
labour, for a term not exceeding three months, or fine not exceeding
1:20, or whipping not exceeding thirty-nine strip es, or any two or more
such punishments within the limits aforesaid.


16. And it is further ordered, that the Judges of the said Supreme
Courts of the said colonies respectively shall be and they are hereby
authonzed to make, ordain, and establish aU necessary rules, orders, or
regulations respecting the manner and form of proeeeding 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 a1l
such other rules, orders, and regulations as may be necessary for giving
full and perfect elfeet to the jurisdiction of such courts respectively, and
such rules, orders, and regulatiollS from time to time to revoke) alter, and
renew as oceasion may require.


17. And it i8 hereby further ordered, that it shall and may be lawful
fOl any person or persons, being a party or parties to any civil suit or
action depending in any of thesaid Supreme Courts .0C any oC the said
colonies, to appeal to His Majesty, his heirs andsuccessors, in his or
their Privy Couneil, against any final judgment, deeree, or sentence of
any of .the said courts,or against any rule or order made in any sueh
civil suit or aelion 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 sentenee
shall be given or pronounced for or in respeet of any sum or matter at
issue above the amount or value of ;f500 sterling; or in case such
judgment, decree, order, or sentence shall involve, directly or indirectly,
any c1aim or demaDd to Ol question respecting property or any civil




ORDERS IN COUNCIL.


right amounting to 01' of the value of .f500 sterling; 01' in case such
juclgment, decree, order, 01' sentellee shall determine 01' atreet the right
of ally person to his 01' her freedom, the person 01' persons feeling
aggrieved by any sueh judgment, decree, order, 01' sentenee may, within
tourteen days next after the same shall have been pronounced, made, or
given, apply to such court by petition fol' leave to appeal therefrom to
His Majesty, his heirs, and suecessors, in his 01' their Privy Council;
and in case sueh leave to appeal shall be prayed by the party 01' parties
who is 01' 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, deeree, order, or sentenee appealed from shall be
earried into execution, or that the execution thereof shaU 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
sueh Supreme Court shall direet sueh judgment, decree, arder, 01' sen-
tence to be carried into execution, the person 01' persons in whose favour
the same shall be given, shall, before the exeeution thereof, enter into
good and sufficient security, to be approved by the said Supreme Cour!.
for the due performance of su eh judgment 01' arder as His Majesty, his
heirs and suceessors, shall think fit to make thereupon; 01' in case the
said Supreme Court shall direct the exeeution of any judgment, deeree,
order, 01' sentenee to be suspended pending the said appeal, the person
al' persons against whom the same shall have been given, shaU in like
manner, upon any order for the suspension of any sueh exeeution being
made, enter into good and suffieient 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 think fit to make thereupon;
and in all cases security shall also be given by the party 01' parties
appellant, to the satisfaetion of such court, fol' the proseeution of the
appeal and for the payment of all such eosts as may be awarded by His
Majesty, bis heirs and successors, to tbe party al' parties respondent;
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 Supreme Court shall allow the appeal, and the party
01' partíes appellant shall be at liberty to prefer and prosecute bis, her,
or their appeal to His Majesty, his heirs, and suceessors, in His al'
their Privy Council, in such manner and under sueh rules as are
observed in appeals made to His Majesty in Council from his planta-
tions 01' colonies.


18. Provided always, and it is bereby declared and ordered, that
nothing herein contained doth 01' shall extend, 01' be construed to ex-
tend, to take away or abridgc the undoubted right or authority of His
Majesty, bis heirs and suecessors, to admit and receive any appeal from
any judgment, deeree, sentence, al' order oc. any of the said Supreme




ORDERS IN COUNCIL. 273
Comts, on lhe humble petition of any person 01' persons aggrieved
thereby, in any case in which and subject to any conditions or l'estric-
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 fmther ordered, that in aH cases of appeal allowed by
any of the said Supreme Courts, or by Bis Majesty, his heirs and suc-
cessors, such court shall, on the a pplication and at the costs of the
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 aH proceedings, evidence, judgments, decrees, and orders, had or
made in such causes so appealed, as far as the same have relation to
the matter of appeal, such copies to be certified under the sea! of the
said court.


20. And it is further ordered, that the said Supreme Courts respee-
tively shall, in al! cases of appeal to IIis Majesty, his heirs and sueces.
sors, conform to, execute, and carry into immediate effect such judgments
and orders as His Majesty, his heirs and successors, shall make there-
upon, in such manner as any original judgment or decree of the said
Supreme Court can or may be executed.


21. And whereas there are in the said courts, or sorne of them, divers
unnecessary officers, being or claiming to be entitled to fees of large
amount for services ~y them rendered to suitors and others concemed
in the proceedings of the said courts, to the great charge of His Ma-
jesty's subjects, and to the obstruction of the due administration 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 shall henceforward,
but subject to the rules of court to be made as hereinbefore mentionedJ
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 J ustice and of the Court of Criminal J ustice of Berbice :
and it is hereby further ordered, that the office of Father-Heneral of
Minors, and the office of Defender of the .Absent, and the office of
Depositario-General, and the office of Taxador, and the office oC 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 that the duties of the offices of the ~aid 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-Presidimt of the Court of First Instance of Civil
Jurisdiction ofTrinidad: and it is further ordered, that the office of
Curateur aux Successions Vacantes, and Regisseur des Biens des
Absens, as at present existing in Sto Lucia, shall be and the same is


T




~74 BRITISH GUIANA.
hereby abolíshed; and that the dutíes heretofore performed by that
officer shall henceforward, but subject to the rules of court to be made as
hcreinbefore mentíoned, be performed by the Vice-President of the
Royal Court of the- Island of Sto Lucia.


'22. And whereas various jurisdictions have heretofore been exercisell
by certaín courts in the island of Trinidad, which by reason of the
changes introduced into the administration of justíce therein, it is no
longer necessary to retain; it is therefore hereby ordered, that the se-
veral courts or tribunals following, that ís to say, the Court of Criminal
Inquiry, the Comt of Audiengia, the Complaint Comt, the Court of
the Alcaldes in Ordinary, and the Court of the Alcaldes de Berrio, and
all offices 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 aH 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 anywíse repugnant to or at variance with
this present order, shall be and the same are hereby revoked, abrogated,
rescinded, and annulled.


24. And it is further ordered, that for the purpose and within the
meaniog of the present order, any person lawfully administering for the
time being the government of the said colonies shall be deemed and
ta,ken to be the Governor thereof.


(Signed) C. C. GREVILLE.


-


At the Court of Sto James's, the 20th day of June, 1831;
Present, THE KING'S 1\Iost ExcelJent MAJESTY in Council.


1. WHEREAS, on the 23d day of April, 1831, an order was made by
Bis Majesty, with the advice of his Privy Council, for improving the


, administration of justice in His Majesty's colonies of Br~tish Guiana,
'Trinidad, and Sto Lucia; and for that purpose it was thereby ordered,
that the Chief Judges of the said three colonies should froro time to time
repair to the said colonies, for the purpose of holding in succession
therein the Supreme ~ourts of sueh colonies respectively: And whereas
unforeseen difficulties may arise to delay the execution of the said
order, and it may be necessary to make provision for the admioistration
of justice thereín; in the mean time it i8 hereby ordel'ed by the King's
Most Excellent Majesty, by and wíth the advice of his Privy Couocil,
that it shall and may be lawful fol' the Governors for tbe time being of
the said colooies of British Guiana, Trinidad, and Sto Lucia, or fOl any




ORDERS IN COUNCIL. ~75
two of them, by a proclamation to be by them issued in His Majesty's
name in the said respective colonies, to suspend the execution of the
said order of the 23d day of April, 1831, and the same shall thereupon
be and remain suspended, until His Majesty's further pleasure shall be
signified to the said respective G.overnors.


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 in 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 tIle said court sha]] be called and bear the
sty le and title 01" Chief J ustice 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 J urisdiction in the
island of Trinidad, sball benceforth be holden by and before tbree judges
and no more; and that the first or presiding jurlge of the said court sha11
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
respecti ve styles and ti tles of First Puisne J udge and Second Puisne
J udge of Trinidad.


4. And it is furtber ordered, that the Royal Court of Sto Lucia shall
henceforth be holden byaud 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 ofCbief Justice of Sto Lucia, andthat the second and third
of suchjudges shall be called and bear the respective styles and titles of
First Puisne Judge and Second Puisne Judge of Sto Lucia.


5. And it is furtber ordcred, that wbenever and so often as tbe oflice
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, tbe 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 sorne proper person, by
a commission under the public seal of such colony, which commission
shall be made to continuc in force only until His Majesty's pleasure
sha11 be known.


6. And it is bereby further ordered, that none of the said judges of
any of the colonies aforesaid shall be tbe owner of any slave, or shall
have any share or interest in, or any mortgage or security upon any


T2




276 BRITISH liUIANA.
slave, or shaJl be propl'ietor of, or have any share 01' interest in, 01' mort-
gage 01' security upon any land cultivated by the ¡abour of slaves, 01'
shall be ol' act as the manager, overseer, agent, 01' attorney of, for, 01'
upon any plantation or estate cllltivated whoJly 01' in part by the labour
of slaves.


7. Pr¿vided nevertheless, that nothing herein contained shall prevent
any such judge from acquiring any such property 01' interest as afore-
said under any legal process, for the l'ecovery of any debt or demand, 01'
by testamental'y or other succession, inheritancc, donation, 01' other in-
voluntary title, but all such property 01' interest as aforesaid which any
such judge may so acquire, shall, within one calendar month next after
the acquisition thereof, he by him CQJPmunicated to the Governor of the
colony, and shall be alicnatcd and disposed of within six calendar
months, unless llis Majesty shall in any case be pleased to grant to any
such judge a 10nger period for effecting any such alienation or disposal
thereof.


8. And it is further ordered, that in each of the said courts respec-
tive1y, the said three judges of the said respective colonies shalJ in all
civil cases have, possess, exercise, ana enjoy such and the same juris-
diction, powers, and authority, in every respect, as the judges ofthe said
courts bave heretofore lawflllIy possessed, exercised, 01' enjoyed; and
that the decision of the majority of such three judges shaJl 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
of such court.


9. And it is further ordered, that upon the trial of any person or
persons in any of the said eourts respectively for any crime 01' offence,
three assessors shall be associated to the said three judges, in the man.
ller hereinafter provided for, which assessors shall be el1titled to de.
liberate and vote with such judges upon the final judgment to be
pronounced in every such criminal case, 01' no person shall be convicted
of any crime or offence, or adjudged to suffer any punishment by any
judgment or simtence of any of the said courts, unless a majority of the
total number of such judges and assessors shall in open court vote il\
favour of such judgment 01' sentence.


10. And it is nll'lher ordered, that in each of the said courts the said
three judges and assessors shall in an criminal cases have, possess,
exercise, and enjoy such and the same jurisdiction, powers, and
authority in every respect as the judges of the said courts respectivel)'
have heretofore lawfully possessed, l!'xercised, and enjoyed, and tbat the
decision of the majority of the total number of such judges and assessol'S
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 lhe judg.
ment of the whole court.




ORDERS IN COUNCIL. Q77
11. And it is furthel' ordered, that it shall be lawful for the judges of


any of lhe said courts respectively to reserve the consideration of any
questioll of law arising upon any such criminal trial as aforesaid, and
to make order for the suspension 01' arrest of the judgment or sentence
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 such assessors therein.


12. And it is hereby furtRer ordered, that the assessors of the said
COUl'ts in Demerara and Berbice shall be chosen and appointed in such
and fhe same manner as the members of the Court of Civil and Criminal
J ustice ofDemerara have heretofore becn chosen and appointed; and that
the assessors of the said court for the trial oC criminal pro~ecutions in Tri-
nidad shall be chosen and appointed from and out of the members oC the
Cabildo of the town of Port of Spain in lhe said island; and that the
assessors of the said Royal Court of Sto Lucia shall be chosen and ap-
pointed in such and the same manner as the membcrs of that court,
other than the First President, have heretofore been chosen and ap-
pointed.


13, And it is hereby further ordered, that none ofthe judges of either
of the said courts shall be liable to challenge or recusation in or upon
any action, suit, or proceeding, civil 01' criminal, but that such assessors
shall be liable to be challenged on such and the like grounds as may be
alleged 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 shaU be decided by the judges jlresiding 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 Ihe
judges of the said COUl'ts respectively, and they are hereby autnorized
and required to make, ordain, and establish a tariff or table of {ees, to
be had, taken, allowed, and paid by the suitol's in lhe 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 01' action
depending therein, 01' which may 01' §h.all be paid or payable to any of
the officers of the said court respectiveiy, 01'_ to any advocate, oarrister,
solicitor, attorney, proctor 01' notary, 01' other pl'actitioner of the law
therein, and which tariff or table offeessha\l, by the Chief J ustice of each
ofthesaid courts respectively, be transmitted to the Governor for the time
being of the colony to which such court may belong; and any su eh
tariff or table being ratified and confirmed by any ordinance to be for
that purpose made by the Governor and Court of Policy of British
Guiana, 01' by the Governor, with tiJe advice and consent of the Council
of Government in lhe said colonies of Trinidad or St. Lucia, shall be
binding upon all persons interested therein; anl! aH pel'sons receiving




278 BRITISH GUIAN A.
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 eoults
respeetively in that behalf.


15. And it is further ordered, that it shaIl and may be lawful for the
said Governor and Court of Poliey of British Guiana, and for the Go-
vernors of Trinidad and Sto Lucia respectively, with the advicc and
consent of the respective Couneils of Government thereor, by any
ordinances to be by them for that purpose made, to prescribe the form
and manner of proceeding to be observed in the said respective courta
for the prosecution and trial therein of al! persons charged with the com·
mission of any crimes and offences cognizable within the said courts
respectively: provided nevertheless, that every such ordinance shaIl be
transmitted for lIis Majesty's approbation in the manner required by
law in reference to al1 ordinarrcs-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 shal1 seem meet, touching the distribution of the business of
the said courts between the respective judges thereor, and concerning
the forms and 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, attornies, solicitors, notaries, and
proctors i}1 the said courts rcspcctively; all which rules, orders, ::md
regulations shall be framed in such a manner as to pro mote, 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 in 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.


17. Provided always, and it is further ordered, that no su eh 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 Iris Majesty for his approbation or dis-
allowance.


18. And whereas there are established within the said colonies, 01'
sorne of them, courts having jurisdiction in civil cases of small amount,
:lnd in cases of breaches uf the pcace alld ollJe¡' petty offences, and it is




ORDERS IN COUNCII .. 279
expedient that provision be made for the beUer administration of justice
in such courts; it is therefore hereby ordered, that no court within any
of the said colonies other than the supreme courts hereinhefore men-
tioned, shall be competent to hold jurisdiction in any civil case in which
the sum nr matter in dispute shall exceed the amount or value of &20
sterling money, or in which the right of any alIeged slave to his or her
freedom, or the title- to any lands or tenements,or any fee, duty, or
office, or His Majesty's Royal Prerogative may be in question, or
whereby rights in future may be bound; and that no court within any
of the said colonies, other than the Supreme Courts aforesaid, sbaU be
competent to hold jurisdiction in any criminal case wherein any per-
son sball be accused of any crime punishable by death, transportation,
01 banishment; and that it shall not be lawful for any court in any of
the said colonies, other than the Su preme Courts aforesaid, to inftict
any greater or other punishment than imprisonment, with or without
hard labour, for a term not exceeding three months, or fine not exceed·
ing &20, or whipping not exceeding thirty-nine stripes, or any two or
more of such kind of punishments together, within the limits aforesaid.


19. And it is further ordered, that it shalI be \awful for the Governor
of British Guiana, with the advice and consent of the Court of Policy
thereof, and for the Governors of Trinidad and Sto Lucia, with the
advice and consent of the respecti.Y,r. Councils of Government thereof,
to establisb, constitute, and erect within the said respective colonies,
inferior courts having jurisdiction in civil and criminal cases within the
limits aforesaid, and for that purpose may abolish any such inferior
courts as may be now existing therein, or modify tbe constitution of
such courts as may be found expediento


20. And it is further ordered, that the judges of the said Supreme
Courts of the said colonies respectively shalI be and they are hereby
authorized to make, ordain, and establish aU 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 such courts into execu-
tion, with all such other rules, orders, ~nd reg',¡\ation~ as may be
necessary for giving full and perfect effect to the jUl'isdictlOn uf such
courts respectively, and such rules, orders, and regulatIons from hme to
time to revoke, alter, and renew as occasion may require; provided
always, that aU such rules, orders, and regulations as aforesaid 811a1l be
promulgated, and shall be transmitted to His Majesty fur bis approba-
tion or disallowance, in tbe manner hereinbefore directed and required
with respect to the rules, orders, and regulations of tIJe said Supreme
Courts.


21. And it is further ordered, that the officc: of Fathel'-General uf
Minors, ancl the office of Defender of the Absent, and the oflice of




280 BRITISH GUlANA.
Depositario-General, as at present existing in the islalld of Trinidad,
sha11 be and the same are hereby respectively abolished; and tha1 the
office of Taxador, and the oflice of Judicial Referee, Liquidator, ami
Partidor, as at present existing in the said island, shall be alld the same
are hereby· consolidated, and shall constitute one oflice.


22. And it is further ordered, that the offices of Curateurs aux Suc-
cess'¡ons Vacantes, and Regisseurdes Biens des Absens, as at presellt
existing in St. Lucia, sball be and tbe same are hereby abolished.


23. And whereas various junsdictions have beretofore been exercised
by certain courts in the island· of Trinidad, which, by reason of tbe
changes hereby introduced into tbe administration of justice there, it is
no 10nger lIecessary to retain; it is tberefore hereby ordered, tbat the
several courts or tribunals following, that is to say, the "Court of Cri-
minal Inquiry," the "Tribunal of Appeal, in a11 cases of condemnation
to deatb," the "Superior Tribunal oí Appeal oí Civil Jurisdiction," the
"Tribunal oC the Royal Andien!;ia," and al! oflices in and connected
with the said courts respectively, shal! be and the same are hereby
respectively abolished.


24. And it is further ordered, that the Court of Sénéchaussée, in the
island oí Sto Lucia; and all offices in and connected with that court,
8ha1l be and the same are hereby abolished; and that the Royal Court
oC the said ¡sland sha11 henceforth have an original jurisdiction in all
causes arising within lhe said islalld, in such and the same manller alld
to 8uch and tbe same extent as such ~inal jurisdiction was heretofore
vested in the said Court oC Sénéchaussée.


25. And it is hereby further ordered, 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 Court of Civil and Criminal Justice of De-
merara and Essequibo, or in the said Court of Civil Jnstice of llerbice,
or in the said Court of First Instance of Civil Jurisdietion of Trinidad,
or in the said Royal Court of Sto Lucia, to appeal to His Majesty, his
heirs, ana successors, in his or their Privy Conncíl, against any final
judgment, decree, or sentence, or against any rule or order made in any
such civil suít or aetion, and having the effect of a final or definitive
sentence, and wbich appeals shall be made subject to the rules and
limilations foIlowing: tbat is to say,
, First, Such judgment, decree, order, or sen ten ce sball be given o,
prooounced for or in respeet of a sum or malter at issue above tbe
amount or value of .f500 sterling, or shall involve directly or indirectly
the title to property, or to sorne civil right, amounting to or of the valne
of ,f500 sterling, or sha11 determine or affect the right of sorne alleged
sIave to his or her freedom :


Secondly, The person or persons feeling aggrieved by such judg-
meot, decree, order, or sentenee, sball, wilhin fuurtaen days next after




ORDERS IN COUNCIL. 281
tile same shall have been pronounced, made, 01' givcn. app!y to the
court by petition for leave to appea! therefrom to His Majesty, his heirs,
and suceessors, in his or their Privy Counci! :


Thirdly, 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 judgment, decree, 01' sentence
appealed from shall be carried into execution if the party or parties
respondent shall give security for the immediate perfcrmance of any
judgment or sentence which may be pronounced or made by I1is Ma-
jesty, his heirs, and successors, in his or their Privy Council, upon any
such appeal, 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 substalltial
justice requires that pending such appea! execution should be stayed, it
shall be lawful for such courts to order the execution of such judgment,
decree, ordel', 01' sentence, to be suspended pending such appeal, if the
party 01' parties appellant shall give security fol' the immediate per-
formance of any judgment 01' sentencc which may be pronoullced 01'
made by His Majesty, his heirs, c.ad 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 fol' the payment of all
such costs as may be awarded by His Majesty, his heirs, and successors,
to the party 01' parties respondent :


Sixthly, The court from which auy such appeal as aforesaid shall be
brought shall, subject to the conditions hereinafter rnentioned, deter-
mine the nature, amount, and sufficiency of the several seaurities 50 to
be taken as aforesaid :


Seventhly, Provided ne\'ertheless, that in any case where the suhjcct
of litigation shall consist ofirnmoveable property, 01' 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 securilY shall be
demanded either from the party or parties respondent or from the pariy
or parties appelIant, for the performance of the judgment 01' sentence to
be pronounced or made upon such appeal; but if such judgrnent, de-
cree, order, or sentence, shall charge, affect, 01' relate to the occupation
of any 'Such property, then such' security shaU not be of greater amount
than may be neeessary to secure the restitution, free from all damage 01'
loss, of such stock, utensils, or implements, or of the intermediate profit
which, pending any such appeal, may prooably accrue from the inter-
rnediate occupation of su eh property; aud cach of the said courts is
hereby authorized and lrequired to 5équestrate any such immoveable




BRITISH GUIANA.


property, sIaves, stock, utensils, and impIements, in order still further
to rednce the amount of snch 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 shaIl not show good canse to
the contrary :


Eighthly, In any case where the subject of litigation shaIl consist of
money or other chatteIs, or of any personal debt or demand, the security
to be demanded either from the party or pal'ties respondent, or from the
party or parties appelIant, for the performance of the judgment or sen-
tenee to be pronounced 01' made upon such appeaI, shaIl 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
by way of mortgage or voIuntary condemnation of or upon sorne im-
moveabIe property or sIaves (1) situate and being within such coIony,
and being of the full value of such subject of litigation, over and above
the amount of all mortgages and cbarges of whatever nature upon or
affecting tbe same : ~


Ninthly, In any case where the subject of Iitigation sbaIl be the right
of any aIleged sIave to his or her freedom, the amount of the security
for the performance of the judgment or sentenee to be pronounced and
made upon any such appeal, shall in no case exceed the pecuniary value
of such alleged sla ve, and shall be gi ven either by such surety or sure-


. ties, or by such mortgage or voluntary condemnation as aforesaid :
Tenth, TIte security to be given by the party 01' parties appellant for


tbe prosecution of the appeal and for the payment of CQsts, shall in no
case exceed the sum of .í300 sterling, and shaIl be given either by such
surety 01' sul'eties, 01' by such mortgage 01' voluntary condemnation as
aforesaid : I


Eleventh, If the security to be gi ven by the party or parties appellant
for the prosecution of the appeal and for the payment of 8uch costs as
may be ai.varded, shall, in manner aforesaid, be completed within tbree
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 sbalI be
at liberty to prefer and prosecute his, her, or theil' appeal, to His Ma-
jesty, bis heirs, and successors, in his or their Privy CounciI, in such
mallner and under such rules as are observed in appeals made to His
Majesty in Council from the plantations or colonies :


Twelfth, Provided nevertheless, that any person or person; feeling
aggrieved by any order which may be made by, or by any proceeding
of any of the said courts l'especting the security to be taken upon any


(1) See post, (he Slavefy Abolition Act, ss. 9 and 10.




ORDERS IN COUNCIL. 283
such appeal as aforesaid, shall be and is hercby 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 Bis Majesty, his heirs,
alld successors, to admit and receive any appeal from any judgment,
decree, sentence, or order of ally of the said Supreme Courts, 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 His Majesty, his heirs, and successors so to
admit and receive any such appeal.


26. And it is further ordered, thl\t in aU cases of appeal allowed byany
ofthe said Supreme Courts or by His Majesty, his heirs, and succes-
sors, such court shaU, on the application and at the costs of the party or
parties appellant, certifyand transmit to His Majesty, his heirs, and
successors, in his or their Privy Council, a true and exact cop-y of aU
proceedings, evidence, judgments, decrees and orders had ar made in
such causes so appealed, so far as the same have relatian to the matter
of appeal, such copies to be certified under the seal of the said court.


27. And it is further ordered, that the said Supreme Courts respec-
tively shall in aU 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 herebyfurther ordered, that aU orders heretofore made by
His Majesty, or byany of his royal predecessors, in his or their Privy
Council, and alllaws, 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 of the present order, any person lawfulIy administering for the
time being the govemment of :my of the said calonies, shal1 be deemed
and taken to be the Governor thereof.


And the Right Honourable Viscount Goderich, one oC His Majesty's
principal Secretaries of State, is to give the necessary directions herein
accordingly.


(Signed) C. C. GREVILLE.




( 284 )


INFERIOR COVRTS OF CIVIL JUSTICE.


Vnder 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
" An Ordinance to establish and constitute Inferior Courts
of Civil Justice in British Guiana," and to make other
provisions for such inferior courts. It recites and re-
peals the former ordinance, and then proceeds as fol-
lows :-


Whereas by an order of His Majesty in Council, bear-
ing date 20th June, 1831, His Majesty has been graciously
pleased to authorize the establishing of Inferior Courts
of Civil Justice within tbis colony, having jurisdiction to a
certain extent as therein described.


2. Be it therefore further enacted, that there shall be
one Inferior Court of Civil Justice for the district of De-
merara and Essequibo, and another Inferior Court of
Civil Justice for the distdet of Berbice.


3. And be it further enacted, that the said Inferior
Coul'ts shall be held by and before the Chief Justice 01'
one of the Puisne Judges, at such times as the Judges of
the Supreme Court shall direct and appoint,


4,. And be it further enacted, that the said Inferior
Civil Court shall have jurisdiction in cases to the amount
01' value of twenty pounds sterling, all claims in currency
not exceeding 300 guilders being comprehended in this
limitation.


5, And be it further enacted, that the Registrar 01'
Sworn Clerk and Marshal of the respective Supreme
Coul'ts of Civil Justice shall attend the sitting of the said
l'espective Inferior Civil Courts, and shall be entitled to
receive certain fees for sel'vices l'espectively pel'formed by
them.


6. And be itJurthel' enacted, that when the Judges of
the Supreme Court shall have made, ordained, and esta-
blished all necessary rules, ol'ders, and regulations re·
specting thc manner and form of proceeding to be observed
in the said Inferior Civil Courts, and l'especting the man-
ner and form of carrying the judgments and orders of the




BRITISH GUIANA, 285
said Inferior Civil COUl'ts into exeeution, with aH sueh
other l'ules, ordel's, and regulations as may be neeessary
for giving fuH and perfeet effect to the jurisdietion 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 said
court shall be entitIed 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 N ovember next
coming. And that no ignorance may be pretended of the
several orders contained in this ordinance, the same shaIl
be printed and published as customary.


PRACTICE OF THE COURTS.


In consequence of the Orders in Council remodelling
the Supreme Comt, and the subsequent establishment of
Inferior Courts, Iocalregulations were made directing the
mode of proceeding in the Supreme Comt and in the In.
ferior Courts of British Guiana. Many of these regula.
tions can be of use onIy to the practitioners of law in the
colony itself; but there are some whieh, as they may affect
eontraets made in this country, deserve to be extracted.
The first duee will give sorne idea of the jurisdietion of
the courts now established in the colony.


Manner of Proceeding to be observed in the Supreme
COllrts of Civil Jllstice in Britislt Guiana, made and
established by the Justices of the said Courts, in pur-
suallce of His Majesty's Order in COllncil, bearing date
~Otk June, 1831.
Sect. 1. A Court of Civil Justice shall be heId in


George-Town four times in each year, for the district of
Demerara and Essequibo, and twice 01' three times, if ne-
cessary, in each year, in New Amstel'dam, for the distriet
of Berbice.
~. A Roll Court shalI be heId in each district before a


puisne judge, on such days as shalI from time to time be
appointed by the Judges of the Supreme Courts, and
shall be continued from day to day until the business




286 BRITISH GUIANA.
brought before it shall be disposed of. Provided how-
ever, that no RoU Court shall be appointed to be held in
the months of August, September, and October.


3. Before the first Roll Court of every month, in which
there shall be one or more Roll Court, shall be return-
able aU and every citation in civil causes over which the
Supreme 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
Roll, and he is hereby required to make, if need be, a
special report to the court, touching the examination, and
the conduct 01' absence of any witness or witnesses, 01' other
persons therein, or relating thereto ; a copy ofwhich l'eport,
in the event of any appeal to His Majesty in Council
being granted, and the papers taken out shall be deli-
vered with tbe 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 shall be sold until
one yea1' after levy, and the particular description thereof
and notice of the sale sha1l, at least six months previously
to the day of sale, have been. three times advertised in
the London Gazette and Amsterdam Courant.


44. At the expiration of the year after due notice, as
in s. 43, the court 01' chief justice, during n"on-session,
upon petition of the marshal, shall fix 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 in the event of the property to be ·sold con-
sisting of severallots of land, with or without slaves 01'
appurtenances, 01' of severallots of slaves, with 01' without
buildings, and upon which lots respectively there shall be
separate 01' distinct mortgages, liens, or claims, the holders
of such distinct mortgages, liens, or claims, shall be at
liberty to petition the cou!'t or chief justice during non-
session for an order to sell, as it sha11 seem most aUvan-
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. ~87
able property sola a1; execution sale, be a holder of a first
01' second mortgage on the same, he shall not be bound to
furnish security, 01' pay, save and except to the extent of
8uch claims as sha11 appear to the court to be preferent
to such first 01' second mortgage, and of the amount for
which the purchase-money shall exceed the amount of the
sum due.on su eh first 01' second mortgage, provided such
first 01' second mortgage, in virtue of which exemption
from security 01' any part thereof sha11 be claimed, sha11
be deposited with the registrar.
7~. Every barrister, advocate, attorney, and solicitor,


upon his admission to practise, shall have administered to
him and 8ha11 take the fo11owing oath :-


" y ou sha11 swear that well al!d truly you shall serve
" the King's subjects, according to the best of yOUl' learn-
"ing 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 01' hope
H ofreward. So help you God."


And no practitioner at the bar shall be allowed to
appeal' 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, 01' sorne 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 .01' execute a power ad lites, in favour of any prac-
titioner, care sha11 be taken to insert therein authority to
receive monies and to grant receipts, and unless such
authoritybe inserted in the powers ad lites, the same shall
be considered to have been intentiona11y withheld.


76. Edictal citations at the instance of an executOl',
administrator, eurator, guardian, 01' trustee, shall be
confined to two, that is to' say, the first edictal citation
.shall be issued in the' colony within one month after date
of the order obtaineu from the chief justice, and the
second, 01' 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, 01' in one month after
the first shall have. been called at the roll, ir the publica-
tion in ~ul'ope be not required.




288 BRITISH GUIANA.


Mannm' rf proceeding in tIte bife1'ior Courts of Britisk
Guiana, as establislted by tite Judges 01 tlte Supreme
Courts in pU1'suance qf Bis Majesty's Order in Councit
of~Otl¿ June, 1831.


Sectíon 19. Thel'e shaIl be no appeal from any sentence
of these courts, and eight clear days after sentence shaIl
have been pronounced, the party in whose favor the
sentence is shaIl be at liberty to proceed in execution
thereon.


28. Every one shaIl be at liberty to appear personally
in the Inferior Courts, to conduet his own cause, 01' to
employ by power ad -lites a duly ,admitted barriste!',
advocate, 01' attorney, and no other person to appear for
him; it being however understood that whenever such
barrister, advocate, 01' attorney, is employed, he shaIl be
remunerated by his own cIient, and no fee 01' remuneration
paid to any barl'Íster, advocate, 01' attorney, for appearing
in the Inferior Courts1 shall form any part 01' parcel of the
bill of costs to be taxed against the party condemned.


Qualification of Assessors.
The order in Council of the ~th June, 1831, having


directed that in certain cases therein mentioned, assessors
should sit with the Judges of the Supreme Court, another
order in Council of the date of the 15th August, 1832, was
issued declaring the qualifications of such assessors. The
second order 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 tbe administration of justice in His Majesty's
Colonies of British Guiana, Trinidad, and Sto Lucia,
whereby it was, amongst otber things, Ol'dered, that the
as ses sor s of the courts therein mentioned in Demerara
and Berbice sbould be chosen and appointed in such and
the same manner as the members of the Court of Civil amI
CriminalJustice ofDemeral'a have heretofore been chosen
and appointed, and that the assessors of the said court fol'
the trial of criminal prosecutions in Trinidad ihould be
chosen and appointed from and out of the members of the




BRITISH GUIANA.


Cabildo of the town' of Port of Spain, in the said island ;
ano that the assessors of thc said Royal Court of St.
Lucia should be chosen and appointed in such and the .
same manner as the members of that court, other than the
First Prcsident have heretofore be en chosen and ap-
pointed. And whereas it is expedient to admit to the
discharge of the duties of assessors in the said courts
respectively, aH free adult male inhabitants of the said
colonies possessing such qualification as hereinafter is
mentioned: it is therefore hereby ordered by His Majesty.
by and with the advice of his Privy Council, that so much
of the said order as is herein before recited shall be, and
the same is hereby revoked and repealed. And it is
hereby further ordered, that every free man except as
hereinafter exempted, between the ages of 21 years and
60 years, residing in any of the said colonies, who shaIl
have 01' be beneficiaIly entitled to, fOf his own use and
benefit, either in his own name 01' in trust for him, withio
the same colony, ten pounds by the year aboye reprises, in
any immoveable property, 01' in rents, or other anoual
profits 01' proceeds issuingout of such immoveable property
either io perpetuity or for the life of himself or sorne other
person; or who shaIl have within the same colooy for his
own use and benefit, either in his own oame or io trust
for him as aforesaid, 201. by the year aboye reprises in
immoveable property heid by lease or leases for the ah-
solute term of 21 years, or sorne longer term, or for any
term of years determinable on any life or lives; or who
being a householder should be rated or assessed to any
direct tax or impost, 01' to aoy rate for the relief of the
pOOl', 01' othe1' local object, on a value ofnot less than 20/.
per annum; or who shaIl occupy a house of the annua!
value of ~Ol. shaIl be qualified and liable to serve as an
assessor, within the meaning and for the purposes of the
said recited order, in the colooy io which every man so
qualified respectively shaIl reside, and for the purpose,
and within the meaning of that urder, an slaves whether
prredial 01' personal shaIl be considered as immoveable
property. Provided always, and it is further ordered, that
an members of the legislative bodies of the said respective
coIonies, aH jurors of the Supreme Cou1'ts of Justice
the1'ein, an clergymen in hoIy oroers of the established
ChUl'ch of England and IreIand, all ministers of the Kirk
of Scotland, and of thc Luthcran and reformed churches,


u




290 DRITISH GUlAN A.
aH priests ofthe Roman CathoIic faith, aH persons who shall
teach or preach in any congregation of Protestant dis-
senters, and who shall follow no secular occupation except
that of schoolmaster, aIl doctors oflaw, advocates, counseI,
and barristers actually practising, all attorneys at Iaw,
solicitors, and proctors actuaIly praetising, aH officers of
the said courts actuaHy exercising the duties of their
respective offices; all jailors and persons actualIy em-
ployed by and under them in the custody of prisoners ;
aU physicians, surgeons, and apothecaries actuaHy prac-
tising by virtue of any diploma, lieense, or certificate
granted by any competent authority; aIl officers in Bis
Majesty's navy or army on fuIl pay, aH pilots duly lieensed
by any competent authority; aH offieers of customs, and
all officers actually employed as deputies or assistants to
the marshaIs, or other executive offieers of the said courts,
shaIl be and are hereby absoIutely freed and exemptecl
from serving as such assessors as aforesaid. Provided
also, and it is further ordered, that no man who hath been,
or shaIl be convicted of any crime that is infamous, unIess
he shaIl have obtained a free pardon, shaIl serve as such·
aSSessor. And whereas it is necessary that provision
should be made for ascertaining the names, places of
abode, and deseriptions, of aIl 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 sueh assessors,
and for the impartial seIection of a sufficient number of
persons from those so summoned to serve on every
eriminal prosecution,


It is further ordered, that the chief justices and other
j udges of the Supreme Court of the said colonies re-
spectively, shaIl be, and they are hereby authorized, to
make, ordain and establish, all neeessary 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, shaIl be ascertained, and re-
specting the making and preserving in the different
districts and quarters of the said respective colonies, lists
of an su eh persons, and respecting the public and other
notices to be given preparatively to the eompiling of any
such lists, and the publication of any such lists when so




BRITISH GUIANA. ~91
,


compiled; and respecting the manner in which aIl persons
whom it may concern shaIl be called upon 01' permitted to


# oppose 01' object to the insertion 01' omission of any name
in any such list; and respecting the manner in which
every such opposition 01' objection shaIl be heard, tried,
and determined, and respecting the manner of reforming,
correcting, 01' allowing any such list; and respecting the
manner and form in which aIl such lists, when corrected
and reformed, sbaIl be recorded; and also respecting the
manner, order, and form in which all persons, whose names
sha11 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 shaIl be served; and aIso
respecting the mode in which a competent number of
assessors shaIl be chosen, eithel' by ballot 01' otherwise,
from among the number so summoned to serve as assessors
in the saiel courts; and aIso respecting the proper method
of proceeding to preserve a due rotation amongst such
assessors; and also respecting the several officers by
whom, and the times and places at which the before-
mentioned duties respectively shall be done and performed ;
and a11 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, and regu-
lations, as aforesaíd be repugnant to thís present order,
and that the same be forthwith transmitted under the seals
of such respective courts to the respective governors, to
confirm 01' disaIlow the whole or any part of such rules,
orders, and regulations, as to such respective governors
may in theit discretion seem fit; and the same when so
confirmed by such respective governors snall take effect
and be in fuIl force within the said respective colonies
until liis Majesty's pleasure shaIl be known; ahd the Same
shall be transmitted to His Majesty for his approbation 01'
disallowance, in the manner directed and required by the
said recited order of the QOth June 1831, with respect to
the rules, ol'ders, and regulations of the said Supreme
Cou!'t therein mentioned.


And it is further ordered, that if any public officer 01'
other person within the said colonies respectively, who,


, by any such rules, orders, and regulations as aforesaid
shaIl be l'equil'ed 01' directcd to pel'form any duty, 01' to


uZ




292 B1UTISIl GUIANA.
do any act in 01' about 01' connected with the several mat-
ters aforesaid 01' any of them, sha11 refuse 01' neglect to
perform any such duty, or to do any such act, every such
officer 01' other person shall, for every such offence, for-
feit a sum not exceeding .:B1O nor less than 408., as to thc
judges of the Supreme Court of such colony wherein the
same shall occur sha11 seem reasonable.


And it is further ordered, that every person¡who, under
the provision of this present order, 01' of ally such rules,
orders, and regulations as aforesaid, sha11 be duly sum-
moned to serve as an assessor for the trial of any criminal
prosecution in any ofthe 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, sha11 forfeit and pay fol' evel'y such
his default. such fine, not exceeding l' 10 nor less than
J;l, as the coul't shalI deem reasonable to impose, unless
sorne just and sufficient cause for such defaulter's absence
shalI be made to appear, by oath 01' affidavit, to the sa-
tisfaction of the 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 pl'osecutor of and for any such eolony, and sha11 ,
when so imposed, be levied and reeovered in sueh and the
same manner and by a11 such ways and means as any
other fine or penalty imposed by a judgment of any such
eourt; and shall, when so recovered, he paid over to the
tl'easurer 01' other l'eceiver 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 aH criminal proseeu-
tions before the said courts respectively, it shall be a good
cause of chalIenge of any person summoned to serve as an
assessor, that he is not qualified according to the provi-
sions of this present order, 01' that he is an illiterate per-
son and unable to read or write, and that any other cause
which according to the law of England would be a good
cause of cha11enge of any man summoned and returned to
serve as a common juror on the trial of any issue joined
between the King and the prisonel' on any indictment for
felony or misdemeanol', shall also be good cause of chal-
lengc to any assessor sUlllluoned to serve Oil the tria' of




BRITISH aUIANA. 293
any criminal prosecution in any of the said colonies, in so
far as that part of the law of England is capable of being
applied in the said eolonies j and if any sueh cause of
challenge shall be alleged, either by the publie prosecutor
01' by any such person 01' persons against whom any such
prosecution may be brought, the judges of the court shall
forthwith proceed to enquire of, and consider the grounds
of any sueh challenge, and shall either allow 01' overrule
the same, as may be just j and upon su eh ehallenge being
so allowed, another person shall be chosen to serve as
assessor in the place and stead of the person so challenged,
and so on, until a sufficient number of assessors shall
appear against whom no cause, 01' no just cause, of chal-
lenge shall be alleged.


And it is further ordered, that after deducting six from
the whole number of the persons summoned and actualIy
appearing to act as assessors on any criminal proseeution,
the publie prosecutor and the person 01' persons against
whom the prosecution may be brought, shaIl ea eh have as
many peremptory ehallenges as shall be equal to one half
of the remaining number, 01' should the remaining number
not be an even number, then the person 01' persons against
whom the proseeution may be brought shall have one
peremptorychallenge more than the public prosecutor.


And it is further ordered, that before proceeding to the
trial of any sueh criminal prosecution, each assessor shall,
in oren court, audibly pronounce and take the oath ap-
pointed by the law of England to be taken by petit
jurors imp8.nnelled for the trial of any issue joined be-
tween the King amI any person 01' persons arraigned upon
any indietment in His Majesty's Comt of King's Beneh
at \Vestminster.


And it is further ordered, that the assessors so to be
summoned and ehosen as aforesaid, shall have, exereise,
and enjoyan sueh and the same rights, powers, and pri-
vileges, and shall perform an such and the same duties
as according to the provisions of the said recited Order
in Couneil might be exercised, enjoyed, and performed
by the assessors therein mentioned.


And it is further ordered, that this present order shall
take cffect and come into operation in the said respective
eolonies so soon as thc same shall have been promulgated


I within any sueh eolony by the Governol' thereof, and not




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 the Right Honourable Lord Viscount Goderich,
one of His Majesty's principal Secretaries of State, is to
give the necessary directions herein aceol'dingly.


C. Greville.


ASSESSORS.


An Ordinance to provide a sujficient number of Assessors
io be associated with the Judges of the Supreme Courts
of Criminal Justice qf British Guiana, as enacted by
the Governor and Court of Policy on tIte 5th December,
1831.


Whereas, by an order made and passed by His Ma-
jesty in Council, bearing date the :20th June, 1831, it was


. amongst other matters provided that three assessors
should be associated with three judges upon the trial of
any person or persons in either of the Supreme Courts of
the colony for any crime or offenee, sueh assessol'S being
entitled to deliberate and vote with sueh judges upon the
final 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 fol' the trial of any indict-
ment in England :


And whereas the number of pel'sons to be eleeted,
chosen, and appointed to serve as assessOl'S must be suffi-
cient to provide fol' cases of challenges heIa to be valíd :


Cl. 1. Be it therefore enacted, that there shall be for
the Supreme Criminal Conrt of Demeral'a and Essequibo
a number of twelve assessors, and for the Supl'eme
Criminal Court of Berbice a like number of twelve as ses-
sors.


5? 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 makc a double nomination of




BRITISH GUlANA. 295
persons fol' the offiee of assessor, to be transmitted through
the hands of His Excellency the Governor to the judges
of the Supreme Comt, and that it shall be lawful for the
said judges to seleet one of the persons nominated to
serve as an assessor, and the like form shall be observed
on eaeh and every oceasion of a vacaney oceurring in the
complement of the said assessors for ·the said eourts re-
spectively.


3. And be it further enacted, that notification shall be
sent by the secretary of the Comt of Justice to each per-
son who shall be seleeted in manner aforesaid, and in case
of any person who shall have been selected for an asses-
sor refusing to accept the office, or neglecting to signifY
his acceptance by written communication delivered to the
secretaryaforesaid, within fomteen days from the date of
notification, sueh person shall be liable to a fine of 1500
guilders in behalf of the colony, and the judges of the
Supreme Comt shall certify to the Governor and Court
of Policy that such a fine has been incurred, whereupon,
unless good and valid reason for sueh non-acceptance 01'
negleet be shewn to the satisfaetion of the Governor and
Court of Policy, the said court shall order and direet the
Colonial Reeeiver to proceed for the fine aecording to
law.


4. And be it further enacted, that each and every per-
son who shall be selected in manner aforesaid to serve as
an assessor, shall, within the period of one week from
the expiration of the term of fourteen days allowed to
signify his aceeptance of office, and whose aeeeptance
shall have be en notified to the secretary, 01' within such
period of fourteen days if he shall have aecepted the
offiee and desires to be sworn, appear before His Exce]-
lency the Governor, the Chief Justiee 01' one of the Puisne
Judges of the Supreme Comt, and take and subscribe
the following oath :-


" y ou shall faithfully and truly discharge the duties of
" an as ses sor in the Supreme Court of Criminal Justice
"for Demerara and Essequibo (01' fol' Berbice, as the
" case may be,) and shall deliberate and vote on tbe final
" judgment to be passed on all criminal trials on which
" you may sit, without partiality, favoul', 01' affection. So
" he]p you God."


After which his appointment shall be puhlicly notified




296 BRITISH GUIANA.
in the Royal Gazette of the colony; His Excellency the
Govemor 01' one of the judges being, nevertheless, em-
powel'ed to extend the time for taking such oath, if suffi-
cient l'easons be a11eged to either of them to gl'ant such
extension of time.


5. And be it further enacted, that the Puisne Judges of
the Supreme Court sha11 have the sanie power to admi-
nister oaths in all cases, ch-il and criminal, as the Prc-
siding Judge of the Court of Justice, styled under the
said Order in Council the Chief Justice, now has, and
heretofore hado


6. And be it further enacted, that it sha11 be the duty
of each and every assessor to attend the sittings at each
session of the Supreme Criminal Court; those assessors
who are appointed fol' the Supl'eme Court of Demeral'a
and Essequibo to attend the sittings to be held in George-
Town, and those assessol's who are appointed fol' the
Supreme Courtat Berbice to attend the sittings in Ncw
Amsterdam, l'espectively; and the proclamations of His
Excellency the Governor for the time being in the Royal
Gazette of British Guiana, appointing the time of holding
such sessions respectively, sha11 be due and sufficient
notice to aH 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 l'espectively, written on similar
pieces of papel', shall be placed in a box by the secretary
of the Supreme Courts respectively, to be drawn there-
from in succession by the second puisne judge, and after
three assessors are found to whom there is no leg,tl
ground of challenge 01' objection, the trial shall proceed.


And that no ignorance may be pretended of the several
orders contained in this 'ol'dinance. these presents shall
be published, affixed, and sent round for general in-
formation.


There were two other clauses in this ol'dinance, but
they have been repealed by the fo11owing ordinance:-




BRITISH GUIANA. ~97


An Ordinance passed by tIte Govemor and Court 01 Po-
lic!I on tite ~3d da.y of August, 18S~, lo amend an
Ordinance eniitled " An Ordinance io pro vide a su.Jfi-
cient number qf Assessors lo be associated witlt tite
Judges of the Supreme Court of Criminal Justice of
Britisk Guiana."


Whereas we have deemed it expedient to amend an
ordinance enacted on the ~lst December, 1831, and pub-
lished on the 22d following, intituled "An Ordinance to
provide a sufficient number of Assessors to be associated
with the Judges of the Supreme Court of Criminal Jus-
tice of British Guiana:"


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 hcreby substituted in lieu thereof respectively :-


Cl. 8. And be it further enacted, that if any person,
who having been appointed an assessor and whose name
having be en drawn as already prescribed in clause 7,
shall not be present to answer thereto, or shall decline to
sit as an assessor on any such trial, he shall be liable to a
fine of 100 guilders, unless good and sufficient cause
be shown to the satisfaction of the judges that sucb asses-
sor is absent from unavoidable cause, 01' has good reason
for declining to sit on such trial; and tbe judges shaIl,
when they see fit, certify to His ExceIlency the Governor,
that sucb fine 01' fines bas 01' have been incurred; and
His Excellency may thereupon, if he see fit, either grant
authority to the colonial receiver to proceed by summary
execution for the recovery of the said fine 01' fines, or
submit tbe eonsideration of tbis proceeding to tbe Ho~
nourable Court of Policy.


9. And be it further enacted, that each assessol' shaIl
be liable to serve two years, and until the session is closed
in which sucb two years may expire, should the same take
place during any such session; and after having served
fol' snch period of two yeal's, shaIl not be compellable to
accept the office of assessol', until after the expiration of
two years from tlre end of such sel'vice, provided never-
theless, that any person who has been elected and ae-
cepted the office of assessol' may, at any time during such




!298 BRITISH GUIANA.
period of two years, be relieved from further service on
payment of a fine of 1500f. or mayapply by petition to the
Governor and Court of Policy to be relieved from such
further service without the payment of such fine, and it
shall be competent to the Governor and Court of Policy,
on good and valid reasons being adduced, to relieve such
person from such further service. But any person elected
an assessor, .and who may have paid the fine, shall be
liable to be re-elected and to serve at the expiration of two
years from the period of his former election.


And that no ignorance may be pretended of the several
orders contained in this ordinance, these presents shall be
published, affixed, and sent round for general informa-
tion.


LAWS.
Sínce the date of the commission to General D'Ul'ban


the following ordinances have been passed, dcclaring what
shall be the laws of the united colony.


An ordinance dated on the 2d Decem\;ler, 1~31, and published on the
day following, "to continue in force the statutes, acts, and ordinances
heretofore passed, enaeted, and ordained by the Governor or Lieutenant-
Governor and Court of Poliey of the colonies of Essequibo and Deme-
rara, or by the Governor or Lieutenant-Governor and Court ofPolicy of
the united colony of Demerara and Essequibo, and by the Governor er
Lieutenant-Governor and Court of Poliey of Berbiee, or by the Governor
or Lieutenant-Governor and council of government Qf Berbice. re-
spectively, as enacted by the Governor and Court of Policy of British
Guiana." This ordinance, after reciting that "Whereas His Majesty
had been graciously pleased by his royal commission and letters-patent,
dated 4th day of March, 1831, (see ante, 262,) to give and grant to the
Governor ofthe colony of British Guiana full power and authority, with
the advice and consent of the Court of Policy of the said colony, to
make, enact, ordain, and establish laws for the order, peace, and good
government of the said colony," declares that the laws theretofore passed
in any of the colonies now forming British Guiana, " shall have the full
force and operation of law in the said respective districts of the colony
of British Guiana." The Governor and the Court of Policy reserved to
themselves the power of altering, revoking,&c. the said acts, &c. as they
may judge proper.


On the 30th November, 1831, was passed another ordinance "lo
continue in force the laws of evidence and the rules for criminal prac-
tice in Demerara and Essequibo, and to extend the same lo the distriet
.of Berbice, as enacted by the Governor and Court of Policy."


The courts of Ihe colony are the Supreme Court, established by the
Order in Council, and the Inferior Courts creat.ed under the authority
thereof.




( ~99 )


ST. LUCIA.


-


THIS island, one of the Caribbean ehain, is situated be-
tween the latitudes of thirteen and fourteen degrees north,
and the longitudes of fifty-nine and a half and sixty and a
halfwest. It has Martinico on the north at the distance
of about twenty miles, and St. Vincent's on the 80uth at a
small dístance.-4 B. Edw. ~61.


The soil of Sto Lucia is fertile. The finest part of the
eolony is the south-west quarter, which is well cuItivated
and thickIy inhabited. The interior is nearly deserto
The productions of the isIand are sugar, coffee, cocoa,
cotton, and indigo. The coffee is said to be supe-
rior to that of Martinico. Within the last thirty years
the quantity of produce has perhaps been more than
doubled. In 1788 the popuIation was ~O,918 persons, of
whom 2159 were whites. The population in 1814 was
only 17,485, of whom only 1210 were whites. Since the
restoration of peace and the cession of the colony to
Great Britain, it is, however, believed to be once more
increasing.


Sto Lucia is divided into eleven parishes 01" districts,
which beal' the name of Castries, Ance la Raye, Souffriere,
Choiseul, Laborie, Vieux Fort, Micoud, Prasling, D'En-
nery, Dauphin, and Gros Islet.-4 B. Edw. 274.


The island of Sto Lucia was for the purposes of the
administration of justice united to the colonies of British
Guiana and Berbice, by an ordet in council of the ~3d
April, 1831, but tl~at order was suspended by another of
the date of the i20th June in the same year. For the
mode in which the courts are now constituted see the last
of these orders, ante, 274.


HISTORY AND CONSTITUTION.


The name of Sto Lucia is del'ived from the saint's day
on which it was discovered. It was not till 1639 that any
attempt was made to form a settlement 011 this island. It




300 SR. LUCIA.
was then taken possession of by the English. Two years
afterwards, howevel', the Governor and most of the set-
tlers were murdered by the Charaibes, amI 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
English and French settlers assuming to take possession
un del' the authority of grants from their respective mo-
narchs, when in the latter year it was declared a neutral
territol'Y' 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 prescnt
a crown colony governed by Orders in Council, and the
inhabitants have reason to regret the cession to the
French in 1763, which prevented their enjoying the ad-
vantages of a representative assembly in the same man-
ner as the colonies just mentioned. The is)and was cap-
tured by the English in 1794., held by them tilI the peacc
of Amiens, then restored to the l<'rench, and again taken
on the 19th June, 1803, and finally ceded to England at
the peace of 1815. (1)


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 Ol'ders in Councíl, to which St. I,ucia 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 N apoleon.


The old laws proceed from two vel'y different sources
01' authorities; some wel'e enacted by the Kings of
France, 01' government at home, and others by the Go-
vernor and Intendant jointly-the local authol'ities.-
House of Commons' Papers l'elative to the Slave Popula~
tion, (1826,) p. 16.


(1) 4th vol. RaynaI's East and
West llldies; 4 Edwards aud How-
ard's Laws 01' Colouies.


(2) See ant~1 p. ;) to 16, 011 the


general topie, 1001V far the colouies are
subject to the law of the motIJer coun-
try.




STo LUCIA. 301
The two pl'incipallaws emanating from the government


at home are the Code Noir of 1685, approved and signed
by Colbel't, and the edict of 1786. The last, though
seldom quoted, will be found to inelude so me very whole-
80me provisions, and many similar to those contained in
the Trinidad Order.-Ib. 17.


LA W OFFlCERS.


The law officers of the Crown are in France bound to
protect the interests, and are the professional advisers of
an persons who frorn their youth 01' mental incapacity, 01'
frorn being under the power amI authority of another
(such as rnarried women) cannot be called free agents.


The Procureur General and Procureur du Roí are not
allowed to take private practice; their substitutes are, as
they mel'ely replace them occasionally. Pigeau's defini-
tion of the Ministere Public, (Traite de la Procedure
Civile, tomo i. p. 235,) is particularly elear and in point.
" By the Ministere Publir: is to be understood the Pro-
r:ureurs du Roi and their deputies in the tribunals. The
law has established thern to watch over its execution, and
to act as guardians to all that which relates to public
order, the condition of rnen, the rights of those who are
not able to defend themselves, and finalJy the regularity
of all jurisdictions. It is therefore necessary that an sub-
jects of this nature should be comrnunicated to them."-
lb. 18.


Mr. Jeremíe, from whose papers these statements are
taken, goes on to add that in consequence of the terms of
the law, he considered the Procureur du Roi to be ex
officio the protector of slaves in the colonies where the
French law exÍsted.


PARTICULAR LAWS.


Marriage Property.
By the custorn of París, and now by the general law of


France, persons mal'rying place part of their property in
comrnon, (en cornrnunanté); of this the husband has the
adrninistration during coverture; another part they re-
tain for their prívate 01' separate use; this is the propre




302 STo LUCIA.
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 SIave 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 jpdgment. This i8 the case in
the city of London with respect to pl'Operty in the hands
of a garnishee.-Ib. p. 4.


Mortgages.
N o proprietor, whose plantation is under mortgage, nor


his attorney nor agent, shaU seU or otherwise transfer any
of his plantation slaves, and thus separate them from his
plantation, on pain of being punished as a Stellionaire 01'
person guilty of fraudulently transferring real property,
and such sales, transfers, &c. shall be nun and void.


Stellionat. This is a crime I have not found mentioned
in Hale, Hawkins, or any other authors on the English
Crowh Laws. The punishment awarded by the law of
France is eithér a fine or imprisonment, but the chief
benefit derived by the creditor is that a debtor guilty of
" steltionat " is liable to personal arrest, that no exemption
will avail him, nor would he be admitted to make cession.
Stellionatús crimem etiam infamum irrogat, d. 13. So
that he becomes incapable of holding any public 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


. réelle." He is then bound to let it for a given term of
years; the tenant is "le fel'mie~' judiciaire;" during tbis
time the creditor goes through various forms required
before he can obtain possession to seU it. The sale is
called "l'adjudication par déeret,." and from the day the
creditor took possession to the day of sale the estate is
saiel to be " en saisie l'éelle."
. "Hypotlleques et privileges."-Privilege is a l'ight of




STo LUCIA. 303
preference proceeding from the nature of the debts, as
debts for funeral expenses are said to be privileged.


Hypotlteque is a kind of preference acquired by con-
tl'act 01' judgment, and is tota11y independent of the nature
ofthe debt.


Hypotheques rank according to their dates; privileges,
in the order assigned them by law, without reference to
the period at which the debt was contracted.~Ib. 5.


Landed property is here of little value, scarcely a
twelfth-part of the best cultivated estates is turned to use.
Plantations, even with extensive buildings upon them,
produce, when sold, little, often nothing mol'e than the
estimated price of the slaves, and yet slaves are not liable
to mortgage. It follows that mortgage deeds are, in
effect, of no value 01' 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 plantel' who had so readily borrowed was
always well aware of, that he is not only deprived of the
privilege 01' pl'eference to which his mortgage seemed to
entitle him, but that he has no kind of security whatever.
The slave cannot be withdrawn by the creditor from the
land, and sold in satisfaction of a judgment. The per80n
of the debtor is protected by law, and the remedy by
saisie réelle it would be useless to adopt, since it is per-
fectly evident that as long as tbe owner can seU and re-
move bis slaves, be will,-probably before the commence-
ment, but certainly long before tbe conclusion of tbe
suit,-tbus leaving for bis creditor tbe land and buildings,
not worth altogetbcr tbe expense incurrcd to obtain them.


, -lb. 22.


COLLECTION OF LAWS.


The laws are to be found in the collection entitled
" Tbe Code of Martinique," lately printed in five volumes.
All the papers, registers, and archives of the registry of
Sto Lucia having been burnt at the fil'e which destroyed
the town of Castl'ies in 1790, there are at present existing
in the registel's of this dep6t only some Iaws, ordinances,
and rules, which have been made and published by the
different English Govel'llors since thc re-establishment of




304 STo LUCIA.
the tribunaIs by Genel'al Prevost in 1800, witb the exeep·
tíon of sorne aets of the Freneh government whíle it
oeeupied the island after its restoration to the Freneh by
virtue of the tl'eaty of Amiens, up to the eonquest made
by the British arms in 1803. But these aets have not
be en mueh followed sinee the new conquest, as the colony
was then ceded subject to the laws whieh ruIed it before
its last restoration to the French government.-Howard's
Laws of the Colonies, 579, 580.


The Supreme Court in this ¡sland is now constituted
according to the provisions contained in the Order in
Council of~Oth June, 1831. (See ante, 274-.)




( 305


TRINIDAD.


-


AT the entrance of the Gulph of Paria, which it land-
locks, and stretching from the mouth of the Orinoco to
the mountains of Cumana, between the tenth and eleventh
degrees of north latitude, and the sixty-first and sixty-
third degrees of west longitude, is situated the islaml of
Trinidad. Its extreme breadth from east to west is
between sixty and seventy miles, and fifty miles from
110rth to south. From its peculiar shape, however, its
general breadth is much greater from no1'th to south than
trom east to west. In form it is compa1'ed by the Spa-
niards to an ox hide; but by a recent map constructed
from 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 hom ofwhich
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 Glllph of
Paria, which affords to ves8els of every dimension a secure
shelter and an excelIent anchorage. The channel be-
tween the Orinoco alld Trinidad is called the Serpent's
Mouth; that between Trinidad and Cape Paria i8 inter-
spersed with islands, and 'bears the name of the Dragon's
Mouth, which was given to it by Columbus. The name
of Trinidad was also given to the island by that illustrious
navigator, from the circumstance of three of the highest
peaks of the mountains having 6rst 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
Paria, and the soil is deep and fertile. .


The principal exportable produce of Trinidad consists
of sugar, rum, coffee, indigo, catton, and cocoa. The cocoa


x




306 TRINIDAD.
of this island was always celebrated for its excellent
quality, being considered as superior even to that of Ca-
raccas.-4 U. Ed w. ~95, ~96.


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
Holy Trinity. It appears from the account of Herrera 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
first despaired of finding an outlet, and consequently be-
lieved tbat his labour was entirely lost. Having been in
great danger in a violent storm he made a vow to give tbe
name of tbe Holy Trinity to tbe first land be sbould find,
soon after wbich a sailor in the main-top saw three points
of land, wbereby the name fitted every way to bis vOW. -
Columbus at lengtb found egress tbrougb tbe channels on
tbe nortb, to wbich, on account of tbe stormy navigation,
be gave tbe 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.


It was almost immediately afterwards captured by Sir
W. Raleigh in ]595, on his way to Guiana in search of
El Dorado, hut it speedily feH again into tbe power of
the Spaniards. Previously to the yeal' 1783, so small
had been the efforts made to render tbis colon y as
valuable as its natural resources would bave made it, that
a single vessel belonging to a Dutch house in Sto Eustatia,
and making annuaIly two or tbree voyages, was sufficient
to carry on th~ whole commerce of the island. M. Roume
St. Laurent, a gentleman of Grenada, and Don Joseph
Chacon, tbe Governor appointed from Spain, were the
first persons to whom the colon y was indebted for its
prosperity. In 1797 Trinidad was captured by the troops
llnder Sir Ralph Abercl'omby. It was ceded by the Spa-
niards at the peace of Amiens, and has since continued in
the possession of the British.-l B. Edw. 71, and 4 lb.
9Z97,301.




TRINIDAD. 307


LAWS. (1)
The laws in force here are the laws of Spain as esta-


blished at the time of the eonquest by the English, with
such alterations only as ha ve been made in them by
Orders in Council, to which this island as a colony by
eouquest is now subject. (2) It would appear tbat either
there had deen a general intention to alter the Spanish
la ws' of tbis eolony, or that dou bts had been expressed as
to tbeir authority, for in a proclamation dated on the 19th
.June, 1813, and directing how appeals are to be allowed,
and what security is to be given by appellants, are formal
declarations as to the law of the colon y and the jurisdiction
of the eourts there. The proclamation, whieh, until the
recent Orders in Council, was considered as the legal con-
stitution of the colony, is in the following terms:-


TRINIDAD.


By His Royal Highness the Prince of Wales, Regent of
the United Kingdom of Oreat Britain and Ireland, in
the name and on the behalf of His Majesty.


A Proclamation.
'VHEREAS, by our commission 01' letters-patent under


the great seal of England, bearing date at our court at
Sto James's the 31st day of October last past, we did, in
the. name and 011 the behalf of His Majesty, constitute
and appoint our trust y and well-beloved Sir Ralph James
Woodford, Barí., to be our Governor and Commander-
in-Chief in and over His Majesty's said Island of Trini-
dad, as well as oi" an our forts and garrisons within the
same as in and by the said in part reéited commission or
letters-patent and our instructions therein mentioned and
referred to will more fully appear: And whereas, we,
acting in the name and on the behalf of His Majesty,
have thought lit to issue this our proclamation, and we do
therefore hereby in the name and on the behalf of His


(1) See ante, p. 3 to 16, on [he
gene"al tapie how far the eolonies are
subject to Ihe law of the lDother


eountry.
(2) Ante, 23, and Johnston's Insti-


tutes of [he SpallishLaw, Preface, p. 7.
x2




308 TRINIDAD.
Majesty publish, declare and proclaim that for the present
ánd until OUl' pleasure shall be further signified, the ad-
ministration of justice and police in our said island should,
as nearly as circumstances will permit, be exercised by
our said Governor in conformity with the ancient laws
that subsisted within the same previous to the surrender
of the said island to us, subject to such alterations, regu-
lations, and improvements as may have been since made
and approved of by us: and subject also to such direc-
tions as our saiel Governor shall have receivetl, 01' may
hereafter receive from us, under our signet 01' sign manual,
01' by our order in OU1' Privy Couneil, 01' through one of
our principal Secretaries of State; 01' to such deviations
in eonsequence of sudden and unforeseen emergencies as
may render a departure therefrom manifestly expediento


The proclamation then went on to direct the manner in
which appeals should be aIlowed from the inferior to the
supreme courts in the colony, and from them to the King
in Council. This part of the proclamation is now super-
seded by the Order in Council of QOth June, 1831. (See
ante, 52S0.)


MI'. Maddoek and MI'. Dwal'l'is had prepared questions
relative to the administration of justice in the colon y when
Mr. Henry arrived there with authority to eo-operate
with them, and to act as senior commissioner. Mr. Dwar-
ris was unfortunately compel!ed, very shortly afterwards,
to return to England on account of ill health, and the
examinations were taken by MI'. Henry and MI'. Maddock.
These two eommissioners then sailed for St. Lucia, where,
before the report on Trinidad could possibly be pre-
pared, MI'. Maddock fel! a victim to the climate. The
examinations were afterwards brought to England by
MI'. Henry, and the report was the joint labour of him-
self and MI'. Dwarris.


N o English statutes are believed to be in force in this
island, with tbe exeeption 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 01' by
proclamations of the Governor for the time being, by
virtue of the powers incident to his offiee, which latter we
shaIl mention more ful!y hereafter.


The Spanish laws which are of authority in this colony
are such as were in force at the time of the capture of the
island (February, 1797,) and that have not since been re-




TRINIDAD. 809
pealed by Bis Majesty the King of England. Of these
laws there are sorne compilations amI digests; viz. what
is termed the Derecho Real de Castilla, the Fuero Juzgo,
the Fuero Vujo de Castilla, the Fuero Real de España,
the Siete Partidas, Leyes de Es/ilo, Ordenamiento Real,
Nueva Recopilacion de Castilla, the latest edition j No-
vissima Recopilacioll, 01' such of them as were enacted
pl'eviously to 1797; and the Recopilacion de las Leyes de
las Indias.


By a proclamation of the Governor, Sir R. W ood-
ford, (18th December, 1813,) all Orders in Council and
proc\amations are ordered to be enrolled and recorded
in proper books kept for that purpose, and so recorded to
be evidence. .


Spanisle [,aws in Force.
(Observations on.)


By a proclamation of the ]9th June, 1813, the admi-
nistration of justice and poJice is directed to be continued
in conformity to the ancient laws and institutions that
existed previous to the surl'ender of the island, subject to
such alterations as it might be advisable to make therein
from time to time.


Under this authority, therefore, the ancíent Spanish law,
and the Roman law, as its auxiliary, in cases where the
former is defective, may be considered (so far as they are not
restricted by subsequent regulations) as the common and
statute law of the colony, and as binding in all cases not
otherwise especialIy provided for; and that the English
laws and sta tutes, except those regarding navigation, re-
venue, and trade, and the Mutiny Acts, and those made
since the cession of the colony, in which the island is spe-
cially noticed, are 110t binding.


With respect to the British act 5 Geo. 2, c. 7, (for the
more easy recovery of debts in the plantations,) a varíety
of conflicting opinions seem to have prevailed, whethel'
it was to be considered in force 01' not in Trinidad; but
this doubt seems to be done away by the last clause of an
Order in Council of the 8th June, 1816, which is as fol·
lows :-


" And whereas it is expedient to facilitate the proof of
mercantile debts, and to legalize the testimony of clerks,
book-keepers, and others employed by merchants; ít is




7


310 TRINIDAD •
. hereby ordered and directed, tbat tbe declal'ations on


oath of such persons, in all civil proceedings wberein
their employers are parties, shall benceforth be takel1 to
be good and admissible evidence in favour of such their
employers, any law to the contrary notwithstanding."-
Trinidad Commissioners' Rep. 32. .


COLLECTION OF LAWS.


There is no complete printed collection of the Orders in
Council and proclamations, &c. by which changes 01' mo-
difications have from time to time been made in the Spa-
nish law; thougb there is such a printed collection of
those which have been promulgated since the administra-
tion of the government by Sir Ralph 'Voodford; most of
the latter are to be found in Johnston's Institutes of the
Laws of Spain. Of the MS. proclamations offormer 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 which 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 original s 01' duly certified copies.-Trinidad
Commissioners' Report, p. 6.


COURTS IN GENERAL.


The courts established in this colony for the administra-
tion of civil justice, at the time ofthe commissioners visiting
the colony, were the Court of Intendant, the Complaint
Court, the Court of First Instance of Civil J urisdiction, the
Instance Court of Vice-Admiralty, and the Superior Court
of Appeal of Civil Jurisdiction; the Governo\' was besides
vested with the special power of exercising the authorities
and jurisdiction, whether appelIant 01' original, which were
theretofore 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 ofCriminal Inquiry, the Court for the
trial of Criminal Prosecutions, and the Court of A ppeal in
an cases of condemnation to death. Several of these




TRINIDAD. 311
courts and the offices connected with them have lately
been abolished 01' l'emodelled. (3)


The pcrsons usualIy appointed judges in the fOl'egoing
courts, with the exception of the Alcaldes in Ordinal'Y,
(who resemble the assistant-judges in the other colonies,)
are barristcrs. .


Barristers and Attornies.


It is not required that persons acting as counsel in these
courts should previously have been called to the bar in
England. They are admitted to practise as licentiates by
the Governor, exercising the powers of the Royal Au-
diencia. They take an oath for the due performance of
their office.


Theil'license is not (says the chiefjustice) expressed to
be during pleasure, and by the law such licenses are re-
vocable, upon just cause, by the Royal Audiengia.


The judge of criminal inquil'Y stated that the license is
expressed to be during pleasure.


The counsel in this island do not act as attornies 01' 80-
licitors, nor is it required that these latter should have
previously served a clerkship, 01' kept any number of terms
in England 01' in the colony.


It is the practice, howevel', for pel'sons applying for
licenses to act as attornies and solicitors, to produce a
certifica te of sorne practising barrister of the service of
such person in his office, and of his knowledge of the
pl'actice of the courts.


For this license they pay no fees.
They take an oath for the due performance of the


duties of their office.
There is no rule in any of the courts of this island pl'O-


hibiting a party from being heard in person, 01' the resident
attorney of an absent party from being heard in person on
behalf of his constituent.


(3) The Court of Criminal In-
quiry, Tribunal ~f Appeal in all cases
of condemnation to deatb, Superior
Tribunal of A ppeal oí Civil J uris-
diction, and Tribunal of the Royal
Audien¡;ia, have all been abolished
by the Order in Council of the 20th
June,1831. (See ante, 230.)


The offices of Father General of
lHinors, Defender oí the Absent, and
Depositario General, have also been
ahoiished bv the aboye order. And
tbe offices ¿f Taxador, Judicial Re-
feree, Liquidator, and Partidor, have
by the same order heen consolidated, .
so as to constitute one office.




312 TRINIDAD.
No security, the judge of criminal inquiry said, is to


his knowledge give~by these officers.-Trinidad Com-
missioners' Rep. 6, 7.


Court of tke Intertdant (and kerein of Esclleats.)
This court has jurisdiction for the tI'ial of claims of the


Crown, al' the Pise, 01' Exchequer, in respect of debts
due by individuals to the crown, escheat, and the like,
and in 'matters relating to crown lands.


As a court of record it has the powel' of fining for
contempt, and enforcing (the judge of criminal inquil'Y
apprehends) the payment by imprisonment.


The Governor sits as judge in tbis court. and is assisted
by his as ses sor. They receíve in these capacities no salaries.


The fees, &c. which they al'e entitled to under the
docket of 23d July, 1816, are paid into the chest of the
colony.


Property does not often escheat to the crown for want
ofheirs.


The chief justice was 110t aware of any precedent of
slaves being declared escheated; but slaves when es-
cheated would be taken pOiSsession of by the escheator-
general, and worked for the benefit of the crown.


Cases of intestacy among the unmal'ried coloured inha-
bitants are not, it is said, frequent.


, Illegitimate children of an intestate, whose property has
escheated for want of heirs at law, are entitled to one-sixtk
of the property of their ancestor, by way of alimentary
allowance. .


The chiefjudge said he was not aware of any inconve-
nience having arisen from the mode of admillistration of
justice in cases of escheat.-Trinidad Commissioners'
Rep. 7,8.


Court of Criminal Trial.
This court was established by an Order in Councilof


September 16th, 1822, which declares that it shall consist
of the chief judge (as president), the assessor of the Go-
vernor, the alcaldes in ordinary, and the escribanos of the
Civil Tribunal, (who are to act in the same capacíty
herein.)


The court sits in the town of Port of Spain, whenever
there is any cause before it for tria!.




TRTNIDAD. 313
The subject-matters of its jurisdiction are aH criminal


offences committed in the island, with the exception of
petty thefts and misdemeanors, which are heard before
one or other of the alcaldes in ordinary, under the 18th
and ] 9th clauses of the above-mentioned Order in Council.


The Attorney-General prosecutes ofl{mders in this
court.


Offences committed by free coloured persons against
slaves, as well as others, are tried in this court; but the
chief justice added (speaking of offences by free persons
against slaves) " none such have yet be en brought before
it."


Slaves, as well as free persons, are tried in this court
under the Order in Council of the 16th September, l8~2,
and the proceedings, as regards the modes of trial amI its
incidents, respite, pardon, execution, &c., are in every
respect the same as those against free persons. Legal
assistance is afforded to them, if the owner will not incur
the expense.


All offences which would be capital in a free person are
also capital in a slave.


Prosecutions are opened by counsel, who are not limited
to a statement of facts, but may make any observations
relevant to the case for tria!.


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.


The depositions of the witnesses before the judge of
criminal inquiry, are, by the practice of the court, always
used on the trial; but viva voce evidence is also required
and received.


The indictment and pleas in this court differ from those
used in England; they are entered in record, and su eh
record s are preserved in the oflice of the deputy-secretary
and registrar of the Cabildo.


The trial is according to the Spanish law, subject to the
Order in Council of 16th September, 1822.


The chief judge alone, as president, sums up the evi-
den ce to the court, and afterwards takes their opinion as
to the guilt 01' innocence of the prisoner, commencing with
the junior member. He also, as president, pronounces
the sentence of the court. '


The judgment of this court canno; be arrested after
trial, but is final in aH cases, except those of condemnation




314 TRINIDAD.
to death, in which case an appeal lies to the Governor
in Council, under the order of 16th September, 1822.


The Governor has the power to reprieve and respite,and
to pardon in aH cases except treason and wilful mur der.
He founds his opinion, it is supposed, on the original pro-
ceedings and on the report of the chief justice.


A nolle prosequi is never ente red np by the Attorney-
General; this power is not defined by the Spanish Iaw,
nor by the Order in Conncil constituting this comt. The
records of all proceedings in this court are deposited in
the office of the deputy-secretary and registrar.-Trini-
dad Commissioners' Rep. 9, 11.


Court qf Pirst Instance qf Civil Jurisdiction.
This court derives its authority under the Order m


Conncil of 16th September, 1822.
The subject-matters of its jurisdiction are aIl civil suits


and actions in the colony. It is said also to have jurisdic-
tion over matters in equity.


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 salal'y of f:~OOO sterling
per annum, his fees are regulated by the docket of 23d
July, 1816.


The chief judge, and judge of criminal inquiry, and one
of the alcaldes in ordinary are sufficient to form a court.


The chief judge afid judge of criminal inquiry are
lawyers by profession. The alcaldes in ordinary are cho-
sen by the board of Cabildo, from the most respectable
inhabitants of the colony.


The officers of the court are one escribano (or se cre-
tary), one clerk to the judge, and one judicial referee,
liquidator, and partidor, all appointed by the Governor,
and holding their offices during his pleasure.


The clerk of the judge receives a salary of f:500 Cllr-
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 sorne respects, altered by the several procla-
mations issued for that pUl'pose.


In case of an absent defendant having no attorney in
this island, the rules of this court require service of pro-
cess against him to be made upon the defender of the




TRINIDAD. 315
absent, and among absentees are Íncluded those persons
who have never been in the island.


There is no power of arrest before judgment 01' execu-
tion, except under very special circumstances.


The attachment of debts due to a defenuant in the
hands of a third person is seldom resorted to here. It is
not, however, attended with much expense.


The 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 in force in Trinidad. The judge of criminal
inquiry expressed his doubt on this point. (But see
ante, 75, 76, 309, and notes.)


In an action on a bill of exchange 01' promissory note,
the practice is for the plaintifI' to present his account for
principal, interest, damages, and expenses; and if such
statement be objected to by the defendant, it is either es-
tablíshed by proof, 01' referred to the judicial referee for
his reporto


Execution operates first against personal property; in
uefault thereof, against real property; and in default of
both, against the persono


Executions are never, when taken out, suspended and
use u as securities.


The costs in this court are taxed by an officer appointed
for that purpose.


There is no process in the Spanish law exactly re-
sembling the action of ejectment; but a remedy is afforded
for 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 age,
would 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 criminal inquiry
said the rule of prescription was thirty years generally as
to realty, &c., even though pbssession was acquired with-
out good faith; forty years as to the crown, except as to
criminal and civil jurisdictions, and duties and tributes.
Forty years are considered time immemorial.


It arpears that this court has jurisdiction to relieve in
cases where a deed has been lost, 01' where a mistake has
been made in preparing a deed.


A mortgagor can in aU cases redeem the mortgage pro-
perty by paying the mortgage money and interest. Mort-




:l16 TRINIDAD.
gages in fee do not seem to be known to the Spanish
law.


A mortgagee can recover his mortgage money not paid
at the time appointed, or obtain possession of the mort-
gaged property by a suit in this comt.


Tacking seems to be known in practice at Trinidad as
well as in England.


Tl'Usts are enforceable in this court, and executors 01'
trustees can be called upon to give an account; such
account is taken by the court itself, or by reference to the
judicial referee.


1t is not necessary t11at every agreement l'especting real
or personal estates should be in writing; such agreement
can be specifically enforced 01' annulled.


Fl'auds are considel'ed in this court,. and relief given
where fraud is established.


The property of intestates is distributable aceording to
the rules of succession [¡nd deseent by the eivillaw.


This court has jurisdiction In cases of bankruptey and
infaney, and in respect of the guardianship and main-
tenance of infants, also in cases of lunaties and idiots.


Cession of property, i. e. where a debtor voluntarily
cedes an his property into the hands of the court for the
benefit of his ereditors, is in practice here. It is not limited
to any particular class of persons.


So also is the compulsory remedy ol'iginating with cre-
ditors to obtain payment from insolvent debtors, which is
termed a concurso of creditors. I


The court has jurisdiction in cases of application by a
wife for separate maintellance on account of the mis con-
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 comt; and if a hus-
band sue for a legacy left to his wife he is not bound to
make any settlement on his wife 01' children in respect
thereof.


There are no proceedings in this court similar to in-
junctions in England; but the law afiords a remedy in a11
those cases in which injunctions are usually applied for,
such as to stay waste,' &c. by an action to restrain, 01' to
obtain secmity till the question is dccidcd.


The court has jurisdiction in an cases of manumission
by deed or will.


Formerly a preference was given to all debts necessarily




TRINIDAD. S17
incur1'eJ for tbe expenses essential to a plantation, but
tbis no longe1' exists.


To this court belongs jurisdiction to g1'ant administ1'a-
tion of pmperty of pe1'sons intestate, and as to other
matte1's connected with the powers of the Cou1't of 01'-
dinary in the other Britisb Colonies.


AH· wills affecting real and personal property in this
island, and executed here, are proved before tbe Gover-
nor, and al'e recorded in the office of the deputy sec1'eta1'y
and registrar.


There is no provision for appeal in case of the Gover-
nor's refusal to 1'eceive a will for proof.


Cases of contested wills are decided in this court.
AH wills to take effect ought to be registered within


one month after tbe decease, of the testator, or after tbe
executol' has notice of his decease, and of his own appoint-
ment as executor. lt is necessary that al! deeds should be
registe red, but no time is prescribed fol' such registry.
",'iIls are, however, admitted to be registered at any time
after the expiration of the month. Descents are guided in
this colony by civil law.-Trinidad Commissioners' Rep.
12,16,69,91.


Appeals fo the !f.ing i,i Council.
Appeals to the King in Council wel'e provided for by


pl'oclamation of 19th June, 1813, where the sum in ques-
tion is above ,[500 sterling, 'rhe expenses are establisbed
by the docket of 23d July, 18lfi.-Trin. Comm. Rep. 18.
Appeals are now regulateJ by the Order in Council of the
20th June, 1831. (See ante, 280.)


Court 01 Admiraltu,
Tbe Court of Vice-Admiralty in this island derives its


authority from the Crown, and the subject-matters of its
jurisdiction are maritime cases, 01' cases arising on the
high seas, not provided fol' by statutes 28 Hen. 8, cap. 15,
and '16 Geo. 3, cap. 54. It exercises also the ju1'isdiction
of a Cou1't of Exchequer in England over cases of fo1'-
feitu1'es and penalties incu1'1'ed by breach of the acts of
parliament relating to trade and revenue in the colonies.


The Chief JlIstice is the sole judge. He is appointed
by the Governo1' and confirmed by the Lords of the Ad-
miralty, holding the office during pleasu1'e, and removable
by the allthority appointing him. .


,




318 TRINIDAD.
The officers of the court are a registl'ar and marshaI.


The registrar is a patent officer, the marshal is appointed
by the Governor. They hold their offices during plea-
sure, and they give no security. They are, however,
under the control and superintendance of the court; they
ha ve no salaries, but receive fees.


The court follows, in its decisions, the civillaw for ma-
ritime cases, and the aets of parliament for revenue cases.


Proceedings for the reeovery of seamen's wages are
very seldom instituted in this court.


There are no Admiralty Sessions held in Trinidad, and
no authority exists there for the trial of piracy and the
like.-Trin. Comm. Rep. p. 19, 94.


Complaint Court. (4)
The Court of ~omplaint in this island has a summary


jurisdiction in respect of demands not exceeding 1000
dollars (01' .t500 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 reeeives are those allowed by
the docket of 25th N ovember, 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 01 Alcaldes in Ordinary. (5)
The Alcaldes in Ordinary (who, it will be observed, sit


with the Chief Justice in the Court of First Instauce of


(4) By the 22d section of the
Order in Council of the 23d April,
1831, the Court of Criminal Illquiry,
the Court of Audien!j'ia, 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 Susl)ended by
the order of the 20th J une, by the
23d section of which only four of
these courts, namely, the Court of


Criminal Inquiry, the Tribunal of Ap-
peal in al! cases of condemnation to
death, the Superior Tribunal of Ap-
peal of Civil Jurisdiction, and the
Tribunal of Royal Audien"ia, are abo-
Jished. During the continuance of
the suspension of the first order, the
three last conrts mentioned in it as
abolished, will of course cOlltinue their
fUllctiolls. See ante, 2r4, 280.


(5) See the last note.




TRINIDAD. 319
Civil Jurisdiction, as assistant judges,) are also empowered
to hold a separate comt by an Order in Council of 1 st
September, 18::22, which, in clauses 18th and 19th, directs
that "the alcaldes in ordinary shall, by turns, two days in
each week, or oftener ifnecessary, sit in open court for the
hearing and determining of aH such petty thefts, assaults,
bl'eaches of the peace, contraventions of the police laws
and regulations, and aH similar misdemeanors, as by the
chief of police, or by his assistants, shaH be brought be-
fore them; and the alcalde shall have power to adjudge
theprisoner, on a verbal and summary hearing ofthe parties
in the prisoner's presence, to a fine not exceeding .ESO 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."


The alcaldes in ordinary are appointed annualIy by the
illustrious board of Cabildo, and confirmed by his Excel-
lency the Governor, as president of that board.


They are chosen from among the most respectable in-
habitants of the colony. They receive no salary, fees, or
~ other emoluments.-Trin. Comm. Rep. Q~., 21.


Alcaldes de Barrio. (6)
By proclamation of 19th January, 1814, jurisdiction is


given to the A lcaldes de Barrio in their several districts,
to entertain civil causes or pleas of debt to the amount of
twenty dollars, with an appeal to the chief judge if made
within five days after sentence.


The Alcaldes de Ban'io are also officers of the govern-
. ment for the police of the town.


They are elected by the illustrious board of Cabildo,
from amo.ng the freeholders of the town, and continue in
office for one year.


They receive no salary or emoluments.-Trin. Comm.
Rep. 21, 101, 181.


Escribano, o'r Registrar oi tke Supreme Court.
This officer is appointed and removeable by the Gover-


nor. No confirmation from home is necessary.


(6) See the flote (4) ill tile precediflg page.




320 TRINIDAD.
He has río salary, but is paid by fees. He records the


proceeding& of the court, takes minutes of legal points,
signs orders, and issues the notices of these orders to the
several parties in the cause, (for which he eharges by the
tariff,) and in cases of bankruptcy 01' concurso he notifies
the fact to each creditor, however trifling his claims,
(which is very burdensome to the estate.)-Trin. Comm.
Rep. 24, 178.


Registrm' of Deeds and Wills.
This is a patent office, and ¡ts duties are discharged by


a deputy. He is paid by fees and acts as clerk of the
couneil, which duty is attached to his office of registrar.-
Trin. Comm. Rep. 25, 182, 196.


Alguacil, Mayor, 01' Provost frfarshal.
This officer is appointed by the Governor and remova-


ble by him. He gives security in .f2000.
He is paid by fees according to the tariff, and executes


process, &c. in the differeJ]t districts of the island, by de- \
puties appointed by him.-':'Trin. Comm. Rep. 26, 1B6.


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
eertain municipallaws and regulations.


Its powers originally were very extensive, and certain'
of its members (for instance, the Regidors, who had equal
rank and honours with the nobility,) were entitled to great
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 01' unjust, until a representation
could be made to the Sovereign; and on the proposed
introduction of the Orrler in Council, 10th March, 1824,
fol' regulating the treatment of slaves, application was ac-
tually made to the Cabildo to exercise theil' powers, which
they very prudently declined to do. Since, however,
Trinidad has been in possession of the English, and a
councíl has been established, the greater part of those




. f ..


TRINIDAD. 321
functions (of such at least as under the new system it was
found desirable to retain,) have been tr:lllsferred to the
Govel'llor and Councí!. And the powers of tbe Cabildo
seem at present to be confined entirely to matters of mi-
nor police, such as to regulate the price of provisions, the
cleanliness of the markets :llld streets, the construction
and repairs of high-roads and bridges, &c. &c.


The Cabildo is composed of the Governor, two Alcaldes
in Ordinary, the ·Procurator Syndic, and ten Regidors.
Of the latter, two have becn rendcred perpetual by the
prcsent Govel'llor, the others, like the alcaldes, serve in
rotation, four going out of office annually, after having, in
conjunction with the remainder of the Cabildo, elected
four others as their successors, whose names are then
submitted to the Govcl'llor for his approval.-Trin. Comm.
Rep.50.


Caol Attorney.
This officer is appointed and remov~able by the Cabildo,


01' city corporation; he has a salary vi ±:300, but no fees.
He is liable for escapes. In certain cases he acts on be-
halr of prisoners as their advocate, though he is not a
lawyer. He never receives a prisoner witbout a written
c"'t1mmitment stating the nature of the offence.-Trin.
Comm. Rep. p. 27.


Persons of Cotour.
Free persons of colour can sue and be sued, and labour


under no disqualification as regards their evidence.
They are tricd for capital and lesser offences as white


and other persons are, and in the manner prescribed by
the Order in Council, 16th September, 1822.-Rep.
Trin. Comm. 28.


Particular Laws.-Ganancias.
The right of the wife to a partnership in the property


acquired during marriage by onerous title, is termed
"ganancias." Thi!¡ right is founded on the partnership
01' society supposed to exist between the husband and the
wife; because she, bringing her dote, gift, and parapher-
nalia into co-partnership, and he, bis estate and property
which he pos ses ses, it is directed that the gains resulting


y


; Seas
• . ¡~




TRINIDAD.


from the joint employment of this capital be equally di-
vided between both partners.


"Ganancial property is all that which is increased 01'
mulfiplied during marriage by onerous cause 01' title, and
Bot that which is acquired by a lucrative one, as inherit-
ance, donation, &c.


"Immediately upon a divisÍon being made of this ga-
nancial property, each acquires an absolute dominion as
to their moieties.


"AH property of the husband and wife is presumed
common 01' ganancial, until it be proved to be the sepa-
rate property of eithel'.


'. Pl'ize money obtained in wal' by the husband is not
ganancial, unless his outfit as a soldier fol' the campaign
was at the joint expense of husband and wife. .


" The fruits, proceeds, 01' rents of evel'y description of
property belonging to both husband aml \Vife, are con-
sidel'ed gananciales.


" The crime of one cIoes not forfeit the property of the
other in the ganancial partnership.


" Gains and ]osses being common, the debts contracted
during marriage are to be paid out of tbe common pro-
perty.


" But if the wife renounces the ganancias, she <loes not
pay half the debts." Nrwa,.-Recop amI Fue Real.-Trin.
Comm. Rep. 34, 35. ~ ,


Wills.
It appears that there is no Court of Ordinary at Tri-


nidad, hut that wills are pro ved before the Governor
under the 8th clause of the proclamation of 5th February,
1814, and that there is no provision fol' 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 01' nuncupative will ought to be
executed befo re a public escribano ang three witnesses (7)


(7) By Order in Conneil, 8th
J une, 1B16, al! wills, &e. made witlJill
(he island of Trinidad shall be atlestC'd
by three male witne"es, domiciliated


inhabitanls of lhe place and qua,"ter
whercin the same .hall b~ made, 01'
tW(I snch witnesses and the command·
nnt of such quarter.




TRINIDAD.


inhabitants j and if thc testator is blind, five are neces-
sary j and if there is no escribano, five witnesses of the
place are necessary, 01' seven non-residents. The closed
01' written will, which is made in secret, is delivered to the
escribano, signed on the outside by the testator and se-
ven witnesses, with the attestatian of the escribano.


The spendthrift cannot make a testamento He shall
be prohibited by the judge from alienating his property.


With respect to the mode in which a testator may dis-
pose of his property, it is an indisputable principIe of the
laws of Castile that if he have children 01' grand-children
he must necessarily institutc tbem his heirs, and can only
dispose in favour of strangers (among whom collateral re-
lations are included) of the remnant, of one-fifth of his
property. In default of these descendants he must devise
his property in favou!' of his ascendants, father, grand-
father, &c., with the exception of one-thil'd.-Johnston's
Inst. of the Laws of Spain, 110 to 115.:,


JJIoTtgages and Il!JIJotltecations.
These are treated alike by the Spanish law, except


that the subject of mortgage is considered incapable of
delivery, while the subject of hypothecation may be de-
livered.


The persan to ",hom the pledge is made acquires,
1st, a right in the thing constituted a security for the sum
due; 5?d, It is to be considered a species of alienation;
3d, The credito!' may seU the pledge (upon notice) unless
he is paid the debt.


The thing being once mortgaged cannot be mortgaged
a second time, except to the amount which it may exceed
in value the first debt. He who mortgages property
already mortgaged shall be fined, if he acted from bad
faith.-Johnston's 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 iñ upon the title of anothel' can never
prescribe against him,) and the salaries or wages of apo-
thecaries, spice-vendors, and other tradesmen 01' mecha-
nics, in respect of their wares and work, and likewise ,as
to the fees of advocates and solicitors.


\ ' q ,,'




324 TRINIDAD.
. There is a prescription of ten years in which real pro-
perty is acquired among persons present, and in which
the executive action is barred. Another of twenty yeal'S,
which pr~scribes the right of absent persons to real pro-
perty, and the personal action and execution granted
thereon.


Actions, real, hypothecary, and mixed, are prescribed
in thirty years.-Johnston's Inst. Laws of Spain, 105 to
109.


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 p,'eventivo; and
any person, whether a trader 01' not, may adopt this
measure.


But when the cession takes place at the instance of the
creditors, it is termed concurso necessario. In boíh cases
the property is distributed, and the creditors ranked
under a judicial proceeding which is termed a concursus
creditorum. - I


By Order in Council of 5th August. 1822, an future
privileges 01' preferences, for repairs or supplies, are de-
clared to cease; and by the same order, l'eciting the
previous ones in this matter, all sugar, coffee, cocoa, 01'
other estates are rendered liable to be taken in execution
witbout regard to tbe value of the esta te 01' tbe amount of
its debts, but it gj.-es the court a discretionary power of
staying- the sale of the whole, 01' any part thereof, under
equitable circumstances.


Sorne doubts having at'isen un del' 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 Februal'Y 92d, 1825, declared that it should
not be competent to the court to stay the sale of the whole
01' any part of tbe estate at any time fol' a longel' period
than six months, Ol' fol' more than two years on the whole.
- Trin. Comm. Rep. 51, 52.


Eucution.


AH instruments, pl'omissory notes (vales), amI writings
acknowledged by the debtor, are entitled to pl'ompt execu-




TRINIDAD. 325
tion. In the same manner are bilis of exchange, as against
the acceptor, after being accepted, and against the drawer,
provided they be protested and he acknowledge tbem.-
Johnston's Institutes of the Laws of Spain, 35~, 353.


Costs.
It appears tbat the advocates charge what they pIease


for retainers, conferences. writing of Ietters, &c., and that
such costs are never taxed.-Trin. Comm. Rep. 53.


Cot·oners.
The office of Coroner does not exist in this coIony.-


Trin. Comm. Rep. 54.


Arrests.
There is no power of arre~t in this coIony upon mesne


process, except on the authoritl of the Roman Iaw, when
the party is susper:tus de fuga. 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.


!




( 3;26


FlONDURAS. (1)
-


THlS possession of Great Britain, though one of consider-
able extent and importan ce, has' not yet been dignified
with the name of a colony. On one occasion it was ex-
pl'essly deciclcd not to be entitled to the appellation of a
territory belonging to His Majesty, at least so fal' as the
Navig~tion Acts wel'e concerned. (Chitty on Commerce,
vol. 1, p. 636.) 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
in America. The recent Navigation Acts have removed
this disabilíty, and llaye in terms l'ecognized the settle-
ments at Hondmas as "British." 1'11e 3 & 4 Wm. 4,
c. 54, s. ] 4, expressly enacts "that aH ships built in the
British settlements at Honduras, and owned and navigated
as British ships, shall be entitl~d to thc privileges of Bri- '
tish registered ships il) a11 direct trade between the
United Kingdom 01' the British possessions in America
and the said settlements."


The settlement at Honduras is governed by an officer
styled a Supcrintendant, who is appointed by the Crown.
A constitution, sanctioned by an officer in commission
under His Th'lajesty, framed many' years ago, has been
since tacitly at least recognized by the Crown, and is
still acted upon; amI as a decisive mark of the sub-
ol'dination of the settlement to the power of this country,
appeals are entel'tained by the Pl'ivy Council from the
decisions of the COUl'ts in the settlement, one of which
has been constituted by two acts of the British Parlia-
mento (Q) A1though, therefore, it still continues inferior
to oUt' acknowledged colonies in titular dignity, it may
well deserve some notice in tbis place.


The settlement of Honduras is situated in the province of
Yucutan, between tbe ;:,eventeenth and nineteenth degrees


(1) See "ule, p. 1, 11. ( j) alld p. j 9. (2) 3 Rep. W. 1. C. 2d series, p.
J, 1,1, Scc po!>t, 3~~}.




HONDURAS. 3Q7
of no1'th latituuc, and the eighty-ninth amI ninetieth degrees
of west longitude. The line which ineludes it commences
at the mouth of the Rio Hondo, foUows the cou1'se of, and
afte1'wards 1'uns paraUel with that stream for about thirty
miles, then turning southward passes through N ew River
Lake in a straight line to the river Balize, up which it
ascends for a considerable distan ce, 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
ami Spanish governments on behalf of their respective
subjects. On the general pacificatioI), which took place
in that year, the King of Spain agreed to aUow the set-
tlel's to reside within a certaia distance on condition that
all the fortresses then existing should be destroyed, and
that no other should be cl'ectcd. On his part he undel'-
took, in case of a wal', to grant six months for the removal
of British pl'opel"ty. ,


In 1779 this undertaking was gl"ossly violateu. At the
close of the war which then ensued, the settIers, though
they obtained no indemnity fOl" the previous injury, were
l'e-established on the same terms as fOl"merly, and thc
l'ivers Balize and Hondo were assigned as their limits.
By a convention which \Vas coneluded with Spain
in 1786, these limits were extended southward to the
Sibun, in consideration of the British relinquishing their
establishments on the :Mosquito shore. Honduras was
not mcntioned either in thc treaty of Amiens 01" at the
general pacification in 1815; but though the l'ight of
Great Britain was not on either of thcse occasions recog-
nized, neither \Vas it disputed; and the fact that it was
not expressly referred to, affords a strong ground for
believing that it \Vas considered, by the persons who
negociated these treaties, as a settled acquisition of Eng-
land, and therefore no more required to be tecognised as
such than did Barbados or Jamaica, 01" any other long


(3) '1 D. Edw. 'tM.




328 HONDURAS.
acquired and undisputed possession. There seems there-
fore but little ground for the alarm felt by the settlers at
not having been mentioned at the peace of Amiens, nor
the doubts that sorne of them are believed to have enter-
tained in consequence of the similar omission of all notice
of the settlement in the treaty of 1815, the more so since
the c;ondition 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 acode of ...
regulations presented to them by Sil' 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.


In pursuance of these regulations five of the principal
inhabitants were chosen from amongst themselves as ma-
gis trates, who were invested with power and authority to
hold courts of justice, and to tryand determine all dis-
putes. A jury of thirteen was chosen in the same manner
for their assistance, and the determination of tbis court
was declared to be final.-3 Rep. 2d series, W. l. C. p. 3.


They fUl'ther covenanted together to abide by and
obey all such orders and l'egulations as might thereafter
be made by the justkes, in full council, being first ap-
proved of by a majority of the inhabitants; and that the
commanding officer fol' the time being of any of His Ma-
jesty's ships of wnr which might be sent thither, should
have fun power to enforce and put the aboye 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 WiUiam Burnaby's name,
was printed at the expense of the settlNnent 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 namea period, further additions to this
code have from time to time been made by the inhabitants
at their public meetings,-by committees chosen for that
purpose,-and by the magistrates presiding in the several
tribunals which were cl'eated as aboye mentioned j which
rcglllations, thol1gh of course they cannot exactly be con-




HONDURAS. SQ9
sidered as having the effect oflaw, any more than the ori-
ginal code, are yet by common consent of the inhabitants
deemed to be binding 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 int:.:'lducing a new l'egulation 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, calling a meeting oi" the ma-
gistrates and inhabitants of the place, on the particular
day expressed in the notice, which~ it is understood must
.be stuck up at least twenty-one days before the day
named for the meeting. On the arrival of the day ap-
pointed for 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 determine the question; after which, if the measure
agreed to at the meeting receive the assent of the Super-
intendant, it is considered a law of the settIement, 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
of the colonies visited under the commission.-3 Rep.
w. 1. C. 2d series, p. 4.


COURTS IN GENERAL.


The only court th;lt can strictly be said to be IegalIy
constituted in this settlement is that created under authority
of the British Acts of Parliament 53 Geo. 3, c. 53, and 59
Geo. 3, c. 44, for the trial of murders, manslaughters,
rapes, robberies, and hurglaries.


The other tribunals in which criminal and civil justice
respectively are administered, are courts instituted by
agreement of the inhabitants 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 aboye the sum of


í
; ¡
!
J


t
I
l' ¡
f
i ¡
I ,


,


r
'".




330 HONDURAS.
cl'1O, trespasses, assaults, and batteries, actions of damage,
and attachments.


The Summary COUl't for the recovery of debts of 1'10
and under, and assaults of a minor degree.


There is no Court of Vice-Admiralty here; and in
answer to questions on tbis head, the commissioners were
told tbat when cases occur requiring the decision of such
a court they are sent to Jamaica, to tbe 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 tbeir 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 in existen ce to the present period; but since the
granting protection by the British government it has been
invariably the custom to obtain the sanction of Bis Ma-
jesty's Superintendant, who possesses the powel' to allow
01' disapprove of such part as he shall deem tit." This is
the form of government created by the inhabitants them-
selves and described aboye.


The English act, 5th Geo. 2, c. 7, "fol' tbe more easy
recovery of debts in the plantations," is considered in
force here, and " practicalIy acted upan."


The writ of habeas corpus is not known in the settle-
ment, and in the event of illegal ill1prisonment the usual
method of redress is dcscribcd to be "by an action of da-
mages issued out of tke Grand Court, and addressed to
the provost marshal general."


Bail is said to be ,Ildmissiblc here {, according to the
law of England."


The principIes 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 se cm erroneously, see ante,
S9Z7,) to possess no territorial rights there.


The laws which in England govern the distribution ofr
personal property in cases of intestacy, are aIso acted
upon here, with this peculiarity, that where no legitima te
llCir appears, "iIIegitimacy inhcrit" by next of kin."


In the event of pél'SOnS in the settlemcnt dying without
a wiII when the (known) heil's 01' next of kill are absent,




HONDURAS. 331
the-magistrates, "acting as a Court of Ol'dinary, issue
]etters of trust," and take "security from the trustees
and examine their accounts annually."


They al8o, in the execution of the same functions,
exercise the power of appointing guardians when neces-
sary, taking bonds to ensure the faithful administration of
their trust, examining their accounts, &c.-3 Rep. Qd se-
l'Íes, W. l. C. p. 4.


In the case of wills, the only proof requireu seems to be
that of the testator's signature before thc magistrates acting
as a Court of Ordinary, if the will be in the settlement; if
in a foreign country, before a competent tribunal. Wills
are required to be recorded.


Nuncupative wills are admitted agJ:.eeably to the prac-
tice in England; and there are no restrictions or limita-
tions to the power of disposing of property, real 01' per-
sonal, by will.


As regards powers of attorney, if they are executed
according to the forms of the country in which they are
made, they are he1d good and valid in the settlement.


N o counsel, attornies, 01' solicitors act professionally in
any of the courts here, nol' indeed are tbe1'e any in the
settlement, as no encouragement is aflorded them, the
parties interested in the suits appearing and being heard
in persono


Persons incapable of paying the necessa1'y expenses of
a suit are allowed to prosecute and defend their claims in
thc courts at the expense of the settlement.


No marriage can be celebrated here wiehout a license
first obtained-from His Majesty's Superintendant 01' pub-
lication of the hanns; and tbe widow is considered as
entitleu to one-thi1'd of the whole property of the deceased
after payment of his debts.


The rights of the erown are, it is said, vested in the
person of the Superinttndant. .


The courts of the settlement will respect and confirm
the judgments of foreign courts of competent jurisdiction,
in aH cases except that of outlawry. . Six months' resi-
dence in Honduras is required before a stranger, though
a British subject, is considered to have acquired a right of
estabIishing himself in trade as an inhabitant.


There are no regulat.ions in this settlement similar in
principIe or effect to the English bankmpt ]aws.


Twenty-one days' 110ticc of intention to depal't is re-




332 HONDURAS.
quired to be given before a person can leave thOe settle-
ment, and it is also necessary to obtain a 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 tbis case, at tbe superintendant's discretion, to
give security to answer condemnation in costs and da-
mages, upon subsequent judicial proceedings on the part
of the person whose departure is so prevented.-3 Rep.
2d series, W. l. C. 5.


Higlt or SlIpreme Commission Court.


The judges (none of whom, it may be remarked, receive
any salary or other emoIuments of office,) are directed by
the act 59 Geo. 3, c. 54, to be "such four 01' more dis-
creet persons as tbe Lord Chancellor of Great Britain,
Lord Keeper, or Commissioners for tbe custody of the
Great SeaI of Great Britain, sball from time to time think
fit to appoint" in the manner therein specified. By vir-
tue of this power, a commission under the great seaI 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 comt.


The judge advocate, wl:1o is also appointed by the
judges of this court, conducts aIl prosecutions. A grand
jury, to tbe number of tbirteen, is impanneIled, 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,. ana are sworn by t)le
same form of oath ai!; is prescribed in EngIand.


The bilis of indictment are sent to them from the eourt
by the hands of the officer of poliee, who is sworn as
keeper of the granel jury.


lt appears to be tbe practice of the grand jury to exa-
mine witnesses, both on the part of the Crown anel the
accused.


A petit jury, to the number oftwelve, is also summoned
for this eourt by thc provost marshal general; they are
chosen in the usual way by ballot, and liiworn before tbe




HONDURAS. 333
court; the prisoner having the same power of challenge
in respect to them as is accorded by the law of England.


The prisoner may likewise enforce the attendance of
his witnesses by a writ of subpccna. It seems to be
unusual, except in particular cases, to allow witnesses
their expenses.


The Superintendant of the settlel11ent, acting as presi-
dent of the court, pronounces its sentence; and he, it
appears, has hitherto exercised the power of reprieve and
pardon.


A prisoner when acquitted is il11l11cdiatE'ly set at liberty,
and is liable' to no charge for fees, the public paying aH
expenses.


The following are the officers of this court, who are all
appointed by the judges thereof; ¡;iz. the judge advocate,
the clerk of the court, the assist,mt clerk of the court, the


# provost l11arshal general, and the police oflicer.
The salary of the judge advocate i8 f\xed at ±:50 (cur-


rency) for every comt that i8 held; the other officers
have no salary, but their ernolul11ents arise from fees.-
S Rep. Qd series, W. 1. C. p. 6.


Grand Court.


The magistrates who act as jndges in this court, are
appointed annually to the number of seven; but three are
held suflicient to form a court. They are chosen from
al110ng those inhabitants considered best qualified to fill
the situation, and their services are gratuitous. They sit
three times a year, in the town of Belize, taking cog-
nizance as a comt of criminal jurisdiction 01' all offences
not specified in the commission constituting the Suprel11e
Co~rt, with the exception of minor assaults, which are
tried in the summary courts; and, as a court of civil ju-
l'isdiction, "of all matters of debt aboye the sum of ±:1O,
trespasses, actions fol' damages, &c."


The proceedings of this court, on its criminal side, are
similar to those in the Supreme Coml11ission Court, with
the exception that there is no grand jury, though there is a
petty jury. Its judgments have hitherto been final, but
the prisoner is not debarred the privilege of appeal to Bis
Majesty's Superíntendant. It secms not to be the prac-


¡


t :.
(. '




334 HONDURAS.
tice, except in particular cases, to aUow their expenses to
prosecutors 01' witnesses.


As a court of civil judicature, the magistrates sit three
times ayear, taking cognizanee, as has been already sta-
ted, " oí aH matters of debt aboye the sum oí .f:1O, tres-
passes, aetions for damages, &c."


lt also tries titles to land (4) by writs of replevin. Ae-
tions, however, for the recovery of debts, are the most
prevalent; and debts by speeialty and on simple contraet
are proved in the usual way.-3 Rep. 2d series, W. l.
C.7.


AH cases are decided by juries, the jurors being chosen
from the white p,opulation, British subjects, and domici-
Hated in tbe settlement.


N o arrest before judgment is permitted here.
Tbe awarding the costs in civil actions is considered to


be the pl'ovince oí tbe jury, who "usually express the
same in their verdict."
. Costs, it is said, are limited by the Iaw of the settIe-


mento
The court considers itself entitled to grant equitable


relief against the strict rules of law, when a case is made
out for the exercise of such power. .


Five hundred pounds is the lowest sum in dispute for
which appeals to tIte King in Council are held allowable,
aecording to tIte general tenor of His Majesty's instrue-
tions,in tItis respect, to tIte Governors of his several
eolonies.


There is no regulation in this settlement in the nature
of an lnsolvent Act, nor is there any time prescribed for
the diseharge of prisoners whose debts are under .f:lOO.-
3 Rep. 2d series, 'V. l. C. 8.


Summary Court.


One of the magistrates of the settlement acts as judge
of this court, and sits once a month in the town of Belize,
to dispose of actions where the sum in dispute is under
.f:1O, in which case a jury of tluee is impannelled. The
same judge also disposes of assaults and minor offenees,


------------- -~~_.-


(4) Possessory titles only. Scc ante, 327, :l;)(l.




HONDURAS. 335
when the jury must be composed of twelve. persons.-3
Rep. 2d series, "VV. 1. C. 9.


Free Coloured Persons.
The only disabilities experienced by this class of the


inhabitants of Honduras is that they are not considel'ed
eligible to fill the oflice of magistrate 01' juror. The mode
of proceediog agaiost them in the criminal court is pre-
cisely similar to that adopted in the case of other free
persons.


N o commixture of the blood of whites with that of co-
loured persons is considered here, as it is to a certain ex-
tent in .Jamaica, to give a title to freedom.-3 Rep. 2d
series, ·W. 1. C. 11.


Magistrales.
The magistrates of this settlement are annually elected,


to thc number of seven, at public mcetings of the inhabi-
tants themselves, and their services are gratuitous. Their
elcction is subject to tbe approval of tbe Supcrintcndant,
who would remove them in the event of misconduct.-3
Rep. 2d series, W. I. C. 11.


Provost Marsltal and Gaol.
The provost marshal of this settlement holds his ap-


pointment under a commission from the Superintendant,
who would remove him in the case of neglect of duty 01'
misconduct.-3 Rep. 2d series, W. l. C. 11.


Clerk of tite Suprerne and Lower Courts, and Keeper
of tite Records.


These oflices are executed by the same individual, in
conjunction with an assistant; both of them are appointed
by the Superintendant at the recommendation of the ma-
gistrates.


Before registering a deed 01' will, proof is required of
the signature, cither of the person who has executed the
same, 01' of the subscribing witoess 01' witnesses thereto,
and ¡¡fter rcgistry the original instrument is returned, on
application to the party who had lodged it.


,


11




336 HONDURAS.
N o wills, it is stated, are received for record' until afte,r


the death of the testator.-3 Rep. ~d series, W. J. C. 1~,
13.


Coroner.
By the custom of this settlement the junior magistrate,


01', in his absence, nnother of the magistrates, performs
the duty of coronel'. His services are gratuitous. The
formalities usual in England seemedto be observed on
the proceedings on inquests here, and the coronel' is
vested with the powers of the same oflicer 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 thc settlemcnt, 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-
Íntendant is annexed.-3 Rep. ~d series, W. 1 C. 13.


Police Ojjicer.
This oflicer is appointed and removable by the Superin-


tendant, with a salary of t:60 and eertain fees. In addi-
tion to the funetions usually preseribed to su eh an oflieer,
he has eharge of the prisoners confined in the gaol, and
superintends 'aH punishments and earries into execution
all sentenees of the Criminal Court, exeept those de eree-
ing death.


He also exeeutes all thc oflieial orders of the Superin-
tendant and the magistrates.-3 Rep. 2d series, W. 1. C.
13.


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 enforeeable by writ of execution.-3 Rcp. ~d se-
ries, 'W. l. C. 13.




HbNDUR.\S.


Appeals.
No appeal willlie to 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 are not.
included. Only one instance of such appeal, it appears,
has ever been known here, and in that case" it was never
decided upon."


The commissioners say they could not collect with cer~
tainty whether any intermediate appea), or for what sum,
would lie to the Superintendant.-3 Rep.2d series, 'V. 1.
C.14.


1>





( 338 )


JAMAICA.
--


JAMAICA, which, according to Mr. Bryan Edwards, (1)
"since the 1088 of America, has always been jU8tly
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. (Q) The name is said to be Indian, and to signifya
country abounding in springs.


Jamaica is situated in the Atlantic Ocean in about 18"
lQ' 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, cofiee, and cotton; but it producfls 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 hreadth. Accord-
ing to MI'. Edwards's statement ] ,740,000 acres werc 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 tOWR and thirteen villages. The
town is that of Sto Jago de la Vega or Spanish Town, the
capital 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 J ustice are aho 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
authorities there referred too


(4) 1 B. Edw. 237 to 260.




JAMAICA. 339
former was founded in 1693. Cornwall contains five
parishes, three towns and six villages. The towns are
Savanna le Mar, Montego Bay, and Falmouth.


HISTORY AND CONSTITUTION.


Columbus took possession of the island on the 4,th of
May, 1494. N early nine years afterwal'ds, on the 24th of
June, 1503, he was shipwl'ecked on this island in a place
called to this day Don Chl'istopher's Cove. He remained
on the island aboye twelve months. When, after the death
of Columbus, the claims of his son were tardily recúg-
nized by an ungrateful sovereign, Don Diego Columbus set
out for his government of Hispaniola, to which Jamaica
was then attached, and he appointed as his deputy in Ja-
maica Juan de Esquivel, who, as he was the first, so he
seems to have been the best Spanish Governol' of the
island. This governor founded a city, which he called
Nueva Sevilla, and which appears to have been destroyed
or deserted about the year 1525. Another city was then
founded by Don Diego Columbus, who gave it the name
of Sto Jago de la Vega, a name that about twenty years
afterwards was adopted as the title for a marquisate for
his eldest son and heir, as one of the terms on which that
noble person surrendered to the Empel'or Charles V. the
almost regal privileges which had been in form conferred
upon Christopher Columbus, but which, though not capa-
ble of being legally disputed by the Spanish monarchs,
had been shamefully usurped for the advantage of their
favourites. The city is now called Spanish Town and is
the capital of the island. The Spaniards do not appear
to have successfully developed the resources of the island,
for we are informed that at the time of its capture, in
May, 1655, by the English force s sent out by Cromwell,
there were only about 1500 inhabitants, including women
and children; that many of the valuable commodities
which Jamaica has since produced in such great abun-
dance, were either altogether unknown, 01' very scantily
cultivated; and that the principal export, besides cacao,
consisted of hogs' lard and hides. For some time aftel' the
capture of the island the English remained under milital'y
jurisdiction. A most interesting account of the condition
of the island, and of the effol'ts made to settle and im-
prove it by the Protector, is to be found in the admirable


z 2




340 JAMAICA.
work of Mr. Edwards, 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
having zealously aud nobly seconded his efforts. Imme-
diately aner the restoration, Charles Z, confil'med Colonel
D'Oyley in the command by a commission which bore date
the 13th February, 1661. The commission directed him
to erect Courts of Judicature, and, with the advice of a
council to be elected by tbe inhabitants, to pass laws
suitable to the exigencies of the colony. Lord Windsor
was afterwards appointed Governor, and carried over a
proc1amation containing a dec1aration by the Crown that
all free born subjects in Jamaica should, from their re-
spective births, be reputed to be free born denizens of
EngIand. By the treaty of lmO, 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 "Vest Indies 01' any part of America,
which the King of Great Britain and his subjects did then
huId and possess." In 1678 an attempt was made by
Charles to govel'l1 this island by laws passed in the Privy
CounciJ. The scheme is described by Mr. Edwards (5)
in the following words,-" A body of laws was prepared
by the Privy Council of EngIand, among the rest a bill
for settling a perpetual revenue on the Crown, which the
Earl of Carlisle was directed to off el' to the Assembly, re-
quiring them to adopt the whole code without amendment
01' alteration. In future the heads of all bills (except
money bilIs) were to be suggested, in the first instance, by
the Govel'l1or and Council, and transmitted to His Ma-
jesty to be approved 01' rejected at home; on obtaining
the royal confirmation, 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-


(s) 1 B. Edw. 221. (6) Scc ante, 178.




JAMAICA. 341
sembly lawfulIy established,-their titles to their lands
could not be impeached undel' a fraudulent grant to a
court favourite,-and there had been a degree of re-action
in the minds of the English people, who were no longer
so eager to please royalty at the expense of all that was
just 01' 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
object in view was to obtain from Jamaica the settlement
of a perpetual l'evenue, and this object was adopted by all
the successive ministries from the time of Charles 2. to
that of Geo. 1, and was constantly, but vainly, endea-
voured to be enforced. At length, in 17528, a compro-
mise was effected. The Assembly consented, upon cer-
tain conditions, to settle on the Crown a standing irrevo-
cable revenue of .1'8000 ayear. The first of these condi-
tions was that the quit-rents arising within the island (then
estimated at .i'1460 per annum) should constitute a part
of such l'evenue. The second and third conditions were
of more importance. In order to compel submission to
their will the different ministries had recommendecl the
Crown to suspencl from time to time the confirmation of
the lawso passed by the Assembly, and it was also left
in doubt whether any and what part of the common and
statute law of England was in force in the colony. It was
therefore stipulatecl, 52dly, that the body of theil' laws
should receive the Royal Assent, and 3dly, that "all such
laws and statutes of EngIand as had been at any time
esteemed, introduced, used, accepted, 01' received as Iaws
in this island, should be and continue the laws of Jamaica
for ever." The conditions were agreed to, and the Re-
venue Act of Jamaica was passed.


Each parish, 01' precinct, consisting of an union of two
01' more parishes, is governed by a chief magistrate, styled
Custos Rotulorum, and a body of justices unIimited by
law as to number.


The ves tries are composed of the custos and two other
magistrates, the rector and ten vestrymen. The latter are
elected annually by the freeholders.


The legisIatul'e of Jamaica is composed of the Captain-
General or Commander-in-Chief, of a Couneil nominated
by the Crown, eonsisting of twelve gentlemen, and a House
of Assembly, containing forty-three members, who are
eleeted by the freeholders, °namely, three for the several




342 JAMAICA.
towns and pllrishes of Sto Jago de la Vega, Kingston, and
Port Royal, and two for each of the other parishes. The
qualification required in the elector is a freehold of 1'10
per annum in the parish where the election is made; and
in the representative a landed freehold of 1'300 per an-
num in any part of the islaud, or a personal estate of
1'3000.


The Governor receives 1:2500 per annum out of the
1'8000 fundo A further salary of 1:2500 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. _


"tu c",,,ta:'u ",m",,,s,,,uüelO, the c()n\mand.e'C-~n-cb.~e\:, v¡~tb.
the advice and consent of a general council of war, (in
which the members of the Assembly have voices,) may
procIaim martiallaw. His power is then dictatorial, and
all persons are subject to the articIes of war. (7)


COURTS IN GENERAL, AND THE LAWS THEREIN.


The courts established in this colony for the adminis-
tration of criminal and civil justice, are the High Comt of
Chancery, the Courts of Appeal and Error, the Supreme
Court of Judicature, the Comt 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 Comt of Common Pleas in each Pa-
rish (except the parish of St. Catherine), and a.comt 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 facte stated in the ahove
aceount are taken from differem parts
of Mr. Edwards's History, vol. i. pp.
201 to 236, and 260 to ~85. See also
1 Rep. W_ I. C.!ji series, p. 6 to 10, for
a sketch of the constitution of Jamaica.


(6) Sec ante, p. 3 to 16, on the
general topie how far the colonies are


subject to the law of the mother
couutry.


1t may here be mentioned, that in
the extrae!s from the Commissioners'
Report on this Colouy, whellever the
word "acts" OCCUf, unless otherwise
expressed, Colonial Acts are meau!.


Whenever the word " pounds " oc-




JAMAICA. 343
statutes of England as had theretofore been acted upon
in Jamaica, are made perpetual; and it may be stated
generally, that the statute law of England (not being at
variance with the acts of the colony) is acted upon in most
cases of manifest convenience, as in the execution of wills,
limitation of actions, &c. But British sta tutes passed
since the 1 Geo. 2, are not in force, unless extended by
express terms to the colon y, "01' unless," added the At-
torney-General, "they relate to trade and navigation, 01'
to the law-merchant, 01' are in aid, 01' are amendments of
the common law."


The common law of England prevails as far as local
circumstances permit, and when it is not at variance with
the Colonial Acts.


COLLECTION OF LA WS.


The public acts are printed by commissioners appointed
by the legislature. They are complete to the close of the
session of 1825. Private acts remain in manuscript.


The originals or manuscripts of all acts, public 01' pri-
vate, are deposited and -recorded in the secretary's office,
where they may be consulted 01' transcripts obtained on
payment of the island secretary's fees, as regulated by the
56th Geo. 3, c. 19, and the 6th Geo. 3, c. 23.


Copies of the acts are sent to His Majesty's Secretary
of State for the Colonial Department, and to the clerk of
the Privy Council.-l Rep. 2d series W. l. C. 44.


Governor.


To an inquil'Y whether the Governor had the power
of committing and continuing persons in prison, and de-
laying their trial, the commissioners were told he had not,
" except," said the chief justice, "in the case of aliens,


curs, it is lo be understood, unless
otherwise expresscd, as mealling
"pounds currency of Jamaica." The
proportion belween tbal currency and
the cnrrency of England is as follows :
viz • .E1-10 of Jamaica currellcy is, in
orrlinary calculation, equal to .Ll00
sterlillg; and consequently .El cur-
rency represenls aboul 14s. 3d. ster-


ling ;-bllt in large transactions the
course of exchange varies, and is re-
gulated by Ihe currenl premium or
discount 011 hills drawII on Great Bri-
tain, a variation, which, cntirely inde-
pendent and exclusive of the ordi-
nary exchange abo ve mentioned, has
extended, at different periods, lo np-
wards of 30 per cent.




344 JAMAICA.
whom he may, under the provisions of the Alíen Act, 5
Geo. 4, c. 18, commit to prison and send offthe island."


He has no power in civil cases of staying execution or
suspending proeeedings j ~ut in ~riminal cases he can par-
don, murder and high treason only exeepted. In these he
may stay execution till the King's flleasure be kilOwn.
And Mr. Burge (the Attorney-General) remarked that, in
criminal proeeedings, as representative of the King, he
may direct the Attorney-General to entet' a nolle prosequi,
or, by virtue of His Majesty's prerogative, might respite
the execution of any sentence.


Particular Laws of tite Colony.
The writ of Habeas Corpus is issued by the chancellor


or judges of the Supreme Court in term time j and by the
chancellor and a single judge of the Supreme Court in
vacation. The 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 -6rst
instan ce appeal for l'edress 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.


Lands in the hands of the heir 01' devisee are assets,
said the Attorney-General, for the payment of all classes
of debts owing by the al1cestor or testator, by means of a
suit in the Court of Chancery 011 behalf of his creditors.
And the chief justice stated, that they stand charged with
speeialty and also simple contraet debts, when the latter
have been put on judgment and notice of a writ of extent
has been served pursuant to the 524th Geo. 52, c. 19.


He also referred to the (British) statute 5 Geo. 52, c. 7,
by which lands in the colonies are made liable to satisfy
all debts.


Personal assets, unless specially exempted, are always
applied in the -6rst instance in exoneration of the real
esta te j and in marshalling assets, slaves are considered
and dealt with as personalty, next after the assets purely
personal have been exhausted.




JAMAICA. 345


Foreign Judgments.


A judgment recovered in England, 01' elsewhere, by de-
fauIt, 01' in contradictorio, against a person resident in
tbe colony, would be considered merely as evidence of
tbe plaintiff's demand, and tbe chief justice believed tbat
a foreign judgment " has always been received as evidence
in the colony, without going into the merits on which it
was pronounced." The onus of impeaching the judgment,
said the Attorney-General, would devolve on the de-
fendant.


There is no judgment of outIawry in this colony.
The foreign appointment of guardians to minors, and


committees 01' curators to idiots 01' lunatics, would not give
any control ayer property in the colony.


The Colonial Court of Chancery would exercise original
jurisdiction in such cases; but examinants conceived, that
from comity 01' curtesy, it would (in the absence of any
other claim, said the chief justice,) confirm such appoint-
ment, and conform its orders to tbose of the Court of
Chancery in England.


The chief justice apprehended that the disability at-
tached to an idiot 01' lunatic, by virtue of tbe foreign
appointment, would cease on his coming to reside in the
colony, and that such foreign proceedings would be
merely considered by the colonial court as evidence tend-
ing to invalidate his acts.-l Rep. 2d series, W. l. C. 45.


And the Attorney-General remarked, tbat the Colonial
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-
cate, un del' an English 01' foreign commission of bank-
ruptcy, the chief justice declared that the colonial courts
would give no effect to them against a creditor not claiming
under the commission j but would, he apprehended, pre-
vent a creditor clai.g under it from pursuing the bank-
rupt personalIy.


On this subject the Attorney-General particularly re-
ferred to the judgment of MI'. Henry, when chief justice




346 JAMAICA.


of Demerara, in the case of Odwin v. Porbes (confirmed
on appeal in the Cockpit), and remarked that the late
chief justice of Jamaica had entirely adopted that au-
thority, and held that the defendant's English certifica te
barred the plaintiff from recovering a debt owing to him
in respect of a consignment made by him to the defend-
ant resident in England; and added, "1 take it now to be
the law of this country that a similar effect would be given
to a certificate when the debt was contracted in Eng-
land."


And as to the force of the assignment, it was his opinion
that " the title of the assignees would not be recognized
with referencc to 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 havíng notice of
the bankruptcy abroad,) 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 Caro 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 personaland 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 respeet 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 appreh~nded that the foreign eer-
tificate would be no bar to the suit of any colonial ereditor
desirous of proceeding personally against thc bankrupt
(then in the colony) for debts proveable, but not proved
under the foreign commission.


The chief justice eonsidered 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 similar to the aet 21
James 1, which makes personal property, left in the pos-




JAMAICA. 347
session and apparent ownership of a commercial person or
trader, (not the real owner,) liable to the creditor of such
person, in case of insolvency; neither is the aboye statute
ever acted upon in the colony.


Jl;Jarriage and Dower.
A marricd woman is entitled to dower as in England,


and to a similar provision (subject to her husband's debts)
out of the sIave property undisposed of in his lifetime;
also to the provisions of the sta tute of distribution.


To the fol1owing question " What would be the effect of
a marriage celebrated abroad, according to the law of the
country where the same was had, between persons of real
property in the colony, in regard to such property, in
cases in which the law of the two place s differs as to the
effect of marriage on such property?" the chief justice
replied, that the law of the colony would prevail.


In the case of the separate trading of a married woman
in the colony, it was believed that the decision of the court
would be governed by the common law of England.


In the case of a marriage celebrated abroad, where a
law prevails which legitimates children born before mar-
riage, such children would in this colony be considered
illegitimate.


There is no jurisdiction in this colony competent to
pronounce any sentence ol' divorce; and there is a positive
instruction to the Governor to withhold his assent to any
act of the legislature dissolving a marriage.-l Rep. W.
l. C. 2d series, 46.


Aliens.


Aliens can maintain personal actions; they cannot hold
real estátes, but they may lend money on mortgage under
13 Geo. 3, c. 10. That act provides that on failure of
payment the legal estate shan be vested in certain public
officers, in trust for the alien, and that he may sue in their
names.


Aliens may acquire the rights of British subjects by
complying with the terms of the British statutes for the
naturalization of foreign Protestants and others, but they
are generalIy acquired by letters of naturalization from the
Governor, under the provisions oC the S5 Charles 2, c. 3.




348 BMAICA.


Witls.
The statute of frauds extends to this colony, and a will


devising real estates or slaves in the colon y must be
executed according to the manner prescribed by that sta-
tute, and its formalities would, the chief justice conceiv!!d,
be requisite in whatever country the will might be exe-
cuted.


In the case of a will made in the colony, and bequeath-
ing personal property, the forms are tbe same as in Eng-
land; but he apprehended that personal property in the
island would pass under a will executed in a foreign
country according to the laws of that country.


Mortgages. - Registry.
Mortgages in this island are conventional. The estate


is generally conveyed in fee to the mortgagee, amI the re-
quisite forms amI solemnities are the same as in England.


lt is necessary to the validity of a deed that it be re-
corded in the secretary's office, and, as between the ven-
dor or mortgagor and the vendee or mortgagee, it may be
recorded at any time, and has, when recorded, l'elation
back to its date; but as between the vendee or mortga-
gee, and subsequent purchasers or incumbrancers, it must
be recorded within the time limited by law, (viz. ninety
days,) otherwise he willlose his priority over them, if they
have recorded their deeds within the limited time.-See
acts 33 Caro 2, C. 12, 4 Geo. ~, C. 5, and the 16 Geo. 2,
c. 5. It is not necessary to the validity of a will that it
should be recorded, but the practice is to record it like a
deed.


The chief justice was of opinion that neither actual
nor constructive notice of a deed to a party claiming under
an adverse title, would dispense with the necessity of a
registry.


No court in this colony has, it appears, jurisdiction in
any case, criminal 01' civil, to issue process of outlawry.
-1 Rep. W. l. C. 2d series, 47, 48.


Statutes qf Limitations.
The British statutes 31 Eliz. C. 5, s. 5, applying to penal




JAMAICA. 349
Ilctions, and the 21 James 1, c. 16, and 4 Anne, c. 16, s. 19,
respecting civil actions, extend to this colon y . The island
acts 10 Anne, c. 12, and 29 Geo. 3, c. 13, s. 4, declare
bonds, judgments, bills, mortgages, or other writings ob-
ligatory, to be void, if no payment has been made, 01' if
not demanded within twenty years from the time they be-
carne due, 01' from the last day of payment. There is a
saving for infants and persons under coverture or of un-
sound memory, who must bring their action within three
years arter the disability removed.


Arrest lor Debt.
A defendant may, in general, be arrested on mesne


process, in all actions upon civil contract or in tort, unless
coming within the privileges of the Island Act, 35 Caro 2,
C. 7. An 'affidavit múst be made of the cause of action,
and where the damages are uncertain, an order of the
court or of a judge must be obtained as in England.


Special bail is required in aH cases of arrest on mesne
process.


The exemptions from arrest on mesne process are mem-
bers of the legislature, persons possessing a freehold of
five acres planted, 01' a house worth .i' 10 per annum, and
generally such as are exempted by the law of England.-
See the aboye act 35th Cal'. 2.-1 Rep. 2d series, W. 1.
C.48.


Notice of Proceedings.
No proceedings can be founded in the colonial courts


upon process issued by them but served upon the party
out of the colony.


With respect to proceedings against persons residing
abroad, having property in the colony, it seems that if
they have never be en in the island, and are unrepresented,
there is no remedy against them: and if having been once
in the island they have left it, and are unrepresented, the
only mode of proceeding is by foreign attachment under
the.33d Cal'. 52, c. 523.


Counsel.
To the commissioners' inquiries respecting the qualifi-


cation and admission of counsel to practise at the bar in




350 JAMAICA.
Jamaica, the chief justice gave as his opinion "that per-
sons acting as counsel here .must have been pl'eviously
called to the bar in England."


An Ol'del' to sue in forma plluperis may be obtainnd
undel' the same circumstances and by the same mode of
application as in England.-l Rep. W. I. C. Qd series,
49.


Supreme Court 01 Judicature.


This court was established under the royal instructions
in the reign of Charles 2, and more completely secured in
its present jurisdiction by an act of the legislature of the
colony, 33 Cal'. :2, c. :23, s. 1.


Three judges are necessary to form a court. The
chief justice is appointed by the Gov'ernor and confirmed
by the King, and the other judges are appointed by the
Governor. 'rhey 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 (01' person exel'cising the
functions of governor) with the advice and consent of a
majority of the council.


'rhe chief justice's emoluments are fixed by the acts of
1 Geo. :2, C. 1, 43 Geo. 3, C. ~5, 47 Geo. 3, C. 13, and 58
Geo. 3, c. 18; and those of the present chief justice
amount to f:5720 currency pel' annum.


The Attorney-General says the present chief justice's
salary is f:5600 currency, besides 1'lQO currency from
His Majesty's appropriated revenue, and that the salary
of f:5600 is given in lieu of all fees, perquisites, and
emoluments.


Of the other three judges the two seniors alone derive
any benefit from theil' offices. They each receive salaries
of f:700 per annum curl'cncy, undel' 51 Geo. 3, c. 27, and
the two seniol's of the Assize Coul'ts f:300 cul'rency pel'
annum each, undel' the same acto


Since the yeal' 1803, the person appointed chief justice
has been a barristel'. Fl'om the summary of legislative
provisíons given by the Attorney-General, it does not ap-
peal' essential to the appointment of chief justice with a
salary of 1'4000 pel' annum, that he should be a barrister,
though he must be such to be entitled to the additional
salal'Y of .i'1600 currency.




JAMAICA. 351
The assistant judges are generaHy appointed from thé


resident gentlemen of the island, aml it is not required
that they should have gone through a COUl'se of legal
study.


By the (Colonial) Act of 33 Cal'. 2, c. 23, the court has
cognizance of aH pIeas, civil, criminal, and mixed, as fully
as the Courts of King's Bench, Common Pleas, and Ex-
chequer in England.


The same judges preside whether the court sits undel'
its criminal, civil, 01' revenue jurisdiction.-l Rep. W. I.
C. Zd series, 50.


Criminal Jurisdiction and Practice of the Supreme Court
of Judicature and Courts of Assize.


The chief justice presides at each of these courts, and
is assistcd by two assistant judges.


The chief justice says these courts have the same
power as the Courts of Assize, Nisi Prius, Oyer and Ter-
miner, and Gaol Delivery in England, and their sittings
cannot be continued longer than three weeks, hut are ge-
nerally closeel in eigbt 01' ten days.


The judgments anel proceeelings of these assize courts,
as courts of oyer and terminer anel gaol delivery, are
stated by the Attorney-General to be "inelependent of,
anel not under the control of the Supreme t;ourt of J udi-
cature."


The officers attending the Supreme Court on the cri-
minal ¡ide are the Attorney-General, Provost Marshal,
Clerk of the Court, anel Clerk of the Crown.


In the Assize Courts the deputies of these officers
attend, except in the Assize Court of Surry, at which the
Attorney-General anel Clerk of the Crown attenel .


.. The court," saiel the chief justice, "Ras the power in
cases of aggravated miselemeanor, immeeliatelyaffecting
the administration of justice, 01' the peace and happiness
of society, to make orders fol' the filing of criminal in-
formations;" but this power (he adds) is seldom exercised.
And the Attorney-General of this island has the same
ex oJjicio authority as the Attorney-Genel'al possesses in
England.


'rhe fmm of prosecution and the proceedings before
triaI, as respects the warrant, examinations, baH, commit-
ment, &c. are the same as in England.




352 JAMAICA.
N o fees are paid for preparing indictments for capital


offences, or for offences which the Attorney.General
prefers without the intervention of a prívate prosecutor.


A grand jury is impannelled at each of the sittings of
the Supreme Court of Judicature and Assize Court. Its
duties, &c. are the same as those of a grand jury in Eng-
land.


The defendant's counsel is allowed to make a full de-
fence for his client, by observations on the evidence.


Púsoners are never detained after acquittal for payment
of fees, and none are payable to thé law officers of the
Crown.-l Rep. 2d series, W. 1. C. 51, 52.


Civil Jurisdiction and Practice of (he Supreme COllrt of
Judicature and COllrts of Assize.


This court has jurisdiction, says the Attorney-General,
of all civil actions of which the Court of eommon PIe as in
England has cognizance, whether real, mixed, 01' per-
sonal; but no writ of right 01' other real action, except
that of partition and dower, is sustainable in this court.


Assurances by fine or recovery are not known in the
eolony; but there are conveyances of a certain description
that have the same effect.


The action of ejectment is also the only one resorted to
fol' the trial of title to lands.


The pl'actice and rules of pleading are the same as in
England, said the Attorney-General; dilatoryand sham
pleas are allowed, but he added that the latter are not fre-
quently resorted to; and the chief justice l'emarked that
a plea obviously dilatol'Y would be set asid e with costs.


Under the Island Act, 38 Geo. 3, c. 2S, s. S, the court,
01" a judge in vacation, may issue a eommission de bene
esse to take the examination of a witness about to leave
the island, or unable to attend the trial through age,
sickness, 01' infil'mity.-l Rep. Zd series, W. 1. C. M~, 5S.


The court also, undel' an authol'ity which it has as-
sumed, will issue a fol'eign commission where the witness
is abroad, on a eommon motion, at the instance of plaintiff;
but if applied for by defendant, an affidavit is required
showing the materiality of the testimony, and that it can-
not be supplied by any evidence in the island.


Debts by specialty 01' simple contract, where the cre-




JAMAICA.


ditor resides in EngIand, are proved by affidavit under
the city seaI, unuer the British Act, 5 Geo. Q, c. 7.


To an inquil'y ii'om the commissioners respecting the
jurisdiction of this court, without the intervention of a
jury, the chief justice stated, that it p<Jssessed the same
summary jul'isdiction over its officers, and over all pel'sons
fol' contempt, which is exercisecl by the courts in EngIand ;
and should an officer l'eceive money under its process, and
fl'audulently withhold it, or neglect to receive it, or to en-
force payment when he ought to have done so, the court
will, without the intervention of a jury, fix him with the
amount, and order him to pay it over to the party entitled
to it.-l Rep. W. l. C. Qd series, 54.


No writ of error can be brought on any order made by
the court in the exercise of its summary jurisdiction.


In case, said the Attorney-General, the subject be ag~
grieved, and can sustain so expensive a proceeding, the
only mode of obtaining redress would be by appeaI to the
King in Council.


The writ called the writ of execution is not an effective
writ, but is required to be lodged, for the purpose of ren~
dering the judgment a lien on the sIaves of the defendant.


The writ of venditioni is the effective writ for Ievying on
the goods and person of the defendant. I t unites the form
and efficacy of the writs ofjierijacias and capias adsatis ..
jaciendum. Thus, upon a judgment taken as of June
Grand Court, a writ of execution is Iodged, returnabIe the
first day ofthe succeeding October court, and immediately
after, the pIaintifl' may issue his writ venditioni exponas.
In judgment of ejectment the writ of possession does not
issue till twenty days after the judgment has been oh-
tained.-l Rep. W.1. C. Qd series, 55.


In order to give a judgment a priol'ity, it is necessary
that an execution should be Iodged. A subsequent judg-
ment on which a writ of execution was Iodged 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 scirefacias, the
praceedings on which are the same as in EngIand.


Exeéutions are taken out and suspended and used as
securities.


A judgment is assignabIe, and after execution lodged
becames a security upon sIaves.


AA


-'.




354 .JAMAICA.
,An equity of redemption is not liable to be sold under


an execution issued under a judgment at law.-l Rep. W.
r. C. 2d series, 56, 57.


Revenue Jurisdiction of the Supreme Court.
Thiil court derives its authority as a Court of Exehe-


,!uer under the aet of the island, 33 Cal'. 2, c. 23, s. 1,
before referred to, whieh established the Supreme 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 Caro 2, C. 22, S. 2. The juris-
dictíon 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 wbich real (01' personal estates, said tbe solicitor of the
Crown,) or slaves, is or are claimed as belonging to tbe
Crown, in consequence of the former proprietor having
died without leaving heir8 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 lettere of
pl'cference.


If during tbe twelve months after office found there
appears no claimant, judgment passes for the Crown. ,


The Governor grants tbe letter8 of preference to such
of the illegitimate descendants as wouJd have sueceeded
by descent, if legitimate, except where the proprietor has
left án invalid testamentary disposition, in which case the
letters of preference are granted to the person 01' persons
whom the testator intended to take the property, and ex-
cept a]so, where in the first case the descendant is unab]e
to eultivate the property 01' to take eare of the slaves, and
in that event, letters of p1'eference are granted to some
friend 01' responsible person, upon the eondition of paying
the descendant a certain proportion of the apprai8ed value.
o¡ In 8ho1't," says, the Attorney-General, "in granting ]et-
ters of preference on escbeatcd property, every care i8
taken that the illegitimate descendants of the intestate
shall derive the fun benefit of the escheated property, 01'
oi' its value."


To the question, whether the Crown can attach debti




JAMAICA. 355
01' other dues owing to its accountants in the hands of
third persons in this colony? the chief justice l'eplied, " 1
am aware of no proceeding by which this can' be done.
The foreign attachment law of the island does not seem
to contemplate the case of the CJ'own;" but to the same
question the Attorney-General stated, that "by means of
the ¡sland foreign attachment law, 33 Cal'. 52, c. 523, s. 8, the
Crown, like any individual, may attach debts owing to its
debtors in the hands of third persons in the colony; but
the English process of extent in aid is not in force."-l
Rep. W. l. C. 52d. series, 57, 59.


Court of Error.
This court is established by His Majesty's instructions


to the Governor. Jt is composed of the Governor 01' per-
·son administering the government, and the members of
the council, who decide by a majority.


No person who sat as a member of the court beIow
when the judgment appealed from was pl'onounced, can
sit as a memher of this court; but the chief justice, if he
composed a part of the court pl'onouncing the judgment,
may, if he thinks propel', attend the conrt, and give the
reasons fol' the decision of the court beIow, but he cannot
vote.


Writs of error 01' appeaIs líe from the Supreme and
Assize Courts, in cases ",hcre the matter in di~pute ex-
ceeds .t300 sterling in vaIue, except in the case of a judg-
ment in ejectment, 01' where any tax, duty, 01' other right
of the Cl'own is involved, when the vaIue need not be
stated. The pIaintiff in error enters into a bond fol' .,€500
to prosecute, to obey the decision, and to pay such costs
as shaIl beawarded against him.-See His Majesty's
47th and 48th Instructions to the Governor of Jamaica,
1 Rep. W. 1. C. 52d series, 60. ,


Court of Cltancery.
The Governor, by virtue of the lettel's-patent appointing


him Governor, exel'cÍses the office of chancellol', and the
equity jUl'isdiction of this court is similar to and co-exten-
sive with that of the COUl't of Chancel'y in EngIand; but
this court has no jurisdiction in addition to its general equity


AA52




356 JAMAICA.
jurisdiction, except in cases subjected to it by prívate acts
ofthe legislature.


There is also a common law 01' petty bag side of the
office. .


The chancelIor's jurisdiction, in cases of idiotcy and lu-
na.cy, is derived from an expl'ess gl'ant in the letters-patent
appointing him Governol'.


This coul't has also jurisdiction in mattel's of dowel' and
pal'tition, and to stay waste by injunction.


1t also appoints gual'dians to infants. Those above
.. sixtcen name theil' own gual'dians, those undel' that age,


01' absent from the island, have, on petition, verified by
affidavit and signed by comlsel, a guardian appointed,
who gives bond to account, with snrety, before a master.


1t has also jurisdiction to decrec the sale of lands for
payment of judgmcnt debts, on a suit by a judgment cre-
ditor; but this proceeding is seldom l'esorted to, and only
in the cases of incumbered real estates, as the 1nsolvent
Debtors' Act and Extent Law ofthe island are, according
to the registrar, calculated to meet most cases, both during
the life ami after the death of the debtor.


The writ of ne exeat insula issues from the Comt of
Chancel'y in Jamaica, undel' the same circumstances as
the writ of ne exeat 1'egno does in England, and is in-
dorsed to the provost marshal to take bail, and the amount
ll1arked thereon.


The proceedings and practice in the equity side of the
comt are as analogous to those of the Court of Chancery
in England as local circumstances will permito


Every bill of injunction must have annexed to it an
affidavit vel'ifying the matters of fact therein stated.


Bills are entertained on behalf of married women fol' a
separate maintenance, and from the like necessity that
existed during the Comm9nwealth in England-the want
of an Ecclesiastical Court to decree alimony.


The appointment of receivers to estates" is much more
frequent in Jamaica than in England, amI forms a vel'y
important part of the jurisdiction of the court, and the
appointment is solely and strictly with the chancellor,
without any reference to the master. The appointment
is made OH petition, vel'ificd by affidavit, and an partics in-
tm'ested are at libel'ty to propose a fit persono


The receiver enter,'; into a recognizance, with a. sUl'ety,




JAMAICtJ.. 357
before a master, to the amount ol' Lhe estimated value ol'
two, and sornetimes three c1'ops, 01' othel' annual produce
of the property, lJotice ol' which, with the name ol' the
surety, is served on the othe1' party six days before; (9)
and this secul'ity is enl'orced by scire facias in the Su-
prerne Court. They account annually befare the mast@r,
except when the account al' sales is to be produced from
England, when some further time is necessary.----l Rep.
W. l. C. 2d series, 61, 63.


They are entitled to six per cent. on the gros s p1'O-
ceeds, which forms an ítem to their crcdit in the ac-
counts.


By the answers to the question, Whether the Court of
Chancery in England ever appoints receivers, or makes
any orders 01' decrees respecting real property in this
colony? it appears that sucli orders are not frequent; but
they would, as stated by thc Attorney-general, be en-
forced in every respect by the Cou1't oi' Chancery at Ja-
maica.


The mode of ma1'shalling the assets 'Hndel' a decrce to
account is thesame as in England.-l Rep. ,Y. l. C.
2d series, 64.


It scems that tacking (01' the practice of permitting the
holder of a third mortgage to take precedence of the se-
cond by redeeming the fil'st mortgage and annexing his
security to the third mol'tgáge,) is not allowed at Jamaica,
beca use such a doctrine would interfere with the priority
acquired by the time of recording mortgages 01' obtaining
judgments where slaves are concerned.


The costs in this cou1't are taxed by the registrar as
between party and party, and frequentIy as between soli-
citor and client, on application to thecourt.


The l11asters in ordinary of this court are at present
three in nUl11ber. They are appointed by thc chancellor
ana removable by hil11, and he is not }imited as to the
number. They reside at the seat of government in
Spanish-Town. There are also sorne few individuals re-
siding in the country who have l11aster's commissions, and
to WhOlll occasionalIy references are made, and who, with
the l11asters extraordinary, adl11iniste1' oaths and take re-
cognizances.


The registrar is notaware of any qualification being


(9) Tbis is elljoined to be done by the ma¡tel' by tbe act 4 Geo. 4, c. 21,
under u penalty of ;CilOO.




358 JAMAICA.
necessary beyond the reputation of being a good account-
ant.-l Rep. W. 1. C. 2d series, 65,66.


Court of Ordinary.
This court derives its authority from the King's com-


mission to the Governor, who (or the person adminístering
the government) is, by virtue thereof, Ordinary and sole
judge.


The subject-matters of the court's jurisdiction are the
probate of wills and granting letters of administration, and
the ordinary also decides in aU cases of contested adminis-
tration and as to the validity of wills.


AH wills afl-ecting real and personal property in this
island are proved in this court, in common or in solemn
formo


When a will is proved in a soIemn form, al:ticles are
exhibited by the promovcnt; an answcr is filed; and
when the cause is at issue, intel'l'ogatories are exhibited
and witnesses examined.


Probate of the will as to personalty is conclusive, and
in a case refel'red to by the Attorney-General was held
so even as to real property.


The following mode of proving wills uncontested was
given by the Colonial Secretary, who is clerk of the court:
-A dedimus is granted by the Governor to certain per-
sons to take the examination of witnesses attesting the
execution of the wilI. A dedimus also at the aame time
issues to qualify the executors named in thc will, and
another dedimus issues to qualify certain persons as ap-
praisers to the estate, accompanied bya warrant to such
persons to act as such appraisers. A bond is also signed
by the qualified executor, with pl'0pCl' securities, duly to
administer according to law. When those several forms
have been complicd with, letters testamentary are granted
to the executor, as his authority for acting.


Original wills, after they have been proved and recorded
in the secretary's office, are carefully preserved there and
never again permitted to he taken out, except by order of
the Governor, hut the instances are very rareo


The Governor sits alone in this court, without any as-
ses sor 01' other person to assist his judgment.


This comt has no jurisdiction to pronounce a sentence
of divorce, 01' to decree alimony.


It has no power of enforcing obedience to its sentences;




JAMAICA.


It has no authority to excommunicate, nor is it armed
with any other process to punish contempt 01' carry its
orders into execution. For this reason no costs are given
in this court.


Neither the probate of a will nor the grant ofletters of
administration authorizes the executor 01' administrator to
enter on 01' possess himself of the real estate of the de-
cea sed.


H V cry frequently, however," added the A ttorney-
General, "the executors and a<lministrators possess them-
selves of such real estate when the heil' is absent from the
island and unrepresented."


A record is kept of the proceedings of the court in the
secretary's office. 'rhe secretary of the island is clerk of
the court.-l Rep. W. l. C. 2d series, 69, 70.


COUl't ol Vice-Admiralty.
This court derives its authority from letters-patent


under the great seal of {he Admiralty.
'rhe present judge holds his appointment by virtue of


a commission under the hand and seal of the Governor.
'rhere is only one judge, who is designated Judge and


Commissal'y of the court. He is appointed during His
Majesty's pleasure, and liable to be removed at his com-
mando 'rhe only remuneration which the present judge
receives consists of fees upon civil proceedings in this
court; those fees in 1824 amounted to <t146. 148. eur-
rency, 01' ~104. 15s. 8d. sterling.


Thc judge praetises at the bar in the Courts of Chan-
cery and Common Law.


The offieers of this eourt, besides the judge (who has
three surrogates for the examination oi witnesses) and
the advocate-general, are the registrar and marsha!. The
two latter are appointed by patent undet the seal of the
Admiralty, 01' by the Governor, when there is no Admi-
ralty appointment.-l Rep. W. l. C. 2d series, 70, 71.


Court of Admiralty Sessio1is.
'rhe court derives its jurisdictian from an aet of the


Colonial Legislature, 33 Cal'. 2, C. 8, s. 2. 'rhe Gover·
nor is authorized by that aet to issue a cornmission di-
rected to a judge of the Admiralty and other substantial




'360 JAMAICA.
persons, who are invested with the same power fol' the
trial and punishment of tl'easons, murders, pil'acies, and
other offences committed on the seas, as commissionel's
appointed in England under the statute Q8 Hen. 8, c. 15,
"for pirates." This is the Admiralty jurisdiction 01'-
dinal'ily resorted too


There exists, 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 01' more discreet persons as
the Lord Chancellor of' Great Bl'itain may think fit to ap-
point. These commissioners have also the same powers,
and over the same offences committed upon the sea, as
commissionel's appointed un del' the ~8th Hen. 8, c. 15,
have for trial in England.


The commission issued by the Governor under the
authol'ity of the Colonial Act, has always been direded to
the judge of the Comt of Vice-Admiralty (as the Presi-
dent), the Commandel'-in-Chief of the squadron, the mem-
bel's of His Majesty's Couneil, the Chief Justiee and
Assistant Judges of the Supl'eme Court, the Captain of
the Navy on the statioll, the Judges of Assize, Barristers
at Law, the Seeretary of the Island, the Receiver-General,
the Naval Offieers, and the Collectors and Comptroner~
of His Majesty's Customs at the differentports.


Of' this numbel', three constitute a comt, of whom the
Judge of the Vice-Admiralty is required to be one. His
assistants are gene rally two of the Assistant Judges, 01'
Judges of Assize.


Letters-patent of His late Majesty George 3, bearing
date Febl'ual'Y 1st, 1815, were transmitted to Jamaica, un-
del' the sta tute 46 Geo. 3, C. 54" direeted to the Governol',
the Lieutenant-Governor, the Judge ofthe Court of' Vice-
Admira1ty, the Chief Justiee, the Senior Membel' of the
Couneil, the Commander-in-Chief of the naval forces,
and all admirals, captains, 01' commandel's of ships within
the jurisdiction.


Offenees are tl'ied before either jUl'isdiction according
to the course of the common ]aw, and with the assistanec
of a grand and petty jury.


A prisoner has the benefit of a challellge to the same
extent as upon a trial f'ol' an offence eommitted upon
land.


The sentences passed by the eommissioners can only
be averted by the exercise of the prerogative of pardon,




JAMAICA. 361
which resides with the Governor, except in treason and
murder, when the Governor can only l'eprieve until the
pIe asure of His Majesty is signified.


The officers of the Court of AdmiraIty Sessions are the
clerk of arraigns and the marshaI.


The appointment of the Iatter is permanent; the former
is nominated by the judge of the Court of Vice-Admiralty
upon a commission being issued.-l Rep. W. l. C. 2d
series, 74, 75.


Custodes and Justices of tke Peace.
The custos is appointed by commission under the


hand and seaI of the Governor, 01' person exercising the
functions of Governor. His duties are similar to those
of the custos rotuIorum of a county in EngIand. His ju-
risdiction does not extend beyond the pal'ish fol' which
he is appointed. He holds his office during the Govcr-
nor's pIeasure.


He has the appolntment of 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 which belong to that office in England,
with certain additional duties in relation to the sIave po-
pulation. Their jurisdiction is limited to the parishes for
which they are respectively appointed. .


Thel'e is no qualification of property requisite to their
appointment, but they are gene rally freeholders.


The custos generally recommends a person to the office
of justice, but such recommendation is not essentiaI to the
appointment.


The justices of the peace have a judicial criminal juris-
diction, under certain acts of the legisIature, reguIating
the police of their parishes, exclusive of their jurisdiction
when sitting as members of the Quarter Sessions and
Slave Comí.


Two justices of the peace, under the act 5,'5 Geo. 3, c.
19, can hear and decide in a summary way matters in dis-
pute between masters, and servants, to an amount not
excecding cCIOO. .Two justices may also decide in a
similar way civil cases between party and' party to the
amount of forty shillings.


The proceedings in these cases are 110t removable ¡nto
another court.-l Rep. W. l. C. ~d series, 75, 76.




36~ JAMAICA.


Court oJ Quarler Sessions.
The court is composed of three 01' more magistrates;


three, however, are required to form a court.
The custos, 01' in his absence the senior magistrate, sits


as chairman. .
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.


The indictments are prepared by the clerk of the peace,
and prosecutions are conducted by him. .


Coullsel occasionally attend, attornies at law frequently;
but in most illstances the parties act for themselves.


This court has a concurrent jurisdictioll with the Su-
preme and Assize Courts in those criminal cases which do
not extend to life, 01' in which an exclusive jurisdiction is
not given to the latter comts.


The punishments which can be inflicted by this court
are fine, imprisonment, and whipping; and its sentences
are carried into execution by the provost marshal 01' his
deputy.-l Rep. W. 1. C. 2d series, 77 .




Insolvenls.
There are no bankrupt laws in this colony, but there is


an Island Act for the l'elief of insolvent debtors, the 4th
Geo. 4, c. 11, under which an insolvent debtor may ob-
tain his dischal'ge by a surrender of all his effects, and
there is no distinction between the cases of trader and
non-trader.-l Rep. W. l. C. Zd 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 ~he council until His
Majesty's pleasure be known.


He is usually appointed a member of His Majesty's
Council, but is not necessarily so.


'Vith respect to all criminal prosecutions, the office is




JAMAICA. 363
co-extensive with that of Lord Advocate of Scotland. AH
indictments are prefel'red by him in civil and revenue
cases; he appears for His Majesty when the Crown is in-
tel'ested. He is sworn as magistrate for the body of the
island. He practises as a barrister.


The amount of his salary and fees, as Attorney-General,
does not exceed 1'700 per annum, and he is not allowed
any clerk 01' offiee.


He attends an the COUl'ts at which counsel attend, ex-
eept the Cornwall Assize Court, owing to its distanee
from the seat of government. He appoints a barrister to
act for him there.


He possesses and exercises the same powel' as the
Attorney-GeneraI of EngIand in entering a tlOlle P"o-
sequi. for which he does not receive any fee or perquisite.
-l Rep. W. 1. C. 2d series, 88.


Colonial Secretar!J.


The secrctal'y of the island was appointed by His Ma-
jesty's letters-patent.


He has leased his office to the present acting secretal'y,
who gives IUl'ge secul'ity to the patentee for payment of
the rent, which is ~3000 sterling, and the due discharge
of his duty, as well as security to the colony; the patentee
does not give security to the island.


The colonial secretary being also clerk of the council
receives two salaries, one of ~270, and another of .f4~O.
The remainder of his emoluments are established by the
Rct 56 Geo. 3, c. 19.


His duty is to record aH papers sent to his office for
that purpose, also aH laws of the island, copies of which
he sends to the Secl'etary of State for the Colonies and
Clerk of the Couneil.


The acting secretary estimates his emoluments at an
average of .i'846 per annum.-l Rep; W. r. C. 2d se-
ries, 89.


Provost flrfarshal;
This officer is appointed by patent from the Crown,


and is l'emovable by His Majesty's representative in case
of malversation.




364 JAMAICA.
He is the executive offieer of the laws aml keeper of aH


the prisons in the island. His duties are analogous to
those of sheriff in England; and in adJitioll to those du-
ties he discharges those of sequestrator in Chancery,
usher of the blaek rod, and water baliff.-l Rep. !2d se-
ries, 89, 90.


Coroners.


There is a Coronel' in eaeh parish of this island, elected
by the freeholders thereof, and in the parish of Port
Royal there are two; they would be removable by wl'it as
in England. By the aet 11 Geo. 3, c. 3, s. 1, the laws
and statutes of England eoneerning coroners are declared
to be in fOTee in tbe colony,. tbeir fees are ]'egulated by
that aet, and inereased by 4.1 Geo. 3, e. 13.


There is no salary attaehed to the offiee, but the coronel'
is entitled to afee of .i5 on each inquisition, together
with 2s. 6d. for every mile he has to travel in taking the
same.-l Rep. 2d series, W. l. C. 91, 9!2.


Appeals to tite King in Council.
An appeal lies immediately to the King in Conncil


from the Courts of Chancery and Ordinary, and ultimatcly
from the Comt of Error.


No appeal lies from the Comt of Error when thc
amount in dispute is less than ~500 sterling (costs not in-
cluded.)


Interlocutory orders made in equity are appealable, but
not those which are made at law, said the Attorney-Ge-
neral. The Registrar of the Court of Chancery stated
that appeals from the Court of Chaneery are common
from aH orders, excepting those fOl' cost:;; alone, and for
contempt of process. Such part of an order appointing a
receiver, as relates to change of possession mcrely, is
Jiot suspended by an appeal; in every othcl" case the pro-
ceedings are stayed ipso Jacto.


"The chancellor," he says, "has no doubt the power uf
refusing to grant an appeal, and within his recollection it
was exercised by General Morrison; on that occasion he
searched for precedents, and found seven." The doctrine
laid down here by the registrar is too unqualified; fOf
(say the commissioners) "we conceive that where the sut1l.




JAMAICA. 365
in question amounts to cf500 sterling, the office of the
Governor, in granting the appeal, and issuing the order to
the comt below 1'01' the papers, and fixing the security, is
merely ministerial; in fact, on an application to the Lords
in Council in the case of Ross v. Moliere, in the year
1822, they made an order on the Lieutenant-Governor of
Demerara to grant an appeal which he had refused in this
case, and to send home the papers. The present chancellol'
(the registrar observed) has on several occasions publicly
expressed himself favourable to appeals, and he has shown
such disposition by never refusing one; and the observa-
tion of the Attorney-General was, that when a question
has al'isen on the Kíng's instructions respecting appeals,
the leaning of the court has ever been in favour of the
r¡ght of appeal."


The appeal from the Court of Chancery to the King in
Council is written at the foot of the draft order when sub-
mitted to the solicitor for perusal, and befare the same is
ente red in the registrar's office. The appellant, with a
surety, enters into a bond of cf500 to prosecute the appeal
and answer the costs that may be awarded against him.
Such security ought to be given in strictness, said the
registrar, within twenty-eight days froro the order being
entered, 01' the appeal may be disroissed; but twenty-
eight days further may be obtained, if required, on coro-
roon petition. After such secmity is given, the appeaI
cannot be dismissed in this colony at the instance 01' thc
respondent, otherwise than with consent.


With respect to appeals froro the Court of Error, on
judgments at law, the appelIant roust note his appeal
within fourteen days, and en ter into similar security; froro
the unwillingness, however, of the courts to interpose any
obstacle to an appeal, there is great laxity in the practice
as to the time of appealing.


Personal secul'ity is alIowed in cases of appea1, and un-
incumbered real property is not required.-l Rep. W. I.
C. 2d series, 92.




( 366 )


NORTH AMERICAN COLONIES.


THE BAH AMAS.


-


THE first in the list of those colonies, which are usually
denominated the North American Colonies, are the Ba-
hamas, 01' Lucayan Jslands. The chain of islands which
bears tbis name is of vast extent. The ¡slands líe from
latitud e ~1 o 30' to ~7° 30', and from 74° to 80° west lon-
gitude. They are composed of innumerable rocky islets,
called keys and islands, of which not more than 1201' 14
are inbabited. The settled islands are stated to be New
Providence, (in whicb Nassau, the capital, is situated,)
Turks' Island, Eleuthera, Exama and its keys, Harbour
Jsland andkeys, Crooked Jsland, Long Jsland, Sto Sal-
vador, (the first place discovered by Columbus, and so
named because it was discovcred witbin 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 tbat time they did not see land,) the Caicos,
Watling's Jsland, Rum Key and Henegua. Some of the
largest of the Bahamas, such as the Great Bahama and
Lucaya, are still uninhabited. On their first discovery
the Spaniards carried off 01' destroyed the inhabitants,
and until about 16~9, the whole of the islands are said to
have remained unpeopled. They rise, it is said, almost
perpendicularIy from an immense depth of water, and
seem to have been formed from an accumulation of shelIs
and sand. At the utmost depth to which the inhabitants
have penetrated, nothing has been faund but calcareous
rock, and an intermixture of shelIs. (1) The calcareous


(1) 4 B. Edwards, 224, citing M'Kinnen.




THE BAHAMAS. 367
rock is covered by a light soil, frequently but of small
depth. The cIimate is heaIthy. There are no rivers
and streams, but water is easily obtained by digging weIls.
Cotton, salt, mahogany, dying woods, turtle, and fruit,
are the exportable commodities of these islands. .


HISTORY AND CONSTITUTION.


New Providence was settled in 16529 by the English,
but they were expelled in 1641 by the Spaniards, who,
though they did not. settle there, seemed determined that
no one else should do so. The colony was resettIed by
the English in 1666, but they were again expeIled by
a combined French and Spanish Heet in 1703. N ew
Providence then became the resort of pirates, whose
depredations at length compeIled the government to intel'-
fere in 1718, and they determined to resettIe the colony.
The pira tes were suppressed by a force under the com-
mand of Captain "Voodes Rogers. Settlements again
began to be made, and in 1740 the town and harbour of
Nassau were fortified. The islands were attacked in
1776 by Commodore Hopkins, with a squadron from
Philadelphia, amI capitulated in 1781 to a Spanish force
under Don Galvez. By the treaty of 1783 they were
l'estorcd to the British Cl'own, but while that treaty was
under consideration in Europe, the islands themselvcs
were l'ecaptured in a most gallant and romantic manner
by Colonel Deveaux, an American royalist. At the close
of the contest, in which England had been then engaged,
many of the royalist party among the Americans settIcd
in New Providence. In 1787 Nassau was declared a
free port, and in 179B the privilege before granted was
made perpetual. It has ever since becn numbered among
tbe free ports of the colonies in the acts relating to colo-
nial trade.(B)


The Council, which is appointed by the Crown, consists
of twelve members.


The House of Assembly i8 composed of members re-
turned by the different islands. Their numbcr is be-
tween twenty and thirty. (3) The possession of BOO acres


(2) See the laó! ac! on this subject, 3 & 4 W. 4, e.59.
(3) 4B. Edwards, ~27.




368 THE BAHAMAS.
of cultivated land, 01' of property to the value of i2000
currency, is the qualification requil'ed in a candidate.
The electors are aH free white persons, who have resided
twelve months wfthin the government, for six of which
~hey mllst have J1een householders 01' fi'eeholders, 01' in
default of that, must have paid duties to the amount of
J?50.


ACTS OF THE LEGISLATURE.


These, at the period of the commissioners' visit to the
colony, wel'e comprised in four printed volumes, and in
four parts of a 6fth 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
recol'ding all Jeeds 01' conveyances that are 01' shaIl be
made of any lands, tenements, 01' hereditaments, negros,
vessels, goods, 01' effects, within the Bahama Jslands j"
subsequently amended by 46 Geo. 3, c. 16, and by the
2 Geo. 4, c. 36.


The twelfth and last clause of the 46 Geo. 3, c. 16,
declares, that deeds 01' conveyances 6rst recorded shaIl
have priority ofother deeds 01' 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
Jslands, 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 fun and clear account of what part of the law of
the mother country shan 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 aU 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 110t ex-
pressly mentioned 01' included imder general words, do
extend io these colonies aml plantations; by reason
whereof your Majesty's liege subjects of these islands




THE BAHAMAS. 369
have sometimes been in danger of being deprived of
the benefit of many good and wholesome laws; and
whereas it is expedient that all doubt be taken away
concerning a subject of such high importance; be it
therefore declared, that the common law of England in
all cases, where the same hath not been altered by any
of the acts 01' statutes hereinaftel' enurncratcd, 01' by any
act 01' acts of the Assembly of these islands, (except so
much thereof as hath relation to the ancient feudal te-
nures, to outlawries in civil suits, to the wager of law 01'
of batail, appeals of felony, writs of attaint, and eccle-
siastical matters,) is, and of right ought to be, in fun
force within these islands, as the same now is in that part
of Great Britain called EngIand." By sect. 2 it is enacted,
that "the several statutes and acts of Parliament hereinafter
particuIarIy enumerated and mentioned, are, and of right
ought to be, in fuIl force and vil'tue within and throughout
this colony, as the sume wouId be if the Bahama Islands
were therein expressly named, 01' as if the afol'esaid acts
and sta tutes had been made and enacted by the General
AssembIy of these Islands."
9 Hen. 3. c. 8
---18
20 Hen. 3. c. 1
---2
---- 9
3 Edw. 1. c. 4
---9
---15
----25
-,--26
-----28
---29
---30
----33
6 Edw. 1 c. 1.
13 Edw. 1. stat. 1. c. 1
-.---4
-----7
-----15
-. ------- 22
-. --~-23
-------31
-----34
----40
------45
-,------49
28 Edw. 1. c. 11
Stat. de fragentibus pri-


sonam.
1 Edw. 2


1 Edw. 3. stat. 2. c. 16
4 Edw. 3. c. 2
--7
--10


5 Edw. 3. c. 10
---- 14


14 Edw. 3. stat. 1. c. 6
18 Edw. 3. stat. 2. c. 2
20 Edw. 3. c. 3.
25 Edw. 3. stat. 5. c. 2
-------3
------5
------14
28 Edw. 3. c. 3
34 Edw. 3. c. 8
---12
38 Edw. 3. stat. l. c. 8
----12
50 Edw. 3. c. 6
1 Rich. 2. c. 12
5 Rich. 2. c. 8
8 Rich. 2. c. 4
9 Rich. 2. c. 5.
13 Rich. 2. stat. 1. c. 5
---- stat. 2. c. 1
15 Rich. 2. c. 2
---3
17 Rich. 2. c. 6
-----8
1 Hen, 4. c. 10


BE


, 2 Hen. 4. c. 11
4 Hen. 4. c. 18
---23
5 Hen. 4, e.5
--10
11 Hen. 4. c. 3
13 Hen. 4. c. 7


2 Hen. 5. c. 2
9 Hen. 5. slat. 1. c. 4
4 Hen. 6. c. 1
8 Hen. 6_ c.9
----12
-----15
---29
11 Hen. 6. c. 3
---6


1 Rich_ 3. c. 3
3Hen.7.c.2
---,¡¡,,-
----4
--·--10
4 Hen. 7. c. 12
-----13
---20
---24
11 Hen. 7. c. 12
----20


21 Hen. 8. c. 7
23 Hen. 8. c. 1
---5




370
24 Hen. 8. c.5
25 Hen. 8. c. 3
---16
27 Hen. 8. c. 4
-.--10
28 Hen. 8. c. 1
---15
31 Hen. 8. c. 1
32 Hen. 8. c. 2
----9
-----28
----30
---32
---33
----36
---37
-----38
33 Hen. 8. c. 1
34 &; 35 Hen.8. c. 5
37 Hen. 8. c. 6


1 Edw. 6. c. 7
2 & 3 Edw. 6. c. 24
5 & 6 Edw.6. c. 9
----p
1 Mary, stat. 2 c. 7
1 & 2 Phil.& M. c. 13
2 & 3 Phil. & M. c. 10
4 & 5 Phil. & J\1. c. 4
5 Eliz. c. 9
--14
8 E1iz. c. 2
--4
13 Eliz.c. 5
-.-6
18 Eliz. c. 5
--7
--14
27 Elíz. c. 4
----5
31 Eliz. c. 2


THE BAHAMAS.


: 31 Eliz. c. 5
. 39 Eliz. c. 9
--15
43 E1iz. c. 8


2 James 1. c.8
---- 11
4 Jámes 1. c. 3
7 James 1. c. 5
---12


21 James 1. c. 4
---6
----13
---14
---15
---16
----24
----27


13 Cal'. 2. stat. 2. c. 2
16 Cal'. 2. c. 7
16 & 17 Cal'. 2. c. 8
17 Cal'. 2. c. 7
-----8
19 Cal', 2. c. 6
22 & 23 Cal'. 2. c. 1
-----7
--.---- 10
29 Cal'. 2. c. 3
----·5
---7
30 Caro 2. C. 7
31 Caro 2. C. 2
3Wm.&M.c.9
---14
4 Wm. & M.c. 4
4 & 5 Wm. & M. c. 16
----- 20
--._- 21
7 \Vm. 3. c. 3
7 & 8 Wm. 3. c. 34
8 & 9 Wm. 3.e.11


8 & 9 W. 3. c. 31
9 & 10 Wm. 3. c.15
____ 17


10 & 11 Wm.3.c.16
----23
1 Ann. stat 2. C. 6
1 Ann. C. 9
3 & 4 Ann. C. 9
4 Ann. c. 16
5 Ann. C. 6
--9
6 Ann. c. 18
8 Ann. c. 14
9 Ann. c. 14
12 Ann .• tat. 1. C. 7
--- 2.c.18
4 Geo. 1. c. 11
---12
5 Geo. l. c. 13
2 Geo. 2. c. 2
---- 25
4 Geo. 2. c. 10
--~-28
5 Geo. 2. C. 25
7 Geo. 2. c. 15
----20
---22
11 Geo. 2. c. 19
14 Geo. 2. c. 17
15 Geo. 2. c. 30
19 Geo. 2. c. 21
20 Geo. 2. c. 19
---30
23 Geo. 2. c. 11
24 Geo. 2. c. 44
---45
26 Gco. 2. c. 19


1


, 27 Geo. 2. c. 3
---20


I


By section 3 it is declared, that" a11 and evety the acts,
statutes, and parts of acts and statutes of the Parliament
of England 01' Great Britain, which relate to the prero-
gative of the Cl'own, 01' to the allegiance of the peopIe,
also such as require cel'tain oaths (eommonly called the
t;tate oath8) and tests to be taken 01' subscribed by the
people of Great Bl'itain, also such as declare the rights,
libcrties, and pl'ivileges of the subjeet are, and of l'ight
ought to be, of fuIl force and virtue witbin this eolony, as
the same wouId be if the Ballama IsIands were therein
expressly named, 01' as if the aforesaid aets and statutes
had been made and enacted by the General Assembly of




THE BAHAMAS. 371
these Islands." (See appendix to 3d Rep. W. l. C. 2d se-
ries, and Roward's Laws of Colonies.)


45 Geo. 3, c. 14,. An Act "for making provision for
printing the laws of the Bahama Islands and for other
purposes."


6 Geo. 4, e. 12. An Act "to authorise the bishop of
Jamaica to exereise ecclesiastical jurisdietion within the
Bahama Islands."


By this aet, after reciting that Ris Majesty had been
pleased to eonstitute bishopries in the islands and colonies
in the West Indies, and to erect the island of Jamaica
into a bishop's see, and that it was expedient to authorise
th~ bishop to exercise his ecclesiastical jurisdiction over the
clergy, it is declared, that alllaws, ordinances, and canons
ecclesiastical, which are now Llsed and in force in England,
so far as the same relate to jurisdiction over the clergy
therein, and aIl rules of proceeding for carrying the same
into effect, shaIl be held to be in full force within these
isJands, and tha t the j udges of . the General Court shaIl
enforce the execution thereof in the same manner as the
Comts of Common Law in England are authorised to do:
it is pl'Ovided, however, that nothing in this act contained
shan be construed to affect the rights of the governor 01'
commander in chief, as ordinary of these Islands (1).
(3d Rep. W. l. C. 2d series, 55.)


COURTS IN GENERAL AND THE LAW AND PRACTlCE
THEREIN.


'fhe following are the courts established in this settle-
ment for the administration of criminal and civil justice
respectively, viz., the Court of Chancery, the Court of
Error 01' of Appeal, the General Court (exercising both a
criminal and a civil jurisdiction,) the Court of Ordinary,
the Comt of Vice-Admiralty, the Court of Admiralty
sessions, the Inferior Court for the Island of New Pro-
vidence, and the Inferior Court for the Turk's Islands.


The system of laws which prevail in this colony, is
described to be founded upon the acts of its local legis-
lature, upon certain statutes and acts of Parliament
declared by a law ofthe colony to be in force therein, and
by the common law of England, " when thc same hath not


(1) See ante, p. 32, n. 5.
BBQ




372 THE BAHAMAS.
been altered by any of the said statutes 01' acts of Parlia-
ment, 01' by any act of the Assembly of these islands."


Where a question arises, whether 01' not a certain
English act of Pat'liament 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 tlown to the Commissioners as the general principIe
by which su eh a question would be determined; premising
that by His Majesty's commission the Governor of the
settlement is appointed Captain General and Governor in
Chief in and over " our Bahama Jslands in America."


"The law of England extends to the colony, if the
Bahama Jslands eo nomine be ineluded, as in the Q8
Geo, 3, e. 6, and in some of the revenue and in the free
port aets; 01' if the words of the law are so general as
neeessarily to inelude them, as fOl' example, the statute 8
Geo. 1, e. 24, for the more effectual suppression of piracy,
which extends by the very words ofit to Asia, Afl'ica, and
America, aml the late aets of ~arliament for abolishing the
slave trade, and for making the same felony and piracy."


"The act also of 19 Geo. 2, c. SO, for the better en-
couragement of Ris Majesty's Sugar Colonies in America,
(which prevents seamen in the merehant service from
being impressed,) has been held on many Qceasions, by the
general eourt of this colony, to be in force therein." .


The acts of the legislature of this colon y are in the first
instance, as in the other colonies, prepared by the mem-
bers themselves, who bring tbem fOrW<11'd, and not by one
01' more individuals of legal knowledge appointed for the
pUl'pose, and are promulgated by printing. The commis-
sioners recommend the latter as the preferable course.


They 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 elause, and
they are taken notice of by the courts judicially and ex
qf!icio.


The Habeas Corpus Act, 31 Cal'. 2, c. 2, is in force
here under the Colonial Declaratory Act before men-
tioned.


The writ issues, ex debito justitia, out of the general
court, and would also (although an instance had not been
known) be issued out of the COl1l't of Chancery.


'rhe act i5 Geo. 2, c. 7, " for the more easy recovery of
uebts in the plantations," was adoptecl by the Colonial




THE BAHAMAS. 373
Act, 45 Geo. 3, c. 5, and the statllte of frauds (29 Cal'.
2, c. 3,) is in force here, amI also the following ncts fix-
ing the limitation of time for criminal prosecutions a11(I
civil slIits, 'viz. tIte stat. 21 James 1, c. 16, "for limitation
of actions and for avoiding of suits j" the stat. 24· Geo. 2,
e. 44, as to actions against justices of the peace; the 3I
Eliz. c. 5, concerning informers; and the 7th Wm. 3, c.
3, "fol' regulating tríals in cases of treason and misprision
of treason." There is al80 a Colonial Act of Assembly
(44 Geo. 3, c. J,) limiting the time within which certain
lands therein specified must be put in suit.


Counsel and Attornies.


The admi8sion of counsel, attornies, solicitors, and
pl'octors, to practise in the courts of this colon y , is regu-
lated by a local act, 39 Geo 3, c. 2, which provides,-
cl. 1, That no person shall act as a counsel, attorney, so-
licitor, ol' proctor in any court in this colony, unless he
shall have been called to the bar in Great Britain 01' Ire-
land, 01' admitted an attorney in the Comt of King's
Bench 01' Common PIeas in England 01' Ireland, 01' shall
ha ve served for five years as clerk to a counsel and at-
torney of the General Comt of these islands. And by el.
2, the fitness of the last class of persons may be examined
into by the judges of the General Comt.


Practice qf tite Courts.
There is no local l'egulatiofl pl'ohibiting a party from


being heard in pel'son in any of the courts here,
No obstacles are opposed to persons applying to sue


tn formá pauperis, provided they make the usual petition
and affidavit.--3 Rep. W. I. C. 2d series, 57,58.


The General COU7't.
This court was established by an act of thc local legis-


lature, passed in 45 Geo. 3, and is empowered to exercise
three distinct heads 01' classes of jurisdiction, viz. a civil,
criminal, and l'evenue jurisdiction, but the latte!', it ap-
pears, the COUl't has neve!' exel'cised as distinct from ite
ordinary civil jurisdiction.




THE BAHAMAS.


There are three judges of this court, who aH sit, what-
ever may he the class of jurisdiction the court is then
exercising, v.iz. a chief and two assistant justices, who are
appointed by the Crown during pleasure, and it appears
that since the year 1797 the qua1ification that a person
aspirlng to the office of chief justice shoulcl be a barriste!',
01' a person who has gone through a previous course of
legal stucly, has be en requirecl j but this rule, it is stated,
has not always been observed with regard to the assistant
judges.


'rhe emoluments of the office of chief justice arise from
ahorne salary of 1:500 sterling, a colonial salary of 1:500
currency (which is rather more that 1'Q90 sterling), and
certain fees w hich are fixed by the docket. These latter
amounted on an average of the five years preceding the
commission, to 1'338. ib, 6d. currency, (01' 1'197. 58. lld.
sterling.)


The assistant judges are allowed each a home salary of
1:200 sterling, and a colonial salary of 1'300 curl'ency (01'
1:l204. 3s. 4d. sterling),but no other emoluments, except in
the absence of the chief justice, when the s~nior assistant
justice is entitled to receive the fees of the chief.-3 Rep.
W. l. o. !2d series, 58.


Criminal Juri8dictian af the General-Caur!.
This court sits at the court-house in Nassau, (the seat


of government,) during three terms in each year, com-
mencing respectively on the thil'd Tuesday ill Junuary,
April, and July. It exercises the same jurisdiction as the
Comt of King's Bench in England, und is a Comt of
Oyel' and Terminer and General Gao1 Delivery.


The proceedings of the court are, in aH material points
(such as being grounded on previous examinations before
a magistl'ate on outh, the signing them by the pal'ty, and
their being bound over to prosecute, and the like,) toge-
ther with the form of indictment, pleading, &c. the same
as in England.


Only one instance was known of the court having 01'-
dered a criminal information to he filed, whiel! was in the
case of a gross misuemeanor j but the powers of the
Attorney-General to file sueh informations ex qfficio, were
cOllceivecl to be similar to thosc of the llttorney-General
in England.




THE BAHAMAS. 375
'fhe selection, impannelling, and securing the attend4


ance ofgrand jurors and the right of challcnge, &c. al'e
provided for by a local act (46 Geo. 3, c. 4.) 'fhe fol'e4
man ofthe grand jury is appointed by thc court; the
petit jul'Y chooses its own foreman. 'fhe grand jury is
charged by the chief justice 01' pl'esiding judge before
entering upon the dischal'ge of its duty.


Counsel are allowed upon the trial to address the jUl'y
on behalf of the prisoner in aH cases, and the commis4
sioners were informed that no inconvenience }tad evel'
been found to resuIt from such a pl'actice.


The chief justice 01' presiding judge sums up the evi4
den ce, and states to the jury the law of the case; the
other judges occasionally assist the chief in taking notes.


The Attorney-General has frcquently, it is said, exer-
cÍsed the powel' of entel'ing a nolle proseguí, both in
capital cases and in pl'osecutions fol' minor offences.


The officers of thc court arc the provost marshal, the
c1crk of the crown, and the crier of the comt; thc 61'st
is appointed by the Crown, the second by the Governor,
and the c1'ier by the chief justice. 'fhey an hold their
offices during pleasure.-3 Rep. "V. I. C. Qd series, 59,60.


Civil jurisdictíon of tIte Gelleml Court.
The Geneml Comt sits as a court of civil jurisdiction


at tbe court-house in the town of Nassau, during t1uee
terms in each year, commcncing on the thil'd Tuesday in
January, Apl'il, and July, amI has jU1'isdiction in an aC4
tions of which the Court of Common Pleas in England
has cognizance ;-"but real actions, except writs of dower j
are never prosecuted."


The rules and practice by which this court is guided
were framed in the yeal' 1797, by the then chief and aS4
sistant judges, and do lIot diffel' in any material respect
from tbos!'! established in thc Court of Common PIeas, on
similar points, in England. 'fhe pleadings are a1so
framed, as nearly as may be, according to the forl11s used
in the English courts.


The dower of a manied woman muy be baned by pri-
vate examination before a judge, and by a la W of this
colon y now in force (51 Geo. 3, c. 15,) husband dnd wife
may by deed convey the esta te of t,he wife, \)1' 01' the hus"




376 'l'HE BAHAMAS.
band ami wi~e jointly, situate in thc colony, without fine 01'
recovery.


The action of ejectment is the usual action resorted to
for the trial of titles to land, and may be barred by twenty
years' adverse possession.


Personal actions are commenced by wl'Ít of capias,
served by the provost marshal 01' his deputy, and a de-
fendant may be held to bail fol' any sum aboye ¿['20 cur-
rency, upon affidavit of the debt made before one of the
judges 01' the prothonotary, and filed, but not otherwise.


There appears to be no legal mode by which a plaintiff
can attach, in the hands of a third person, debts due to
the defendant.-3 Rep. W. l. C. 2d series, 60, 61.


W ritten depositions of witnesses al'e allowed to he givcn
in evidence, provided it be proved by affidavit that the
witness is not in the colony at the time his deposition is
tendered j and they are taken under the usual precautions
of de bene esse examinatiolls, accol'dillg to the provisions
of the General Court Act,--3 Rep. ""V, l. C. 2d series, 62.


Judgment may be entercd up at any time after the ex-
piration of eight days next after the trial of the last cause
in term (which is here called the adjournment day), and
execution may issue on the day after such adjomnment
day.


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 jiel'i facias. Goods
and chattels are bound only from the time thc execution
is lodged with the provost marsha1.


No elegit, nor any process in the nature of such a writ,
is known in practice here.


Ajudgment after one year becomes superannuated, and
must be revived by scire facias.


Executions are, it is said, very generally suspended and
used as securities.


Lands in the hands of the heir 01' devisee are liable fol'
the dehts of the devisor 01' ancestor, if the personal assets
in the hands of the executol' 01' administrator are insuffi-
cient to pay the saruc.


An equity of redemption may be sold under an exccu-
tion issued on a judgment of this comt.


An appeal lies from this comt to the Court of Error
(composed of the Governor and Council) in an cases




THE BAHAMAS. 377
whel'e the sum in dispute amounts to .:eSOO sterling, and
the proceedings in thc court helow are at ·once stayed by
the wl'it of e1'1'or.-3 Rep. W. I. C. ~d sel'ies, 63.


Revenue JUl'isdiction of the Superior COUl't and
Escheats.


Jt appears that the General Court has never exercised
any distinct revenue jurisdiction as a Court of Exchequel',
whether in regard to escheats 01' the like, but in cases of
persons dying intestate and without heirs, 01' legal per-
sonal representa ti ves, seised 01' possessed of real 01' per- .
sonal estate, (which however is not of common occurrence
in the colony,) the proceedings are laid before the Go-
vernor, as chanceIlor, as to the escheat of the real estate,
and before the Governor, as ordinary, with regard to the
personal property, the nominee of the crown obtaining
letters of administration to the estate and effects of the
deceased intestate. •


The practice with regard to the cases of such coloUl'ed
persons, possessed of moderate property, as may die in-
testate, leaving only illegitimate childl'en, appears very
liberal, it not being usual for the Attorney-General 01'
other officcl' of the Crown to put in motion any process of
escheat.-o Rep. W. 1. C. ~d series, 63, 64.


Inferior Court.
This court, ayer which one judge alone presides, who is


appointed by the king's representative and holds his
office during pleasure, was established by colonial enact-
ment in the year 1796, and by the Court Act in force at
the time of the commission (viz., 45 Geo. 3, c. Q~,) had
jurisdiction over "aIl debts whethel' by bond, note,
account, book debt, assumpsit, 01' otherwise, and also aH
complaints for trespasses, damages, 01' injuries sustained,
where the rights of the crown, and the titles of lands are
not concel'ned, provided the debt sued for, 01' the damages
laid, sha11 exceed the sum of .:eS, and be not more than
.:e~O lawful money of these islands." The jurisdiction of
the court has since been raised to .:e40 currency.


The jurisdiction of this court extends beyond the
island of N ew Providence to a11 other islands and keys




378 THE BAHAl\IAS.
within this govel'lllnent except Turk's Jslands, which há:ve
been specially pl'ovided fol'. No appeal lies from the
decision of this court to anS other tribunal.-3d Rep.
W. l. C. Bd series, 64. . '


Courtscif Appeal and Error.
An appeal Hes, though the right appeal's to be l'al'ely


exercÍsed hel;e, from the judgments of the General Court,
to the Governor and Council as composing a Court of
Error, aneI from the latter tribunal to the King in Council,
under the provisions of the 10th section of the General
Court ACt (Bah. Law, vol B, p. 7,) as amended by 6 Geo.
4" c. 8, and of an express article in Ris Majesty's in-
structions to the governor, but no appeal will líe in the
fil'st instance, except fi .. om the Comt of Chancery, to the
King in Counci!.


N o judge who sat as a memhel' of the comt below, when
the judgment appealed from was pronounced, can sit as a
member of the Court of Error upon the hearíng of the
appeal from his decision; but he is at liberty to he present
at such hearing, and to assign the reasons of the judgment
given in 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 seéurity to prosecute,) must be procured, and
on the issuing of the writ, all process of the court below is
at once stayed.


Costs rtl'e consideren in the díscretion oi' the comt, and
are taxed by the clerk of the councíl, who i8 also ex qfficio
clerk and registrar of the Court of Error. His fees are,
as indeed an thc fees in this comt, the same as those
charged in the Court of Chancery.


Cotlrt of Chancery.
The judges of this court are the Governor of the colony


for the time being, (who presides,) and the members of
Ris 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
England. In the cases of idiotcy amI lunacy, a special
power is delegated to the Governor, by the express words
of his instructions.




l'HE BAHAIIfAS. 379
In the case of infants the court has authol'ity to appoint


guardians to their persons and estates.
This court has no jurisdiction to assign dower; but it


may cause partition. to be made of lands held in joint
tenaucy, 01' tenancy in eommon, 01' eopareenary.


The proceedings of this court are, in allmaterial points,
analogolls to those in England, and the books of practice
which are used there, govern the pl'actice and proceedings
here.


Bills to perpetuate the testimony of witnesses are
entertained by this comt, and it also issues commissions
to examine witnesses de bene esse.


This comt wouId entertain a bill on behalf of a married
woman fol' a separate maintenance, on account of mis-
conduct by the husband, on the ground that the wife wouId
otherwise be without remedy, inasmuch as a divorce
propter sce¡;itiam could not be obtained in the Court of
Ordinury in this colony, the jurisdiction of which is ex-
pre¡;sIy confined to the granting of marriagc licenses and
the probate of wills.


BiIls for the foreclosme of mortgages are síated to be
altogether unknowIl in the practice of thia court, in con-
sequcnce of the 'facility afforded to mortgagees by sectioIl
10 of the Consolidated COUl't Act, under which the real
property of the mortgagor, when sued at law upon his bond,
may be taken in execution and soldo


In this colony no prefel'cnce, it is said, is given to debts
nece¡;¡;aYl\)' incurreu foy the expenses of a plantation, such
as charges fOl" supplies and repairs necessary to render the
estate productive. In othe1' colonies, where the opposite
practice prevailed, the commissioners were universally in
favour of its continuance.


The number of masters attached to this court (and who
also act as examiners) is not fixed or limited.


Thcy give no security fol' the due dischargc of the
duties of their office.


Jt is not requisite that a master should be a barrister
nor is any particular qualification llecessary to his eli:
gibílity.


Their duties are the same as are required of the Jike
officers of the Comt of Chancery in England.
. They neve!" retain the money of the suitors in their
hands, the same when l'eceived being paid into the
fegistry of t11e court, or to the parties entitled thel<etó
under the deeree of the court.




380 THE BAILÜlIAS.
'rhe public secretary, 01' registrar of records of the


colony, discharges the duties of registrar of this court,
which are stated to he generalIy the same as those executed
by the like officer 01' his deputies in England.-3d Rep.
W. l. C. 2d series, 65, 66.


Court o/Ordinal'Y.
The jurisdiction of the Court of Ordinary in the


Bahamas, is derived, as in aH the other colonies, from the
King's commission to the Governor, and a special article
in the governor's instructions.


He possesses no jurisdiction to pronounce a sentence of
divorce 01' alimony.


AlI wills affecting real 01' personal property are proved
in this comt by oath of the executor and one at least of
the subscribing witnesses, should the latter be within the
colony, if not, by the executor and sorne person acquainted
with the handwriting of the testator. Proba te thus
passed has no other effect than to authenticate the right
of the executor, so far as relates to the pe1'sonal estate of
the deceased, nor does the objectionable practice prevail
here, as it does in many of the other colonies, of the exe-
cutor assuming the l'ight to interfere with and possess
himself of the t'eal estate.


The office of Registrar of this court is exercised (quasi
ex qfficio) by the public secretary of the records of the.
colony, and with him an 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
said to be analogous to those in England.-3d Rep.
W. I. C. l2d series, 67.


Court if Vice-Admiralty.
The jurisdiction of the Vice-Admiralty Comt in thesé


islands, is derived from His M ajesty's commission of Vice-
Admiral to the Governor.


'rhe 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 are all paid by fees, which




THE BAHAM¡\S. 381
are established by an Act of Assembly of the colony (7
Geo. 4, c. 4.)


In no case is the comt aided by a jury.
The subject-matters of its jmisdiction are, gene rally


speakíng, cases of revenue seízul'es. Cases of salvage
and suits for seamen's wages are, ít ís saíd, rarely brought
before the court.


The laws whích thís court follows in the discharge of
its functíons are those by which the High Comt of Ad-
miralty in England (sitting as an Instance Court of Admi-
ralty) would be governed. The jurísdiction of this court
extends to cases of smuggled goods. •


Parties desírous of appealing from this court to the
Hígh Court of Admiralty in England, must pray for such
appeal within fourteen days after