A SU~lMARY 01' COLONIAL LAW, PRACTICE OF THE COURT OF APPEALS rHOl1 TUE...
}

A


SU~lMARY
01'


COLONIAL LAW,


PRACTICE OF THE COURT OF APPEALS
rHOl\1


TUE PLANTATIONS,


,ANU 01" TIlE


LAWS AND THEIR ADMINISTHATION
[N


ALL '.fHE COLONIES;


W1Tl!


€ba:t'tml oC 3lusltitt, @t'llttsl in €ouncil, &c. &oc. &oc.


--_..


BY CHARLES CLARK, ESQ.
DF THE MIDDLE TEMPLE) BARRISTER AT LAW.


LüNDON:
S. SWEET, 3, CHANCERY LANE;


A. MAXWELL, 32, AND STEVENS & SONS, 39, BELL YARD;
iLaln lSooklldItt'll & lJulllillbtt'll:


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


1834.




LONDON:


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




'l'0


THE lUGHT HOl\OURABLE


THO~1AS SPRING RICE, lVI.P.
SECR¡:TARY UF STATE FOR THE COLON lES,


~c. ~c. &,C.


'l'HIS WORK


IS,


BY PERMISSION,


MOST RESPECTFULLY DEDICATED


BY


IlIS VERY OHEDIENT


AND


llUMBLE SERVANl',


THE AUTHOR.






INTRODUCTlüN.


As, 1 believe, it is generally known in the legal
profession that one of its most learned and able
members had begun a work upon the subject oí
the Laws oí the Colonies, and that the materials
he had prepared were handed over to me, it is but
justice to the high and wel1-earned reputation of
that learned pel'son clearly to explain the nature
of the transfer, in order that he may not be held
responsible for any defects in the work that ought
rather to be charged upon me. Mr, Serjeant Ste-
phen, on putting into my hands the matter he
had collected for the early portion of this volume,
declared that he considered himself no longer to
have any connection with it; and feeling, as 1 did,
the perfect propriety of such a declaration, 1 have
never since ventured to trouble him upon the sub-
ject, 1 have freely exercised the uncontrol1ed
authority given me over the materials thus fur-
nished, and as the work now stands 1 alone am
answerable for its defects,


a




II INTRODUCTION.


In explanation of the distribution of 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 portien con-
tains accounts ofthe different Colonies and of their
Iaws, together with the Charters of J ustice regu-
Iating the 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 other 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, and 1 therefore omitted the
division of a second chapter, and threwthe 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 of affording a facility of re-
ference, to which, especialIy 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 secn reason to think that the law thus declared
required comment or illustration, 1 have added notes for 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 authoritíes,
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 wouId otherwise 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 numerous; but few of them find their "'lay
to this country, and those few are only to be
found in the libraries of private individuals. It
might have been supposed that the colonists, with
a view to their own interests, would have for-
warded to the library at 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 these circumstances 1 have been
obliged to borrow from all quarters books that
could be found no where but in private libraries ;
and for the readiness with which these were lent,
not only by personal friends but by gentlemen to
whom 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
Iittle 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
affordcd him, Even the Almanacks of the different Colonies,
works containing more authentic legal information than our
knowledge of what Almanacks are in this country would lead us
to suppose, are rarely to be met with where they might most
be expected to be found.




INTRODUCTIO:" . v


nies, To MI'. Greville and Mr. 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 In-
dian Colonies 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 therefore form an additional
volume to the present, to which it will make all
necessary referenccs.


After the first portion of the summary had been
put into the printer's hands, a question of consi-
derable importance, relating to the powers of a
Governor, was brought under my notice. A fo-
reígner had gone into one of our Colonies, and had
there complied with the terms of a proc1amation
issued undcr competent authority, which pre-
scribed what should be done by any foreigner who




VI lNTRODUCTIOX.


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 asserted in the Colony, and at first
adopted in England on the authority of Lord Coke,
who says,* "The King cannot grant to any other
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 summa
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 horne, 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 Caro 2, an act was passed by the Legis-
lature of Jamaica and confirmed in this country,


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




INTRODUCTION. VIl


by which, to encourage the settlingofthe island, the
Governor 01' Commander-in-Chief was authorized
under the broad seal of the island, to make aliens
" being already settled, 01' such as shall hereafter
come to settle and plant in it, having first taken
the oath of allegiance, to be to all intents and pur-
poses fuI1y and completely naturalized." The ap-
plication of the four last words is shewn byanother
seetion, 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 Sth, 1703.
That act declared that Protestant aliens desiring
to become inhabitants, should be brought before
the Governor and Council, and having taken cer-
tain oaths and acquired ten acres of freehold land
in the country, 01' a house in any town in Antigua,
might acquire and dispose of all kinds of property
in the island as if they were natives. In addition
to these local aets, 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 acts,
might hold places of trust and take grants of land
from the crown, such not being places of trust 01'




vm .. INTRODL"CTlüN.


grants of land within the United Kingdom. The
act of~l Wm. 4, c. 53, pássed with respect to Lower
Canada, enabled foreigners who have been na':
turalized by the Legislative Assembly of Lower
Canada to vote for members of the Assembly, and
to be summoned 01' elected tú -seats in it. It was
therefore cIear that the law had formally recog-
nized the authority of Colonial Governments to
grant this limited species of naturalization, and ..
the person improperly sent out of the Colony was
allowed to return.


As the opportunity of inserting this matter in
the body 01' the work, as part of the accounj 01' the
powers of a Governor, had passed by, 1 thought
its introduetion in this place might be pardoned, as .
it seemed too important to be altogethér omitted.,


CHARLES CLARK.
2, PUMP COURT, TEMPLE,


Sept. 5th, 1834.


---~-----,


ERRATA.


Page 24, line 18, for 57 Oeo. 3, read 1 Wm. 4.
Page 313, line 8 from the bottom, add " and also to the Orde¡'sin Council,


ante, 274 and 288."




A


SUMMARY


OF


COJ.JONIAL L'A 'V.


THE Brhish Colonies 01' Plantations are remete pos.
sessions 01' provinces of this realm, occupied for the
purposes of trade 01' cultivation.(l)


,(1) MI'. Heevgs observes (on
Shipping, pt. ii, «.t; p. 104,) that
"plantation originally implied the
idea of iutroducing, instituting, and
establishing, where every thing was
desert before," but that colony and
plantation uow seem to mean the
same thing, though formerly a plan-
tation was not a colony til1 the King
had appointed a governor or 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 Yorke to be a plantation
within the rneaning of the Act of
Navigation. The latter, however,
cal1ed it "a plantation or territory
belonging lo the King uy conquest."
2 Chao Op. 357; and see Wylham
v. DII ttrm , 3 Mod. 161, where, in
a question rcspecting Barbudoes,
which was fouud a desert island


and planted by Bristish subjects,
" islands gotten by conquest, 01' by
sorne of tbe King's subjects going
in searcb of prize, and planting
tbemselves there," are spoken of
arguendo as convertible ideas. Doc-
tor J ohnson defines "colony" to be
"a body of people drawn from the
mother country to inhabit some dis-
tant place." But the term is of
more comprehensive sense in the
English law, in which tm"i/(YI'Y ra-
ther than people is the predominat-
ing idea. In a legal sense, it seems
a necessary part of the de6nition
that a territory should be a posses.
sim, ~f the vealm, 01' part of his
.Majesty's dominions, This is not
tbe case with every settlement, for
in sorne, British subjects may only
have rights of occupation. Thus by
treatyof peacewith Spain in 1763, it
was agreedby the King of Spain that
British subjects should not be dis-




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


are subject,


turbed in cutting logwood at the
Hay of Honduras, but should be
allowed to occupy houses atíÍ1 ma-
gazines there. A question arose
whether the Hay of Honduras there-
by became a territory belonging to
his Majesty within the Navigation
Act, and it would seem, that on the
principIe laid down by MI'. Recves,
it was held not to be so. (Chitty
on Commerce, vol. i. p. 636.) It
has bcen thought that the term
.. colony" is not in law applicable
to a mere military possession, and
the case of Lubbock. v, Potts, (7
East, 449,) exhibits an instance in
which that doctrine of exclusion has
beca applied to Gibraltar. Yel if
the definition of Dr. Johnson, or the
fact of possession of territory, were
alone to give the rule, that place
ought fairly to be ranked among our
colonies. Besides, in L ..bbock v ,
Pottsthequestion wasnoton theword
"colony," but "plantatioo." That
case, therefore, even if wel1decided,
would hardly snpport the opinion for
which it is quoted, "Lord Ellenbo-
rough described Gibraltar as "a
mere fortress and garrison, incapa-
ble of raising produce, but snpplied
with it from other places." Pre-
vious legal authorities had not con-
sidered Gibraltar. in the same light.
If it were ".a mere fortress and
garrison," there could be no objec-
tion to its remaining under martial
Iaw, yet so early as 1722, there was
a petitíon to the Crown supported
by the members for the City of
Loudon, prayíng that a civil juris-


diction might be established there,
and complaining on the part of the
merchants and traders of the town,
that notwithstanding lctters-patent
had been granted by the Crown for
the establishment of a civil, lhey
were stil1 under a military go-
vernment. (1 Chal. Op. 169.)
Among the papers submitted hy the
Privy Council to the Attorneyand
Solicitor-Gcneral, (Raymond and
Yorke.) was one stating, that at the
time Gibraltar was taken it con-
tained "one nunnerYJ two con-
vents," some other establishments
of the same kind, and " 1000 fami-
lies.' (The population is now, ex-
clusive of troops, 16,500.-M'Cul-
loch's Dict. of Como arto Gibraltar.)
The petitioners expressly asked for
a civil governmeut to be established
there "as in th~ American colo-
nies," and the Attorney and Soliei-
ter-General reported in favour of
the request, In the Chárter of Jus-
tice, dated in 1817, the letters-pa-
tent of Geo. 1 and Geo, 2 are both
recited as having been issued to esta-
blish courts of j ustice in "the town
and territory of Gibraltar;" and the
expression "town and territory"
was also used in the opinion of the
lwo 1earned persons ahove referred
to, who recommend that "sorne
settlement ought to be made of the
property in the houses and lands
there." In Campllfll v , Hall, Lord
Mansfield says, (Cowp. 211,)
"there are inhabitanls, property,
and trade in Gibraltar." That
place had therefore before the period




COLONIAL 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. In 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 under the crown.(3)


3


Laws to which
the colonies are
subject,


when Lubboek v, Potts was decided,
been treated both by the Crown and
by the highest legal authorities as
something beyond " a mere fortress
and garrison ;" ami the true reason
for the judgment given in that case
is perhaps rather lo be found in the
statement there made, that "in fact
the term plantation, in the sense of
the navigation laws, had never been
applicd to any of the British dorni-
nions in Europe" than in any other
cireumstance, The same cause has
probably operated to keep Jersey,
Guernsey, and (since the 41 Geo. 3)
Malta, in the anomalous situation
of " British possessions in Europe,"
that is, in a state in whicb, with re-
ganl to trade, they are considered
in ono charactcr, and with regard
to legal government in another,
They have not the benefit of a direct
tradc with the East and West Indian
colonies ; but appeal,]je írom them
as from those colonies to the King in


council, (j}Iostynv, Fabrigas,Cowp.
174.) Tpon the subject of this note
see Lubbock v. Potts, 7 East, 449 ;
3 Smith, 401, S. C.; Acton's Rep,
305; 12 Car.2, c.18, s. 18 (since
repealed); Rubichon v. HumIM,
1 Dow's Rep. 191; 48 Geo. 3,
c. 69; 41 Geo. 3, c.103.


(2) "The prerogative in the
West Indies, unless where it is
abridged by grants, &c. made to the
respective provinces, is that power
over the subjects which by the como
mon 1aw of the land, abstraeted
from all acts of parliament and
grants of liberties to the subjeets,
(he King eould rightfully exercise in
England." 1 Chao Opino 233; see
ibid.203.


(3) The case of pro[J1"ietary and
that of ehnrter governments, (to be
afterwards noticed,) are so far ex-
ceptions to this, that the governors
and other officers are appointed not
by the crown, but by those to whom


B 2




A SUMMAilY üF


On the other hand, the king is bound in the colo-
nies, as at ha me, 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 oonquest , Q, by cession under treaty;
or 3, by occupancy, viz, where an uninhabited country
is discovered by British subjects, and is upon such dis-
covery adopted 01' recognized by the crown as part of
its possessions.(5)


In case of conquest 01' cession, the conquered 01'
ceded country retains its former laws, till they are
changed by competent authority.


It has been said that aH unchristian or immoral in-
stitutions are ipso facto abrogated,(6) and in lieu of
the crown has delegated its rights,
But there is at present no proprie-
tary, nor any cbarter government in
tbe British colonies.


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


tbe crown by bereditary descent, 01'
otber lawful title. As to which see
Calvin's case, 7 Co. 17 b. But it
did not seem worth wbile to treat
tbis rare mode of aequisition as
part of the general classilication.


(6) The rule is thus broadly
staled, (Calvin's case, 7 Reports,
34,) that "if a Christian kiug
sbould eouquer a kingdom of au
inlidel, and bring it under his sub-
jection, there ipso facto the laws of
the infídel are abrogated, for that
they be not only against Christia-
nity, but against the laws of God
and nature contained in the deca-
legue.' In the case of B!a"kq,'d v.


Galdy, decided in the reign of
Will.3, and reported in 2 Salk.
411, that rule is adopted, with some
slight restriction. It is there said,
"in the case of an infidel eountry
tbeir laws by conquest do not en-
tirely cease, but only such as are
against the laws of God ;" and that
in all sucb cases where tbe laws are
rejected 01' silent, the conquered
country shall be governed according
to the rule of natural equity,'
In the report of the same case in
4 Mod, 222, although this point is
raised in the argument, it is not meno
tioned inthejudgment. In2P.Wms.
75, there is a note of a staternent
made by the Master of tbe RolIs
as to something that had been de-
termined in the Privy Council upon
an appeal from tbe plantations.
111 that note the Master of tbe RoIls
representa the council to have de-




COLO?\IAL LAW.


th ern the rules of natural cquity are to be adrninistered


5


cided, that " until such laws given
by the conquering prince, the laws
and customs of the conquered coun-
try shall hold place, unless where
these are contrary lo ou r religion, or
enact any thing that is mal",,, in se.
or are silent; for in all such cases the
Iaws of the conquering country shall
prevail." The case of Blankard v.
Galdy, as reporled in Salkeld, is
refcrred lo. But two other reports
of that case exisl in Holt, 341,
and in Comberbach, 228. In the
forrner, nothing is said about the
abrogation of laws hostilo to Chris-
tianity in a conquered country,
In the latter, the authority of Cal.
vin's case, on which the reporls in
Salkeld and Peere Wms, seem solely
lo found theruselves, is thus ob-
served upon: _" Ami wherc it is
said in Calvi,,'s case that the laws of
a conquered heathen counlry do im-
medialely cease, that may be true
of laws for rcligion, but it seems
otherwise of laws touching the go-
vernment.' Tire doubt here throwu
upon the somewhut sweeping terms
of the doctrine as stated in Calv;,,'s
case, may be justified not only on
principles of reason, bul even by the
practice of the English government,
Ir unchristian or immoral institu-
tions are ipso Jacto abrogated, lhen
it would have been out of the power
of the English to have tolerated
them even for a momento Yel they
have done so in our Easl Indian
pcssessions (37 Geo. 3, e. 142,
s. 12,) in the cases of the Sut-
lees and the harbarous rites of
Jughernaut, Thc immoral or un-
christian nature of such cusloms af-
foros a reason for abrogating them,


but then such abrogation must be
the effecl of the declared will of the
conqueror, and cannot take place
as of course and unavoidably on the
instanl of the conquest, LOl'l1
Mausfield's opinion therefore was
(Campbell v. Hall, Cowp, 209,) that
the doctrine should stand thus:-
"lhal the laws of a conquered
eounlry continue in force until they
are altered by the conqueror;" and
he added, "the absurd exception
as to Pagans mentioned in Calvi,,'s
c,,,e, shows the universality and ano
tiquity of the maxim, For that dis-
linction could not exist befare thc
Christian era, and in al! probability
arose from the mad enthusiasm of
the crusades.' Within this limit the
rule would now seem to be confined.
Bul there is one distinction that
deserves to be considered. 'I'his re.
lates lo Iaws conlrary to the funda'
mental principies of the British
constitutiou, Such laws wOIIJd,
with regard to the conqueror al
leasl, ano, it is apprehended, with
regard to the conquered also, cease
upon the instanl of conquest, Thus
if any counlry in which the inflic-
tion of torture was the law, should
come into the possession of Greal
Britain, such law would fall of
coursc, The constitution of Great
Britain would pul an end to it.
(Per Lord Chief J ustice De Grey,
Trial of F"brigas v. Masty", 6u.~
Stokes, 11.) Al!owing for exeep·
tions of this sort, the law would
remain as bcfore, and would not
he altered but by the declared will
of the conqueror. Custorns that were
merely nnchristian, but not contrary
to lhe fundamcntal conslitulion of




6 A SUMMARY üF
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 country is silent,


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


the British empire, nor to the in-
alienable rights of her citizens, by
whose arms the conquest had been
obtained, certainly would no! be
abrogated by the mere fact of con-
quest. Sorne such customs exist at
this moment 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 iscertainly not Christian, nor
can the forms of swearing peculiar
to the Jews, the Hindoos, aud
the Turks, be said to be so, yet
all are adrnitted not only in the
courts of our colonias, but in West-
minster-Hall itself, on the principie
of the common law, that there is no
particular form essential to an oath
taken by a witness ; that which he
considera the most binding shall bc
adopted. Everett v, Atcheson, Cowp,
389.


(7) 2 Salk. 411. Would not
tbis be in efl'ect to give the con-
quered place the laws of the con-
quering country, to such extent at
least as they could be applicable lo


its particu lar circumstances 1 For,
generally speaking. the common
law of each country is esteemed
by the inhabitants of that counlry
to consist of the rules of natural
equity, and the mind of the judge
who presided in the tribunals of
a conquered country would per-
haps havo no other standard lo
judge of those rules, but that with
which his acqunintance with the
common law of his own country had
furnished hirn.


(8) Wytham v , l)1lIton,3 Mod ,
160; Show. P. C. 24; 21'. Wms.
75; Campbell v, HuU, Cowp, 204.


Lord Mansñeld however in the
last book says, that Ibis power is
subordinate to the authority of par-
Iiament, aud, therefore, that he
"cannot make any new change
contrary to fundamental principies;
he cannot exempt an inhabitant
from tbat particular dominion, as
for instance, frorn tbe laws of trade,
or from tbe power of parliament, or
give bim privileges exclusive of his
other subjccts, and so in many other
instances which migbt 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 former law of the place, 01' of
an entirely new code superseding it altogether. And it
may involve an alteration also of its political constitution
01' form of government.


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


In giving a new constitution to a conquercd 01' ceded
colony, if the Crown provides (as has hitherto usually
been thc case) that a Rcpresentatioe Assernbly shall be
summoned among the inhabitants of the colony, with
the power of making laws for its interior government,
it has been decided that the Crown cannot afterwards
exercise with respect to such colony its former right of
legislation.(l) It has impliedly renounced that right
by the appointment of a legislative power within the
colony itself.


In the case of a colony acquired by occupancy,
which is a plantation in the strict and original sense of
the word, the law of England then in being, is imme-
diately and ipso Jacto in force in the new settlement ;(Q)


,


7


(9) Blankard v , Caldy, 4 Mod.
222. But when by royal commis-
sion a new legal constitution has
been granted to a colony, esta-
blishing a legislature, courts of jus-
tice, &c. tbe commission has ge-
nerally directed that the law
administered in its courts of j ustice
sball be in all things as nearly
agreeable as possible to the la w of
England. After the issuing of such
commission, therefore, tbe law of
England is the rule in cases not
specially provided Ior, See post.


(1) Campbell v. Hall, Cowp.204,
(2) Determined by Lords of


Privy Council on appeal, see 2 P.
Wms. 75; see also 1 Black, Como
107; Como Dig, Ley, 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 contest the supe-
riority witb them, the laws of the
mother country, so far as tbey could
be applicable, would naturally be
adopled by the settlers, Mr, Fox
gives another reason for this, when




8 A SUMMARY 01'
and such a colony is not subject to the legislation of the
Crown, for the King cannot pretend in that case to the
rights of a conqueror,(3) but the subjects of Great
Britain, the discoverers and first inhabitants of the
place, carry there with them their own inalienable birth-
right, the laws of their country.(4)


But they carry only so much of these laws as is
"applicable to the condition of an infant colony; such,
for instance, as the general rules of inheritanee, and
protection from personal injuries. For the artificial re-
finements and distinctions incident to the property of
a great and commercial people, the laws of poliee and
revenue, (sueh especially as are enforced by penalties,)
the mode of maintenance for the established clergy, the
jurisdiction of spiritual courts, and a multitude of other
provisions,(5) are neither necessary nor convenient for


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


(3) So if a conntry come to the
crown by title 01' descent, it is not
subject to legislation by the crown,
It retains its old laws tilI changed
by act of parliament. Calvin', case,
1 Co. 17 b.


(4) The common law of England
is the eommon law of the planta-
tions, and all slatutes in affirmance
of the eommon law passed in Eng-
land antecedent to the settlement of
any colony, are in force in that co-
lony, unless there is sorne prívate
act to the contrary, thongh no sta-
tntes made since those settlernents
are there in force, unless the colo-
nles are particularly mentioned,


" Let an Englishman go where he
wilI, 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 subjects
carry with them your Majesty's laws
wherever they form colonies.' Per
Attorney and Solicitor-General
Pratt and Yorke.-" In a place oc-
cupied by the king's troops, the sub-
jects of England, would impliedly
carry the law of England with
them.' PerLord Ellenborougb.Ci.l.
in Rex v. TheInhahitants '!f Br'amp-
to", 10 East, 288.


(5) I\mong these may be noticed
the bankrupt and pOOl' Iaws, the
mortmain acts, and the game laws.
See Auovneq-Genev«! v, Stuart,
2 Meriv. 143. And it seerns al!
pella! sta tutes, Daiccs v. Puinter,
Freernan, He!'. 75. In this last
case it is ernphatically said, "bcne·




COLONIAL LA W.


them, and therefore not in force. What shall be ad-
mitted and what rejected, at what times and under what
circumstances, must, in cases of dispute, be decided in
the first instance by their own provincial judicature,
subject to the revision and control of the King in coun-
cil; the whole of their constitutions being also liable to
be new modelled and reformed by the general superin-
tendingpower of the legislature in the mother coun-
try."(6)


In a colony so circumstanced, as well as in all others,
the right of appointing governors and other officers for
the execution of the Iaw, of erecting courts of justice
for its administration, and of summoning representativo
assemblies among its inhabitants, for the purpose of


9


ficial laws mighl extcnd lo lhings
nol in esse al the lime of making the
statute, Penal statutes never do."
See also 2 Rep. West India Com-
missioners, 61.


(6) BJack. Corno 108. Stoke's
Law of Colonies, 4. It has been
laid down by learned writers, "lhat
it is nol true as a general proposi-
tion that the inhabitants of the colo-
nies carry with them the st«tute laws
of the real m; hut whether lbey do so
01' not depends upon circumstances,
on the effect of their chárter, on
usage, and the acts of their legisla-
lure; and it would be both ineon-
venient and dangerous to adopt the
proposition in so large an extent;"
Chitty on Commerce, vol. 1, p. 639,
cites 1 Chal. Opino 195, 198, 220.
But if by this is meant thal they
carry no par! of the slatule law,
it will be diílicult lo assent lo the
doctrine ; for it is conceived to be
c1early established, that a colony
acquired by occupancy, receives the
statute as well as the eommon


law of England then in being,
subjeel (as lo both) lo the excep-
tions noticed in the texto Accord-
ingly we find Lord Mansfield in thc
case of Campbell V. Hall, Howell's
State Tria!s, vol. 20, p.289, thus
expressing himsclf:-" It is ahsurd
that in the colonies lhey should
carry all the laws of England with
thern, They carry such only as are
applicable lo their situation, 1 re-
mernber il has been so determined in
the council, There was a question
whether tbe Statute of Charitable
Uses. operated on the Island of
Nevis, 11was determioed it did noto
No laws bul such as were applicabls
lo their condition, unless expressly
enacted," This case was the best
that could have been chosen for the
illustration of the rule, for Nevis
was a place acquired by occupancy.
The English first settled there in
1628. See Raynal's East and Wesl
Indies, 3d ed. 1'01. 4, p. 323; and
Edwards, 1'01.1, book3, c. 4, S. 2.




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 diflers from that of colonies acquired by con-
quest 01' cession,


On the other hand, every colony, whether acquired by
occupancy, by conquest 01' by cession, is subject at all
periods of its existence, as part of the British domi-
nions, to the legislative authority uf the Britisñ Parlia-
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 part repealed, and new
laws, 01' a new constitution, 'be at pleasure imposed.(9)


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


(8) The principle on which this
rule depends, so far as it applies to
colonies acquired by the occupancy
of British subjects, is thus stated ur-
gllelldoandsilently adoptedin a most
elaborate report made to the king
by the Attorney ami Solicitor-Ge-
neral Northey and Thompson, on
the petition of the Earl of Suther
land respecting the king's and the
petitioner's rights to the three Jower
counties on the Delaware. "A sub-
jecl of the crown could not make
foreign acquisitions by conquest but
for the henefit of the crown."
(1 Chal. Opino 41.) This prin-
ciple appears to have governed the
opinions of the various lawyers,
who at different times made their
reports to the governmenl on the
subject of escheats in the colonies.
See 1 Chal. Opino 122, et seq. Ano-
ther view of the same subject is
taken by MI'. Fox in a speech on
an amendment moved as lo one of


the clauses in the "Colonial Place
Bill." The specch was delivered
on tbe 2d July. 1782. «rr any
person will just consider from
whenco we attempted to legislate
for America, he must be convinced
that in the first establishment of the
colonies it was indispensable. They
were then merely the cultivators of
the soil. It was not for them to
establish a forrn of government in-
dependent of the sta te, which could
alone be their protection. They
were in possession of every privi-
lege, and had gone there only lo
acquire possession of properly. But
when the acquisition of propel'ty
excited ambition to exert its autho-
ritybeyond the limits of prolection,
it was then their immediale interest,
upon every principie of natural and
political justice, to resist this abuse
of legislativo authority." Speech,
p.23.


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


·1


1




COLONIAL LAW.


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


The exercise however of this general legislative au-
thority of the British Parliament for the particular pur-
pose of raising a revenue by internal taxation in the
colonies, was the famous subject of dissension between
this countryand her North American provinces, and


11


(1) B. Edwards (vol. 2, 1'.349,
359,) controverts this position, and
argues that thc restriction in 7 & 8
Will, 3, c. 22, s. 9, (which was re-
pealcd by thc 6 Gco. 4, c. 105, and
is now re-enaeted nearly in the
same words by the 3 & 4 \V. 4,
c. 59, s, 56,) prohibiting such co-
lonial laws as are repugnant to
any law of Great Britain relative to
the plantations, implies a recipro-
cal obligation on thc part of the
British Parliament not to interpose
its authority in matters to which the
colonial assernblies are themselves
competcnt, a fallacy which seems
scarcely to deserve refutation, The
implied obligation extends no furo
ther than this, that parliament will
not interfere unless in case of neces-
sity ; it is by no mean equivalent to
a declaration that parliament will
not interfere at all, for that would
amount to an unconditional decla-
ration that the eolony was inde-
pendent of the mother country. The
right of the British Parliament to
legislate for al! the colonies, and in
the way of in ternal as wel! as como
mercial regulation, is established by
the highest legal authoruies, (see
the cases cited in the last note,)
and has also been expressly declared
by the act 6 Geo. 3, c. 12, which


(except as to the power of internal
taxation, the exercise of which has
been abandoned by 18 Geo. 3,
c. 12,) is still unrepealed. The
same declaration was specially
made with regarrl to Canada by
the 31 Geo.3, c.31, s.46, com-
monly calleJ "The Quebec Act."
Indeed on this subject it is suffi-
cient to observe, that the Par-
liament of Great Britain has in
many instances, and during a long
succession of years, passed laws for
thc regulation of the internal go-
vernment of all plantations (without
distinction) dependant on the Bri-
ish crown, (see several of these


laws noticed in a subsequent part of
this work); and that, except in the
case of the ruptura with the Ame-
rican provinces, such enactments
have been uniformly received and
are still acted upon. The exercise
of protection, on the one hand,
and the right of paramount legisla-
tion on the other, must be considered
as co-existent, When the necessity
for the first ceases, the justification
and even the practicability of the
other wil! cease also, At the same
time, though there can be no doubt
as to the right, it is almost equally
c1ear that that right should be exer-
cised as seldom as possible.




12 A SUlIIMAltY 01'


(co-operating with other causes of discontent) ultimately
led to their dismernberment from the body of tbe em-
pire.(2) At an early period of the contest, the authority
of the British Parliament in tbis respect was asserted
by the 6 Geo.B, c. 152, which, after reeiting 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 assem-
blies of the same, the sole and exclusive right of impos-
ing duties and taxes upon his Majesty's subjeetsin the
said colonies and plantations, ancl have in pursuanee of
sueh claim passecl certain votes, resolutions, ancl orders
derogatory to the legislative authority of parliament,
and inconsistent with the clependency of the saicl colo-
nies and plantations upon the Crown of Great Britain,"
proeeeds to declare, "that the saicl colonies and planta-
tions in America have been, are, and of right ought to
be, subordinate unto and depenclant upon the Imperial
Crown ancl Parliament of Great Britain, Ancl that the
King's Majesty by ancl with the advice and consent of
the lords spiritual and temporal and commons of Gl'eat
Britain in Parliarnent assemblcd, had, hath, and of right
ought to have full power and authority to make laws
and statutes of suffieient force and validity to bincl the
colonies ancl peoplc of Ameriea subjects to the Crown of
Great Britain in all cases whatsoever.' And further,
" that all resolutions, votes, orders, and proeeedings in
any of the said eolonies ancl plantations, whereby the
power and authority of the Parliament of Great Britain


(2) But (as observed by an able
writer) H even in regard tú those
laxes which a vain and unprofilable
attempl was made lo impose upon the
formerly existing colonies in North
America, they were never dreamt of
as a tl'ibltte,and never spoken of but


in a sense contrary lo the very idea
of a tribute-s-that of reimbursing
lo the motber counlry a parl, and
no more than a part, of that which
they cost her in governing and de-
fending them," Arricle Colon!) in
Supp, to Ene. Brit,




COLO~IAL LAW.


to make laws and statutes as aforesaid, IS denied 01'
drawn into question, are, and are hereby declared to be,
utterly null and void to all intents anc1 purposes what-
soever."


Before the conclusion of the war, however, the exer-
cise of this obnoxious claim was renouncec1 by another
act of the British legislature, 18 Geo. 3, c.12,(3) usually
quoted as the "Declaratory Act." It recites, that "taxa~
tion by the Parliament of Great Britain for the purpose
of raising a revénue in his Majesty's colonies, provinces,
and plantations in North America, has been found by
experience to create great uneasinesses and disorders
among his Majesty's faithful subjects, who may never-
theless be disposec1 to acknowledge the justice of con-
tributing to the common defence of the empire, provided
such contribution should be raised under the authority
of the general court 01' general assembly of each respec-
tive colony, province, 01' plantation. And whereas, in
order as well to remove the said uneasinesses and to
quiet the minds of his Majesty's subjects who may be
disposed to return to their allegiance, as to restore the
peace and welfare of all his Majcsty's dominions, it is
expedient to declare, that tbe King and Parliament of
Gl'eat 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
not impose any duty, tax, 01' assessment whatever, pay-
able in any of his Majesty's colonies, provinces, 01'


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


13


(3) As to the renunciation of
the claim itself, which this statute
has been supposed to make, see the
observations 01' Lord Chancellor
Brougham, delivered on the second


reading of the Colonial Slavery
Abolition 13i11, 12th August, 1833.
Mirror of Parl, p. 3694. And see
also 31 Geo.3, c. 51, commonly
called the Quebec Bill.




14 A SUMMAR y OF
plantations in North América 01' the West Indies, ex-
cept only such duties as it may be expedient to impose
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
shall be respectively levied, in such manner as other
duties colIected by the authority of the respective gene-
ral courts 01' general assemblies of such colonies, pro-
vinces, 01' plantations are ordinarily paid and ap_
plied."(4)


(4) This exception was conform-
able lo the views of the N orth Ame-
rican provinees thernselves al the
commeneement of the dispute.
Franklin sta tes in his examination,
"that the authority of parliament
was allowed lo be valid in all laws,
except such as should lay internal
laxes. It never was disputed in
laying duties lo rcgulate corn-
merce." Aud again, "1 never hcard
any objection lo tbe right of laying
duties to regulare commerce, but
a right lo lay intemal laxes was
never supposed lo be in parliament,
as wc are not representad there."
He is then met by the question,
whether he could name any act of
assembly that made such distinc-
tion: lo whieh he answers, "1 do
not know that there was any, Lthink
there was never an occasion to make
any such aet till now that you have
attempted to tax us, Tl.ut has oc-
easioned resolutions of assembly
deelaring the distinction." Being
then asked if he could show any
kind of differenee between the two
modes of laxing, he says, "1 think
the differenee is very great. An ex-
ternal tax is a duty laid on commo-
dities imported ; that dut.y is added


lo the flrst cost and other eharges on
the commodity, and wheu it is of-
fered lo sale makes a part of the
price, &e. But an internal tax is
foreed from the people without their
consent, if no! laid by their own
represeutatives," &e. He is then
pressed by the objection, whether the
paymenl lo the Post-office, whieh
they had long acquiesccd in, was not
a tax as well as a regulalion. He an-
swers " J'ío,-·'l'he money paid for
the postage of a Ietter is not al' Ihe
nature al' a tax, 11 is merely a qua,,-
t1lm mentít for a service done. No
person is compel1able to pay the mo-
ney if he does not choose lo reeeive
the service, Aman still, as befare
the act, sends his letter by a ser-
vant o,' speeial messenger 01' a
íriend, if he thinks it cheaper 01'
safer." Anrl it heing afterwards
suggested, that at least there could
be Ha differenee as to the matter in
question between an ercise and a
duty on importation, he ,ays "Yes,
a very material one. The sea is
yours, you maintain by your fíeets
the safety of na vigation on it, and
keep it clear of pirates. Y ou may
have therefore a natural and equit-
able l'ig1rl to sorne tall 01' duty on




COLONIAL LAW.


Nor is every aet of the British Parliament even
within the lawful compass of the legislative authority
binding on the eolonies, for it results from the principles
already stated, that in conquered 01' ceded settlemcnts
acts of parliaments passed before their aequisition have
in general no force, unless adopted 01' incorporated by
royal 01' parliamentary authority, 01' by act of their own
Icgislatures, cither by way of specific enaetment, 01' as
part of the general law of the mother eountry, into their
subsequent eode.(5) For such colonies remain (as we
have seen) in all matters not otherwise provided for,
subject to their formcr laws. But this is open to a very
important exception, viz, that of all statutes which are
manifestly of universal poliey, and intended to affeet all
our transmarine possessions, at whatever period they
shall be acquired, sueh, for cxample, as navigation
acts, 01' the acts for abolishing the slave trade and slavery.
F 01' such statutes will upon the conguest 01' cession ipso
jacto, and 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 Englaml, (comprising in general the statute as


15


merchandize carried throngh part of
your dorninions, towards defraying
the expense you are at in ships to
maintain the safety of that car-
riage."


(5) Such adoption or incorpora-
tion of the general law of England
has, in a great proportion of our set-
tlements, taken place. For in those
colonies where legislative assern-
blies have been establishcd, the
royal commissions regulating their
eonstitution, have ordinarily directed
that their courts of justice should
administer law "as nearly as
might be agreeable to the law of


England," which seems t.o include
the statute as well as the common
law at t.hat t.ime existing, i. e. so
much as is applicable to the new
settlement. And in sorne of thern
t.he law of England has been ex-
pressly adopted by acts of their
assemblies, So in sorne colonies
not possessing legislative assernblies,
such as Gibraltar, &c. the wbole
body of English law, as it exist.ed at
the time of the acquisition, has been
adopted.


(6) See 14 Geo. 3, c.83, s, 18,
as to Cenada,




16


Particular legal
constitutions
actually pre-
vailing in the
British colouies,


A SUl\DrARY üF


well as the common law.) so far as it \Hay be applicable
to the circumstances of each settlement, is in force from
the period of their acquisition.


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,
such as the "eolonies," 01' "the 'Vest Indies," 01'
"the dominions of his Majesty," 01' "tIJe British pos-
sessions abroad ;" 01' by reasonable construction, 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.Io)


H. Having thus eonsidered in a general 01' abstraet
point of view, to what laws the eolonies are subjeet, we
have now to examine the particular legal constitutions
at present prevailing among them,


The usual form of government is under a royal eom-
mission, authorizing the person therein named to govern
the eolonyas the king's representative, 01' deputy, aeeom-
panied by instruetions from the king in eouneil, regulat-
ing the manner in whieh that duty is to be performed,
In some cases, however, the king has granted out a
eoIony to sorne individual, to hoId in the naturc of a


(7) lChaI.Opin.197--220;2id.
202; 4 !\Iod. 225; Como Dig. Xa-
vigation, G.3; 2 P. Wms, 75;
l Black, Como 108; 2 Ld. Raym.


1245, 1246; 2 Sall;. 411; Stoke's
Law of Col. 5, el "<j'


(8) Dwarris, l st Hep. p.;', and
the authorities before cited,




COLONIAL LA W.


feudatory principality, with inferior regalities and subor-
dinatc powers of legislation, but subject to the sovereignty
of the motlier country. And there are other instances
in wliich a coIony has been erected by charter into a
sort of civil corporation, with powcr to mako bye-laws
for the interior government of the coIony, and with such
rights and authorities as have been speeially provided in
the charter. These three severa] kinds of constitutions
have been distinguished by Blackstone, under the differ-
ent appellations of Provincial Establishments, (9) Pro-
prietary Governments, (1) aml Charter Gooernments. (2)
In the first, the govermnent and council were always
named by the King. In the next, the proprietors liad a
right of appointing governors, subject, however, since the
7 & 8 W m. 3, c. 22, to the approval of the Crown, and
subjcct to the same oaths and the like penalties as His
Majesty's governors and commanders in chief were liable


17


(9) Provincial Establishments,
Their constitutions depended on the
respective commissions issueil by the
crown tú the governors, and the 1n-
structions which usually accompani-
ed these commissions, under the 1U-
thority of which provincial assern-
blies were constitutcd with thc pOlVe!'
of making local ordinances not re-
pugnant to the laws ofGreat Britain.
t Lll. Como lOa; Stokes' LaIV of
Colonies, 14.


(1) Proprietary G overnments were
grauted out uy the crown to indivi-
duals, in the nature of feudatory
principalities, with al! the inferior
m~alities und subordinatc pOlVers of
Iegislation which formcrly belonged
lo the owncrs 01' counties palatine :
yet still with thesc express condi-
tions, that the end Ior which the
grant was made be substantially
pursued ; and that nothing be at-


tempted which may derogate from
the sovereignty of the mother coun-
tl'Y. I BI. Como 108 ; Stokes, 19.


(2) Charter Governments were in
the nature of civil corporations, with
the power of making byeIaws for
their OWIl interior regulation, not
contrarv to the laws uf England, and
with such righlS and authorities os
are speeially given them in their
several charters of iucorporation.
1 B1. Como 108; Stokes, 20, ei.


Thcse three appellntions have
been given to the three sorts of go-
vernrnents. (l ai. Como 109; l\ion-
tefiori, Dict, tit, Plantation ; Stokes'
LalV of Colonies, 13, 14; Hecs'
Cyclop, tit. Charter Goveruments.)
1'0 the first of'them the title of King's
Governmcnts, (Edwards' Hist. \Vest
lndie" vol. 2, p. 315,) and thalof
Hoyál Governments (Eur. Sello vol.
2, p. 298,) have also bcen applied.


e




18 A 3UMMARY üF
too Jn the Iast, 01' chárter governments, the people sorne-
times, anrl sometimos the King, (by special reservation in
the charter, as in the case of Massachusctts.) appointed
the governor, but the people eleetecl the house of repre-
sentatives, and these latter elected the council, which re-
sembled, in many respects, un upper house of parliament.
Byone writer (Europ. Sett, vol. 52, p. 300,) the last form
of government is thus clescribecl; HIt is to all purposes
a mere democracy; they elect every one of their own
officers from the highest to the lowest; displace them at
pleasure, and the laws which they enact are valid with-
out the royal approbation."


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


In the West Jnclies and South America:-
1. Antigua, including Barbuda.
~. Barbadoes,
3. British Guiana. (3)
4·. Dominica.
•t). Grenada.
s, Jamaica.
7. Montserrat,
8. Nevis.
9. Sto Christopher's, inclucling Anguilla.


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


(3) See (in the Appendix) the
cornrnission lo Major General :OTr-
han. dated 4th of :\farch, 1831, by
which lhe united colonies 01' Deme-
rara and Essequibo and the colony
01' Berbice were consolidated into
one COl011Y, lo be caBed" British


Guiana," and also the orders in
council of thc 23d of April ami 20lh
01' .Iune, 1831, establishing ncw
courts jointly to adrninister justice
in British Guiana, Trinidad, and
Sto Lucia.




COLONIAL LAW.


13. Trinidad.
14,. Virgin Islands.


1n North America, continental and insular:-
l. Bahama Islands.
2. The Bermuda, 01' Somers' I slands,
3. Canada, Lower,
4. Canada, Uppcr.
5. Prince Edward's Island.
6. New Brunswick.
7. Newfoundland, with part of Labrador.
8. Nova Scotia, including Cape Bretón.


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


Coast,
In the Indian Seas:-


l. Ceylon.
2. Mauritius, with thc Seychellcs.


In the South Seas :-
1. New South "Vales, with Norfolk Island,
~!. Van Dieman's Land.
3. Western Australia.


And in addition to these, may be enumeratcd the fol-
lowing Briüsh possessions, which are said not strictly to
fall within the definition of colonies.


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


19


(4) Malta to be deemed in Eu-
rape, 3 & 4 W. 4, c. {¡2, s, 120. In
this enumeration al' the colonies
nothing has been said al' Honduras,
which has heeu decidcd cxpressly
not to be a colony (see mlle, p. 2, n.
1.) Western Australia, mentioned


in thc above list, was created a co-
lony by the 10 Geo, 4, c.22, and
the mode al' its g'overnment there
provided foro See more on the sub-
ject of these settlements in the Ap-
pendix.


c2




20


OC Sierra Leone,
and the settle-
ments on the
Gold Coasl.


A SUilIMARY or


These are almost al] of the class aboye described, as
Provincial Establishsnents, there being at present no PTO-
prietaru Gooernment, nor, with the exception of Sierra
Leone, (if that be an exception,) any Chorter Gocern-
ment among the colonial dependcncies of Great Britain.(5)


Sierra Leone ought, perhaps, to be designated as a
charter government, for, in point of f01'111, it is by char-
ter, and not under the royal commission to its governor,
that its constitution has been established. Considered
as to the mode of its acquisition too, the case of this
colony is peculiar, and entitles it to be separately noticed,
for it belongs not properly to the class of those obtaincd
by conquest 01' cession, nor of those acquired by occu-
pancy, though it partakes more of the nature of a colony
acquired by occupancy than of any other, It was pur-
chased from the native chiefs by certain prívate English
subjects, who were induccd ro found a settlement therc,
with the benevolent object of repressing thc slave trade
and promoting the civilization of (he African continent.
With this view they also obtained, by act of parliament,
(31 Geo. 3, c. 55,) a charter of incorporation, and autho-
rity was given to the King to grant to (he company the
exclusive right of holding the peninsula of'Sierra Leone,
and of purchasing lands from the chieftains of the coun-
try: after an experiment of sorne years, they abandoned


(5) This has no! always been the
case. The Island al' Barbadoes was
formerly granled lo the Earl 01' Cal'.
lisie, ami that al' SI. Lucia lo the
Duke of ~Iolllague, and both were in
the nalure al' proprielary g"overn-
menls. Carolina was formerly a
go\"ernment of the sanie kiud , lodgcd
in eight proprietaries. l\"ew Jersey.
Pensylvania and ~brylaJ1(l, were
also proprietary go,ernmenls, (Eu.
ropean Settlen ents , \ el. 2, p. 299.)


The form al' a Charler Governmenl
originally prevailed in al! the pro-
vincos 01' New England, and al a
later period was still established in
111"0 of them, - Connecticut and
Hhooe Lland. 'I'hese NeIV EIIg-
land govelnments wcre those which
1\1r. Isurk«, in file passage above
quotcd, described as " mere demo .
cracies," (EuJ'Opean Seulements,
vol. 2, p. 300.)




21COLONIAL LAW.
their project, and surrendercd their charter to thc Crown,
By 11,7 Geo. 3, sess. 2, e. 'H" the Crown was authorized
to accept this surrender, and a new charter then issued,
introducing such alterations into tho constitution of the
settlement as the new state of things required, By this
charter, the power of making laws is vested in the
governor and council of the colony, Afterwards, by
1 & 2 Geo. 4, c. ~28, sect. 3, Ris Majesty was empowered
to order and direct that the forts aneI settlements on the
Gold Coast of Africa, then hcld by British subjects, and
any possessions on the west eoast of África, between the
twentieth degrcc of north latitude and the twcntieth de-
gl'ec of south Iatitudc, which then did, 01' at any time
thcrcafter, might bclong to His Majesty, should be an-
nexed to, 01' rnade dependencies on the colony of Sierra
Leonc, after which, they should be subjeet to al! laws
ordaincd by the governor aneI couneil of thc colony, and
not disallowcd by Ris Majosty, in thc samc manncr as if
they had originally formed part of Sierra Leone. The
annexation so authorized has aeeordingly sinee been di-
rectcd by order in council. (G)


'I'hree other of the colonies, viz, Newfoundland, New Of the colonies
S 1 UT l 1 u D" , 1 1 " 1 acquired by dis-out 1 H a es, anc tan reman s ~anc, were aeqlllrec covery or occu-
by discovery 01' simple occupation, and are conscquently pation.
not subject to thc legislation of the Crown, but are
governed by the general law of Englanel as it existed at
the period of their acquirement, eubject to such regula-
tions as the British Parliament has since speeially pro-
vided for thcm, Of the acts regulating these colonies
as to the administration of justice, the following are the
principal: "An Act for the better administration of jUS"
tiee in NewfoundIand, and for othcr purposes," 5 Geo. 4"


(6) Bis Majcsty, hy lctters pa-
tent, grantcd a Charlee rif ¡'1~tiCC
lo Sierra Leone, establíshiug courts


of judiealure with rcgulations as to
the proceedings therein, and appeals
therefrom, Scc,




Of the colonics
acquired by con-
quest, and still
subjeello the
legislation of the
Crown,


A SUMMARY üF


c. 67, (7) "An Act to provide untiI the 1st day of J uIy,
1827, and untiI thc end of the next session oí' Parlia-
ment, for the better administration of justice in Ncw
South Wales and Van Dicman's Land, and for the more
effcctual government thereof, and for other purposes re-
Iating thereto." 4 Geo. 1" c. ~)6. (8)


'I'here are other coIonies which having been originalIy
acquired by conquest 01' cession, and having yet obtained
no grant 01' a rcpresentati ve Iegislative assernbly, are


en For previous acts, see Reeves'
History of Newfoundlund, whieh
contains a complete history of the
constitution of this colony. See also
an act as to celebration of lJwr'riages
in Newfoundland, 5 G. 4, c. 68.


By the 5 G. 4, e. 67, his majesly
was empowered to issue letters pa-
tent instituting courts of judicalure
in this colony, with rules as lo 1'1'0-
ceedings thcrein aud appeals there-
from, S;c. A Charle,. '?/ Justicc was
accordingly issued for thesc pur-
poses, dated 191h of SeptemLer,
1825. (See a eop y cf jt in thc Ap-
pendix.} The supreme court was to
have the same jurisdiction as the
courts of King's 13ench, Cornmon
Pleas, Exchequer, and Chancery
have in Rngland (s. 1); thechiefand
two assistant judges were to Le bar-
risters of three years standing, (s. :2)
and the eourt was to have the juris-
dietion of courts of vice-adrniralty,
(s, 4) and to grant letters of adrni-
nistration and probates of wills. (s.5)
The leading provisions of the act are
recitad in the Charler of .Iusticc.
Newfoundland has since receiverl a
grant of the power to hold a legis-
lative assembly; and by the :2 & 3
W. 4, c. 78. s. 1, the authorily lo
repeal or alter (he two acts aLove


referred to, which till then are to
continué in full force. Seo the in-
structions to the governor, and the
proclamation of the king aecompany-
ing them, dated 26thof July, 1832.
(A eopy is in the Appendix.)


(8) This is continued by an aet of
9 G. 4, e. 83, until the 31st of De-
cernber, 1836.


By tue 4 G. 4, c. 96, bis majesty
was empowered to issue letters pa-
tent inslituting courts of judicaluTe
in Now South Wnles and Van Die-
mnn's Land, with rules as to 1'1'0-
ceedings therein, and appeals there-
from, &c. A CI",,.tcr '!f Juslice was
accorrEngly issued for these pur-
poses. See a copy of it in thc Ap-
pcndix,


'rbe supremc courts 01' K ew South
Wales and ','un Diemau's Land,
are by thc 9 Gco, 4, c. 83, ss, 3,
4, I1 & 12, lo liave the sime juris-
dictiou in thosecolonies as the courts
or Kiug's Bcnch, Common Pleas,
and Exchcqucr have in England,
and are besides to have jurisdictiou
over offences committed at sea, or
in lhe islands in the ludian ami
Pacific Occans, and to have equi-
table and ecc1esiaslical j urisdiction
wilhin thosc colonies, and their de~
pendencies.




COLONIAL LAW.


still subject to the legislation of the Crown. These are
Sto Lucia, Trinidad, the newly constitutcd colon y of
British Guiana, the Cape of Good lIope, Mauritius,
Ceylon, and the European establishments of Gibraltar,
Malta, and Heligoland.


In colonies so acquired it has alrcady been shown
that the law in force at the time of the acquisition, con-
tinues to prevail till altered by new regulations of the
Crown or Parliament. Accordingly in St. Lucia, the
ancient code of France, as it existed before the prornul-
gation of the Codc Napoleon, is still the law of the
eolony. In Trinidad the law of Spain, as cstablishcd
there at the time of the conquest by Great Britain in
1797, still prcvails. In British Guiana, thc Cape of Gooel
Hope, anel Ceylon, tliey retain the Roman Dutch Law
of the Scven Unitod Provinces, and of thc Batavian Re-
publico In Mauritius are received four of the five codes
into which the Code Napoleon is divided, viz, the Codo
Civile, the Code de Proccdurc, the Code de Commerce,
and the Code d'Instruction Criminelle, And in criminal
cases this colony is subject to the old French law, (9)
1t is to be observed, however, with respect to all these
colouies formerly helonging to France, to Spain, and to
Holland, that the law in force in each of them at the
time 01' its conquest, and stilI rctained there, though
fonned \lpon the basis of that of the parent state, differed
widely from it in many particulars. By cach of thesc
states a special systcm of law had been establishedror
the government of its colonies. Thus the Kings of
France had promulgated 01' sanctioned various ordi-
nances for their West India possessions, which are col-
lected together under the title of the Code de la Mar-


(9) The Co de Ptnal of Napoleón
is not in force there, bccause it was
not promulgatcd in France until af-


ler the conquesl of thc island by
Great Britain,




24 A SUMMARY OF
tinique. The Kings of Spain, with the advice of the
council 01' the Indies, had established a body of laws,
intituled Leyes de las Indias, 01' Recopilacion de las
Indias. The Seven United Provinces liad issucd scpa-
rate codes for thc government 01' thcir western and
eastern colonies, at the suggestion 01' the different com-
mercial companies by which those colonies were settled.
Neverthcless, these colonial statutes 01'France, Holland,
and Spain, profess to provide only for cases of local
peculiarity, leaving the general rules and principles of
law in a11 other instances to be collcctcd from the code
of the parent statc,


With respect to the European establishments, Malta (1)
is governed (as before its acquisition) by a set 01' local
ordinances called the Maltcse Codeo But Gibraltar is
in no degree now subject to the law of Spain, 1'01' by a
Charter 01' Justicc, (~2) granted by the Crown to that
settlement in the flftY-3eventh year 01' Geo. 3, a court
of justice was established therc, directcd to aduiinister
justice as ncarly as might be according to the laws of
England. AmI Hcligoland is a mere military fortress,
and can hardly be said to have any regular system of
civil government.


\Vhile such are in a general view the legal institutions
prevalent in eacli of the colonice HOW under considera-
tion, it is af the same time to be understood that caeh
of them has been subjected since its conquest by Great
Britain to mal1Y new rcgulations, modifying in various
particulars the former law. Thcse ehanges have been
introduced either by acts uf parliament, 01' by ordcr of


(1) l\J alta is not a mere military
post, for considerable produce is
raiscd ami cxported by the inhabi
tants. (~laccull.Dict, 01' COlU, ait.


"Malta,") But it has never bccn
scttled llY Ilritish subject«,


(2) Sec a cnpy nf it in the Ap-
pendix. See abo ante, n, 1, p. l.




COLONIAL LAW


thc King in Council, 01' by ordinances of the local Iegis-
Iature subsequently confirrned by Bis Majesty. (3)


In cach of thc colonies which we have hithcrto had
occasion to noticc, whethcr acquired by conquest 01'
otherwise, thcre exists, with powcrs more 01' Iess ex-
tensive, a local legislature, In general the local powcr
of making laws is vested in the govcrnor, acting with
the advicc of a council of government. Thcse councils
are established by the governor's commission and by his
general instructions issued under the signet and sign
manual, with thc advicc of the privy council, This
method prevailed in Sto Lucia, Trinidad, Berbice, (4)
the Capc of Good llope, Mauritius, Ceylon, Gibraltar,
and Malta. In Trinidad, howcvcr, thc local laws are
promulgated in the narne of the governor ulone, without
any express reference to thc advice of thc council,-a
pcculiarity which is to be attributed to a corresponding
peculiarity in the instructions to the governor of that
colony. The ordinances made by the govcrnors and
councils of these colonies, are of course subject to the
confinnation 01' disallowancc of the King; and the uni-
versal rule is, that no ordinancc of this nature shall take
effect, 01' beco me binding within the colony until so con-
firmecl, cxccpt in cases of peculiar urgency, in which thc
g()vernors are authorizcd to give immediate execution
to their laws. It is also a restriction imposcd by the
governor's commission and instructions, that the laws


25


(3) And some of them have also
reccived Clwrtcrs nf Justice undcr
letters patent from the crown, im-
l'osing in each a complete system for
the administratiou 01' the law, See
these documenta in the 1\ppendix.


(4) "The separate constitution
and form 01' civil government here-
tofore established and in use in the


said eolony 01' Herbicc, we do hcrcby
abroga le and dissolve, and do de-
clare that the same hath become ,
and hcnceforth shall be extinct and
merged in the govel'llmenl of the
eolony 01' British Guinna." Com-
mission of iUajor Gen. D'Urban,
dated 4lh March, 1831, (see it in
the Appcndix.)




26 A SUMMARY OJo'
made shall not be repugnant to the law of England. (5)
The local legislature of Demorara stands upon ground
peculiar to itself. (6) The Court of Policy is one of the
ancient institutions of that colony, and 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 exccpt with the consent of
the Court of Policy, as thc locallegislature. The expres-
sion, it lIJay be presumecl, was not inadvertentljz.used by
the colonists, although the full efíect of it was probably
not perceived by thc commander of the British forces,
It assumed, with very little real foundation, the fact that
the Court of Policy was thc locallegislature. Upon the
authority of this language, however, 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 pretensions in this respect
appears to have been called in question, for in that year
an order of the King in Council was made by which all
the existing ordinanccs of thc Court of Poliey were de-
clared to be in force until the end of the year 1826, and
until that time the couneil was to eontinue in the exer-
eise of its legislative functions, various provisions being
made for rcserving to the King in Council the right of
disallowing any existing 01' future laws of the court.
Before the expiration of the year 18;¿(), this law appears
to have been continued for another year. These orders
in council expressly state that the rccognition of the
powers exercised by the Court of Policy in making laws,


(5) This restriction is abo en-
forced by statute (3 & 4 W. 1,
c. 59, s. 56, re-euacting s. 9 of
7 & 8 W. 3, c. 22,) with regard
10 the laws of al! colonies what-
ever. See however, an exception
to this rule in the case of Lower


Cunada, established by I W. 4, c.
20.


(6) That legislalure has now be-
come the legislature of the new co-
lony of British Guiana. (See Gov,
D'Urban's Commission in the Ap-
pendix.)




COLONIAL LAW.


IS a measure mercly temporary, and that sorne other
methocl is to be substituted as SOOIl as thc necessary in-
formation can be procured, The commission to General
D'Urban, by which the unitecl colony of British Guiana
is now constitutecl, has not, however, carried the intcn-
tion thus indicated into effect, but speaks of the Court
of Policy as the existing local legislature of the colony.


The remaining colonies, forming by far the most nu-
merous class, (ancl comprising a large proportion of the
West India islands,) were originally acquired by con-
quest 01' cession, but having received constitutions under
commissions from the Crown, comprising the power of
framing laws for themsclves in representative assemblies,.
are no longer subject to the legislation of the King in
Council.


The form of thc Constitution enjoyecl by the latter
class is in all respecte as closely modelled, as local cir-
cumstances permittecl, UpOIl that of Englancl; ancl being
therefore substantially the same in each colony, admits
of one general description, To this description we now
proccecl; ancl as it is applicable to so many cliffcrent
settlements, it shall be given with some particularity of
cletail.(7) !


A commission, in the form of letters-patent under the
great seal of Great Britain, accompanied by instructions
signed by the King in Council, but not under seal, is
directcd to some individual as Govemor, appointing him
to govern the colony as the King's representativo 01'


Of thc colouies
acquired by
eun'lues 1, but
nol subject lu
legislation by
tbe crown,


Thcir Constitu-
tious


(7) Thls description is found in
a forrn almost entircly suituble lo
the purpose in Edwards's Hislory
of the Wcst Indios, (vol. 2,315, et
seq.) Mue;' has thereforc been
borrowcd from that writer, whose
accuracy may be relied upon, where


his prejudices as a colonist do not
huerfere, Auother IV ritcr, (Stokes
on thc British Colonies.) and the
Reports of the West India Como
rnissioners, have aiso bccu carcfully
consultcd,




fZ8


Of 'he Gover-
1J0f.


A SUMMARY OF


deputy, and entrusting him with the supreme executive
authority, but naming certain persons, selected from
those who have the best fortunes and most considerable
influence in the colony, as his council of state, to assist
him in his deliberations. He is also directed to sum-
mon, from time to time, among the inhabitants, a re-
presentative assembly, who, with the concurrence uf
the governor 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 commission
and instructions, when first issued in respect of any
-colony, have also commonly authoriscd the establish-
ment of such courts of justice as might be found ne-
cessary or expedient, and have provided that the law
to be administered in them shall be as nearly as pos-
sible conformable to that of England.


The rights and duties of the <¿overnol', as exprcssly
defined by the commission and instructions, or settled
by constant usage and established construction, are as
follows:


He receives by courtesy the title of Exccllcncy.s--
He is Captain-General and Commander-in-Chief ; and
if he happens to be a military man, which is very com-
monly the case, he has the actual command of all the
land forces withín his govermnent; but if he is a civi-
lian, the command in the field is of course vcsted in a
military offlcer. He commands the militia, and commis-
sions a1l its officers. The chief-justice of the chief COIll-
mon law court is genera1ly appointed by the Cl'OWIl, but
the governor issues the commissions fur the appoínt-
ment of the assistant 01' puisne judges. He norninates
and supersedes the custodes of the several parishes, j us-
tices of the peace, and other subordinate civil oflicers ;




COLO~IAL LA\V.


but in respect of sorne of the aboye appointments and
dismissions, he is required to ask the advice ofhis coun-
cil. He is empowered to suspend any of the members of
his council (8) for misconduct, till the King's pleasure
be known, transmitting his reasons to England; and if
the board is by this 01' other means reduced below a cer-
tain number, he may, at least to a limited extent, fill up
the vacancy pro tempere. (9) He has authority, with
advice of his council, to summon the Assemblies. He
appoints the place of their meeting, and when met, he


29


(8) By the instructions to the
Governor 01' Ncwfoundluud, doled
'261iJ July, 183'2, (Ho. uf Com,
Papel', 70'~), the govel'llol' is ordcrcd
(s. 9) neither H to alJgmenl nor
dimiuish the nuruher of the me m-
hers of thc council, norr to suspend
any of thern without good nurl suffi-
cien! cause, UOl" without tite consent
of the majority of the said council,
slguificd in council, after due exa-
mination of the charge against such
councillor, and his auswcr therc-
unto." A soruewhat similar pro-
vision is contuined in thc l1[)th scc,
of the supplemcntury commission to
the Govcrnor of Ceylou, iS~;IIl'U un
11", 20th March, 1033. 1I is he-
lievcd, howevcr, tltat thcsc rcstric-
tions on the Govr rnor's po\\'cr are of
vcry receut date, and that when
1\11', Edwards and MI'. Stokes wrotc
his autliority was as unlimitcd as is
stuted in tlie trxt, The lauer wri-
ter indced gives (p. 150) a form of
a gov{,1'1I01"S commissiou, which he
intimatcs is an uuthentic cOP.Y of au
exi!iting cotnlllissiolJ, h;¡\,iJlg ollly
lhe lHllnl'S uf persons and plaees
omilit'd. It cOlltains these \\'ords:
H and we do hereby gi\,c anu grant
unto )'0\1 full pOll'er alld authorily


'c:::suspend aH)' of the mernbers of
our said council frorn sitting, vOling,
01' assisting therein, if you shall
íind just cause 1'01' so dcing." From
the recital contaiued in tite 45th
section 01' tite supplementary corn-
mission above mentioued, it ap~
pears that the original commis-
sion conferred an equally absolute
powel'; and evcn in tite instructions
lo the Govcrnor of Newfoundland it
is said, " if it should happon rhat
JO" should have reasons for SllS-
peudlng any of the members of cur
sai.l couucil, 110t lit to be cununuui-
cutcd lo our said council, ~'Oll may
in thnt case suspeud surh member
without thcir consent," But Ihe
Govcruor is iunnediately to seud an
accouut of his proceediugs tu the
Sccretary of State, " togethcr with
his reasons at Iarge fur such SlIS-
pension,"


(9) By the ccmmission to ¡lte
governor uf Newfouudl and, he is
crnpowcred to 611 "p vacancies
occasioued bj' deuth or absencc, to
thc number of three , nnrl 110 lÚme.
Seco7, rnstruclioBó5, (hLttd 26th .T uJj' J
18:1Q. Parliumcnla,'y Papel', No,
70~.




30 A SUMMARY OF
possesses a negative voice in the legislature ; for without
his eonsent no bill passes into a law; and (exeept in
certain coloníes 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 all such civil
employments as the Crown does not dispose of; and with
respect to such offices as are usual1y filled up by the
British government, if vaeancies happen, the governor
appoints pro tempere, and the persons so appointed
are said to be entitled to all the emoluments, until
they are superseded by the King's appointment of


(1) This authority l1\ the Go-
ventor to adjourn a Representativc
Assembly appeal's at Iirst quite irre-
eoncilable with English notions of
the rights and privileges of such an
assembly, It is, however, thus pro-
vidcd for in a goverllor's commis-
siou :-" AmI to the end that no-
thillg may be passed or done in our
said eouncil or assembly to the pre-
judlce of US, our heirsv or succes-
sors, we will aud orduin that 'y0u the
said A. n. shall have and énjoy a
negalive voice in the making mHI
passing of all laws, statutcs, and
ordinances as aforesaid, and J ou
shall and lJlay likewise, from time
to time, as you shall jlldge it ne-
eessary, adjourn, pl'Orogue, and dis-
sol ve all general assernblies as afore-
said."~Slokes,156.


Mr. Stokes asserts, (p. 242), but
the word s uf the commission do not
quite hear out the assertion, that
H every governor is forbid to suífer
the assembly lo adjourn itself."
The reusen for ,·t'sting this po\,\rer of
adjourning the assernbly in thc go-


vernal' is thus slaled in an opinion
of Attoruey-General Pratt upvn
a question as to the powers of the
couneil and assernbly of Maryland,


" Our Houso of Commons stands
upon its own ¡"IVS, the Lex Pal'lia-
menl1ltll, whereas Assemblies in the
colonles are regulated by their re-
specti ve charters, usages, and the
cornmon law of England, and will
never be allowcd to assume those
privileges which the House of Corn-
mons are entitled to justly herc,
upan principIes that nelther can nor
must be applicd to the Assemblies of
the colollies."-1 Chal. Op. 263·4,


A similar opinion is cxpressed by
Mr. West (id. 232, el scq.) 011 a
general question as lo a governor's
riglll to proroguc an Assembly under
arljoununent without first allowing
them to meet aceordiug to such ad-
journmcn-. and ::1gnin by Auornoy
and SolicitorGencrals Murray and
LIoyd, 0/1 a dispute as to the pri-
dleges of thc Jamaica Asscrnbly.
Id.296.




COLONIAL LAW.


others, and until the persons nominated to supersede
them arrive in the colony. (2) The governor claims
th, privilege also in extraordinary cases, and in some
colonies has by the terms of his commission, the
right of suspending, for misconduct, such civil offi-
cers even as act immediately under the King's autho-
rity 01' by commission from the boards of treasury
and admiralty, in high and lucrative employnrent, (such
as the attorney and advocate-general, the collectors
of the customs, &c.,) and of nominating other persons
to act in their room until the King's pleasure shall be
known therein. To all which is added authority, when
he shall judge any offender in criminal matters a fit
object ofmercy, to extend the King's pardon to him, (3)
except only in cases of murder and high treason; and
even in these cases the governor is permitted to re-
prieve until the signification of the royal pleasure,


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


31


(2) Stokes.18·1. See an exception
to this role notieed post, p, 34, n, 9.


(3) In sorne of the colonies it was
the practice, and was said to he the
law, lo pul into immediate cxecu-
tion a sentcnce of death against u
negro, and to hang him on the
nearest tree. 'fhe 'Vest India
comrnisaioners scem to have cnter-
tained sorne doubts as to the legality
of this praetiee when they wcre
examining into the administration of
justíce in Barbadocs (see 1 Rep.
49, 218,) and in Grenada, observ-
ing UpOI1 the words of the Slave
Aet, which says that sentence must


óe {losseJ l/flOIl COIlf7c/JOII, illlt!
.. carried into effcct forthwith," they


appea,' inc!ined to adopt the con-
struction put 011 that act by the
chief justiee, who stuted that in his
opinión " the words of the aet re-
quired only an immediate sentence,
and not an immediate execution, for
otherwise it would be inconsistent
with the gOVCI'llOl"S powel' to re-
prieve, or the king's powcr to pal'-
rlon." (1 Rep. 106, 218.)


(4) Thls was malter of universal
compluiut by the colonists to the
cornmissioners, who, in e\'ery in-
stance , recommended (and mos!. frc-
qllently ln accordance with the
wishes of the govcrno"s themselves)


/);<1/ /);},f(lfJI"I (J/.Y ¿'V1't'/J11J/'J¡j//ij'
should be transferrcd lo a barrister




A SUMMARY OF


Chancery. Process however is issued by him alone,
and tested in his name; and in general, the govemor
exercises within his jurisdiction the same extensivo
powers as are possessed by the Lord High Chancellor
of Great Britain.


The governor is also Ordinary, (5) and as suchhas the
power of granting probate of wills, and administration
of the effects of persons dying intestate, and of granting
licenses for marriages, and licenses for schools, &c.
Certain ecclesiastical jurisdictions have by late acts of
Assembly been vested in the colonial bishops, of whom
two huye been within a few years past appointed for


appoiuted frurn F.ugland. The
ehauge, thus carncstly desired and
strongly reeomtueuded , will in all
probuhility be cflccted at the earlicst
possible opportunity, as, accurdiug
lo the description uf the commis-
sioners, it would be viewed in cvcry
coJony as a most plcaslng proof of
his Majesty's patcruat regard for the
welfare of the coionísts. (See thc
Reports of the West India Commis-
siouers passim.)


(5) A similar ckUlge 1"" also üccn
recommeuded with respcet to this
CUUI-t, 01' thal the duties uf the 01'-
diuary should be performed hy a
judge uf sorne other court, who was
appointcd from England. Tho in-
structions lo the Govornor of New-
foundland (Huuse of Conunons' Pa-
pero No. 70'!') would ser-m to inli·
mate that the Bishop of Nova Scotia,
withiu whose rliucesc Newfouudlund
is situated, must now exercise lile
po\\'ers of an .'ec!esiaslieal judge
wilhin that diocese, rOl' the goveruor
(s. 49) is directed lo he u aidillg
and assisting the said bishop in lhe
exereise of his jurisdiction, spiritual


and ecclcslastlcul, within the said
colonies; excepting only thegranting
licenses fur rnarriuges and proba tes
of wills." In the 53d section the
püwer uf granting thesc, l' cornmonly
called the oflice of ord inary," is ex-
pressly restricted to the go\'eI'llOl'
alone. The cxception 01' thesc fmm


the usual PO"'el'S of the bishop would
illll'ly, aeeordiJlg lo the weil-kuown
rule of legal coustruction, that be
possessed all the other powers usually
deemcd in Ellgland iucident lo his
ofllce. Yel thc act of Ihe Assembly
of Ibe 13ahamas,(6 G. 4, e. 12,) re.
eognisillg the appoiutrneut of the
Bishop of Jamaica, speaks ollly of
"his cccleslastical jurisdiction ovur
the c!cl'gy," aud declares that " aIl
lawsvordlnauces, and cunous eccle-
siastlcal, now in force in England,
so far as the same relate tn jurisdic,
tion over the c!ergy thcrein, sliaJl he
in force in thosc islanrls ; ') nnd the
l'jgllts ofthe gO\'C'rJlOl' as Ordiuarv of
those islands are b'y the same act"'ex··
pressly presen·ed. (:3 Rep. \V. 1. C.
2d series, p. 55.)




COLONIAL LAW.


the West lndies, víz, a "Bishop of Barbadoes and the
Leeward Islands," and a Bishop of -Iamaica, whose ju-
risdiction also extends over the Bahamas and Honduras.
The Bermudas and 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 and de-
termine aH appeals in the nature of writs of error, from
the superior courts of common law, (6)


He is also vice-admira] within the extent of his go-
vernment. As such he is entitled to the rights of
jetsam, flctsam, &c., and in time of war he issues his
warrant to the judge of the Court of Vice-Admiralty to
grant commissions to privateers,


LastIy, 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-
sernbly for the whole term of his administration in the
colony. (7) For, in order that he may not be tempted to
prostituta the dignity of his station by improper con-
descensions to leading men in the Assembly, he is re-
strained by his instructions from accepting any salary,
unless the same be settled upon him by law within the
space of one ycar from his entrance upon the govern-
ment, and expressly made irrevocable during the whole
term of his administration of it,


33


(6) In consequeucc of this al'l'ange-
meut the deeision oí a regular brcd
lawyer comes upon appeal hefore a
military officer and a small number
of gcutlemeu, who, lhough highly
hououruhle and illleJJjgcnt, luhour
undcr the disad vaulage of the wnnt
of a professional oducation. The
result is a want of coufidencc among
the colonists as lo the uniform admi-


nistratlon of the rules of justicr-,
The commissloucrs, in every in-
stance, recorurnend that this practice
should be altered, (Repon" W. I.
C.)
(7) Iumany colonics part ofthe go-


vernor's salary is paid by the crown,
viz. out of lile 4f per cent, fund, or
is provided for by the votes of tbe
House of Commons,


D




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


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


In a government comprehending several islands (like
that undel' wbich the Leeward Charibbean Islands were
formerly consolidated) there wascommonly appointed,
together with the captain-general, 01' chief governor, a
Iieutenant-govemor, who was next in succession. (8)
Such oflicers are not usually appointed now. The in-
structions to the governor of Newfoundland, however,
dated ~6th July, 183~, speak of such an officer, and
contain a provisión for carrying on the government in
case of the death 01' absence of the governor, if " there
be at that time no person commissioned as lieutenant-
governor."


Where an officer holding tbis rank is appointed he
usuaUyacts as lieutenant-governor of one of the islands
included within tbe general government, each of whicb,
in the absence of the captain-general from tbat parti-
cular island, has its affaire administered by him, 01' by
the president of the council, most eommonly the latter,


On the resignation, orabsence on leave, of tbe cap-
tain-general, a lieutenant-governor, if not present, is
frequently sent over, wbo then succeeds to tbe supreme
command and receives an allowance for the support of
the dignity of the government. (9)


(8) In the N orth American Colonies,
hesides the gm'ernor in ehief, (who
resides in Lower Canada,) there is
a lieutenant-goveruor, And there
is an officer of that rank, bcsides
the governor in chlef, al the Cape,
al Ceylon, and al New South
Wales; and such an offieer is men-
tioned in the commisslon to General


D'Urban, eonstituting hirn Governor
of I3ritish Guiana, as a person who
" may be appointed to be Out lieu-
tenanl-governor of our said colony."
(9) "Onefllll moietv of lile s.ilary,


and of all perquisites and ernolu-
meuts whatever;' (Tnstructions lo
thc Governor of Ncwfoundland,
26th July, 183'2, s, 6i.)




85COLONIAL LA W.
A governor, licutenant-general, 01' lieutenant-governor,


holds office only during the King's pleasure, and in
case of oppression 01' other misconduct, any indivi-
dual aggrieved may lay eomplaint against either of them
before His 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 commissioners
assigned for that purpose by His Majcsty, (2) and their
conduct is of course examinable, where other remedies
fail, in Parliament,


With respect to the Council, its several members are oc the Council.
in the first instance (as we have seen) nominated in the
instructions accompanying the governor's commission ;
and, in case of vacancy. the newappointment is by war-
rant under the signet and sign manual, countersigned
by the Secretary o.fState, and directed to the governor.
Every govel'l1or is expressly instructed to transmit from
time to time to His Majesty, the names of such of the
principal inhabitants as are best qualifled to supply va-
cancies in the council ; (3) and it is rarely that any person
is appointed who is not previously recommended by the
governor, (4.) In -Iamaica their full complement is twelve j
in some of the smaller West India Islands ten; and in
case of as many vacancies by death, absence, 01' sus-
pensión, as reduce the board to less than a number
specially Iimited in each colony, the govel'oor 01' com-
mander-in-chief is empowered to fill up to that number,


(1) Mostyn e. Fabrlgas, Cowp.175.
It seerns, however, Ihal the power
of the King in Couucil exlends lo
removai on/y, and not lo further pu-
nishment, (Eul'Opean Settlements,
vol. 2, p. 302, and thc case abovc
quoterl.)


(2) By virtue of the statutes 11
& 12 W. 3, c. 12, and42 G.3, c.
85. Vide 8 East, 31.


(3) Instructlous to the Gnvernor
of Newfunndland, s, 6.


C4) Edwards, vol. 2, p. 338.




36
/


A SUMMARY OF


but 'no farther, and persons so appointed only actas
councillors till the pleasure of the crown is known, (5)
Their privileges, powers, and offices, are these-


First, they are by courtesy severally addressed in the
colonies as el Honourable ; " they take precedency next
to the commander-ín-chíef , and on the death 01' absence
ofthegovernor, lieutenant-general, and lieutenant-gover-
nor, the eldest member of the council succeeds to the
govel'nment, undel' the title of President of the Council.
Secondly, they are a council of state, the govemor, 01'
commander-in-chief presiding in person, to whom they
stand in the same relation as the Privy Council in
Great Britain does to the Sovereign. But although
evCl'y colonial governor is directed by his instructions
to advise with his council on most occasions, it docs not
appeal' that, in his executive capacity, he is absolutely
bound to abide by their advíce. (6) It is conceived that
he is competent to act, in most cases, though in the
absence of any special provision for that purpose,
not only without, but even against their adviee; but
that his powel' to do so is confined to cases whcre the
council act as part of the executive government, and
not as part ofthe Iegislatíve government. His opposi-
tion to them in this bíter character would consist of the


ej ) See the form of the cormnis-
slon, Stokes, p. 154,


(6) In the supplementary comrnis-
sion to the Governor of the Island of
Ceylon (House of Commons' Papers
fol'18:33, No. 698,) are the followlng
wcrds, "And we do authorize you,
in yom' discrction, and if it shall in
au)' case app('ur rigllt so to do, lo
act in the exercise of .the pow('r
committed 1', yon by your said com-
mission, in opposition to the advice
which lllay in IIny such case be gil'en


to you by the members of your said
executive council." 'fhere is also a
lcglslativc couneil appointcd in that
íslaud by that commission, but thcre
appears to be no such privllege con
fcrred on the gOl'erno" with refcrcncc
lo the advlec of the luttcr council,
as thcir íunctions more rescmhle
those uf the Parliamenl than of the
Privy Council. Jle is required, as
SOOIl as convenient, to transmit his
reasons for surh procecdings,




COLONIAL LAW.


exercise of his veto on the ordinanees tbey might desire
to pass. He may, it is true, by so doing, ineur the
King's displeasure, but his proceedingsarenevertheless
cfficient and legal within the colony. Thirdly, they
are named in cvel'y commission of the peace, as justices
througbout tbe colony to which they belong, Fourthly,
the Council, togetber witb the governor, or commander-
in-cbief, sitas judges in the court of error.or appeal in
civil cases from .the courts of commmon law, but not
from tbe Court of Chancery; and in sorne of the islands
sorne of the members sit wíth the governor in the
Court of Chancery as assistant commissioners of tbe
great seal.


LastIy, the Council is a constituent part of the legis-
lature, their consent being necessary in the enacting
of laws. In tbis capacity of legislators tbey sit as the
lIpper house, and in most of the colonies distinct from
the govcrnor. (7) They have the powcr of originating
and rejecting bilIs, and of proposing amendments, (ex-
cept in the case of moncy bills), (8) They claim pri-
vilege of parliament, order the attendance of persons
and tbe production of papers and records, and convict
for contempts, enter protests on their journals, after
the manner of the House of Peers, and in some of the
colonies have their chaplain, clerk, usher of tite blac.k
rod, &c. (9)


.37


l7) By the instructions giveu lo the
Governor of Newfoundlaud, datcd
<¿6th July, 18:32, (House of Com-
mons' Papers for 1832, No. 70.t,) he
is dlrcctcrl in whnt manner tu carry
into ctlcct hls conuuission as to form-
ing a House 01' Asscmbly in 11",t
blando By the dcspatch aecompa-
nying those instructious and printcd
with it, the Council, it is said, " wlll


particlpate with the Assembly in the
enaelment oí laws," The reasons
againsllhis practice and the evils of
it areforcibly stated, but the despalch
declares that .. the eompensalion
whichmight atone for these evils ls not
obtained" by lite opposite practice,


(8) Edwards, vol. 2, p. 332·3.
(9) Edwards, vol. 2, p. 322, et


seq. whcre may be seen an able state-


I




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-
bers oí the council are for misconduct subject to sus-
pension by the goverrror till the King's pleasure be
known, and the governor transmits the rcasons of the
suspensíon to England for His Majesty's information.


lt is said too that they may be removed by the
governof, with the concurrence of the majority of the
council in councíl assembled, (2) bñt in the cases be-
fare referred to, suspension, not removal from office, is
all that is mentioned, They do not derive any emolu-
ment from their situations, (3)


Of the House of - The eonstitution of the House of Assembly is in aH
Assembly. •dI' '11'respects copie ,as near y as circumstances WI perrmt,


from the example of the Parliament of Great Britain.
The freeholders are assemblcd in each town or parish
respectively by the King's writ; their suffrages are
taken by an officer of the crown, and the pel'sons
elected, who, as well as their electors, in sorne colonics
at least, must possess a certain landed qualification, (1
Edw. 22l-2), (4) are afterwards comrnanded by royal


ment and refutatlon of tbe prudcn-
Ha" and constitutional objeetions to
which tbis branch of the plan of colo-
niallcgislaturc has bccn supposed to
be open,


(1)- Edwards, vol. 2, 1',335.
('2) 1 Hep. W. 1. C. p. 19, and


seo ante, p. 29, 11.8.
(3) 1 Rep. W. I. C. p. 19.
(4) By a proclamution accorn-


panying the instructions lo the
governor of Newfuundland, daled
26th July, 1832, the quulitication of
the persons to be elected and the
~Iectors are thus slatcd':~" EI'"CI'Y


man uf the fuH age of \!1 yeal" ami
upwards, of sound undcrstanding,
and being our natural born subject,
or having been lawfully naturulized,
and never having been convictcd in
due course of law of any infamous
crime, and having fur two years next
immedlatcly preceding the day of
election occupicd a dwdling-house
within our said islanrl as owncr or
tcnant thcreof, shall be e1igible to
be a member of the said House of
Asscmbly," 'I'Iic same provisions
apply tu the elector, with the ex-
ception that bis occupation of" a




COLONIAL LAW.


proc1amation to meet together at a certain time and
place in the proc1amation named, to frame statutes and
ordinances 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 heal' grievances, and to corred such
public abuses as are not cognizable before inferior
tribunals, They commit for contempts, and the eotrrts
of law have refused to discharge persons committed by
the speaker's warrant. They examine and controul
the accounts of the public treasurer, They vote such
supplíes, lay such taxes, and frame such laws, statutes,
and ordinances, as the exigencies of the province 01'
colony require. Jointly with the governor and council
they exercise the highest acts of legislation; for their
penal laws, which the judges are sworn to execute,
extend even to life, many persons having suffered death
under laws passed in the colonies, even before they
had received the royal assent at home, (lJ)


39


dwelling-house" is only requircd lo
be for one year. House of Como
moua Paper, 1852, No. 704,.


(f) When any bill has passed
the two houscs, it comes befare the
governor, who representa the King,
and gi\'cs his asscnt 01' negative as
he thinks [lroper. It now acquires
the force of a la w, but it must be
afterwarrls transmltted to the Killg
and Cooncil in England, where it
may still rcceivo a ucgatlvc, that
takes away all its cffect, Eur,
Sctt, in America, Ir. 298.


The plan of allowiug legislative
assemblies to the colonícs has becn


naturally exlolled by those wlio
derive thc bcncfit, In a conversa-
tion belween Lord Chatham and
Franklln, we find thal cclcbratcd
colonial agenl makiug Ibis remark,
" that in former cases greal ernpires
liad crurnbled first at theír extrerni-
ties, from Ibis cause, that eountries
remoto from the seat and eye of
gov'emmenl, which therefore could
not well understand their affai rs for
want of full and truc information,
liad never been well governed, but
liad béen oppressed by bad gover-
nors, on presurnption that complaint
waS diflicult to be made and sup-




40 A. SU1I1MARY OF
The ordinances thus framed by the legislative body,


with concurrence of the governor and council, are
callea Acts of Assembis), and constitute the local
statute law of the colony. Theyare subject by sta-
tute 3 & 4 "V. 4" c. 59, s, 56, to this provision, that
"alllaws, bye-laws, usages 01' customs at the time of
the passing of the act, 01' which hereafter shall .be in
practice, 01' endeavoured 01' pretended to be in force
01' practice, in any of the British possessious in Ame-
rica, which are in any wise repugnant 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 said possessions, are and shall be null
and void to all intents and purposes whatsoever." (6)
-_._--------------------------


ported against them at such a dls-
tunee, .Hence such governors had
been eneouraged to go on till their
oppresslons became intolerable ; but
that this empire had barpily formcd,
and long been in the pructice of a
niethod whereby every provinee was
wcll governed, being trusted, in a
great measure, with the government
of itself ; aud that hence bad arisen
such sutisfactlon in the subjects, and
such eneuuragement tu ncw settle-
ments, that, hud it not been for the
late wrong politics, (which would
llave Parliament to be omnipotent,
thougb it uugbt nut to be so, unless
it would at the sarne time be om-
nisdent,) we migbt ha ve gune on
extending our westem empire, add-
ing provinee to prcvince, as far as
tbe South Sea." Memoirs uf Frauk-
lino


(6) This is a re-enactrucnt almost
in the saine words of a provisiou
J'epealed by 6 Geo. '1, e. 10j, viz.
thal of 7 & 8 W. 3, e. 22, seet. 9,


upon thc construction of which lasto
mentioned statute B. Edwards thinks
that it is meant to cxtcnd only lo
luws regulaling t1'adc, vol. 2, p. 362,
(note); but there secms to be 110
foundatiou for this opiuion, Tlie
words of the enactruent are as fol-
lows :_u And it is furthcr enacted,
thal all luws, by-laws lIsage5 01'
customs at this time, Uf which hcre-
after shal1 he in practice, 010 endeu-
vourcd 01' pretended to be in force
uf practice in allY of thu said plau-
tations which are in any wisc re-
pugnanl to tbe bcfcremcntioned laws,
01' any of them," (viz. thc statutcs
recitcd in Ihc act, which are for re-
gulating navigation and tradc.) " 50
far a, lhey do relate to the sairl plan.
tations, or any of thcm, which are in
any waY5 repugnant tu this act, m'
to "n!! other lino hcreofter lo be made
in this killgdulll, su far as such law
shal1 relate to and mentiun the ,aid
plantatio1l5, are illegal, nul1 and void.
to al! intenb amI purposes whalso-




coLONIAL LAW.


Acts of Assembly, after being passed by the as-
sembly and council, not only require the assent of the
governor, as representativo of the crown, but are also
in all cases subject to disallowance 01' confirmation by
the King in Council, AH private acts, and in sorne
instances public acts, are passcd with a clause sus-
pending their operation till the pleasure of the King be
known. In that case they have of course no effect in
the colony till the royal will be ascertained. But in
general, public acts are passed without a suspending
clause, and when in this form, tbey come into legal
operation in the colony immediately on receiving thc
governor's assent, and so continue until notice is given
there of their disallowance at home. (7)


As the mode of proceeding in taking the King's pIea-
sure at home, as tu the allowance 01' disallowance of
colonial acts, is a subject that is perhaps imperfectly
understood by the public, it may be convcnient to offer
a fuU account uf it in this place.


On the arrival at the colonial department in England
of acts passed by the Governor, Council, and Assembly
uf any of Bis Majesty's colonies in the West Indios,
the course pursued is said to be as follows r->The acts
uf the session are referred by the Secretary of State to
the counsel for the colonial departmcnt, who is re-
quired to "report his opinion upon them in point of
law." By this establishcd form of expression is under-
stood to be meant that the counsel is to report whether
the acts respectively are such as, consistently with his
commission and instructions, the governor was autho-
rized to pass; whether, in the language of the statute,


41


Uf the 3110w-
unce or dis-
allowance of the
Acrs vf Assem-
bly.


ever.' Ami it \\ ill be obscrvcd
that (he \\vrdillg of the 3 & 4 W. 4,
c. b9, s, 56, is at lcast cqually


unfuvourable to !\1r. Edwards' CVIl·
struction,


(7) 1st Report, W. 1. C. p. 6.




A SUMMARY OF


any part of them IS repugnant to the laws of Eng-
land, 01' to any law made in this kingdom, so far
as such law may mention al' refer to the plantations,
and whether thcy are respectively so framed as to
give full and entire effect to the purposes for which
they may have been passed by the colonial legisla-
ture, In pursuance of this refercnce a report is
made to the Secretary ofState far the Colonies by the
counsel to his department. The acts, accompanied
by this report, are then transmitted to the President
of the Council, with a letter from the Secretary of
Statc for the Colonies, desiring his lordshíp to lay
the acts and the report before the King in Council for
His Majesty's consideration, At the first board of
council which is held after receiving this communica-
tion, the acts are referred to the Lords of the Committee
of Council for the Affaire of Trade and Plantations, who
are directed to report to the King in Couneil their opi-
nion as to the proeeedings it may be proper to take in
relation to them, It is understood that the committee
of trade proeeed to select from the acts thus referrcd
to them all such as present any point of peculiar noveIty
01' importance, 01' as give rise to any question of legal
difficulty. The acts thus selected, togethcr with all
prívate acts, are referred by thcir lordships to his
Majesty's Attorney and Solicitor-General for their
opinian. When the report óf the law offícers of the
crown is obtained, the Lords of the Committee of
Trade enter into the consideration of aH the acts of
the session of the particular colony; and it is undcr-
stood to be a settled rule, that in their deliberations
upon this subject, they are assisted by thc Secretary
of State for the Colonias, in his capacity of a mernber
of the committee. A report from the Committee of




COLONIAL LAW.


Trade is then addressed to the King in Council, and in
this report aU the acts of the session of the Colonial
Assembly are classed under three heads; first, if it is
thought proper to disallow any act, the report contains
a fuU statement of the grounds of the objeetion whieh
may exist to it. Seeondly, if any of the aets relate to
measures of general and peculiar importance and in-
terest, it is reeommended that a speeial order in eouncil
should pass for the coufirmation of them, Thirdly,
the great majority of the acts of eaeh year being
usually little more than business of routine and con-
tinual recurrence, their lordships are in the habit of
advising that sueh aets "should be left lo their opera-
tion:" If this report is adopted by the King in Couneil,
orders are drawn up respeeting sueh of the acts as are
eomprised in the two first mentioned classes. No
colonial aet, unless passed with a suspending clause,ean
be disallowed exeept by a regular order of the King in
Council. (7) The Clerk of the Council then addresses to
thc Secrctary of State for the Colonics a letter, an-
nouncing to him the decision whieh has been adopted
respecting all the aets of the session, and transmitting
to him the original orders in eouncil for confirming 01'
disaUowing any particular acts. The Secretary of State
communieates the result to the governor of the colony,
and at the same time conveys to him the original 01'-
ders (8) in council, A list is also made out of the aets
which have neithcr been eonfirmcd nor disallowed, with
an intimation that they are to be left to their operation,


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


43


(7) Sce post,p. H.
(8) That is, thc first scpnrate


piecc of paper on which the order is


writtcn, the rcally original order
being only the cutrics iuude in the
Couueii's books.




44 A SUMMAR y O.F
ceive either the direct confirmation 01' disallowance of
the King. It is clearly understood 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 the King. It is
also received as a maxim that the King muy at any
time, however remote, exercise his prerogative of dis-
allowing any colonial act which he has not once con-
firmed byany order in council. This, however, (says
the learned writer from whom the whole of the pre-
ccding account is taken,) (9) may be numbered amollg
those constitutional powers of the crown which have
bcen dormant for a long series of years, and which
would not be called into action except on some ex-
treme and urgent occasion. It is believed that no
instance has occurred in modern times of the disallow-
ance of any colonial sta tute aftcr the notification to
the governor that it would be left to its operation,


By anorder in council of the 15th January, 1806,
it is declared "that in aH cases whcn His Mujesty's
confirmation shall be necessary to give validity and
eflect to any act passed by the legislature of any of
His Majesty's colonies 01' plantations, unless His Ma-
jesty's confirmation thereof shall be obtaincd within
thrce years from the passing of such aet in any of the
said colonies 01' plantations, sueh act shall be consi-
dered as disallowed." This order has been sometimes
supposed to lay down a rule applicable to all descrip-
tions of colonial statutes. It is howcver apparent from
the words of the order itself, from the reason of the
case, and from the understanding of thc public ofliccrs
in England, that sueh is not thc sound eonstruction 01'


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




45COLONIAL LA W.
real effect of the order. It was made to remove a
difficu1ty which hao arisen respecting one particular
class of colonial statutes, those namely which contained
a clame suspending their operation till the pleasure of
the King was known. This is the only description of
statutes respecting which it can be said that Bis Ma-
jesty's confirmation is H necessary to give them validity
and effect." Without the assistance of such a general
rule, it would have been impossible to know in any
particular case whether the statute would 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. (l)


The acts when passed are depositad in the Colonial
Seeretary's Officc ; (2) and official copies of such 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 subsequent date in the Colonial Office, In
1782 the business of reviewing the acts of the colonial
legi,latures previously to their allowance by the King
in Council, was transferred from the Board of Trade
and Plantations to the office of the Secretary of State
for the Homc Department, and afterwards to the
Secretary of State for the Colonies, in whose office are
1l0W to be found all certified copies of acts, and other
official documcnts since that periodo (3)


Though, from the preceding account of the colonial POlVe" a~d
prcroganve of


_________~ the rro",n.


(1) Tho wllole of the prereding
mattcr relatlve to tbe disallowunce 01'
coufirmation of colonial acts is co-
piel} from the valuuble repo)·t of 1\1r.
Corumissioncr Dwarris 011 thc i\d-
ministration of Civil aud Criminal
Justice in the Wcst Indies, printed


by order of the Housc of Commons
of 5th July, 182.5.


(2) 1st Re p, W. L C. 12;3; 2d
Hop. ,,9.


(:1) Smith's Preface lo the Aet s
of Grcnada, p. xi.




46 A SUMMARY OF
legislatures, it appears that their powers are most
efficient aud extensive, it will be found nevertheless,
upon consideration of the whole that has bccn pre-
mised, that the dependency of the colonies on, and
their allegiance 00, the crown of Great Britain, and
also their proper subordination to the British Parlia-
ment, are secured by strong and proper demarcations ;
for among various other prerogatives, the King reserves
to himself not only the nomination of the several go-
vernors, the members of the council, and most of the
public officers of all descriptions, but he possesses aIso
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 received the
assent and approbation of his own deputy in the colony.
Hence the affirmative voice of the people in their
representatlves is opposed by three negatives, the first
in the Council, the second in the Governor, and the
third in the Crown, the Iast of which possesses likewise
the power of punishing the two former branches by dis-
mission, if they presume to act in opposition to the royal
pleasure; nor is the regal authority Iess efficient over the
executive power within the colonies than ayer the legis-
lative, The Governor is commonly Chancellor by his
offíce, but whether assisted by his council, as in Bar-
badoes and some few other plaees, 01' presiding solely
in this high department, an appeal (as already stated)
Hes to the King in Couneil, in the nature of a writ of
error, from every decree that he makes; and the like
liberty of appeal is allowed from his judgment, when
sitting with the council twon writs of error, from the
common law courts, (4) Thc reason assigned in the


U) The governor is usually pre-
vented by his instructions from al.


lowing an appeal where the sum in
dispute is under a certain valne;




COLONIAL LAW.


books 1:11' alIowing such appeals is this, that without
thern the rules and practice of law in the colonies
might by degrees insensibly deviate from those of the
mother country, to the diminution of her superiority. (5)
Again, the King, as supreme head of the empire, has
the sole prerogative of making peace and war, treaties,
leagues, and alliances with foreign states; and the
colonists are as fuUy bound by, and subject to, the
consequences thereof, as the inhabitants within the
realm. (6) He has also the prerogative of regulating
aH 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 hut against the consent of the Assemblies. (7)


But, on the other hand, there are the same limits to Taxes,
the royal prerogative in the colonies as in the mother
country, (8) the King having no right to impose taxcs,
01' levy aids of any description in a settlement baving a


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


4'7


bnt " it is in Bis Majesty's power,
upon petition, to allow 1111 appeal in
cases of any value.' 2Clml. Opino
177, This 6ght is expressly re-
served to the erown, not only hy
1ll3ny of the eharters of justice, hut
also by the Privy Couneil Bill, 3 &
4W.4,e.41:


(5) Villlghan, 402; Show, PUl'.
Cas.33,


(6) B. Edwards, vol. 2, p.353.
(7) The same writer says that


these laller rights must be admitted
with sorne lhnitation, p. 354, but
does not explicitly slate the nature
of that limitation, 1101' docs he ad-


vanee allY suffieient reason for de-
nying its full operation to that
branch of tbe prerogative,


(8) The prerogative in the West
Ludies, unless where it is abridged
hy grants, &c., made lo Ihe inhu-
bitants of the respective provinces,
is that power over the subjects,
cousidered either separalely or col-
lectively, by their represeutatives,
\V hich, by the commou la" of the
land, abstracted from al! acts of
parliarneut and gl'8nts of libertles,
&e., from the crnwn to the subjects,
the Kiug could righ tfully exereise in
Ellgl;lnd. 1 Chal. 0(" ~32, 233.




48 A SUMMARY OF
legislative assembly of its own, (9) nor, as it is con-
ceived, in any other colony j but he may request pecu.
niary supplies from 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, (comprising charges for the service and
defence of the colony, for salaries of public officers, for
repair of roads and buildings, for the maintenance of
the clergy, and the relief of thc poor,) is in general
defrayed by grants of the House of Assembly, who
frame bilis lar tl~is purpase, at the suggestion of the
governor, at such time and to such extent as the public
exigencies may require, (Z)


(9) Campbell v. Hall. Cowp, 204.
(1) Even befo re the separatiou


of the American states, though the
extent of the Parlíarnent's authority
was not seuled, this Ilmitation of the
r¡yyal prerogalive wus well under-
stood, Franklin, in a letter lo a
frieud, daled 121h March, 1778,
states the ancient established re-
gular method of drawing aids from
the colonies lo be thus :-" The
occasion was always first consi-
dered by their sovereign in his
privy council, by whose advice he
directerl his Secretary of Slatc to
write circular lctters lo the sevcral
governors, who werc dircctcd to lay
them before thelr Assemblies, In
those letters the occasion was ex-
plaiucd, for their satisfaction, wlth
g"acious cxpressious of His Majcsty's
confideuce iu their kuown duty and
affcction, ou which he relied that
they would graut such sums as
should Le snitahle to thcir abilities,
loynlty , and zeal for his service."
Franklin's Mcmoirs, p. 321. In


bis celebrnted cxamination befo re
the committee of thc House uf Como
mons in 1766. he makes a similar
statement, bul adds, that in form
the requisitlon had usually nol been
lo grant moneg, but lo raise, c1othe,
and pay troops.


(2) Franklin,in his examination,
says that such a case could nol be
supposed as that an Assernbly would
not raisc the neeessary SUppllcs to
supporl its own govemment, "An
Assembly that would refuse it must
want common sense, which cannot
be supposed,"


1\11'. Brougharn states, in hls Colo,
nial Policy, (published in 1803,)
" that the expense of the Jamaica
civil estahlishment is altogether de-
frayed by colonial laxes; that the
contingenl chargcs amounted in
1781 to 22,1421. currency , and
lhat 80001. currency is also scnled
yearly upon the crown hy thc
Reveuue Act, 1728, out of which
the governor rcccivcs 25001."


Witl; respect to Barbudoes and




COLONIAL LAW.


The Leeward 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 AssembIies to a duty of' four and a Italfpe]' cent.,
in specie, 011 their exported produce, granted originally
by most of them in consideration of different acts of
royal favour and indulgence.


The grant was made by Barbadoes (though not till
after a strong resistance) in order to put an end to the
proprietary government and the claims under it, ami
at the same time to settle the right of the then holders
to their possessions, (B. Edw. vol. L) and by the Virgin
Islands as the price at which a representative Assembly
was to be granted them, In their petition to the King
they promise that if such an assembly was conceded,
they would grant an impost of four and a half per cent.,
H similar to that which was paid in the other Leeward
Islands." The King granted the prayer of the petition
expressly 011 the above condition. The proclamation
for calling the Assembly together was dated 30th No-
vember, 1773, and it met on the 1st February, 1774.
Its very first act was the establishment of the promised
duty, (B. Eaw. 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 for which it
--------_.._--- -_._--------------


4·9


the Leeward Charihbee Islands, he
states thal part of their civil expen-
ses is paid out of the four and a
half per cent. fund levied upon thern
tu the use of the crown, and that the
rest is defrayed by direct taxes in
these islands ; thal the iuhabitauts
of Grenada, St, Vincellt, mui Domi-
nica also contribute in a large pro.
portian to the public expenditurc ;


but that the expeuse of the civil
establishment uf the Bahomas and
the BCI'mudlls is chiefty borne by
Greal n"ilaiu.


In this work will be found much
valuable inforrnation on the subjcct
of colunial finalice, uf a kind too
minute fur the pUl'poses of the pre-
sent sketch. See Colonial Policy,
vol. 1. pp. 548-560.


E




50 A SUMMARY OF
was willing to pay so large a price. The 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 Edwards, who thus records (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 8000l.
per annum on certain conditions, to which the Crown
agreed, and of which the following are the principal,
1st, that the quit rents arising within the island (then
estimated at 14601. per annum) should eonstitute a
part of this revenue; 2dly, that the body of their
laws should receive the royal assent; and 3dly, that
all such laws and sta tutes of England as had been at
any time esteemed, introduced, used, accepted, 01' re-
eeived as law in the island, should be and continue to be
the laws of Jamaica for ever. The Revenue Act, with
this important declaration therein, was accordingly
passed ; and its confirmation by thc King put an end to
a contest no less disgraceful to the court at home, than
injurious to the people within the island."


The produce of this duty (which forms what is
called the four and a half pel' cent. fund) is payable
into his Majesty's exchequer ; (3) but out of it certain
sums are allowed by His Majesty's government towards


(3) Bot it is said that the pay-
ment in specie is no longer requircd ,
Colonial Poliey, vol. 1, p. 5;')2, 1 I
is believerl that the four and a half
per cent, duty is, and for many years
has been, paid in euch colony by
the delivery of four and a half
pouuds of sugar, 01' othcr produce
out of every 100 pounrls (o the
offiecr of the customs therc, who


receives the sume on behalf of the
Crown, and ships it for England,
whcre it is dlsposed of by an autho-
rised agent, and the arnount re-
eeived paid in lo the Exchcque•• In
somc uf the colonies the planters
would not havc bcen abre lo pay the
valué in rcady money ; and had they
themselves shipped the produce to
thís country, they would uecessarlly




COLONIAL LAW.


the salaries of the governors of these and other colonies,
exclusive of what is grantecl tú those officers directly by
the Colonial Assemblies. (4)


51


havo iucurred the additional eharges
of f1'eightand iusurunce, which would
probably have mude the duly 011
them equal to a tax of double or
treble its nominal amount,


Bryan Edwarrls says, (vol. 1, p.
4.14,) that ufter the year 173.5 a
new mode of eolieeting the four aud
a hnlf per ccnt, duties wus adoptcd,
which rnade them more proíitable to
the Crown, but he docs not parti-
cularize either the new 01' the oId
morle. ,Vith a vlew to sho IV how
the colonies Iiable to the payrncnt
of thcse dutics are burdened by
them, he adds, that they are" con-
sidered by the plantcrs as a net tax
of 10 per cent, on (he produce of
tlu-ir estates for evcr." This opi-
nion is distiuetly conflrmed by that
of the author of the " Colonial Po-
Iicy," who thus strongly cxpresses
himself as to th e objectionahle aud
oppressive nature anrl cffccts of this
tux, "It is beyond comparisou thc
most injuricus to (he subject in pro-
portian to the bcnefit it produces to
governmeut of any that Lrememhcr
to haveseen reeorded in tbe history
of taxatioll. It both takes more and
keeps more out of the l'0ckets of
tbe people, in proportion to wbut it
brings iuto the treasury, than auy
olher imposition with which l am
aeqnainted. Aecordingly ali these
islands bave gradualiy deelined, in-
stead uf advallciJlg in improvement,
Jike the rest, and tbis notwithstanu-
ing lll[lny natural au\'alltages which
they PO"l'SS." Col. Policy, 1'01. 1,
p.554.


The same "igh autlJOrity ¡¡fter


warrls observes, that "The ceded
islands were never subject to lile
four and a half per ccnt. duty. An
atternpt was made by governmellt
to extcnd these burthens to thcrn
immediateIy after the peaee of París,
(1763,) but the question was fulIy
discussed bcforc the Court of King's
Bencl. in the case of Grenada, The
colony prevailed, and the sanie
judgment was held to free the other
settleruents, Dominica, Sto Vincenr,
and Tobago," lb. 555.


'fhe case of Grenada was this :-
'I'he crown had by leuers patent,
dated on (he 9tb April, 1764, ap-
pointed General MelvilIe govel'llor
of Grenada, with pOIVer to summon
a General Asscmbly to ordain Iaws
for the go"ernment of tlie colony,
On the 20th of J uly in tho same
year letters patent were issued di-
recting the imposition of the four and
a half per ceut, duties on that island,
II'Ir. Campbcll resisted the payment
of tbesc duties, und the Court of
King's Bench he Id tliat the latter
instrument was a violation of the
tírsl, alld was tberefore voiu. Camp-
bell v. Hal!, eow!'. 204.


('1) f<:dwards, vol. 1, p. 464, el
seq. Certain pensions and grants
wbolIy uncullnecterl with the colo·
nies, are also eharged on this fund ;
but it has been publiely stated in
tbe HOlIse al' Commons tlHlt no fur-
tber pensions are to be charged upon
it, and tbe fund is now carried tu
lIle publie accDllnt, allu made part
of the eonsQlidated fund, 1 Wm. 4,
c. 25, s. ?l.




52 A SUMMAR y OF
Courts of Jus- With respect to the Courtsoif Justice, though their
tice.


establishment is usually directed in general terrns by
the King's commission and instructions to the governor,
their denomination, quality, number and particular
constitution, are, for the most part, left to be settled
by the legislature of the colony. The Court of Chan-
cery, in which the governor 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 these courts principally con-
sist of a Court of Clwncery,-a Court uniting the juris-
dictions of the King's Benck and Common Pleas in
England, a Court of Appeal and Error, a COUJ't qf
Ordinarlj, a Court of Admiralty 01' T'ice-Admiralty,
a Court for the administration of Criminal Justice, (fre-
quently called a Court of Granel Session,) and in colo-
nies where slavery exists, a Slave Court, (see post, p. 62,)
01' court for trial of capital offences committed by slaves,
There are also in most of the colonies justices of the
peace, with jurisdictions similar to those of English
magistrates.


The law administered in these several courts (as
inferrible from the general principies laid down in a
former part of the chapter) is such as the royal com-
missions, conferring a constitution, the acts 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 the coloniallegislatures thereby sanctioned, and the
laws to be administered by the courts of justice thereby
authorized, shall be as nearly as possible agreeable to


(5) 1 Chal. Op, 18:1.




COLONIAL I~AW.


the Iaws of England. (G) llut Lower Cunada IS an ex-
ception. (7) In some islands it has been declared by
act of Assembly, that the eommon law of England, ex-
eept so far as altered by their own statutes, is in force
there. (8) It may beIaid down therefore, as a general


53


(6) Sce cornrmssrou establishing
the constitution of the Greuada or
Southern Charibbee Island govern-
ment,1763. Lord Carlislc's patent
as to Burbadoes, 1 chal" 1, 162.'"
and thc chartcrs of justicc for the
colonics in general.


(7) For though that colony has re-
ceived the criminal Iaws Di' Ellgland,
yet the ancieut code uf Frunce is es-
tabllshcd there in al! civil cases. Soon
alter tbe cession of the proviucc of
Qucbcc in 1763, the law of Eng-
laud, both civil and criminal, was
administercd in the provineialeourts,
not in pursuancc uf Hn)' ("egula¡' au-
thority, but because tlre Ellglish
settlers had inílucuce enougll witli
thc local govcrnrncnt lo procure the
temporal')' establishment of Ellglish
cuurts of jnstice ; but the first Que-
bec Act, 14 Gco. 3, c. 03, "as
passed at a Lime wlien the discord
prevailing in the neighbouring pro-
vinces rendered it peculiarly nece s- •
sar.)' to coneiliate the French in-
habitante of Lower Callada. With
this vicw the 8th scction recognizes
the old Canadian law as the rule of
judgment in all civil mattcrs, tbough
by the 11th section the criminal la IV
of England was retained,


U pon the divison of the provinee
of Quebee ¡nI o the two provjllees of
Upper and LOlVer éanada by Ihe
Canada Bill 01' 17~1, (:31 G. :3, c.
:31,) Ihe Legi,latire i\ssembiy oC
Ihe Upper Provinee imlllediately
('slablished lhe English eOlll'h in
this latt..:l' culon;; I anu illtroduccd


thc law of England in al] cases civil
and criminal. By a portian of the
31 Gro. 3, c. 31, the holding of
lands in Lower Canada was regu-
Jatcd. The 6 Gco. 4, e. 59, "as
passcd to ex plain that act, and both
are recited aud their pOlVers ex-
tended by the 1 Wm, 4, e, 20,
whieh empowers the King to assent
to Iaws relating to the descent, &e"
of lands in Lower Canada, tbough
such laws may be repugnant to the
IdWS 01' Ellgland.


(O) By act of thc Lceward Chao
ribbee Islands, 01' 1705, No. 31,
(Howard's Laws, 386,) sec. 2, it is
" dcclarcd that the Common Law of
England, as far as it stands una]-
tcred by any written laws of these
islands, or sume of t11('111, coufirmed
by yom' Mujesty , &c., or by sorne
act 01' acts of Parliament extending
to the se islunds, is iu force in eacli
01' these yOllr Majesty's Leeward
Charaihee Islands, and is the cer-
tain rule whereby the rights and
properties of your Majesty's good
subjects inhahitingthese islands are
anrl ollght lo be determined, and
that al! custorns al' pretended cus-
toms or usages contradicrory thereto
are illegal, null and void." A si-
milar deelaration was inserted by
the Jamaica As,embl)' in tbe re"c-
nue law of 1728, as one 01' the con·
dilion, on whieh lhey granted to
Ihe Crown the "evenuc of 0000/. a
~\'far.


And liJ" royal cOlllruis:,iollS (;'~ta­
bll~!Jillg t.he clJlIstitutions of lile




54 A SUMl\IARY 01<'
proposinon, that in all cases not otherwise provided
for, the law of England is the law of that class of the
colonies now under 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 colony first 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 seen) apply, unless
expressly 01' by necessary inference extending to the
colonies, nor those passed prior to its establishment, if
not suited to the state of society in the new settle-
mento (1)


Such appears to be In general the state of law on
this subject ; (2) but where the royal commission has
not cstablished the English law, and where it has not
been imposed by any act of Asscmbly 01' of the British
Parliament, it is conceived that upon the general prin-
ciples formerly stated, (ante, p. 3,) that law can have no
force in a conquered 01' ceded colony, subject, how-


dilTerent eolonies frequently direct
that the statutes made by the Itogis-
latures the reby granted shall not be
repugnant to thc laws of England,
and that the courts of justicc thereby
authorized shall admiuister justlce
ugreeably, as ncarly as possiblc, to
the laws of England.


(9) In the Bahumas ano in Ja-
maica. acts of Assembly havo Leen
pussed, dedaring what parl of the
stututc luw shall be considered as
bimling in these colonies. That uf
the Bahamas was passcd (as ap-
pears by Zd Rcporr, VV. 1. C. 1"
61,) in the yea r 1799, It COIl-
taincd a clause lo suspcnd its ope-
ration till the King's pleasu re should


be known, and his Majcsty's asscnt
was soon after signifícd.


(1) Such at lcast is the limita-
tion in colonies acquired by occu-
paney; and it applies 110 doubt
equally to the cases now under con-
sideration, See the subject uf the
applicability of English Iaw to the
colonies well discussed in Dr. Story's
Commentarles on the American
Constitutlon, vol. 1, p. 1:31-14Z.


(Z) It is a subject which the
colcnial Iawyers cousider as imper-
fec!ly uuderstood, but thcir opinions
appCill' to coincide with the views
here tnkcu , Sce 1st Rep. W. l. C.
1\!4; 2d Bep. 61,




COLONIAL LAW.


ever, to the important exeeption already notieed, as to
laws and statutes of the mother country, which are of


universal poliey, and are avowedly meant to extend to
aH existing and subsequently acquired possessions.


Thc rules of praetiee and pleading are usually set-
tled in eaeh eolony by sorne act of Assembly, or by
the regulations of the courts themselves. (3) They
differ evel'Y where, in various points, from tbose of tbe


English eourts, though framed in a great measure upon
that model. There are no recorde on parchment, but
copies of the proceedings are made out upon paper,
and kept by the propel' offieer.


Thc prosecution and defenee of suits is in most
colonies condueted by barristers and attornies, as in
England. In the West Indies these characters are


often united in the same persons; but they are also


often separated. In sorne colonies it is required, as a
qualification for a practising counsel, that he should
have been called to the bar in England. In others it
is sufficient that he should be admitted 01' sworn in as
a barrister in the courts of the colony. Attornies and
solicitors in the West Indies, not qualified as counsel,


are in some colonies required to produce a certificate
of having served a clerkship for five years eithcr in
England or the West Indies , in others such certificate


is not required. (4) In almost all the colonies there is
an Attorney-Genel'al, and in many of them a Soücitor-
General, who are appointcd from home by warrant


55


(3) The right of each eourt to
lay down tho rules by whieh its
proeeedings were to be govemcd
was distinetly asserted in the judg-
ment delivered by MI'. BUl'On Bay-
ley un behalf of the rest of íhe
judges in the case of Mellish u,
Richardson, decidcd in thc House
of Lords, 1 Clark and Finnellys


Reporte, 1!'24. That case related
only lo the superior courts of this
courury, but the principie was
stated in the most general terms,


(4) 1st Rcp. W.1. C. p. 121;
2d aep. 154-1.Sr, whcre more
minute inforrnutiun on this subjecj
will be found ,




56 A SUM"J.I.1ARY OF
under the signet and sign manual, and 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 of 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 the dccision is by rnajority of
votes. The judges of this court are supposed to have
all the autbority of the Lord Chancellor of England in
the English Court of Chaneery, except in cases wholly
inapplicable to the colony. Under this general juris-
diction they sometimes also deaI with cases of lllnacy,
tbough that would seem, upoo principle, rather to be-
long to the governor alone, as the general depository
of the King's prerogative. 'I'here is no systern of bank-
rupt law; but the principle of cessio bonorum is ac-
knowledged in the establishment of jurisdictions in
some colonies for the relief of insolvent debtors; and
this rernedy 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 ofmoney, which is in the nature of an execu-
tion, and operates on the goods and lands. (6) 'I'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..


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


(5) 1 Rep. W. 1. C. 19B; Ib.2
series, 229 ; 3 Rep. 2 series, p. 6-
118.


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




COLONIAL" LAW.


which are held under those denominations in England ;
hut instead of the practice of fines and recoveries, cer-
tain other modes of proceeding, with similar objects in
view, have been devised by the different coloniallegis-
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 and circumstances, but
have seldom 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 judges
in general act gratuitously) is paid, when there is a
colonial legislature, by grant 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 speciaI juries not being
easily adapted to the circumstances of a small society,
are in use in very few instanccs, (7) The commission-
ers, however, in recommending that lawyers should
alone be placed on the judgment seat, have advised, in
many instances,that the class of gentlemen out of which
the assistant judges are now selected should be em-
ployed to furnish special juries in their respective
colonies. ,];lJe proof of debts in this court, whether
by specialty 01' simple contract, when the creditor re-
sides ami 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 is provided
that in such cases it shall be lawful for the plaintiff and
defendant, and also to and for any witness, to verify


"(7) They are in use in 'I'obago,
Special jurics are known in prac-


rice there, and are struck in (he same
manner as in Englaud, 1 Rep. 81.




58 A SUMMARY OF
and prove any matter 01' thing befare the 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 01' affirmation certified
under the city seal, in manner thereby directed, and
transmitted to the colony, shall be of the same force
and effect there, as if sworn vivil 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 magistrate, but the proceeding is entirely
ex parte j and on production in the colonial court of
the affidavit so sworn, it is aHowed in proof of the debt,
though such evidence may of course be encountered by
vivl1 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
Prothonotary's Office. (9) Writs of execution in the
West Indios are executed by the Provost-Marshal,
who is the general executive officer of aH the courts of
law, and also performs the duties of Serjeant-at-Arms
in the Court of Chancery, They run against goods,
lands, and body, aH at once j but the levy on each is to
be madenot simultaneously, but in succession, and in
the following order.i--produca, ncgroes, Iand, body, (1)
Undcr these writs, equities of redemption, and all other
equitable as well as legal interests, may be taken,
Chattels are, and slaves were, taken in execution, put up
to sale, and sold to the highest bidder, Lands and
houses are appraised by a jury summoned for the pur~
pose, and if not redcemcd by the defcndant within a


(8) The commi ssioncrs rcmark
that notwithstandiug the clear terms
of this luw, the court al Barbadoes
ullows it to be a valid objection to
such an affidavit, that it has been


made cithcr by plaintiff 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 period, are delivored and eonveyed at that price
to the plaintiff. Executions are often takcn out without
being leviéd, but are kept as securities, to be enforced
by the different creditors in succession, They are
used as securities, and are assignable; but the assignee
must proceed in the name of the assignor. (Q) The real
estate being bound from the issuing of the judgment
such executions have, as to land, aH the effect of suc-
cessive mortgages; but the creditor whose writ is
executed first, 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, and marriage licenses, form the subject-
matters of his jurisdiction. AH wills are proved, hut
the probate is conclusive only as to personalty. The
solemnities requisite to the valdity of a will are nearly
the same as in England. Marriages are either by
banns 01' by license from the governor, in his capacity
of Ordinary. They have no canonical hours in the
colonies, and marry at what time they please. A direct
and immediate appeal líes from this eourt, but it is
doubted in sorne eolonies whether that appeal is to the
King in Couneil, 01' to His Majesty as head of the
church (3). In Jamaica, the Attorney-General of the
colony, and the Secretary there, in answer to the com-
missioners, stated that the appeal lay directly from the
Court of Ordinary to the King in Couneil. (4)


The Court of Admiralt.1J or Vice-Admiralty has two
branches, a Prize and an Instance Court, both held by
commission issuing from the High Court (5) of Admi-


59


(2) 1 Rep, W. I. C. 81.
(3) 1 Rep. w.r. C. p. 43; but


see also pp. 104, 19:>.
(4) 1 Re". 2d series, 233; ib.


269.
(b) 1 Rep. W. J. C. 43. Culu-


nial Courts of Adrniralty have not,
however, bccn uniformly hcld by
authority derived from tlre Ad-
miralty of England aloue, for upon
a questiou regarding an appcal from
the Admira!ty Courl of Nevis, Mr.




60 A SUMMARY or
ralty in England, and before a judge whom that com-
mission appoints. Both possess the same jurisdiction
as is exercised by the correspondent 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 wages, bottomry
bonds, &c. The statute 3 & 4 Win. '1', C. 59, S. 64.,
the act undel' which the trade of the colonies is now
regulated, enacts "that aH penalties and forfeitures
which may have been heretofore 01' may be hercafter
incurred under tltis 01' any other ael relating to tite
customs al' to trade 01' navigalion, (6) shall and may he
prosecuted, sued for and recovered in any court oí
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 courts , then in any court of record 01' of Vice-
Admiralty, having jurisdiction in some British colony
01' plantation near to that where the cause of prosecu-
tion arises: provided that in case where a seizure is
made in any other colony than that where the forfeiture
arises, such seizure may be prosecuted in any court of
record 01' of Vice-Admiralty having j urisdiction either


Attorncy-Generul Northey said, "lf
that court was held under the lale
King's corumission for governing
the Leeward Islauds, as the poli-
tiouer tukes it lo be, alleging that
the president and council had power
only lo appoint, bul not lo sil theru-
selves as a Court of Admlralty, or
if the sentence was given by thc
presidenl and council of N evis, as
the council there, in both cases the
appeaJ ought lo be lo Her Majesly
in Council ; bul if the prcsidcut und
couucil held a Court of Admiralty


hy autILority derived from the Ad-
miralty of Englaud, the appea! is
lo be lo the Court of Admiralty in
Eugland, and so it was lately de-
termined hy Her Majesty in Couu-
eil," '2 Chal. Op. 227.


As lo the munner in whieh appeals
froru the decisious of Vicc-Admi-
ralty Courts are now regulated, see
po,t, Appeals,


(6) The words in italics were
nol in the 6 G. 1, e. 11.. , s•.'>7,of
\\ hich this clausc is in other respects
an CXi..H.:t fOp.j'.




COLONIAL LAW.


in the coIony 01' pIantation where the forfeiture arises,
01' in the colony 01' pIantation where the seizure is made,
at the eIection of the seizor 01' prosecutor : and in cases
where there shalI 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' pIantation 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 SIave AboIition and Re-
gistry Acts. This court is held as occasion requires,
Its officcrs are the King's Advocate, the King's Proc-
tor, the Registrar, and the Marshal. AppeaIs were
formerly made from the Instance side to the High
Court of Admira1ty in EngIand. Frorn the Prize side
they were made to the King in CounciI, subject to the
regulations of the prize act, but now appeals of any
sort from the Vice-Admiralty Court must be made to
the King in Council. (7)


Besides the civil jurisdiction, there are Admiralty
Sessions, held by a sepárate commission, for the trial
of murder, piracy, and other offences committed on the
high-seas. (8) This court is composed of the judge of
the Admiralty, (who presides,') the members of counciI,
and alI flag-officers and captains on the station.


We must now proceed to the Criminal Court, which
has jurisdiction over alI crimes committed by free
persons. The president is usualIy one of the judges
of the King's Bench and Common Pleas, The course
of proceeding is by indictment, found by a grand and


61


(7) See post, "A ppeals.' (8) 1 Rep. W. l. C. 'J3, 83.




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


The Slace Court was formerly held for trial of
capital offences committed by slaves. It was in
different eolonies differently constituted. In most of
the West India islands judges consisted of justices
of the peace, who assembled not at any sessions
01' fixed time of meeting, hut at times and places ap-
pointed pro re nata in each particular case, and the
trial commonly took place as soon after the charge was
made as their own convenience and that 01' the wit-
nesses permitted. In most islands two 01' more jus-
tices were required in arder to form a court, In the
SIave Courts, it is said byan able writer, (1) to be a
general principle that the sIave is considered as sub-
ject to the criminal eode of England when it is in force
with free persons. The commissioners, however, re-
ported exactIy the reverse with regar~ to Barbadoes.(2)
AH the authorities agree that he was answerable for
offences created hy the slave laws of the particular
colony. (3) In none of these courts was any such pl'O-


(9) As to the person by whom
the indictment rnust be presented
lo thc grandjlll"Y, see ante, p. 55. In
nmny of lile colonies Ihe grand jury
examine wituesses fOI" the defence
as well as for the prosccution. The
cornmissioners, however, considercd
this practice un evil, aurl recoru-
mended its abolition. See Rcports
of the \Vest India Commissioners.


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


be considered settled by the very ge-
neral terrns employed in the 17th
sectiou of the Slavery Abolition Aet,
3 & 4 W. 4, e, 73, which declare
tha l H no act nor order in council
shall authorise any person but a
speeial justice of the peace lo inñict




COLONIAL LAW.


ceeding known as a bill of indictment, 01' any pre-
liminary examination of the charge by a grand jury, 01'
by a superior court. In SOl11e islands under late me-


_liorating acts, freeholders, or white inhabitants, to the
number of six, seven, 01' nine, were, 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 0\1 the tri al of capital charges
three 01' more freeholders 01' housekeepers, who jointly
with them dccided questions of law as wcll as of fact,


63


whipping, or any other corporal
punishmcnt, on an.y apprcnticcd
labourer: provldcd that this act
shall not cxempt any apprcuticcd
labourer frorn such corporal punish-
ment as by any law or pollee regu-
Intion is "now in force for the pnnish-
ment of any offencc, it being eqnalls;
applicable to al! other persansof.Fee
condition," The Slave Court too would
seem to be abolished by the same
act, Thal eourt was formerly eOITl-
posed oí' two j ustices of the peaee
and three freeholders, w ho were
judgee both of the law and the fact.
But as nene but special justices can
nowinflict any corporal punishment
on apprenticed labourers, nor even
they nnless sueh punisbment be
.. eqnally applicable to all other
persons of free conditlon ;" and as
tbe negro, from the condition of a
slave has been ele valed into that of
a free appreuticed labourcr, and is
classed with "other pers"", or free
l'onditioll," the men on \'dlOOI the
power of the court was to operate no
longer exist, and the very fonnda-


tion of ir, jurisdietion is gone. It
ma)' be supposed that by the force
of the proviso in the 19th sectiou, to
the cifeet that "nothing therein
contair.ed shall be construed to ab-
rogate the powcrs vested in the
,up,'eme eourts of record. or the
superior courts of civil and criminal
jurisdiction in any of the colonics,"
the Slave Coort is still eompeteut
to judge of otfenees eommitted by
slaves, But, in thefirst place, the Slave
Court neve!' was a court of record.
(1 Rcp. W. L C. p. 48.) In the
next, it ma)' be doubtful whether it
can properly be considercd one of
the " Superior Courts of Civil and
Crlminal Justice," (eertainly not, if
the phrase is to be eonstrned in tbe
conjunctlve sense); and lastly, if it
does really come within that de-
scription, then the proviso in the
19th section will be -opposed not
only to the general splrit of the act,
but to thc positive enaetment ofthe
17th sectiou, aud must therefore
be considered to be overruled,




64 ASUMMARY OF
and 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-
warrant was issued to take the slave into custody to
answer the charge. In Dominica, however, it was di-
rected by law that the proceedings at the trial should
be recorded by the clerk of the crown, who was re-
quired to attend the court for that purpose; and there
was a similar law in the Bahamas and Jamaica, with thé
addition that the charge should, previous to the tri al,
be reduced into writing and read; but it was provided
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 general immediately after sen-
tence, and carried into effect by the marshal 01' his
offieers. (4) ,


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


(4) Stephcns's Delincatíon, p.
402. The sla ve, wheu convicled, is
al once hanged upon the nearcst tree.
(1 Rep. W. I. C. 54.) In some co-
lonies there is no appeal againsl a
scntcnce on conviction, in others
there is, (t Rep. W. I. C. 21B.)
In Grenada it is the practice, at
the governor's request, for the justice
to lay the trials before the governor
previons to the sentence being exe-


cutcd ; but there is no legal obliga-
tion on them to do so. (1 Rep. 106.)
The eommissioners, however, donbt
the slatement thus made lo them,
as they consider it irreconcilable
with the governor's power lo re-
prieve, 01' the King's lo pardon,
(Id. ib.)


(.J) That was, of course, COm-
rnitted by them agninst persone not
standing in the relation of master;




;


COLONIAL LA W.


procceding took place. A single magistrate summoned
the owner to produce the slave-hcard the evidence,
and either dismissed the complaint, 01' ordered a punish-


-/
ment by whipping, according to the nature of the
offence,


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 of registration were,
under the authority 01' by the influence of his Majesty's
government, adopted in the different slave colonies.
As a necessary result of the Slavery Abolition BilI,
the registry of slaves, as such, must cease; but as the
question of freeman 01' apprenticed labourer will now
teke 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 been 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
full return of the number of his slaves, in which the
names, ages, and stature of each were to be specified.
These were denominated the original returns, and the


for with respect to those in which he naturally preferred the dornestic
the master was personally concerned, forurn,


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 colony, who at the time at which it
might be made were in a servile condition. Deaths and
births, enfranchisements and importations from 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 aHjudicial 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
slave and free, the production of an extract from the
registry, certified undel' the hand of the proper officer,
was made essential to the proof of the master's title.
The absence of such an entry was declared to be con-
clusive evidence of the freedom of the asserted slave.
There were also provisions for remedying involuntary
errors in the return, and for protecting the rights of in-
fants, lunatics, and married women, and of persons
claiming a future 01' reversionary interest in a sIave, it
being obviously equitable that they should not suffer
for any neglect in eompleting the registry, when they
were unable to prevent it, Of aH returns, whether ori-
gina.l or annual, exact duplicate~ were directed by the
order to be transmitted to the Colonial Office in
England; but the present place of deposit is an offiee




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. 1t 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 admitted
in all actions 01' prosecutions commeneed under the
order,-subjeet, however, to all just exceptions to their
eredit.


Sueh is the general substance 01' outline of the Tri-
nidad order. By subsequent orders of the King in
Couneil, a similar system, with frequent differenees in
detail, was extended to Saint Lucia and the Mauritius.
And in eonsequenee of earnest reeommendations from
the crown, the other slave eolonies have each been in-
dueed to establish, by local acts 01' ordinanees, some
plan of registration professing in general to be modelled
upon that of Trinidad, hut falling, in many cases,
mueh helow that model, nnd l'~nd~red nearly useless
by the imperfeetion and inadequacy of the provisions .
. By the reeent Slavery Abolition Act the task of pro-


67


(6) 59 Geo, 3, c. 120, passed
12\h July, 1819. By this act it is
provided that a registrar shall be
appointed to receive returns of
slaves to be transmitted frorn any of
Bis Majesty's British and foreign
plantations, and that aftcr the 1st
January 18~0, every sale or con.
veyanee, &e. of any slaves to be
executed within the United Kiug-
dom, to or in trust for an.y of His


Majesty's subjects, shall be void,
unless the slaves are registered and
the registered names set forth in the
deed or inslrument; and that no
51ave shall be deemed duly regis-
tered unless a return of sueh slave
has been duly received from the co-
lony where such siave resides,
within four years next preeeding the
eonvcyance.


F~




68 A SUMMARY OF
viding for the details by which that act is to be carried
into full effect is left to the different legislative assemblies
ofthe colonies themselves. AlI the "\Vest Indian colonies,
with the exception of British Guiana, Trinidad, and
Sto Lucia, have legislative assemblies. British Guiana
has a sort of local assembly (subject, however, to the
powel' of the King in Council) called the Court of Po-
liey, (see ante, p. 926.) Trinidad and Sto Lucia are strictly
speaking, therefore, the only eolonies now existing in
the West Indies without the form of self-governrnent.
They will probably receive directions as to the mode
of carrying the Slavery Abolition Act into effect by
order in council.


Acts of tt,e Bri- 111. \Ve now proceed to the third head of our inquiries,
tish Parliarneut d 1 'd . f h B" h P nimposing Regu_:ln lave to consi er certam acts o t e rrtis al' Ja-
l~tliOll~ on the ment imposing regulations on the colonies in general.
Colouics.


The authority of Parliament over the colonies has
been exercised chiefly in the establishment of certain
commercial regulations that were designed to secure to
the mother country (in imitation of the practice of other
states) the full and exclusive benefit of her colonial
possessions. Of these, the well known law passed in
the 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
increased by many subsequent statutes, forming altoge-
ther a general system of navigation law, which, as far
as it regarded the colonies, was said to embrace two
distinct objects ;-6r8t, the augmentation of our naval
strength by an entire exclusion of forcign shipping from
our plantation trade j-secondly, the securing to Great
Britain aH thc emoluments arising from 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 whole export, which (as far as
it coulrl serve any useful purpose to thc mother country)
was to be no where but lo Great Britain. (7)


But as this system was 'wholly abrogated, and a new
cede of trade and navigatiou 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
srveral 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 heen, 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, and declares that "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)


69


(7) The impolicy of this system,
in regard to both these objects, is ex-
plained and strongly rcprobated in
the ahle article u Colony," in the
Supplement to the Encyclopredia
Britanniea, attributed to tbe pen of
Mr, Mili, and has also been rhe sub-
ject of severe and rnerited censure jo
the House of Comrnons,


(8) An aeeurate aeeount is given
in MI'. Reeves' wellknown work ou
Shipping, of so mueh of this law as
tbeu existed,


(9) The followillg is a list of the
statutes pussed in the present year.
'I'he provisions of sueh of them
as may be deemed important with
relatiou to the eolonies will be
given in the Appendix. As each
aet is intended as a substitute for
sorne partienlar statute repeuled by
the 3 & 4 Wm. 4, e• .JO, the ehap-


ter of the repealed statute will, for
the purpose of easy reference, be
inserted in a parenthesis irnme-
diately after the description of the
aet whicb supersedes it,


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


:3 & 4 W. 4, e. 52.-AIl Aet for
the General Regulation of the CIIS-
toms. (6 G. 4, e. 107.)


:3& 4 W. 4, e. 53.-An Act for
the Preventlon of Smoggling. (6 G.
4, c. 108.)


3 & 4 W. 4, e. 54.-An Aet for
the eneouragernent of British Ship.
ping and N a vigation, (6 Geo. 4" e-
109.)


:3 & 4 W. 4, e. 55.--An Act for
the Regislerillg of Britisb Vessel s,
(6 G. 4, e. 110.)


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




70 A SUMMARY OF
It is provided that, with certain exceptions afterwards


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


That (with certain exceptions) goods, the produce of
Asia, Africa, 01' America, shall not be imported into the
United Kingdom to be used therein, in foreign ships,
unless they be ships of the country of which the goods
are the produce, and from which they are import-
ed. (2)


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


That no goods shall be exported from the United
Kingdom to any British possession in Asia, Africa, or
America, nor to the aboye mentioned islands, except in
British ships. (4)


That no goods shall 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 shall be imported into any British
possession in Asia, Africa, 01' 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, e• .'>8.-An Act to
Grant certain Bounties and AlIow-
ances of Customs, (6 G. 4, c.
113.)


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


Regulate the Trade of the British
Possessions Abroad. (6 G. 4, c.
114.)


(1) 3&4W.4,c.54.s.3.
(2) Sec.4. And as to what shall


be considered a ship of the country,
see seco 15.


(3) Sec.B,
(4) Sec.v.
(5) Ss.9 & 10.




COLONIAL LAW.


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


That (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 is a
British subject, and by a erew whereof three-fourths at
least are British seamen; and in coasting 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 adrnitted to navigate in the rivers and
on the coasts of the United Kingdom and of the British
possessions abroad to which they respectively belong ;-
and all boats, British-built, owned, and navigated, under
thirty tons burden, and employed in fishing on the
coasts of Newfoundland, Canada, Nova Scotia, 01' New
Brunswick, shall be admitted to be British vessels,
though not registered. (8)


That all ships built in the British settlements at Hon-
duras, and owned and navigated as British ships, shall
be entitled to the privileges of British registered ships
in all direct trade between the United Kingdom and
the British possessions in America and the said settle-
ments. (9)


The master and seamen are not to be deemed Bri-


71


(6) See.11. Aud as lo whal shall
be considered a ship uf the country,
see see.15.


(7) Seo, 12.
(8) See.13.
(9) Seco 14. Althollgh this "Sel-


tleruent of Honduras" has been once
denied in a court of law (see ante
p. 2, u. 1,) lo be a British Colony, it
is now trcated as such, thollgh not


under that name, and in the 3 &
4 W. 4, e. 52, (Customs Regulation
Aet,) it is declared, s. 119, "thal
'Brilish Possession' shall be con-
strned to mean culony, plantation,
island, territory, 01' settlement." The
authority of a governor is vested al
Honduras in a H snperintendent "
appoinled by the crown,




72 A SUMMARY OF
tish unless natural-born 01' naturalized, 01' made deni-
zens, 01' having become subjects by the conquest 01'
cession of some newly acquired country, 01' by baving
served in His Majesty's sbips of war, Natives oflndia
born within tbe limits of the British dominions, are not
to be deemed British seamen. Every ship (cxeept
tbose required to be wholly navigated by British sea-
men) which shall be navigated by one British seaman
of a British sliip, 01' one seaman of tbe 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 01' in tbe British possessions abroad unless
duly navigated. British ships trading between places
in America may be navigated by British negroes, and
ships trading eastward of tbe Cape by Lascars. (2)


Tbe proportion of British seamen necessary for tbe
due navigation of British ships may be altered by tbe
royal proclamation. (3)


The importance of the aet 3 & 4 'V. 4, e. 59, by
whieh the trade of the British possessions abroad is
now regulated, is sueh tbat it has been deemed advisable
to print the greater part ofit at lengtb, it will thercfore
be found in the Appendix, It may be sufficicnt to state
here that no goods are to be irnported into Oí' exported
from any of tbe British possessions from 01' to any place
other tban the United Kingdom, 01' sorne other of such
possessions, exeept into 01' from certain free ports, of
which atable is given in the act; but with a proviso
that His Majesty may extend tbe privilcges 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 shall grant the like privileges to
British ships; 01' not having colonial possessions shall
place the commerce of this country upon the footing of
the most favoured nation; unless His Majesty by arder
in council shall deem it expedient to grant the whole 01'
any of such privileges to a foreign country not fulfilling
those conditions.


The act then gives atable of certain kinds of goods,
the importation whereof into the British American
colonies is either absolutely prohibited 01' subjeeted to
certain restrictions,


The act contains tables of certain duties which it
imposes upon goods imported into any of His Majesty's
possessions in América, Newfoundland, 01' Canada,
These (with the exception of any duties paid undel' any
act passerl prior to the 18 Geo. 3,) are to be paid over
to the treasurer of the colony, to be applied to sueh uses
as shall be directed by its local legislature, and where
it has no Iegislature, are to be applied in such manner
as directed by the commissioners of His j\1ajesty's
Treasury. (5)


811Ch are the main provisions of the prcsent system
of navigntion law so far as regards the colonies. (6)
Its general effeet, it will be observed, is thar, subject


73


(4) :3 & 4 \Y. 4, e. 59, s.5. This
wo uld !.¡{.: !li\ir;.'pn'pcr1'y cxprcsscd as
ti le prjv¡l('b(~S " not prulúbitcd," for
it is cvidcnt .. by rcfcrcnce lo the form
of the regulatiulls above cited, that
thosc I'rivilcgcs all arise from not
bdng included in prohihiticns,
(5) S. 13.
(6 )Ourprcsclll purposc has ofcourse


led us tu consider the navigatioll
law solely as it regíln~s ti.e Colonies.
Hut thc gcrwral S)'stt'11I kuown bj' the
nauic 01' the navigation law, iuvolves
the universal cnnuuerce of the CUUfl-
try , aud its objeets are said on the
bighesl authority to be the fi,heries,
the cIlastillg trude, the Eltropean
trade, the cornmerce with Asia,




A SUMMARY 01"


to certain modifications and conditions, foreign ships
are now permitted to import into any of the British
possessions abroad, from the countries to which they
belong, goods, the produce of those countries, and to
export goods from such possessions, to be carried to
any foreign country whatever ; (7) while, on the other
hand, the trade between the mother country herself
and her colonies, and also all intercolonial trade between
the latter, is still strictly confined to British shipping.(8)


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


By 7 & 8 W. 3, c. QQ, sect. 12, it is provided "that
aH places of trust in courts of law, 01' which relate to
the treasury of the said islands, (1) shall, from the
making of this aet, be in the hands of the native born
subjects of England, 01' of the said islands."


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


AJ,-ica, amI America, and thc ínter-
course with the Colonies, (Speech
of Right Honourable WilIiam Hus.
kisson on the Navigation Law,
12th May, 1826.) Inall its branches,
those which relate to the fisheries
and the coasting trade excepted, the
most importan! alterations were
introduced by the new code passed
in the 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 his speeches


of the 21st and 25th March, lB2,5,
am!12th May, 1826,(now inprint)


has givcn a full explanation of the
policy pursued by this country in
the new commercial regulations.


(9) Indeed in sorne cases, where
they exist, they are not easy to find,
beca use particular acts have been
extended to the colonies, in sorne
cases of mere municipal polícy, hy
scctíons uf which nu notice is takcn
in the general indexes tu the stu-
tutes.


(1) Meaning (as appcars from
the context) the islands belonging
to His Majesty in Asia, Afrlca, or
America.




COLONIAL LAW.


plantations of America, and as to paying 01' receiving
silver 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 some points relating to Pirates,"
was by the 9th section extended to "all His Majesty's
dominions in America." That act was repealed by the
7 & 8 Geo. 4" c. 27, s, 1, and the acts for amending the
criminal law passed since that time, in lieu of the
statutes then repealed, have been confined to England.


The act 5 Geo, 2, c. 7, 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 01' equity in any of the said plan-
tations, relating to any debt 01' account wherein any
person residing in Grcat Britain shall be a party, it
shalI be lawful for the plaintiff or defendant, (2) and
also for nny witness, to be examined 01' made use of
by affidavit, (01' in case of Quakel's, affirmation,) before
any mayor 01' chief magistrate of the city, &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' affirming be stated in the


75


(2) The provisions of this act
were extended to New South
Wales and its dependencics by
the 54. Geo, 3, c. 15, which is, ex-


cept the necessary alteration of
names, and the omission of the word
negroes in tbe 4th sectiou, a cap y of
the act of Geo, 2.




76 A SUMMARY OF
oath." And it is provided "that debts due to Bis
Majesty may be preved in the same manner." (3)


The same act also provides that "houses, lands,
negroes, and other hereditaments and real estates in
the said plantations belonging to any person indebted,
shall be liable to all debts owing by such person to His
Majesty, or any of his subjects, and shall be assets for
the satisfaction thereof in like manner as real estates
are by the law of England liable 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., for
the satisfaction of debts," That part of the clause
which respecta negroes had been repealed by 37
Geo. 3, c. 119, and of course would cease to operate
when the Slavery Abolition Act took effect; but not-
withstanding the repealing statute of Geo. 3, negl'Oes
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, certain penalties im-
posed by that act for the violation of its provisions
relative to the trade and revenue of the British Colonies
in America, are to be recovered in any Court of Record
or of Vice-AdmiraIty in the colony or plantation where
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
------------ ------------


(:3) See observations on this act,
Stokes' Laws of Colouies, 371, 392,
lo 394. See also, as lo the state
of law before the act, Com, Dig,
Assets, C.; Biens, A. 2; 2 Vento
3,58; 2 Chan, Ca. 145; 1 Vern,
4!>3,469.


«1) Sec 1 Rep. Wesl India Como
38, 39, and their observatious on
the 'construction put on the act
5 Geo, 2, e. 7, by the lawy crs in Bar-
badoes, ante, p. 58, aud 1 Rep. W.
I. C. p.37, 38.




COLONIAl. LAW.


regulated, Section 64· declares "that aH penalties
and forfeitures which may have been heretofore or
may be hereafter incurred under this or any other act
relating to the customs, or to trade and navigation,
shall and may be prosecuted, sued for, and recovered in
any Court of Record 01' of Vice-Admiralty having
jurisdiction in the colony 01' plantations where the
cause of prosecution arises, provided that in cases
where a seizure is made in any other colony than that
where the forfeiture accrues, such seizure may be pro-
secuted either in the colony or plantation where the
forfeiture accrues, al' in the colony 01' plantation near
wherc the seizure is made; and in cases where there
shall happen to be- no such courts in either of the last
mentioned colonies, then in any Court of Record 01'
Vice-Admiralty having jurisdisdiction in sorne British
colony 01' plantation near to that where the forfeiture
accrues, 01' to that where the seizure is made, at the
election of the seizor 01' prosecutor."


The statute 1~ Geo. 3, c. i20, which provides that
persons standing mute on their arraignment for felony
01' piracy shall be convictcd of the offence chargcd, is
expressly extended to "His Majesty's colonies and
plantations in America." (.5)


By 13 Geo, 3, c. 14, mortgages of freehold 01' lease-
hold estates in the colonies in the West Indies to
foreigners are made valid, and may be sued upon,
under certain restrictions, notwithstanding the mort-
gagees may be alien enemies.


By the 1 Wm. 4, c. 4, which recites the inconveniences


77


(5) By the 7 & II Geo. 4, c. 28,
s, 2, if uny per.an stands mute on
his arraigurnent, the Courl shall, if
it think fit, enter a plea of not


gnilty, aud proceed as if he had
plcadcd, But this statute is con-
fined by the reciting part to Eng-
land,




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
or military, within any of His Majesty's plantations 01'
possessions abroad, determinable at the pIeasure 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 tbe 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 commissioners had been appointed under the
authority of those statutes, and tbat accounts were
tben pending before them, and tbat "it was expedient
tbat as weH the said accounts, as all other accounts of
the receipt and expenditure of the colonial revenues,
and ofsqpls granted in aid thereof, should be examined
by the commissionerá for auditing the public accounts of
Great Britain j" in pursuance of which it is enacted,
tbat after the 5th of April, 1833, the audit of all ac-
counts of the receipt and expenditure of colonial reve-
nues shall be transferred to the commissioners for
auditing tbe public accounts of Great Britain.


And by seco 3 it is declared, that aH superannuation
01' retired allowances granted by the 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-
tice 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, mínisters, 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 feel himself aggrieved by charges in the
said Vice-Admiralty Courts; and on summary applica-
tion the Court of Admiralty may order such charges to
be taxed.


By sec, 6, Vice-Admiralty Courts are to have ju-
risdiction in suits for seamen's wages, pilotage, bot-
tomry, damage to a ship by collision, contempt in
breach of the regulations and instructions relating to
His Majesty's service at sea, salvage and droits of
Admiralty, notwithstanding the cause of action may
have arisen out of the locallimits of such COUl't.


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


79


(6) By 3 & ,t Wm. 4, C. 51, s. 2,
" all appeals or applications in all
sults or proccedings in the Courts
of Admiralty or Vice-Admiralty
abroad which may now by any


law, statute, commission, or usage
be made to the High Court of
Admiralty in England shall, after
1 June, 1833, be made lo Bis Ma-
jesty in Council."




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 the 31st of December, 1832, and
that it is expedient they should continue in force till
altered or repealed by any acts (duly allowed) of the
House of Assembly, which His Majesty may at any
time see fit 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 there.


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


The act ~'Vm. 4, c. 15, by which the property of au-
thors in their dramatic productions is for the first 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' places of dra-
matic entertainment whatsoeverin anypart of'the 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. 81
part of the United Kingdom, 01' of the British domi-
nioes, in which the offence shall be committed."


The 3 & 1, Wm, 4, c. 49, recites, "Whereas it is ex-
pedient and reasonable that the solemn affirmation of
persons of the persuasion of the people called Quakers
and of Moravians should be allowed in all cases uihere
an oatk is required :" it therefore enacts that "every
person of the persuasion of the people called Quakers,
and every Moravian, be permitted to make his 01' her
solemn affirmation 01' declaration instead of taking an
oath, in all places and for all purg~es whatsoever
where an oath is or shall be required either by the
common law 01' by any act of Parliament already made
01' hereafter to he made, which said affirmation or
decIaration shalI 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 from the
very comprehensive terms employed in it, the rule as to
statutes of universal application (7) must be deemed to
opérate upon it, and to give it effect in aH the British
dominions, The 3 & 1· Wm. 4, c. 82, is a similar act
relating to "Separatists."


IV. 'Ve have now arrived at the fourth and last head Points of law
f kv vi . 11 • f E li h connected witho remar , VlZ. some misce aneous pomts o ng IS the colonies,


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


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


(7) See ante, p. 8, loS, lG.
(8) Rex v, l\flllltOIl, 1 Esp. 62,


before the passing of the 42 Geo


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


G




82 A SUMMARY OF
is provided that if any governor, lieutenant-governor,
deputy-governor, 01' commander-in-chief of any plan-
tation '01' colony within His Majesty's dominions beyond
the seas sÍlall be guilty of oppressing any of His Ma-
jesty's subjects beyond the seas, within their respective
governments 01' commands, 01' shall be guilty of any
other crime 01' offence contrary to the laws of this
realm, 01' in force within their respective governmmts
01' commands, sueh oppreseions, crlmes and offenees
shall be tried in the Court oi' King's Bench in England,
01' before sueh commissioners and in such county of .
the realm as shall be assigned by Bis Majesty's com-
mlsslon, and that the same punishments shall be in-
fllcted as are usually inflicted for crimes of the like
nature when committed in England. And by a sub-
sequent statute, 42 Geo. 3, c. 85, it is enacted that any
person holding a publio station, offiee, 01' employment
out of Great Britaín, and guilty of any offence in the
exercise of his public funetions, may be tried in the
King's Beneh, either on an information exhibited by
the Attomey-General, 01' an indictment found; and all
persons so offending and tried under this act 01' the
statute of William, shall reeeive the same punishment
as is inflicted on similar offenees committed in England,
and aré also liable, at the discretion of the Court, to he
adjudged incapable of serving Bis Majesty 01' holding /
llnypublic etnployment.(9)


There are also several statutes by which the parti-
cular crimes of treason, murder, and manslaughter
commítted out of the realm by any persons, are made
triable within the realm of England. (1)
---_.....,'¡-, -------- ------


(9) 8 East, 31; and as to India
see the East India BiIl, 13 Gen. 3, c.
63, s, 39; 24 Gen. 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, c. 29.8.
7; 39 Geo. 3, c. 37; 43 Gen. 3,




COLONIAL LAW.


\Vith respect to trespasses and other itditt'ies to "edl
propet'ty; these also are local by our law, so that it is
said that no action can be maintained in this country
for an injury to real property out of the kingdom, as
for instance, for entering a house in Canada. (2) A


83


11
"


c. 113, s. 6. And see two opinions
that 28 Hen, 8, c. 15, extends to co-
lonies established before the aet was
passed, 1 Chal. Op. 199, and 2


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


(2) Chitty on Commerce, vol. 1,
p. 648. The contrary was slated
by Lord J\Jansfidd in IJfosty" v.
fi'ab"igas, Cowp, 176-180; bul


that part of that case was expressly
overruled in DOll/son v, MaUhcws,
4 Term Rep, 503, where the judges
intirnated that the authority of de-
cided cases was too strong to allow
them to adopt the opinion of Lord
l\lansfield.


The doctrine somewhat summa-
rily declared in this latter case, cer-
tainly without much argument or
consideration, has ever since been
the admitted rule of pleading, and
is still recognized as such, (Stephen
on Pleading, 2d edil. 338, and
Chitly on Pleadíng, vol. 1, 5th
edito p. 299.) Yet it would be
diffieult to find a justifieation for it
in principIe, and even the authorities
can hardly be said fuUy to bear it
out. Mr, F; Pollock, in the course
of an argurnent on the case of Gar-
land v, Corlde, in the Exchequer
Chamber, 17th June 1833, said
tbat tbeir lordships were well aware
how law was sometimes made; first,
there was sorne dictum in a nisi
prius case; then another nisi prius
case followed that : froru the poverty


of the parties, the smallness of the
sum in dispute; or from some other
cause, neither of them became after-
wards tbe subject of a motion in
court, and tberefore it was taken
(01' granted tbat they were acquiesced
in; a case subsequentlj occtirred
in Banc, and the judges, without
further inquiry, thongbt themselves
bound by diese two recent decisions
which bad not been questioned, and
thus a basty ruling at nisi prius be-
carne at once the law of the Iand,
This bappy exposition of the mattar
seems to be well illustrated by the
case of Doulson v, ltlatthews. An
action was braught against a person
for a tres pass comrnitted by him in
the plaintiff?s house in Canada,
both parties being at the time 01' tbe
action in this country. Lord Kenyon
nonsuited tite plaintiff on tbe ground
tltat the action was local A motion
was made to set aside the nonsuit,
and the elaborate, able, and con-
vincing judgmeut of Lord Mans-
fleld in Mostyn s , Fabrigas (Cowp,
l80) was cited to show that under
tbe particlular circumslances of that
case the rule as to locality of aetion
did not boldo 'I'he answer of Lord
Kenyon is simply, "The cdnlrary
bad heen beld in a case in tbe Corn-
mon Pleas tbat wbere the action is
on tbe realty it is local," and thus a
jttdgment delivered by Lord Mans-
field, witb tite concurrencc of the
other jutlges, (Aston, '''illes and
G~




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


Ashhurst,) and pronouneed, after
two arguments, deseribed as ex-
tremely able, aud after time taken to
considcr, was uncercmoniously over-
ruled. The" case in the Common
Pleas" is not quoted in (he report
of D'JUIson v, Matthews, but it was
probably that of Shelling v, Farmer,
1 Strange, 646, thus reported ,-
" In an action of trespass and im-
prisonment for facts done in the
East 1ndies, the plaintiff laid them
all (being transitory") in London,
and in!el' alia declared for seizing
the plaintiff's house, situate apud
London praBd' in parochia et warda
proed'. It was objeeted pl'O dif.
that the trespass as to the house was
local, and they eould not give evi-
denee as to seizing a house in the
East Indies, And Eyre, C. J., re-
fused to let the plaintiff give evi-
dence as to the house, eomparing it
to the case of rent for a house at
Barbadoes, where it has been held
"you may bring covenant for the
rent in England, but un action of
debt, whieh is local, t cannot be
brought here." To say nothing of
the very inferior importance of a
nisi prius decision thus hastily made
when comparad with the well con-
sidered j udgment of four such judges
as decided the case of 1.I'Iostyn v ,
Fabrigas, it is not a little singular
that though Shelling v. Farmer had
been antecedeutly determined, it


was not even quoted in this case by
the very learned counsel who argued
on hehalf of MI'. Mostyn, one of
whom (MI'. Buller) afterwards as-
sisted in deciding the case of Donl-
son v, Matthews, and who cannot
be supposed to have omitted it for
any other reason than because the


-opinion of Westminster Hall had
j ustly condemned it as bad in itself,
01' most incorreetly reported. Per-
haps both these objections might
with propriety be urged agaiast it,
The truth seems to be that the ah-
sence 01' the presenee of a videlieet
has had much to do in deciding
questions of demurrer raised upon
the point of the locality ofthe venue.
See Robert v. Harnage, 2 Lord
Raym, 1043; S. C. Salk. 659 ; and
6 Mod, 228, where in an action
brought on a bond really made at
Fort St. David, in the East Indies,
the declaration stated it lo have been
made "at London, &c," Per Lord
Holt, "you should have said al
Fort St. David, &c., to wit, at,foa.
don." Sea also 2 East, 497; 6
East, 599 ; II East, 226 ; 5 Taunt,
789. It is very probable that the
real objeetion in Shelling v, Farme,-
was that the count described the
house to be at London instead of
allegiag il to be in the East Indies,
to wit, at London,


MI'. Serjt, Williams and the subse-
quent learned editors of Saunders'


" This parenthesis is, as was cornmon with him, a note of the reportero
t Yet debt lies for use and occupatiorr in auy county, KÍ1rg v, Fraser,


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




COLONIAL LAW.


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


85


Rep, seem inclined to think that the
stat, 6 R. 2, c. 2, is still in strictncss
applicable to a variety of cases, lo
which nevertheless it is in faet never
applied,1 W ms. Saund. '74, (2) and
(h), In the latter of these notes the
case of a declaration on a bailo bond,
(Gregsoll v. IIeath, 2 Lord Raym,
1155, alsoreported in Strange, 727,)


• is mentioned, and thejudgment there
was that the venue was not local. It
is true that that judgmenl is doubted
in the JilOte, and the reasons given
are stated not to be satisfactory.
Still, however, that case has not
yet been overturned, although if
there be one instance stronger than
another in favour of the necessity of
adhering to the rule of locality in
malters of venuc, it must be in a
case where the duty to be performed,
or the obligation to be coutracted,
can only oecur in a particular
county; and such is the fact with
an arrest and the taking of a bail-
bond, which things can be transacted
nowhcre but in the particular county
where the warrant is issued and the
oflicer ís appointed. The chief
reason for requiring locality in ve-
nues is thus stated in Mosty" v.
FlIhl'igas, (Cowp, 176) :-" There
is a formal and substantial distinc-
tion as to the loeality of trials, The
substantial distinction is where the
procceding is ¡.. reln, and where the
cffect of the judgment cannot be
had if it is laid in a wrong place.
That is the case of all ejectmcnts
where possession is lo be be delivered
hy the sheriff of lhc county; and as
trials in England are in particular
counties, and the olicers are county


officers, the j udgment could not
have eífect.if the actiou was not luid
in the proper county." Lord
Mansfield goes on to say, " Ir an
aetion were brought relativa to an
estate in a foreign country, where
the question was u matter of title
only, and not of damages, there
might be a solid distinction of lo·
cality." It has probably been for
want of atlending to the distinction
laid down in this sentence either
lbal Doulso .. v, l\["lthews has been
wrongly decided 01' reported, 01' that
the books which have since eitcd
thal case have applied its doctrine
to points to which it was never in-
tended to refer. The loose manner
in whieh it is reported may have
occasioned this error. The state-
ment of the case shows that the
action was for something more than
damages ; it was for entering the
plainti/f's house, aud "expelling
him," The last term would seem
to indicate that a question of (he
right of possession was sought to
be deeided by the action ; and Lord
Kenyon's observation, "that the
cause of action stated in the count
was local," might Iairly be made
with reference to an action having
for its objeet the decisión of a queso
tion of title, and consequenlly of
the right of possession. The sub-
sequell't part of the case would lead
to the sarne conclusion; and the
first sentence of Mr, Justice Buller's
judgment certainly would not de-
stroy such un iuference. It is this :
.. It is now too bte for us to in-
quil'c wbelher it were wise ol' politic
lo make a distillctior) between tran·




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


sitory and local actions; it is suffi-
cient for the Court that the law has
settled the distinction." Then fol-
lows the single phrase, that ha" by
its generality oeeasioncd the appli-
cation of the rule laid down in this
case to others to which it is con-
eeived never lo have been meant to
apply, "and that an action q"are
clansum frcgit is local." IIad the
words "where the title is brought
into dispute" eoncluded the sen-
tence, the judgment would ~1ave
been more consonant to the good
sense of pleading and to the maxims
of justice, and would have stood in
accordanco with, and not in oppo-
sitian to, the beller considered judg-
ment in Mosty" v. Fabrigas. For
aught that appears these words
might have been aecidentally omitted
by the reponer ; and pcrhaps if any
case of suffieient importance to jus-
tify the bringing of Doulson v.
liIatthelVs under review should
arisc, su eh might be the j udgment
of the judges, But should the
Courls think themselves bound by
the interpretation hitherto put upon
that case, the subjeet is one deserv-
ing the attention of the legislature,
and loudly calling for their ínter-
ferenee. In the event of the pass-
ing of a bill now pending in par-
liament, the objeet of whieh is to
empower the judges to alter the
rules of pleading, their lordships
will eonstitute for the special pur-
poses of that particu lar act a logis-
lative body, and will then most
probably adopt the opinions and
carry into effect the suggestions of
the eommon law eommissioners,


who, in spcaking on this subject,
(3d Rep. p. 14,) haye said, with
regarrl to the eonsequenees of a mis-
take of venue in a local aetion,
"Sound principle, bowever, seems
to dictate that a mistake of tbis de-
seription should not expose (be
plainti/f to failure." Confining
this view to the law of this eountry,
and its operation here, the learned
commissioners have reeommended
that "al! actions for the recovery
of the realty, and all actions for in-
jury to real property, whethcr in
trespass 01' trespass on the case
shonld be local," and have assigued
as a reason "beeause the slrong
presumption is that all the witnesses,
OL' the greater part of them, reside
in the eounty where the trespass
was eornmitted." Where, however,
this reason of eonvenicnee does not
exist, 01' where a great and para-
mount object is to ,he secured by
the temporary disregard of it, the
rule thus lo he laid down should be
suhject to an exception, " for other-
wise," in the words of Lord Mans-
field, " there would be a failure of
justice, and therefore the reason of
locality in sueh an action should
nol hold."


The natura of the judgment in
trespass alfords on additional ar-
gument aguinst the authority of the
decision in Doulso» v. lI'Iat!hcU's••
The judgment is only for damages,
and there is no reason therefore in
the form of the postea for confining
a man in seeking his remedy against
a wrong-docr to (he very place in
which lhe wrong \Vas done. Lord
Mansfield mentions a case in whieh




COLONIAL LAW.


A bill to account for the rents of lands in the colonies


au officer under the command of
his superior pulled down the houses
of sorne suttlers iu one of our colo-
nies, The officer did that which
perhaps the circumstances of the case
would justify, for these houses had
bcen frcquented by the sailors to
such an extent that their own health
and the discipline of their vessels
had been affected by it, One of
thesesuulers, after being in Englaod,
brought an action against the otficer,
who also happened to be in this
country, Lord 1\1ansfield says,
" One of the counts was for pulliog
down the houses. The objection
was taken lo that count and the
case of Skirmer v. The East Indio
Company," (where the judges held
that they could not give relief here
against the wrongful possession of
houses in India,) "was cited in
support of the objection, On the
other side they produced from a
manuscript note a case before Lord
Chief Justice Eyre, where he over-
ruled the objection j " aud 1 over-
ruled the objection upon this prin-
ciple, that the rcparation here was
personal, and for damages, and that
otherwise there would he a failure
of justice, for it was upon the coast
of Nova Seotia , where there were
no regular courts of j udicature, but
if there bad been, Captain Gambier
mightnever go there again,and there-


fore the reason of locality in such an
action did not hold." It is a cu-
rious anomaly in our j udicature that
while Courts of Common Law have
thus held themselves prevented ]:>y
a mere form from entertainipg ac-
tions fOL' trespasses on real property
where the title \VaS not in question,
but only personal damages were
sought to be recovered, Courts of
Equity have made this same personal
responsibility tlie means of anforcing
contracts relating to Iand in the
colonies, and even of putting parties
into possession of the land itself.


'1'0 a bill for possession of Iands
in Sto Christopher's, defendant de-
murred to the j urisdiction, Lord Hard-
wicke, Chancellor.-" 'I'his Court
has no jurisdiction to put persons
into possession in a place where
they have their own methods on
such occasions, to whjeh the party
may have recourse, Lands in the
plantations are no more under the
j urisdiction of this Court than lands
in Seotland, for it only agil i¡¡ pel'-
SOllam. The delivery in possession
may be enforced in persono There
have been instances of plantation
estates being sold in this Court, and
consequently this Court must have
a power of enforcing a dccree for a
sale upon the person ordered to con-
vey." Robel'deaa v.Rous, 1Atk.544 ;
S. C. Rep. Temp, Hardw. 565;


• Lord C. J. Eyre decided Shelling V. F<¡rmel'. It is therefore to be
regretted that Lord Mansfield did not more fully quote this case j for then,
as Lord C. J. Eyre would be proved to have ruled two different ways, it
might have beco discovered that the apparent contl'adiction arose from the
form of thc dcclaration. Tbe omission of theridelieet in Shellillg V. FUI'lIlc¡'
was most pl'obably the point on whieh bis lorJship's judgment was given,
huI the report is lamentably defective.




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


and S. P. Foster v, Vass"l, 3 Atk.
589. This case was afterwards ex-
pressly recognized by Lord Arden,
1\1. R. J in Lord Cranstrrwn v , Jo/m-
sien, 3 Ves. jun. 182. The prin-
ciple laid down in it was admitted
in argument in White v , Hall,12
Ves. jun. 321, and asserted in judg-
ment both by Leach, Vice-Chan-
cellor, in Bushby v, 1I1unday, 5
Madd, 307, and Beckford», Kemble,
1 Sim. & Stu, 7, and by Lord Eldon,
Chancellor, in Ha"";so" v, GU1'7ley,
2 J ae, & W. 563. It had been
acted upon by Lord Chancellor
Hardwicke in the celebrated case
of Pe.m v. Lord Baltimol'e, ~ Ves.
444, where 'In agreement made in
England touching the boundaries of
two British provinces in America,
was decreed to be executed in per-
~"OI¡am, though it could not be en-
forced in rem, and his lordship used
the expression that " 'In agreemeot
being founded on articles executed
in Eogland uoder seal for mutual
consideration would give jurisdic-
tion to the King's Courts, both of
law and equity, whatever might be
the subject-matter." The autho-
rity of the Court was also asserted
by that noble and learned lord in
Anb'"S v, Angus, Rep. Temp. Hard.,
(edit, 1827,) p. 23. That was the
case of a bill for possession of lands
in Scotland, A plea to the ju-
risdiction was held bad, on the ground
of not averring that the parties were
resident out of the jurisdiction ; Lord
Hardwicke thus expressed himself :
" This had been a good biJI if the
lands had been in Franco, provided
that the persons were resident herc,
for the jurisdiction of this Court is


tipon the conscience of the party."
The " conscience of the party" is
acted upon, as the Vice-Chanccllor
Leach declarad in Bus/¡{¡y v. 1\1un-
doy, "by constraint of his person,
in punishment for the contempt in
disobediencc of the order of the
Court.' The authority of the
Courts of Common Law can be en-
forced in a very similar and at least
eq ually efficient manner, If there-
fore Courts of Equity can justly
claim by such means to put parties
into possession of lands abroad,
tbough those lands should be in
France, where English~ laws can
by no possibility have any force, a
fortiorí, ought the courts of Common
Law to entertain an action where
the object in view is not the pos-
session of lands in a foreign and
independent state, nor cven in thc
colonias of the British empire, but
the mere recovcry of damages from
a defendant resident here, over
whom they possess the double power
of vindicating theír anthority by
seizure of his goods and constraint
of his persono 1'0 avoid by a mere
point of forrn, upon a case of any
questionable authority, the exercise
of this thcir well foundedjurisdiction,
is to create "a failure of justicc,"
which it cannot be for a moment sup-
posed they should desire to witness.


The biU aboye referred to, as pend-
ing in Parliament, has passed inlo
a Iaw, The judgcs have now hy
the 3 & 4 Wm. 4, c. 42, the un-
questioned power of remedying the
evil of a failure of justice, to which
it has Leen the object of this note
humbly to cal1 thcir attention,


The recommendations of the Com-




COLONIAL LAW.


may enforce the specific performance of a contraer re-
lating to such lands, (3) But where the qucstion upon
the construction of the contract for a security by way of
mortgage had been before a court of competent juris-
diction in the colony, and a foreclosure and sale directed,
and certain allegations of fraud were merely general,
and denied, an injunction was refused in the Court of
Chancery in England, on the ground of want of juris-
diction, (lt) The motion for the injunction there, was,
in effect, an appeal from a court of competent jurisdic-
tion in the colony (Demerara) to the Chancery here,
and no such appeal would lie, Sir S. RomilIy (Solici-
ter-General) and l\:lr. Bell, in arguing against the in-
junction, said, " It is not contended that this court has
not jurisdiction over contracts relating to possessions in
the colonies of this country, but it does not hold in this
particular case, a court of competent jurisdiction having
already decided."


As to personal injuries and breaches of contract,
they are transitory in their nature, and for these,
though they take place abroad, actions may be rnain-


89


nussioners with respect to the con-
sequences of a wrong venue in local
actions have been carried into effect
(s, 22) by giving to the Court the
power of directing local actions to
be tricd in any county, The section
givcs that power only in the case of
"anyaction depending in any of the
said superior courts ;" and as the
Courts have since the period when
Doulson v. 1IJolI"ew, was decided
acted ou the authority of that case,
and refused to entertain actions for
damages for trespasses to real pro-
perty abroad, and as "actions de-


pending" must mean actions pro-
perly depending, it would soem that
the difficulty as to these particular
actions has not bcen removed by
the statute, On the discretion of
the judges alone the colonists must
therefore rely for :1 remedy to the
evil,


(3) Ilobe,.dean v. Rous, 1 Atk,
544; S. P. F",!et V. Vassal, 3 Atk.
589 ; Peml v, u-« Bultimore, 1 Vcs.
411; lV},ite v, Hall, 12 Ves. 321;
Jacksou v, Petrie, 10 Ves. 165.


(4) White v , Hall, 12 Ves. 321.




90 A SUMMARY OF
tained in the courts of this country. (5) And it is said
that the Court 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 contraets made
abroad are expounded and have effect in England
aceording to the law of'the country wherethey are made,
though the English law might affect them differently.
Therefore, if a certain stamp be required by the law of
the colony where the contract was made, though not
required in England, the contraet, unless it has been
stamped according to the law of thc colony, cannot be
enforced in England. (7) AmI if by the colonial law
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 intcrest on a debt is ealculated accord-
ing to the Iaw of the eolony where it was contracted,
though sued for in England, where the rate is different ;
and in a CO)1rt of equity the debtor is allowed the rate
o/ exchange of the country where the debt was con-
tracted. (9) In an action on a bill of exchange drawn
in Bermuda on a person in England, and also payable


(5) lYIostynv.F"brigas, Cowp, 161,
16~; 2 Sil' W.l3laek. 929, S. C.; 11
Harg. State l'¡-iab, S. C.; Cooke v,
MUIwell, 2 Stark. 183; Wey v.
Yally, 6 Mod. 195; .Lord Bdll<'
mOllt's C/lse, 2 Salk. 625. Scc 42
Gcq. 3, c. 8.J, s. 6.


(6) Re» v, COIVlr, '2 Burr, 856 ;
Stokes' Law of Colonics, 5, 6.


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


2 Esp. Rep. 528; Clegg v, Levy, 3
Campo 167 ; ehi!t.}' onBills, 74, 75,
5th edito


(8) ¡n"es v , Dunlop, 8 T. R. [;95;
O'Catlaó~n v , l\Iul'chion~s¡j o! 1'11.0-
mond, :3 Taunt. 82.


(9) Lord lJt"'gunnon v, Huckett ,
citcd Lune v, Nichol>, 1 Eq, Abr.
289, PI. 1; 2 Bridgmau's Ind. 88.




COLONIAL LAw.


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


With respect to the Siatute of Usury, as applicahle
to the colonies, a douht was entertained whether the
statute of 12 Ann, st, Q, C. 16, which reduced the rato
of interest to 5 per cent., did not extend to money lent
on lands in Ireland 01' the Plantations, when the
martgage was executed in Great Britain ; hut the stat.
14 Geo. 3, e. 79, declares all sueh securities made pre-
viously to that act, to he valid, notwithstanding the 1~
Ann, where the interest is not more than the established
rate of the particular place, and that a11 future securities
of the like kind shall also he valid where the interest is
not more than 6 por cent. (Q) and the money lent
is not known at the time to exceed the value of the
property pledged. However, it has been held that the
stat, 14 Geo. 3, is an enabling aet, extending only to
particular cases, and it does not extend 'ca such bonds
as are mere personal contracts, hut only protects mort-
gages and other securities respecting lands in Ireland
01' thc Plantations. (3) Where a debt was contracted
in England, but the bond was taken for it in Ireland,
to be paid at a ccrtain time and at 7 per cent., it was
held by the Court of Chancery in England that it
should carry Irish interest; (4) hut a different


91


(1) Donga" v, Baaks, Chitty on
Bilis, MO, 5th edito


(2) Steei v, Sowel'by, 6 'L R.
171, 172, and note.


(8) Dewal' v, Span, 8'1'. R. 42.~.
(4) Conat!' V. Lord Bellamoni,


eAtk. 332; l'l'ee. Chane. 12S; 1 P.
Wms. S95, 896; 2 Atk, 465. Tbe
principie l. id down by these cases,
that the place wherc the instrument


is made should give the rule as to the
amount of interest secured by that
instrumeut, has Leen recognised by
the Court of Kiug's Bcnch in Keal'lley
v, King, 2 B. & A. 801, "lid Sprowle
v. Legge, 1 B. & C. 16, where bilis
drawu in Irelaud for so lllallY pounds
"sterling," being made the subjcct
of actions in England. the partics
were held bound to state in the de-




A SUMMARY OF


doctrine was held when the bond, conu'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' other
debt contracted in Jamaica be made payable in Lon-
don, it has been held that the expense of commission
tú the agent remitting the money falls on the debtor. (6)


As to the effect of a colonial 01' foreign judgment,
an action may be maintained in England on a judg-
ment obtained in a COUl't of law 01' equity in the colo-
nies, 01' elsewhere, out of the realm; hut such judgment
is considered here only as a simple contract debt, for
which assumpsitis 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 tbat
H pouuds I rish " were mcant. Bay-
ley on Bilis, 5th cd, 389, 390.


(.'J) Phipps v. Lord. 11 nglesea, 1
P. Wms. 696; Stapleun: v. Con-
Way, 3 Atk, 727; 1 Ves. '1'27, and
Deuar v, Span, 3 T. R. 425.


(6) Cash v , Kennion, 11 Vcs.
314,


(7) The rcason is thus stated by
LOl'd Chief Justice Ej'l'e (2 H. BI.
410) in ajudgmenl gil'en in the E"
chcquer Charnber, in the case uf
Phillps v, Hunter," It is in one ",ay
only that the sentence 01' judgment
of a eourt is examinable in our
courts, an-I that is, where thc party
who c1aims the bencfit of it applies
to our courts to enforce it. When
it is thus voluutarily submitted to


our jurisdiction, we trcat it 110t as
obligalur:, to the exteut lo whieh it
would be obligatory, pcrhaps, iu the
coulltrs in which it was prcnounccd,
nor as uLligator'y tu tlie cxtcnt to
whieh by 0111' law senlenees are ob-
ligatory, nor as conclusivc, hut as
matter in pais,as considcration ]Jl'imú
Jade sufficicnt to raisc a prornise ;
wc examine it as we rlo all other
considerations or proruises, and fUI'
that purpose we recclve cvideuce of
what the law of the foreign stale is,
aud whe lile r the jndgment is war-
ranted by that law, III all otlier
cases we give entire faith and crcdit
to thc sentences of forejgll courts,
ano consider thcni as couclusivc
upon us." Auother n-asen for tlie
distinction probably is, that the




COLONIAL LAW.


decision ought to have been otherwise, and he should
not take issue upon it by a plea nul tiel record, but by a
plea to the country. (8) If it do not appear by the tran-
script of the proceedings in the colony, that the party
against whom the judgment wasobtained was at one time
01' other resident there, 01' subject to the jurisdiction of
the colonial court, but only that he was summoned by
nailing up a copy of the declaration at the court-house
door, no action can be maintained here on the judgment,
for a party cannot be bound by the judgment of a court
if he was never within its jurisdiction. (9) But an
action may be maintained here on a foreign judgment
obtained by default, which sta tes that defendant ap-
peared by attorney, without proving that the attorney
mentioned had authority to appeal', 01' that the defend-
ant was living within the jurisdiction of the foreign
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
indemnify the plaintifffrom all debts due from a partner-
ship in which he had been engaged with the defendant,
and from all suits instituted in consequencc of thc


93


jlleges are supposed to know the
luw on which the jndgments of any
f.rlbunals in this counlry are found-
ed, and can al once decide"hether
,nchjndgmonts are warranted by the
law ; whereas foreign tribunuls and
courts in OUT colonies bcing called IHl
to adminisler laws more 01' lcss dif-
fcrcnt froru our own, the judges here
require inforrnntion before t1lPY can
arrive a t any conclusion 011 the
subjcct.


(8) lValke" v. Wittel', Doug. 1,


and cases there cited in notes; Mes-
sinv. LOl'dllíassrJreene. 4 T. R.493;
SalHa v, RoIJ;"s. 1 Camp, 253;
O'Callagan v. l\ía¡'chioness of TIlO-
mond, 3 Taunl. 82, 84.


(9) Buchanan v, RllCkel'. 9 East.
192, 1 Campo 63; Cavanv, Stewart,
1 Stark, 525; Fisher V. Lane, 3
\Vils. 297, 30·1; Cooke V. lIfaXIVeU
2 Stark , 183. '


(t) l\folo"y v, Gibbons, 2 Carnp,
502.




94 A SUMMARY OF
pattnership, proof of the proceedings in a Court of
Chancery in Grenada, against the late partners, for the
recrrvery of a partnership debt, in which a decree
passed for want of an answer, and a sequestration
issued againet the plaíntiff''s estate, was held conclusive
against the defendant, who was not allowed to show
that the proceedings were erroneous. (Z) In an action
on the judgment of a colonial court, it is in general ne-
eessary to preve the handwriting of the judge by whom
it is subscribed, and the authenticity of the sea! affixed,
If there is a seal helonging tú the court, it should be
used fot the purpose of authenticating its judgments,
and should he established in evidence by a person
acqüainted with the impression, But if evidence be
given that the court has no seal, the judgment may he
established by proving the signatura of the judge. (B)
A eopy of a judgment in the Supreme Court of Jamaica,
made by the chief clerk, cannot be received in evidence
in a eourt of justice in this country, although it appear
that such copies are usually admitted as good proof in
the eourts of .Jamaica. (4) An exemplification authen-
ticated by the seal of the court, is, however, admissi-
ble. (5)


Whether a judgment given in favour of a defendant
in a colonial court is pleadable in bar al' available by
way of defence to a second action brought on the same
demand in an English court, is a point that appears to
be not clearly settled; but the doctrine aboye stated


(2) Tarleton s. Tal'lelon, 4 M. &
S. so.


(3) Henry 1'. Adey. 3 Eas!. !!?21 ;
Rurhanrm v. Rucher, 1 Campo 63;
F/illdt v, Athins, 3 Campo 215;


Alues v. BunbU?'!), 4· Carnp. 28; Cu-
van v, Stewart, 1 Stark, !,!!?5.


O) Appleton v, Lord Rmybrook,
anrl Black v. Lord Braqbrooíc, !!?
Stark, ti el seq. and ti IVr. & S. 3·1.


(.5) Ibid.




COLONIAL LAW.


with respect to the inconclusiveness of a colonial judg-
ment, where an action is brought 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 heing brought here fora debt con-
tracted in India, it was held sustainable, though more
than six years had elapsed since the making of the
contracto The creditor and debtor were, for some time
after the cause of action accrued, resident in Calcutta ;
the creditor then returned to England,-the debtor re-
mained in India more than six years, and then returned
to England, and the action w~s brought within six
years after his return. The action was held sustainable
notwithstanding the lapse of time, and notwithstanding
the circumstance that the Supreme Court at Calcutta,
within the jurisdiction of which the transaction arose,


95


(6) PIIl1nmer V. IVoodbllrn, 4
Barn. & Cress, 625, and the cases
clted in the ver:; learned argumcnt
there, The court, in that instance,
decided that a plea in bar setting
up a foreign jndgment for the de-
fendant was bad, inasmuch as it did
not show that that judgment was a
final judgment in the place where
it was given. The Inference frorn
this would seem to be that, had
the plea shown that judgment to be
a final judgment, so as to bar the
plaintiff from bringing a íresh actlon
in the foreign court in rcspcct of
the sume demaud, it would llave
be en sullieient hcre, The samc in.
ferenee might be drawn from the
case of Lene! v, Hall, Croo Jae. 284,
whieh is eopicd at thc cnd of the


report of Plummer v, Woodbun" Sce
also Potter v, Brnwll, 5 East, where
Lord Ellenborough broadly lays
down the doctrine that "what is a
discharge of a debt in thc couutry
where it was contracted is a dis-
charge of it every where ¡" and af-
terwards says, "if the bankruptcy
and certifica te would have been a
discharge of the deht in America, it
must by the eomity of (he law oí
nations be the same here." Of
course if one legal proceedlng would
have this effect, another of eqoal
authority in thc foreign slate ought
to be eutitled to (he saine rcspect,
Thc differcnce in the result in Plttm-
mel' v, IVoodlmrn must thercfore llave
ariscn úoro th~ \Unde \1\ p\euding
the judgment.




96 A SUMMARY OF
was held under a charter that authorized the court to
exercise the same jurisdiction in civil cases as is exer-
cised by the Court of King's Bench in England at
corumon 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 transferred to
India by the terms of the charter, as auxiliary to the
common law, yet, according to the statute as it was in
force here, it was held that a creditor was not barred
by the Iapse of six years after the debt arose, as the
debtor had been resident out of the realm, (8)


'Vith respect to the effect of a colonial 01' foreign
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 chárter granled under
13 Gco. 3, c. 63, s, 13. Sce that
charter set forth in substauce in Wil-
linms v, Iones, 13 Easl, 440, 441-


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


In the courso of the argumenl in
thls case. LOI'd Ellenborough asked
how the court were to take judicial
notice of any parts of the eharler
nol set oul in the pleadings; the
plaiutiff?s counsel al first said that
as the act 13 Geo. 3, c. ú3, autho-
rizcd the gruntlng of the charle!',
the provisions of the latter musl be
laken lo be incorporuted luto the
act, The question was not decided,
as the d efendant's counsel said that
all thc parts of the chárter material
for the argumenl were set out in
the pleadings, There can be Jínle
doubt that if an act of parliarnent
authorizes the grant of a chárter


and directs what shall be its provi,
sions, either in a general or particu-
lar rnanner, the courts are bound lo
presume that the Kiug has properly
exereised tlre po,,"crs vested in him
uy the act, and they might thereforc
refuse to try incidentallywhether the
charter was a good chárter lindel'
the act, As the aet itself was a
public aet, it must be taken noticc
of by the courts hcre, but whether
the chárter granled in pursllunee of
it must be equally entitled lo judlcial
noticc, may be a more niee and
dlfficult question. Charters to cor-
porations may be granted lo) the
crown under the authorlty of acts 01'
parliament, Rrx v, suu», 6 T. R.
268, and Rex v. Hathome, 5 B, &
C" 410, and such chartcrs are speci-
ally plead ed , It would seem, there-
foro, by the rule of analogy that the
courteould nol have taken judicial no-
tice of the charter 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, became a bankrupt and obtained his
certificate by the law 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 England
against the bankrupt by a subject of this country, for a
debt arising here. (1)


With respect to the Eoidence 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 aH
colonies, islands, plantations, and places under the do-
minion of His Majesty in foreign parts, and to the
judges of the several courts therein, and to all actions
depending in His Majesty's courts of law at Westmin-
ster, in what place 01' county soever the cause of action
may have arisen, and whether the same may have arisen
within the jurisdiction of the court, to the judges
whereof the writ 01' commission may be directed, 01'
elsewhere," Upon the 13 Geo. 3, c. 63, the Court of
Common PIeas heId (3) that a mandamus might be
granted to the court in India to examine witnesses on
behalf of either a plaintiff 01' defendant in a civil action,
By s. 4·. the courts at Westminster, Laneaster, and


9


(9) PatIo' v. 13l'awll,5 Ea.t, 124.
'(1) Smithv. Bachannan, 1 East,6.


SeealsoSidawayv. Hay,S B. & C.l2.


(2) 1 W. 4, c. '2'2.
(3) Grillard v. llague, 1 Ilrod. &


Bing.519.


H




98 A SUMMARY OF
Durham, may order the examination of witnesses within
their jurisdiction by an officer of the court, 01' may
order a eommission for that purpose out of their juris-
diction, and may give such directions touching the
time, place, and manner of such examinations as to
them shall seern fit. But by section 10 of the same
act, no examination to be taken by virtue of that act
shall be read in evidence at any trial without the con-
sent of the party against whom the same may be offered,
unless it shall appear to the satisfaction of the judge
that the examinant 01' deponent is beyond the jurisdic-
tion of the court, 01' dead, 01' unable, frorn permanent
sickness, 01' other permanent infirmity, to attend the
trial, This sta tute was passed expressly for the pur-
pose of extending to al) the colonies, &c. under the
dominion of His Majesty, the provisions of the 13 Geo,
3, c. 63, s, 40, which related to India alone. (See also
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 perjury, for it has declared (sec. 7) that if any per-
son examined under the authority of that act shall wil-
fulIy and corruptly give any false evidence, every per-
son so offending shall be deemed guilty of perjury, and
may be indicted in the county where such offence was
committed, "01' in the county of Middlesex, if the
evidence be given out of England." (4)


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


(4) As to the methods prescnbed
by di/ferent statutes for obtaining
evideuce from India, seo 13 Geo, 3.
e. 63 ; and as to the practice in such
cases and in others, (nuw otherwise


provided for by thc aet l \'Vm. 4,
e. 2'2,) see Tidd's Pract, 9th edil.
810, et seq., and the cases there
cncd.




COLONIAL LA W.


had committed offences abroad, it IS 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 prosecutor 01' defendant, to award writs of man-
damus, in its discretion, to the chief justice 01' judge
of any eourt of judicature in the county 01' island, 01'
near to the place where the offenee has been committed,
01' to any governor, lieutenant-governor, 01' other per-
son having ehief authority in sueh country, 01' to any
other person residing there, as the court may think
expedient, for the purpose of obtaining and reeeiving
proofs concerning the matters charged in the indict-
ment 01' information, and after pointing out the mode
in which a court is to be held for receiving the proofs
and the examinations taken, and transmitted to England
and delivered into court, the statute proceeds to enaet,
that sueh depositions being duly taken and returned,
shall be allowed and read, and shall be as good evidence
as if the witnesses had been sworn and examined in
court. The Court of King's Beneh may also, on sueh
a proseeution, order an examination of witnesses de
bene on interrogatories, where the vivá voce testimony
of such witnesses eannot be eonveniently had, But as
the M~ Geo. 3 directs that the writs of mandamus thall
be issued in the discretion of the eourt, it has been
holden that a defendant indieted here for a mísde-
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
before the court such special 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 jZ6 Geo. 3, c. 57, seco 38,
enacts that whenever any bond, 01' other deed, 01' writ-
ing executed in tbe East Indies, al' attested by any
person al' persons resident there, is offercd in evidence
in any court of justice in Great Britain, it shall be
sufficient to prove by one 01' more credible witness al'
witnesses, that tbe name 01' names subscribed to such
bond, deed, 01' writing, is the proper handwriting of
the obligar 01' other party, and that the name of tbe
attesting witness is bis handwriting, and tbat the wit-
ness is resident in the East Indies, And in like man-
ner, a11 courts of justice in the East Indies are bound
to admit tbe same proof of tbe execution of bonds
and other deeds and writings executcd and attestcd in
Great Britain. And such proof shall be deerned as
good evidence of the due execution of the bonds and
other deeds and writings as if the wítnesses were dead.
Since this statute, it has 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 instrument, is absent in a foreign country, and
consequently is not amenable to the process of our
courts of justice, it is sufficient to prove the witness's
handwriting, (6) although we have seen it is required


(5) Re", v. I oncs, 8 East, 31, and
Picton's case citcd ibid. 3~.


(6) Vide Cooper v, MaI'SdOl, 1


Esp. 2; O",,{{h v. Cecil, Selwyn,
,'j i 6 ; Adam v. Km', 1 Dos, & PIlI.
360; Cllrl'ey v. Child, :3 Camp.




COLONIAL LA W.


by the statute that the handwriting of the party to
the instrumcnt should be also proved ; and this proof
has been also required by high legal authorities, on the
ground that if the attesting witness were present he
would prove not merely that the instrument was exe-
cuted, but 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 establish the identity of that persono (7)
However, in a late case, where an action was brought
on a promissory note, and the subscribing witness was
dead, it was held sufficient to prove his handwriting,
and that the defendant was present when the note was
prepared, without proving the handwriting of the de-
fendant. (8)


As to Proofof Colonial01' Foreign Law, - Jt sornetimes
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 valid according to the
law of the place. In such cases the foreign 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. Ir 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)


101


'283; Cunliffe v , Sifton, I! East, 183 j
Prince v, Blackburn, 2 East, 2.50 ;
Phil. Ev, 4ed. 51:3 j 1 Stark, Evid,
342; Crosby v ; Percy, 1 Taunt. 364,
462, and Burt V. Wulher,4 B. &A.
697.


(7) Wallis v, Delanceq, 7 r. R.
266, n.; Nel,o" v, Whitlal, 1 B. &
A. 21; vide Coghlan v, William-
son, Doug, 93.


(8) Nelson v. Wlútlal, 1 B. & A.
19.


(9) Clegg v. Levy, 3 Campo 166 ;
Mostyn V. Fabrigas, Cowp, 174 j
Collett v, Lord Keith, '2 East, 261 ;
DOllglas v, Brown, '2 Daw. & Cla,'k,
171, and see laglis v, Ushenoood, 1
East, 515, and Bohtlingh V. Ingtis,
3 Easl, 381.




102 A SUMMARY OF
As to Prerogative W1·its.-Though the ordinary writs


of process from the English courts do not of course run
in the colonies, yet prerogative iorits, such as manda-
mus, prohibition, habeas corpus, and certiorari, may
issue,on a proper case, to every dominion of the crown;
but not to a foreign dominion, and Scotland being
governed by its own law, is in this sense foreign. And
even as to a colony, it being in the discretion of the
courts whether they will issue these writs 01' not, they
would not chuse to exercise that power where the
cause is one in which they cannot properly judge 01'
give the necessary relief. Therefore, on imprison-
ments in the plantations, it has been more usual to
complain to the King in Council, and petition for an
order to bail 01' discharge, than to apply to the King's
Bench for an habeas corpus. (1) However, it is clear
that the King's Bench has that jurisdiction, and it is
expressly noticed and reserved by the Act of Assem-
bly 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 the Colonies.-In the case of
bankruptcyand a commission issuing against a trader in
this country, aU his personal property in the plantations
vests in his assignees from the time of the bankruptcy;
and therefore if a creditor, having notice of a bank-
ruptcy, and all the parties being resident in England,
and the debt contracted there, avails himself of the
process of thc law of England, (as by making affidavit of


(1) Rex v, Cuwle, I! BU'T. 856; (~) Stokes's Law uf Colonies, 6,
Cm. Jac. 48'1. and thc authorities tberc citcd.




COLO!'IAL LAW.


his debt)toproeeed byattaehment againstthe bankrupt's
effeets in one of the eolonies, 01' even in any independ-
ent sta te, and obtain judgment and executiou, he cannot
retain as against the assignee the money so levied. (3)
It should seem, however, that a creditor in the foreign
eountry, obtaining payment ofhis debt, and afterwards
eoming to this country, would not be liable to refund
to the assignees here, if the law of that country pre-
ferred him to the assignees and was set in motion of
itself and without any aid from the Iaw of this country
01' the tribunals here. (4) Ir, on the contrary, the ere-
ditor resided here, and the first step in the case was
the making an affidavit of debt here, to be afterwards
transmitted to the foreign country, (under 5 Geo, 2, c. 7,)
by whieh the procesa was in faet commenced in this
eountry, the creditor would be liable to refund to the
assignees, for no creditor, resident in England and sub-
jeet to its laws, shall avail himself of a proeeeding of
tbat law to enable him to gct posscssion of a debt from
those who, by the law of England, are entitIed to it and
have the distribution of it for the benefit of all the ere-
ditors. (0)


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


103


(3) llunser v, Potls, 4 T. R.
182; Sil/s v, Worswick, 1 Hen. Bl.
665; Cullcn's Bankrupt Law, 243,
249; Waring v, Kn;ght, Cooke's
Bankrnpl Law , 307, el seq. ; Cleoe
v, 1Ilil1s, ib. 303; Mawdesley v.Parke,
cited 2 Hen, m. 680. Bnl sce
Philips v. Huuter, 2 H. El. 402,
whcre C. J. Eyre dissents from this


doctrine, and Brickwaad v, lIIiller,
s Mer. 279, where Sir W. Granl
limits it to cases in whieh the dorni-
cile oí the partnership 'vas com-
pletely English, and all its concerns
wcre subjcct lo English law.


(!) su, v, lVo,.,wick, 1 n-». BI.
693.


(5) Ibid.690.




104 A SUMMARY OF
enacted that the assignees shall be chosen at the second
meeting of the creditors, and it includes among the
persons entitled to vote at such choice "any person
authorized by Ietter 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
where the party shall be residing, duly attested by a
notary public, British minister, 01' consul." By the
64th section of the same statute "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, all lauds, tenements, and here-
ditaments, except copy 01' customary-hold, in England,
Scotland, Ireland, or in any of the dominions, planta-
tions, or colonies belonging to Bis Majesty, to which
any bankrupt is cntitled, and all 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, arid all such lands,
tenements, and hereditaments as he shall purchase, al'
shall descend, be devised, revert to, 01' come to such
bankrupt, befare he shall have obtained his certificate,
and all deeds, papers, and writings respecting the
same, and every such deed shall be valid against the
bankrupt, and against all persons elaiming under him,
províded that where according to the laws of any such
plantation 01' colony such deed would require registra-
tion, inrolment, 01' recording, the same shall be so
registered, inrolled, 01' recorded, according to the laws
of such plantation 01' colony; and no such deed shall
invalidate the title of any purchaser for valuable con-
sideration, prior to such registration, inrolment, 0\'




COLONIAL LAW.


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


As to the effect of an English Probate 01' Grant of
rldministration on Property in the Colonies.-If a Ihi-
tish subject, domieiled in England, die here, a probate
granted by the Prerogative Court binds the property
in the plantations and the probate granted there, (G)
And Lord Hardwieke laid down the rule, that dcbts
due in Scotland to an English subjeet resident here,
who died intestate, were distributable when recovered,
according to the laws of England, and that the question
would be the same rcspccting the goods of an intestate
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 resident 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 law has the
semblance of science, that personal property has no
locality, but is subject to the law which governs the
person of the owner." In conformity with this prin-
cipie the Court of Exchequer held (1) that Ameriean,
Austrian, French, and Russian stock, the property of a
testator domicíled 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 who
was born in Scotland but resided and died in India,
though the money, the produce of his Indian property,


105


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


(7) Thomasv, Watkins, 2 Ves. 35.
(8) Pipon v , Pipon, Ambler, 25,


2d edito 1828, and the cases cited
by thc learncd editor, n, 2, p. 26.


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


(1) In re Ewin, 1 el'. & Jer, 151.
(2) Jackson v, Eorbes, '2 Cr, &


Jer, 382.




106 A SUMMARY üF
was sent to bankers in EngIand and invested in the
funds here in their names, and the stock was afterwards
transferred into the name of the Accountant General
of the Court of Chancery and made the subject of a
suit and a decree in that court.


A P P E AL S.


-


Tus right of detennining in the Iast resort all con-
trovcrsies between the citizens of a state has aIways
bcen considered at once the best evidcncc and the
firmest safeguard of the possession of sovereign
powcr. (3) When in the ancient repubIics of Greece
and Rome that power resided in the eitizens at Iarge,
the rnajesty 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 themseIves 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 people as a court


(3) .. The nature of this supreme
power consists in pronouncing judg-
menl in the last resort aud without
appeal, in opposition to the tri-
buuals whirh the sovereign himself
l-as established, and which derive
al! their authorlty from him, See
Grotius, bk, 2, c. 4, s, 13, and the
Jus Publicum Univcrsale, by MI'.
Bohmcr, bk, 2, c. 7, s, 15, et seq.
Barbeyrac's notes to Putl'endor/f's
Higllts of Nalure aud Natious, bk,
7, e, 4, n, 4,.


(·1) The arlmiuistration uf justice


is the most ancient office of the
Prince, It was exercised by the
Roman Kings, and abused by Tar-
quin, who alonc, without laws 01'


'couneil, pronounced his arbitrary
judgureuts, The First Consuls suc-
cceded to this regal prerogati ve, but
the sacred rigllt of appenl soon abo-
lished the jurisdlction of the magis-
trate, und al! public causes were de-
eided by the superior tribunal of
lile people, Gihbon's Decline and
Fall, c. 44.




COLONIAL LAW.


of final appeal. When the men of tbe north emi-
grated in large hordes, under the direction of a favour-
ite leader, though his voice was supl'eme in the moment
of battle, the assembled al'my was at all other times
the judges of right, and he was admitted but to a
questionable degrce of superiority, (5) The settle-
ment of these wanderers in the countries they had
conquered, rendered the continuance of this wild and
irregular administration of political affairs anel internal
government very inconvenient, if not impossible, and
the chiefs of their various tribes were then allowed to
assume those powers wbich had been formerly guardecl
with so much jealousy by the people themselvcs. A
sort of military subordination in peace became neces-
sary, in order to preserve acquisitions made in war :
and as the cultivators of the soil could not be assem-
bled at a moment's warning, like the arrned foIlowers
of a warlike adventurer, the boisterous frcedom of the
rapacious invaeler was by common consent alloweel to
sink, witb almost rniraculous speed, into the sIavish
submission of the feuelal settler, The power thus ob-
tained, once secureel in the hands of an individual, was
the last he was willing to part from, either to his fellow


107


(.5) Stuart's View of Socicty in
Enrope, ss, 1,3 and the notes; Taeit.
de Mor. Gel'. 7, xi, Charlevoix
(Journ, Ilist, Lett. 18,) says sorne-
tbing oí the samc kind with respeet
to the American Indians, "Toot doit
etre examiné et arreté dans le eonseil
des anciens, qui juge en derniere
instance," MI'. Adair, (Hlst, Ame-
rican Indíans, p. 428,) in the same
manner observes tbat "lhe power of
tbeir chiefs is an empty sound, They
can only persuade 01' dissuade thc
people, either by II,e force of good


nature and clear reasoning, 01' by
eolouring things so as lo suit their
prevailing passions," The role, from
the above examples, would seem to
have bcen universal that "the peo-
pIe preseribed the regulations they
were to obey, They marched to the
National As,embly to judge, lo re.
form, and to punish, and the magis-
trate and Ihe sovereign, insteud of
controJling theír power, were to re-
spect and submit to it." Stuart's
View of Society,




108 A SUMMARY OF
citizens 01' to his sovereign. The distinguishing mark
of the residence of a powerful noble was not unfre-
quently the erection upon his domain of an instrument
of capital punishment; and the right of "la haute
justice," 01' sovereign unappealable decision, even in
matters of life and death, was a prerogative he was at
all times ready 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
aHegiance 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. They flattered their
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, they made no grants of lord-
ships which they did not accompany with the condition
that the prince in his Council should be the final ar-


(6) Roberlson's State of Europe,
and Proofs and Illustrations, n, 23.
Dr. Robertson speaks as if he con-
sidered these privileges to L& un-
lawful encroachments on the sove-
reign power, This mode of view-
ing the question assumes that the
royal prcrogative was well defined
aud lawfully cstablished , and had
taken its rise immediately upon the
extinction of the popular authority.
The assuruption seems little war-
ranted by the able work of this
learned writer, which indeed is
marked in every page with proof that
when the fabrie uf popular power


crumbled lo pleces, each leader look
fUI' his share as large a quantily of
the rnaterials as he could possibly
secure, The King, as the ancient
Spanish Cortes used to tell thcir
sovereign, was (though in a differ-
ent seuse from that in which lhey
employed the words) better off
than an)' one of the rest, hut yel
much inferior lo them all. It was
by raising up the cornrnons lo the
diguity of a third estate that the
Kings usnally succeeded in esta-
blishing a well understoud and well
guarded prerogutive,




COLONIAL LAW.


biter of disputes arising within them. In this 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 dependent 101'd-
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 representatives, 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 the highest degree of power and
influence, The híghest ecclesiastics, in right of their
baroniul tenures, as well as by virtue of their learning
and sacred character, could sit, as advisers of the
sovereign, in this council, whose decrees, as they could
be irresistibly enforced, were implicitly obeyed. In thc
same manner and on the same principles, the House of
Lords, the Supreme Council of the State, in which too
the King formerly presided in person, assumed those
powers as a court of final appeal, which it now daily
exercises.


Mr. Pownal thinks, with much reason, that thc
Kings of England succeeded, as Dukes of Normandy,
to this right of deciding appcals from the tribunals of
Jersey and Guernsey; and although the right itself
might perhaps 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-
sure obcdience to its continued exercise, From the ex-
ample thus afforded, he is of opinion that the authority
of the King in Council to decide on appeals from the
colonics has by analogy been deduced. He says, (7)
" At the time of settling these colonies there was no


('1) Administration of the Colonies, 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 rern-
nants of the Duchy of N ormandy, and not united within
the realm, 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 Council, and upon this
general precedent was an appeal from the judicatories
of the colonies to the King in Council settled."


MI'. Justice Blackstone appears to entertain the
same opinion as to the origin of the power of the
King in Council, for in speaking on this subject he ob-
serves, (8) "The 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 grant
from the King 01' his ancestors, the determination of
that right belongs to His Majesty in Council. And
from all 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
origin of appeals to the King in Council, we shall now
consider 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 practice in such cases.
It is but recently that regular reports of the proceed-
ings before the Privy, Council, sitting as a Court of
Appeal, have be en given, and the practice is therefore
too unsettled to require 01' to be capable of a very
minute exposition.


Fram the Common Law Court an appeal in the


(f:) 1 BI. Comm. 231.




COLONIAL LAW.


nature of a writ of error Iies, in the first instance, to
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, 'must 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' frorn the
Court of Chancery, is obtained upon leave first gmnted
by the governor. This also suspends in either Court
the execution, unlcss the party appealed against will
give security to make restitution to the appellant in
case of reversa1, but on giving such security he is per-
rnitted 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 rnost
colonies at 500l. sterling; to be ascertained by affida-
vit, (9) nor is it allowed unless claimed within fourteen


111


(9) Stokes, 223 lo 225. The ex-
ccption to this rule is there stated to
be where the matter .. relates to the
taking or demanding any duty pay-
able lo the Kiug, or any annual rent
or other sueh like matter or tbing,
where the righl in future may be
bound," The instruelions tu the
governor, or the cbarlers of justice,
gene rally impose these lirnits upon
the right af appealing, but upun a
question on this subjcct arlsing in
1717, (he Attorney-General Nor.
they reported his opinion as fol-
lows :_H And as to the instruc-
tions given to thc govcrnor, as rueu-


tioned in the petition, whereby he
is restrained from allowing an ap-
pea] in any case unrler the value 01'
5001. sterling, that does only re-
strain the Goveruor from granting
of appcals under that valué, noto
withstanding which it is in His Ma-
jesty's power, upon a petltion, to
allow an appeal in cases of any
value, where he shall think fit, and
such appeals have been 01'ten al-
lowed by His Majesty." 2 Chal.
Op.177.


This opinion was quoled by Dr.
Lushington to the Lords of the
Cuuncil, in the case of Ex parle




112 A SUMMARY OF


days after the determination 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 damages


occasioned by the appeal, and also for due prosecution


of(2) the appcal within ayear and a day from 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 01' transcript, duly authenticated, of the


several proceedings in the suit, including, of course,


the judgmentor judgments which form the subject ofthe
appeal. This transcript should be certified under the


Joeol, de Nah.m Pariente, November
24. 1832, and a ssented to by their


lordships, The right of the King in


such cases is also expressly reserved
in lile moat rcccnt charters of jus-
tice, aud in commíssions and in ...


~ structions, and in the Privy Council
Bill, See Appeudlx,


The following cases show, in two


instances, some dífference of prac-


tice frorn that stated by the pre-


ceding authorities, so far at least as


respects the authority under which


the appeal is granted, and the sum
required to warrant the alIowance


of it:-" AH questions relative to
the securities to be given in ap-
peals relativa to their amount, value,


sufficiencyv or reception, should be


decidcd by the Court against whose


judgment or deeree an appeal to
Bis Majesty in Council should be
made." Proclamation by the gu-
vernor of the Mauritius, pursuant


lo iustructions from the Secretary


for the Colonies, Combemon v. Egro-
igum'd, 1 Knapp's Heports, 251.


Ordcr in council, 15th Deceruber,
1828, relating to appeals frorn Do-


merara. The application for liberty


to appeal was directed to be made


to the court of justice in that colony
instead of the governor. and the
Court was empowcred "either to


permit the sentencc to be carried


into execution, the pcrson in whose


favour it should be given entering


into good and sufficient security for
the due performance of such order


as His Majesty should make thereon,
or to direct thc execution of the
sentence to be suspended during the
appeal, the appellan! entering into
similar securiries, to the satisfaction
of the Court, for the prosecution of
the appeal, and for payment of all
such costs as rllight be awarded by
His Majesty," The former rule had
been, as in the other colonies , 5001.,
to auswer costs, Cmig v, Shand,
1 Knapp, ~53.


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


(2) In this Case tbe "due prose-
cutiou of the appeal" means the


Iodging of the pe"lition of appeal at


the oflice of the Privy Council,




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, under the public
seal of the colony, authenticating the signature of the
former offlcer, and stating that it belongs to his office
to attest such copies. This transcript is usually sent
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, for the purposes of the appeal.
Its use is to ascertain, in case of dispute, what has been
the course of proceedings in the colony, and the Court
of Appeal at home considers it as the only authentic
source of information on that subject. The appeal is
properly to His Majesty in Council ; but by the 3 & .o{.
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 plantations, &c.
This committee consists of the President for the time
being ofHis Majesty's Privy Council, the Lord Chancel-
101', such of the members of the council as shall from
time to time hold any of the following offices:-Lord
Keeper 01' First Commissioner of the Great Seal of
Great Britain, Lord Chief Justice 01' Judge of the
King's Bench, Master of the Rolls, Vice-Chancellor,
Lord ChiefJ ustice 01' Judge of the 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, 01' 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, Louuher, 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 hearing must concur
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 course, the first step is tú
lodge the petition of appeal. 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 pl'ays for its re 1'-
salol' 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 court 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 there, who make a memorandum of the time
when it is deposited. 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 lodgedwithin ayear and a
day from the date of the leave granted by the governor
to appeal, (4) Ir not lodged within that period, the


(4) GOl'don v. Lounher, '2 Lord
Raym. 1447, This was a case of
un action of libel where judgmenl
-had been given in the Colonial
Court for the defendant upon a


spccíul pica of justification, The
case states the rule lo he ayear, bnt
the practice is ;JOw to allow a H 'year
and a day ;" nnd if thc petitioner
has been prevented 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 lodged, however late, and 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 appeaI is Iodged
(but it does not appear that he is entitIed 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 for the respondent, and at the same
time obtains an office copy of the petition. The petition
of appeal in the mean time is Iaid before His Majesty
in Council, and an order is made on the petition, refer-
ring 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 proceedings in the court below, 01' such
parts of them as are favourable to the purposes of the
appellant, accompanied in general, with a view to the
convenience of thc court, and the saving of expense,
~ a joint appendix, containing such parts of the tran-
script-as may be required to be particularly noticed,


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


115


stances OHr which he had no con-
trol, from enlering his appeal within
tite time limited, the council will, in


·lbeir discretion, perrnit the appeal
to he entered UpOIl a statcment
of the causes of the delay, which
statement must be vcrlfied by atfi-
davit.-S""botv. Burnleq, before the
Privy Couneil, Nov. 24, 1832. In
that case the pctitioncr, in coming
from Trinidad, had been driven by
adverse .. inds on thc coast of Soutb


America, and there wreeked, had
afterwards taken his passage on
board a vessel to Cherbourg, that
being the first about lo proceed to
Europe from the place where he
then was, and having encountered a
very disastrous passage, he "as
taken ill on hi, arrival in France,
and did not recover in lime to come
here and lodge the appeal in the
time fixcd by the practice of (be
court.


1 2




116 A SUMMARY OF
the case itself, and in conclusion, the reasons, 01'
legal grounds of appeal are shortly set forth. No
particular forms are observed in these instruments,
but the appeBant states the facts as they were proved
in the court below, argues the law which arises upon
thern, and cites the legal authority in support of the
argument, in such mode 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 intended 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 referred, and both 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 for hearing, a summons issues
from the office, giving the parties notice of the day fixed,
and ordering them to attend. The messenger of the
office serves this summons on the agent of each party,
'I'he cause is then heard, and two counsel are allowed
to argue on either side ; the leading counsel for the ap-
peBant having the privilege of a reply, The sentence
of their lordships is either general, that the judgment
of the court below be confirmed 01' reversed, 01' it is
special, awarding such a sentence as under aB the cir-


(5)" The Lord, of the Appea!
Committee of His Majesty's rnost
Honourable P"i"y Council are
pleased to arder, that in future ap-
peals the causes shall take prece-
dence accordiug to the order in


which they are ready for hearing,
and not, as at presenr, according tú
the arder in which the first printed
case is lodgcd upon each appeal."-
Order issued Salurday ~:ld Febru-
ary, 1B28.




COLONIAL LAW.


cumstances of the case appears most conformable 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 occur. When the
court awards costs to either party, his account of the
costs is sent to a Master in Chancery, by whom it is
taxed, and theamount allowed being certified to the
clerks oí 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 costs, The sentence
01' judgment having been 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
cIerks of thc office, at the direction of their lordships,
and is laid before thc next Board of Council held by
His Majesty. Upon its being read at the board, an
order of council is drawn up reeiting and approving
the report, and givingjudgment accordingly, which the
governor is directed to carry in all rcspects into due
execution. The order is then delivered from the couneil
office to the agent of the successful party, who sends
it out to the colony.


Such is the eourse of practice where both the ap-
pellant and the respondent use due diligenee in the
progress of the appeal. But in case of remissness in
either party, it may be useful to show by what methods
his adversary may enforce despatch.


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


117




118 A SUMMAltY OF
in Council, to dismiss the appea1. This being ad-
dressed to His Majesty, must of course be laid before
the Board of Privy Council, who will make an order
referring it to the judicial committee for their opinión.
It is then brought before that committee at their next
meeting, and usualIy moved and (if the case should
afford any ground of opposition) opposed by counsel.
Their lordships then proceed to decide upon it and
rcport their opinion accordingly to His Majesty in
Council, in the same manner as on an appeal. (6)


Again, if after a petition of appeal be lodged, 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 petition,
to the appeal committee for an order rcquiring the
appellant to bring in his case within a month. This
order is served on his agcnt, and if ineffectual, the
respondent may then, on petition, accompanied by an
affidavit of the service of thc former order, obtain a
second order requiring him peremptorily to bring in
his case within a fortnight, and containing a notice that
on his failure to do so thc appeal will be hcard ex parte.
It~ on the other hand, thc party appealed against


should neglect to appear to the petition of appeal, the
appellant having brought in his own case, may obtain,
as of course, upon petition, an ~rder for 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 Coffee Houso.


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


(6) See Suubot v.Rumley, ante, t t o.




COLONIAL LAW.


pellant moves the committee (upon an affidavit of affix-
ing,) for an order that the appeal be heard ex parte,
unless the respondent shall appear within six weeks
from the date of the order, Ir 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.


Ir on the other hand the respondent should appear,
but neglect to bring in his case, ihe appellant drives
him 00, by applying to the committee for an arder,
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 on
for hearing ex parte, viz. either on the part of the ap-
pellant or the respondent, 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 reversal, require to be satisfied that the judg-
ment of the court below was wrang j and for that pur-
pose will generally hear the appellant's counsel. But
where the appellant does not appear to support the
appeal, and the cause is set down on 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 default
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 befare the day fixed for the hearing, that
the other party has not been able to see itand 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 varieties of practice are occasionaHy intro-
duced by a particular state of circumstances. Thus,
where a party conéeiving himself to be aggrieved by
the judgment below, has neverthelessbeen prevented
by accidental sauses, and without negligence either on
his own part 01' that of his agents, from applying to the
governor of the colony, within the period límited in the
particular colony, for leave to appeal to His Majesty
in Council, the govemor has no jurisdiction after that
period to aHowthe 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 generaHy subject.
So it may happen that a governor improperIy refuses
to aHow an appeal, from sorne doubt as to its competency
or regularity, 01' from any other cause, where justice re-
quired a contrary decision. In all such cases the party
aggrieved is of course entitled to apply to His Majesty
for redress.tv) A party so situated, therefore, proceeds
by lodging in the privy council office a petition for
leaoe to appeal, supported byan affidavit disclosing the
particular circumstanccs of the case on which he relies
as grounds of exception from the general rule. This
petition is laid befare His Majesty in Council, and is
referred by order to the Appeal Committee for their


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


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




COLoNIAL LAW.


OpllllOn, and is argued before thcm, 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, for 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 colony, but in this
country, The appeal then proceeds as in ordinary
cases.


It appears by the preceding explanations, that much
of the business of the appeal court consists of motions
or petitions. Sorne applications, such for example as
those for orders for hearing ex parte, or to bring in the
priuted case, are considereuas motions nicourse. They
are made in form to the committee to whom the appeal
is referred, and who by that reference have jurisdiction
over these the ordinary incidents of its progress, and
they are generally disposed of by the clerks, without
being actually brought before their lordships, But
any special motions or applications for extraordinary
relief, require 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 appcal.)
and this petition is laid before the Board of Council,
who, by order, refer it to the Judicial Committee for
their opinion. It is then moved and argued by counsel
befare 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 como.
mittee, and takes precedence of the appeals set down
for hearing,


1~1






APPENDIX.


A LIS'l' of the Colonies now forming part of the British
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 necessal'Yto 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, some of the
colonies formerIy independent of each other have been
consolidated under one government. This has not been
the case with Demerara, Essequibo, and Berbice alone,
which, forming in fact but one colony on the northern
part of the continent of South America, and being aH
undel' the legislative power of the crown, naturalIy
seemed to require but one Governor, but has also been
adopted with respect to islands, which have separate
Legislative Assemblies of their own. By a commis-
sion issued on the 19th December, 183~, to Sir E. J.
Murray Macgregor, the coloníes 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 havc a Lieutenant-
Governor, and will retain its House of Assembly, nor
will there be any General Assembly for alI of them, as
was once the case with the 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 St, Vincent,
Grenada and Tobago, and these three colonies now
for the first time placed under his command will have
lieutenant-governors only, but wiII still retain their
separate Houses of Assembly. As these commissions
have not been laid on the table of the House of Com-




ANTIGUA.


mons, they have not been accessible to the author,
who has thercforc been unable to give more than the
general outline of the changes they have introduced.
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 first part of this work. Each
government, and the islands that are submitted to its
rule, will be observed upon in succession; and in doing
this, a brief notice will be taken of their history and
constitution, and of sorne of the principal laws at pre-
sent prevailing in them.


ANTIGUA.
Antigua is one of the Caribbee Islands in the West


Indies,
It is upwards of fifty miles in circumference, and


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


In 1774 the white inhabitants of all ages and sexes
were Z590, and the enslaved negroes 37,808.


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


HISTORY AND CONSTITUTlON.


This island was discovercd in 14-93 by Columbus,
who named it from a church in Seville, Santa Maria de
la Antigua.


As early as 1632 a few English families took up
lands there, and began the cultivation of tobacco,
Among them was a son of Sir Thomas Warner, (2)
whose descendants still possess very considerable pro-
perty in the island; one of them, Ashton ''''amer, Esq.


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




ANTIGUA. 125
having been in 1787 President of the Council and Com-
mander-in-Chief in the absence of the governol'. (3)


In the reign of Chao 1, (1625,) that monarch, by
letters-patent under the Great Seal, had granted to
James Hay, Earl of Carlisle, and his heirs for ever,
Barbadoes and the whole of the Caribbee Islands.
But Chao 2 purchased aH the Earl's rights, took aH
these islands under his more immediate royal pro-
tection, and by letters-patent under the Great Seal,
bearing date 12th June, in the fifteenth year of his
reign (1663), appointed Francis Lord Willoughby
of Parham, Captain-General and Chief Governor of
Barbados and the rest of the Caribbee Islands. (4)


This island enjoycd a legislative 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 island being afterwards subdued in the reign of
Cha, 2, by a French force, all the former titles of Bri-
tish subjects to lands therein becarae forfeited to His
Majesty j (5) but the island was afterwards retaken by
the English arms, and new gl'ants 01' confirmations of
the forfeited lands were obtained from the crown; 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 S1. Christopher's, Nevis,
and Montserrat (7) (to which the Virgin Islands were
afterwards annexed (8) ) was consolidated under one


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


Aet uf Assembly of Nevis, No. 10f
printed eolleetion ofthose acts, And
see title "Barbados."


Lord Willooghby's govcrnmcut L;
describcd, in aet No.2 of the sarne
collection, as that "of tbc Caribbce
Leeward lslauds in Americu.'


(5) So declared by an act of the
islaud after its restoratiun to Great
Britain, See Acts of Antigua, 19th


May, 166B, aud the Laws of Mont-
serrat, No. 4.-3 Rep. W. I. C. 31.


(6) 1 Ed wards, 4.53. Iu tbe
same year Lord Willoughby was
appointed Govcrnor of Barbados,
Sto Lucia, St, Vinccnt, and Do-
minica. lbid. 41P.


(7) See Antigoa Act, 22d Juno,
1705.


(8) Viz; undor ;¡ commission
gl'anted by Chao 2, to Sir William
Stapleton. Edwards, ubi sopo 500;




1!26 ANTIGUA.
general government, called "The Leeward Caribhee
lsland Government," and the Governor whereof was
styled "Captain-General of the Leeward Caribhee
Islands." His chief seat of residenee was Antigua,
and the government of each island in his absenee was
usually administered by a lieutenant-governor, 01' where
no lieutenant-governor was appointed, by the President
of the Couneil. (9) The general government eonsisted,
besides the governor-general, of a general eouneil and
general assembly, that passed laws on subjeets of com-
mon and universal conccrn relating to the different
islands of which it was composed j but each island had,
besides, its separate council, and its Legislative Assem-
bly 01' House of Representatives. (1)


By commission, bearing date !26th Oetober, 1689, in
the first year of the reign ofWilliam & Mary, the erown
authorized the "Governors, Couneils, and Assemblies of
their Majesty's Leeward Caribbee Islands in Ameriea,
jointly and severally, to make laws for the publie peace,
welfare, and good government of the said islands, which
said laws were to be, as conveniently might be, agree-
able to the Iaws and statutes of this kingdom, and to be
transmitted to His Majesty for his royal approbation
01' disallowance of them." (!2)


In 169!2 passed an aet (now rcpealed) "for the
administration of justiee in this island." (.'3)


On the l Gth March, 1715, an act passed (which has


(9) 1 Ed wards, 45.3.
(t) See the printcd edition uf the


Anligua Acts, vol. t. PP: t 1023. One
of the most reruarkable of the ucts uf
lhe Leeward Islands, say the commis-
siouers, (3 Rep. p. 6,) was lile aet
No, 28. "This act established the
General Councils aud General As-
sernblies formcrly held for the Lee-
ward Islands ; securing at the sume
time lo the purticular islands their
peculiar laws and local jurisdietions.
TI was provided that five represen-
tatives shall be elected frorn cach of
the islands, to make general laws,
The ahsence of the representativos
of any ouc island is 1101 lo excrnpt
orexcusc such island from obedience
to the general acts, províded a ma-
jority of the whole nurnber wa.•
present at the passing of such luw,"


It appea,'s, however, that tbis Ge-
neral Assembly passed no law what-
ever during the long period uf
ninety-thrce years, viz, frorn 1705 to
1798, the differeut legislalive as-
semblies {()L' the various islands
being, however, during this lime in
full operation, In : that year it
passed a Meliorating Slave Act,
which was its last exercise of legis-
lative powers, See also Edwards,
uhi snp. 466.


(2) This conuulssiou is rccited
in an ordcr in councll transcrlbcd in
tite Acts of Montserrat, P: 13.


(3) It appears by a prcvious uct
of9th January, 1676, that "Conl'ls
of Common Pleas " liad lOllg oefure
thi .. lime been estahlisheú 01 An-
ligua.




ANTIGUA. 1~7
been since altered and amended) "for 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 for the administration of justice,"


The Leeward Island government no longer exists,
the 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 Islands
of Antigua, Montserrat, and Barbuda, (4) and on 19th
December, ]832, by a commission issued to Sir E. J.
Murray Macgregor, St, Christopher, Nevis, Dominica,
and the Virgin Islands were added to this government,
each of the islands enjoying of course (as befare) a
legislative council and assembly of its own,


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


The Assembly of Antigua settled on General Ram-
saya salary of 5000l. eurrency while he should remain
within his government. (5)


MI'. Edwards states that the Couneil eonsists 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 Pleas receives sorne tri-
fling fees. They hold their offiees during pleasure. (7)


There is an Attorney-General in this island.
The same persons practise as barristers and as solici-


tors and attornies. No person can practise who has
not been called to the bar in England, 01' kept a suffi-
cient number of terms to entitle him to be ealled there.
Itwas formerly otherwise. (8)


COUR,TS.


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
for Antigua, are the Court of King's Bench and Grand


(4) Seo Act of Antigua, 2.'ith
July, 1816.


(5) By act of 25 July, 1816.
(6) 1 B. Edw, 487.
(7) 2 Rep. W. I. C. 51,52.
(8) Ibid. 55. 3 Rep, ss,




1Q8 ANTIGUA.
Sessions and the Courts of King's Bench and Grand
Sessions for the trial of criminal slaves.


Court oI Chancers],
This court is constituted in the same manner as the


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


This court, it is said, "exercises jurisdiction in cases
of manumission by deed 01' will, as the Court of Chan-
cery would do as to other interests under deed 01' will
in England, where relief could not be obtained at law."


Members of council, who in this island, it has been
seen, are the judges of the Court of Chancery, are
sometimes appointed as receivers to estates. The
attorney-general said, "they are, and 1 think it objec-
tionable, they are in the habit of voting upon it, and I
think that is not right."-Sd Rep. ·W. I. C. p. 11.


Court of Appeal and Error
Is constituted by the act (No. 475,) clauses 155,177.


It is composed of the governor and council. The
judges of the court, whose judgment is appealed
from, are not allowed to give any vote, but may
attend and assign reasons in support of the judgment.
The governor and council decide by a majority. No
time is limited for bringing a writ of error, but it is no
supersedeas to an execution, unless lodged in the
secretary's offices within fourteen days after judgment.
Befare the writ of error is sued out, the plaintiff in
error gives security to answer such charges as shall be
awarded by thc court, in case the first judgment be
affirmed, appeals are not very frequcnt, and the ex-
penses in the island are said to be very inconsider-
able. (9)


Court 01 Common Pteas.
This court is composed in the same manner in


Antigua as in the other islands, and is held by appoint-
ment of tbc act, (No, 4·75,) on the first Tuesdayin the
months of April, JUay, -Iune, .Tuly anrl Al1gl1st.~3d.
Rep., p. 1Q.


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




ANTIGUA. 129


Court of Complaints.
Actions are brought in this Court for debts not ex-


ceeding ten pounds currency. It is considered m; a
branch of the Conunon Pleas, and is constituted by
the same act, No. 475.-3d Rep. ,V. I. C. p. 13.


Court of Ordinary.
This Court derives it authority from the King's com-


mission to the Governor, who is sole judge. The Ordi-
nary has the power of collating to benefices, granting
licences for marriages, probates of wills, and letters of
administratión. "Neither the acts of the island, nor
the Royal Instructions," said the attorney-general,
" makc any mention of an appeal from his decisions,
but an ovder in council might, I should think, under
particular circumstances, be obtained for allowing an
appeal to the King in Council."-3d Rep. W. l. C.
p. 13. See ante, Appeals.


Court of Admiralty.
The Court 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
Governor,


There is no special commission for the tria! of
offences committed upon the high seas.-3 Rep, 'V. I.
C.13.


Court o/ King's Bencb and Grand Sessions,
Thc judges ofthis Court are the Lieutenant-Governor


of the island, all the members of Council, the judges of
the Court of Common PIeas, the Barons of the Ex-
chequer, and all the justices of the peace uf the island,
-3 Rep, W. I. C. p. 13; 2 Rep. 51.


The commission of the chief justice does not extend
to the criminal courts ; he takes precedence thcre "next
to tite_members of council:" The Court is held twice a
year.


It has never been thc practice in this island for the
attorney-general to file informations ex qfJicio.


The president of the court sums up the "evidence,
and other judges also occasionally offer their sentiments


K




130 ANTIGUA.
to the jury upon particular cases." Points of law
arising in the course of their proceedings are deter-
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,
It is not required that they should be barristers, 01'
have gone through any previous course of legal study, as
a qualification for the office.-3 Rep. W. l. C. p. ~6.


Besides His 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 Pleas
practise afterwards as a matter of course in all the
courts. N o one is now entitled to admission who has
not been called to tbe bar in England, 01' kept a suffi-
cient number of terms to entitle himself to be called.
This qua1ification was formerly unnecessary. AH bar-
risters in this island act also as solicitors and attornies.
The business is not sufficiently lucrative tú allow of
separate practice.-3 Rep. W. l. C. 26 j ~ Rep. 55.


JUSTICES OF THE PEACE.


The duties of a justice of the peace in this island
are, according to the answers of MI'. Lee, l'epre-
sented by the commissioners as very accurate, "to
hear and investigate crimes and offences of all kinds,
whetber committed by wbites, free people of colour,
01' slaves, to commit the parties in felonies; to bind
over whitcs and free persons in recognizances to tbe
grand sessions in misdemeanors, and with respect to
slaves, to punish them for offences within the benefit
of c1ergy, as well as to commit them for tria1, in offences
which are excluded from the benefit of c1ergy. Magis-
trates also exercise jurisdiction over s1aves in murder,
!'ape, and burglary, and act in a variety of cases ac-
cording to the laws oi' the island."


Information is invariably received upon oath, except
with regard to s1aves, and then nevero (~)


(2) As to the jurisdiction oí justlccs oí the peace in rnatters relating to
slaves, see ante, p. 62,63, u.




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' personal property is required in a person who acts
as coronel'. The coronel' in this island is guided in the
performance of his duties by certain locallaws. The
amelioration act provides for and regulates the taking
inquests in cases of slaves.v- 3 Rep. W. 1. C. p. ~7.


COLLECTIO~ OF LAWS.


There are three volumes of the Laws of Antigua
printed and published in London, by authority of the
colonial legislature. They consist of the Acts of the
Leeward Islands,eommencing 8th November, 1690, and
ending ~Ist 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, intituled " 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
América, met together at N evis concerning the public
áffairs, and to consult and 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 the other, therefore the
better to preserve and defend the whole, and 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 províde "that all the laws and legal customs


(3) SRep. W. l. C.6. They have
been further continued since the
date of the Commissionen' Report,
See Howard's Laws, 4'~1.


(4) See the rernarks in the 1st
chapter on the general topic bow
far the colonies are subject to the
law of the mother country,
K~




132 ANTIGUA.
now in force in each and evel'y the Caribbee Leeward
Islands, and respecting only the circumstances of the
same, be and remain in their full force and virtue."
The next section asserts the right of the General Coun-
cil and Assembly tomakelaws for all the Caribbee islands.


Another act of the General Assembly of the Lee-
ward Islands, of which Antigua then forrned a part,
dated the QOth of Junc, 1705, and intituled " An Act
for preventing tedious and chargeable Lawsuits, and
for declaring the Rights of particular Tenants," recites
that lawsuits and controversies frequently arise between
the inhabitants of these islands, principally occasioned
by the different nature and circumstances of their
estates from those in England, whereby it sometimes
had happened, through the partiality of sorne and
ignorance of others, that contradictory judgments had
be en given in cases founded on the same rules and
principIes of law and reason; for the redressing of
which mischiefs, and establishing a constant and certain
uniformity in the proceedings of the courts of the seve-
ral islands under this government, the act proceeds to
declare " that the Common Law of England, as far as
it stands unaltered by any written laws of these islands,
01' sorne of them, confirmed by your 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 rights 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 illegal, null and void."


The Attorney-Gencral of Antigua, on his exami-
nation under the late Commission for Inquiry into
the Administration of Justice in the vVest Indies, after
noticing this act, thus exprcsses himself:-" It is the
more generally received opmion in this island that an
acts of parliament of the mother country passed pre-
viously to the establishment of the colony, are in force
here; but I have never myself given an unqualified
assent to this positiou, I have always entertained a
doubt as to the extension of the penal statutes of the
mother country, in consequence of a distinction 1 had




ANTIGUA-BARBUDA. 133
observed to have becn taken in the case of Daioes v,
Painter, 1 Freeman's Hep. 175. 1 have, therefore,
since 1 have acted as a law officer of the crown, felt
myself conscientiously bound on all occasions to allow
the prisoner the benefit of this doubt; and as far as
slaves are concerned, their condition at the time of the
establishment of the colonies was so totally different
from what it now is, the powcrs 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 thc penal statutes of the mother coun-
try towards them." (5)


BARBUDA.
-Barbuda is a smaH 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
soil fertile, The chicf trade of the colonists consists of
the sale of cattle, corn, and provisions to the neighbouring
islands, Turtle are found on the shore, and the woods
contain deer and severa] kinds of game. The air is of
such purity that invalids resort hither from the other
parts of the 'Vcst Indios for the recovery of health.
Barbuda was first settled by a party of colonists from Sto
Christopher's,led by Sir Thomas Warner. The settlers
were at first harassed by the Charaibs of Dominica, and
compeIled to desert the isle, but they soon afterwards
returned, and have never since 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<\ 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 divided into ten parishes, (6) Sto
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
Rosean. (8)


HISTORY AND CONSTITUTION.


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


It was included with Sto Vincent aud other islands in a
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, and Dominica, (1) but it does not appear that Do-
minica was ever in the actual occupation of Great Britain
under that commission,


By the treaty of Aix-Ia-Chapelle in 174B, the English
abandoned their pretensions to this island, and Dominica,
with Sto Vincent, Sto Lucia, and Tobago, was declared
neutral. (~) It surrendered to the British arms in 1'759,
and by the Treaty of Paris, signed the 10th of February
1763, the former pretensions of Eugland were re-e sta-
blished, 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 granted let-
ters-patent, creating within the countries ceded by the
Treaty of Paris, four distinct governments, one of which
was to be "the government of Grenada, comprehcnding


(6) 1 B. Edw. 4,12.
(7) Proclamation for ¡'eguiating


the election of the Assernbly, 21st of
June, 1775.


(8) 2 Re!'. W. 1. C. 27.
(9) 1 Edw. 407. See this pa.


tent more fullv noticcd at ritlc " Bar-
bados." ..


(1) 1 Edw. 411.
(2) Ibld. 408.
(3) See this article of the trcaty in


Loft's Reports, p. 660.




DOMINICA. 135
the island of that name, togcther with the Grenadines and
the islands of Dominica, Sto Vinccnt, and Tobago," and
had directed the governors 01' such governments that as
soon as the state and circumstances 01' the said colonies
should admit thereof, they should, with advice and con-
sent 01' their councils, call genel'al"assemblies, and should,
with consent 01' the councils and assemblies, make laws,
" as near as may beagreeable to the laws of England,"
and under such l'egulations and restrictions as used in
other colonies, and had also given power to the governors
to erect, with advice 01' the councils, courts of justice 1'01'
determining causes "as near as may be agreeable to the
laws 01' England."


By letters patent, bearing date the 9th of April, 1764,
General Melvill was appointed governor of Grenada, the
Grenadines, Dominica, St. Vincent, and Tobago, with
power by adviee and consent of )lÍs council, as soon as the
situation and circumstances of the islands would admit,
to summon general assemblies to make laws "not repug-
nant, but, as near as might be, agreeable to the laws and
statutes of Great Britain." (4) .


A separate Legislative Assembly was, in pursuance of
these authorities, convened in each of the islands, COIl-
stituting the general government. The assembly of Do-
minica was convened as early as the 16th of June, 1768,
that being the date of the first act in the second table
prefixed to MI'. Gloster's collection. (5) Prior to the
holding of this assembly the island was governed by thc
ordinances of Governor Melvill and his General Council,
chosen from the different ceded islands. (6)


By the act just mentioned an ordinance of Governor
Melvill and his council, for establishing Courts of Common
Pleas and Error was revived, continued, and amended.
This and severa] other acts passed for establishing and
regulating courts of justice prior to the court act of ]803,
are all repealed 01' have expired. (7)


(4) Tbis proelamation and (he let-
ters pateut are stated in substance in
the report of Campbell v. Hall, Cowp.
204, when the question of the levyillg
ofthe four and a halfper eent. duties
on these islands was diseussed ami de-
eided. See ante, n. S, p.51.


(5) In this collectíon the date as-


,igned to each aet is that of its pro-
clamution hv the Provost-Marshal,
See the Preface, lxviii,


(6) 1st table prefixcd to MI'. Glos-
ter's Collection,


(7) 2d table prefixed lo MI'. Glos-
ter's Collection,




136 DOMINICA.
In 1771 His Majcsty, at the solicitation of the legislature


of this island, erected the same into a separate and inde-
penclent government, dissolving thereby its eonnection
with that of Grenada, and appointed Sir William y oung,
Bart., govemor-in-chief over the said Island of Dominica
and its depencleneies. (8)


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


By proclamation ZI June, 1775, His Majesty declarad
that he had signified his disallowance of "an ordinance
made at Grenada by the governor in chief and general
council of the southern Caribhee Islands, intituled, ' An
Ordinance for establishing an Assembly in the Island of
Dominica, and regulating the election thereof; " (1) and
that he was desirous that a full and complete legislature
should be established within Dominica, upon a perrnunent
and lasting foundation." And thc proclamation pro-
ceeded to dircct the issue of writs for the clcction of re-
prcsentatives for the different towns and parishes j that
these representatives should eonsist of nineteen, and that
no business should be transacted unless there should be
prcsent when such business was proposed 01' brought on
nine members at least. It also fixed the qualifications of
the electors and the members, and contained various
other regulations. (Z)


In Septernber, 1778, this islanrl was invaded and con-
quered by a French force, and remainccl in the possession
of Franco till January, li83, when it was restored to the
dominion of Great Britain under the general pacification
which then took place. (:3) During the French occupa-
tion the Assembly had bccn still allowed to cxercise its func-
tions, and had passed several acts. But it seeins that the
validity of these was afterwards doubtcd in the island, (4)


(8) See Dominica Aet, 3d of Octo-
hcr, 1771~ intitulcd HAn Act íor pro.
\'it!ing a Sajar)' for his Excelkncy
Sir W. Young," As lo the prvsrnt
gO"crnment of Dominica seo ante.


(9) See thc Act of thc ~2d of July,
1778, fecitin¡! thut of ] 774, und de-
c1aring it to be in force,


(1) This ordinunce, thereforc, il
would seeru, hud been hitherto the
authority (subordina le to that of the


proclamation of October, 176:1) under
« hich the Asscmbl v of Dominica had
L(,{,II summoned , fts date is not rnen-
tioncd, but it rnust huve be en one of
Goveruor Melviü's.


(2) Ttris proclamntion will be
found prefixcd (o 1\lr. Uto;(er" Col-
lcction uf Acto,


(:» 1 Edwards. ·k35, 'H1,
(4) Prcface lo Gloster's Collec-


tion, iiiIii],




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


and called a new Assembly. (5)
On the 5th May, 1803, an act passed, intituled "An


Act for establishing and regulating the proeeedings in the
Courts of Common Pleas, King's Bench, Error, and
Grand Sessions of the Peace for the Island of Dominica,
and also for repealing an act intituled 'An Act for esta-
blishing Courts of Common Pleas, Error, King's Bench,
and Grand Sessions of thc Peace, commonly called the
Court Act.'" This act is said by M1'. Gloster to be still
in force, and to be that under which the judicature of the
island was at the period of his work regulated. (6)


Since the restoration of the island to the British crown,
in 1783, this island has continued to be governed as
before, under a Governor, Council and Assembly.


"The governo1"s salary," says J\ir. Edwa1'ds, "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 1 am not informed." (7)


It appears, however, on examining the acts, that on the
3d October, 1771, the legislature granted to governor
Sir "V. Young, and his successors, ,i')2000 currency per
annum during his actual residence in the coJrny; and on
25?d June, 1816, granted to Governor Maxwell, while re-
sident, the like sum, in addition to the salary settled by
the former acto


Thc Council consists of twelve members, and the
Assembly of nineteen, of whom ninc are a quorum. (8)


" Tbe chief justice is appointed from England. He has
a salary of nominally ,i'600 sterling per annum, but nets
about .1:550. He has also a colonial salary of what is
called cf1500 currency, but annually suhjected(9) to dimi-
nution by the lcgislature. He has also fees incidental to his
office that may amount to ,i'300 01' .[400 ayear currency.
The other justices get trifling fces and no other emolu-


(5) Prcfuce to Gloster's Collec-
tion, lit


(6) And it appears by 2d Report
VI!. 1. C. SO, to have been in force at
the period to which that report refers,
viz.1823.


(7) 1 Edwards, 441, (note.)
(8) 1 Edwarrls 441. Proclarnatiou


as to Elections cited supo


(9) 2<1 Report W. l. C. 43, 51.
The word used in the report, p. 51, is
" subjeeted," but it is reasonable to
suppose that thls is a misprint for
" subject,' the salary perhaps hcing
voted eve¡'Y year, and therefore of
course being aunually liable to re-
duction,




138 DOMINICA.
ments whatever. They are appointed by the governor.
AH the judges hold their offices during pleasure,'


" The Attorney-General is appointed from home, but
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 for
by the Court Act, which enacts "that no person shall be
admitted to practisc the law in this island (2) until he shall
have proved to the satisfaction of the Justices of the
Court of Comrnon Pleas, that he hath been admitted a
barrister in England 01' Ireland, 01' hath kept such a num-
ber of terms at one of the Inns of Court in England, as
would have entitled him to be called to the bar there, 01'
hath been regularly admitted and sworn en attorney of
one of His Majesty's Courts at Westmillster, 01' hath
practised as a barrister in any of His Majesty's colonies
in America for the space of five years at the Ieast, 01' hath
been bound by contraer in writing to serve as a clerk for
five years to a bnrrister 01' attorney in this island, and
caused an affidavit to be rnade and placed in the secre-
tary's office of the due execution of such contract, within
three months next after the date thereof, and shall during
the whole time and term of service continue actually em-
ployed by a barrister 01' attorney in the proper business,
practice, and ~mploymentof an attorney."


COLLECTION OF LA WS.


An edition ofthe laws, including all acts from the earliest
establishment of the legislature, to October, 1818, has been
published by the Chief Justice, MI'. Gloster. And by an
act of the island of 9th October, 1818, it is provided,
"that the compilation of the Laws of Dominica made by
the Chief Justice, and printed and published at Roseau
in this colony by William F. Steward, printer, in this pre-
sent year of our 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 all courts of judicature therein 01' elsewhere."


(1) 2d Report W. I. C. 43. drawing conveyallces for fee DI' re-
(2) This extends to giving advice or ward, See the 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
statutc 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 01' manifestly intended to
apply to the island, 01' to the colonies in general.(4)


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


"The common law, as far as applicable to circum-
stances and colonial situation, is generally followed.
The acts of the mother country antecedent to .the colo-
nial establishment, comprising 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 all sta tutes of England which affect us
localIy."(5)


The Attorney-General observes, "the rule upon this
subject is so vague and so little understood in the colo-
nies, that decisions 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 Court of Chancery, the Court of Common
Pleas, the Court of Complaints, the Court of Error, the
Court of Admiralty, and the Court Merchant. Although
cl. 11 of No. Q speaks of judges 01' barons of the Ex-
chequer, thcre is no Exchequer Court in Dominica.


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


(3) See the remarks in the fírst
chapter on the general topic how far
the colouies are subject to the law of
tbe mother country.


(4) See the remarks. sup, on the


general law of SI. Vincent, which
seerns lo be exactly in parí casu with
Dominica in this respecto


(5) ~ Rep, W. l. C. 61.
(6) Ibid.




140 DOMINICA.


Court O/ 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, associated with the members of council, ihree of
whom, together with the commander-in-chief, are neces-
sary to form a court. They are supposed to have the
same jurisdiction as the High Court of Chancery in Eng-
land.-Q Rep. W. I. C. 34,.


Appeals lie to his Majesty in Council, on the usual terms
of the appeHant giving bond in ,f500, with two sureties,
conditioned to prosecute the appeal within 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 effcct of the appeal is, it is conceived, to
put a complete stop to all proceedings in the colonial
Chancery.-2 Rep, W. l. C. 35.


Court 01 Common Pleas.
The constitution and practice of this Court resemble,


but with considerable improvement, those of the supreme
civil court in other islands, The establishment of the
court is larger, consisting of a chief justice and four other
judges, with the usual officers. The court is held in
Roseau on the first Monday in March, April, May, June,
and July, and may be continued and adjourned at the
discretion of the judges.-Q Rep. 'V. I. C. 37.


The pleadings and practice obtaining in this island
appear, from the answers received, to follow with
tolerable exactness those of the courts of England.~
2 Rep. 38.


Complaint Court.
A Court of Complaints, similarly constituted to those in


the other islands, is established in Dominica for the reco-
very of debts to the amount of ,fQ5, which the Chief
Justice considers "quite high enough." Sorne differ-
ence of opinionprevailed as to debts not exceeding
cC6 12s. 8d., which are recoverable under the Petty Debt
Act, and the Attorney-General conceived in no other
way. The Chief Justice considered tMs court as possess-
ing a concurrent jurisdiction.-2 Rep, 40.




DOMINICA. 141


Court of Ordinary.
In the Court of Ordinary the governor sits, alone and


unassisted, in all cases. There is not any taxing officer in
this court.


AH original wills and testaments, after probate, are
Iodged in the secretary's office, and are never suffered to
be taken away, copies duIy authenticated being always
delivered.v-e Rep. "\V. J. C. 40.


.. Court of Vice-Admiralty.
The Court of Admiralty has aH the jurisdiction of the


Instance Court in England; it is, besides, authorized by
acts of parliament to try seizures, 01' penalties incurred by
breach of the Iaws of trade, navigation and revenue.


The chief justice is sule judge. Bis authority is from
the governor, under his seal at arms to be "!tia deputy
and surrogate in the Court of Vice-Admiralty in this
island." Pirates, and other such offenders, are sent to
Antigua for trial.--2 Rep. W. I. C. ¡f,O.


Court Me1·c/wnt.
This Court is revived and reguIated by No. H, Laws of


Dominica, passed in 1817.
By el. 13 of the expired act for constituting a court


merchant, it is made a court of record; and by el. 14· the
process and proceedings are to be conformabIe to the
process and proceedings of the Court uf Common Pleas.
-2 Rep. W. I. C. 40.


COU1·t o/ Appeal and Error.
The Governor and jive of the Council form this Court,


which receives appeaIs from the Common PIeas, as does
the Common PIeas from the Complaint Court, The jus-
tices of the Common Pleas are expressly prohibited from
sitting in this court. There is no Iimitation of time for
bringing appeals from the Common Law Court tu the
Court of Error. The Chief -Iustice considers the regu-
Iated amount for which "appeals may be brought, both
from the Common Pleas to the Court of Error, and from
thence to the King in Council, as much too high."-2
Rep.41.




142 DOMINICA.


Court O/ Grand Sessions.
The judges of this court are, the lieutenant-governor,


(not being commander-in-chief), the members of council,
the speaker, and aH the justices of the peace, who are
members of the House of Assembly. The chief justice
however presides in this court, and the other judges very
seldom interfere.


The court assembles twice annually. Any three jus-
tices of the court (being members of council), may atany
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 frequently refers any legal point either arising
or brought before them, to the attorney-generaI.-2 Hep.
W.I.C.42.


N o record is made up as in England, but the proceed-
ings are entered in a book, not however including the
pleadings. The prosecutor's expenses are not paid, nor
the defendants.-2 Rep. 41.


As to the appointment of the chief justice and attor-
ney-general, see ante, 187, 138.




( 143


MONTSERRA'r.
-


Montsermt is one of the Caribbee Islands in the West
Indies.


It is about three Ieagues in Iength, and as many in
breadth, and is supposed to contain about 30,000 acres of
land, about two thirds of which are very mountainous 01'
very barren. (7) It bears the cedar, the eypress, the iron-
tree, and other woods, and has the same general charaeter
of soil that is observable in the other Caribbee Islands,


HISTORY AND CONSTITUTION •


Montserrat was discovered at the same time with Sto
Christopher's by Colurnbus, in consequenee of a supposed
resemblance between it and a mountain in Spaín that was
so denominated, from whom it received its name. The
Spaniards, however, mude no settlement on the island.
Like Nevis, it was first planted by a small colony from
St. Christopher's. This was detached in 163Z from the
adventurers under Wamer. (8)


The Couneil consists of six members, and the Assembly
of eight, two from eaeh of the four districts into which
the island is divided, (9) The island is under the govern-
ment of the Governor of Antigua, and the duties of
governor are generally performed by the president of the
council. (1)


COURTS.


The several courts in the island are a Court of Chan-
cery established by the act marked No. 185 of their
printed Iaws, amended by the aet marked No. 2ZZ; (2)
a Court of King's Bench and Common Pleas i a
Court of Error, established by the act marked 89; a
Court of Vice-Admiralty, a Court of CompIaints for the
recovery of small debts, and a Court Merchant for tran-
sient traders, and for criminal matters there was a Court
of Grand Sessions. (3) The President of the Council, in
the absence of the Governor, of course presides in the
Court of Chancery, The chief justice is not a lawyer,
but a resident gentleman of fortune, The attorney-


(7) 1 Edw.497.
(8) 1 Edwards, 496. As to Wal'-


ner, see tille 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 private gentleman. They act without
salary 01' other advantages derived from their situation,
and they all reported their opinions to the commissioners
in favour of a change in the mode of administering justice
in the island. (4)


COLLECTION OF LAWS.


The laws of the island are contained in one printed
and two manuscript volumes in folio. The manuscript
acts are very numerous. (5)


This island possessed a legislative council and assembly,
at least as early as 1668, that being the date of the first
act in its printed collection of laws.


That act, which is intituled "An Act declaring the
former grant of the duty of four and a half pel' cent. lost
and null within this island, &c." recites, that during the
late war between Charles n., the French King, and the
N etherlands, 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 beiug
lostas aforesaid, thereby all the constitutions of govern-
ment lands, and grants for lands, were also destroyed,
together with the grant for duty of four and a half per
cent., which was formerly settled in this place." (6) The
act proceeds thus, "that the said former custom, import,
01' duty of four and a half per cent. is to aH intents and
purposes 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 accord-
ingly."


Then foHows in the same year an act, intituled " An
Act for new granting and confirming the duty 01' custorn
of four and a half per cent." After reciting that, "by
reason of late conquests obtained by the French King on
aH the inhabitants of this His Majesty's island, all man-
ner of civil governments, the several constitutions, grants,


(4) 3 Rcp. W. l. C. 33.
(5) Id. ib,
(6) A tradition is mentioncd as ex-


isting in tbc island, that the old grant
was wilfully destroyed by the ser-
vants of the British UOW]), anrl that
the loss of it al the conquest of the
island by the Frcuch was a mere pre-
tenee; the gronnd of the alleged
fraud being tlrat the old grant limited


the appliealion of thc four and a half
per cent. revenues to the purposes of
the local governrnent. The 'Vest
India Commíssioners (3 Rcp. 31)
state and discredit this pieee oí tra-
ditionary history. The ministers oí
Charles Ir. however obtained a grant
wbicb was accompanied with no such
restriction,




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' custom of four and a half per cent. shall be paid
out of all the commodities of the growth of this island,
which shall be exported out of this island by every such
transporter, unto the use of Bis Majesty King Charles,
&c., his heirs and successors 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 the same year, it is stated
that the island having been "fully subdued notwithstand-
ing all resistance possible was made by the inhabitants,"
aIl proprietors of lands are declared 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 saidMajesty King Charles the Second, &c."


And tben follows another act, also in the same year,
enacting " that all and every of the late proprietors of
land in tbis island are hereby re-invested in all and singu-
lar their plantations, lands, immunities and appurtenances
which lately they enjoyed, and the same to hold, occupy,
enjoy, and possess, to him and them, 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 act "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 the same
year Lord 'Villougbby was appojnt-
ed govcrllor of Barbados, Sto Lucia,
St. Vinccnt, and Dominica. Ibid,
411.


(8) Seo Antigua Act, 22d June,
1705.


(9) Under a comrnission grantcd
b.~ Cbarles 2 to Sir W. Stapleton,
Edw, ubio snp..'j01.


L




]46 MONTSERRAT.
vernment, called "The Leeward Caribbee Island Go-
vernment," and the governor whereof was styled " Cap-
tain-General of the Leeward Caribbee Islands."


The general government eonsisted, besides the governor-
general,; of a general councíl and general assembly, who
passed laws on subjects of common and universal 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, conc1uded on 01' about 31st March,
1713.


It was again invaded and captured by the French in
1782.


On the28thDecember, 1782, passed an act (No. 217)
reciting that in consequence of the capture of that island
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
Pleas of the said island, and particulady whether the
said suits and prooess can be carriedon in the same man-
ner asifthis island had still continuedunder the subjec-
tion of the Crown .of Great Britain. And the said act
provides tliat all suits,&c. depending iri the said courts
at the time oí thecapture by His Majesty's arms on the
22d February last, shall be. revived and made valid, and
restored to thesame plight and condition as at the time of
thecapture by His Majesty. " And the several plaintiffs
at law and in equity, in such suits are hereby fulIy autho-
rizedand empowered to proceed tofinal judgments and
decrees thereupon, 01' otherwise, according tothe nature
of their .respective suits,and Iikewise to all subsequent
process, 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 pacification which took place in 17&'3. (3) An
act similar to the foregoing was then passed, (dated 27th
April, 1784, No. 225,) which, after reciting that doubts
had arísen.as to the validity of suits depending at the time


(1) See ante Antigua. See printed
edito of Antigua acts, vol. 1, p. 1 lo
23.


(2) 1 B. Edw. '197.
(:J) Ibid.




~IONTSERRAT. 147
of the restitution of the island 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),
intituled "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 and validity
of the severaI acts passed by the Iegislature of the said
island 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
severa1 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 tbe Freneh
King, should be confirmed and restored to the same state,
eondition, force and effeet in which they were at the time
of the restitution of this island to His Majesty." And the
act proceeds to provide "that aH and every the foHowing
aets passed by the Iegislature of this island during the
government thereof under the Freneh King, that is to
say, an aet made and passed the 19th day of September,
1783, intituled 'An Aet to alter, amend and explain cer-
tain . parts of an aet intitu1ed An Aet for establishing
a Court of King's Beneh and Common Pleas and a Court
of Error, and for the more speedy exeeution of justiee,
and for eollecting eertain fines and penalties on the offi-
eers taking other fees than allowed in a docket settled by
his exceHency by adviee of his council,' and one other
aet made and passed on the same day, intituled 'An Aet
to alter, amend and explain an aet intitu1ed An Aet for
constituting a Court of Chaneery to be held in and for
this island,' the force of whieh, in eonsequenee of the late
restitution of the said island to your Majesty may have
abated 01' been rendered of no effect, shall be and are
hereby revived, eonfirmed and made valid to all intents,
eonstructions and purposes whatsoever," &c.


One of the acts of assembly of this island is too curi-
ous to be passed over without notice. It recites, in an
Eastern style of metaphor, that opprobrious Ianguage,
" if not prevented, may overshadow the good government
and administration of justiee in this island with the staple
clouds of reproach and infamy," and it then proeeeds to
prohibit such Ianguage general1y, and the foHowing nick-


L 52




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, and 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 01' 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 01' four members of council
are allowed (with the commander-in-chief) to form a
court,


Court of King's Bencñ and Common Pleas.
The aet of the island, No. 89, creates a Court of


King's Beneh and Common Pleas, with an establishment
of one chief justiee and four assistant judges, "to try
causes aeeording to the laws and usage of Great Britain,
and the laws and usage ofthe island."-3 Rep. W. I. C. 34.


Other Courts.
A Court Merchant for transient traders was established


so late as the year 1800.
There is also a Court of Vice-Admiralty, and it seems


under clause 8 of the Court Act, a Court of Complaints in
this island, 01' at least a jurisdiction for the recovery of
small debts.


(4):, Rq,. W. I. e.SI.




MONTSERRAT. 149


Court ofGrand Sesslons,
This court was established under an aet 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 jurisdietion in civil mat-


ters in this isIand, in all cases where the debt does not
exeeed cElO; appeals to a higher tribunal are allowed
where the sum exceeds .e3 eurrency. '


The only case in whieh the practice of granting search
warrants in this island differs from the proceedings in
England is in the mode of searehing negro houses for
stoIen goods, when no warrant is necessary, but the
master, mistress or overseer of the plantation must be
presento


A prisoner when acquitted is instantly set at Iarge-the
fee is eharged to the public; the expense of prosecutions
is borne by the country,' but persons found guilty of
assaults pay for the prosecution.


Justices have jurisdiction in disputes as to seamen's
wacres.-3 Rep. W. l. C. 37.


fuquests on white and free people are taken as in Eng-
land; on sIaves, as the Melioration Act prescribes.


Information of sudden or vioIent deaths is received
from the owner, attorney or manager; never in this isIand
from the slaves.-3 Rep. W. I. C. 38.




NEVIS.


-


Neois is one of the Caribbee Islands in the West
Indies.


It is nothing more than a single mountain, the circum-
ference of the base of which does not exceed eight
English leagues. .


It is divided into five parishes. Its seat of government
is Charles Town, andthereare two other shipping places
called Indian-Castle 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 flrst established themselves in .this island
in the year 16>28, under the protection andencouragement
of Sir Thomas Warner. (>2)


It is said that in 1640 it PQssessed4;OOO whites. (3)
This island possessed a legislative council and assem-


bly at least as early as ]664, which is the date ofthe first
act in its printed collection of laws,


That act, which .is intituled "An Act for settling an
impost on the commodities of the growth of this island,"
recites that Chao 1, did by letters-patent under the great
seal of England, grant and convey unto James, Earl of
Carlisle, and his heirs for ever, the property of that Island
of N cvis; and that Chao Z, had by purchase invested him-
self in all the rights of the said earl, (4) and in all other
rights which any person might cIaim from that patentor any
other, and thereby more immediately had taken that island
and the rest of the Caribbee Islands into his royal protec-


(1) 1 B. Edw. 468 lo 470.
(2) 1 B. Edwards, 470. See tille


.. SI. Christopher," for an account of
Sir T. Warner,


TIJe senior King's Counsd at
Ncvls, examiucd undcr l\Jr.Dwm'·


ris's commission, speaks of 1625 as
the dale of the "fil'st settlement of
the colony,"-2d Rep. W. 1. C. 62.


(3) 1 B. Edw ards, 471.
(,~) See tbis trausaction expluined


al ti tic .. Barbados."




NEVIS. 151
tion, and had by letters-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 their 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 g1'ants, &c.;
and that an acknowledgment of twenty pounds of tobacco
per poJe, and other taxes had been raised by the island to
the Earl of Carlisle, whieh had been held very heavy.
The act then proceeds to provide that all the now 1'ightful
possessors of lands might repair to his excellency for a
full confirmation of their estates and tenures under the
public seal of the island, and also that the payments of
the twenty pounds of tobacco per pole, and all other
duties due to His Majesty in right of the earl, .. shall
cease ; and that die inhabitants shall hold their plantations
to them and their heírs' 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 confirma-
tion of lands, the act lays on an impost payable to the
crown for ever of 4~ per cent. on all the exported produce
of the island. (6)


In 167~ the Leeward Caribbee Island Government was
formed in the manner already related. (7) 11. may be
doubted whether the generallegislative assembly of the
Leeward Caribbee Islands had any existence till the com-
mission of Wm.3, in 1689. Its: printed acts begin in
1600, and the act which declares the power ofthe general
assemblyover these islands is dated in 1705, (see ante, 131.)


By commission, bearing date ~6th October, 1689, in the


(5) "Or of the Caribbee Lee-
ward Islauds in America," as it is
expresscd in the Nevis Act, No. 2.


(6) This impost, as elsewhere ex-


plained, is payable at Barbados and
all the Leeward Caribbee Islauds,
See the different titles.


(7) See ante, Antigua.




152 NEVIS.
first year of his reign, King William 3. authorized " the
Governors, Councils, and Assemblies of their Majesty's
Leeward Caribbee Islands in America, jointly . and
severaHy to make laws for the public peace, welfare, and
good government of the said islands, which said laws were
to be, as conveniently might be, agreeable to the laws and
statutes of this kingdom, and to be transmitted to His
Majesty for his royal allowance 01' disapprobation of


. them," (8)
An act of 1710 (No. 68 of printed laws of N evis)


mentions courts of justice as having been for some time
held in the island; and in 1711 an act (No. 70) passed
" for establishing the Courts of Queen's Bench and Com-
mon Pleas, and settling due methods for the administra-
tion of Justice in this Island." And in May, 1732, an act
(No. 94) passed for the like purpose. This, not having
expressly repealed the former, they are both contained in
the printed collection. (9)


In 1782 Nevis with Sto Christopher surrendered to
the arms of France; (L) but was restored to Great Britain
by the peace of 1783.


The " Leeward Island Government" no longer exists,
its component parts having been for some years past se-
parated. The commission under which, till the last year,
Nevis was governed, comprised aIso Sto Christopher, An-
guilla and the Virgin Islands, but did not embrace An-
tigua 01' Montserrat, They are now all consolidated into
one government, with a lieutenant-governor to each dif-
ferent island (see ante, 123.)


This newly-constituted general government -has not a
general council 01' assembly; but each island enjoys (as
befare) a council and assembly ofits own.


Mr, Edwards states that in the absence of the governor-
general the government of this island is administered by
the President and Council, and that this board is com-
posed of the president and six other members, and that the
House of Assembly consists offifteen representatives, three
for each parish. (2)


The chief justice and assistant judges are said to be


(8) This commission is rccited in
an Order in Couneil uauscribed in
the priuted acts uf MOlltserrat. p. 13.


(9) With respeet (o the Court of
Chancery it derives its authority en-
tire1y froiu th~ KiJlg's couunission


and instrucrlons to the governor, there
I>eing no local law un tl;e sol>ject,-2d
Hep. W. r. c. 67.


(1) 1 n. Edwards, 168.
(~) Iuiel. 470.




NEVIS. 153
appointed by the govcrnor by patent, to continue during
pleasure, 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 per-
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 callcd 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 courts, are ad-
mitted to practise as counsel and solicitors, 01' attornies,
and as advocates and proctors in all the courts respectiveIy,
and such admission is considered to confer the same pri-
vilegcs with the same restrictions and controul of the
courts as does an admission in the mother country there "
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 PIeas 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
special 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 their ability 01' competency before
admission, which is obtained in like manner as in the case
of barristers, They are not limited as to clerks."(4)


COLLECTION OF LAWS.


There is an edition of the Acts of the Island from 1664
to 1740(5) inclusive, with the Acts of the Caribbee Lee-
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 the


(3) 2 Rcp. W. 1. C. 55 and 3
Rep.53.


(4) ed Rcport, W. 1. C. 55.
(5) This should be 1739. 11 was


printed in London by the King's
printer in 1740.




1M NEVIS.
authority of the legislature, and made evidence by an act
for that purpose, and this is also acaree.


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 01'
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 EngIand
as far as it stands unaltered, &c.(9) is in force in each of
these Islands, and that all customs, &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 01' this Island, 01'
by sorne Acts of Parliament extending to the Colonies, is
considered the certain rule whereby the rights and pro-
perties of the inhabitants are 01' ought to be determined;
and a11 customs, 01' pretended customs, 01' usages contra-
dictory thereunto are illegal, null and void. And aH Acts
of Parliament of the mother country, antecedent to a cer-
tain period, and applicable to thecolony, 01' whichname
the colonies, 01' 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, 01' the Court


(6) 2 Rcp. W. l. C. 58.
(7) See the remarks in the first


chapter on the general topic how far
the colonies are subjeet lo the law of


the mother country,
(8) See tille " Anligua," where


the reeitals of this act are given.
(9) See ante, Antigua.




NEVIS. 155
of Common Pleas, 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 1 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 1 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 applicable 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 determined it did not; and no
laws but such as were applicabIe to their condition unless
expressly enacted,"


Ofthe Laws ofNevis the principal are these r-«
No. 33, el. 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 thisisland, intituled An
Act for estabIishing 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, nevertheIess, 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.(1 )


No. 135. An Act for holding a Court of Sessions once
every year.


Cl. 3. The justices of the Court of King's Bench and
Common Pleas are exempted from sitting in this court,


(1) lt is said however that appeals
go from the Court of King's Bench
and Cornrnon Pleas lo the Court of
Error, and thcnce to the King in
Council, notwithslanding the clause of
this Court Act, which seems to re-


serve the power of appenl from the
Courlof King's Bench and Cornmon
PIcas in the island to the Court of
King's Bench in England.-Z Rep.
W. 1. C. 186.




156 NEVIS.
which is composed as it is vaguely said of " about three
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 Cbancery, the Court of Ordi-
nary, the Court of Error, the Court of King's Bencb and
Common PIeas, and the Court of Vice-Admiralty; but tbe
Court of King's Bench and Common Pleas, and tbe
Court of Error only are established by the laws of the
island,


Tbe eourts for the administration oí criminal justice
are:-the Court of King's Bench and Common Pleas, the
Court of Error, (according to the c1assification of the
King's counsel,) the Court of Session, the Court of Jus-
tices of tbe Peace, the Slave Court, the Courts of Oyer
and 'I'ermíner and general Gaol Delivery, the Court of
Vice AdmiraIty, and the Commission Court for the trial
of pirates, The first five are established by laws of the
island i the succeeding three are derived mediately, (i. e.
through the captain general,) the Iast immediately from
the King.


The Court o/ Ckancery.
The Court of Chancery in this island derives its autho-


rity entirely from the King's authority and instructions to
the captain general, there being no local law whatsoever
upon tbe subject.


The captain ~eneral is sale chancellor, and holds a
court pro re nata.


Tbere 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 estabIished upwards of thirty years
ago.-3 Rep. W. 1. C. 45.


Court o/ King's Bench and Common Pleas.
In this court are blended the separate jurisdictions of


the Courts of King's Bench and Common PIcas in Eng-
land.


The court derives its authority from the Court Act,
No. 100.-3 Rep. W. l. C. 46.




NEVIS. 157
The writ of habeas 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. I. C. p. 47.


Court for the Recovery of Smalt 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 Pleas have " power to hear
and determine in court, without a jury, all manner of
actions and suits under the value of lOt. current money, 01'
lOOlb. 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 01' 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 law. The captain-general (of Sto Christopher, ofwhich
Nevis is a dependency,) is sole Ordinary in his govern-
ment byvirtue of the King's commission. He sits when
applied to as in the Court of Chancery, but depures
generally the president of the council to grant letters of
administration, (but not to.decide 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 captain-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 Parliament j and by special commission, (of
late disused,) it has cognizance of prize causes during war.




158 NEVIS.


Court o/ Error.
In this court the captain-general, 01' other person 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 Pleas, 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 Court of Justices of the Peace,
consisting of one, two, 01' more justiees, as oceasion may
require, and as prescribed by the general eommission 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. Proseeu-
tions are frequently carried on at the instance of a private
proseeutor, who retains whom he pleases in the Court of
King's Bench and Common Pleas, and at the Court of
Sessions, but in a1I the other courts, and in cases termed
"public prosecutions," that is, conducted at the public
expense, and noticed by the superior authorities, the senior
King's counselresident in the island prosecutes, unless the
Attorney-General 01' Solicitor-General, who reside at Sto
Christopher, are specia1Iy called upon, which usuaIly hap-
pens in cases of importance 01' magnitude.-3 Rep. W.
l. C. 50.


With the exception of the chanceIlor, the ordinary, the
members of the council, and the commissioners for the
trial of pirates, (at the Admiralty sessions,) who are all
appointed by the King, aIl the judges and justices of the
several courts are appointed by theeaptain-general by
patents under the great seal. They 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 jurisdietion in civil mat-
ters in this isIand.-S R:ep. ·W. l. C. 52.




( 159 )


STo CHRISTOPHER AND ANGUILLA.


-


Sto Christopher is one of the Caribbee Islands 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 four 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 St.
Christopher.(3) It is now said to be a dependency of the
latter island, and to send one member to its assembly.
But in the continuation of JUr. 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 than
three leagues. It was settled by the English in 1650.


HISTORY AND CONSTITUTION.


S1. 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
the Spaniards, It is the eldest of aH the British Co-
lonieajn the West ludies, and, indeed, the common
mother both of the English and French sett1ements
in the Caribbee Islands. JUl'. Thomas Warner, with
fourteen other persons, sailed from England and arrived
at St. Christopher's in January, 16Q3, and by the month


(1) 1 B. Edwards, 462 to 467.
(2) u.. 467.


(3) Brookc's Gazetteer,
(t) 1, B. Erlwnrds, 217.




160 STo CHRISTOPHER'S.
of September following had raised a good crop of tobacco.
The first actual establishment in Barbados did not take
place till the latter end of 1624. (5)


The English found the Charaibes in possession, and
with them they continued to live for sorne time on amica-
ble terms.


In Muy, 1624, a ship of James Hay, Earl of Carlislc,
arrived in the colony, having been sent out there at the
solicitation of Warner, with necessaries for the new
settlers,


In 1625 a party of French ad venturers landed in the
island and were weIl received by the English, and shortly
afterwards the settlers of both nations feIl upon the Cha-
raibes, destroyed great numbers of them, and drove the
rest from the island. (6)


In the first year of Chao 1, (1625,) that monarch, by
letters-patent under the Great Seal, granted to James
Hay, Earl of Carlisle, and his heirs for ever, the whole of
the Caribbee Islands. (7)


In 1626 Warner was knighted, and through the interest
of Lord Carlisle sent out from England as Governor of
St, Christopher'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 nearlyequal
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 Chao Q, that monarch purchased all 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 undel' the great
seal, bearing date 12th June, in the fifteenth year of
his reign, (1663,) appointed Francis Lord Willoughby, of
Parham, Captain-General and Chief Governor of Barba-
dos and thc rest of the Caribbee Islands. (1)


(5) 1 B. Edwards, 454, 455.
(6) Ibid.457.
(7) Scc Ncvis Act, No. 1 of


printcd collection. And see title
Harbados, whcre this matter is more
fully stated.


(8) 1 n, Edwards, 458,459.
(9) Ibid. 182, 183,459.
(1) Nevis Act, No. 1, printed col.


Iection, and titles " Barbados," whcrc
Ibis mattcr is more fully stated,




s'r. 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 were again expelled by their
Freneh neighbours, who remained about cight months in
exclusive possession, but were themselves in turn reduced
by the English under the eommand of General Codring-
ton. (3)


St, Christopher's enjoyed a legislative assembly at least
as early as 31st August, 1694., for by an aet of the Lee-
ward Islands of that date, (4) it incidentally appears that
eaeh of the islands of whieh the general government was
eomposed possessed at that tíme a Couneil and Assembly.
This appears to have been secured to them by the eommis-
sion granted by 'Vm. 3, and dated 20th October, 1689,
by whích the Governors, Councíls, and Assemblies of the
Leeward Caríbbee Islands were authorized "joíntly and
severally to make laws for the public peace, welfare, and
good government of the saíd islands." Before the year
1704 the Englísh appear to have conquered that part of
Sto Christopher's, which had forrnerly been ín possession
of the French, for in that year MI'. Attorney-Genera1
Northey reported wíth regard to "that part of St. Chris-
topher's lately gaíned by eonquest from the Freneh," that
"Her Majesty may, if she shall be so pleased, under her
great seal of Englanrl, direct and eommand the duty of
4~ per eent. to be levied on goods exported frorn the con-
quered part, Her Majesty by her prerogative being
enabled to make laws that will bind plaees obtained by
conquest." (5)


In 1711 an aet was passed in St. Christopher's (No. 1
of printed eollectíon) intítuled, "An Aet for the esta-
blíshíng of Courts and settling due methods for the admí-
nistration of justiee in this island , (6)


(2) Act of St. Christopher's, No.
38, el. 5, oí printed colleetion, 1
Edwards, 460.


(3) Aet of Sto Christopher's, No.
38, el. 1, of printed coliection, 1 Ed-
wards, 461.


( 4) Among the aets of the Leeward
Islands annexed to the printed aets
oí Sto Christopher's.


(5) 1 Chal Op. Hl.


(6) "This aet was repealed by
auothe r passed in 1724, (No. 59.)
But several objections arising to that
aet it was not eonfirmed, but ordered
to lie by probationary. Therefore
both acts are prirued.' Note in
margin of t he prinled collection.


lt is the act of 1724, (No. 59,)
however, which is considered in St ,
Kitt's as the existing Court Act, 2


M




162 STo CHRISTOPHER'~.
On 13tl.l November in the same year, an act passed


intituled, "An Act for preserving the Freedom of Elec-
tions, and appointing who shall be deemed Freeholders
and be capable of electing or being elected Representa-
tives." (7)


By the peace of Utrecht, concluded on or about the
31st Mareh, 1713, this island was ceded wholIy to the
English, and the French possessions were aftarwards pub-
licly solel for the benefit of the English government.
Sorne few of the French planters, however, who con-
sented to take thc oaths, were naturalized and permitted
to retain their estates. (8)


In 17547 an act of St. Christopher's (No. 68) passed, to
subjcct all goods, the growth of the late French part of
the island, to the payment of the 4k per cent. duty, which
the act recites to have been laid on the Leeward Islands
generally, by " An Act of the General Council and Gene
ral Assembly of the Leeward Caribbee Islands in Ame-
rica, called or known by the names of Nevis, Sto Christo-
pher's, Antigua and Montserrat, made in or about the year
1663, and entitled an Act for settling an Impost on the
Commodities of the growth of the Leeward Caribbee
Islands."


In the same year (1727) an act of St. Christopher's
(No. 71) passed, intituled "An Act to enable the several
parts of this Island, formerly belonging to the French, to
choose and send Representatives to serve in the Assem-
blies of this Island; to declare ami ascertain the N umber
of Rcpresentatives for the whole Island, what number each
Parish shall elect, and the severa] qualifications of the
Electors and Candidates; to secure the Freedom of Elec-
tions, and for repealing an Act of this Island, dated the
13th day of N ovember, 1711, intituled " An Act for pre-
serving the Freedom of Elections and appointing who shall
be deerned Freeholders, and be capable of electing or
being elected Representatives." .


In 1782 St, Christopher's was invaded and captured by


Rop. W. 1. C..~2. 58, 186. Tlle
Court of Chancery in this i sland doc.
not derive its authority under either
of these acts, but ooly under the
Governor's eommission. Ibid. 52 to 66.


(7) Mentioned and repealed by
No. 71 of printed acts,


(8) Seo Act of St. Christopher's,
No. 71, 1 Edwards, 461, 462.




STo CHRISTOPHER'S. 163
a French force; but it was restored to Great Britain
under the general pacification in 1783.(9)


Mr. Edwards states that "in St, Christopher's the Coun-
cil should consist of ten members; but it is seldom that
more than seven are presento The House of Assembly is
composed of twenty-four representatives, of whom fifteen
make a quorum. 'I'he requisite qualification is a freehold
of forty acres of land, 01' a house worth .i'4.o ayear. Of
the electors the qualification is a freehold of .i'1O ayear. (1)


The appointment of the chief justice is generally con-
sidered to belong to the government at home. The four
assistant judges are appointed by the Governor, and hold
commissions .from him under the great seal of the go-
vernment, 'I'he chief justice and his assistants all hold
their commissions during pleasure. They have no salaries,
but receive certain fees. (2)


There is an attorney-general in this island.
It is not required that persons acting as counsel in


the courts of this island 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 court, with the exception of those persons -
who were attending the offices of barristers, 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-
Iicitors and attornies.


COLLECTION OF LAWS.


The Acts of this island from 1711 to 1799 have been
printed. (4) Those from 1711 to 1740 were printed in
London by the King's printer, and by order of the Lords'
Commissioners of Trade and Plantations; and to that
volume are annexed the Acts of the Caribbee Leeward
Islands, from 1690 to 1730.


'I'he Governor said he "could not supply the commis-
sioners with a copy of the laws; he had none for himself;
he was obliged to grope in the dark." A copy of the
printed laws to 1779 was afterwards with difficulty pro-


(9) 1 Edwards, 46'2.
(1) 1 B. Edwards, 466. And see


the Election Act, No. 71, el. ii.
(2) 'id Report, W. I. C. 52.


(s) 'id Report, W. I. C. 55. The
number of terms necessary is after-
wards stated (p. 56) lo he nine,


(4) 'id Report, 51l.
MZ




164 STo CHRISTOPHER'S.
curcd j but many of the laws of this island remain in ma-
nuscript---Bd Report, W. I. C. 58.


GENERAL LAW OF THE COLONY.(S)


By an act of the Leeward Islands of 7th June, ] 70.5,
intituled " An Act to settle General Councils and General
Assemblies for the Caribbee Islands in America, and to
sccure to each particular Island their own peculiar Laws
and legal Customs," it is provided that al! the laws and
legal customs now in force in each and every of the Ca-
ribbee Leeward Islands, aud respecting only the circum-
stances of the same, be and remain in their fuU force and
virtue." (6) The general Assembly is, however, by the
fourth section of the same aet, to have power to make acts
hinding on al! the Leeward Caribbee Islands. By ano-
ther act of the 20th June of the same year the common
law is declared to be in force in the Leeward Caribbee
Islands, (see ante, Antigua.)


By the Court Act (N o. 1), passed in 1711, it is enactcd,
that in this island shall be held a court, &c., and that the
justices shaU determine causes with full power and juris-
diction " according to the laws and customs of England,
and according to the laws and customs of this island, &c.
And the Court Act (No. 59), passed in 1724, appoints a
Court of King's Bench and Common Pleas, the justices
whereof are authorized " to hear, try and determine
in the said court, according to the laws and usages of the
realm of Great Britain, and the laws and usage of the saíd
island," &c.


Upon the examination under the late commission for
inquiring into the administration of justice in the "Yest
Indies the attorney general of Sto Christopher says, " We
consider the law of England operative here, in cases ap-
plicable to our circumstances, except where it may be
modified 01' altered by the acts of the colonial legislature.
We also consider Acts of Parliament, passed previous to
the cession of the island to Queen Anne by the Treaty of
Utrecht, operative here, in all cases in which they are ap-
plicable." (7)


(5) See the remarks in the firsl
"h"l'h'r,on the general lopic how far
the r olonies are suhjecl lo the Jaw of
th(' mother country,


(6) See title " Arttigua," where
the recitals of this and the next act
are given,


(7) 2d Report, W. 1. C. 61.




STo CHRISTOPHER'S. 1G5
No. 280. An Act for establishing a Court of Sessious


of the Peace, to be held 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 the
Court Act as relates to the admission of Barristers,


Cl. 3. Any person desirous of being admitted, shall
produce a certificate, 01' proof on oath, of his admission
to the bar at Westminster, 01' that he has regularly kept
terms at one of the Inns of Court in London for the space
of three years. This regulation not to affect those, being
whites, who are now in offices in St. Christopherv-c-Sd
Rep. W. l. C. p. 63.


COURTS üF JUSTICE.


The Courts established in this island for the adminis-
tration of civil justice are, the Court of Chancery, COUl't
of King's Bench and Common Pleas, Court of Vice-
Admira1ty, 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 Governor in this island is sole Chancellor, "as


holding the great seal of the colony," said the Attorney-
General. The Chancellor exercises 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 from an interlocutory order as welL as
from final de crees. But the appeaI 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 Rep. 65.




166 STo CHRISTOPHER's.


Court. ofKing's Bench and Common Pleas.
Tbis court derives its authority from an Act of the


island, No. 59, ami comprehends in general all 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 court, except
dower, unde nihii habei; ejeetments are frequent. Slaves
are recovered by action of detinue.


The owner of fifteen acres of Iand, 01' of ten slaves, 01'
of a house in any of the towns of the island, of the value
of !:1O current money by the year, is exempted from ar-
resto


The writ of habeas corpus is obtainable in this ísland.
Under the statute it is granted by the judges; and the
Attorney-General thinks correctly.-Sd Rep. W. I. C.
p.66.


Actions enterad in the Court of King's Bench and
Common Picas for sums under !:10 are denominatedcom-
plaints. Such actions are tried by the justices of the
Court of Kings Bench and Common Pleas without a jury,
at the monthly sittings of that court,


Court of Ordinary.
This court is held under the authority of the Governor's


commission; the Goveruor, 01' in his absence from the go-
vernment, the temporary commander-in-chief, being sole
judge.


WilIs respecting real and personal property are proved
here, when the testator dies and the wiII is in the 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. 1; C. p. 68.


Court of Vice-Admiralty.
The judge of this court (the chief justice) derives his


authority by commission under the seal of the High Court
of AdmiraIty in England, with power to determine those
civil mari time cases over which the Instancc Court exer-
cises jurisdiction,


Proceedings for the recovery of seamen's wages are in-




STo CHRISTOPIlER'S. 167
stituted, but not frequently, as the expense would be too
great for the subject-matter.


By statute 46 Geo. 3, C. 54·, píracy and other offences,
committed in places where the admiral has jurisdiction,
are directed to be tried in the colonias according to the
laws 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 considered in this island that writs of error may be


brought from the court of common law to the Governor in
Council for any sum, notwithstanding His Majesty's in-
structions have fixed the amount at .t300; the Court Act,
in clause 35, speaking generally of " any judgment given
by the Court of King's Bench and Common Pleas for any
sum, rnatter, cause or thing," without reference to the
instructions, whereas in the 38th clause respecting appeals
to the King in Council, the amount in that case Iimited by
the instructions is adverted too


Escheats.
There is no Escheat Court 01' escheator in this island;


there is a person holding a commission as Casual Receiver,
whose duty is considered to be to take the direction of
property falling to the Crown by escheat, 01' for defauIt of
kindred, and to dispose of it for the advantage of the
Crown.s- 3d Rep. p. 69.


Criminal Prosecutions,
Criminal prosecutions of every description are en ter-


tained in this island by the Court of King's Bench and
Common Pleas, Offenders are generally prosecuted by
the Attorney-General at the suit of the Crown. A pro-
secution is commonly instituted by laying a bill before the
grandjury; sometimes, but very rarely, by criminal inform-
ation. The indictments are generally 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
inquired of.-3d Rep. W. l. C. 70.




168 STo CHRISTOPHER'S.


Quarter Sessions.
In this court the senior justiee of the peaee acts as


chairman, when there is no member of Council presento
The matters usualIy occupying the court are indietments
for breaches of the peaee, 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 eonducts the prosecution, but it may be put
into the hands of other counsel.


The expenses of prosecutions in this court are gene-
rally borne by the publico


A record of the proceedings is kept by the Colonial Se-
cretary, who in this court acts as clerk of the peace, and
takes the costs.-3d Rcp. W. I. C. p. 70.


Judges and Justices,
The judges in Sto Christopher's are selected as in the


other islands, from the first cIass of the community. It is
not necessary that any of them should be barristers, 01'
should have gone through a course of previous legal
study,


Justices of the peace have no jurisdiction coneerning
disputes as to seamen's wages. (8) Justices of the peaee
of this island have not been in the habit ofvisiting the
jail j the senior magistrate is not cIear as to their right to
do so; the marshal being a public officer appointed by the
crown, is perhaps under the controul of the Court of
King's Bench only.-3d Rep. 76.


Coroner.
There are four coroners in this island, appointed and


removable by the Governor 01' his locum tenens, The
coronel' is allowed J.!5, current money of the island for
every inquest he holds. The coronel' is guided in his
duty by the rules which govern coroners in England.-
3d Rep. W. l. C. p. 77.


(8) These disputes will now be tried in the Vice-Admiralty Courts, see
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 possessed 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 01' the Drowned
Island, Nicker, Prickly Peal', 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 Island,
Peter's lsland, and the Dead Chest, (1)


Tortola is about eighteen miles long from east to west,
and seven in its greatest breadth. It was first settled by
a party of Dutch Buccaneers. These, in 1666, were
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 Assembly met on
the l st 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 Assembly, had promised to grant an
impost of 4~ per cent, " similar to that which was paid in
the other Leeward Islands." That grant was the first act
of their legislature. (3)


TORTOLA.


On application for a copy of the laws, the commis-
sioners learnt with surprise, that in this island all the laws


(1) Walker's Gazet1eer, 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 Court of Chancery,
the Court of Common Pleas, and the Court of Error,
The courts established in the Virgin Islands for the admí-
nistration of criminaljustice are, the Court of King's Bench
and Grand Sessions of the Peace, There is no Court of
Exchequer in this island.


Court of Chancers),
Courts of Chancery for this island are usually held at


St. Christopher's. A court is only held at Tortola when
the Govemor visits this part of his government, and then
for' no precise time, but so long as his Excellency may
think proper, from the nature of the business to be done.
There is u manuscript volume of the rules of practice in
this court, 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. The masters
receive no salaries, but are paid by fees , they give no
security. An appeal to the King in Council may be
made from the Chancellor's decision, interlocutory as
well as final. It has, it is said, the effect of staying the
proceedings, and when mude from interlocutory orders
may occasion great delay. Costs are" frequcntly" taxed
in this court by the master.


Thcre is atable of fees established in this court by a
former Chancellor. The fees of this court have always
been regulated by the authority of the Chancellor,


Court o/Common Pleas,
The Court of Common Pleas 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 Common Pleas in
England, and follows as nearIy as possibIe the practice of
that court, 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 continued 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 documenta at the de-
fendant's last place of abode, with an indorsement naming
the plaintiff and defendant, and setting forth the cause of
action, damages, &c. A person who has never been in
the isIand cannot be sued unless he has a powel' 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 under 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 oí AssembIy; are not
subject to any penalties from which a white person is
exempted; and are" subject to no other disabilities than
such as exclude them from all public situations ando
offlces." An appeal lies from this court to the Court 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 recoverable in this court, The costs do not exceed '
the sum of cfl. 168. 3d. up to execution, andsuits are in'
general speedilydecided.


Court of Ordinary.
This court derives its authority from His Majesty's




17J2 VIRGlN ISLANDS.
comnnssion 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. L 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 court, There is no means of
obtaining a divorce in this island, nor is there any mode by
which a wife can obtain a separate maintenance.


Court of Pice-Admiralty.
This court derives its authority from the Court of


Admiralty in England. It has jurisdiction in matters of
prize and revenue. It has one judge, a surrogate. The
present surrogate was appointed by the Governor. He
holds his office during good behaviour, and is rernovable
by the Governor. The former judge was appointed from
England. There is not much business done in the In-
stance Court. There have been a few instances of pro-
ceedings for seamen's wages; they are not attended with
much expense, and are said to be very summary.


N o Admiralty Sessions are held in this island; persons
charged with piracy were formerly carried to Barbados,
but will now most probably be taken to Antigua, the chief
seat of this government.


Court of Error.
This court is established by the Court Act. The


judges of the Court of Common Pleas are excluded by law
from sitting in the Court of Error. The members decide
by a majority.-3 Rep. W. l. C. p. 408.


King's Bencñ 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 Pleas, 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.-3 Rcp, W. l. C.
p.84.




VIRGlN 18LANDS. 173
The president of the court always delivers a charge to


the grand jury, When the granel jury are desirous of
advice upon points of law, they apply to the King's
counsel. There is no court of Quarter Sessions in this
island, p. 85.


Escheats.
There is no Escheat Court established in these islands.


""Vhen property has escheated to the crown "that is worth
applying for," said the King's counsel, a petition from the
parties to His Majesty is forwarded to our agent residing
in London; he presents it to the Secretary of State for the
Colonies, who submits it to His Majesty. The Secretary
of State directs the Governor to issue a writ of inquiry.
The Governor sends a writ, directed to certain persons,
requiring them to issue a precept to the marshal for impan-
nelling a jury to try the question of escheat 01' not ; they
hear the evidence and decide accordingly. The judges
report 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 parties petitioning. Cases of intestacy are frequent
among the unmarried coloured inhabitants of those islands,
and property frequently escheats to the crown for want of
heirs,


sraves escheating are not thereby considered as vir-
tually freed.


Where there are illegitimate children 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 this kind has ever been represented at home
by petition or otherwise.-3 Rep. W. I. C. p. 87.


LA W OFFICERS.


The Attorney and Solicitor-General for the government
reside at St. Christopher's. One crown officer and King's
counsc1 resides and practises in this island.


Barristers 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 01' Solicitor-General and one
practising barrister, attesting their fitness, wiII enable




174 VIRGIN ISLANDS.
them to obtain admission to the bar in the courts of this
island. 1'0 act as solicitors 01' attornies 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 courts before they are allowed to
practise as attornies 01' solicitors, and after such admission
no other formality is required.-3 Rep. W. 1. C. p. 91.


Justices of tite Peace.
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 jurisdictionin
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
frequentIy 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 the Virgin Islands, it is considered as post-
poning, sine die, the payment of any debt exceeding et'300.


Court of Grand Sessions.
Jn the criminal court all the judges of the Court ofCom-


mon Pleas and all justices of the peace named in the com-
mission, compase 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.
lato 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 01' 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 01' 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
built, 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) Encyc, Drit. Edwards states
tbe longilute tu be 59° west from
London, and tbe latitude 13° 10'
nortb; the length to be ~1 miles, tbe
breadth 14, and tbe surfaee 106,470


acres, vol. i. 344; 1 Rep. W. l. C. 57.
Thc island is said to be about SO
miles long and 16 broad.


(2) 1 B. Edw. 317.




176 BARBADOS.
nor, arrived there in 1624, and laid the foundations of
,James Town, which was the first English settlement In
the island.(3)
. In the first year of Charles l. (1625) James Hay, Earl
of Carlisle, either not knowing of the Earl of Marlbo-
rough'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.t-l.)


By Lord Carlisle's patent he was empowered "to make
such laws as he 01' his heirs, with the consent, assent, and
approbation of the free inhabitants of the said province,
or the greater part of them, thereunto to be called, in
such manner and form as he 01' they in his 01' their discre-
tion shall think fit and best," And" to do and perform
all and every thing and things whieh to the fulfilling of
justiee courts,(5) 01' manner of proeeeding in their tribu-
nal, may 01' doth belong 01' appertain, although express
mention of them in these presents be not made, yet we
have granted full power by virtue of these presents
therein to be made, so as, notwithstanding tbe 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, tbat every liege subject of the
King brougbt 01' to be brought within the provinee, and
their children born 01' to be born there, shall 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 tbat tbe pro-
prietary proeeeded to appoint a Governor and Couneil,
and (in eonformity with its aboye cited provisions) to call
a legislative assembly, and to ereet courts of justice. It is
certain at least, that a Gocernor 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 tbere is rcason to suppose tbat some of


(3) It is commonly considered a.
having also been the first English sct-
tlemenl in the West ludies, but
Edwards shows that Sto Christopher
carne into our possession in 16~3.


(4) 1 B. Edw, 320.


(5) 'rhe passage stand. thus in B.
Ed wards' work. The words ought
perhaps to be, "justice, the course 01'
manner of proceeding in their tribu-
nals."


(6) 1 B. Edw, 321, rr. L,




BARBADOS. 177
the acts to be found int,he printed statute-book maybe
referred to a still earlierperiod.If)


The grantto Lord Carlisle wasafterwards, during his
absence from EngIand, revoked, and a new one issued~to
the Earl of'Pembroke, in trust for Sir "VilIiam Courteen,
by the crew ofwhose vessel the island hall been first bene-
ficially possessed ; but on Lord Carlisle's return, his influ-
ence obtained an annulment of Courteen's grant, and new
letters-patents in his own favour again restored him to
his former privileges.(8) Under this second patent Sir
William Tufton was sent out in 1629 as governor for Lord
Carlisle.


During the early part of the troubles in England, the
claim of this proprietor, whether disputad in the island,
or disregarded amidst the confusions at home, was tacitly
relinquished; but in 1646 the then Earl of Carlisle, son
aud heir of the patentee, brought forward his pretensions.
He entered into a treaty with Lord WilIoughby of Par-
ham, conveying to him a1l his rights by law for ~1 years,
on condition of receiving one-half the profits, and then
concurred in soliciting a commission for him as chief go-
vernor under 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 influenced by the apprehension, that after his
title had for some years laid dormant, and the planters had
begun to flourish in the absence of his oppressions, they
might refuse obedience to his unsupported commands.
Whatever might be the motive on which he proceeded,
the act itself was plainly at variance with his claims as
proprietor.


Under this commission Lord WilIoughby arrived at
Barbados, and took possession of the government; but
soon afterwards the regal authority being abolished in
England, the island became subject to the Common-
wealth, by whom a new governor was appointed.


(7) See particularly an act recitlng,
thal "divcrs Iaws had been made by
asscnt of the governor, couneil and
frcchohlers out of ever;; parlsh of this
island, intituled a General Assembly
for that purpose elected and ehosen ,'
&e. Hall's Acts, No. 4. Ane! see ih,
No. 1, which provldes that .. all acts


• nJ sta tutes made and puhlishcd in
the island, or viewed, eorrected and
confirmed by any governor anrl coun-
eil, or presidenl and council, by viro
tue of anv commission from ~KinO'
James 01' Charles rr., &e. be in full
force and virtue."


(8) 1 B. Edw, 32\?
N




178 BARBADOS.
On the Restoration Lord Willoughby applied to


Charles n. for leave to return as governor, but this
was opposed by the inhabitants, who now considered him
rather as the representative of the claims of the Carlisle
family than as the deputy of the crown, and who were
anxious to be placed entirely under the royal government.
They insisted that Lord Carlisle's patent was void in law,
and their case was referred by Charles to a committee of
the Privy Council,


During the discussions befare the council an offer
having been made by one of the planters to raise a per
centage duty on the produce of their estates, on condition
that the King should take the sovereignty into his own
hands, Charles greedily grasped at the offer; and though
the authority of the person who made it was on the very
next day denied by the planters,(9) the hope thus raised
in the mind of t:hat needy and extravagant monarch, of
realizing a revenue of a considerable amount, was not
speedily to be relinquished, The council very 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 be allowed to try in the courts here
the validity of the Carlisle patent-s-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
10 the King, his heirs and succcssors, a permanent
and irrevocable revenue of 41 per cent, to be paid in
specie on aH dead commodities, the growth of the
islarrd, that should be shipped off the same. Out of
tbis the Crown was to makc provision for the Earl of
Kinnoul, (1) the representativa of the patentee, and to pay
off the different creditors, claimants on thc profits of the
Earl of Carlisle's share of the patent; and the remain-


(9) 1 B. Edw. 332,333.
(1) This is still paid out of the 4t


per cent, fund, under the llame of
Lord Kinnoul's pellsion, so named
/< with as much propriety,' Mr. Broug-


ham observes, "as the holders of long
annuities might be dcnominated peno
siouers," Colonial Policy, vol. i. p.
551.




BARBADOS. 179
del' (snbject to the charge of of1200 per annum for the
governor's salary) was to be at the disposal of the King.
This arrangement was carried into effect, Lord Wil-
loughby was sent out as the King's governor of Bar-
bados and the other Caribbee Islands; (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 under the new commission, the Governors, (4)
Couneil and Assembly, by declaration, bearingdate the
7th Mareh, 1666, proclaitned "that the government of
Barbados should be according to the laws of England
and of that island, as had been theretofore usedand
practised," (5)


Afterwards, byan act of the isIand,(6) bearing date 22d
March, 1666, reciting the declaration of 7th March, "and
that nothing more conduces to the good and quiet of any
place and people than the assuring and ascertaining such
laws and statutes as they are to be governed and regu-
lated by," it was enacted, "that all sueh aets and sta-
tutes as have been made and published in this island
as reviewed, corrected and confirmed by any governor
and couneil, 01' president and eouncil, by virtue of any


(2) He was appointed by letters-
patent, bearing date 12tb June, 15
Chao n. See this eommission partly
recited in the Aet al Nevis, No. 1 al'
printed collcction,


(S) 1 B. Edw. S:)5. Mr, Edwards
says, that the planters finding "that
no support eould be expected from the
people at horne, whose privlleges lay
pros trate ut the feet al' the restored
monarch, passed the act required 01'
them, and their posterl ty still bear,
and, it is apprehended, will long
continue lo bear the burthcn 01' it,'
lt is to be hoped, that the time has
now arrived when as the fund is at
the disposal 01' Parliamcnt, an end
will be put to an impost that has becn
as opprcssive in its effccts, as it was
grossly disgraeeful in its original exac-
tion, (See ante, 50, 51, notes (3), (4).
Thc aet(whieh is No. 3601' Hall'sAets)
makes no mention of the nrrangernent
above referred to, hut professes to irn-


pose the duty for the maintaining" the
honour and digníty of his Majesty's
authority-e-the public meeting of the
sessions-i-the often attendance of the
council-the reparation al' tbe fOl't8-
thc building a sessions-housc and a
prison, aud all other public charges
incumbent on the government."
But these purposes have been dis-
regarded in practice, and to rneet the
expenses mentiuned, specific laxes in
addítion to the 4! per cent, have
been levícd in the colony, It is said
that payrncnt in specie, aceordíng to
the terms of the aet, is not now re-
quired, Colonial Poliey, vol.l, p.
:>52; but see ante, p 50, note (3).


(4) Lord Willoughhy did not re-
main long after his arrival, and three
persons were appointed to execute his
commission. Hall's Acts, p. 3.


(5) See prearnble to No. 1, Hall'.
Acts,


(6) No. 1, Hall's Aets.
N 2




180 BARBADOS.
commission from King James 01' Charles 1., 01' by virtue
ofany commission from his most graeious Majesty that now
is, either immediately from either of their said Majesties,
01' mediately from them 01' either of tbem, by, from 01'
under the late Earl 01' any formerEarl of Carlisle, by 01'
with tbe assent 01' consent of the representatives of this
place legally called and continued, which stands unre-
pealed by any power and authorities aforesaid, be in full
force and virtue in this island, and that 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 effect, any declaration, order 01' ordi-
nance to the contrary, notwithstanding."


By the same aet eertain commissioners are appointed to
compile all thc "aets and statutes in force as aforesaid,
and to cause them to be inrolled in onc book by thc
secretary of the island." And this, as appears by the re-
turn of tbe commissioners, bearing date 18th .luly, 1667,
was afterwards done; and thc aets so compiled by them
are at thc commencement of the book of printed laws,
Hall's Acts, No. 52 to No. 36 inclusive.


Since the commission to Lord Willoughby, in 1663, the
island has been eonstantly governed under commissions
granted in like form by letters-patent from the crown,
with aeeompanying instruetions to tbe govel'llors.


From the same period Couneils ha ve been regularly
appointed, and Representativo Asscmblies summoned, and
by tbese assemblies, with eoncurrenee of the eouneil and
of the govcl'llor, laws have been enaeted and sent horno
for the allowance of His Majesty in Council, according to
the usual form of eonstitution in colonias that have legis-
latures of their own,


In this island the Council is composed of twelve mem-
bers, The govel'llor sits in council even when the council
are sitting in their legislative capacity-a method which
in other colonies would be considered as improper and
unconstitutional. (7) The Assembly consists of twenty-
two, of whom twelve are a quorum. They are elected
from the different parishes, and every persan electing, 01'
elected, must be a white man professing the Christian re~
ligion and a free 01' naturalized subject of Great Britain,




BARBADOS. 1S1
having attained tite age of twenty-one. He must also
possess a ecrtain qualification in land. (8)


in this island there are an Attorney-General and a
Solicitor-Gcneral, The former receives a salary of ~QOO
eurreney per annum, paid by the island ; the latter acts
gratuitously, (9)


LAWS. (1)
The laws inforee here are, first, the eommon law of


EngIand; seeondly, sueh Aets of Parliament as were
passed before the settlement of the island, and are ap-
plieabIe to its condition.


The bankrupt and pOOl" laws, the laws of pollee, tithes,
and the Mortmain Aets havo been treated as not appli-
cable to the conc1ition of the eolony,and are therefore not
in force in it.-l Rep. "V. 1. C. p. 5.


Of acts passed subsequcntly to its settlement, sueh only
are considered to affect the eolony as have the island ex-
pressly named 01' virtually inc1uded in them; as is the
case where the laws are declared to extend besides Bar-
hados "to the "Vest Indies," 01' " to the colonies." And
all navigation aets, and acts of revenue and trade, and aets
respeeting shipping, are obligatory, though the eoIonies
are not named in them.-1 Rep, 'V. I. C. p. 5.


rlrrests and Underwriting.
Several acts, numbered 51,59, 68, 76, in Hall's Laws,


and 10 in Moore's Colleetion, have been passed, regulating
the manner of giving tickets out of the seeretary's office,
so as to enable parties to leave the island, Before the
passing of any of these aets, it had been the custom of the
island that all residente therein, exeept married women
and ehildren undel' fourteen, intending to depart thenee,
were obliged to put up their llames publicly in the sacre-
tary's offiee, and within a eertain time afterwards, 01' else
upon giving eertain seeurities, they obtained a ticket 01'
lieenee from the secretary, signed by the governor, as a
warrant to the master of the ship for their eonveyance-
the intention of this law being that persons indebted might


(8) Hall's Acts, No. 148, el. 1 ; 152,
el. 3,4, b, 6, 7,3.


(9) 1st Rep. W. 1. C. 59.
(1) See (ante, p.:3 to 16,) the re·


mark s on tlre general topic, how far the
colonies are subjecl lo the law 01' the'
mothercountry,




182 BARBADOS.
not go privately, but might before their departure be com-
pelled to answer all 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 them.


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 course of proceeding, the practice of the
island authorises arrests on mesne process, as in EngIand.
It does not appear on what law this practice was originally
founded ; but "by established llsage 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 freehold 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 answer 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 answer 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 ten acres of freehold land within this island,
under one 01' more such title 01' titles, and with such qualifi-
cations with respect to the length of possession 01' otherwise
as would entitle aman, according to the laws of this
island now in force, (4) to elect or be elected an assembly-
roan 01' vestryman, 01' to serve as a juror to try real
actions."


(2) See preamble of No. 59, Hall's
Acts, and 1st Rep, W. 1. C. 35, 160,


(3) 1st Rep. 34, 159, 160. That
is, no affidavit is made befare the ar-
rest, But if the arrest is for more thnn
is really due, the defendant's attor-
bey may give notice to the plaintilf's


attorney to attend hefore thc jodge
aud make o.uh of whut is really duc,
and bail is laken for thut sumo 1st
Rej). W. l. C.160.


(4) As to which qualification scc
Hail, 14B. el. 1; 1;')2, el. S, 4, 5, 6,
7, S.




BARBADOS. 183


COURTS.


The courts established for the administration of civil
justice in the Island of Barbados, are the Court 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 Court of Admiralty, and 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 mariners, as also a court to take cognizanee
of persons about to quit the island in debt, which court is
believed never to have sat, There are also what is caUed
warrant actions; these are dcscribed by the commissioners
as excrescences growing out of the authority given to a
single justiee to decide claims for service 01' for work and
labour by servants and labourers, and extending very
mischievously to those who exercise any manuallabour, as
shoemakers and tailors, as weU as to aU demands arising
from the sale of the produce of the island, and actions for
cattle under the amount of .f25.-Id. ib.


The courts for the administration of criminal justice are
the Court of Grand Sessions, held twice ayear; the
Court of Quarter Sessions, which the cornmissioners said
did not sit regularly when they were in the island j .and
the Admiralty Sessions, held pro re nata.-Id. ib.


Court of Cltancery.
Th« Court of Chancery is composed of the governor 01'


prcsident, with four 01' more members of thc counci1. The
Governor in Chancery, though often said to act as
chancellor, is only primus ínter pares. Neither the.
governor as chancellor, nor the president acting as
such in his absence, receives any fees. The governor
sitting as chancellor has no assessor nor professional
assistance of anykind. The decision is made by a ma-
jority of votes. The votes are taken singly, beginning
with the junior members of the council, and are given
publicly in open court.-l Rep. W. I. C. 19.


There are two Masters appointed by the governor, and
removable for misbehaviour, They are paid by commis-
sion ; they have fees on the sale of estates, 'I'he Court
of Chancery derives its authority from the King's commis-




B;\,.gHADOS.


sion, ami was rccogl'iZCI! as existing SOOIl aftcr tite settlc-
ment of ¡he coluny.-] Hep. \V. 1. C. p. 'W.


The judges oí:' this court are supposed to huve all the
autliority al' the Lord Chancellor in England, except in
cases wholly inapplicable to the colony. 'l'hey aSSUll1C
and exercise j urisdiction in cases of lunacy without any
special dclegation oí:' authority, but under the supposed
general jurisdiction belonging to a Court ol' Chancery.
A petition is presented in the first instance to the governor
only, he directs a hearing at the next court, The lunacy
when found, is, it is said, returned into the court, and in
this way they may possibly, but it is supposed mistakenly,
consider themselves as getting jurisdiction.-Id. ~O.


There are no instances of bills filcd for making infants
wards of court in this island, but it is supposed the court
would exercise the same jurisdictiou as the Court of Chan-
cery in England. There is no system of laws in this
island similar to the bankrupts' code in England ; but the
principle of the ccssio bouorum is ac1mowleilgell in the
establishment 01' a court 1'01' the relicf 01' insolvent debtors.
The remedy, of course, extends to persons who are not
traders.


The law of descents, as regards frcchold property, is
thc same in this CO]OllV as in EngIal1d.


The law governing the disü:ibution of personal Pl'O-
pcrty in cases of intestacy, in Barbados, is substantially
the sume as the Iaw reguIating the distribution of the
same species of praperty in similar cases in England.


'I'he practice of the Court uf Cliancery in Barbados
professes to conform to that of the Court of Chanccry in
England, exeept whcre it is ultered by local laws 01' spe-
cial orders of their own.-Id. 20.


The decree made on a bill of forcclosurc 01' a mortgage
is to this effect, that the money be paid into court within
a limitcd time, (usualIy a month.) and in dcfault uf pay-
ment a sale uf the estate is directed. But to prevent a
mischief, once vel'Y extensivo, of cstates being obtained
under these circumstances for prices wholly inadequute,
ihe property must be appraised, and eannot be sold 1'01'
less than the appraised value, without express leave from
the court. The appraisement is made upon oath. The
appraisers are freeholders and neighbours. They re-
ceive no fees. They are said in general to act conscien-
tiously, The master cannot receivc a bidding "undel' the




BAliBAD05. 185


appraisemcnt." A bidder could not he held to a bidding
below the appraisement, but the master, it is said, reports
such bidding to the court, and application is then made for
leave to sell for less than the appraised value, Upon this
application the court exercises a discretion, taking into
its consideration the circumstances of the estate, and the
questíon whether an immediate sale is desirable.-l Rep.
W. I. C. p.2!.


On a sale after an appraisement, there is a deposit,
which goes first to the payment of the costs of suit.


On behalf of a wife, for a sepárate maintenance, on
account of misconduct in the husband, the remedy in
Barbados is sought by petition to this court, Relief in
such case is never obtained by bill, but by petition,


There is no examiner in this island; the registrar acts
as examiner, Orders and decrees of the court are en-
forced as in England, by process of contempt and seques-
tration.-l Rep. W. l. C. p. 22 to 24.


An appeallies from a deeision in this eourt to His Ma-
jesty in Couneil, if the sum sought to be recovered amounts
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 aet,
No. 12:3, Hall's Act, 10th of May, 1720,) for treble (5)
the value of the property in dispute, and for aU costs and
damages occasioned by the appeaI. The appeal, it is also
said, in this island suspends all proeeedings, even in
the master's office, as the taking accounts, &c. but the
party who has obtained the decree 01' judgment appealcd
against, will 110t be prevcntetl from pursuing his advantage
to levy and sen, on giving security in double the sum to
make a return to the appellant if the deeree should be
revetsedj--cin otherwords, a provisional payment takes
place with security for rcstitution, The appellant also
gives security to prosecute the appeal within a year.-
1 Rep. ·W. l. C. p. Z6. .


The distinction of costs between party and party, and
attorney and c1ient, did not prevail in practice, and was
not familiar in name.-Id. 27.


(5) The word in (he report is ireble;
this seems lo be a mistake, A cupy uf
(he act now before me says doublr,


and towards the couclusion of this very
pa,·ag raph (he commissioners use the
word double,




186 BARBADOS.


Court 01 Exchequer.
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 wasestablished in 1680 by an order
of the governor and council. It was forrnerly considered as
possessing both an equity and a comrnon law jurisdiction.
There is now no equity side of the Exchequer, except on
the part of the crown; the commission is said to have
bccn altered about forty years ago. The common law
side remains, but the right to sue in it is explained and
limitad by the act (No. IS5, Hall's Laws).-l Rep. W. l.
C. p. SO.


This court is eomposed of the chief baron and four
puisne barons, of whom three may hear and determine;
and the judges are appointed by the governor, with the
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 the
judges in the Court of Chancery. They have no salary.
The chief baron, and in his absence, the senior baron,
receives certain fees j the same as the chief justice of the
Court of Common Pleas, Any deed affecting real pro-
perty requires to be registered, and 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 remembrancer and
marshal, both patent offices, performcd by deputy. They
are paid by fees of office; in case of misconduct in either
of them, the chief baron compIains to the governor¡ who
has the power of suspending them, and the conscquences
are the same as were befare mentioned in a like case in
the 'Court of Chaneery.-l Rep. W. l. C. p. SO.


The Court of Exchequer 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 between 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 collcction of rules 01' orders of
the court prescribing any peculiar modos of practice, so
that, where they differ from the practice of tbe courts in
England, the variation is not recorded. Proceedings on




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 priva te persons. A
defendant may be arrested for any sum exceeding eight
pounds whether claimed as a debt 01' damages, and the
latter may be unliquídated. For an alleged libel upon the
attomey-general, a defendant, who was afterwards acquit-
ted, was held to bail in 3000l. For a dernand under the
amount stated, (eight pounds.) a bench action lies. A bench
action is in the nature of a proceeding in the English courts
of conscience, and will be considered in the observations
upon the Court of Common PIeas. Those freeholders
who are qualified to vote at elections are exempted from
arrest by process of this court, If bail are objected to,
their sufficicncy is deterrnined by the chief baron. If a
defendant cannot procure bail he may lie in prison an in-
definite time; the plaintiff cannot be compelled to proceed
with the action, and the defendant does not become super-
sedable on account of the plaintiff''s neglect,


There are no récords of these courts on parchment,
but copies ofproceedings are made up upon paper, and
kept by the proper officer.


The execution issuing upon a judgment recovered in
this court is the same as in the Court of Common Pleas,
cxcept that executions out of this court are Ievied aH the
year round, as well in vacation as in term time.


The commissioners were not aware of any privilege the
crown enjoyed, 01' any peculiar means it possessed of
securing its dues, 01' enforcing payment of them in this
colony, The pl'ocess of the Court of Exchequer in
England, at the suit of the crown, is supposed not to be
executable in this island.-l Rep. "V. I. C. p. 31.


Actions in this court are said to be less dilatory, but
more expensive, than proceedings in the other courts.
Costs are taxed by the ehief baron himself agreeably to
a docket established by him under the authority of the
governor.


The attorney-general was of opinion, and no doubt
rightly, that a writ of error lies from a decisión in this
court to the Court of Appeal and Error in the island, the
same as from the Court of Common PIeas. He never
knew an appeal in revenue cases, but supposed therc might
be one. The chicf baron was not aware of any writ of
error, 01' appeal to the colonial court, but only of an appeal




188 BARBADOS.
to Bis Majesty in Couneil, (which is ulterior whcre thc
value is sufficient,) of which he remembercd one instance
arising on a penal statute, An appeal, it was again said,
but the commissioners thought, under some misappreheu-
sion, would stay aH proceedings.-l Rep. ·W. I. C. p. 32.


Court of Common Pleas.
There are five courts 01' Common Pleas in Barbados,


one being held in each 01' the five districts 01' the island,
They derive their authority from acts 01' the local legisla-
turc. They have the same jurisdiction as the Court 01'
Common Pleas in Englanu, except as to fines and recove-
ries, The judicial establishment consists of a chief judge
and four assistant judges in each court, These are ap-
pointed and removable in the same manner as the other
judges, and the tenure of their offices is the same, They
have no salary ; the chief judge (only) receives the custo-
mary fees 1'01' proving deeds, taking cxaminations 01'
married women touching the transfer 01' real property,
&c. &c. But the amount 01' all the fees 01' the judges of
the five courts is supposed not to exceecl 1200l. currency
per annum.-l Rep. 'V. l. C. p. 32.


The officers 01' this court are the prothonotary and
marshal, patent offices, performed by deputies, who gene-
rally farm them from the patentees 1'01' a term of year::;.
They receive fees for official serviccs, are under the con-
troul of the judges, and may be suspended 01' removed by
the governor 1'01' misbehaviour.


The sittings 01' the courts are regulated by the statutes
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
declaration in the office, and scrving a copy of it togcthcr
with a summons, upon the defendant personally, 01' at his
\al>t l)\ace 01 abodc, except in cases of arresto Arrests
are made by virtue 01' a process under the hand and seal
of the governor, addrcssed to the provost marshal, 01' his
lawful deputy, Appearance is made on the second court
day after service 01' the summons, The rules of practice
in these courts are said to vary a little from those of the
Court 01' Common Pleas in England.


A judgment may be obtained in general on an action in
this court within a twelvemonth.




BARBADOS. 189
The power of arrest is exercised in these courts, but it


does not appear whence it was derived. There is no law
of the island by which it is given. The only law upon the
subject is the one which gives the exemptions.-3 Rep.
'W. I.C. p. 34,.


Freeholders awning ten. acres of land, and capable of
electing, 01' being elected to serve in the House of
Assembly, are exempted from arrest, Not so women 01'
Jews, 01' frceholders whose deeds have not been proved.


A habeas corpus is obtainable upon application to any
chief judgc, by the common law, and is supposed to make
a part of the governor's instructions.


The chief justice of the precinct decides as to the
sufficiency of the bail, if the sum for which the defendant
is arrested exceeds :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 delay, If the act is complied with,
the object it had in view is clearly not effectuated, In a
case where the defendant cannot procure bail, and goes to


- prison, and the plaintiff does not proceed with his action,
the Crown lawyers are not agreed whether (even supposing
the plaintiff's bond to be forfeited, which, however, they
do not seem to consider it.) the defendant would be entitled
to his discharge.-l Rep. W. I. C. p. 35.


By the Iaw and practice of this island, an action must
be tried where the defendant lives.v-d Rep. W. l. C.
p.36. '


The pleadings used are intended to be exactly the sume
as in the Court of Common Pleas in England.


The pleadings are all entered in the Prothonotary's
Office upon one papel', and this serves for a record.


The jury indorse their verdict upon it, and it is signed
by the foreman. The »enire is not entered upon each
issue, because there is only one venire upon all jury
actions. The pleadings are not opened to the court by
counsel. There are no abstracts made for the judges,
The jury is addressed by the counsel upon aH the facts,
and all the Iaw of the case. Upon arguments on special
verdicts, and demurrers, &c. there 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, ami the debt accrues
in Englanu, is rendered surprisingly easy by 5 Geo. 2,
cap. 7. The merchant's books are produced, and the
accounts sworn to befare the Lord Mayor, (in London.)
usually by a clerk, sometimes, it is said, by the merchant
himself, the party in the cause. But the Attorney-General
observed, "we object to that (the latter) now, and the
court allows the objection." Yet the words of the act
are, " It shall and may be lawful for the plaintijf or defend-
ant, to verify and prove any matter by affidavit 01' affírm-
ation, and every affidavit certified under the city seal,
ami transmitted, shall be of the same force as if sworn
viva voce in open court."-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, and
the counsel on either side apply to the court to have a
special verdict, the judge is bound to grant, and the jury
to find it,


UnIess reasons in arrest of judgment are filed, (which
they frequently are mereIy for delay,) execution comes in
fourteen days after judgment is entered up.


Judgments in this island are not registered, but are
entered in the prothonotory's offiee, ami 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" 01'
operates upan gaods, lands, and body, all at once; sorne-
what resembling a statute staple formerIy 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 marshal
ought to take them in succession. And now a manuscript
aet direets, that he shall not keep the body, if lands and
goods are pointed out to hirn.e-e l Rep. 38.


The counseI in this island reeeive their fees (out of
court) from the client himseIf, and not through the medium
of the attorney, and it is said can recover them by action,
This was the case when the characters of barrister and
attorney were blended, but the doctrine wouId seem to be
doubtful at present.-l Rep. 40.


Writs of error are not often resorted to in Barbados
for purpases of delay, being too expensive.


If a new trial is granted, it is always upon the terms of




BARBADOS. 191
first paying all the previous costs. "Vhere the rule is
silent as to costs, the construction is the same as in the
Court of Common Pleas in England, not as in the Court
of King's Bench. (6) '"


Bench Actions.
Actions brought for the recovery of a debt not exceed-


ing eight pounds, are denominated bench actions, being
decided without the intervention of a jury. They are
tried by any one of the judges of the Court of Common
Pleas, on one of the court days after the jury actions are
finished.-l Rep. W. l. C. p. 4Z.


Court c!/ Ordinary.
The Court of Ordinary derives its authority by com-


mission from the crown. The governor 01' president heing
commander-ín-chief of the island, is sole judge. He sits
clone, 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 hís 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 please.


AH wills are preved, but the probate is conclusive only
as to personalty. There are no restrictions on the power


_ of disposing of property by wiU in this ísland. The
solemnities requisite to the validity of a wiU are nearly
the samc as in England, but the Barbadian statute of
frauds requires only ttoo witnesses to a will of lands, and
even this rule is accompanied with a proviso, that " the
act shall not be construed to extendto any will, written
throughout in the handwriting of the testator."


The court sits at the government house as often as
occasion requires. It is doubted whether an appeal Jies
from this court to the King in Council, 01' to His Majesty,
as head of the Church. But in either case the appeal
from this court is direct and immcdiate. There 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 Praetiec, 9th edito 916.




192 BARBADOS.


Court 01 Admiralty.
The Court of AdmiraIty consists of two courts, a Prize


and an Instance Court, both held by commission issuing
from the High Court of Admiralty in England. Both
possess the same jurisdiction as is exercised by the cor-
responding courts in England, as nearly as circumstances
will permito The prize court is held only in time of war.
The cases in the instance court consist of claims on seizures
by eustom-house, seamens' wages, bottomry 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, and the marshal, In time of war
the judge receives a salary. The judge, in peace, is paid
by fees. The King's advocate has no salary, and receives
no fees for a prosecution at the Admiralty Sessions, The
registrar and marshal are patent officers paid by fees.
There is a great deal of business in the Prize Court in
the time of war, The receipt of fees has sometimes
exceeded the judge's salary (which is 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 from 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 for the trial of murder, piracy, and other offences
committed on the high seas. This court is composed of
the Judge of the Admira1ty who presides, the members
of the council, and aH flag officers and captains on the
station. The attorney-generaI and Kíng's advocate are
employed. In this court no fees are taken. The sessions
are held as occasion requires.-Id. 44.


Court qf Appea1 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 members of it, but it is
provided by the governor's instructions that they shall
not vote in any case brought from the court where they
have acted as judges. The governor and council decide




BARBADOS. 193
by ~ majority. A writ of error to operate as a stay of
execution, must be brought within fourteen days after
judgment. It only líes where the principal sum in dispute
amounts to SOOI. 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 of 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 commission of oyer and terminer and general
gaol delivery is issued by the governor, for the trial of aH
capital crimes and misdemeanors, in which aH those gen-
tlemen of the island who are in the commission of the
peace are included. The person who presides is generally
a member of the Council, 01' one of the chief judges, the
chief justice, 01' chief baron. The court is held twice a
year, in June and December, and the commission is limited
to four days,


AH offences committed by free persons, whether
coloured 01' otherwise, are tried at this court. This court
professes in its decisions and practicc to foHow the laws
and rules of the criminal courts in England. The preli-
minary proceedings which take place before the trial of
persons accused of 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
all cases,-misdemeanors as well as felonies.-l Rep.
W. l. C. p. 45.


AH offences committed by freemen are bailable, exeept
murder,


o




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 before 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. I. C. p. 46, 47.


194 BARBADOS.


Court of Quarter Sessions.
A Court of Quarter Sessions is by law established in


every parish, amounting to eleven in the island. Two
justices form a court; the senior taking the chair. This
court, though empowered by a local act to hear and de-
termine offences of petty larceny and misdemeanors, sup-
poses and acts upon the opinion, that it cannot summon
a jury. This court, transacting no business, is not attended
by any professional pel'sons whatever.-l Rep. W. I. C,
p. 47, 48.


Barristers and Attornies.
It is now required (prospectively) that gentlemen ad-


mitted to practise as counsel in these courts, shall preví-
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 usualIy done by the attorney
and solicitor-general. They then receive a commission
from the governor. They are admitted and take the oath
in every court in which they intend to practise. They do
not pay any fee, and are not restricted to any particular
number of clerks.-l Rep. W. I. C. p. 59, 60.




BARBADOS. 195


Debtors Absent, or Absconding,
An aet to enable creditors to recover their just debts


out of the effects of their absent or absconding debtors.
-Hall's Laws, No. 202, 17th March, 1753.


By this act it is provided that if any person being in-
debted, either absconds or departs, leaving behind him
or her any outstanding debts, goods, or 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, or 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.
or action, and show cause why the money, &c. should not
be condemned to the use of the plaintiff or he may plead
that he has no money, &c. in his hands, 01' any other
special matter. AmI that the plaintiff shall not have exe-
cution till he puts 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 prove that he owed nothing, 01' not so much, the
money or goods, or their value, shall be forthcorning. For
other regulations on the subject the reader is referred to
the act itself. The following remarks on this subject are
made by the commissioners appointed to inquire into the
civil and criminal administration of justice in the 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 cornplained that
they were found expensive, The eosts in ordinary cases
are ascertained to be about 28l. ]Os. By these means a
creditor may attach effects belonging to a defendant, who
has himself eseaped, in whatever hands they are found.
No affidavit of the debt is required by the act, A ere-
ditor not having judgment must enter an action against


02




196 BARBADOS. \,
such absent 01' absconding debtor, and serve it on the
person in whose hands 01' power any effects are discovered
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 for restitution in case the
absent debtor shall appear within ayear. The garnishee
pleading that he has nothing in his hands of the plaintiff
to be attached, may be put to swear to the truth of his
plea, but then his oath will be conclusive of the fact.
The garnishee making default is without relief either in
law 01' equity. (8)


Aliens and Foreigners.
" An Act to prohibit masters of ships and other vessels


from landing aliens 01' foreigners in this island, without a
license for so doing from the Governor 01' commander-in
chief of this island, for the time being."-Hall, 134, passed
~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 Svo., both incomplete, and the former in a
remarkable degree inaccurate and defective, They were
published, however, under authority of the legislature, by
whom they are made evidence, (9) Hall's Collection con-
tains the acts from 164·3 to 17()~; that of Moore, the acts
from 11th May, 1762, to 8th April, 1800. The later acts
of the island remain 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 the parish churches.
Persons desirous of consulting them can only do so by
applying at the Secretary's Office, 01' to the Clerk of the
Vestry, Afee is paid by persons requiring a transcript.(l)


(8) 1 Rep. W. I. C. 42.
(9) Hall, No. 30; Moore, No. 67.


There had hefóre been printed edi-
tions of the Lnws by Hawlin, by


Zourh, and hv Salman. See Prefaec
lo Hall's C(jll~rtion.


(1) Rcp, W.1. 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, and twelve
miles in its greatest breadth, and contains about 80,000
acres of land. It is divided into six parishes, St. George,
St. David, St. Andrew, St. Patrick, Sto Mark, and Sto
John. The capital town is that of St, George, a name
conferred by an ordinance of Governor Melvill, made
soon after the 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 aH the several towns and
parishes, and the French names were forbidden to be
thereafter used in any public acts, (2)


There are several smaller islands in the vicinity of
Grenada, known by the general name of the Grenadines,
and supposed to be about 120 in number. But few of
these, however, are now comprised in the Grenada govern-
mento By an arrangement which took place after the
peace of 1783, a line of division was drawn from east to
west between Cariacou and Union Island. The former of
these, and sorne smaller islands to the south of it, belong to
the Grenada govcrnment, while Union Island, and those
to the north, were annexed to the government of Sto Vin-
cent, (3) Both these governments are now subordinate
to that of Barbados (see ante, 123.) Cariacou, which was
the chief dependency of Grenada, forms a seventh parish
in addition to the six already enumerated. (4)


(1) Brookes's Gazetteer,
(2) 1 B. Edwards, 383,385.
(3) Ib.381. Mr. Edwards does not


notice the authority under which this
division took place,but it was probably


that of a proclamation dated the 10lh of
January, 1784, which is referred to in
an act of the Grenada Assernbly of
the 9th of March, 1734.


(4) Ibid.384.




198 GRENADA.


HISTORY AND CONSTITUTION.


\
\


Grenada was discovered by, and received íts name from
Christopher Columbus in 1498. It was then in the posses-
sion of the Charaibes, and these were left undisturbed by
the Spaniards, who do not appear ever to have attempted
to form a settlement,


In 1650, Du Parquet, a Frenchman, invaded the island,
established a colony there, and exterminated the whole
race of its native possessors. The rights of the individual
who thus effected the conquest, were sold to another per-
son, by whom they were conveyed to the French West
India Company, whose charter being abolished in 1674,
the island from thenceforth became vested in the crown of
France.


In February, 176~, Grenada surrendered 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
agreed that Grenada should continue to be governed by
its then present laws until His Majesty's further pleasure
was known. ~. As they would become hy 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 isJand were at liberty to do so, and
eighteen months were allowed them to dispose of their
effects. (5)


By royal proclamation, 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 París,
four distinct governments, one of which was to be " the


(5) 1 B. Edw, 353 to 360; aud 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 our Council,
summon and call General Assemblies within the said go-
vernments respectively in such manner and form as is used
and directed in those colonies and provinces of America
which are under our immediate government," and had also
" given power to the said Governors with consent of the
Councils and representatives of the people so to be sum-
moned, to make constitutions and ordain laws, statutes,
and ordinances for the public peace, welfare, and good
government of our said colonics, and of the people and in-
habitants thereof, as near as may be agreeable to the laws
of England, and undel' such regulations and restrictions
as are used in other colonies ," and had also " given power
un del' our great seal to the Governors of our said colo-
nies respectively, to erect and constitute, with advice of
our said Councils respectively, courts of judicature and
public justice within our said colonies, for the hearing and
determining all causes, as well criminal as civil, according
to law and equity, and as near as may be agreeable to the
laws of England, &c." (6)


By another proclamation, bearing date 26 March, 1764,
His Majesty recites that he had directed a SUrveyand divi-
sion of the ceded islands, and 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 Grenadines, Domi-
nica, St, Vincent, and Tobago, with power to summon, by
advice and consent of his Council, General Assemblies in
those islands as soon as the situation of the islands would
admito And the Governor, by advice and consent of the
Council and Assembly, were to make laws which were "not


(6) This proclamntlon is prefixed
lo Smith's Laws of Grenada,


(7) Cúmpbtll v, Hall, Cowp, 204.


This proclarnation will be found more
al large in Lofft's Reports, p. 661.




QOO GRENADA.


1


to be repugnant, but as near as might be agreeable to the
laws and statutes of the kingdom of Great Britain." (8)


Under these letters-patent an Assembly was first con-
vened in Grenada in 1765; (9) the legislative authority,
prior to that period, having been exercised by General
Melvill and his Council. (1)


As the question of the right of the Crown to impose
by'proclamation the four and a half per cent. duty after the
grant of a legislative Assembly had passed the great seal
was discussed 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 Iet-
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 aHcustoms 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 c1aim, it was urged that Grenada being a conquered
country, the King was invested with the power of putting
the inhabitants under what form of government he thought
best; that he might have granted them what terms of
capitulation, and concluded what articles of peace with
them he saw fit, and that the assurance to the inhabitants
of Grenada in the articles ofcapitulation granted, that thcy
should enjoy their properties and privileges in líke man-
ner as other of His Majesty's subjects in the British Lee-
ward Islands, necessarily implied that they were bound to
submit to the same consequences of their being subjects
as were submitted to by the inhabitants of those islands,


(8) Preamble lo Colonial Act uf
23d oí April, 1792, intiluleei, "AIl
Act for Itegulating Elections.' And
see Campbell v, Hall, Cowp, 207,
and Lofft's Rep, 662, w here these
leuers-patent are more fully givell.


(9) 1 Edwards' Hist, 361; Cuwp,


207.
(1) Smith's Prefacc lo Laws oí


Grenada.
(2) See the Reporl of this case,


Campbel! v, Hall, Cowp. 204, aud the
special vcrdict thercin, Loíft's Hep.
657.




GRENADA. 201
one of which was the payment of the duty in question.
On the other side it was contended that the letters-pa-
tent were void on two points. First, that even had they
been granted before the proclamation of the 7th of Octo-
ber, 1763, yet the King could not exercise such a legisla-
tive power over a conquered country. The second point
was, that even if the King had sufficient power before the
7th of October, 1763, to do such a legislative act, he had
divested himself of it by the two -proclamations, and the
commission to 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 all who were or
should become inhabitants, 01' who had, 01' should acquire
property in the Island of Grenada, or more generally, 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 c1aim; and the duty was thus
abolished not only in Grenada, but also in the 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 St, 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 St.
Christopher's had no authority, by virtue of the plantation


(3) Campbell y. Hall, Cowp, 213.




GRENADA.


aet made there for the four and a halfper cent. on goods,
to levy the same on goods exported from that part of Sto
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;" but he added,
" her Majesty may, if she shall be so pleased, under the
great seal of England, direct and command that the like
duty be levied on goods exported from the conquered part,
and that command will be a law there, her Majesty by her
prerogative being enabled to make laws that will bind
places obtained by conquest, and all that shall inhabit
therein." (4) The prerogative of the King, before the date
ofthe proclamation of October, was cIear j but by that pro-
clamation, followed up by his commission to Governor
Melvill, he divested himself of the right to exercise it. To
return to the subject of the transactions in the colony,


By one of the ordinances of Governor Melvill and his
Council, bearing date 9th of March, 1765, and made ap-
parently before the legislative power of the assembly had
come into operation, Courts of Common Pleas and of Error
were established in this island. The earliest act in Mr.
Smith's collection is under date ~9th 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 dissatislied with the first
Assembly, the Governor having hastily dissolved them
at the close of the year 1767, while the Privy Council
disallowed five 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 procIamation
issued, reciting a variety of regulations for the purpose of
electing and calling together the Assembly of Grenada.
In pursuance of this proclamation the legislature was as-
sembled early in 1769;" 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


: I


\


(4) 1 Chal. Op. 141, and on the
subject of the 4! per cent. duties, see
ante 50, 51, n.


(5) Smith's First Table, prefixed
to the Laws of Greuada,


(6) Smith'sPreface, xi, First Table,
xvi,




GRENADA. 203
amending the former act for establishing Courts of Com-
mon Pleas, &c.


On the fourth of July, 1779, Grenada was captured by
the arms of France, but was restored (with the Grena-
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
"Grenada and the Grenadines lying to the southward of
the Island of Cariacou, including that island," (9) which
has, until very lately, continued to be the style of the Gre-
nada government.


On the 16th of March, 1784, an act passed the Gre-
nada legislature intituled "An Act for removing doubts
with 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 Iaws which were in force at the time of
the capture by the French in 1779, " were absolutely an-
nihíIated or 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 all such
parts of the common law of England, and all and every
such parts of the statutes or acts of parliament as were in
force and binding in Grenada and the Grenadines, whilst
the same were heretofore a part of the British dominions,
are hereby declared, and the same shall be in all courts
and other places held and allowed, tú be equally in force
and binding within the islands of this government, and so
to have been ever since the restoration of Grenada to the
crown of Great Britain as aforesaid.' And with respect
to the colonial acts passed while the island was formerly
under the King's dominion, it revives and declares in force
certain of those acts therein enumerated; enacts by
another clause, that certain others shall be in force only till
further regulations made, and provides that "all other
acts at any time heretofore passed in Grenada, and not
mentioned in eitber of the two preceding clauses, shall be
deemed expired.'


(7) Preamble to Grenada Act,
16th of March, 1784; 1 B. Edw,
376 lo 380.


(8) Smith's Preface, ix,


(9) Grenada Acr, 20th uf Febru-
ary, 1784 ; Srnith's First Table, xxiii.
and see Grenada Act, 9th of March,
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-estabIishing a
Court of Common PIeas and a Court ofComplaints, &c.";
an act of '1th of October, 1800, intituIed " 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
Pleasheretofore estabIished in this isIand;" and an act
of 26th of January, 1801, intituIed "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 number 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" aH the jurisdictions civil and 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 recovery, 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. eurrency per annum,
which is raised by a poll-tax on aHsalaries, 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. I. C. 102. With


respeet to the Court Di Chancery in
this island, it derives its authority
from the proclamation of 1763, and
the Governor's commíssíon.c-ust Rcp .
100.


I




GRENADA. 9105


Ordinances.


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, or life estate of
fifty acres, is a qualification to sit as a representative
for the parishes, and a freehold, or life estate in 50l. house
rent in St, George, qualifies a representative for the town.
An estate of ten acres in fee or for life, 01' a rent of lOl.
in any of the out towns, gives a vote for the representa-
tives of each parish respectively, anel a rent of 20l. per
annum issuing out of any freehold 01' life estate in the town
of St. George, gives a vote for a representativa for the
town. (4)


Eight ordinances for the govemment of this island are
stated to have be en issued by General Melville (the first
English governor) and the General Council, between the
28th of July, 1765, and the 12th of April, 1766; of which
three related to the government of slaves; three to the
establishment of courts of justice (on the English modelj ;
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 colIection of the laws of Grenada from the
year 1763 to the year lS05, edited by MI'. George Smith,
formerly Chief Justice, and an act of March 15th, 1809,
" making the printed collection of the laws of Grenada,
lately published by the chief justice of this colony, legal
evidence in aH courts within these islands," There are
also two supplements of laws, collected and printed at
subsequent times, coming down to the 4th of March,
1819, and in 1825 there were about twenty aets remaining
in manuscript.-lst Rep. 'V. I. C. p. 93.


By an Act of Assembly of 16th September, 1807, after
reciting that some of the acts of these islands being written
upon papel' had been worn out and obliterated, and others
had lost the gl'eat seal of the eolany, by whieh they were
authcntieatcd, by reason whereof their validity might be-
-----~~--------------


(4) 1 B. Edw. 388.




206 GRENADA.


t fI


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 and 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 proclarnations 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 for inquiry into the administration
of justice in the West Indies, 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 colony, but none passed since; unless
the colony is in sorne manner designated. (6)


We have aIready had occasion to notice the proclama-
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 ofAssembly, in pursuance of these authorities, and
it has been shown that tbe Colonial Act of 16th March,
1784, declares that al! such parts of the common law of
England, and all such parts of the statutes and Acts of
Parliament as were in force in Grenada and the Grena-
dines before the capture by France, in 1779, were equally
in force since their restoration. The conclusion from
these documents seems to be, that both the common and
statute law of England, as they existed in 1763, so far as in
their nature applicable to the colony, and so far as not


([,) See the rernarks (ante, p. 3
to 16) on the general topic, how far


the colouies are subject lo the laws of
the mother country.


(6) 1 Rep. W. l. C. 12'1.




GRENADA. ~07
altered by the Colonial Acts revived by the act of 1784,
or by those passed since, are now binding in Grenada,


" Although there is no law in Grenada," says Mr. Ed-
wards, "declaring an adoption of the laws of England,
yet it has always been the practice of the courts to consi-
der both the common and statute law of England to
extend to Grenada in all applicable cases not otherwise
provided for by particular laws of the island. So in like
manner the practice of the courts in Westminster Hall,
and authentic reports of adjudged cases there, are re-
sorted to when precedents and authorities 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 Court of Judicature, the Court of Ordinary, an
Instance Court 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 Supreme Court, in its character of
a Court of King's Bench and Grand Sessions; the Ad-
miralty Sessions, and the Slave Court. There is no
Escheat Court in this island, but, in cases oí escheat, a
commissionisissued as in England.-l Rep. W.I. C. p.lOO.


Court of Cñaneeri],
The Court of Chancery in this island derives its autho-


rity frorn the King's proclamation in 1763, and the gover-
nor's commission, The Governor sits alone as Chancellor,
with authority similar to that of the sole Chancellors in
the other islands. The laws and rules are the same as in
England, excepting sorne alterations rnade by a Colonial
Act, No. ~9, and a few rules, laid down at different
times by the Court itself for 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-
ceiver,


A receiver of an estate gives security in double the
amount of one year's crop. This account ought to be
passed yearly befare the master, and his salary paid only
on accounting.


Monies paid into court are sometimes remitted to Eng-
land and pIaced in thc funds, sornetimes 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.


Injunctions are known to be granted in two cases-to
stay proceedings at Iaw, and to restrain the shipment of
produce. An appeal lies from all orders of this court,
interlocutory and final, to His Majesty in CounciI, for
matters of thc value of .1:500 and upwards, and a recogni-
zance is entered into by the appellant and two sureties in
.1:500. The respondent givcs a security fixed by the
master, and then is allowed to takc thc 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.


The Supreme Court,


In this court are united (by an Act of thc Island, No.
87,) the authority ofthe Court ofKing's Bench and Grand
Sessions (formerly established by an act, No. SO.) and the
jurisdiction of the Court of Common Pleas, and Court of
Complaint, (revived by an act, No. 62.) The Supreme
Court of Judicature, by virtue of this consolidating act, is
composed of a chief justice (appointed from England) and
four assistant judges, is held six times in the year, and is
said to have aH the jurisdiction of the Courts of King's
Bench, Common PIeas, and Exchequer in England. It
does not, however, exercise the equitabIe jurisdiction of
the Court of Exchequer in England; and fines cannot be
levied 01' recoveries suffered under its jurisdiction as a
Court of Common PIeas; but a deed, acknowledged be-
fare a judge of the Court of Common PIeas in EngIand 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 of 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 various
times. Clause 3 of lhe 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 amount to ,-f1O, except in case of transient
persons, and there must be an affidavit of the debt.
Arrests are allowed in other cases upon a special order
from a judge. When a party is about to leave the island
the chief justice has allowed him to be arrested for un-
liquidated damages. In uncertain demands the judges in
court or at chambers, are empowered to moderate and
settle for what sum bail shall be demanded, There are
no exemptions from arresto By clause 14 of No. 62, the
plaintiff is compelled to proeeed with his action in six
days, or costs may be given for want of prosecution. The
attaehment of debts is frequently resorted too The ex-
pense is abont .:f:2I. 4s. 3d. Depositions are used on
trials, as in the other islands, and without affidavit tha t
the witness is still absent or unable to attend.


Juries,
The names of the jurors returned by the marshal are


written on tiekets and put into a hat, and then a sufficient
number drawn out to compose two juries of twelve each.
Speeial juries are known in practiee here.


Executions.
Executions are taken out,lodged, and suspended. By


clause 66 of the Court Act, they bind from the time they
are lodged in the marshal's office, and he is bound to
minute the precise time of their delivery.


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


(8) Bnl judgment obtaincd on procesa served in that manner cunnnt ee
enforced in England, see ante, p. 9".


p




210 GRENADi\.
Injunctions are frequent to stay executions, more so


than to stay proceedings.


Fees.c-Costs.
There is atable of fees of the officers of the 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, lOS.


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 been reduced to .::e1O, did not exceed .::eSO. The
court is held before a single judge of the Supreme Court.
These trials do not occupy more than one day, and are
very speedily decided. Counsel or solicitors are seldom
employed. The plaintiff and defendant in such cases
plead in person, and may both be put upon oath.-l Rep.
W. l. C.104.


Court olOrdinary.
The Governor, by virtue ofhis commission,is sole judge


in the Court of Ordinary, which is held at the court-house
whenever there is occasion. He has no assessor. Mar-
riages take place by banns in this island, as well as by
license from the Governor, There are no means of ob-
taining a divorce in this island, nor any by which a wife
may obtain a separate maintenance.


The practice is to 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 them.
An appeal is said to lie to His Majesty in Council.-


1 Rep. W. I. C. 104.


, Court of Admiralt!J.
This court, in the opinion of the Attorney-General,


.'" derives its authority from the Act 7 & 8 Wm. 3, c. ~?Z.




GRENADA. 211
The subjects of its jurisdiction are matters of revenue."
It doubtless existed before the 7th & 8th Wm, 3, but
that act enlarged its powers. The jurisdiction is exercised
only in the Instance Court. There is no Prize Court.
The judge is appointed by the Governor as Vice-Admiral.
In its deoisions and practice the court follows partly the law
and practice of the Court of Exchequer, and partly 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.-1 Rep.
W.I. e.roe


Court ofAppeal and Error.
This court was established (under N os. 27 and 88


Smith's Laws,) for writs of error from the superior court,
and from that court only, The judges are the governor
and three members of the council, who have not sat as
judges in the court below. The aet provides for 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, giving security (according to No. 27, clauses 18 & 19)
and the governor's instructions.-1 Rep. "V. l. C. 104.


Criminal Jurisdiction of the Supremo Court,
This branch of the Supreme Court is held under the


acts (Nos. SO and 87 Smith's Laws.) Whenever the
Attorney-General sees occasion, he applies for a court,
and that a grand jury may be summoned. The act pro-
vides that no writ for a grand jury shall issue of course,
but only by direction of the court, In such case the mar-
shal is commanded to summon thirty persons of the best
note, freeholders and inhabitants, to serve as grand-jurors,
and forty-eight persons to serve as petit jurors. Their
attendance is secured by fines of 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.


proceedings before trial, as to the warrant, apprehension,
examination, and commitment of prisoners, are precisely
the same as in England. Recognizances and depositions
are returned by the magistrates to the Crown office, and
by the Clerk of the Crown to the Attorney-General, 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 indictrnent 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 instance of a private person, as
in England.


This court follows the laws and rules of the criminal
courts in England, and a few prescribed by acts of the
colony. The Attorney-General considers the common
law, as to crimes, and all the criminal laws passed in
England before the charter of the island to have effect
here.


The names of witnesses are indorsed on the bill by
the Attorney-General, out of court, before it goes to the
grand jury, but the witnesses cannot be objected to before
the trial, nor until a bill is found. Counsel are allowed
to address the jury on behalf of prisoners in this court, ex-
pressly by an act of this island, and the Attorney-General
considers that, in the colonies, where the judges are not
lawyers, such an act is particularly p¡'Opel".


The 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 made up as a record, except when
necessarv,


Pl"Osecutors and witnesses are 110t allowed their ex-
penses and costs.-l Rep. ,Y. l. C. 104, 10.5.


Judges,
AH the judges hold thcir offices during pleasure, The


chief justice of the Supremo Court is appointed from Eng-
land, by mandamus frorn Bis Majesty. He has a salary
of .BZ500 currency, established by an act of the colony,
and also fees, which according to a docket in the possession
of the secretary, are said tu be about .B700 per annum.




GRENADA. 213
The assistant-judges have no salary, and from curtesy


{lo not 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
appoinled by the governor and council.


Attorney-General.
The Attorney-General in this island has no salary. He


has an account with the legislature for fees for public
business.


Barristers and Attornies.
By a rule of court recentIy remodelled, a person keep-


lng tuieloe terms at horne, 01', six at home and attending
during the sittings here two years (making twelve courts),
.may practise as counsel and attorney, the two characters
being blended in this island.


No Court of Quarter Sessions is held in this island for
the trial of petty offences.-l Rep. 'V. I. C. 110.




( 214


STo VINCENT.


-


Sto Fincent 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 negrees." (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 St. 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 St.
Vincent was ever settled or occupied under this commis-
sion. It seems to have remained in the exclusive posses-
sion of the Charaibes, its original owners.


(1) Brookes's Gazetteer,
(2) lntroductiun to Shephcrd's


Practice.
(3) 1 Edwards, 4'26, ,127.
(4) Ibid, 428.
(f1) Ibid,429.


(6) 1 Edwards (citingCampbell,)
410.


(7) lbid, 407. See this patent
more fully noticerl under the tito
u Barbados."


(8) lbid. 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 fruitless attempt to take
possession of this island 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 proved ultimately victorious, and
nearly exterminated their opponents. (2)


The French had constantly opposed the attempts that
had been 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-
síons, and St. Vincent, Dominica, St. Lucia and Tobago,
were declared neutral. (3)


But afterwards, by the treaty of Paris, signed the 1Dth
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. 1'0 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) Ibid.420.
(3) lbid. 407, 408.


(4) This article of the lrealy wi!l
be found in Lofft's Reporta, 1560.


(5) 1 Edwards, 409.




216 STo VIr;CENT.
prínted eollection bearing date on the 11th of JuIy in that
year. -


This aet makes mention of a Court of Common PIeas
as then existing in this island; and the next act, which is
under the same date, makes mention of Courts of General
Sessions with criminal jurisdietion.


The British government proeeeded, after the aequisi-
tion of this eolony in 1763, to grant and sell large portions
of its territory, but the commissioners for that purpose
were directed not to dispose till further instruetions should
be given, of any sueh lands as were inhabited 01' claimed
by the Charaibes, and ufter some eontest with these pe 0-
ple, a treaty was eoncluded with them on the ~7th of Fe-
bruary, 1773, by which they aeknowledged Bis Majesty
to be rightful sovereign of the island, and submitted them-
selves to his laws as far as regarded aU their transactions
with his subjects. And on the other hand, they reeeived a
portien of land for their residence, and permission to be
governed in their own quarters and in their intercourse
with eaeh other, by their own customs. (6)


()n the 19th June, ] 779, St. Vincent was captured by a
French force, but was restored to the dominion of Great
Britain by the pacification of 1783. (7)


In this year, 01' the commencement of 1784,Edward
Lincoln, Esq. was by His Majesty's commission, un del' the
great seal, appointed "governor in chief over the islands
of Sto Vincent, Bequia, and such of the isIands called the
Grenadines, as lie to the northward of Carriacou in
America;" and this continued up to a reeent period to be
the extent and style of the S1. Vincent government. The
commission will now of course be different, as a lieutenant-
govel'l1or only will be appointed, the governor of Barba-
dos being the governor in chief of that island, and of
Grenada, Sto Vincent, and Tobago. (See ante, 1~3.)


At least as early as 1784, the legislative authority of St.
Víncent was again exercised (as before the French con-
quest) by the governor and council, and a representative
assembly, and on the ~Zd of June in that year, an aet was
passed, whereby, after reciting the aboye commission, and
that sueh of the Grenadines as lie to the northward of


(6) 1 Edward-, Hl, '12Z. 4N ,.13. (7) Ibid. 4Z.5.




STo V)~CENT. 217


Carriacou, were now included and made part of the Sto
Vincent govcrmnent, it is enacted that "every law, act,
statute, and ordinance now in force in this island, shall,
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 lie to the northward of
Carriacou in America, such of them and so far as they
.are 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 Island of St, Vincent and the Island of Bequia,
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 othcrs. (8)


On the 7th of Julv, 1786, an act of assembly passed
" for regulating the proceedings at elections, describing
who shall be deemcd freeholders capable of electing and
being elected representatives, and for erecting into a
parish the lands between the rivers Jambou and Byera,
and to enable the inhabitants thereof, and of the other
islands of Bequia, and such other of the Grenadines 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 settlers 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
.bya Britísh force, and tranquillity restored, The Cha-
raibes, however, were not allowed by ourgovernment 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 for
establishing a Court of Grand Sessions of the Peace, &c.


(8) See printed laws, vol. '2, p.
41,80. 186. The Courl of Chancery
iu this islaud derives its authority from
the I'roclamation of 1763, and the go·


vernor's commission and instructious.
2d Rep. W. 1. C. 10.


(9) 4 Edwards, 4, H.




and several aets have been 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 justice," says MI'. Edwards, "St. Vincent's
seems 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 remainder is
by grant of the Assembly," (~)


The ehief justice is appointed from England, reeeives
His Majesty'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 his own
residenee in the colony. A colonial salary of f:~OOO eur-
reney per annum is settled on the present ehief justice, 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)


'I'he 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, whieh 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)


218 STo VINCENT.


.~¡
;


I


Barristers and Attornies,
" It is usual in this island for the same persons to aet as


(1) Prinled Laws, vol. 2, p. 76,
115.


(2) 1 Edw. 428. Tbe staternent
of the number of members composing
the House of A..embly in Sto Vin-
cent's seerns to be a mistake, By the
EJcction Act uf 1786, the uumber is


lixed at nineteen, whereof eleven are a
qlJorum. And nineteen is the numo
ber mentloned in the Introduction lo
Shepherd 's Practice.


(3) 2 Rcp, W. l. C. 21,50.
(4) lhid. 21,51.
(5) lbid.22.




STo VINCENT. 219
counsel, attorney, solicitor, and proctor, It is not required
that they should have been called to the bar in England.'
In the Court of King's Bench and Common Pleas the rule
is that no person is to be admitted unless he has ben en-
tered in one of the Inns of Court in England or Ireland,
and shall produce a certificate of having kept twelve
terms. But this rule has been occasionally dispensed with.
On production of a certificate that the applicant is an
English barrister, the oaths are administered to him as of
course, (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 AssembIy was first
established.


GENERAL LAW OF THE COLONY. (8)
The laws in force in this island are stated to be, besides


their own Acts of Assembly, so much of the laws of Eng-
land, adapted to the circumstances of the colony, as
existed prior to the proclamation of 7th October, 1763;
and such Acts of Parliament passed since, as were ex-
pressly declared, or manifestly intended to apply to this
island, as to the colonies in general. (9)


COURTS.


The courts established in this island for the administra-
tion of civil justice, are the Court of Chancery, the Court
of King's Bench and Common PIeas, and, as a branch of
the superior court the Court of Complaints, the Court of
Ordinary, the Court of Vice-Admiralty, and the Court of
Error. There is no Court of Exchequer in this island.
" A vel'Y few words by way of amendment," said the chief
justice, "might be sufficient to give to the Court of King's
.Bench and Common PIeas all the necessary powers of a
Court of Exchequer.'


(6) 2 W. I. C. 54.
(7) Ibid, 5, 10.
(8) See the rernarks, 1" 3 to 16,


on the general topie how far the co-


fonjes are subjeet to the law ofthe mo-
ther eOllntry.


(9) 1 Rej!. W. I. C. 5. And see,
uuder title "G,'enada," [he remarks
un the geuerallaw of that colony.




STo VINCENT.


Court o/ Cltancery.
This court derives its authority from the proclamation


af 1i63, and the governor's commission ando instructions.
The governor is sole chancellor.
The court has three masters (ami examiners) appointed


by the chancellor. The Colonial Secretaryacts as Regis-
trar, and the Provost ~larshal as Serjeant-at-Arrns.


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.


According to a book of practice, published by MI'.
Shepherd,of the colonial bar, and recognized as authority
in the colony, a defendant is entitled to three orders for
time, the first for six weeks, the second for four, and the
third for two weeks, if he is resident within the jurisdic-
tion. If he resides in the other colonies, he may have
one order only for three months. Ifhe resides in Europe,
the time is extended to six months, with liberty to add
three more on motion, and on consenting to sequestration
if an answer is not put in within the time.


A receiver is appointed by the court, and gives security
in a recognizance before the master, in a sum specified by
the court.


Costs are taxed by the master, according to the usual
form in England.


An appeallies from this court to His Majesty in Coun-
cil, and must be made within fourteen days, and sccurity
is given on recognizance before the master effectually to
prosecute the same. A copy of the papers authenticateil
by the officer of the court should be taken.-2 Rep. 10
to 12.


Court ofKing's Bencb and Common PIcas.
This, the supreme court of common law, was esta-


blished by the Court Act, which passed in 1786, and is
said to possess all the combined POWCl"S of the Courts of
King's Bench and Common Pleas in England.


The pleadings subsequent to the declaration (and mat-
ters are often managed without a declaration) 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, dulyproved and re-
corded in the secretary's office, must be produced, if
required, before the cause can proceed to trial 01' judg-
mento Foreign powers of attorney, under a notarial seal,
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 sceivable 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 sumrnons left at the dwelling-
house, eoen 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 úie first and second
jury) are formed, and those juries are sworri, "once for
all, for the court, and for 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' for a new tria},


To the judgment an affidavit is annexed, that the sum
is due, which is lodged with the secretary, who enters the
day, minute, and hour of filing it in the docket-book; and '
the judgment is binJing on lands and slaves, 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 other islands.


Goods are bound in this island from the teste of the
writ, and not from its delivery to the marshal. Executions
are taken out and used as securities, as in the other
islands, and though returnable to the secretary's office,'
at the end of thirty days, are aIlowed to be levied without
suing out a scire facias, at any distance of time. Of real
property tlle 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, 01' to a trustee for the pllrpose of settle-
ment or balTing dower. Personal propel'ty Ís tl'ansférred
by the marshal's certificate, 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 acts,


Every verdict in this island carries 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 generaUy 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 eif 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.


Its jurisdiction is limited to actions under the value of
.:tZO 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
or political operation,) been considered as the law of the
island."


Wills are proved by affidavit made before the govcrnor
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 for that pllrpose, " hut
the original is not delivered out to the party as in case of
deeds."-2 Rep. W. I. C. 18.


Court of Admiralty.
There is no Prize Court in this island. The course of


proceeding in the Instance Court is by information to be
filed by the Registrar, within ten days after the seizure.
The monitions are issued to the marshal, who posts a copy
at the custom-house, court-house, and principal tavern.
An appeal did lie from a judgment in this court 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 líes to the
Privy Council.-See the 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 the chief justice, "no judge of the court, a quo, is
to sit in this court; to constitute which the Governor and
at least three members of Council are 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


held on the second Tuesday in the months of February,
June, and October, every year.


The members of Council are vi"tute officii, judges of
this 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 Pleas, snd the judge-surrogate of the Court of Vice-
Admira1ty. The judges sit by virtue of the act, without
any further writ, commission, or authority.


The attendance of witnesses is secured by subpcena ;
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 admissible in evidence, under the same
circumstances as in civil cases.


When a bill has been ignorad, or when the prisoner has
been acquitted, or is discharged by proclamation, and the
court certify the prosecution to have been frivolous,
vexatious, or malicious, the prosecutor is liable to the 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-
cretion.




STo VINCENT.


Judges.
. .


The chief justice receives His Majesty's warrant under
the privy seal of the colony. He holds his office during
the King's pleasure and his residence in the colony. The
Governor has the appointment of the assistant justices.
AH the judges, holding their offices during pleasure, are
removable by the authority of the Crown, and may be sus-
pended by the Governor orCommander-in-Chief, byadvice
ofthe Council.-2 Rep. 22, st.


Prouost }Uara/tal.
The provost marshal general is here, as in the other


islands, the executive officer of all the courts. The chief
justice said, "he claims a right of acting as marshal in the
Court of Admiralty."


Coroner.


There is one coroner in this island, appointed by the
Governor, The inquisitions are returned and filed in the
office of the clerk of the crown, and the coronel' is bound
to make his return six days before the sessions.c--z Rep.
W. J. C. p. es.


Admiralty Session S.
There is no commission sent out to this island for hold-


ing a Court of Admiralty Sessions.e-B Rep. lZ4.




( !225 )


TOBAGO.


-


Tobago is one of the Caribbee islands in the West
Indies, It is the most southerly of them, and líes in lato
11o 10' north, and 590 40' long. west from London-
about forty leagues south by west from Barbados, thirty-
five S. E. from S1. Vincent's, twenty S. E. from Grenada,
twelve N. E. from Trinidad, and between thirty and forty
N. E. from the Spanish Main. It is somewhat more than
thirty miles in length from N. E. to S. W.; between eight
and nine in breadth; and from twenty-three to twenty-five
leagues in circumference. (1)


It is divided into seven districts called divisions, vis,
North East, Queen's Bay, Great River, CourIand Bay,
Barbados Bay, Rockly, and Sandy Point divisions. It has
an equaI number of parishes, whicb are named St. An-
drew's, St. George's, Sto Mary's, St. Paul's, St. Jobn's, St.
David's, and St. Patrick's. There are two towns, George
Town, and Scarborough, the latter of whicb 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 S1. Vincent's. (3)


The English visited tbis island very early, Sir Robert
Dudley having becn there in the reign of Queen Elizabeth,
William, Earl of Pembroke and Montgomery, is said to
have obtained a gmnt 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 fell into the


(1) Encyclopredia Britannica; 4
Ed.275. In the latter work it is said
that it is twenty-five miles lo the north
of Trinidad, that the length is thirty-


lwo 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 Courland, whose c1aims being contested by
the States-General, the duke entered into a treaty with
Charles 11. dated 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
nation was, in 1677, driven out by the French, and the
islarid once more became uninhabited, the conquerors not
chusing to establish themselves there,


The demise of the last of the Dukes of Courland, of the
house of Kettler, which took place in 1737, put an end to
all claims from that quarter; and by the treaty of Aix-Ia-
Chapelle, 1748, Tobago was, with the islands of St. Vin-
cent, Dominica, and St, Lucia, declared neutral. However,
.by the treaty of Paris, in 1763, Tobago, with Sto Vincent's
Grenada, and Dominica, was ceded in full sovereignty to
the British crown, The English commenced the coloni-
zation of it in 1765. (4)


By royal proc1amation, 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
erecting within the countries ceded by the treaty of Paris
four distinct governments, one of which was to be "the
Government of Grenada, comprehending the island of that
name, together with the Grenadines, and the islands of
Dominica, St, Vincent's, and Tobago," and that Hís Ma-
jestyhad directed the governors of such governments 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
"I'obago was first convened in 1768-the legislative au-
thority from 1763 to 1768 having been exercised by a
Governor and Council only. In 1769 a Court of Common
Pleas and Court of. Error were established by Act of
Assembly, but were afterwards superseded by an Act of
1775, providing á new establishment of Courts: of Common


(4) Encyclopesd¡a Britannica and Jcttcrs-patent noticed more fully in
Edwarde, ubi .up. 276, 280. thc acconnt of Grenada,


(5) See this proelamation and the




TOBAGO.


Pleas, Error, King's Bench, and Grand Sessions; and in
the same year was passed an act for establishing a Court
of Chancery.


In 1781 Tobago was taken by the French, (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, established themselves there,
and the original colonists are said to have continued to
cherish a strong attachment 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 French settlers
that it contained soon afterwards quitted the colony, (7)


In 1794, during the administration of Governor Ricketts,
this island is said "to have received a constitution from
England." "But the charter of the constitution is under-
stood to be now Iost." (8) However, its general nature
appears by thc preamble of the Act of Assembly, passed
21st February, 1794. This act recites that by the con-
quest of 15th April, 1793, "His Majesty acquired a right
to estabIish such government, and to impose such laws on
the inhabitants of the said island, as might be most agree-
abIe to his royal will and pleasure;" and "had been
graciously pleased to declare it to be his royal wiIIand
pleasure that the government of the said island should be
a separate government, and consist of a captain-general
and governor-in-chief, a lieutenant-governor or other com-
mander-in-chief of thc said island, for the time being, a
Council appointed by His Majesty, and a House of Re-
presentatives of the inhabitants of the said island, under
the denomination of a General AssembIy;" and that a
General Assembly had accordingly been chosen and con-
vened. The act then proceeds to recite that "by the
conquest of the island and the final establishment of the
government thereof, as aforesaid, aH laws heretofore en-
acted by former lcgislatures of this island, ceased to be in
force," but it goes on to revive the act of 1775, aboye men-
tioncd, for establishing Courts of Common PIeas, Error,
King's Bench, and Grand Sessions; and also a former


(6) Encyclopredia Britannica ; 4
Edwards, 285, 287.


(7) Encyclopredia Britannica; 4
Edwards, 286; 3d vol, p. 436, where


the capture is said to have been on
the 17th April.


(8) 1 Rep, W. l. C. 71.


Q2


1




TOBAGO.


act for establishing a Registrar's Office; and provides
that the records belonging to the former Registrar's Office
shall be lodged in the new one, It has a like provisión
also with respect to the reeords 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, 180S, was retaken by a British force,
and was ultimately ceded to Great Britain by the treaty
ofParis in 1814. (1)


Sinee this, its last restoration 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 other colony, and possessed the same
legislative and judicial eonstitutions as had belonged to
it during that period. It now forms part of the general
government of Barbados, but it is believed will still con-
tinue to have, as before, its separatc 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 Seeretary's Offiee, 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 reeent aets are also in print.
Copies of the acts of this, as of other colonies, are preservad
in this country in the office of the Secretary of State for
the Colonies.


GENERAL LAWS OF THE COLONY.(S)


Upon the examination of the law officers of Tobago,
under the late commission for inquiry into the administra-


(9) The act has words whieh seern
sufficiently lo revive also the jurisdic-
tions of the Courts of Chaneerv, Ad-
miralty, and Ordinary. Dul ihcl'e is
110 express revival of the act of 1775,
establlshing the Court of Chancery.
11 is, however, understood lo have
becn revived by an act passed in Fe-


bl'uary,1794. 1 Rep. W. 1. C.75,
76.


(1) 4 Edwards, 287; 1 Rep. W.
1. C. 124.


(2) 1 Rep. W. I. C, 71,122.
(3) Si-e the reruarks (anle, p. 3


lo 16,) un the gelleral lupic IIOW fa,'
the colonies are subjcct lo the law of
the ruother country,




TOBAGO.


tion of justice in the West Indies, the chief justice thus
expresses himself, "The common law operated in all cases
not affected by colonial statutes, It has beenconsidered
that when we received an English constitution, in the time
of Mr. Ricketts, we took with it all the acts of Great Bri-
tain, adapted to the circumstances of the colony. 1 pre-
sume that aH Englísh acts at the period of the cessíon,
which are applicable to the colonies, are in force here,
and all acts since passed in which they are speciaHy in-
cluded."


The Attorney-General states, "1 apprehend that the
common law, in so far as applicable to the situations of this
colony, together with the general statute law, till the treaty
of Paris in 1814, when the island became an integral part
of the British empire, is operative here, From that pe-
riod, of course, we are only affected by sueh statutes of
the British Parliament as are expressly extended to
us."(4)


This colony is stated to have received a constitution from
EngIand during the administration of Governor Ricketts,
in 1794, and is therefore supposed to have adopted with
it, or at the period of the cession, all the Acts ofParliament
of Great Britain suited to its condition and circumstances.
The chartel' itself of the constitution is understood to be
lost. The local acts now in force are certain Acts of As-
sembly passed before the capture of the colony in 1798,
aneI revived in 1794, and acts passed since.-l Rep. W.
l. C. 71, 124.


COURTS FOR 'rHE ADMINISTRATION OF JUSTICE.


The courts for the administration of civil justice in the
island of Tobago, are the Court of Chancery,the Court of
Exchequer, the Court of Common Pleas, the Complaint
Court for the recovel'Y of debts under 1:10, appointed by
the Court . Act; the Court of Ordinary, the Court of
Escheat, and a special and occasional court-the Court-
Merchant. (5)


The courts for the administration of criminal justice
are the Court of King's Bench and Grand Sessions, and
the lnstance Court of Admira1ty, and a Court of Quarter
Sessions. There is also a special commission under which


(4) 1 Rep, 124. (5) 1 Ib.72.




~30 TOBAGO.
Admiralty Sessions may be held, as occasion requires j and
the Governor has always the power of issuing a special


" commissíon of Oyer and Terminer.-l Rep. W. l. C. 76.


Court 01 Ckancery.
What was the original constitution ofthis court does not


c1early appear j butit is stated to have been revived shortly
after the capture of the colony, by an act passed in Fe-
bruary, 1794. The Governor .is now sole Chancellor, and
is supposed to posscss all the authority of the Lord Chan-
cellor of England.-1 Rep. W. l. C. 76.


Court 01 Exchequer.
. This court .is recognized by the Court Act, and was


therefore rather revived than established by Governor
Ricketts in 1794, at which time a chief baron was ap-
pointed, N o court, however, is known to have been held
tillthe yeal' 1815, when the appointment of chief baron,
which had long been vacant, was again filled up, and puisne
barons were appointed, and the court sat several 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 récords of the court can be found in the island.-l


. Rep.W. 1. C. '79.


Court of Common Pleas,
This court derives its authority from the Court Act, and


possesses the usual jurisdiction of the Supreme Civil
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. All the
judges did hold their offices during pleasure, but befare
the report was completed an alteration took place which.
the commissioners thus notice :-" The tenure of office of
all the judges was during pleasure, but by the new Slave
Act it is provided that 'the chief justice of the Court of
Common PIcas for the time being, and two puisne judges
to be appointed by his excellency the commander-in-chief
for the time being, whose commissions shall be quamdiu se
bene gesse?'int, shall be a court, &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 no 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 govemed
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 practicein England. 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 been in the island
as to those who have just quitted it, (but see ante, 93.)


A habeas corpus is obtainable both by common law and
by the statute. Special juries are known in practice here,
and are struck in the same manner as in England.


Executions are taken out and suspended, and used as
securities which are assignabIe, but the assignee must
proceed in the name of the assignor. Executions bind
from the deIivery. The marshal is directed by the act
to minute the time they come into his hands, and to Ievy
in the order and course in which they are received. When
the person is taken, there is no allowance in this island to
a debtor, a prisoner in execution.


The verdict carries costs with it in all cases, except the
costs are restricted by the Court Act.-l Rep, W. l. C.
81, 8~.


Court of Complaints, called at Barbados Benck
Actions.


In this court actions are brought for sums under .i'1O,
and determined without a jury.


The sitting is regulated by the Court Act, and takes
place the day preceding the holding of Courts of Common
Pleas, with a limited power of adjournment. CompIaints"
maybe tried before any judge of the Common PIeas, but
the chiefjustice 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. or
58. 6d.-l Rep. 8'2.


Court rif Ordinary.
This court is held under instruetions from the Crown,


before the Governor alone, having cognizance of probates
of wills, letters testamentary, and licenses for marriage.


AH wills are proved, and the originals are left with the
registrar, and deposited in the office.


AH marriages are by license of the Governor 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 wife in this
island; .nor was it known what measures were used to
compel payment of costs, There is no process of excom-
munication, and nothing had been heard of any proceed-
ings as on a eontempt.-l Rep. W. 1. C. 82,83.


Court of Admiralty.
'I'his court derives its power by commission from Eng-


Iand. It has jurisdiction in this island only as an Instance
Court; matters of prize being decided in other colonies,
where a Prize Court is instituted.


There was no admiralty judge at the time the commis-
sioners were in the island, and the business was "at a
stand for want of a judge," though there were two cases
ripe for trial against parties under proseeution for not
making a return under the Registry Act. In other islands
the chief justice of the Common PIcas is frequently also
judge of this court.


Admiralty sessions may be held as occasion requires,
under a commission then recently arrived frorn England, for
the trial of piracy, murder, and other offcnces committed
upon the high seas. But no court had, at that time, ever
sat under the cornmission. Costs are said to be taxed in
this court by the registrar, according to fees established by
usage.




TOBAGO. 233
The registrar of this court gives no security.-l Rep.


W. l. C. 83.


Court of Appeal and 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 information.'


The procecdings upon writs of error are attended with
considerable expense. lt is the same with appeals to His
Majesty in Council, occasioned as the commissioners were
told by the cost of taking out copies of papers.-l Rep.
W. l. C. 83.


Court of Escheat.
Thcrc is a Court of Escheat in this island. Cases of


intestacy are not so frequent as formeriy, but some occur
every year. Slaves escheating are not considered as vir-
tually freed,


CRIMINAL COURTS.


Court of King's Bencli and Grand Sessions.
The Court of Grand Sessions is established by the


Court Act, for the trial of all offences committed by white
or free coloured persons,


The court is composed of aH members of council and
justices of the peace. The commission of the chief justice
does not extend to this court. He sits in it with only the
rank of a common justice.


The indictment is drawn by the Attorney-General, to
whom a fee has been generally paid for this service by the
publico


The case for the prosecution is opened by counsel (the
Attorney-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 judgment is supposed to be
final. The chief justice said he kncw not to what court a
writ of error could be taken, for there was no Court of
King's Bench with a superintending power.




234 TOBAGO.
Prosecutors and witnesses are not alIowed their costs


and expenses.-l Rep' W. l. C. 83, 84.


Court 01 Quarter Sesslons.
This caurt 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 thc same power as the Court of Quarter Sessions
in England."-l Rep. W. I. C. p. 72.


The Court of Quarter Sessions at Tobago is constituted
similarIy to those appointcd 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 he
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 various important duties re-
quiring his anxious and unremitted attention, without any
compensation whatever. For drawing indictments and
conducting prosecutions in capital cases, the fee has ge-
nerally been paid by the 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 orders "that every person admitted to act as counseI
in the courts of this island, must have been called to the
bar in England," but such a rule, if it exists, has not been
acted upon. Formerly an examination of a candidate for
the bar, previous to his admission, took place before the
Attorney-General or other Crown lawyer, and the judges
afterwards admitted to thc bar of their respective courts
such persons as produced testimonials of their sufficiency."
Now, "the Governor exercises the right of admission,"
said the chief justice, "as we understood, under the
King's instructions." They are admitted to act only
" during pleasure," a form, it is said, directed by the in-




'TOBAGO. 235
structions. The commissioners thought the propriety of
such an admission "very questionable, as it affects 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 "during His Majesty's pleasure."-
1 Rep. W. I. C. 87.


With respect to attornies or solicitors, they do not con-
stitute, in this island, a different branch of the profession.
The same persons practise as barristers aud as attornies,
a~d are not reqllired to serve a,clerkship in the latter capa-
clty.-l Rep. W. I. C.88.


Justices ofthe 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. There 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 same 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 England until very lately, Berbice
constituted a separate colony; but 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 all the
three colonies of Demerara, Essequibo, and Berbiec,
whieh were thenceforth directed to form but one colony,
and to bear the name of British Guiana. These colonies,
together with the islands of Trinidad and St, Lucia, being
colonies acquired by conquest, were subject to the legisla-
tive power 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 providing for the adminis-
tration of justice in British Guiana, Trinidad, and St.
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 will be given immediately after that
of British Guiana,


Demerara, Essequibo, and Berbice are colonies situated
in Guiana, which is a large country of South Ameriea,
bounded on the east and north by the Atlantic Ocean
and the river Oroonoko, on the south 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 Surinam, Esse-
quibo, Berbiee, and Demerara, which took their names
from the rivers on which they are respectively situated,
and together constituted what was called Dutcb Guiana. (2)


~._.


(1) Encyclopsedia Britannica,
(2) Les Trois Ages des Colonies,


par De Pradt(1801), tomv i, p.78.
He afterwards observes, "Qaatres
divers peuples Europeens occupent


la Guyana, les E'pagnols en remontant
vers l'Orinoque, les Hollandois apres
eux, les Franqais plus au Midi, et les
Portugais depuis qu'ils ont franchi
l'Amazonc.' -p. 150.




BRITISH GUIANA. fl37
The three Iatter successively capitulated to the English on
the 18th and 24th of September, 1803, and were ceded
to them as a British possession by the convention signed
at London, 13th August, 1814.


Dutch Guiana was formerly the property of the Crown
of England, and the English had made settlements at Su-
rinam ; but of these 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 alI the English
territories in Guiana in exchange for what they had pos-
sessed in the province now called New York. (3)
~tretching along the coast of the Atlantic, between the


laticude of six and eight degrees north, and the Iongitude
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. '1'0 the south-south-west thc river Courantin
separates this tract from Surinam ; to the north-north-
west the small inlet and stream of Moroko divides it from
the Spanish territory 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 nearIy
twice its length, and reaches to the seantily-known pro-
vinees of New Cumana and New Andalusia, which are
c1aimed by the Spaniards, but which are in part inhabited
by independent Indian tribes. The limits of Berbiee, 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 ereek and the river
Courantin. The opposite boundary of the colony, where
Demorara 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 Demerara. The dependency of Essequibo occupies
the rest of the territory as far as the Spanish frontier on
the Moroko.-4 B. Edw. 241,242.


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 rivers


(3) Bancroft's Hist, Guiana, p. Gto 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 bars of
mud which have been formed by the deposits .from their
waters.-4 B. Edw. f!43. Large ships usually discharge
and take in part of their cargoes outside of these shoals,
Lang v. rlnderdon, 3 B. & C. 495.


Cotton, sugar, and 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 milI 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.~4B. Edw. :244, !245. Ground provisions are
plentifulIy 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 earIy as the year 16QO;
Essequibo the next, and Demerara the lasto For many
years their culture and 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 rebellion of the slaves took place in Berbice,
but was -euppressed artero considerable exertion, Great
numbers of the negroes were slaughtered, Those few
who escaped have since occasionalIy been joined by fugi-




BRITISH GUlANA. 239
tives from the estates, and these men are known by the
name of " bush negrees.' Six years subsequently to this
rebellion, 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 pl'o-
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 reduced
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 prosperity of these eolonies
has experienced a rapid increase, and is still gaining
ground, so that the produce raised, and the shipping em-
ployed, now equal in value and number more than one-
third of the produce and shipping of the long settIed and
fiourishing island of Jamaica.-4 Edw. ~49.


Stabroek, 01' George Town, the capital of Demerara, is
situated in 6° 50' north latitude on the east side, and nearthe
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 perfectly straight, with carriage roads,
The houses are of wood, two 01' three stories high, and
raised on brick foundations. In the public buildings there
is nothing which merits a particular description. Kingston,
Labourgade, Bridge Town, New Town, and Cumings-
burgh, aloe villages in the vicinity of Stabroek. 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,
hy the first settlers. In process of time, however, as the
colony grew more peopled, and cultivation became more
extensive, this situation was found to be subject to great
inconvenience, from the difficulty with which vessels are
worked up the winding river, and the frequency .with
which théy.groundedon the numerous muddy shoals,
whence it was sometimes impracticable to get them off till
they were set afioat by the, rising of the springtides. It
was accordingly resolved to remove the seat of govern-
ment to a more suitable 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 MI'. Edwards
(4 vol. 251,) to reside in tbe governor and a council called
the College of Kíezers. Tbis seems not now to be the
case (see tbe eommission to General D'Urban, 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 lcgislature. The com-
mission aboye referred to declares that the bodies politic
heretofore existing shall be preserved, but 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 befare the
House of Commons, and are therefore not accessible.
As the institution of the eollege of Kiezers, 01' that oí the
Court of Policy, is but little known in this country, it may
be as well to give a short description of both oí those
bodies, as well as of the origin of the Financial Representa-
tives. The college of Kiezers appears somewhat to resem-
ble an electoral college in France. It is not the legislative
body, but, as its name signifies, (the college of Kiezers,
being literally, the college of Choosers,) it ehooses 01'
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 sense
oí 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 bis 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 01'
Kiezers. The Court of Policy was afterwards made by
the terms of the capitulation to the English in 1803, (see
ante, p. 26,) a local)egislature, and seems to unite the
functions, except as to the levying of taxes, of the English
Houses of Lords and Commons, and of the Privy Council,
The Financial Representatives resembled, in having the
direet power of taxation in their hands, the English
House of Commons, but 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 accounts,


The following sketch of the history of these three bodies
is the best that the author has been able to meet with. It
is extracted from the Local Guide of British Guiana for
the year 1833, and seems to have been drawn from au-
thentic sourees.


In 1739Z, the constitution oí Berbice, then a proprietary
government, (as to which see ante, p. 17,) was enacted
by the States-General to be as follows:-The govem-
ment was to be administered by a Governor and Council ;
the Governor to be appointed by the Directors of the
Dutch West India Company, under a commission from
the States. The Council to consist of six persons, to be
chosen by the Govemor out of twelve nominated in the
first instance by the inhabitants, afterwards by the re-
maining Council, The Court of Criminal Justice to be
appointed by the Council or Court of Policy. The Court
ofCivil Justice to consist of the Governor and six members
selected by him from twelve nominated, half by the Court
of Policy, half by the inhabitants, three members to retire
every two years-the Govemor to have but one vote.
The Court of Policy to take precedence of the Court of
Justice, and individual members from the date of their
appointment.


In 1739 the first constitution of the college of Kiezers,
appears to have taken place at the company's establish-
ment in Demerara, although the formal grant of the
settlement by the chamber of Zealand is dated in 1745~
1746. By the terms of this grant Demerara was sub-
jected to the jurisdiction of the elder colony of Essequibo.
In 1773 the Courts of Policy and of Criminal and Civil
Justice were first established in Demerara, at an island
about twenty miles up the river, called the Borselen.
The .courts consisted of the Commandeur (governor)
of Demorara, the Commandant (chief military officer
under the govemor), the Fiscal, the Vendue Master, and
four inhabitants, selected from a return of twice that num-
ber, made by the College of Burgher Officers, exercising
similar functions to the Kiezers of Essequibo. In 1776
the Assembly of Ten, in Holland, passed an act declaring
" that the CoIlege of Kiezers is not considered a judicial


R




BRITlSH GUJANA.


body, but as electors of burgher representativas in coun-
eil," and another of 1778 stated "that the Kiezers, not
being in the pay of the company, are not required to watch
the interests of the company, but those of the colony
only." In 1785, on the restitution of the colony to the
Dutch, the Courts of Policy of Demerara and Essequibo
were united at the former place. The inhabitants of De-
merara petitioned the director-general, L'Espinasse,
stating that on the taking of these rivers by the English,
the Assembly of Ten released all their superior and in-
ferior servants 01' ministers from their service- or ministry,
and that the said assembly now maintained that aH 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 aHwhich the colonists protested :
~Ist, Because the colonial or burgher members, selected
from a nornination made by the elective coHege, could not
be comprehended under servants 01' ministers of the West
India Company ;-~d. Because the burgher members are
expressly distinct from the servants 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-master, and four of the principal best informed
and most respectable inhabitants; and that, previous to
these four assumed members taking their seats, they shall
be sworn in due form." That consequently the Courts of
Policy and Justice consísted of the 'Vest India Company's
servants (Bediendens) and four members assumed from
among the burghers, which four could not be compre-
hended arnong the Company's servants, but retained their
functíons, especially as these functions were reserved tú




BRITISH GUIANA. 243
them in the capitulations both to the English and French,
in 1781 and 1782, and lastly, by the instructions of the
"Vest India Company of the 28th October, 1783, requesting
them, as "the now existing Council of Demerara," to
continue their functions, and take over the colonies from
the commissioners of the King of France, wherefore they
pray, &c. The Director-general referred the memo-
rialists to the West India Company. On the 10th of July
the inhabitants of Essequibo joined in this matter, and
they all memorialízed the States-General, who finally con-
firmed the righ~ of the Kiezers.


On the 7th of September, 1812, Governor Carmichael
issued a proclamation declaring the College of Kiezers of
the united colony of Demerara and Essequibo to be no
longer a distinct and separa te institution, and directing
that the College of Kiezers and the Financial Representa-
tives should thenceforth be combined into and constitute
one single college, and that the election thereof should be
by other persons than those who had theretofore elected
the said colleges. By a proclamation datcd 21st -Iuly,
1831, Governor D'Urban announces that he had received
instructions from His Majesty declaring that such pro-
clamation of Governor Carmichael had never been con-
firmed at home, and that it was not authorized by the
powers conferred upon him, and was therefore void; and
further providing that these two public bodies shall again
be separated, and shaIl 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, for the purpose of
electing members to fill vacancies in the Court of Policy of
the said colony." The college was to consist of seven Kie-
sers, to be elected for Iife, The Governor at the same time
'\ constituted and appointeda hody ofFinancial Represen-
tativas oí the colony ofBritish Guiana, for the purpose only
of raising, in conjunction with the Governor and Court of
Policy of the said colony, the colonial taxes to supply the
sums required by the annual estimate previously prepared
by the said Governor and Court of Policy, and of examin-
ing, in conjunction with the Court of Policy, the accounts
ofthe colonial receiver-general for the preeeding year." (4)


(4) Since the date of this proclama-
tion the Financíal Representatives


have been constituted in the mauner
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. All inhabitants of the colony possessed of twenty-
five slaves or upwards were called upon to 'Vote at the
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 all future sessions in Demerara
alone. In 1812 all distinetions between the colonies of
Demerara and Essequibo, whether of jurisdiction or
otherwise, were abolished by proclamatian of Governor
Carmichael, the office of commandeur of Essequibo and
the judical establishment at Fort Island were discontinued,
and the Court of Criminal and Civil Justice in both colonies
were united in Demerara. The name of the capital was
changed from Stabroek to George Town, and a board of
police was appointed for its internal management. The
fírst institution of the trial by jury in Dernerara 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. The change in the judicial establish-
ments of the colony are of such a recent date (see Orders
in Council, post,) that it is not improbable questions may
for sorne time arise upon decisions given under those for-
merly existing. It has therefore been deemed advisable
to preserve this sketch of their nature and jurisdiction.


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 fOI the trial of causes for sums
under 600 guilders.


informed that an important dispute
has arisen as to the limits of thcir
powers. They iusisterl, and ";ith sorne
shew of reason, that they were not
constituted ruerely to go tlmJlJgh the
form uf voting the estimates which
liad Leer. previously preparcr! hy the
Govcruor and Court of Policv, but
had a riaht to exercise thcír discrc-
tion in Hctopting 01' rejectillg allY por-
t iou of them, The Governor dCLl ied


this, The Financial Representatives
insisted, and by wilhholding the sup-
plies have for a time gained their
poiut. Thc right thus clairned by
them has not, howev er, been recogni...
zerl by tlre heme u;overnmc:nt; but it is
to be ilOped that ;LS the colonists are in
form nllowcd to dect a taxing hod,y,
its autho)'ity llIay not be so restricted
as to render it uselcss if not rldlcu-
lous,




BRITISH GUIANA. ~45


Superior Court.
The Superior Court -of Demerara consists of a Presi-


dent and eight members, of whom four and the President
must be present to constitute a court,


Tbe President is appointed by the King, and remov-
able at his pleasure. The other members are planters 01'
merchants of the colony, elected by the College of Kiesers,
who, when vacancies occur, return a double number, from
which the Court of Justice makes a selection. Theyare
obliged to serve, under a penalty of 3,000 guilders. In
the month of May of every second year, one-third of these
colonial members vacate their seats, beginning with the
oldest member, and as their number is eight, three and
twovacate 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 challenged, in the


like manner as a juryman, 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 receive certain fees, which
are stated to average from 400 to 500 guilders per an-
num each, They are also provided with board and lodg-
ing at the public expense at the colony-house during their
attendance,


COURTS AT BERBICE.


At BERBICE the administration of criminal justice is
vested in the Governor and Council; and that of civil
justice in the Governor and six members.


A Commissary Court and a Roll Court are also held at
Berbice; the former by two members of the full court, for
the trial of causes for sums under 600 guilders, the latter by
one member ofthe same court for the interlocutory proceed-
ings on the Roll, (5) which is termed the instruction of


(5) Such as filing c1aim and de-
maud, or declaration, answer, repli-
que, and duplique, inventory of


vouohers, exchangc of vouchers, in-
terrogatories for cxamlnatlou of wit-
nesses, &c,




246 BRITISH aUIANA.
the cause. This member of the court is termed in France
" le Juge d'Insiruction. (6) The Court ofCriminal Justice
is composcd of the Governor and six members, and, in
cases of vacancy, the latter are selected by the Governor
from a treble number presented to him by the rcmaining
members, .


Court of Civil Justice.
The Court of Civil J ustice is composed of the Governor


and six members, of whom the Governor (as President)
and four members constitute a court.-::2 Rep. fi?d series,
W.I.C.::2.


The members of the lattcr court are elected by the Go-
vernor from a double number presented to him, as nomi-
nated by the Governor and Council. Three members
retire biennially, and their places are supplied by others.


Any membcr may be recused for incompetency, enmity,
consanguinity within the second degree, and for various
other causes specified in the written law.


The emoluments and privileges to which those Berbice
members are entitled, are enumerated, (~Rep.!2d series,
W. I. C. p. 5~,) and it will be seen that they also, as well
as thc members of the Superior Court at Demerara, are
entitled to board and lodging at the public expense
during their attendance on the courts.


LAWS. (7)
The laws in force in these colonies, as guaranteed by


the articles of capitulation on their surrender to Bis Ma-
jesty's arms, on the 18th September, 1803, are the old
law of Holland, peculiar vernacular laws, and the Roman
law, in subsidium, particularly with regard to slaves.


The following is an extract from the " Register of Re-
solutions of their High Mightinesses the States-General


(6) At Demerara this Rol! Court
is held by two commissaries,


(7) Sec the remarks (ante, p. 3 to 16)
on the general topic, how far the colo-
nies are subject to the law of the mo-
ther country, The law by which British
Guiana is chieíly governed is the Ro-
man-Dutch law of the Seven United
Provinces.jsee ante, p. 23, aud 2 Rep.
W. r. C. ed series, 3, 53,54.) A


very able translation of " tbe Laws of
Holland" has been published by Mr,
Henry, who was sorne time Presiden!
of the Superior Conrt al Dernerara,
and who afterwards went thither as a
commissioner lo inquirc into and re-
port the slatc of thc Adminislr"lioll
of Civil aud Criminal J ustice in the
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 the Register of Resolutions of their Higlt
Migltlinesses the States-Generai of tIte United Nether-
lands, Dated 4th October, 177<1<.
H That it shall be further enacted, as it is by these pre-


sents enacted accordingly, that all the laws of Holland in
general, and more particularly all laws, statutes, resolu-
tions, and ordinances of their High Mightinesses, 01' the
Committee of Ten, with the approbation of their High
Mightinesses, heretofore transmitted 01' hereafter to be
transmitted to the Director-General and the Council of
Essequibo, 01' to the Commandeur and Council 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 1st of April, 1780: and in matters
relating to hereditary succession, ab intestato, by the law
of consanguinity, termed Aasdoms Veusterfrecht, as con-
tained in the decree of the States of Holland and West
Friesland, dated the 18th of December, 1599.


H That in civil causes they shall be regnlated by the
manner of proeeeding 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
especially provided for, they shall have reeourse to the
written laws,


" And an extraet 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 aforesaíd


Register.
(Signed) H. F AGEL.


As regards the question how far English Aets of Par-
liament are considered binding in these colonies, the Pre-
sident of Demerara said he considered all English acts




BRI'rI5n 'GUIAN;\.


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 Berbice,
statcd that English aets were not generalIy eonsidered as
binding there. They enumerated the Navigation Acts,
and those relating to the Slave Trade, as being in force in
their colony. Proofs for the recovery of debts, under the
British act 5 Geo, !?, are admitted in both colonies.c-x
Rep. ea series, W. l. C. 3.


Practlce of the Courts,
The pleadings in the Courts, both in criminal and civil


cases, are carried on in the English language, under an
order of His late Majesty when Prince Regent.


By a rule of the Superior Court in Demerara, it appears
that a party is prohibited from being heard therein in
person, and the President thinks it could not be done
away with without mueh inconvenienee. At Berbieealso,
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 01' misprision in pleading, relief is
aff'orded by the courts, it being, as was stated to the com-
missioners, uneommon to quash 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. !?dseries,
W. l. C. 5.


In the case of a witness absent from the colony, his depo-
sition on oath, attested according to the law of the eountry
where made, is (said the President of Demerara) genera11y
admitted without objection. The Fiscal doubted whether
it eould be obtained by any pl'Ocess issuing from the Civil
Court, Where a witness is in the jurisdiction, but pre-
vented from attending by sickness, his evidence is obtained
by a process termed enqueste valetudinair.


As regards powers of attorney to he acted upon in De-
merara and Berbice, it appears that they are held valid if
executed according to t~e laws of the country where made.
It requires a speeial power to execute any deed conveying
any interest in lands 01' houses, 01' an estate in the colony,
but it is not necessary that such special power should be




BRITlSH GUIANA. 249
recited in the deed itself. The deed, however, must re-
cite the authority 01' power of attorney, as being of record
in the registry,


When application is made to the court at Demerara to
put off a trial 00 account of the absence of a material wit-
ness, an affidavit to such effect is (said the President)
seldom called for, The court, however, requires to be sa-
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 colony without leaving any agent 01' at-
torney to represent them, and of those who, although they
may have a property in the colony, have never been
there, (8)


At Berbice, however, a distinction was drawn by the
examinants, as to whether the claim was against real or
personal property, In the former case it was said that the
owner being absent and having no representative, the
suit would be instituted generally against the proprietor 01'
proprietors, representative or 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 curias, 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 coloníes, has an equitable
jurisdiction, though at Berbice the examinants seemed
to think their court had no power to relieve in the case of
a deed or instrument lost, In cases of fraud, palpable
error, &c. the Governor, as representative of the Sove-
reign, is authorized, on petition, to grant a mandament of
relief with committimus to the Court of Justice, where the
matter is tried on its merits, It has also extensive juris-
diction over testamentary guardians and executors, where
the interests of minors are concerned; obliging such par-
ties, on suggestion of misconduct, to render accounts,
which accounts are referred to the sworn accountant for


(8) But as to the effect of thís mode attempted to be euforced in this country,
of scrvice "pon a jndgruent afterwards see ante, 93, and the cases there cited,




250 BRITISH GUIANA.
report, and afterwards approved or 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 England.


The Superior Court has authority to appoint curators
over the person and property of idiots, prodigals, and lu-
natics,


Though the writ of injunction is not known by name in
these colonies, a remedy of a similar nature (termed penal
mandament or interdict,) may be obtained by a party on pe-
tition, to restrain proceedings which he considers injurious
to him,


When a witness is old or infirm, or about to leave the
colony,and it is desired to preserve his testimony, he
may be examined before .a commissary of the court, whe-
ther a suit has been instituted or 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 cross-examine,


The President of Demerara said, that he should require
a witness so examined to be afterwards produced, if it
were found practicable, provided either party wished it.
This mode oftakingevidence de beneesse, is termed in the
Dutch law, Enqueste Valetudinair, from the circumstance
of the sickness or infirmity of the witness being the chief
cause.


The Fiscal of Demerara seemed to doubt whether to
obtain the testimony of such witness, it was not necessary
that a previous suit should have been instituted.


It appears that there is nodifficulty or intricacy in these
colonies in the mode of transferring or conveying real
or personal property, it being, on the contrary, simple and
convenient. Should the subject be real property, it is
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 or burthen
it, may have an opportunity of noting his opposition and
securing his debt. Moveable property may (said the Fis-
cal of Demerara) be conveyed or mortgaged in this manner,
or by delivery. If moveable property (he added) be not
mortgaged before the judge, and the mortgagor continue
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 habeas corpus. A person illegally impri-
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 or re-
corded,


The foIlowing is the course adopted by a debtor who
wishes to escape personal arrest, 01' obtain release from
prison by a surrender of all his property to his creditors :
-He applies for a writ of cessio bonorum, 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 for the benefit of the creditors, The
Governor, as representative of the Sovereign, has power
(it was said by the cxaminants at Berbice) to issue this
writ.


The foIlowing is the law of prescription in criminal and
civil cases, as stated by the examinants at Berbice. Civil
actions are prescribed by the lapse of one third of a cen-
tury, but sentences in civil actions are prescribed 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 prescriptíon 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 intended sale,
calling upon the creditors to appear before the court to file
their cIaims; and the judicial sale never takes placeunder a


(9) The law of Holland treats adul-
tery a." publie crirne, and not a. a
civil injury, For the punishmeuts in-


flieted in cases ofadultery, sce Henry's
Van Del' Linden, 354, et seq.




252 BRlTlSH GUIA NA.
year from the time of sequestration.-2 Rep. 2d series,
W. l. C.9.


Presideni.


The chief judge of Demerara, as we have before seen,
is called "l'he President," He is a barrister, and ap-
pointed by the King, with a salary of of3000 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 hut 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 pieasure
be known; from this order an appeal would lie 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 advice to the
court in all matters inwhich it shall be required, For a
full account 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 MI'. 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 for house
rento His fees (whieh average about .;[300 ayear) arise
from the entry and clearance of vessels, permits to ship
saiIors, certifieates, and registering oflanded slaves. His
present emoluments amount to .[2700 sterIing.-2 Rep.
2d series, W. l. C. 12, 13.


Second Fiscal of Demerara.
This officer is appointed by His Majesty ; he is the chief


civil magistrate and head of poliee in the distriet of Esse-
quibo, and his duties, among other things, are to take
eognizanee of all crimes, breaches of the peace, or of the
Iaws 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 between them in a summary way. (1)
lt is also his duty to see that the slaves 00 the plantations
are furnished with a sufficient supply of clothing and
other necessaries, and that they are comfortabIy lodged
and properIy attcnded to in sickness. The amount of his
saIary 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.s--z Rep. 2d series, W. l.
C.13.


Colonial Secretary.
This office is hcId in both coIonies by warrant under the


privy seal. There is no salary attached to the office of
Colonial Seeretary at Dcmerara, his emoluments consist
of fees. At Berbice that officer receives a salary of cf2000
sterling per annum, in lieu of fees, which are carried to the
public account. .


At Demerara it is not the practice to permit parties to
have access to the registry of the acts, or to the original
acts themseIves, deposited in the secretary's office; but


(1) By the Slavery Abolition Acl
no person bul a special justice of the
peace, appoinlcd under that act, will
in futuro possess any jurlsdictlon over
the appreuticed labourers, But as thc
commlssioners reported strongly in


favour of this branch of the Fiscal's
office, it will probably continuo lo be
exereised by him, not in the characler
of Fiscal, but under tbe authority of
an appoiutment as special justice of
the peace.




BRITISH GUIANA.


at Berbice, it appears that all 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 court, either as
sequestrators, curators, guardians, 01' trustees; to examine
the elaims filed against insolvent estates, and to report
thereon, and on all matters of account referred to him by
the court. The sworn accountant has no salary but is
paid by fees,


There appeurs to be a diversity in the practice of the
two colonies, as to the arranging the claims of creditors in
cases of praJ et concurrentiai, At Demerara the court
dictates its c1assification 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 aH
parties.-2 Rep. 2d series, W. I ..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
the 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 Demorara, and from the terms of his commis-
sion, with which he furnished the commissioners, it would
appea1' that he is entitled to consider himself as a law
officer of the crown, and the legal adviser ofthe Governor,
as well as advocate p1'O Deo; and although, in practice it
does not appear that he has frequently acted 01' been con-
sulted in the before-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
commissioners thought that some 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 tbat he did 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 confírmed
by the court of criminal and civil justice. Till the year
1816, the nomination of the sub-marshals was with the
court of justice; but byan order of the court of the 25th
of April of that year, it was given to the first marshal.


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 pcrson, assisted, how-
ever, by a second mafshal in services out of the town,
. In neither colony is any salary attached to this office;
its emohrments arising solely from fees....':"2 Rep, 2d series,
W. 1; C. 18.


Drossart,
This officer has the superintendence of the gaol, and


the prisoners therein confined for criminal and civil
offences, and for debt, He is appointed in each colony
by the lieutenant-govemor thereof. At Berbice this offi-
cer is also called under-sheriff and gaoler.


At Demerara tbe cmoluments consist of a salary of
1500 guilders from the colony, and 1000 guilders from the




256 BRITISH GUIANA.



Crown, an allowance for house rent of ~~OO guilders, and
certain fees,


At Berbice the salary 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 Notarios,


The practitioners of the law in Demerara are divided
into practitioners in full (i.e. persons acting both as advo-
cate and attorney,)and attornies and solicítors, the last
being permitted to practise only in the Commissary Court.
A person called to the bar in Englarrd, 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 since his arrival in the
colony. The fiscal of Demerara, in answer to the first
question under this head, stated, that there were certain
rules in this matter, which, however, were never observed,
and that an idea had generally prevailed that an English
barrister could not practise in that colony, except through
courtesy. He observed, however, that an English 01' Irish
barrister, 01' Scotch advocate would be permitted, without
cxamination, to practisc 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 such.
They are admitted by the eourt as licentiates, without
being required to show that they have been called to the
bar in England, Ireland, 01' Scotland, 01' taken a degree
in a foreign university, They usually, however, produce
to the eourt certifieates from a professional man as to their
ability and charaeter.


The examinants 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 the party applying.-~Rep. ~d series, W.
1. C. ~1, 114, 115.


..




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 navigation and trade, The power of trying prize
causes is,withheld from them; the judges of these courts
are appointed by commission under the great seal of the
High Court of Admiralty in England; the judge at
Demerara (who is indeed the same gentleman who holds
the office of president of the courts) performing the du-
ties in person, while the Berbice judge executes the office
by deputy.


.These judges eojoy no salary, but are paid by fees,
which in 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
there had been no suits there for the last three or four
years.


The officers of these Vice-Admiralty courts, respec-
tively, are a King's advocate, a registrar, and a marshal.
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,
ea series, W. l. C. 24.


Criminal Court.


The first fiscal is the public prosecutor, under the
Dutch law, at Berbice; he receives 30,000.guilders per
annum in .lieu of costs cliargeable by him against the
colony for criminal prosecutions. At Demerara, if the
criminal be condemned, and he has the means to satisfy
the costs, the fiscal says he receíves the fees from him, but
not otherwise, The Governor, it appears, has the power
of poüüca custodia, with a view to prosecution or political
banishment.


The prisoner's counsel, it appears, is fumished with co-
a




-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.


CounseI are assigned to those prisoners, free or slaves,
who,: being too poor to fee counsel, apply to the court for
that assistance...,..·2 Rep. 2d series, W. I. C. p. 27.


A majority of the court, consisting at least of ftve, must
.ooncur before a criminal sentence can be passed.-2 Rep.
ea 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 inflicted
'under the English law.-2 Rep. 2d series, W. l. C. 29.


The sentence of the court in all capital cases, at Deme-
rara, is communicated to the Governor before being
carried into execution, In cases of severe corporal
punishment this was not considered necessary, unless re-
quired by the Governor; but since the 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 power of reprieve; he has also, by his instructions, the
power of pardoning in aH cases except for treason or mur-
der.-2 Rep. f¿d series, W. I. C. SO.


Orpkan Ckamber.


The duties of this department, as stated by the examí-
nants at Demerara, eonsist in taking possession of the
property .of persons dying intestate and other unrepre-
sented property, and admínistering thé saméfor thebenefít
oí· too creditors and heirs, At Berbice .the power is
claimed of having the superintendence ofminor orphans,
and over such persons as have become or are considered by
the honourable council of government incapable of ma-
naging their own concerns, as also over all estates which
devolve to it ah intestato.


The duties of the Orphan Chamber át Berbice are
executed by five members with a greffier (01' secretary),


.. and at Demorara by a president, two members and a




BRITISH GUIANA. ~59
greffíer, The orphan board at Demerara is stated by
rhe 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 under the control of the Governor and Coun-
cil; they serve for a period of four years.


When estates faIl under 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 toaIl parties interested, to file and substantiate
their claims, Such appears to have been formerly the
course at Berbice; but the greffier. of the board informed
the commissioners, that although such notice is always in-
sertedin 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.


It appears that the ancient law of distribution andde-
scent ab intestatM, as it prevaileü in North. Holland, is in
force in these colonies, and that there is no distinction in
this respect between personal and real property. Neither
does it appear from these answers, that any complaint is
made of the rules of descent or 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, or of half, if they exceed that number,
is much hetter .adapted to the present state ofsociety than
the restriction by the Spanish.Iaw at Trinidad of the pa-
rent to one fifth.


The mode of proving private wills (i, e. wills not drawn
orattested 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 or notarial copy,
which copy is received in the court as evidence. No fur-
ther proceedings take place until a question realIy arises
upon the validity of the will so registered, wheñ it is de-
termined before the 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 uf 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 consequently 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 regulated this proceeding by
a placaat, authorizing the judge of the bankrupt's domi-
cile to settle and rank the preferences and priorities of the
claims of the several creditors, including those of the state,
by the regular judgment of prre and concurrence, ordi-
nario modo, retaining the privilege of the sovereign to a
preference when properly established.-2 Rep. 2d series,
W. J. C. 35.


Pre et Concurrentia:
This is a process by the Dutch law to rank the


claims and priorities of ereditors 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 alwaysbeen made in Europe by foreign creditors and
mortgagees, of the delays cxperienced in the judgments of
the pl'reand coneurrence, The causes of their complaints
may easily be remedied.e-B Rep. 2d series, W. I. C. 36.


Bankruptcy.
It appears that there are no bankrupt laws in force


in these colonies similar to those in England, nor any
law by which thedebtor can obtain a complete dis-
charge. He is therefore obliged, in cases of insolvency,
to have recourse to the eessio bonorum, which is a writ
íssuing 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
nearly the same efiect as thc Insolvent Act in England,
with the cxception, however, that it is regulated by com-
mon law, and not like the latter by statute, and is only


,


~




BRITISH Gl1IANA.


conditional in the first instance, being granted with com-
mittimus to the judge of the debtor's domicile for final
confirmation 01' rejection after hearing of the creditors,


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 undel' the English commission, but that the bank-
rupt would still be liable, although it is stated that the
court at Berbice would give effect to the assignment.-~
Rep. ~d series, W. l. C. 37.


It appears that a colonial creditor, notwithstanding a
previous 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 oí
Odwin v, Forbes, decided in Demerara, and published in
Mr, Henry's Tract on Foreign Law, London, 1823.


Coste,
The present mode 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 court.-2 Rep. ~d series,
W. l. C. 38.


Appeals.
It appears that an appeal to the King in Council Iies


from the courts in these colonies, where the matter in liti-
gation exceeds of5GO 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 the court within fourteen
days from the date of the sentence, otherwise execution
may issue; after which noting of appeal it is the practice
to petition the Governor, as His Majesty's representative,
for leave to appeal, 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 generally 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 or provisional sentence, if
reparable on the definitive sentence, or on the merits,


At Demerara, ít appears that personal security in
appeal, if good and sufflcient, is accepted-s-f 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-
tion, rendered equally binding on the parties with a rule
of court in England under the statute of William & Mal'Y;
for under this mode of proceeding the parties appear
before two commissioñers 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. ea 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 Commission rifMajor-General Sir Benjamin. D' Urban,
K. C. B., as Governor and Commander-in-Uhief 01 British
Guiana; dated 4th March, 1831.


WILLIAlVIR.
WiLLlAM THE :FOUR.TH, by the Grace of God, of the United Kingdom of
Great Britain and Ireland King, Defender of the Faith, To our trusty
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 continent of South America, comprisiug the united colony of De-
merara and Essequibo and the colony of Berbicé, should henceforth be
.united together, and should constitute one colony, in the manner herein-
after provided ; Now know you, that we, reposing especial trust and




BRITISH GUIANA. '!263
confidence in the prudence, courage, and loyalty of you, the said Sir
Benjamin D'Urban,of our special grace, certain knowlcdge, and mere
motion, have thought fit to constitnts and appoint, and by these presents
do constitute and appoint you, the said Sir Benjamin D'Urban, to be,
during our will and pleasure, our Govemor and Commander-in-Chief
in and over all our settlements on the northern coast of the continent oí
South America, comprisingall such territories and jurisdictions as have.
hitherto been comprised in the said united colony oí Demerara and
Essequibo and the said colony oí Berbice respectively, with their
respective dependencies, and all forts and garrisons erected and esta-
blished, or which shall be erected and established within the same, and
whieh settlements shall heneeforth collectively constitute and 'be one
colon)', and shall be called "The Colony of British Guiana :" And we
do hereby. require and command you, our said Governor, to do and
execute all things in duc manner as shall belong to your said command,
and the trust we have reposed in you, according to the several powers
and directions granted to or appointed you by this present commission
and the instructions herewith given to you, or according to such further
powers, instructions, and authorities as 'shall at any future time be
granted to or appointed for you under our signet and sign manual, or
by our order in out Privy Council,or by us through one of our principal
Secretarios of State: And we do further grant, direct, and appoint
that the form of civil government beretofore by law established in the
said united colony of Demerara and Essequibo, shall be and the same
is hereby established in and throughout tite said colony of British
Guiana, and that all 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 said colony of
British Guiana, anll .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
united colony of Demerara and Essequibo: Provided nevertheless, and
we do hereby declare our will to be, that the number of the members oí
certain of the said bodies politic and corporate heretofore existing in the
said united colony of Demerara and Essequibo, shall in the said colony
of British Guiana be augmented and enlarged in such manner as by
your said instructions is directed in that behalf: Provided also, and
we do further declare our pleasure to be, that nothing herein contained
shall extend, revoke, or abrogate any law or lawful usage, or custom now
in force in the said united colony of Demorara and Essequibo, or in the
said colony of Berbice respectively, save only in so far as relates to the
separate constitution and form of civil government heretofore established
and in use in the said colony of Berbice, which said constitution or
forro of civil government we do hereby abrogare and díssolve, 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 saideolony of British Guiana: Pro;
vided also, and we do further declare our will and pleasure too be, that
nothing herein contained extends 01' shal! be construed to extend in
anywise to alter 01' 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," 01' to
render legal any transfer 01' removal of any slave whieh would have been
iIlegal if these presenta had not been made, it being our pleasure that
for the purposes and within the meaning 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 Benjamin D'Urban,
fuIl power and authority, with the advice 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 said
colony, subject, nevertheless, to all 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 disal!ow any such laws, and to make and establish from time to time,
with the advice and consent of Parliament, 01' with the advice of our or
their Privy Council, al! such laws as may to us 01' them appear neces-
sary for the order, peace, and good government of the said colpny, as
fuIly 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 seal
appointcd for the sealing of al! things whatsoever that shall pass the seal
of our said colony: And we do hereby give and .grant to you, the said
Sir Benjamín D'Urban, ful! power and authority, inour name and in
our behalf, but subject nevertheless to such provisions as are in that
respect contained in your said general instructíons, 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, 01' to any persons, bodies politicor cor-
porate, in trust, for the publie uses of our subjects there resident, 01' aey
of them: And we do hereby give and grant unto you full power aud
authority, as you shal! see occasion, in our name and in our behalf, to
remit any fines, penalties, 01' forfeitures whieh may accrue 01' become
payable to us, so as the same do not exceed the sum of 1:50 sterling in
any one case, and to respite and suspend the payment of any such fine,
penalty, 01' forfeiture exceeding the said sum of 1:50, until our pleasure
therein shall be known and significd to you: And we do herehy give
aud grant. unto you full power and authority, as you shall see occasion,




BRITISH: GUIAN A. 265
in our ,name and in our behalf, to grant to any offender convicted of any
crime in any court, 01' before any judge, justice, 01' magistrate within our
said colony, a free and unconditional pardon, 01' a pardon subject to
such conditions as by any law in force in the said colony may be there-
unto annexed, 01' any respite of the execution of the sentence of any such
offender, for such period as to you may seem fit: Provided always, that
in cases of treason 01' murder, no pardon, either absolute 01' 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 01' by virtue of any commission 01' warrant granted 01'
to be granted by us, 01' in our name 01' under our authority, which sus-
pension shall continue and have effcct only until our pleasure therein
shall 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 saíd general instructions accom-
panying this your commission: And in case ofyour death 01' absence from
the 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, 01' by such person as may be appointed by us under our
signet 01' 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 sueh Lieutenant-Governor, 01' adminis-
trator of the government as aforesaid, then OIU pleasure is, and we do
hereby direct that the senior offieer for the time being in the command
of our land forces within our said colony, shall take upon himself the
administration of the government thereof, and shall execute this our
commission, and the several powers herein, and in the aforesaid instruc-
tions contained; and if any such officer shall, during such his adminis-
tration of the government, be suspended in the command of our said
forces by any senior officer, then our pleasure is, that such senior officer
shall assume the administration of the said government, and the execu-
tion 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
hereby require and eommand all officers,civil and military, and all other
our subjects, and persons inhabiting our said eolony of British Guiana,
to be obedient, aiding and assisting unto you, 01' to the officer adminis-
tering the said government for the time being, in the execution of this our
commission, and of the powers and authorities 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, sha1l not take effect until this our commission sha11 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 a1l and singular the powers and authorities
hereby granted unto you for and during our will and pleasure. In
witness, &c. &c. Given at our Court at Brighton, the 4th day of
March, 1831, in the first year of our reign.


By His Majesty's Command.
(Countersigned) GODERICH.


Shortly after the colonies of Demerara, Essequibo, and Berbice had
been united under one government the followingOrders in Council were
issued, abolishing the ancient eourts, and appointing perfectly new
judicial establishments, not only 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 oí the alterations they have effectedin the courts fOI
the administration oí justice in British Guiana, and this will be aceom-
panied by the regulations 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 81'. LUCIA.


-


Copies ofthe Orders in Councilof the 23d April and 20th June,
1831,for the Administrationof Justiee in British Gmana, Tri-
nidad, and St, Lucia.


At the Court of Sto 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 and Civil Justice in
Demerara and Essequibo, and His Majesty's Courts of Civil Justice and
of Criminal Justice respectively in Berbice, and His Majesty's Courts
of Criminal Trial, and of First Instance of Civil Jurisdiction respectively
in Trinidad, and His Majesty'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 in tbe law: And whereas it is fit that the
said courts respectively should henceforth be holden by persons of com-
petent legal education; it is therefore ordered by the King's most
Excellent l\1ajesty, by and with tbe advice of his Privy Council, that
henceforth the Conrt oí Criminal and Civil Justice of Demerara and
Essequibo, and the Court of Civil Justice and the Court oí Criminal
Justice of Berbice, and the Court of Criminal Trial, and the Court oí
First Instance of Civil Jurisdiction in the island of Trinidad, and the
Royal Court of St. Lucia, shall be respectively holden by andbefore
three judges and no more; that is to say, each oí the said courts shall be'
holden by and beforethe President for the time being of thé Court oí
Criminal and Civil Justiee oí Demerara and Essequibo, and the Chief
Judge for the time being oí Trinidad, and the First President for the
time being of the Royal Court of St. Lucia, or by and before the persons
who, during the vacancy of any such offices, or during the absence or
incapacity of any oí the said judges, may have received a provisional or
temporary appointment to act as and in the place and stead oí any such
judges or judge,


2. And it is hereby further ordered that no Judge in any of the
several courts aforesaid, and no Vice-President thereof, shall be the
owner oí any slave, or shall have any share or interest in, or any mort-




68 ORDERS lN COUNClL.
gage or security upon any slave, or sball be proprietor of, or have any
share 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 of, for, or upon any plantation or estate cu1tivated 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 Demorara, Berbice, Trini-
dad, and Sto Lucia.


4. And it is further ordered, that two sessions at the least shall be
bolden in eacb year in each of tbe said ceurts, and tbat the times of
holding such sessions in sueh respective colonies, and the duration
thereof in each, shall 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 authorized to arrange with each
other the times of bolding such sessions as aforesaid in such manner
as may best promote the administration of justiee therein, and the com-
mon convenienee 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 aud be observed until Bis
Majesty's pleasure therein shall have been signifled through one of his
principal Secretaries of State.


6. And 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
Dernerara and Essequibo shall preside and take precedence over such
other two judges as aforesaid; and the said Cbief Judge of Trinidad
shall in like manner, in each of the said courts, take precedence over
the First President of StoLucia.


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
such and the same jurisdiction, powers, and authority in every respect
as the present judges of the said courts now have or lawfully possessj
exercise, or enjoy, and that tbe decision of the majority of sueh 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, threc assessors
shall be associated to the said three judges, in thc manner thereinafter
provided for, whicb 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
olfence, or adjudged to suffer any punishment by any judgment or
sentence of any of the said courts, unless a majority of the total number
of such judges and assessors shall in open court vote in favour of such
judgment or sentence.


9. And it is further ordered, that in each of the said courts the said
three judges and assessors sha1l in a1l criminal cases have, possess,
exercise, and enjoy such and the snme jurisdiction, powers, and authority
in every respect as the present judges of the said courts now have or
lawfully possess, exercise, or enjoy, and that the decision of the ma-
jority of the total number of such judges and assessors shall in all
criminal cases at any time depending in any of the said courts, be taken
and adjudged to be, and shall be recorded as, the judgment of the whole
eourt,


10. And it is further ordered, that the Governor of each of the said
eolonies shall by proclamations to be by him from time to time for that
purpose issued within the sama, make and prescribe such rules and
regulations as may be necessary to determine the qualifications of such
assessors, the mode of convening them, the penalties to be infiicted on
persons refusing to aet as such assessors when thereunto lawfulIy re-
quired, and the mode of chalIenging such assessors, and what sha1l be
lawful ground of challenge, and how the validity of any such challenge
sha1l be determined, together with every other matter and thing which
may be necessary to the effective discharge by such assessors of the duty
thereby committed to them; and every such proclamation shall forth-
with be transmitted by such Governor for His Majesty's approbation,
and shalI in tbe meantime, and unless disallowed by His Majesty, and
until such disallowance shall be made known to such Governor, be of
the same force and effect as if the same had been contained in this pre-
sent order.


11. And it is further ordered, that none ofthe judges nor any Vice-
Presidentof either of the said courts respectively, shall be liable to
challenge orrecusation 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 Viee-President of such
court, and it shall be the duty of such Vice-President to hear and
determine alI such interlocutory matters arisifg in or upon any civil or
criminal suit, action, or proceeding depending in the said court, as may
be brought before him, and also to inquire into and report to the said
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 shall and he is hereby required to conform himself to
and observe any such general rules or orders of court as may be made
for his guidance in the manner hereinafter mentioned.


13. And it is further ordered and declared, that it shall be lawful for
the said Supreme Courts respectively to review, reverse, correct, or
confirm, as occasion may require, any judgment, sentence, rule, or order
which may be made, given, or pronounced by any such Vice-President
as aforesaid, in the exercise of the jurisdiction hereby vested in him, and
that in the exercise of such jurisdiction, such Vice-President shall act
alone and without any colleague or assessor,and shall have all such and
the same powers and authority in that behalf as now 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 shaU seem meet concerning the forms and rnanner of pro-
ceeding to be observed in the said courts respectively, and the practice
and pleadings in all actions, suits, and other matters, both civil and
criminal, to be therein 'brought, and concerning the duties and juris-
diction of the said respective Vice-Presidenta, and concerning the
proceedings of the executive and ministerial offices of the said courts
respectively, and concerning the process of the said courts, and the mode
of executing the same, and concerning the admission of advocates, bar-
risters, attornies, solicitors, notaries, and proctors in the said courts
respectively, and concerning all other matters and things which relate to
the conduct and dispateh of business in the said respective courts; and
aU 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 shaU be repugnant to this present
order, and that the same shall be so framed as lo promete, as far as may
be, economy and expedition in the dispatch of the business.of the said
eourts respeetively, and tbat the same be drawn up in plain, succinct,
and compendious terms, avoiding all unnecessary repetltions and
obscurity, and be promulgated in tbe most public and authentic manner
in the colonies to which the same may respectively refer, for fourleen
days at least before the same shall be binding and take effect therein;
and provided also that aU such rules, orders, and regulations shall
forthwith be transmitted to Bis Majesty, under the seal of the COUl't, 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
eolonies 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
of the said colonies respectively, with the advice of the Court of Policy
in the said colony in British Guiana, and with the advice of the Council
of Government in the said colonies of Trinidad and Sto Lucia, by any
laws 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
jurisdictíon of sucb Civil Courts shaU not be extended to any case
wherein the sum or matter in dispute shaIl exceed the amount or value
of i20 sterling money, or wherein the title to any lands or tenements,
or the title of any person to his or her freedom, or any fee, duty, or
officemay be in question, or whereby rights in future may be bound;
and provided also, that thejurisdiction of such courts in criminal cases
sha11 not be extended to any case wherein any person may be accused
of any crime punishable by death, transportation, or banishment; and
that ít shall not be lawful for any such Criminal Court to infíict 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 stripes, 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
authorized to make, ordain, and establish all necessary rules, orders, or
regulations respecting the manner and form of proceeding to be observed
in the said Petty Courts, and respecting the manner and form of carry-
ing the judgments and orders of such courts into execution, with all
such other rules, orders, and regulations as may be necessary for giving
full and perfect effect to the jurisdiction of such courts respectively, and
such rules, orders, and regulations from time to time to revoke, alter, and
renew as occasion may require.


17. And it ishereby further ordered, that it shall and may be lawful
for any person or persons, being a party or parties to any civil suit or
aetion dependíag inany of thesaid Supreme Courts .of any of the said
colonies, to appeal to His Majesty, hís heirs ándsuccessors, in his or
their Privy Council, agaiost any final judgment, decree, or sentence of
any of .the said courta,or against any rule or arder made in any such
civil suit or action having the effectof a final or definitive sentence,and
which appeals shall be made subject to the rules and limitations follow-
ing; that is to say, in case any such judgment, decree, order, or sentence
shall be given or pronounced for or in respect of any sum or matter at
issue aboye the amount or value of ;f500 sterling; or in case such
judgment, decree, order, or sentence shall involve, directly or indirectly,
aDY claim or demand to or question respecting property or any civil




ORDERS IN COUNCIL.


right amounting to 01' of the value of .f500 sterling; al' in case such
judgment, decree, arder, al' senteuee shall determine al' affect the right
of allY person to his al' her freedom, the person al' persons feeling
aggrieved by any such judgment, decree, arder, al' sentence may, within
fourteen days next after the same shall have been pronounced, made, al'
given, app1y to such court by petition for leave to appeal therefrom to
His Majesty, his heirs, and successors, in his 01' their Privy Council;
and in case such leave to appeal shall be prayed by the party 01' parties
who is 01' are directed to pay any sum of money 01' perform any duty,
such Supreme Court shall and is hereby empowered either to direot
that the judgment, decree, order, 01' sentence appealed from shall be
carried into execution, al' that the execution thereof shall be suspended
pending the said appeal, as to the said court may in each case appear
to be most consistent with real and substantial justice; and in case
such Supreme Court shall direct such 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 execution thereof, enter into
good and sufficient security, to be approved by the said Supreme Court.
for the due performance of such judgment 01' arder as His Majesty, his
heirs and successors, shall think fit to make thereupon ; 01' in case the
said Supreme Court shall direct the execution of any judgment, decree,
order, 01' sentence to be suspended pending the said appeal, the person
01' persons against whom the same shall have been given, shall in like
manner, upon any order for the suspensión of any such execution being
made, enter into good and sufficient security, to be approved by the said
Supreme Court, for the due performance of such judgment 01' 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 satisfaction of such court, for the prosecution of the
appeal and for the payment of all such costs as may be awarded by His
Majesty, his heirs and successors, to the party 01' parties respondent;
and if such last-mentioned security shall be entered into within three
months from the date of such petitíon for 1eaveto appeal, then, and not
otherwise, the said Supreme Court shall allow the appea1, and the party
01' parties appellant shall be at liberty to prefer and prosecute his, her,
01' their appeal to Bis Majesty, his heirs, and successors, in His 01'
their Privy Council, in such manner aud uuder such rules as are
observed in appeals made to His Majesty in Couucil from his planta-
tions 01' colonies,


18. Provided always, and it is hereby declared and ordered, that
nothing herein contained doth 01' shall extend, 01' be construed to ex-
tend, to take away 01' abridge the undoubted right 01' authority of His
Majesty, his heirs and successors, to admit and receive any appeal from
any judgment, decree, sentence, 01' arder of any of the said Supremo




ORDERS IN COUNCIL. 273
Courts, on íhe humble petition of any person 01' persons aggrieved
thereby, in any case in which and subject to any conditions or restric-
tions upon and under which it may seem meet to His Majesty, his
heirs and succcssors, so to admit and receive any such appeal.>


19. And it is further ordered, that in al! cases of appeal allowed by
any of the said Supreme Courts, or by His Majesty, his heirs and suc-
cessors, such court shall, on the application 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 all 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 suoces-
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 sorneof them, divers
unnecessary offícers, being or claiming to be entitled to fees of large
amount for services by them rendered to suitors and others concerned
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 officeof 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 mentioned,
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-General of
Minors, and the office of Defender of the .Absent, and the office of
Depositario-General, and the office of Taxador, and the officeof 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 said JudicialReferee,
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
JurisdictionofTrinidad: and it is further ordered, that the office of
Curateur aux Successions Vacantes, and Regisseur des Biens des
Absens, as at present existing in SI. Lucia, shall be and the same is


T




~74 BRITISH GUIANA.
hereby aholished ; and that the duties heretofore performed by that
officer shall henceforward, but subject to the rules of court to be made as
hcreinbefore mentioned, be performed by the Vice-President of the
Royal Court of the-Island of Sto Lucia.


'22. And whereas various jurisdictions have heretofore been exercised
by certain courts in the island of Trinidad, which by reason of the
ehanges introduced into the administration of justice therein, it is no
longer necessary to retain; it is therefore hereby ordered, that the se-
veral courts or tribunals following, that is to say, the Court of Criminal
Inquiry, the Court of Audiencia, the Complaint Court, tbe Court of
the Alcaldes in Ordinary, and tbe Court of the Alcaldes de Berrio, and
al! offices in and connected with the said courts respectively, shall be
and the same are bereby 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 tbeir Privy
Council, and all laws, customs, and usages now or at any time hereto-
fore established or in force in any of the said colonies, so far as such
orders, laws, or usages are in anywise repugnant to or at variance with
this present order, shall be and the same are bereby revoked,abrogated,
rescinded, and annulled,


24. And it is furtber ordered, tbat for the pmpose and witbin tbe
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 KINO'S Most Excellent 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 CounciJ, for improving the


,administration of justice in His Majesty's colonies of British Guiana,
'Trinidad, and Sto Lucia; and for that purpose it was thereby ordered,
that the Chief Judges of the said three colonies should from time to time
repair to the said colonies, for the purpose of holding in succession
therein the Supreme Courts of sueh colonies respectively: And whereas
unforeseen dífficulties may arise to delay the execution of the said
order, and it may be necessary to make provision for the administration
of justice therein; in the meantime it is hereby ordered by the King's
Most Excellent Majesty, by and with the advice of his Privy Council,
that it shall and may be lawful for the Governors for the time being of
tbe said colonies of British Guiana, Trinidad, and Sto Lucia, or for 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 furtber pleasure shall be
signified to the said respective Govemors.


2. And it is further ordered, tbat during any such suspension of the
said order of tbe 23d day of April, 1831, and no longer, the rules,
orders, and regulations hereinafter made and contained shall be observed
in tbe administration of justice in the said respective colonies; that is
to say, in the first place, it is ordered, that hencefortb tbe Court of Cri-
minal and Civil Justice of Demerara and Essequiho, and the Court of
Civil Justice, and the Court of Criminal Justice of Berbice, sball hence-
forth be holden by and before three judges and no more, and that the
first or presiding judge of the said court sball be called and bear the
style and title of Chief Justice of British Guiana, and that the second
and third of such judges shall be called and bear the respective styles
and titles oí 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, shall henceforth be holden by and before three judges
and no more; and that the first or presiding jurlge of the said court shall
be called and bear the style and title of Chief Justice of Trinidad, and
tbat the second and third of such judges shall be called and bear the
respecti ve styles and titles of First Puisne J udge and Second Puisne
J udge of Trinidad.


4. And it is further ordered, tbat the Royal Court of Sto Lucia sball
benceforth be bolden by and before three judges and no more; and that
the first or presiding judge of the said court shall be called and bear the
style and title ofChief Justice of Sto Lucia, andthat the second and third
of suchjudges shall be called and bear tbe respective styles and titles of
First Puisne Judge and Second Puisne Judge oí St, Lucia.


5. And it is further ordered, that whenever and so often as the office
of any cbief justice or puisne judge of any of the said colonies shall
become vacant by tbe death, absence, incapacity, resignation, suspen-
sion, or removal of any such chief justice or judge, tbe Governor of sucb
colony for tbe time being shall be and is bereby authorized to supply
and fill up sucb vacancy by the appointment of sorne proper person, by
a commission under the public seal of sucb colony, which commission
shall be made to continuc in force only until His Majesty's pleasure
shall be known.


6. And it is hereby further ordered, that none of the said judges of
any of the colonies aforesaid shall be the owner oí any slave, or shall
have any share or interest in, or uny mortgage or security upon any


T2




276 BRITISH liUIANA.
slave, or shaJl be proprietor of, or have any share 01' interest in, 01' mort-
gage 01' security upon any land cultivated by the labour of slaves, 01'
shall be 01' act as the manager, overseer, agent, 01' attorney of, for, or
upon any plantation 01' estate cultivated 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 or interest as afore-
said under any legal process, for the recovery of any debt or demand, 01'
by testamentary 01' other succession, inheritancc, donation, 01' other in-
voluntary title, but al! such property 01' interest as aforesaid which any
such judge may so acquire, shall, within one calendar month next after
the acquisition thereof, be by him CQJPmunicated to the Governor of the
colony, and shall be alicnatcd and disposed of within six calendar
months, unless His Majesty shall in any case be pleased to grant to any
such judge a longer period for effecting any such alienation 01' disposal
thereof.


8. And it is further ordered, that in each of the said courts respec-
tively, the said three judges of the said respective colonies shaJl in al!
civil cases have, possess, exercise, ano enjoy sueh and the same juris-
diction, powers, and authority, in every respeet, as the judges ofthe said
courts bave heretofore lawfuJly possessed, exercised, 01' enjoyed; and
that the decisíon of the majority of such three judges shall in all civil
cases at any time depending in the said respective courts, be taken and
adjudged to be, and shal! 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 courts respectively for any crime 01' offence,
three assessors shall be associated to the said three judges, in the mano
ner hereinafter provided for, which assessors shall be entitled to de.
liberate and vote with such jndges upon the final judgment to be
pronounced in every such criminal case, or no person shall be convicted
of any crime 01' offence, 01' adjudged to suffer any punishment by any
judgment 01' sentence of any of the said courts, unless a majority of the
total number of such judges and assessors shall in open court vote in
favour of such judgment 01' sentence.


10. And it is further ordered, that in each of the said courts the said
three judges and assessors shall in all criminal cases have, possess,
exercise, and enjoy such and the sarne jurisdiction, powers, and
authority in every respect as the judges of the said courts respectively
have heretofore lawfuJly possessed, l!'xercised, and enjoyed, and that the
decision of the majority of the total number of such judges and assessors
shall in aJl criminal cases at any time depending in any of the said
courts, be taken and adjudged to be and shall be recorded as the judg-
ment of the whole court,




ORDERS IN COUNCIL.


11. And it is further ordered, that it shall be lawful for the judges of
any of the said courts respectively to reserve the consideration of any
question of law arising upon any such criminal trial as aforesaid, and
to make order for the suspension or arrest of the judgment or 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 further ordered, that the assessors of the said
courts in Demerara and Berbice shall be chosen and appointed in such
and the same manner as the members of the Court of Civil and Criminal
Justice ofDemcrara have heretofore been chosen and appointed ; and that
the assessors of the said court for the trial of criminal prosecutions in Tri-
nidad shall be chosen and appointed from and out of the members of the
Cabildo of the town of Port of Spain in the said island; and that the
assessors of the said Royal Court of SI. Lucia shall be chosen and ap-
pointed in such and the same rnanner 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 courls shall be liable to challenge or recusation in or upon
any action, suit, or proceeding, civil or criminal, but that such assessors
shall be liable to be challenged on snch and tho 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 shall be decided by the judges presiding at any such
trial, without the concurrence or interference of the assessors 01' any of
them.


14. And it is further ordered, that it shall and may be lawful for the
judges of the said courts respectively, and they are hereby autnorized
and required to make, ordain, and establish a tariff or tnble of rees, to
be had, taken, allowed, and paid by the suitors in the said respective
courts, for and in respect of every sentence, judgment, order, and pro-
ceeding which may be pronounced, made, or had in any suit or action
depending therein, or which may or §h.all be paid or payable to any of
the officersof the said court respectively, or_to any advocate, oarristcr,
solicitor, attorney, proctor or notary, or other practitioner of the law
therein, and which tariff or table offeesshall, by the Chief Justice of each
of the said courts respectively, be transmitted to the Governor for the time
being of the colony to which such court may belong; and any such
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, or by the Governor, with the advice and consent of the Councíl
of Government in the said colonies of Trinidad or St. Lucia, shall be
binding npon al! persons interested therein ; and all persons 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 Hable to refund the same by such
summary process or proceeding as shall seem good to the said eourts
respeetively in that behalf.


15. And it is further ordered, that it shall and may be lawful for the
said Governor and Court of Poliey of British Guiana, and for the Go-
vernors of Trinidad and St. Lucia respectively, with the advice and
eonsent of the respeetive Couneils of Government thereof, by any
ordinances to be by them for that purpose made, to prescribe the form
and manner of proeeeding to be observed in the said respective eourts
for the prosecution and trial therein of all persons charged with the com-
mission of any erimes and offences eognizable within the said courts
respectively: provided nevertheless, that every such ordinance shall be
transmitted for lIis Majesty's approbation in the manner requiredby
law in reference to all ordinarrce>passed and enacted in the said
respective colonies.


16. And it is further ordered, that it shall and may be lawful for the
judges of the said courts respectively, and they are hereby authorized
and required to make and establish such rules, orders, and regulations
as to them shall seem meet, touching the distrlbution of the business of
the said courts between the respective judges thereof, and coneerning
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 procesa of
the said courts and the mode of executing the same, and concerning the
admission of advocates, barristers, attornies, solicitors, notarios, and
proctors in the said courts respeetively; all whieh rules, orders, and
regulations shall be framed in such a manner as to promote, as far as
may be, economy, method, and expedition in the despatch of the
business of the said courts respectively ; and the same shall be drawn
up 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 sueh rules,orders,
or regulations as aforesaid be repugnant to this present order, and that
the same be forthwith transrnitted under the seals of such respective
courts to the respective Governors of the said colonies respectively, to
be by them transmitted to Ilis Majesty for his approbation or dis-
allowance,


18. And whereas therc are established within the said colonies, 01"
sorne of them, courts having jurisdiction in civil cases of small amount,
and in cases of breaches uf the pcace and other petty offences,and ít is




ORDERS IN COUNCII.. 279
expedient that provision be made for the better administration of justice
in such courts; it is therefore hereby ordered, that no court within any
of the said colonies other than tbe supreme courts hereinhefore men-
tioned, shall be competent to hold jurisdiction in any civil case in whicb
the sum or matter in dispute shall exceed the amount or value of &20
sterling money, or in which the right of any alleged 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 tbat no court within any
of the said colonies, other than the Supreme Courts aforesaid, shall be
competent to hold jurisdiction in any criminal case wherein any per-
son sbaU be accused of anycrime punishable by death, transportation,
or banishment; and that it shall not be lawful for any court in any of
the said colonies, other than tbe Supreme Courts aforesaid, to infíict
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 sball be lawful for the Governor
of British Guiana, witb the advice and consent of the Court of Policy
thereof, and for the Governors of Trinidad and Sto Lucia, with tbe
advice and consent of the respecti.Y.r- Councils of Government tbereof,
to establish, constitute, and erect witbin the said respective colonies,
inferior courts having jurisdiction in civil and criminal cases within the
limits aforesaid, and for that purpose may abolish allY such inferior
courts as may be now existing tberein, or modify the constitution of
such courts as may be found expediento


20. And it is further ordered, that the judges of the said Suprema
Courts of the said colonies respectively shall be and they are hereby
authorized to make, ordain, and establish aH necessary rules, orders,
and regulations respecting the manner and form of proceeding to be
observed in tbe 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, and regulations as may be
necessary for giving full and perfect effect to the jurisdicnon oí such
courts respectively, and such rules, orders, and regulauons from lime to
time to revoke, alter, and renew as occasion may require; provided
always, that all such rules, orders, and regulations as aforesaid shall be
promulgated, and shall be transmitted to His Majesty for his approba-
tion or disallowance, in the manner hereinbefore directed and required
with respect to the rules, orders, and regulations of the said Supreme
Courts,


21. And it is further ordered, that the officc of Father-General uf
Minors, and the offiee of Defender of the Absent, and the officc of




280 BRITISH GUlANA.
Depositario-General, as at present existing in the island of Trinidad,
shall be and the same are hereby respectively abolished; and that the
office of Taxador, and the oflice of Judicial Referee, Liquidator, ami
Partidor, as at present existing in the said island, sha1l be and the same
are hereby'consolidated, and sha1l constitute one oflice.


22. And it is further ordered, that the offices of Curateurs aux Suc-
cessions Vacantes, and Regisseurdes Biens des Absens, as at present
existing in Sto Lucia, shall be and the same are hereby abolished,


23. And whereasvarious jurisdictions have heretofore been exercised
by certain courts in the island of Trinidad, which, by reason of tbe
changes hereby introduced into the administration of justice there, it is
no longer necessary to retain ; it is therefore hereby ordered, that the
several courts or tribunals following, that is to say, the "Court of Cri-
minal Inquiry," the "Tribunal of Appeal, in all cases of condemnation
lo death," the "Superior Tribunal of Appeal of Civil Jurisdiction,' the
"Tribunal of the Royal Audiencia," and all offices in and connected
with the said courts respectively, shall be and the same are hereby
respectively abolished.


24. And it is further ordered, that the Court of Sénéchaussée, in the
island of Sto Lucia; and all offices in and connected with that court,
shall be and tbe same are bereby abolisbed; and that tbe Royal Court
of the said island shall henceforth have an original jurisdiction in a11
causes arising within the said island, in such and the same manner and
to sueh and tbe same extent as such ~inal jurisdiction was heretofore
vested in the said Court of Sénéchaussée.


25. And it is hereby furtber 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 tbe said Court of Civil Jnstice of llerbice,
or in tbe said Court of First Instanee oC Civil Jurisdiction of Trinidad,
or in tbe said Royal Court of Sto Lucia, to appeal to His Majesty, his
heirs, and successors, in his or their Privy Council, against any final
judgment, decree, or sentence, or against any rule or order made in any
such civil suit or action, and having the effect of a final or definitive
sentence, and whicb appeals shall be made subject to the rules and
limitations Co11owing: that is to say,
, First, Such judgment, decree, order, or sentence shall be given o,
pronounced for or in respeet of a sum or malter at issue aboye the
amount or value of .f500 sterling, or shall involve direetly or indirectly
the tille to property, or to sorne civil right, amounting to or of the value
of ,fSOO sterling, or shall determine or affect tbe right of sorne alleged
slave to his or her freedom :


Secondly, The person or persons feeling aggrieved by such judg-
ment, decree, order, or sentence, shall, within fcurteen days next after




ORDERS IN COUNCIL. 281
the same shall have been pronounced, made, 01' giveu, apply to the
court by petition for leave to appeal thercfrom to His Majesty, his heirs,
and suceessors, in his 01' their Privy Council:


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 direet that the judgment, decree, 01' sentence
appealed from shal1 be carried into execution if the party or parties
respondent shal1 give security for the immediate performance of any
judgment 01' sentence which may be pronounced 01' made by I1is Ma-
jesty, his heirs, and successors, in his 01' 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 01' parties appellant
shall establish to the satisfaction of the court, that real and substautial
justice requires that pending such appeal execution should be stayed, it
shall be lawful for such courts to order the execution of such judgment,
decree, order, 01' sentence, to be suspended pending such appeal, if the
party 01' parties appellant shall give security for the immediate per-
formance of any judgment 01' sentence which may be pronounced 01'
made by His Majesty, his heirs, c.ad scccessors, in his 01' their Privy
Council, upon any such appeal:


Fifthly, In all cases security shal1also be given by the party 01' parties
appellant for the prosecution of the appeal, and for the payment of all
such costs as may be awarded by His Majesty, his heirs, and successoís,
to the party 01' parties respondent :


Sixthly, The court from which any such appeal as aforesaid shall be
brought shall, subject to the conditions hereinafter mentioned, deter-
mine the nature, amount, and sufficiency of the several securities so to
be taken as aforesaid :


Seventhly, Provided nevertheless, that in any case where the subjcct
of litigation shall consist ofimmoveable property, 01' oí any slaves, stock,
utensils, 01' implements, held therewith 01' attached thereto, and the
judgment, decree, arder, 01' sentence appealed from shal1 not charge,
affect, 01' relate to the actual occupation thereof, no securiiy shal1 be
demanded either from the party 01' parties respondent 01' from the parly
or parties appel1ant, for the performance of the judgment 01' sentence to
be pronounced 01' made upon such appeal; but if such judgment, de-
cree, order, 01' sentence, shall charge, affect, 01' relate to the occupation
of any such property, then such' security shall not be of greater amount
than may be necessary to secure the restitution, free from all damage 01'
loss, of such stock, utensils, 01' implements, or of the intermediate profit
which, pending any such appeal, may probably accrue from the inter-
mediate occupation of such property; and each of the said courts is
hereby authorized and lrequired to sequestrate any such immoveable




282 BRITISH GUIANA.
property, sIaves, stock, utensils, and impIements, in order still further
to rednce the amount of snch security, if the party 01' parties by whom
such security is to be given shall make application to such court for that
purpose, and the other party 01' parties shaIl not show good canse to
the contrary :


Eighthly, In any case where the subject of litigation shaIl consist of
money 01' other chattels, 01' of any personal debt 01' demand, the security
to be demanded either from the party 01' parties respondent, 01' from the
party 01' partíes appellant, for the performance of the judgment 01' sen-
tence to be pronounced 01' made upon such appeaI, shaIl be either a bond
to be enterad into in the amountor value of such subject of litigation by
one 01' more sufficient surety 01' sureties, 01' such security shall be given
by way of mortgage 01' voluntary condemnation of 01' upon sorne im-
moveabIe property 01' slaves (1) situate and being within such colony,
and being of the fuIl value of such subject of litigation, over and above
the amount of aIl mortgages and charges of wbatever nature upon 01'
affecting tbe same : ~


Ninthly, In any case where the subject of Iitigation sbaIl be the right
of any allegad slave to his 01' her freedom, the amount of the security
for the performance of the judgment 01' sentence to be pronounced and
made upon any such appeal, shaIl in no case exceed the pecuniary value
of such aIleged slave, and sball be gi ven either by such surety 01' sure-


.ties, 01' by sucb mortgage 01' voluntary condemnation as aforesaid :
Tenth, TIte security to be given by tbe party 01' parties appeIlant for


tbe prosecution of tbe appeal and for tbe payment of costs, shall in no
case exceed tbe sum of .í300 sterliug, and sbaIl be given eitber by such
surety 01' sureties, 01' by such mortgage 01' voIuntary condemnation as
aforesaid : I


Eleventb, If the security to be given by the party al' parties appellant
for the prosecution of the appeal and for the payment of such costs as
may be awarded, shall, in manner aforesaid, be completed within tbree
months from the date of the petitíou for leave to appeal, then, and not
otberwise, the court from which such appeal is brougbt shall make an
order aIlowing such appeal, and tbe party 01' parties appellant shall be
at liberty to prefer and prosecute his, her, 01' their appeal, to His Ma-
jesty, bis heirs, and successors, in his 01' their Privy Council, in such
manner and under such rules as are observed in appeals made to His
Majesty in Council from tbe plantations 01' coIonies :


Twelfth, Provided nevertheless, that any person 01' persona feeling
aggrieved by any order which may be made by, 01' by any proceeding
of any of the said courts respecting the security to be taken upon any


(1) Seo post, (he Slavery Abolition Act, ss, 9 and 10.




ORDERS IN COUNCIL. 283
such appeal as aforesaid, shall be and is hereby authorized, by petition
to His Majesty in Council, to apply for redress in the premises.


Provided always, and it is hereby further ordered, that nothing herein
contained doth or shall extend or be construed to extend to take away
or abridge the undoubted right or authority of Bis Majesty, his heirs,
and successors, to admit and receive any appeal from any judgment,
decree, sentence, or order of any of the said Suprema 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, that in all cases of appeal allowed byany
of the said Supreme Courts or by His Majesty, his heirs, and sueces-
sors, such court shall, 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 all
proceedings, evidence, judgments, decrees and orders had or made in
such causes so appealed, so far as the same have relation to the matter
of appeal, such copies to be certified under the seal of the said court.


27. And it is further ordered, that the said Supreme Courts respec-
tively shall in all cases of appeal to His Majesty, his heirs, and succes-
sors, execute and carry into immediate effect such judgments and orders
as His Majesty, his heirs, and successors, shall make thereupon, in such
manner as any original judgment or decree of the said Supreme Court
can or may be executed.


28. And it is herebyfurther ordered, that all 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 lawfully administering for the
time being the govemment of any of the said colonies, shall be deemed
and taken to be the Governor thereof.


And the Right Honourable Viscount Goderich, one of Hís Majesty's
principal Secretaries of State, is to give the necessary directions herein
accordingly.


(Signed) C. C. GREVILLE.




( 284 )


INFERIOR COURTS OF CIVIL JUSTICE.


Under the authority of the 19th section of the preceding
order, an ordinance was passed by the Governor and Court
of Policy on the 13th day of September, 1832, to repeal
the ordinance passed on the 23d of May, 1832, entitled
" 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-
peaIs the former ordínance, and then proceeds as fol.
Iows :-


Whereas by an order of His Majesty in Council, bear-
ing date 20th June, 18S1, 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 district of Berbice.


S. .And be it further enacted, that the said Inferior
Courts 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, a11 claims in currency
not exceeding SOO guilders being comprehended in this
Iimitation.


5. And be it further enacted, that the Registrar 01'
Sworn Clerk and Marshal of the respective Supreme
Courts of Civil Justice shall attend the sitting of the said
respective Inferior Civil Courts, and shall be entitled to
receive certain fees COl' services respectively performed by
them.


6. And be it further enacted, that when the Judges of
the Supreme Court shall have made, ordained, and esta-
blished aH necessary rules, orders, and regulations re-
specting the manner and forro of proceeding to be observed
in the said Inferior Civil Courts, and respecting the man-
ner and form of carrying the judgments and orders of the




BRITISH GUIANA. 285
said Inferior Civil Courts into execution, with aH such
other rules, orders, and regulations as may be necessary
for giving full and perfect effect to the jurisdiction of the
said courts respectively, and as soon as the said rules,
orders, and regulations shall have been duly promulgated
this court shall thereupon frame the tariff fixing the
amount of fees to which the respective officers of the said
court shall be entitled for services performed by them in
their respective offices; and on promulgation thereof by
this court, the said tariff shall have force of law, and be-
come binding on all parties concerned. .


7. And be it further enacted, that this ordinance shall
come into fuH 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 Court, and the subsequent establishment of
Inferior Courts, local regulations were made directíng the
mode of proceeding in the Supreme Court and in the In.
ferior Courts of British Guiana. Many of these regula-
tions can be of use only to the practitioners of law in the
colony itself; but there are some which, as they may affect
contracts made in this country, deserve to be extracted.
The first three will give sorne idea of the jurisdiction of
the courts now established in the colony.


Manner of Proceeding to be observed in tite Supreme
Courte of Civil Justice in Britislt Guiana, made and
established by tite Justices of tite said Courts, in pur-
suaneeoj His Majesty's Order in COllncil, bearing date
~Otk June, 1831.
Sect. 1. A Court of Civil Justice shall be held in


George-Town four times in each year, for the district of
Demerara and Essequibo, and twice 01' three times, if ne-
cessary, in each year, in New Amsterdam, for the district
of Berbice,
~. A Roll Court shalI be held in each district before a


puisne judge, on such days as shall from time to time be
appointed by the Judges of the Supreme Courts, and
shall be continued from day to day until the business




286 BRITISH GUIANA.
brought before it shall be disposed of. Provided how-
ever, that no Roll 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 all 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 or absence ofany witness or witnesses, or other
persons therein, or relating thereto ; a copy ofwhich report,
in the event of any appeal to His Majesty in Council
being granted, and the papers taken out shall be deli-
vered with the same; and it shall and may be lawful for
the court, after the case shall bave 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 year after levy, and the particular description thereof
and notice of the sale shall, at least six months previously
to the day of sale, have been three times advertised in
the London Gazette and Amsterdam Courant.


44. At the expiration of the year after due notice, as
in s, 43, the court or chief justice, during non-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 or without
buildings, and upon which lots respectively there shall be
separate 01"distinct mortgages, liens, or elaims, the holders
of such distinct mortgages, liens, or claims, shall be at
liberty to petition the court or chief justice during non-
session for an order to sell, as it shall seem most advan-
tageous to all parties under the circumstances of each
particular case, and to enable the court to ascertain the
rights of the respective parties on the decision of pre-
ference and concurrence.


55. If the purchaser of a plantation or other immove-




BRITISH GUIANA. ~87
able property sola at execution sale, be a holder of a first
01' second mortgage on the same, he sha11 not be bound to
furnish security, 01' pay, save and except to the extent of
such claims as sha11 appear to the court to be preferent
to such first or second mortgage, and of the amount for
which the purchase-money sha11 exceed the amount of the
sum due.on such 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 shall take the fo11owing oath :-


" y ou shall swear that well and truly you shall serve
" the King's subjects, according to the best of your Iearn-
"ing and knowledge in the law, and you sha11 truly
" counsel and advise them that sha11 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
appear for a plaintiff without filing at the time of his
appearance, a power, ad lites, unless by leave of the
court, nor for any defendant without filing, at the time of
his appearance, a copy of the citation served upon the
defendant, or 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 shall 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 citatíons at the instance of an executor,
administrator, curator, 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 obtained 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 firstshall have been called at the roll, ir the publica-
tion in ~urope be not required.




288 BRITISH GDIANA.


'Manner of proceeding in the bife1'ior Courts of Britisk
Guiana, as established by tite Judges o/ the Supreme
Courts in pU1'suance qfBis Majesty's Order in Councit
ofttOtl¿ June, 1831.
Section 19. There 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 toproceed in execution
thereon.


28. Every one shaIl be at liberty to appear personaIly
in the Inferior Courts, to conduct his own cause, 01' to
employ by power ad -lites a duly admitted barrister,
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 ownclient, and no fee 01' remuneration
paid to any barrister, advocate, 01' attorney, for appearing
in the Inferior Courts, shaIl 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 foIlowing terms:-


Whereas on the 20th day of June, 1831, an order was
made by Bis Majesty with the adviee of Bis Privy Couneil,
for improving the administration of justiee in Bis Majesty's
Colonies of British Guiana, Trinidad, and Sto Lucia,
whereby it was, amongst other things, ordered, that the
assessors of the courts therein mentioned in Demerara
and Berbice should be chosen and appointed in such and
the same manner as the members of the Court of Civil and
Criminal Justiee of'Demerara have heretofore been ehosen
and appointed, and that the assessors of the said court for
the trial of criminal proseeutions in Trinidad should 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 ;
and that the assessors of thc said Royal Court of Sto
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 been chosen and ap-
pointcd. And whercas it is expedient to admit to the
discharge of the duties of assessors in the said courts
rcspectively, aIl free adult male inhabitants of the said
eolonies possessing such qualifieation as hereinafter is
mentioned: it is therefore hereby ordered by His Majesty.
by and with the adviee of his Privy Couneil, that so much
of the said order as is herein before reeited shaIl be, and
the same is hereby revoked and repealed. And it is
hereby further ordered, that every free man exeept as
hereinafter exempted, between the ages of 21 years and
60 years, residing in any of the said colonies, who shaIl
have or bebeneficiaIly entitled to, for his own use and
benefit, cither in his own name or in trust for him, withio
the same colony, ten pounds by the year aboye reprises, in
any immoveable property, or in rents, or other annual
profits or proceeds issuingout of sueh immoveable property
either in perpetuity or for the life of himself or sorne other
person; or who shaIl have within the same colooy for hís
own use and benefit, either in his own name or in trust
for him as aforesaid, 201. by the year aboye reprises in
immoveable property held 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, or to any rate for the relief of the
poor, or other local object, on a value ofoot less tbao 20/.
per annum; or who shall occupy a house of the annual
value of ~Ol. shaIl be qualified and Hable to serve as an
assessor, within tbe meaning and for the purposes of the
said reeited order, in the colony in which every man so
qualified respectively shall reside, and for the purpose,
and within the meaning of that order, aIl slaves whether
prcedíal 01' personal shall be considered as immoveable
property, Provided always, and it is furtber ordered, that
aIl members of the legislative bodies of the said respective
colonies, aIl jurors of the Supreme Courts of Justice
therein, all clergymen in holy orders of the established
Church of England and Ireland, all ministers of the Kirk
of Scotland, and of thc Luthcran and reformed churches,


u




290 DRITISH GUlAN A.
aIl priests ofthe Roman Catholic faith, all persons who shaIl
teach or preach in any congregation of Protestant dis-
senters, and who shaIl follow no secular occupation except
that of schooImaster, aIl doctors oflaw, advocates, counseI,
and barristers actually practising, aIl attorneys at Iaw,
solicitors, and proctors actually praetising, aH officers of
the said courts actuaIly exercising the duties of their
respective offices; aIl jailors and persons actually em-
ployed by and under them in the custody of prisoners ;
aIl 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, all pilots duly lieensed
by any competent authority; aH offieers of customs, and
aIl officers actuaHy employed as deputies or assistants to
the marshaIs, or other executive offieers of the said courts,
shaIl be and are hereby absolutely 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, unless
he shaIl have obtained a free pardon, shaIl serve as such·
assessor. And whereas it is necessary that provision
shouId be made for ascertaining the names, places of
abode, and descriptions, 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 selection of a sufficient number of
persons from those so summoned to serve on every
criminal prosecution,


It is further ordered, that the chief justices and other
j udges of the Supreme Court of the said colonies re-
spectively, shaIl be, and they are hereby authorized, to
make, ordain and establish, aIlneeessary rules, orders, and
regulations, respecting the manner in which the names,
placee of abode, and descriptions of persoDs within the
said respective colonies, qualified and liable to serve as
such assessors as aforesaid, shaH be ascertained, and re-
specting the making and preserving in the different
districts and quarters of the said respective colonies, lists
of aH sueh 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 all 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 shall be heard, tried,
and determined, and respecting the manner of reforming,
correcting, 01' aIlowing any such list; and respecting the
manner and form in which all such lists, when corrected
and reformed, shall be recorded , and also respecting the
manner, order, and form in which aIl persona, whose names
shaIl be comprised in any such record, shall be summoned
to attend at any sessions of any such court, there to serve
as assessors, and respecting the times at which, and the
manner in which such summons shall be served; and also
respecting the mode in which a competent number of
assessors shaIl be chosen, either by ballot 01' otherwise,
from among the number so summoned to serve as assessors
in the said courts; and also respecting the proper method
of proceeding to preserve a due rotation amongst such
assessors; and also respecting the several officers by
whom, and tbe times and places at wbich the before-
mentioned duties respectively shaIl 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 aforesaid be repugnant to this present order,
and that the same be forthwith transmitted under the seals
of such respective courts to the respective governors, to
confirm 01' disaIlow the whole 01' any part of such rules,
orders, and regulations, as to such respective governors
may in their discretion seem fit; and the same when so
confirmed by such respective governors sliall take efi'ect
and be in. ful1 force within the said respective colonies
until gis Majesty's pleasure shaIl be known ; and 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, orders, and regulations of the said Supreme
Court 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 required 01' directcd to perform any duty, 01' to


uZ




292 B1UTISll GUIANA.
do any act in 01' about 01' connected with the several mato
ters aforesaid 01' any of them, sha11 refuse or neglect to
perform any such duty, or to do any such act, every such
officer or other person shall, for every such offence, for-
feit a sum not exceeding .:B1O nor less than 408., as to the
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, shall 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, shall forfeit and pay for every such
his default, such fine, not exceeding l'10 nor less than
J;l, as the court sha11 deem reasonable to impose, unless
sorne just and sufficient cause for such defaulter's absence
sha11 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 courtsrespectively, on the motion of the
public prosecutor of and for any such eolony, and shall,
when so imposed, be levied and recovered in such and the
same manner and by a11 sueh ways and means as any
other fine 01' penalty imposed by a judgment of any such
eourt; and sha11, when so recovered, he paid over to the
treasurer 01' other receíver 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 sha11 be a good
cause of chaHenge 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 prisoner on any indictment for
felony or misdemeanor, shall also be good cause of chal-
lenge to any assessor summoned to serve OJ;l 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 colonies j and if any such cause of
ehallenge shall be alleged, either by the public 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 such challenge, and shall either allow 01' overrule
the same, as may be just; and upon such challenge 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 prosecution,
the public prosecutor and the person 01' persons against
whom the prosecution may be brought, shall eaeh have as
many peremptory ehalIenges as shalI 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 open court, audibly pronounce and take the oath ap-
pointed by the law of England to be taken by petit
jurors impannelled for the trial of any issue joined be-
tween the King and any person 01' persons arraigned upon
any indietment in His Majesty's Court of King's Bench
at Westminster,


And it is further ordered, that the assessors so to be
summoned and ehosen as aforesaid, shall have, exercise,
and enjoy all sueh and the same rights, powers, and pri-
vileges, and shall perform all such and the same duties
as aecording 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
colonies so soon as the same shalI have been promulgated


, within any sueh eolony by the Governor 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 accordingly.


C. Greeille.


ASSESSORS.


An Ordinance to provide a suificient number of Assessors
to be associated with the Judges of the Supreme Courts
of Criminal Justice of British Guiana, as enacted by
the Governor and Court of Policy on the 5th December,
1831.


Whereas, by an order made and passed by His Ma-
jesty in Council, 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 oifenee, sueh assessors being
entitled to deliberate and vote with sueh judges upon the
final judgment to be pronounced in every such criminal
.ease.


And whereas it was further provided that assessors
shall be liable to be challenged on such and like grounds
as may be alleged as lawful grounds of challenge against
any petit juror impannelled for the trial of any indict-
ment in England :


And whereas the number of persons to be eleeted,
chosen, and appointed to serve as assessors must be suffi-
cient to provide for cases of challenges held to be valid :


Cl. 1. Be it therefore enacted, that there shall be for
the Supreme Criminal Court of Demerara and Essequibo
a number of twelve assessors, and for the Supreme
Criminal Court of Berbice a like number of twelve asses-
sors.


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 make a double nomination of




BRITISH GUIANA. 295
persons for the offieeof assessor, to be transmitted through
the hands of His Excellency the Governor to the judges
of the Supreme Court, 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 Court 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 offlce, 01' neglecting to signify
his acceptance by written communication delivered to the
secretaryaforesaid, within fourteen 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
Suprema Court 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 aeeording 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 been notified to the secretary, 01' within sueh
period of fourteen days if he shall have aecepted the
offiee and desires to be sworn, appear before His Excel-
leney the Governor, the Chief Justiee or one of the Puisne
Judges of the Supreme Court, and take and subscribe
the following oath :-


" y ou shall faithfully and truly discharge the duties of
" an assessor in the Supreme Court of Criminal Justice
"for Demerara and Essequibo (or for Berbice, as the
" case may be,) and shall deliberate and vote on the final
" judgment to be passed on all criminal trials on which
" you may sit, without partiality, favour, 01' affection. So
" help you God."


After which his appointrnent shall be publicly notified




296 BRITISH GUIANA.
in the Royal Gazette of the colony; His Excellency the
Govemor 01' one of the judges being, nevertheless, em-
powered to extend the time for taking such oath, if suffi-
cient reasons be a11eged to either of them to grant such
extension of time.


5. And be it further enacted, that the Puisne Judges of
the Supreme Court shall have the sanie power to admi-
nister oaths in all cases, civil and criminal, as the Pre-
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 shall 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 for the Supreme Court of Demerara
and Essequibo to attend the sittings to be held in George-
Town, and those assessors who are appointed for the
Supreme Courtat Berbice to attend the sittings in Ncw
Amstel'dam, respectively; and the proclamations of His
Exce11ency the Governor for the time being in the Royal
Gazette of British Guiana, appointing the time of holding
such sessions respectively, shall be due and sufficient
notice to all such assessors.


7. And be it further enacted, that previous to the
bringing up of any person for trial, the names of all the
assessors who may be in office for the time being, in the
aforesaid jurisdictions respectively, written on similar
pieces of paper, shall he 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 'ordinance, these presents shall
be published, affixed, and sent round for general in-
formation.


There were two other clauses in this ordinance, but
they have been repealed by the following ordinance :-




BRITISH GUIANA. ~97


An Ordinance passed by the Goeemor and Court o/ Po-
licy on tite ~3d da.y of August, lSS~, lo amend an
Ordinance entitled " An Ordinance to provide a suJli-
cient number qf Assessors to 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, 1S31, 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 Sth 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. s. And be it further cnacted, that if any persono
who having been appointed an assessor and whose name
having been drawn as already prescribed in clause 7,
shall not be present to answer thereto, 01' 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 shall,
when they see fit, certify to His Excellency 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, 01'
submit tbe eonsideration oí tbis proceeding to tbe Ho-
nourable Court of Policy,


9. And be it further enacted, that each assessor shall
be Hable to serve two years, and until the session is closed
in which such two years may expire, should the same take
place during any such session; and after having served
for snch period of two years, shall not be compellable to
accept the office of assessor, until after the expiration of
two years from tlre end of such service, provided never-
theless, that any person who has been elected and ac-
cepted the office of assessor 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.
Since the date of the commission to General D'Urban


the following ordinances have been passed, dcclaring what
shall be the laws of the united colony.


An ordinance dated on the 2d December, 1~31, and published on the
day following, "to continúe in force the statutes, acts, and ordinances
heretofore passed, enaeted, and ordained by the Governor or Lieutenant-
Governor and Court of Poliey of the eolonies of Essequibo and Deme-
rara, or by the Governor or Lieutenant-Governor and Court ofPolicy of
the united eolony of Demerara and Essequibo, and by the Governor or
Lieutenant-Governor and Court of Poliey of Berbice, or by the Governor
or Lieutenant-Governor and eouneil of government of 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 eolony of British Guiana full power and authority, with
the advice and consent of the Court of Policy of the said eolony, to
make, enact, ordain, aud establish laws for the order, peaee, 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 fuI!
force and operation of law in the said respective districts of the eolony
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 "to
continue in force the laws of evidence and the rules for criminal prac-
tice in Demerara and Essequibo, and to extend the same to the district
.of Berbice, as enacted by the Governor and Court of Policy."


The courts of the colony are the Supreme Court, established by the
Order in Couucil, and the Inferior Courts crcated 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 south 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 índigo. 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 population 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.


St. Lucia is divided into eleven parishes or distrícts,
which bear 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 St, Lucia was for the pUl'poses of the
administration of justice united to the colonies of British
Guiana and Berbice, by an order in council of the ~3d
April, 1831, but that order was suspended by another of
the date of the ~()th 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 St. Lucia is derived from the saint's day
on which it was discovered. It was not till 1639 that any
attempt was made to form a settlement on this island. It




300 SR. LUCIA.
was then taken possession of by the English. Two years
afterwards, however, the Governor and most of the set-
tlers were murdered by the Charaibes, and the survivors
were driven out.-4. B. Edw. 263.


In 1650 it was seized upon by the French, but reco-
vered by the English in 1664, who however again evacuat-
ed it. From 1718 to 1730 disputes existed between the
English and French settlers assuming to take possession
under the authority of grants from their respective mo-
narchs, when in the latter year it was declared a neutral
territory. It was formally ceded to the French in 1763 at
the time that Grenada, Tobago, St. Vincent's, and Do-
minica were given up to the British Crown. It is at present
a crown colony governed by Orders in Council, and the
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 island was cap-
tured by the English in 1794" held by them till the peacc
of Amiens, then restored to the French, 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 Orders in Council, to which St. Lucia as
a colony acquired by conquest is still subject. With this
exception, therefore, it is governed by the ancient law of
France, as it existed before the promulgation of the code
of N apoleon.


The old laws proceed from two very different sources
or authorities; some were enacted by the Kings of
France, or government at home, and others by the Go-
vernor and Intendant jointly-the local authorities.e-
House of Commons' Papers relative to the Slave Popula-
tion, (1826,) p. 16.


(1) 4th vol. RaynaI's East and
West Indies ; 4 Edwards and How-
ard's Laws 01'Colouies,


(2) See ante, p, s to 16, on the


general tapie, 1001V far thc colonies are
subjeet to the Jaw of the mother coun-
try,




STo LUCIA. 301
The two principal laws emanating from the government


at home are the Code Noir of 1685, approved and signed
by Colbert, and the edict of 1786. The last, though
seldom quoted, wiII be found to inc1ude some very whole-
some provisions, and many similar to those contained in
the Trinidad Order.-Ib. 17.


LA W OFFIeERS.


The law officers of the Crown are in France bound to
protect the interests, and are the professional advisers of
all persons who from their youth 01' mental incapacity, 01'
from being under the power and authority of another
(such as married women) cannot be called free agents.


The Procureur General and Procureur du Roi are not
allowed to take private practice; their substitutes are, as
they merely replace them occasionally. Pigeau's definí-
tion of the Ministere Pubüc, (Traite de la Procedure
Civile, tomo i, p. 235,) is particularly c1ear and in point.
" By the Ministere Public is to be understood the Pro-
cureurs du Roí and their deputies in the tribunals. The
law has established them to watch over its execution, and
to act as guardians to all that which relates to public
order, the condition of men, the rights of those who are
not able to defend themselves, and finally the regularity
of all jurisdictions. It is therefore necessary that all sub-
jects of this nature should be communicated to them."-
lb. 18.


Mr. Jeremie, 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
officío the protector of slaves in the colonies where the
French law existed,


PARTICULAR LAWS.


Marriage Property.
By the custom of París, and now by the generallaw of


France, persons marryíng place part of their property in
common, (en communanté); of this the husband has the
administration during coverture; another part they re-
tain for their priva te 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 Slave Population, (1826,) p. 3.


Ranlcing of Creditors.
In attachments of personal property the first creditor


attaehing is preferred. Creditors acquire a preference by
the arrest or saisie in exeeution, and not by the date oí
the debt, or even of the judgment, This is the case in
the city of London with respect to property 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 or
person guilty of fraudulently transferring real property,
and such sales, transfers, &c. shall be null and void,


Stellionat. This is a crime I have not found mentioned
in Hale, Hawkins, or any other authors on the English
Crown Laws. The punishment awarded by the law of
France is either a fine or imprisonment, but the chief
benefit derived by the creditor is that a debtor guilty of
" ste!tionat " 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 beeomes ineapable 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


. rielle? He is then bound to let it for a given term of
years; the tenant is "le fermier judiciaire;" during this
time the creditor goes through various forms required
before he can obtain possession to sell it, The sale is
called "l'adjudication par décret ? and from the day the
creditor took possession to the day of sale the estate is
said to be " en saisie réelle."
. "Hypotlleques et privileges."-Privilege is a right 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-
tract 01' judgment, and is tota11y independent of the nature
ofthe debt.


Hypothéques rank according to their dates; privileges,
in the order assigned them by law, without reference to
the period at which the debt was contracted.e--fb. 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 more than the
estimated price of the slaves, and yet slaves are not Hable
to mortgage. It follows that mortgage deeds are, in
effect, of no value or benefit to the holder; so that the
West India merchant who had, when St, Lucia became a
British colony, poured large capitals into it upon the faith
of contracts which he thought binding, now begins to dis-
cover, what the plantel' who had so readily borrowed was
always well aware of, that he is not only deprived of the
privilege 01' preference 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 person
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 the owner can sell and re-
move bis slaves, be will,-probably before the commence-
ment, but certainly long before the conclusion of the
suit,-tbus leaving for bis creditor the land and buildings,
not worth altogetbcr tbe expense incurred to obtain them,


, -lb. 22.


COLLECTION OF LAWS.


Tbe laws are to be found in the coHection entitled
" Tbe Code of Martinique," lately printed in five volumes.
AH the papers, registers, and archives of tbe registry of
St. Lucia having been burnt at the fire which destroyed
the town of Castries in 1790, there are at present existing
in the registers of tbis depót only some laws, ordinances,
and rules, which have been made and publisbed by the
different English Governors since thc re-establishment of




304 STo LUCIA.
the tribunaIs by General Prevost in 1800, with the excep-
tion oí sorne acts of the French government whíle it
occupied the island after its restoration to the French by
virtue of the treaty of Amíens, up to the conquest made
by the British arms in 1803. But these acts have not
been much followed since the new eonquest, as the eolony
was then eeded subjeet to the laws which ruled it before
its last restoration to the Freneh government.-Howard's
Laws of the Colonies, 579, 580.


The Supreme Court in this island is now eonstituted
aeeording to the provisions eontained in the Order in
Couneil 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 island of
Trinidad. Its extreme breadth from east to west is
between sixty and seventy miles, and fifty miles from
north to south, From its peculiar shape, however, its
general breadth is much greater from north to south than
from east to west, In form it is compared 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 horn 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 Gulph of
Paria, which affords to vessels of every dimension a secure
shelter and an excellent anchorage. The channel be-
tween the Orinoco and Trinidad is called the Serpent's
Mouth; that between Trinidad and Cape Paria is inter-
spersed with islands, and ·bears the name of the Dragon's
Mouth, which was given to it by Columbus. The name
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 first appeared to him on
his approach to the land.-4 B. Edw. 288, 289.


Trinidad is abundantly provided with excellent har-
bours, among the principal of which are Chagaramus,
Puerto d'Espana, and Naparima, all on the Gulph of
Paria, and the soil is deep and fertile. .


The principal exportable produce of Trinidad consists
of sugar, rum, coffee, indigo, cotton, 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. Edw. ~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 that his labour was entirely Iost. Having been in
great danger in a violent storm he made a vow to give the
name of tbe Holy Trinity to the first land be should find,
soon after which a sailor in the main-top saw three points
of land, whereby the name fitted every way to bis vow. -
Columbus at length found egress tbrough the channels on
the north, to which, on account of the stormy navigation,
he gave the name of tbe 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 bis way to Guiana in search of
El Dorado, hut it speedily fell again into the power of
the Spaniards. Previously to the year 1783, so smalI
had been the efforts made to render tbis colony as
valuable as its natural resources would have made it, that
a single vessel belonging to a Dutch house in St. Eustatia,
and making annually two 01' three voyages, was sufficient
to carry on the whole commerce of the island. M. Roume
St, Laurent, a gentleman of Grenada, and Don Joseph
Chacon, the Governor appointed from Spain, were the
first persons to whom the colon y was indebted for its
prosperity. In 1797 Trinidad was captured by the troops
under Sir Ralph Abercromby. It was ceded by the Spa-
niards at the peace of Arniens, 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 conquest 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
conquest is now subject. (2) It would appear that either
there had deen a general intention to alter the Spanish
laws of this colony, 01' that dou bts had been expressed as
to their authority, for in a proclamation dated on the 19th
-Iune, 1813, and directing how appeals are to be aHowed,
and what security is to be given by appelIants, are formal
declarations as to the law of the colony and the jurisdiction
of the courts there. The proc1amation, which, until the
recent Orders in Couneil, was considered as the legal eon-
stitution of the colony, is in the foHowing terms:-


TRINIDAD.


By His Royal Highness the Prinee of Wales, Regent of
the United Kingdom of Great Britain and Ireland, in
the name and on the behalf of His Majesty.


A Proclamation,
'VHEREAS, by our eommission 01' letters-patent under


the great seal of England, bearing date at our court at
St. James's the 31st day of October last past, we did, in
the name and on the behalf of His Majesty, constitute
and appoint our trusty and weH-beloved Sir Ralph James
Woodford, Bart., to be our Governor and Commander-
in-Chief in and over His Majesty's said Island of Trini-
dad, as well as of aH our forts and garrisons within the
same as in and by the said in part recited eommission 01'
letters-patent and our instruetions 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 proc1amation, and we do
therefore hereby in the name and on the behalf of His


(1) See ante, p. 3 to 16, on the
gene"al topie how far the colonies are
subject to the law of the mother


eountry.
(2) Ante, 23, and Johnston's Insti-


tules of the Spauish Law, Preface, p. 7.
x2




S08 TRINIDAD.
Majesty publish, declare and proclaim that for the present
and until our pleasure shall be further signi6ed, 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 aIterations, regu-
lations, and improvements as may have been since made
and approved of by us: and subject also to such direc-
tions as our said Governor shall have received, 01' may
hereafter receive from us, under our signet 01' sign manual,
01' by our order in our 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 Couneil of QOth June, 1831. (See
ante, 52S0.)


MI'. Maddoek and MI'. Dwarris had prepared questions
relative to the administration of justice in the colony when
MI'. Henry arrived there with authority to eo-operate
with them, and to act as senior commissioner. MI'. Dwar-
ris was unfortunately compelled, very shortIy afterwards,
to return to England on account of ill heaIth, 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, Mr. Maddock fell 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
shall mention more fully 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
peaIed by Bis Majesty the King of EngIand. Of these
laws there are sorne compilations and digests; viz, what
is termed the Derecho Real de Castilla, the Fuero Juzgo,
the Fuero Viejo de Castilla. the Fuero Real de España,
the Siete Partidas, Leyes de Estilo, Ordenamiento Real,
Nueva Recopilacion de Castilla, the Iatest edition j No-
vissima Recopilacion, or such of them as were enacted
previously 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
proclamations are ordered to be enrolIed and recorded
in proper books kept for that purpose, and so recorded to
be evidence. .


8panisle Laws in Force.
(Observations on.)


By a proclamation of the 19th June, 1813, the admi-
nistration of justice and police is directed to be continued
in conformity to the ancient laws and institutions that
existed previous to the surrender of the island, subject to
such alterations as it might be advisable to make therein
from time to time.


Under this authority, therefore, the ancient Spanish law,
and the Roman Iaw, as its auxiliary, in cases where the
former is defective, may be considered (so far as they are not
restricted by subsequent reguIations) 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 not binding.


With respect to the British act 5 Geo. 2, c. 7, (for the
more easy recovery of debts in the pIantations,) a variety
of conflicting opinions seem to have prevailed, whether
it was to be considered in force or 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 Iegalize the testimony of clerks,
book-keepers, and others empIoyed by merchaots; it is




310 TRINIDAD•


7


. hereby ordered and directed, tbat tbe declarations on
oath of such persons, in all civil proceedings wberein
their employers are parties, shall benceforth be taken 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 proc1amations, &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. proc1amations 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 originals 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-Adtniralty, and theSuperior Court
of Appeal of Civil Jurisdiction; the Governor was besides
vested with the special power of exercising the authorities
and jurisdiction, whether appellant 01' original, which were
theretofore exercised in the Courts of Audiencia in the
city of Caraccas.


The courts established for tbe administration ofcriminal
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 Appeal in
all cases of condemnation to death. Severa] of these




TRINIDAD. 311
courts and the offices connected with them have lately
been abolished 01' remodelled. (3)


The persons usually appointed judges in the foregoing
courts, with the exception of the Alcaldes in Ordinary,
(who resemble the assistant-judges in the other colonies,)
are barristers, .


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.


Their 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 Audiencia,


The judge of criminal inquiry stated that the license is
expressed to be during pleasure.


The counsel in this island do not act as attornies 01' so-
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, however, for persons applying for
licenses to act as attornies and solicitors, to produce a
certificate of sorne practising barrister of the service of
such person in his office, and of his knowledge of the
practice of the courts.


For this license they pay no fees.
'I'hey 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 pro-


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 eases
of condemnation to death, Superior
Tribunal of Appeal of Civil J uris-
diction, and Tribunal of the Royal
Audícncla, bave all been abolished
by the Order in Couneil of the 20th
June, 1831. (See ante, 280.)


The offices of Father General of
Minors, Defender of the Absent, and
Depositario General, have also been
abolished bv the above order. And
the offiees ¿f Taxador, Judicial Re-
feree, Liquidator, and Partidor. have
by the same order been eonsolidated, .
so as lo 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 o/ tite Intendant (and herein o/ Escheats.)
This court has jurisdiction for the trial 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 inquiry
apprehends) the payment by imprisonment.


The Governor sits as judge in this court, and is assisted
by his assessor. They receíve in these capacities no salaries.


The fees, &c. which they are 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 not aware of any precedent of
slaves being declared escheated; but slaves when es-
cheated would be taken possession of by the escheator-
general, and worked for the benefit of the crown.


Cases of intestacy among the unmarried 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-sixtñ
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 administration of
justice in cases of escheat.-Trinidad Commissioners'
Hep, 7,8.


Court o/ 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-
vemor, 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 trial.




TRINIDAD. 313
The subject-matters ofits 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 offenders 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 been brought before
it."


Slaves, as weH as free persons, are tried in this court
under the Order in Council of the 16th September, 18~2,
and the proceedings, as regards the modes of trial and 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.


AH 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 trial,


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 »oce 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 such
records 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-
dence 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 all cases, except those of condemnation




314 TRINIDAD.
to death, in wIJicIJ 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 all cases except treason and wilful murder.
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 entered up by the Attorney-
General; this power is not defined by the Spanish law,
nor by the Order in Council constituting this court. The
records of aH 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 of Civil Juriediction;
This court derives its authority under the Order m


Council of 16th September, 1822.
The subject-matters of its jurisdiction are all 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 salary of ~~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 and 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 secre-
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 ~500 cur-
rency per annum, and no fees.


The pleadings and the rules of evidence in this colony
are derived from the Spanish law. The latter have been,
however, in sorne respects, altered by the several procla-
mations issued for that purpose.


In case of an absent defendant having no attorney in
this island, the rules of this court require service of pro-
cess against him to be made upon the defender of the




TRINIDAD. 315
absent, and among absentees are included those persons
who have never been in the island.


There is no power of arrest before judgment 01' execu-
tion, except under very special circumstances.


The attachment of debts due to a defendant 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 plaintiff to present his account for
principal, interest, damages, and expenses; and if such
statement be objected to by the defendant, it is either es-
tablished by proof, 01' referred to the judicial referee for
his reporto


Execution operates first against personal property ; in
default thereof, against real property; and in default of
both, against the persono


Executions are never, when taken out, suspended and
useu 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 generaHy as
to realty, &c., even though possession 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 appears 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 all cases redeem the mortgage pro-
perty by paying the mortgage money and interest, Mort-




:116 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, 01' obtain possession of the mort-
gaged property by a suit in this court,


Tacking seems to be known in practice at Trinidad as
well as in England.


Trusts 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, 01' by reference to the
judicial referee.


It is not necessary that every agreement respecting real
01' personal estates should be in writing; such agreement
can be specifically enforced 01' annulled.


Frauds are considered in this court,. and relief given
where fraud is established.


The property of intestates is distributable according to
the rules of succession and descent by the civillaw.


This court has jurisdiction In cases of bankruptcy and
infancy, and in respect of the guardianship and .main-
tenance of infants, also in cases of lunatics and idiots.


Cession of property, i, e. where a debtor voluntarily
cedes al] his property into the hands of the COUl't for the
benefit of his creditors, is in practice here. It is not limited
to any particular class of persons.


So also is the compulsory remedy originating with ere-
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 maintenance on account of the miscon-
duct of the husband. The chief justice said he was not
aware of any means of obtaining a divorce,


Legacies can be sued for in this court , and if a hus-
band sue for a legacy left to his wife he is not bound to
make any settlement on his wife 01' children in respect
thereof.


There are no proceedings in this court similar to in-
junctions in England; but the law affords a remedy in all
those cases in which injunctions are usually applied for,
such as to stay waste;:&c. by an action to restrain, 01' to
obtain security till the question is decided.


The court has jurisdiction in all cases of manumission
by deed 01' will.


Formerly a preference was given to all debts necessarily




TRINIDAD. S17
incurred for the expenses essential to a plantation, but
this no longer exists.


To this court belongs jurisdiction to grant administra-
tion of property of person;; intestate, and as to other
matters connected with the powers of the Court of 01'-
dinary in the other British Colonies.


AH· wills affecting real and personal property in this
island, and executed here, are proved before tbe Gover-
nor, and are recorded in the office of the deputy secretary
and registrar.


There is no provision for appeal in case of the Gover-
nor's refusal to receive 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 the decease, of the testator, 01' after tbe
executor has notice of his decease, and of his own appoint-
ment as executor, It is necessary that all deeds should be
registe red, but no time is prescribed for such registry.
Wills 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 to the !f.ing in Council.
Appeals to the King in Council were provided for by


proclamation of 19th June, 1813, where the sum in ques-
tion is above ,{500 sterling. The expenses are establisbed
by the docket of 23d July, 1816.-Trin. Comm. Rep. 18.
Appeals are now regulateJ by the Order in Council of the
20th June, 1831. (See ante, 280.)


Court 01 Admiralty.
The Court of Vice-Admiralty in this island derives its


authority from the Crown, and the subject-matters of its
jurisdiction are maritime cases, or cases arising on the
high seas, not provided for by statutes 28 Hen. 8, cap. 15,
and '16 Geo. 3, cap. 54. It exercises also the jurisdiction
of a Court of Exchequer in England over cases of for-
feitures and penalties incurred by breach of tbe acts of
parliament relating to trade and revenue in the colonies.


The Chief Justice is the sole judge. He is appointed
by the Governor and confirmed by the Lords of the Ad-
mira1ty, holding the office during pleasure, and removable
by the authority appointing him. .


,




318 TRIKIDAD.
The officers of the court are a registrar 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 civi1law for ma-
ritime cases, and the acts of parliament for revenue cases.


Proceedings for the recovery 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' .t5Oü currency), the power of which is exercised
by the chief judge, under a proclamation of 31st Ja-
nuary, 1823. He receives no salary in this especial capa-
city. The fees which he receives are those allowed by
the docket of 25th 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 a1l 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 wiII be observed, sit


with the Chief Justice in the Court of First Instance of


(4) By the 22d section of the
Order in Council of the 23d April,
1831, the Court of Criminal Inquiry,
the Court of Audiencia, the Complaint
Court, the Court of the Alcaldes in
Ordinary, and the Court of the Al.
caldes de Barrio, were all abolished ;
but that order has been suspended by
the order of the 20th 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 all cases of condemnation to
death, the Superior Tribunal of Ap-
peal of Civil Jurisdiction, and the
Tribunal of Royal Audien<;ia,are abo-
Iished, During the continuance of
the suspension of the first order, the
three last courts mentioned in it as
abolished, will of course continue their
functions, See ante, 2r4, 280.


(5) See the las! note.




TRINIDAD. 319
Civil Jurisdiction, as assistant judges,) are also empowered
to hold a separate court by an Order in Council of 1st
September, 18::22, which, in clauses 18th and 19th, directs
that "the alcaldes in ordinary shall, by turns, two days in
each week, 01' oftener ifnecessary, sit in open court for the
hearing and determining of aH such petty thefts, assaults,
breaches of the peace, contraventions of the police laws
and regulations, and aH similar misdemeanors, as by the
chief of police, 01' by his assistants, shall 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 cESO cur-
rency, 01' to imprisonment for 'any term not exceeding two
months, with 01' without hard work, 01' to work in chains
in cleaning the streets, 01' other public work, for any time
not exceeding the like term, 01' to corporal punishment."


The alcaldes in ordinary are appointed annually by the
iIlustrious 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, 01'
~ other emoluments.-Trin. Comm. Rep. 2f., 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 01' 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 Barrio 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 01' emoluments.-Trin. Comm.
Rep. 21, 101, 181.


Escribano, O'l' Registrar of tke Supremo Court.
This officer is appointed and removeable by the Gover-


nor. No confirmation from home is necessary.


(6) See the note (4) in the precedlng page.




320 TRINIDAD.
He has río salary, but is paid by fees. He récords the


proceedings 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 eases of bankruptcy or 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 its 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 aeeording to the tariff, and executes


proeess, &c. in the differest districts of the island, by de- \
puties appointed by him.-:'Trin. Comm. Rep. 26, 1B6.


Cabildo.
The " I1lustrious 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 municipal laws 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 or unjust, until a representation
could be made to the Sovereign; and on the proposed
introduction of the Order in Council, 10th March, 1824,
fOI" regulating the treatment of slaves, application was ac-
tually made to the Cabildo to exercise their powers, which
they very prudently declined to do. Since, however,
Trinidad has been in possession of the English, and a
council has been established, the greater part of those




· f ..


TRINIDAD. 321


; 14b & q¡",~


functions (of such at least as under the new system it was
found desirable to retain,) have been transferred to the
Governor and Council. And the powers of the Cabildo
seem at present to be confined entirely to matters of mi-
nor police, such as to regulate the price of provisions, the
cleanliness of the markets and 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 rendered perpetual bythe
prcsent Governor, 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 Govemor for his approval.-Trin, Comm,
Rep.50.


Caol Attorney.
This officer is appointed and removeable 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-
half of prisoners as their advocatc, though he is not a
lawyer. He never receives a prisoner witbout a written
oemmitment stating the nature of the offence.-Trin,
Comm. Rep. p. 27.


Persous of Colour.
Free persons of colour can sue and be sued, and labour


under no disqualification as regards tbeir 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.-Ganancías.
The right of the wife to a partnership in the property


acquired during marriage by onerous title, is termed
"ganancias." Thia 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 sesses, it is directed that the gains resulting


y




TRINIDAD.


from the joint employment of this capital be equa11y di-
vided between both partners.


"Ganancial property is a11 that which is increased 01'
mulfiplied during marriage by onerous cause or title, and
not that which is acquired by a lucrative one, as inherit-
ance, donation, &c.


"Immediately upon a division being made of this ga-
nancial property, each acquires an absolute dominion as
to their moieties.


"AH property of the husband and wife is presumed
common 01' ganancial, until it be proved to be the sepa-
rate property of either.


• ¡ Prize money obtained in war by the husband is not
ganancial, unless his outfit as a soldier for the campaign
was at the joint expense of husband and wife. .


" The fruits, proceeds, or rents of every description of
property belonging to both husband and wife, are con-
sidered gananciales.


" The crime of one does not forfeit the property of the
other in the ganancial partnership.


" Gains and losses being common, the debts contracted
during marriage are to be paid out of the common pro-
perty.


" But if the wife renounces the ganancias, she does not
pay half the debts." Nrma,.-Recop and Fue Real.-Trin.
Comm. Hep. 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 for appeal in case of
his refusal to receive ·a will for proof; nor indeed can
there we11 be, when he is the sole judge of the Court of
Appeal in the island. This seems to can 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 before a public escribano ang three witnesses (7)


(7) By Order in Council, Bth
J une, 1816, all wills, &c. made witliiu
the island of Trinidad shall be attestcd
by three male witnesses, domiciliated


iuhabitants of the place and quarter
whercin the sarue shall be made, 01'
two such witnesses and the comrnand-
ant of such quarter,




TRINIDAD.


inhabitants j and if the testator is blind, five are neces-
sary; 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 attestation of the escribano.


The spendthrift cannot make a testament, He shall
be prohibited by the judge from alienating his property,


With respect to the mode in which a testator maydis-
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 institute them bis 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 favour of his ascendants, father, grand-
father, &c., with the exception of one-third.-Johnston's
Inst. of the Laws of Spain, 110 to 115.:,


lJIortgages and Ilypotltecations.
These are treated alikc 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 pcrson to whom 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 j
3d, The creditor 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 shaU 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 01'
lessees, who being irí upon the titIe of another can never
prescribe against him,) and the salaries 01' 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 advncates and solicitors.




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 years,
which prescribes the right of absent persons to real pro-
perty, and the personal action and execution granted
thereon.


Actions, real, hypothecary, and mixed, are prescribed
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 preoentioo , 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 both 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, all future
privileges 01' preferences, for repairs 01' supplies, are de-
clared to cease; and by the same order, reciting the
previous ones in this matter, all sugar, coffee, cocoa, 01'
otber estates are rendered liable to be taken in execution
witbout regard to the value of the estate 01' the 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 arisen 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 February 92d, 1825, declared that it should
not be competent to the court to stay tbe sale of the whole
01' any part of the estate at any time for a longer period
than six months, 01' for more tban two years on the whole,
- Trin, Comm. Rep. 51, 52.


Execution:


AH instrurnents, promissory notes (vales), and writings
acknowledged by the debtor, are entitled to prornpt 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 please
for retainers, conferences, writing of letters, &c., and that
such costs are never taxed.-Trin. Comm. Rep. 53.


Coroners.
The office of Coronel' 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 law, when
the party is suspectus 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


aONDURAS. (1)
-


THlS possession of Great Britain, though one of consider-
able extent and importance, has' not yet been dignified
with the name of a colony, On one occasion it was ex-
pressIy decidcd not to be entitled to the appe11ation of a
territory belonging to His Majesty, at least so far as the
Navigation Acts were 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 Amcrica, The recent Navigation Acts have removed
this disabilíty, and have in terrns recognized the settle-
ments at Honduras as "British." The 3 & 4 Wm. 4,
c. 54, s. ]4, expressly enacts "that a11 ships built in the
British settlements at Honduras, and owned and navigated
as British ships, shall be entitled to the privileges of Bri- •
tish registered ships il) aH 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 Majesty, framed many'years ago, has been
since tacitly at least recognized by the Crown, and is
still acted upon; and as a decisive mark of the sub-
ordination of the settlement to the power of this country,
appeals are entertaincd by the Privy Council from the
decisions of the courts in the settlement, one of which
has been constituted by two acts of the British Parlia-
mento (Q) Although, therefore, it still continues inferior
to our acknowledged colonies in titular dignity, it may
well deserve S0111e notice in this place.


The settlement of Honduras is situated in the provínce of
Yucutan, between the seventeenth and nineteenth degrees


(1) Sec ante, p. 1, 11. ( j) "lid p. j 9. (2) 3 Rep. W. 1. C. 2d series, p.
0, 1,1., Sec post, 3~~}.




HONDURAS. 3Q7
of north latitude, and the eighty-ninth and ninetieth degrees
of west longitude. The line which ineludes it commences
at the mouth of the Rio Hondo, follows the course of, and
afterwards runs parallel with that stream for about thirty
miles, then turning southward passes through N ew River
Lake in a straight line to the river Balize, up which it
ascends for a considerable distance, and then again pro-
ceeds south till it reaches the head of the Sibun, the
windings of which river it pursues to the coast, (3)


HISTORY AND CONSTITUTIoN.
'~


From the earliest period of the settlement up to 1763,
the right of cutting Iogwood in the Bay of Campeachy
was a matter of vehement dispute between the English
and Spanish governments on behalf of their respective
subjects. On the general pacification, which took place
in that year, the King of Spain agreed to allow the set-
tlers to reside within a certaia distance on condition that
all the fortresses then existing should be destroyed, and
that no other should be erected. On his part he under-
took, in case of a war, to grant six months for the removal
of British property. ,


In 1779 this undertaking was grossly violated. At the
close of the war which then ensued, the settlers, though
they obtained no indemnity for the previous injury, were
re-established on the same terms as formerly, and the
rivers Balize and Hondo were assigned as their Iimits.
By a convention which was 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 mentioned either in the treaty of Amiens 01' at the
general pacification in 1815; but though the right of
Great Britain was not on either of thcse occasions recog-
nized, neither was it disputed; and the fact that it was
not expressly referred to, affords a strong ground for
believing that it was considered, by the persons who
negociated these treaties, as a settled acquisition of Eng-
land, and therefore no more required to be tecognised as
such than did Barbados or Jamaica, or any other long


(3) '1 D. Edw, 'tM.




328 HONDURAS.
acquired and undisputed possession. There seems there-
fore but little ground for the alarm feIt 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 settIement in the treaty of 1815, the more so since
the eondition on which their right to a settlement was
recognised, name1y, 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 Sir William Burnaby,
the commanding officer of His Majesty's ships on the Ja-
maica station, to the strict performance of the articIes 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 aH dis-
putes. A jury of thirteen was chosen in the same manner
for their assistance, and the determination of this court
was decIared to be final.-3 Rep. 2d series, W. l. C. p. 3.


They further covenanted together to abide by and
obey all such orders and regulations as might thereafter
be made by the justices, in full council, being first ap-
proved of by a majority of the inhabitants ; and that the
commanding officer for the time being of any of His Ma-
jesty's ships of war which might be sent thither, should
have full power to enforce and put the 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 named 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 created as aboye mentioned j which
rcgulations, though of course they cannot exactly be con-




HONDURAS. 3Q9
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:;)ducing a new regulation which is to
undergo the solemnity of an "enactment." Such indivi-
dual causes a public notice 01' requisition to be posted at
the court-house at Belize, calling a meeting of 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
assemb1e, 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 settlement, but not
otherwise.


In this anomalous state of things, say the commissioners,
it is a matter of considerable surprise that the meetings
dignified with the name of courts should be conducted
with a regularity and decorum which will bear no dis-
advantageous comparison with the proceedings, in this
respect, of the regularly constituted tribunals in most
of the colonies visited under the commission.-3 Rep.
W. I. C. 2d series, p. 4.


COURTS IN GENERAL.


The only court that can strictly be said to be legal1y
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
respeetively 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 fol1ows :-


The Grand Court, instituted by an enactment of the
public meeting for the reeovery of debts aboye the sum of


í
;¡¡
~.


t
1
t

¡
f


,


r
s..




330 HONDURAS.
ci'1O, trespasses, assaults, and batteries, actions of damage,
and attachments,


The Summary Court 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 that 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 inbabitants
formed an assembly for tbe enactment of laws, which re-
mains in existence to the present period; but since the
granting proteetion by the British government it has been
ínvariably the eustom to obtain the sanction of Bis Ma-
jesty's Superintendant, who possesses the power to allow
or disapprove of such part as he shall deem fit." This is
the form of government ereated by the inhabitants them-
selves and described aboye.


The English act, 5th Geo. 2, c. 7, "fol' tbe more easy
reeovery of debts in the plantations,' is considered in
force here, and " practically acted upon."


The writ of habeas corpus is not known in the settle-
ment, and in the event of illegal imprisonment the usual
method of redress is described to be "by an action of da-
mages issued out of tlre Grand Court, and addressed to
the provost marshal general."


Bail is said to be .adrnissiblc here {,according to the
law of England."


The principles of the English law of deseent 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 secm erroneously, see ante,
S9Z7,) to possess no territorial rights there,


The laws which in England govern the distribution off
personal property in cases of intestacy, are also acted
upon here, with this peculiarity, that where no legitima te
hcir appears, "iIIegitimacy inhcrits by next of kin."


In the event of pél'SOnS in the settlement dying without
a will when the (known) heirs 01' next of kin are absent,




HONDURAS. 331
themagistrates, "acting as a Court of Ordinary, issue
letters of trust," and take "security from the trustees
and examine their accounts annually."


They also, 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-
ríes, W. l. C. p. 4.


In the case of wilIs, the only proof required seems to be
that of the testator's signature before the magistrates acting
as a Court of Ordinary, if the wiIIbe in the settlement; if
in a foreign country, before a competent tribunal. Wills
are required to be recorded.


Nuncupative wilIs are admitted agJ:.eeably to the prac-
tice in England; and there are no restrictions 01' 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, al' solicitors act professionally in
any of the courts here, nor indeed are there any in the
settlement, as no encouragement is afforded them, the
parties interested in the suits appearing and being heard
in persono


Persons incapable of paying the necessary expenses of
a suit are allowed to prosecute and defend their claims in
the courts at the expense of the settlement.


No marriage can be celebrated here without a license
first obtained from His Majesty's Superintendant 01' pub-
lication of the hanns; and tbe widow is considered as
entitled to one-third of the whole property of the deceased
after payment of his debts.


The rights of the Crown are, it is said, vested in the
person of the Superintendant. .


The courts of the settlement will respect and confirm
the judgments of foreign courts of competent jurisdiction,
in all 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
establishing himself in trade as an inhabitant.


There are no regulations in this settlement similar in
principle 01' effect to the English bankrupt laws,


Twenty-one days' notice of intention to depart 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 this case, at the superintendant's discretion, to
give security to answer condemnation in costs and da-
mages, upon subsequent judicial proceedings on the part
of theperson whose departure is so prevented.-3 Rep.
2d series, W. I. C. 5.


Higlt or Supreme Commission Court.


The judges (none of whom, it may be remarked, receive
any salary 01' other emoluments of office,) are directed by
the act 59 Geo. 3, c. 54, to be "such four 01' more dis-
creet persons as the Lord Chancellor of Great Britain,
Lord Keeper, 01' Commíssioners for tbe custody of the
Great Seal of Great Britain, shall from time to time think
fit to appoint" in the manner therein specified. By vir-
tue of this power, a commission under the great seal has
been issued, nominating seven persons to try, hear, deter-
mine, and adjudge the crimes therein enumerated, any
three of the said persons constituting a court,


The judge advocate, wl:1o is also appointed by the
judges of this court, conducts aH prosecutions, A grand
jury, to tbe number of thirteen, is impannelled, being se-
lected from a number summoned by the provost marshal
general from amongst the most respectable inhabitants of
the settlement.


They choose their own foreman, and are sworn by t)le
same form of oath aá is prescribed in England.


The bilis of indictment are sent to them from tbe court
by the hands of the officer of police, who is sworn as
keeper of the grand jury,


It appears to be the practice of the grand jury to exa-
mine witnesses, both on the part of the Crown and the
accused.


A petit jury, to the number oftwelve, is also summoned
for this court by thc provost marshal general; they are
chosen in the usual way by ballet, and sworn 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 subprena, It seems to be
unusual, except in particular cases, to allow witnesses
their expenses.


The Superintendant of the settlement, 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 immediately set at liberty,
and is liable to no charge for fees, the public paying all
expenses.


The following are the officers of this court, who are all
appointed by the judges thereof; oi». the judge advocate,
the clerk of the court, the assistant clerk of the court, the


# provost marshal general, and the police officer.
The salary of the judge advocate is f\xed at ~50 (cur-


rency) for every court that is held; the other officers
have no salary, but their ernoluments arise from fees.-
SRep. Qd series, W. I. C. p. 6.


Grand Court.


The magistrates who act as judges in this court, are
appointed annually to the number of seven ; but three are
held sufficient to form a court. They are chosen from
among 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 court of criminal jurisdiction 01' all offences
not specified in the commission constituting the Supreme
Co~rt, with the exception of minor assaults, which are
tried in the summary courts; and, as a court of civil ju-
risdiction, "of aH matters of debt aboye the sum of ~1O,
trespasses, actions for damages, &c."


The proceedings of this court, on its criminal side, are
similar to those in the Supreme Commission Court, with
the exception that there is no grand jury, though there is a
petty jury. Its judgments have hitherto been final, but
the prisoner is not debarred the privilege of appeal to Bis
Majesty's Superintendant. It seems 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 all matters of debt aboye the sum oí .f:1O, tres-
passes, aetions for damages, &c."


It 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 population, British subjects, and domici-
liated in the settlement.


N o arrest before judgment is permitted here.
The awarding the costs in civil actions is considered to


be the province oí the jury, who "usually express the
same in their verdict."
. Costs, it is said, are limited by the Iaw of the settle-


mento
The court considers itself entitled to grant equitable


relief against the strict rules of Iaw, 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 the King in Council are held allowable,
aecording to the general tenor oí His Majesty's instrue-
tions,in this respect, to the Governors of his several
colonies.


There is no regulation in this settlement in the nature
oí an Insolvent 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
oí this court, and sits once a month in the town of Belize,
to dispose of actions where the sum in dispute is under
o€lO, in which case a jury of three is impannelled. The
same judge also disposes of assaults and minor offenees,


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


(4) Possessory titles only. Sec ante, 327, $S(l.




HONDURAS. 335
when the jury must be composed of twelve, persons.-3
Rep. 2d series, "VV. I. C. 9.


Free Coloured Persons.
The only disabilities experienced by this class of the


inhabitants of Honduras is that they are not considered
eligible to fill the oflice of magistrate 01' juror. The mode
of proceeding against 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 -Iamaica, to give a title to freedom.-3 Rep. 2d
series, ·W. I. C. 11.


Magistrates.
The magistrates of this settlement are annualIy elected,


to thc number of seven, at public mcetings of the inhabi-
tants themselves, and their services are gratuitous. Their
election 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.


Prooost Marshal and Gaol.
Thc provost marshal of this settlement holds his ap-


pointment under a commission from the Superintendant,
who would remove bim in tbe case of neglcct of duty 01'
misconduct.-3 Rep. 2d series, W. l. C. ll.


Clerk of tite Supreme and Lower Courts, and Keeper
of tite Iiecords.


Tbese oflices are executed by tbe same individual, in
conjunction with an assistant; both of them are appointed
by the Superintendant at tbe recommendation of tbe ma-
gistrates.


Before registering a deed 01' will, proof is required of
the signature, either of the person who has executed the
same, 01' of the subscribing witness 01' witnesses thereto,
and after rcgistry the original instrument is returned, on
application to the party who had lodged it.


,


11




336 HONDURAS.
No 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, another 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 officer in England, in
regard to summoning witnesses, committing if necessary,
and the like, No new regulations on this head appear to
be required.-3 Hep. 2d series, W. I. C. 13.


Notary.


There is a notary in the settlemcnt, whose appointment
is derived from the Prerogative Court of Canterbury, In
the event of his death 01' 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-
intendant is annexed.-3 Rep. ~d series, W. I C. 13.


Police Ojjicer.
This officer is appointed and removable by the Superin-


tendant, with a salary of f:60 and certain fees. In addi-
tion to the funetions usually prescribed to sueh an offieer,
he has eharge of the prisoners confined in the gaol, and
superintends 'aH punishments and earries into execution
aH sentenees of the Criminal Court, exeept those deeree-
ing death.


He also exeeutes all the offieial orders of the Superin-
tendant and the magistrates.-3 Rep. 2d series, W. I. 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 executíon.-3 Rep. ~d se-
ríes, ·W. l. C. 13.




HONDUR.\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 appeal, 01' for what sum,
would lie to the Superintendant.-3 Rep.2d series, 'V. 1.
C.14.





( 338 )


JAMAICA.


--


JAMAICA, which, according to MI'. Bryan Edwards, (1)
"since the loss of America, has always been justly
reckoned the colonial gem of the British Crown," now de-
mands out 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 lndian, and to signifya
country abounding in springs.


Jamaica is situated in the Atlantie Oeean 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 ehief natural productions are sugar,
indigo, coffee, and eotton; but it produces many other
valuable eommodities in sufficient abundance, It is 150
miles in length, and, on a medium of three measurements
at different plaees, about forty miles in breadth. Accord-
ing to MI'. Edwards's statement ] ,740,000 acres were eul-
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 ofeight parishes, one tOWR and thirteen villages. The
town is that of Sto Jago de la Vega 01' 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 also held in it, The county
of Surry contains seven parishes, two towns and eight vil-
lages. The towns are Kingston and Port Royal. The


(1) 4 B. Edw. 249.
(2) 1 B. Edw. 152,153


(3) 1 B. Edw. 193, 197, and the
authorities there referred too


(4) 1 B. Edw. 237 lo 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 afterwards, on the 24th of
June, 1503, he was shipwrecked on this island in a place
called to this day Don Christophor's Cove, He remained
on the island aboye twelve months. When, after the death
of Columbus, the claims of his son were tardily recog-
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 Governor of the
island. This governor founded a city, which he called
Nueva Sevilla, and which appears to have been destroyed
01' 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 Emperor 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 after the
capture of the island the English remained under military
jurisdiction, A most interesting account of the condition
of the island, and of the efforts 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 and nobly seconded his efforts. Imme-
diately after the restoration, Charles Z, confirmed Colonel
D'Oyley in the command by a commission which bore date
the 13th February, 1661. The cornmission 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
proclamation containing a declaration by the Crown that
all free born subjects in Jamaica should, from their re-
spective births, be reputed to be free born denizens of
England. By the treaty of lmO, the island of Jamaica was
formally ceded by Spain to England, "together with aH
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
hold and possess." In 1678 an attempt was made by
Charles to govel'l1 this island by laws passed in the Privy
Council, The scheme is described by Mr. Edwards (5)
in the foHowing words,-" A body of Iaws was prepared
by the Privy Council of England, among the rest a bilI
for settling a perpetual revenue on the Crown, which the
Earl of Carlisle was directed to offer to the Assembly,re-
quiring them to adopt the whole code without amendment
01' alteration, In future the heads of aH bills (except
money bilis) were to be suggested, in the first instance, by
the Governor 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) Sce ante, 178.




JAMAICA. 341
sembly lawfulIy established,-their titles to their lands
could not be impeached under a fraudulent grant to a
court favourite,-and there had been a degree of 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 revenue, and this object was adopted by aH
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 .1:1460 per annum) should constitute a part
of such revenue, The second and third conditions were
of more importance, In order to compel submission to
their will the different ministries had recommended the
Crown to suspend from time to time the confirmation of
the laws. 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 stipulated, 52dly, that the body of their laws
should receive the Royal Assent, and 3dly, that "aH such
laws and statutes of England as had been at any time
esteemed, introduced, used, accepted, or received as laws
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, or precinct, consisting of an union of two
01' more parishes, is governed by a chief magistrate, styled
Custos Rotulorum, and a body of justices unlimited by
law as to number.


The vestries are composed of the custos and two other
magistrates, the rector and ten vestrymen. The latter are
elected annuaHy by the freeholders,


The legislature of Jamaica is composed of the Captain-
General or Commander-in-Chief, of a Council nominated
by the Crown, consisting of twelve gentlemen, and a House
of Assembly, containing forty-three members, who are
elected by the freeholders, 'namely, three for the severa1




34~ JAMAICA.
towns and paríshes 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 island, 01' a personal estate of
1'3000.


The Governor receives 1:2500 per annum out of the
1'8000 fund. 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 ce"ta:'u e'=e"geuüelO, t\\e 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
proclaim martial law. His power is then dictatorial, and
all persons are subject to the articles 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 Court of
Chancery, the Courts of Appeal and Error, the Supreme
Court of Judicature, the Court of Assize, Oyer and Ter-
miner and Gaol Delivery for the counties of Surry and
Cornwall, the Court of Ordinary, the Court of Vice-
Admiralty, the Vice-Admiralty Sessions, a Court of
Quarter Sessions, a Court of Common Pleas in each Pa-
rish (except the parish of St. Catherine), and a.court for
the trial of Maroons, and a Slave Court in each parish,


LAWS. (8)
By the Colonial Act 1 Geo. 2, c. 1, all such laws and


(7) The facts slaled in the above
accounl are laken from differem parls
of Mr. Edwards's Hislory, vol. i, pp.
201 to 236, and 260 lo ~85. See also
1 Rep. W_ 1.C. 2 series, 1'.6 lo 10, for
a sketch of the constitution of Jamaica.


(6) See ante, p. 3 lo 16, on the
general lopie how far the colonies are


subject lo the law of the mother
country.


It may here be mentioned, that in
tbe extracts from the Commissioners'
Report on tbis COIOIlY, whenever the
word "acts" OCCUT, unless otherwise
expressed, Colonial Acls are meant,


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 colony, "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 cIose of the
session of 1825. Private acts remain in manuscript,


The originals 01' 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 cIerk of
the Privy Council.-l Rep. 2d series W. l. C. 44.


Gooernor,


To an inquiry 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 to be understood, unless
otherwise expressed, as meaning
"pounds currency of Jamaica." The
proportion between that currency and
the eurrency of England is as follows :
viz• .E1-10 of Jamaica currency is, in
ordinary calculation, equal to fl00
slerling; and consequently .El cur-
rency represente about 14s. 3d. ster-


ling ;-bllt in large transactions the
course of exchange varies, and is re-
gulaled by the current premium or
discount on hills drawn on Great Bri-
tain, a variation, which, cntirely inde-
pendent and exclusive of the ordi .
nary exchange above mentioned, has
extended, at different periods, to nr-
wards of SO 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 but in criminal cases he can par-
don, murder and high treason only exeepted. In these he
may stay execution till the King's fl'easure be known.
And Mr. Burge (the Attorney-General) remarked that, in
criminal proeeedings, as representative of the King, he
may direct the Attorney-General to enter a nolleprosegui,
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 aper-
son committed under the Alien Act, who must in the first
instance appeal for redress to the Governor in Council,
and cannot apply for a habeas corpus, unless the appeal
remain unheard for fourteen days."


The law of descent and the law governing the distribu-
tion of personal property, in cases of intestacy, do not
differ from the law of England on those subjects.


Lands in the hands of the heir or devisee are assets,
said the Attorney-General, for the payment of all classes
of debts owing by the ancestor or testator, by means of a
suit in the Court of Chancery on 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 first 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, or elsewhere, by de-
fault, or 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, witbout going into the merits on wbich it
was pronounced." The onus of impeaching the judgment,
said the Attorney-General, would devolve on the de-
fendant.


There is no judgment of outlawry in this colony.
Tbe foreign appointment of guardians to minors, and


committees or curators to idiots or lunatics, would not give
any control over property in the colony.


The Colonial Court of Cbancery would exercise original
jurisdiction in such cases; but examinants conceived, that
from comity or 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 or lunatic, by virtue of tbe foreign
appointment, would cease on his coming to reside in the
colony, and that sueh 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, under an English or 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; but would, he apprehended, pre-
vent a creditor cIai.g under it from pursuing the bank-
rupt personally.


On this subject the Attorney-General particularly re-
ferred to the judgment of Mr. Henry, when chief justice




346 JAMAICA.


of Demerara, in the case of Odwin v, Forbes (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 certificate
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 reference 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 having 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 justíce) be allow-
ed to sue in the colony in respect of such property.


And supposing the assignees to be in possession of the
bankrupt's property and his outstanding debts in the
colony, by permission of the colonial court, under the
foreign assignment, he apprehended that the foreign cer-
tificate would be no bar to the suit of any colonial creditor
desirous of proceeding personally against the bankrupt
(then in the colony) for debts proveable, but not proved
under the foreign commission.


The chief justice considered that the notice of an in-
solvent debtor that he intended to take the benefit of the
Insolvent Act was not sufficient for the protection of foreign
creditors.


There is no law of the colony similar to the act 21
James 1, which makes personal property, left in the pos-




JAMAICA. 347
session and apparent ownership of a commercial person 01'
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.


11;Jarriage and Douier,
A married woman is entitled to dower as in England,


and to a similar provision (subject to her husband's debts)
out of the slave property undisposed of in his lifetime;
also to the provisions of the statute of distribution.


To the following 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 places 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 of 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 estates, but they may lend money on mortgage under
13 Geo. 3, e. 10. That aet provides that on failure of
payment the legal estate shaIl be vested in certain pub1ic
offieers, in trust for the alíen, 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 generally 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 01' slaves in the colony must be
executed according to the manner prescribed by that sta-
tute, and its formalities would, the chief justice conceived,
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 the same as in Eng-
land; but he apprehended that personal property in the
ísland 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, and the re-
quisite forms and solemnities are the same as in England.


It is necessary to the validity of a deed that it be re-
corded in the secretary's office, and, as between the ven-
dor 01' mortgagor and the vendee 01' mortgagee, it may be
recorded at any time, and has, when recorded, relation
back to its date j but as between the vendee 01' mortga-
gee, and subsequent purchasers 01' incumbrancers, it must
be recorded within the time limited by law, (viz. ninety
days,) otherwise he willlose his priority ayer them, if they
have recorded their deeds within the limited time.-See
acts 33 Cal', 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 ofLimitations.
The British statutes 31 Eliz. c. 5, s, 5, applying to penal




JAMAICA. 349
actions, and the 21 James 1, c. 16, and 4 Anne, c. 16, s. 19,
respecting civil actions, extend to this colony. 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, or if
not demanded within twenty years from the time they be-
carne due, or 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 after the disability removed.


Arrest for 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 must 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.


Speeial bail is required in all 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, or a house worth .i' 10 per annum, and
generally such as are exempted by the law of England.-
See the aboye act 35th Caro 2.-1 Rep. 2d series, W. I.
C.48.


Notlce ofProceedings.
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 proeeedings against persons residing
abroad, having property in the colony, it seems that if
they have never been 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 proeeeding is by foreign attachment under
the.33d Caro 52, c. 523.


Counsel.
'1'0 the commissioners' inquiries respecting the qualifi-


cation and admission of eounsel 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 previously
called to the bar in England,"


An order to sue in forma pauperis may be obtainnd
under the same circumstances and by the same mode of
application as in England.-l Rep. W. I. C. Qd series,
49.


Supreme Court o/ Judicature.


This court was established under the royal instructions
in the reign of Charles 2, and more completely secured in
its present jurisdietion by an act of the legislature of the
colony, 33 Cal'. :2, C, :23, s. 1.


Three judges are neeessary to form a court. The
chief justice is appointed by the Governor and eonfirmed
by the King, and the other judges are appointed by the
Governor. They aH hold their offlces 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 exercising the
functions of governor) with the advice and consent of a
majority of the council.


The chief justice's emoluments arefixed 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 per annum,


The Attorney-General says the present chief justice's
salary is f:5600 currency, besides 1'IQO 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 their offices. They eaeh receive salaries
of f:700 per annum curl'eney, under 51 Geo. 3, e. 27, and
the two seniors of the Assize Courts f:300 eurreney per
annum each, under the same acto


Sinee the year 1803, the person appointed chief justiee
has been a barrister. From the summary of legislative
provisions given by the Attorney-General, it does not ap-
peal' essential to the appointment of ehief justiee with a
salary of 1'4000 per annum, that he should be a barrister,
though he must be such to be entitled to the additional
salary of .i'1600 currency.




JAMAICA. 351
The assistant judges are generaHy appointed from thé


resident gentlemen of the island, and it is not required
that they should have gone through a course of legal
study.


By the (Colonial) Act of 33 Cal'. 2, c. 23, the court has
cognizance of aH pleas, 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 under
its criminal, civil, 01' revenue jurisdiction.-l Rep. W. 1.
C. Zd series, 50.


Criminal Jurisdiction and Practice of the Supreme Court
of Judicature and Courts ofAssize.


The chief justice presides at each of these courts, and
is assisted 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, but are ge-
nerally closecl in eight 01' ten days.


The judgments and proceeclings of these assize courts,
as courts of oyer and terminer ancl gaol delivery, are
stated by the Attorney-General to be "inclepenclent of,
ancl not under the control of the Supreme Court of J udi-
cature."


The officers attending the Supreme Court on the cri-
minal side are the Attorney-General, Provost Marshal,
Clerk of the Court, ancl 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 ancl Clerk of the Crown attencl .


.. The court," saicl the chief justice, "Ras the power in
cases of aggravated misclemeanor, immecliatelyaffecting
the administration of justice, 01' the peace and happiness
of society, to make orders for 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 oj}icio authority as the Attorney-General possesses in
England.


The form of prosecution and the proceedings before
trial, as respecte the warrant, examinations, bail, commit-
ment, &c. are the sarne as in England.




352 JAMAICA.
N o fees are paid for preparing indictments for capital


offences, 01' for offences which the Attorney-General
prefers without the intervention of a private 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 fuU de-
fence for his c1ient, by observations on the evidence.


Prisoners are never detained after acquittal for payment
of fees, and none are payable to the law officers of the
Crown.-l Rep. 2d series, W. 1. C. 51, 52.


Civil Jurisdiction and Practice of the Supreme Court of
Judicature and Courts of Assie».


This court has jurisdiction, says the Attorney-General,
of all civil actions of which the Court of Common PIeas 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 01' recovery are not known in the
colony; but there are conveyances of a certain description
that have the same effect,


The action of ejectment is also the only one resorted to
for the trial of title to lands.


The practice and rules of pleading are the same as in
England, said the Attomey-General, dilatoryand sham
pleas are aUowed, but he added that the latter are not fre-
quently resorted to; and the chief justice remarked that
a plea obviously dilatory would be set aside with costs.


Under the Island Act, 38 Geo. 3, c. 2S, s. S, the court,
01' a judge in vacation, may issue a commission de bene
esse to take the examination of a witness about to leave
the island, 01' unable to attend the trial through age,
sickness, 01' infirmity.-l Rep. Zd series, W. 1. C. 52, 5S.


The court also, under an authority which it has as-
sumed, will issue a foreign commission where the witness
is abroad, on a common 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 ere-




JAMAICA.


ditor resides in EngIand, are preved by affidavit under
the city seal, under the British Act, 5 Geo. Q, c. 7.


To an inquiry from the commissioners respecting the
jurisdiction of this court, without the intervention of a
jury, the chief justice stated, that it possessed the same
summary jurisdiction over its officers, and over all persons
for contempt, which is exercised by the courts in England ;
and should an officer receive money under ita process, and
fraudulently withhold ít, 01' neglect to receive it, 01' 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 appeal 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 slaves of the defendant.


The writ of venditioni is the effective writ for levying on
the goods and person of the defendant, I t unites the form
and efficacy of the writs offierifacias and capias adsatis..
faciendum. Thus, upon a judgment taken as of June
Grand Court, a writ of execution is lodged, returnable the
first day ofthe succeeding October court, and immediately
after, the plaintiff 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 ob-
tained.-l Rep. W. I. C. ;?d series, 55.


In order to give a judgment a priority, .it is necessary
that an execution should be lodged. A subsequent judg-
ment on which a writ of execution was lodged would have
priority over a judgment previously obtained, if there had
not been an execution lodged on that judgment.


If the nominal writ of execution be not lodged within a
year, the judgment must be revived with scirefacias, the
proceedings on which are the same as in England,


Exeéutions are taken out and suspended and used as
securities.


A judgment is assignable, and after execution lodged
becomes a security upan slaves,


AA


".




354 ,JAMAICA.
,An equity of redemption is not Hable to be sold under


an execution issued under a judgment at law.-l Rep. W.
i. C. 2d series, 56, 57.


Revenue Jurisdiction o/ the Supreme Court.


This court derives its authority as a Court of Exche-
9uer under the act of the island, 33 Cal'. 2, c. 23, e. 1,
befare referred to, which 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 prívate indi-
vidual.


This court has jurisdiction as a Court of Escheat by
virtue of the island act, 33 Cal'. 2, c. 22, s, 2. The juris-
diction of this court, in cases of escheat and forfeiture, is
incident to its general authority as a Court of Revenue.


As a Court of Escheat it entertains jurisdiction in cases
inwhich real (01' personal estates, said tbe solicitor of the
Crown,) 01' slaves, is 01' are claimed as belonging to the
Crown, in consequence of the former proprietor baving
died without leavíng heirs heritable, and in cases of lands
forfeited for non-payment of quit-rents,


When property has become escheatable to the Crown
anyíndívidual may petition the Governor for letters of
preference.


If during the twelve months after office found there
appear!! no elaimant, judgment passes for the Crown, .


The Governor grants the letters of preference to such
of the illegitimate descendants as would have succeeded
by descent, if legitimate, except where tbe proprietor has
Ieft an invalid testamentary disposition, in which case the
letters of preference are granted to the person 01' persons
whem the.testator intended to take the property, and ex-
eept also, where in the first case the descendant is unable
to cultivate tbe property 01' to take care of the slaves, and
in that event, letters of preference are granted to sorne
friend 01' responsible person, upon the condition of paying
the descendant a certain proportion of the appraised value,
c¡ In short," says· the Attorney-General, "in granting let-
ters of preference on escheated property, cvery care is
taken that the illegitimate descendants of the intestate
shaIl derive the full benefit of the escheated property, 01'
of its value."


To the question, whether the Crown can attach debts




JAMAICA. 355
01' other dues owing to its accountants in the hands of
third persons in this colony? the chief justice replied, " 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 Crown ," but to the same
question the Attorney-General stated, that "by means of
the island foreign attachment law, 33 Cal'. 52, c. 523, s, 8, the
Crown, like any individual, may attach debts owíng 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. It 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 below
when the judgment appealed from was pronounced, can
sit as a member of this court ; but the chief justice, if he
composed a part of the court pronouncing the judgment,
may, if he thinks propel', attend the court, and give the
reasons for the decision of the court below, but he cannot
vote.


Writs of error 01' appeals lie from the Supreme and
Assize Courts, in cases where the matter in dispute ex-
ceeds .t300 sterling in value, except in the case of a judg-
ment in ejectment, 01' where any tax, duty, 01' other l'ight
of the Crown is involved, when the value need not be
stated. The plaintiff in error enters into a bond for .,€500
to prosecute, to obey the decision, and to pay such costs
as shall 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 letters-patent appointing


him Governor, exercises the office of chancellor, and the
equity jurisdiction of this court is similar to and co-exten-
sive with that of the Court of Chancery in England; 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 Iegislature.


There is also a common law 01' petty bag side of the
offiee. .


The chancellor's jurisdiction, in cases of idiotcy and lu-
na.ey, is derived from an express grant in the letters-patent
appointing him Governor.


This eourt has also jurisdiction in matters of dower and
partition, and to stay waste by injunction.


It also appoints guardians to infants. Those above
" sixteen name their own guardians, those under that age,


01' absent from the island, have, on petition, verified by
affidavit and signed by counsel, a guardian appointed,
who gives bond to aeeount, with snrety, before a master.


It has also jurisdiction to deeree the sale of lands for
payment of judgment debts, on a suit by a judgment ere-
ditor; but this proceeding is seldom resorted to, and only
in the cases of incumbered real estates, as the 1nsolvent
Debtors' Act and Extent Law ofthe island are, aceording
to the registrar, calculated to meet most cases, both during
the life and after the death of the debtor.


The writ of ne exeat insula issues from the Court of
Chancery in Jamaica, under the same circumstances as
the writ of ne ereat 1'egno does in England, and is in-
dorsed to the provost marshal to take bail, and the amount
marked thereon.


The proceedings and practice in the equity side of the
court are as analogous to those of the Court of Chancery
in England as local circumstanees will permito


Every bill of injunction must have annexed to it an
affidavit verifying the matters of fact therein stated.


Bills are entertained on behalf of married women for a
sepárate maintenance, and from the like necessity that
existed during the Commonwealth in England~the want
of an EecIesiastical Court to decree alimony.


The appointment of receivers to estates' is mueh more
frequent in Jamaica than in England, and forms a very
important part of the jurisdiction of the court, and the
appointment is solely anrl strictly with the chancellor,
without any reference to the master. The appointment
is made on petition, verified by affidavit, and all parties in-
terested are at liberty to propase a fit persono


The receiver enters into a recognizance, with a surety,




JAMAICtJ.. 357
before a master, to the amount 01' the estimated value 01'
two, and sometimes three crops, or other annual produce
of the property, notice 01' which, with the name 01' the
surety, is served on the other party six days before; (9)
and this security is enforced by scire facias in the Su-
preme Court. They account annually before the master,
except when the account 01' sales is to be produced from
England, when some further time is necessary.--l Rep.
W. J. C. 2d series, 61, 63.


They are entitled to six per cent. on the gross p1'O-
ceeds, which forms an item to their credit in the ac-
counts.


By the answers to the question, Whether the Court of
Chancery in England ever appoints receivers, 01' makes
any orders 01' decrees respecting real property in this
colony? it appears that such arders are not frequent; but
they would, as stated by the Attorney-general, be en-
forced in every respect by the Court of Chancery at Ja-
maica.


The mode of marshalling the assets -under a decrce to
account is thesame as in England.-l Rep. ,Y. l. C.
2d series, 64.


It seems that tacking (01' the practice of permitting the
holder of a third mortgage to take precedence of the se-
cond by redeeming the first mortgage and annexing his
security to the third mortgage.) is not allowed at Jamaica,
because such a doctrine would interfere with the priority
acquired by the time of recording mortgages 01' obtaining
judgments where slaves are concerned.


The costs in this court are taxed by the registrar as
between party and party, and frequently as between soli-
citar and c1ient, Oll application to thecourt.


The masters in ordinary of this court are at present
three in number, They are appointed by the chancellor
and removable by him, and he is not limited as to the
number, They reside at the seat of government in
Spanish-Town, There are also some few individuals re-
siding in the country who have master's commissions, and
to whom occasionally references are made, and who, with
the masters extraordinary, administer oaths and take re-
cognizanccs.


The registrar is Ilotaware of any qualification being


(9) Tbis is enjoined to be done by tbe master by the act 4 Geo, 4, e. 21,
under a penalty of ;CilOO.




358 JAMAICA.
necessary beyond the reputation of being a good account-
ant.-l Rep. W. I. 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 administering
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 all 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 solemn form, al:ticIes are
exhibited by the promovent; an answer is filed; and
when the cause is at issue, interrogatories are exhibited
and witnesses examined.


Probate of the will as to personaIty is conclusíve, and
in a case referred 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 will, A dedimus also at the same time
issues to qualify the executors named in the 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'opel' securities, duly to
administer according to law. When those several forms
have been complied 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 be taken out, except by order of
the Governor, but the instances are very rareo


The Governor sits alone in this court, without any as-
sessor or other person to assist his judgment.


This court has no jurisdiction to pronounce a sentence
of divorce, or to decree alimony,


It has no power of enforcing obedience to its sentences.




JAMAICA.


It has no authority to exeommunicate, 1101' 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-
ceased.


H Very frequently, however," added the Attorney-
General, "the executors and administrators possess them-
selves of such real estate when the heir is absent from the
island and unrepresented."


A record is kept of the proceedings of the court in the
secretary's office. The secretary of the island is clerk of
the court.-l Rep. W. l. C. ea series, 69, 70.


COUl't o/ Vice-Admiralty.
This court derives its authority from letters-patent


under the great seal of {he Admiralty.
The prcsent judge holds his appointment by virtue of


a commission under the hand and seal of the Governor.
There is only one judge, who is designated Judge and


Commisaary of the court. He is appointed during His
Majesty's pleasure, and liable to be removed at his coro-
mando The only remuneration which the present judge
receives consists of fees upon civil proceedings in this
court; those fees in 1824 amounted to <t146. 14s. cur-
rency, 01' ~104. 15s. 8d. sterling.


The judge practises at the bar in the Courts of Chan-
cery and Common Law.


The officers of this court, besides the judge (who has
three surrogates for the examination of witnesses) and
the advocate-general, are the registrar and 111a1'sha1. The
two latter are appointed by patent under the seal of the
Admiralty, 01' by the Governor, when there is no Admi-
ralty appointment.-l Hep. W. l. C. 2d series, 70, 71.


Court of Admiralty Sessions.
The court derives its jurisdiction from an act of the


Colonial Legislature, 33 Cal'. 2, C. 8, s. 2. The Gover-
nor is authorized by that aet to issue a eommission di-
rected to a judge of the Admiralty and other substantial




'360 JAMAICA.
persons, who are invested with the same power for the
trial and punishment of treasons, murders, piracies, and
other offences committed on the seas, as commissioners
appointed in England under the statute Q8 Hen. 8, c. 15,
"for piratea." This is the Admiralty jurisdiction 01'-
dinarily 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 Britain may think fit to ap-
point. These commissioners have also the same powers,
and over the same offences committed upon the sea, as
commissioners appointed undel' the ~8th Hen. 8, c. 15,
have for trial in England.


The commission issued by the Governor under the
authority of the Colonial Act, has always been directed to
the judge of the Court of Vice-Admiralty (as the Presi-
dent), the Commander-in-Chief of the squadron, the mem-
bers of His Majesty's Couneil, the Chief Justiee and
Assistant Judges of the Supreme Court, the Captain of
the Navy on the station, the Judges of Assize, Barristers
at Law, the Secretary of the Island, the Receiver-General,
the Naval Officers, and the Collectors and Comptrollers
of His Majesty's Customs at the differentports.


Of this number, three constitute a court, of whom the
Judge of the Vice-Admiralty is required to be ane. His
assistants are gene rally two of the Assistant Judges, 01'
Judges of Assize.


Letters-patent of His late Majesty George 3, bearing
date February Ist, 1815, were transmitted to Jamaica, un-
del' the statute 46 Geo. 3, C. 54" directed to the Governor,
the Lieutenant-Governor, the Judge ofthe Court of Vice-
Admira1ty, the Chief Justice, the Senior Member of the
Council, the Commander-in-Chief of the naval forces,
and all admirals, captains, 01' commanders of ships within
the jurisdiction.


Offences are tried before either jurisdiction according
to the course of the common law, and with the assistancc
of a grand and petty jury,


A prisoner has the benefit of a challenge to the same
extent as upon a trial for an offence committed 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 thc Governor, except in trcason and
murder, when the Governor can only reprieve until the
pIeasure of His Majesty is signified.


The officers of the Court of Admiralty Sessions are the
clerk of arraigns and the marshaI.


The appointment of the latter is permanent; the former
is nominated by the judge of the Court of Vice-AdmiraIty
upon a commission being issued.-l Rep. W. l. C. 2d
series, 74, 75.


Custodes and Justices of ihe Peace.
The custos is appointed by commission under the


hand and seal of the Governor, 01' person exercising the
functions of Govemor. His duties are similar to those
of the custos rotulorum of a county in England. His ju-
risdiction does not extend beyond the parish for which
hc is appointed. He holds his office during the Gover-
nor's pleasure,


He has the appointment of the clerk of the peace.
Justices of the peace are also appointed by thc Gover-


nor, by whom they are removable at pleasure, Their
duties are those which belong to that officc in England,
with certain additional duties in relation to the slave po-
pulation. Their jurisdiction is limitcd to the parishes for
which they are respectively appointed, .


There is no qualification of property requisite to their
appointment, but they are generally freeholders,


The custos generally recommends a person to the office
of justice, but such recommendation is not essential to the
appointment.


The justices of the peace have a judicial criminal juris-
diction, under certain acts of the legislature, regulating
the police of their parishes, exclusive of their jurisdiction
when sitting as members of the Quarter Sessions and
Slave Court.


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 cClOO. .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 not removable into
another court.-l Rep. W. l. C. ~d series, 75, 76.




36:Z JAMAICA.


Court oJ Quarter 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. .


Counsel occasionally attend, attornies at law frequentIy;
but in most instances the parties act for themselves.


This court has a concurrent jurisdiction 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 courts.


The punishments which can be infiicted 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. I. C. 2d series, 77.




Insoleents.
There are no bankrupt laws in this colony, but there is


an Island Act for the relief of insolvent debtors, the 4th
Geo. 4, c. 11, under which an insolvent debtor may ob-
tain his discharge by a surrender of all his effects, and
there is no distinction between the cases of trader and
non-tradcr.-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 the council until His
Majesty's pleasure be known,


He is usually appointed a member of His Majesty's
Council, but is not necessarily so.


·With respect to all criminal prosecutions, the office is




JAMAICA. 363
co-extensive with that of Lord Advocate of Scotland. AH
indictments are preferred by him in civil and revenue
cases; he appears for His Majesty when the Crown is in-
terested, 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 aHowed
any clerk 01' offiee.


He attends all the courts 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 power as the
Attorney-General of England in entering a nolle P"o-
seqai, for which he does not receive any fee 01' perquisite.
-l Rep. W. I. C. 2d series, 88.


Colonial Secretary,


The secrctary of the island was appointed by His Ma-
jesty's letters-patent,


He has leased his office to the present acting secretary,
who gives lurge security to the patentee for payment of
the rent, which is .t3000 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 .t270, and another of .f4~O¡
The remainder of his emoluments are established by the
act 56 Geo. 3, c. 19.


His duty is to record all papers sent to his office for
that purpose, also aH laws of the island, copies of which
he sends to the Secretary 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 rernovable by His Majesty's representative in case
of malversation.




364 JAMAICA.
He is the executive offieer of the laws and keeper of all


the prisons in the island. His duties are analogous to
those of sheriff in England; and in addition to those du-
ties he discharges those of sequestrator in Chancery,
usher of the black red, and water baliff.-l Rep. ~d 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 writ 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 torce in tbe colony ; tbeir fees are J'egulated by
that aet, and increased 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~.


Appeals lo tite King in Council.
An appeal lies immediately to the King in Council


from the Courts of Chancery and Ordinary,and ultimatcly
from the Court of Error.


No appeal lies from the Court 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 frorn the Court of Chaneery are common
from all orders, excepting those for costs alone, and for
contempt of process. Such part of an order appointing a
receiver, as relates to change of possession merely, is
not suspended by an appeal; in every other case the pro-
ceedings are stayed ipso Jacto.


"The ehancellor," 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 oecasion he
searched for precedents, and found seven." The doctrine
laid down here by the registrar is too unqualified; for
(say the commissioners) "we conceive that where the sum




JAMAICA. 365
in question amounts to cf500 sterling, the office of the
Governor, in granting the appeal, and issuing the order to
the court below for 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 chancellor
(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 arisen on the Kíng's instructions respecting appeals,
the leaning of the court has ever been in favour of the
right 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 before the same is
entered 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 dismissed ; but twenty-
eight days further may be obtained, if required, on com-
mon petition. After such security is given, the appeal
cannot be dismissed in this colony at the instance of thc
respondent, otherwise than with consent.


With respect to appeals from the Court of Error, on
judgments at Iaw, the appellant must note his appeal
within fourteen days, and enter into similar security; froro
the unwillingness, however, of the courts to interpose any
obstacle to an appeal, there is grcat laxity in thepractice
as to the time of appealing.


Personal security is allowed in eases of appeal, and 1111-
incumbered real property is not required.-l Rep. W. I.
C. 2d series, 92.




( 366 )


NüRTH AMERICAN CüLüNIES.


THE BAHAMAS.


-


THE first in the list of those colonies, which are usuaIly
denominated the North American Colonies, are the Ba-
hamas, 01' Lucayan Islands. The chain of islands which
bears tbis name is of vast extent. The islands líe from
latitude ~1° 30' to ~7° 30', and from 740 to 800 west lon-
gitude. They are composed of innumerable rocky islets,
called keys and islands, of which not more than 1201' 14
are inhabited. The settled islands are stated to be New
Providence, (in whicb Nassau, the capital, is situated,)
Turks' Island, Eleuthera, Exama and its keys, Harbour
Island andkeys, Crooked Island, Long Island, Sto Sal-
vador, (the first place discovered by Columbus, and so
named because it was discovered within the three days,
at the end of which he had been eompelled 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 Island, Rum Key and Henegua. Some of the
largest oí 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
perpendicularly from an immense depth of water, and
seem to have been formed from an accumulation of shells
and sand. At the utmost depth to which the inhabitants
have penetrated, nothing has been found but calcareous
rock, and an intermixture of shells. (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, turtIe, and fruit,
are the exportable commodities of these islands. .


HISTORY AND CONSTITUTION.


New Providence was settled in 16529 by the English,
but they were expeIled in 1641 by the Spaniards, who,
though they did not. settle there, seemed determined that
no one else should do so. The colony was resettled by
the English in 1666, but they were again expeIled by
a combined French and Spanish fleet in 1703. N ew
Providence then became the resort of pirates, whose
depredations at length compeIled the government to inter-
fere in 1718, and they determined to resettle 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, and capitulated in 1781 to a Spanish force
under Don Galvez.By the treaty of 1783 they were
restored to the British crown, but while that treaty was
under consideration in Europe, the islands themselvcs
were recaptured in a most gaIlant and romantic manner
by Colonel Deveaux, an American royalist. At the close
of the contest, in which England liad been then engaged,
many of the royalist party among the Americans settled
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 been numbered among
the 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 is composed of members re-
turned by the different islands. Their number is be-
tween twenty and thirty. (3) The possession of BOO acres


(2) See the last act 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 quali6cation required in a candidate.
The electors are all free white persons, who have resided
twelve months wfthin the government, for six of which
they must have J1een householders 01' freeholders, 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, were comprised in four printed volumes, and in
four parts of a fifth volume, extending to the date of De-
cember, 1824. See the third Report W. I. C. second
series, 21.


4 Geo. 3, c. J, An Act "for the public registering and
recording all deeds 01' conveyances that are 01' shaIl be
made of any lands, tenements, 01' hereditaments, negros,
vessels, goods, 01' effects, within the Bahama Islands 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 first recorded shaIl
have priority ofother deeds or conveyances of the same
Iands, &c., although of prior date.


40 Geo, 3, c. 2, An Act "to declare how much the
laws of England are practicable within the Bahama
Islands, and ought to be in force within the same."


This is what is termed the Declaratory Act of the
Bahama Islands, and does not admit of abridgment. It
gives a full and clear account of what part of the law of
the mother country shall be deemed to be of force and
binding in the colony, instead of leaving it to the varying
discretion of the judges from time to time, as is the case
in many of the other colonies.


The preamble of the act is curious, It declares, that
"whereas the common law of England is the best birth-
right of Englishmen and of their descendants, but never-
theless is not in all respects applicable to the circum-
stances and condition of new and distant colonies j and
whereas doubts have arisen how far the acts of parlia-
ment in which the colonies and plantations are not ex-
pressly mentioned 01' included imder general words, do
extend to these colonies and 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 j 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 or statutes hereinafter enumerated, or by any
act or 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 or
of batail, appeals of felony, writs of attaint, and eccle-
siastical matters,) is, and of right ought to be, in full
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
particularly enumerated and mentioned, are, and of right
ought to be, in fuIl force and virtue within and throughout
this colony, as the same would be if the Bahama Islands
were therein expressly named, or as if the aforesaid acts
and sta tutes had been made and enacted by the General
Assembly 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. e. 6
-----8
1 Hen, 4. e. 10


BE


, 2 Hen. 4. e. 11
4 Hen, 4. e. 18
---23
5 Hen. 4, e.S
--10
11 Hen. 4. e. 3
13 Hen. 4. e. 7


2 Hen. 5. c. 2
9 Hen. 5. stat, 1. e. 4
4 Hen, 6. e. 1
8 Hen. 6. e.s
----12
-----15
---29
11 Hen. 6. e. 3
---6


1 Rieh. 3. c. 3
3Hen.7.c.2
---,¡¡,,-
----4
--·--10
4 Hen. 7. e. 12
-----13
---20
---24
11 Hen. 7. c. 12
---·20


21 Hen. 8. e. 7
23 Hen. 8. c. 1
---5




370
24 Hen. 8. e.e
25 Hen. 8. c. 3
---16
27 Hen. 8. c. 4
-.--10
28 Hen. 8. c. 1
----- ]5
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
----pi'
1 Mary, stat, 2 c. 7
1 & 2 Phil.& M. c. 13
2 & 3Phil. & M. c. 10
4 & 5 Phil. & ]\1. c. 4
5 Eliz. c. 9
--14
8 Eliz. 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 Eliz. c. 8


2 James 1. e.a
---- 11
4 James 1. c. 3
7 James I, 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 Cal'. 2. C. 7
31 Cal'. 2. c. 2
3Wm.&M.c.9
---14
4Wm. &M.c.4
4 & 5 we: & M. c.16
----- 20
--.-- 21
7 Wm. 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. stat, 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 Geo. 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 Englancl 01' Great Britain, which relate to the p1'e1'o-
gative of the crown, 01' to the allegiance of the people,
aIso such as require certain oaths (commonly called the
state oaths) and tests to be taken 01' subscribed by the
people of Great Britain, also such as declare the rights,
liherties, and privileges of the subject are, and of right
ought to be, of full force and virtue within this colony, as
the same would be if the Bahama Islands were therein
cxpressly named, 01' as if the aforesaid acts 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 Howard's Laws of Colonies.)


45 Geo. 3, c. 14·, An Act "for making pl'Ovision 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 exercise ecclesiastical jurisdietion within the
Bahama Islands."


By this aet, after reciting that His Majesty had been
pleased to eonstitute bishoprics in the íslands 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
the bishop to exercise his ecclesiastical jurisdiction over the
clergy, it is declared, that alllaws, ordinances, and canons
ecclesiastical, which are now used and in force in England,
so far as the same relate to jurisdiction over the clergy
therein, and all rules of proceeding for carrying the same
into effect, shall be held to be in full force within these
islands, and tha t the j udges of .the General Court shall
enforce the execution thereof in the same manner as the
Courts of Common Law in England are authorised to do:
it is provided, however, that nothing in this act contained
shall 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.


The following are the courts established in this scttle-
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 Court 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 Parliament be in force in the colony, the
decision of course rests with the judges of the court
before whom the point is raised; but the following was
laid down to the Commissioners as the general principle
by which such a question would be determined; premising
that by His Majesty's commission the Governor of the
settlement is appointed Captain General and Governor in
Chief in and over " our Bahama Islands in America."


"The law of England extends to the colony, if the
Bahama Islands eo nomine be inc1uded, as in the Q8
Geo. 3, c. 6, and in sorne of the revenue and in the free
port acts; 01' if the words of the law are so general as
necessarily to inc1ude them, as for example, the statute 8
Geo. 1, c. 24, for the more effectual suppressiou of piracy,
which extends by the very words ofit to Asia, Africa, and
America, and the late acts of Parliament 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 His Majesty's Sugar Colonies in America,
(which prevents seamen in the merchant service from
being impressed,) has been held on many occasions, by the
general court of this colony, to be in force therein.' .


The acts of the legislature of this colony are in the first
instance, as in the other colonies, prepared by the mem-
bers themselves, who bring them forward, and not by one
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 c1ause, 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 (a1though an instance had not been
known) be issued out of the Court of Chancery.


The act i5 Gco. 2, c. 7, " for the more easy recovery of
debts in the plantations," was adopted by the Colonial




THE BAHAMAS. 373
Act, 45 Geo. 3, c. 5, and the statute of frauds (29 Cal'.
2, c. 3,) is in force here, and also the following acts fix-
ing the Iimitation of time for criminal prosecutions a11(I
civil suits, oiz, the 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 j and the 7th Wm. 3, c.
3, "for regulating trials in cases of treason and misprision
of treason." There is also 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 rlttornies.


The admissíon of counsel, attornies, solicitors, and
proctors, to practise in the courts of this colony, is regu-
lated by a local act, 39 Geo 3, c. 2, which provides,-
el. J, That no person sha11 act as a counsel, attorney, so-
licitor, or proctor in any court in this colony, unless he
shall have been called to the bar in Great Britain or Ire-
land, 01' adrnitted an attorney in the Court of King's
Bench 01' Common PIeas in England or Ireland, 01' sha11
ha ve served for five yeal's as cIerk to a counsel and at-
torncy of the General Court 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 Court.


Practice qf ihe Courts.
There is no local regulation prohibiting a party from


being heard in person in any of the courts here.
No obstacles are opposed to persons applying to sue


tn formé 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 the 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 revenue jurisdiction, but the latter, it ap-
pears, the eourt has never exercised as distinct from its
ordinary civil jurisdiction,




THE BAHAMAS.


There are three judges of this court, who all sit, what-
ever may he the class of jurisdiction the court is then
exercising, eiz: a chief and two assistant justices, who are
appointed by the Crown during pleasure, and it appears
that since the year 1797 the qualification that a person
aspirlng to the office of chief justice shoulcl be a barrister,
01' a person who has gone through a previous course of
legal stucly, has be en required j but this rule, it is stated,
has not always been observed with regard to the assistant
judges.


The emoluments of the office of chief justice arise from
ahorne salary of 1:500 sterling, a colonial salary of 1:500
currency (whieh is rather more that 1'Q90 sterling), and
certain fees which 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 currency (01'
1:Z04. 3s. 4d. sterling),but no other emoluments, except in
the absence of the chief justice, when the senior assistant
justice is entitled to receive the fees of the chief.-3 Rep.
W. l. (). Zd series, 58.


Criminal Jurisdiction of the General Court,
This court sits at the court-house in Nassau, (the seat


of government,) during three terms in each year, corn-
mencing respectively on the third Tuesday in January,
April, and July. It exercises the same jurisdiction as the
Court of King's Bench in England, and is a Court of
Oyer and Terminer and General Gaol Delivery.


The proceedings of the court are, in all material points
(such as being grounded on previous examinations before
a magistrate on oath, the signing them by the party, and
their being bound over to prosecute, and the like,) toge-
ther with the forrn of indictment, pleading, &c. the same
as in England.


Only one instance was known of the court having or-
dered a criminal information to he filed, which was in the
case of a gross misdemeanor j but the powers of the
Attorney.General to file such informations ex qfficio, were
conceived to be similar tú those of the Attorney-General
in England.




THE BAHAMAS. 375
'I'he selection, impannelling, and securing the attend-


ance ofgrand jurors and the right of challcnge, &c. are
provided for by a local act (46 Geo. 3, c. 4.) The fore-
man ofthe grand jury is appointed by the court; the
petit jury chooses its own foreman. The grand jury is
charged by the chief justice 01' presiding judge before
entering upon the discharge of its duty,


Counsel are allowed upon the trial to address the jury
on behalf of the prisoner in all cases, arid. the commis-
sioners were informad that no inconveriience had ever
been found to result from such a practice.


The chief justice 01' presiding judge sums up the evi-
den ce, and states to the jury the Iaw of the case; the
other judges occasional!y assist the chief in taking notes.


The Attorney-General has frequently, it is said, exer-
cised tbe power of entering a nolle proseguí, both in
capital cases and in prosecutions for minor offences.


The officers of the court are the provost marshaI, the
clerk of the crown, and the crier of the court ; the first
is appointed by the Crown, the second by the Governor,
and the crier by the chief justice. They al! hold their
offlces during pleasurc.v-B Rep. "V. I. C. Qd series, 59,60.


Civil jurisdictíon of the General Court,
The General Court sits as a court of civil jurisdiction


at the court-house in the town of Nassau, during threc
terms in each yeur, commcncing on the third Tuesday in
January, April, and July, and has jurisdiction in all ac-
tions of which the Court of Common Pleas in England
has cognizance ;-"but real actions, except writs of dower,
are never prosecuted."


The rules and practice by which this court is guided
were framed in the year 1797, by the then chief and as-
sistant judges, and do not differ in any material respect
from those established in the Court of Common Pleas, on
similar points, in England. The pleadings are also
framed, as nearly as may be, according to the forms used
in the English courts,


The dower of a married woman may be barred by pri-
vate examination before a judge, and by a law of this
colony now in force (51 Geo. 3, c. 15,) husband and wife
may by deed convey the estate of the wife, \)1' 01' the hus-




376 'l'HE BAHAMAS.
band and wi~e jointly, sitúate in thc colony, without fine 01'
recovery,


The action of ejeetment is the usual aetion resorted to
for the trial of titles to land, and may be barred by twenty
years' adverse possession.


Personal actions are eommeneed by writ of capias,
served by the provost marshal 01' his deputy, and a de-
fendant may be held to bail for any sum aboye ¿f20 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 are allowed to he givcn
in evidenee, provided it be proved by affidavit that the
witness is notin the eolony at the time his deposition is
tendered j and they are taken under the usual precautious
of de bene esse examinations, according to the pravisions
of the General Court Act.--S Rep. ""V. l. C. 2d series, 62.


Judgment may be entered 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 adjournrnent day), and
execution may issue on the day after such adjournment
day,


Lands are bound by the judgment from the time of its
being signed by the judge and filed with the prothonotary,
(whieh is eqnivalent to doeketing in England,) and such
lands may be sold under the writ of fieri facias, Goods
and ehattels are bound only from the time thc execution
is lodged with the provost marshal,


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 for
the debts of the devisor 01' ancestor, if the personal assets
in the hands of the executor 01' administrator are insuffi-
eient to pay the same.


An equity of redemption may be sold under an execu-
tion issued on a judgment of this court.


An appeal líes from this court to the Court of Error
(composed of the Governor and Council) in aH cases




THE BAHAMAS. 377
where the sum in dispute amounts to .:eSOO sterling, and
the proceedings in thc court helow are at 'once stayed by
the writ of e1'1'or.-3 Rep. W. I. C. ~d series, 63.


Revenue Jurisdictlo» of the Superior COUl't and
Escheats.


It appears that the General Court has never exercised
any distinct revenue jurisdiction as a Court of Exchequer,
whether in regard to escheats 01' the like, but in cases of
persons dying intestate and without heirs, 01' legal per-
sonal representatives, 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 chancellor, 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 tu the estate and effects of the
deceased intestate. •


The practice with regard to the cases of such coloured
persons, possessed of moderatc property, as may die in-
testate, leaving only illegitimate children, appears very
liberal, it not being usual for the Attorney-General 01'
other officer 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 "all debts whether by bond, note,
account, book debt, assumpsit, 01' otherwise, and also all
complaints for trespasses, damages, 01' injuries sustained,
where the rights uf the crown, and the titles of lands are
not concerned, provided the debt sued for, 01' the damages
laid, shall exceed the sum of .:eS, and be not more than
.:e~O lawful money of thesc islands." The jurisdiction of
the court has since been raised to .:e40 cmrcncy.


The jurisdiction of this court extends beyond the
island of N ew Providence to all other islands and keys




378 THE BAHAMAS.
within this governmeneesoept Turk's Islands, which have
been specially provided for, No appeal lies from the
decision of this court to any other tribunal.-3d Rep.
W. l. C. Bd series, 64. . '


Courtsof Appeal and Error.
An appeal lies, though the right appears to be rarely


exercised here, from the judgments of the General Court,
to the Governor and Council as composing a Court of
Error, and from the latter tribunal to the King in Council,
under the provísions of the 10th section ol' the General
Court Act (Bah. Law, vol B, p. 7,) as amended by 6 Geo.
4" c. 8, and of an expresa article in His Majesty's in-
structions to the governor, but no appeal will lie in the
first instance, cxccpt from the Court of Chanccry, to the
King in Council.


N o judge who sat as a member of the court below, when
the judgment appealed from was pronounced, can sit as a
member of the Court of Error upon the hearing of the
appeal from his decision; but he is at 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 security to prosecute,) must be procured, and
on the issuing of the writ, all process of the court below is
at once stayed.


Costs rtre consideren in the discretion of the court, and
are taxed by the clerk of the council, who is also ex qfficio
clerk and registrar of the Court of Error. His fees are,
as indeed all thc fees in this court, the same as those
charged in the Court of Chancery.


Court of Chancery.
The judges of this court are the Governor of the colony


for the time being, (who presides.) and the members of
His 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 uf Chancery in
England. In the cases of idiotcy and 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 authority 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 common, 01' coparcenary.


The proceedings of this court are, in all material points,
analogous to those in England, and the books of practico
which are used there, govern the practice and proceedings
here,


Bills to perpetuare the testimony of witnesses are
entertained by this court, and it also issues commissions
to examine witnesses de bene esse.


This court would entertain a bill on behalf of a married
woman for a separate maintenance, on account of mis-
conduct by the husband, on the ground that the wife would
otherwise be without remedy, inasmuch as a divorce
propter sce¡;itiam could not be obtained in the Court of
Ordinary in this colony, the jurisdiction of which is ex-
pressly confined to the granting of marriage licenses and
the probare of wills,


Bills for the foreclosure of mortgages are stated to be
altogether unknown in the practice of this court, in con-
sequence of the 'facility afforded to mortgagees by section
10 of the Consolidated Court 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 eolony no preference, it is said, is given to debts
nece¡;¡;uyi\)' incurreu for the expenses of a plantation, such
as charges for supplies and repairs necessary to render the
estate productivo. In other colonies, where the opposite
practice prevailed, the cornmissioners were universally in
favour of its continuance.


The number of masters attached to this court (and who
also act as examiners) is not fixed 01' limited.


Thcy give no security for the due discharge of the
duties of their office.


It is not requisite that a master should he a barrister
nor is any particular qualification necessary to his eli:
gibility.


Their duties are the same as are required of the like
ofllcers of thc Court of Chancery in Englancl.
. They never retain the money of the suitors in their
hands, the same when received being paid into the
fegistry of tbe court, 01' to the patries entitled thereto
under the decree of the court,




380 THE BAlIAMAS.
The 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/Ordinary.
The jurisdiction of the Court of Ordinary in the


Bahamas, is derived, as in alI 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 court 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. Probate thus
passed has no other effect than to authenticate the right
of the executor, so far as relates to the personal 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 right to interfere with and possess
himself of the real 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 alI the original wills, after they have
been preved, 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-Admiraliy.
The jurisdiction of the Vice-Admiralty Court in these


islands, is derived from His Majesty's commission of Vice-
Admiral to the Governor.


The judge is removeable at the pleasure of the Crown.
He receives no salary, nor do the officers of the court, the
registrar and marshal, but they 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 court aided by a jury.
The subject-matters of its jurisdiction are, generally


speaking, cases of revenue seizures. Cases of salvage
and suits for seamen's wages are, it is said, rarely brought
before the court.


The laws which this court follows in the discharge of
its functions are those by which the High Court of Ad-
miralty in EngIand (sitting as an Instance Court of Admi-
ralty) would be governed. The jurisdiction of this court
extends to cases of smuggled goods. •


Parties desirous of appealing from this court to the
High Court of AdmiraIty in EngIand, must pray for such
appeal within fourteen days after judgment, and enter
into a bond in .i'~00 sterling to prosecute the same,-3
Rep. W. l. C. ~d series, 68, 69.


COU1't cf Admiralty Sessions.
This court derives its jurisdiction from a Colonial Act


passed in the year 1805, which empowers the Governor
to issue a commission under the great seal of these is-
Iands, directed to the judges of the Vice-Admiralty Court
for the time being, the judges of the General Court, and
such other substantial persons as by his Exce11ency shall
be named, for the trial of all murders and other offences
committed on the high seas, where the Admiralty hath
jurísdictíon,


The sentences of the court, which are in a11 cases sub-
mitted to the Governor before being carried into execution,
are not considered by the local authorities subject to re-
vision by any other court, but a motion in arrest of judg-
ment might, they said, he made in this as well as in the
General Court,


The officers of this court are the provost marshal and
the clerk of the crown, the former of whom is appointed
by the Crown and has a salary of .i'50 currency, the latter
by the Governor with a saIary of .:C40 currency; they re-
ceive no fees, and are removable at pIeasure.-3 Hep. W.
l. C. ~d series, 69.


Justices 01 the Pea ce.
The justices of the peace in this colony are appointed


by the Governor, and are removabIe at his pleasure.




382 THE llAHAMAS.
Their duties generally are of the same nature as is


exereised by justiees of the peaee in England; and, in ad-
dition, theyare empowered by a local aet (13 Geo. 3, e. 1,)
to decide in a summary way " civil claims for all manner of
debts, trespasses, 01' damages, to the value of .es Bahama
eurreney, 01' under, wherein the title to lands is not eon-
cerned."


Their mode of taking examinations on criminal charges
and recognizances does not differ from the practice in
England.


Free Coloured Persone.
By the Colonial Act, 529 Geo. 2, all persons aboye three


degrees removed in a lineal deseent from the negro an-
eestor exclusive, are deemed whites, and entitled to all
thc privileges of that class, provided they are free and
brought up in the Christian religion.


Escheats.
In cases of escheats, slaves, it was said, would become


the property of the Crown, This rule must of course be
subject to alterations as to the possession of such pro-
perty nQW introduced by the Slavery Abolition Act.


Insolvente.
There are no bankrupt laws in this colony, and the


examinants said that their introduction would be by no
means desirable. By the law at present in force, under
whieh no frauds have been eommitted, and whieh indeed,
the examinants said, in express terrns, "has been found
to be a sufflcient security to the creditor," a prisoner fbr
debt, on dclivering up upon oath in the usual form, all
his property to his creditors, and making affidavit that he
is unable to maintain himself, is entitled to an allowanee
from the ereditor of Is. Bd. per diem, and on failure of
payment of the same to be discharged.s--S Rep. W. l. C.
2d series, 73.


Attorney and Solicitor-General.
The duties of these officers differ in no respeet from


those of the Attorney and Solicitor-General in the other




THE BAHAMAS. 383
colonies visited under the commission, and they, in like
manner, are appointed by the Crown and removable at
pleasure,


The Attorney-General has a home salary of ~150 sterl-
ing, and a colonial salary equal to ~g¿63. lOs., besides
fees, which are regulated by the fee bill in the General
Court Act. The Solicitor-General has no salary,


Colonial Secretars},
The Colonial Secretary is appointed by the Crown and


is removable at pleasure. Bis home saIary is cf150
sterling, the colonial salary .i'4·95. 16s. 8d. (including ~:250
currency per annum as clerk to the legislative council.)
and his fees, which are regulated by a colonial tariff, are
calculated on an average at ,.[575 sterling per annum.


The duties of this officer, which are precisely similar to
those of the same officer in the other colonies, are executed
by deputy as well as in person, and neither of the persons
gives any security to the colony.


In addition to holding the appointment of colonial se-
eretary, this officer is ex cdJicio clerk of the Legislature
and of the Council, and registrar of the Courts of Chan-
cery, Ordinary, and Error, respectively.


Prooost Marshal.
This is a patent office held under the Crown, by which


authority only this officer says he is rernovable, but that
he may be temporarily suspended by the colonial govern-
mento He has held the appointment (18:25) since Septem-
ber, 1787. He gives bond to the King with two sufficient
sureties (approved by a justice of the General Court) in
..[1000 currency.


The same individual who fills the office of provost mar-
shal general of the colony, is also provost marshal of the
Court of Admiralty Sessions and of the Inferior Court.
His emoluments are thus enumerated by him ;-" As pro-
vost marshal he has an annual salary of .,fISO sterling
from the Crown, payable in England; in Iieu of aH de-
mands against the colony for ordinary services, he has a
further annual salary of ..[450 currency; as marshal of
the Admiralty Sessions ~50 currency; and as marshal of
the Inferior Court for the Recovery of Small Debts in




384 THE BAHAMAS.
New Providence, ~60 currency. These emoluments are
independent of fees, which are regulated by colonial en-
actments.-3 Itep. W. l. C. ea series, 74.


Coroners.
There are two coroners within this government, one


for the island of New Providence, the other for the Turk's
Islands.


Their duties, powers and authorities, were stated to be
similar to those of the same officer in England. They
receive no salary, but are entitled by a Colonial Act to a
fee of .e6. 18s. cmrency on each inquest.-3 Rep. W. l.
C. l'!d series, 76.


Pollee lJlagistrate or Officer.
This officer is appointed by the Governor and remova-


ble at his pie asure. His duties at the time of the com-
mission were regulated by the Colonial Act, 57 Geo. 3, c.
8, and since hy the 8 Geo, 4, c. 2. They do not seem to
call for any particular observations. He has a salary of
cf800 currency, with certain fees as regulated by the Co-
lonial Fee Bill.-3 Rep. W. I. C. 2d series, 76.


Appeals to the King in Council.
An appeal to His Majesty in Council líes immediately


from the decree (but in no case from the interlocutory
order) of the Court of Chancery, provided the sum in dis-
pute (exclusive of costs) exceeds cf500 sterling, and that
the appeal be craved and entered within fourteen days;
an appeallies also to the same tribunal from the Court of
Error, after a cause has been carried thither from the
General Court,


It is the province of the Governor, and to him must
applicationbe made, to grant an appeal to the King in
Council.


Personal security is, it seems, admitted in cases of ap-
peal.-3 Rep. W. I. C. ea series, 76.


Foreign Judgments and Contracts.
A judgment obtained in England, 01' elsewhere, is held




THE BAH AMAS. 385
of no other force and effect in the courts of this colony
than that upon an action of debt brought in the colony
the record of judgment properly authenticated wouldbe
held evidence of the debt, su~~osin~of course that, on the
face ofit, it did not appear unjust and contrary to reason.


The judgmcnts of an English court of competent juris,
diction, in cases of bankruptcy, have been held in this
colony valid, so far as thatthe assignees have taken pos-
session of the bankrupt's personal property, and brought
actions against others for debts due to the bankrupt.
The real estate of the bankrupt has been in such cases
conveyedby deed from the bankrupt to the assignees.


When the guardian of a minar, appointed in England,
has been desirous of disposing of orincumbering the pro-
perty of his ward within the colony, it has been usual, it
appears, to obtain for that purpose a privare Act of As-
sembly, the expense of which is said to be very trifling.-
3 Rep. W. l. C. 2d series, 76, 77.


Absentees.
N o process can issue from the courts here against a


person who has never been in the colony. If a former
resident has removed and been absent twelve months, ser-
vice of process at his last place of abode will be good,
provided the cause of action arose previously to his de-
parture.-3 Rep. W. I. C. 2d series, 77.


Marriages.
Marriages are usuaIly solemnized in this colony by a


minister of the established church, after the publication
of banns, or by license from the Governor as ordinary. (2)
Where there is no resident minister (as in the out islands)
the Governor, by license, authorizes some magistrate to
perform the ceremony. The only Act of Parliament re-
lating to marriages in force here is the 3B Hen. 8, c. 8.


On a question which was put by the commissioners as
to the effect of a marriage celebrated abroad.according
to the law of the country, where the same was had be-
..._-~. ------------


(2) Sce ante, p. 32.
ce




386 THEBAHAMAS.
tween persons possessed of real property, in regard to this
property, supposing the law of the two pIaces to differ
thereon, the examinants stated as their opinion that the
wife would in such case he entitIed to dower in the real
estate, according to the laws of England which prevail
here, and they thought it wouId make no difference in this
respect whether the marriage had been celebrated bonil
fide, 01' infraudem legis domicilii originis.


The examinants further stated that a marriage cele-
brated out of the coIony, between parties who had children
before such marriage, would not have the effect of legiti-
mating 'such children in this colony, a1though a contrary
law might prevail where such marriage was soIemnized,
as in Scotland, for example.-3Rep. W. I. C. 2d series,
77,78.


Wills, Intestacy, ~c.
In regard to the power of devising and bequeathing


real and personal estate in this colony, and the solemnities
requisite to the validity of a will disposing of the same,
the law of England is followed here; and no distinction
prevails in this respect between the wills of white 01' of
coloured persons.


In the case of a devise of lands in this colony by a will
executed abroad, the examinants said the same would be
invalid, unless the provisions of the statute of frauds (29
Cal'. 2, c. S,) in regard to the number of subscribing wit-
nesses had been complied with.


The law of descents in this colony, and the law for the
distribution of personal estates in cases of intestacy, follow
in all respecta the laws of England regulating the same
matters.-3 Rep. W. I. C. 2d series, 78.


Passes to Quit the Colony.
By an act of this colony (1 Bahama Laws, p. 343,) every


person who has be en resident therein for thirty days 01'
upwards, wishing to depart, is obliged to affix his name to
a papel' in the colonial secretary's office, and to give
fifteen days' notice of such his intention, before he can
obtain what is called a pass. This pass may be withheld
at the instance of any creditor of the person so announc-




THE BAHAMAS. 887
ing his intended departure, by the creditor lodging his
caveat thereto, and the latter is not bound to enter into
any seeurity to answer eondemnation in eosts and damages
upon subsequent judicial proeeedings being had in the
matter,


There is a mode of proceeding in this eolony similar to
that of the ne exeat regno in England. It is by a writ of
ne exeat insulis issuing out of the Court of Chaneery,
and is applied for on the same grounds, and granted on
bill, petition, and affidavit as in England.-3 Rep, W. l.
C. fld series, 78.


cc~




( 388 )


THE BERMUDAS
0&


SOMERS' ISLANDS.


-


THE Bermudas are situated between the 31st and 32d
degrees of north latitude, and the 64th and 65th of west
longitude. Their first name is said to be derived from
John Bermudez, a Spaniard, who touched upon them in
152)2, and found them destitute of inhabitants. Their
second appellation they take from Sir Gcorge Somers,
who was wrecked on them in 1609. The cluster of is-
lands is said to be 400 in number, the far largcst portion
are however nothing more than uninhabitable rocks, the
whole of the inhabitable part containing little more than
12,000 acres. The c1imate of the Bermudas is said to be
salubrious, The soil is fertile and capable of producing
every article of West India produce. The chief island is
St, George's, which is about sixteen miles in length, and
at most three in breadth, It contains a town of the same
name.(l)


HISTORY AND CONSTITUTION.


The honour of being the earliest visitant of these islands
is claimed for an Englishman named May, who was
wrecked upon them, but they were certainly not settled
till after the shipwreck of Sir George Somers. That gen-
tleman returned to Virginia in acedar vessel constructed
by his roen from the timber growing on the islands, and
which vessel it is said did not contain one ounce of iron,
except a bolt in the keeI. The fact probably was, that the
shipwrecked mariners had lost almost every thing, and
that necessity compelled them to build this vessel without


(1) 4- B. Edw. 231 lo 2·10.




THEBERMUDAS. 389
the aid of this most useful metal. The colony of Virginia
happened at the moment of Sir George Somers's return to
be distressed by famine, and his account of.the abundance
of black swine which he had seen at Bermuda induced
Lord Delaware, who was then Governor of Virginia, to
send him back for a supply. Sir George died almost im-
mediately after his arrival at Bermuda, and his crew,
instead of performing their duty, sailed for England,
leaving however one of their number on the island. This
man soon joined two others who had escaped at the time
Sir George was flrst wrecked there, The .Virginia Com-
pany, pleased with the account they had received of these
islands, claimed them by the title of firstdiscoverers, and
immcdiately afterwards sold their right to 120 persons,
who obtained a charter in ]612 from King James, and
commenced thc settlement of their new purchase. In
Hi19, when the beauty and fertility of the island had be-
come well known in England, Captain Butler went out as
Governor, and carricd with him a body of 500 settlers,
The white population was found, in consequence of this
accession of strength, to amount to 1000 persons. Cap-
tain Butler therefore deemed it expedient to introduce a
House of Assembly. The population was afterwards still
more considerably increased by the number of persons
who retired to Bermuda to avoid the civil distractions of
their native country. The present population is estimated
at about 4000.


COURTS.


'I'he courts for the administration of justice are the
Court of Chancery, the Court of General Assize, Court
of Exchequer, Court of Ordinary, Court of Admiralty,
and Court of Quarter Sessions.


Court qf Chancery.
The Governor and His Majesty's Council, orany five


of them, of whom the Governor must be one, constitute
this court.


The court has similar jurisdiction and powers to those
possessed by the Court of Chancery in England.




390 THE BERMUDAS.


Tite Court 01 General Assize


Is a Court of Record, and has "the like powers, pro-
perties, rights, superintendance, force, effect, jurisdiction,
authorities, pre-eminence and advantages which belong to
01' are enjoyed, used, 01' in any manner practised in and
by the Courts of King's Bench, Common Pleas, Oyer and
Terminar, General Gaol Delivery, and Assize in England,"
and is held at the town of Hamilton by a chief justice and
one 01' two, but not more, assistant justioes.


This court holds pleas in all manner of causes, suits,
and actions, civil and criminal, and it is empowered to
make such rules, regulations, and orders, respecting
merely the practice of the court, as may be expedient,
and as nearly as conveniently may be agreeable to the
rules of practice established in the common law courts of
W estminster-hall, An appeal from this court lies by writ
of error to


The Court 01 Error,


Consisting of the Governor and Council, 01' any five oí
them, (with the exception of such as may be judges of the
court appealed from,) of which five the Governor must be
one, and if the judgment entered, 01' debt 01' demands
laid exceed .f500 currency, an appeal Hes from the Court
of Error to the King in Counci\.


This court may make rules of practice merely for writs
oí error, and agreeable to the Iaws and practiee of Eng-
land.


There are other courts for administration of justice in
this island, as a Court of Exchequer, a Court of Ordinary,
an Instance Court of Admiralty, and a Court of Quarter
Sessions ; but the Acts of Assembly do not define either
their jurisdiction 01' powers. It may however be concluded
that they are similar to the corresponding courts in the
other West India Islands. (2)


(2) Howard's Laws oí the Colonies, vol. i, p. 363,364.




THE BERMUDAS. 391


PARTICULAR LAWS. (3)
3 ANNE.-.I1n Act for settling Intestates' Estates.-Con-


firmed 3d August, 1704.
All the goods, chatteIs, and estates of all and every pe1'-


son 01' persons of 01' in these islands, dying intestate, shall
be disposed of and distributed by and amongst such pe1'-
sons, and in such manner and form, as is directed. by tbe
Act of Parliament, 522 & :23 Cal'. 2, c. 10.
1J!,7 GEO. 3.-An Act for the better Settling of Intestates'


Estates.-13th JuIy, 1787.
Administration of intestates' effects in these isIands to


be grantabIe to tbe widow 01' next of kin to the deceased,
01' both, and on their default, to a creditor 01' such other
person as the Governor approves.


CIear residue of intestate's cstates to go one-third to the
widow, and two-thirds equally among the children, and
the representatives of deceased children, other than child
(not being heir at Iaw) advanced by intestate in his Iife-
time, equaI to share beIonging to unadvanced ehildren.
Advanced chiIdren to share equally with other children,
on bringing the advancement into hotch-pot.


Heir to share equaHy with other chiIdren notwithstand-
ing Iand he may have,


If there be no child 01' representative of one, haIf to go
to the widow, and haIf among next of kin of equal degree,
and their representatives, but none among col